HomeMy WebLinkAboutProperty #: C-9560 - 12/22/2014 CITY CLERK C_9560
4- ORIGINAL
12/22/2014
SALT RIVER PROJECT
LICENSE
Salt River Project License No.: 02809-0
Salt River Project File No.: 773.2206
Effective Date: Dec. 15, 2012
Agent: MXW
1. License Granted
WHEREAS, it is understood by the parties hereto that Licensor and the Salt River Valley
Water Users' Association (Association) manage the Licensed Property pursuant to contracts with
the United States of America (USA), which assign to Licensor the responsibility and authority
for the care, operation, maintenance and management of the Salt River Reclamation Project
("Reclamation Project"), of which the Licensed Property is a part, and;
WHEREAS, Licensor is willing to consent to Licensee's use of the Licensed Property in a
manner that does not in any way compromise the contractual obligation or authority of Licensor
to manage the Reclamation Project.
The SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER
DISTRICT, an agricultural improvement district organized and existing under the laws of the State
of Arizona ("Licensor"), grants CITY OF GLENDALE, a municipal corporation of the State of
Arizona, ("Licensee"), a revocable License conveying the nonexclusive right and privilege to enter
upon and use certain real property,the Licensed Property,under the following terms and conditions.
2. Purpose
Licensee shall use the Licensed Property only for a multi-use corridor and operation and
maintenance of landscape and flood control improvements within an adjacent SRP irrigation
easement per the Bethany Home Outfall Channel plans approved by Licensor. Licensee shall not
use the Licensed Property for any other purpose without the prior written approval of Licensor.
Licensee acknowledges that, but for this License, it has no rights to use or occupy the Licensed
Property, and represents that it makes no claim to such rights.
3. Licensed Property
The Licensed Property shall mean: That portion of the north bank of the Grand Canal lying
within Sections 9, 10, 14, 15 and 16, Township 2 North, Range 1 East, Gila and Salt River Base
Meridian, Maricopa County Arizona, needed to access portions of the Licensee's Project, per the
Bethany Home Outfall Channel plans approved by Licensor.
4. Compensation
4.1 As consideration for granting this License, Licensor shall grant Licensee a No Fee
License (0/00)for the term of this License.
4.2 Licensee shall reimburse Licensor, for all federal, state and local excise, sales,
privilege, gross receipts and other similar taxes lawfully imposed on and paid by Licensor as a result
of the consideration received by Licensor under this License; provided, however, that this Section
shall not apply to income taxes. Licensee shall pay all property taxes, if any, levied on the Licensed
Property.
4.3 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
additional License Fees.
4.4 Any payment due and unpaid under this License that is not paid within 30 days of its
due date shall bear interest from the date such payment was due 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 compensation specified in this Section 4.
4.5 Within 30 days of Licensor's delivery of an invoice therefore, Licensee shall pay
any incremental increase in Licensor's operation and maintenance costs on the Licensed Property
resulting from Licensee's exercise of its rights hereunder; Licensor shall incur no liability for any
costs of repairing or replacing Licensee's improvements within the Licensed Property, damaged as a
result of Licensor's operation and maintenance of its facilities, unless due to negligent or willful acts
or omissions of Licensor or its agents or employees.
5. Term
The term of this license shall be from December 15, 2012 (the "Effective Date") through
December 14,2022.
6. Rights of the United States of America
This License is subject to the paramount rights of the USA in and to the Licensed Property,
federal reclamation law, and all agreements existing and to be made between and among the USA,
the Association, and Licensor regarding the management, care, operation and maintenance of the
Reclamation Project.
7. Successors and Assigns
The privileges granted to Licensee herein shall not inure to or benefit any person or entity
other than Licensee, either through assignment or sublicense. Any attempt by Licensee to so assign
or sublicense all or any portion of the Licensed Property for any purpose whatsoever shall void this
License.
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8. Termination of the License
8.1 If a party ("Defaulting Party") fails (i) to make payment required herein by its due
date or (ii) perform an obligation under this License within 30 days after written notice is given to
the Defaulting Party of its failure to perform such obligation on the date when such performance
was due (or, if such default cannot reasonably be cured within 30 days, then within such longer
period as is determined by the non-defaulting party to be necessary to cure such default, provided
the Defaulting Party commences to cure such default within the 30 day period), then, upon the
expiration of the applicable cure period, if any, the non-defaulting party may terminate this License
upon not less than 30 days prior written notice to the Defaulting Party.
8.2 Either party may terminate this License without cause upon not less than thirty (30)
days written notice.
8.3 In the event either party terminates this License, or upon expiration of the License
term, Licensee's rights to use and occupy the Licensed Property hereunder shall cease at the date of
termination; provided however, Licensee may enter upon the Licensed Property for a period of sixty
(60) days thereafter, for the sole purpose of removing Licensee's improvements and restoring the
Licensed Property to the condition that existed prior to its improvements thereon. If Licensee has
failed to remove any of its improvements or restore the Licensed Property within such sixty (60)
day period, Licensee shall reimburse Licensor for the reasonable costs incurred by Licensor for the
removal or storage of Licensee's improvements and restoration of the Licensed Property. Licensee
shall release and indemnify against all claims, Licensor, Association, and USA from all damages
resulting to Licensee as a result of such removal, storage, or restoration. The provisions of this
Section 8.3 shall survive termination of this License.
9. Maintenance of Licensed Property & Interface with Licensor's Use of Licensed
Property
9.1 Licensee, at its own expense, shall maintain all of the Licensed Property in
reasonably good, sanitary and safe condition. Subject to the conditions set forth herein, Licensor
reserves to itself, Association and the USA, a right of access to the Licensed Property for the
construction, use, operation, maintenance, relocation and removal of any existing and future electric
or water distribution or transmission facilities. Any such construction, use, operation, maintenance,
relocation or removal shall be performed in a manner designed to avoid, to the extent feasible,
disturbance to Licensee's improvements and Licensee's use and enjoyment of the Licensed Property.
Licensor shall give Licensee at least ninety (90) days prior written notice of any such construction,
use, operation, maintenance, relocation or removal that will materially disrupt Licensee's use and
enjoyment of the Licensed Property or the Licensee's improvements; 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 and the USA. Licensor shall not be liable to Licensee for any
damage to Licensee's improvements located upon the Licensed Property, unless due to negligent or
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willful acts or omissions of Licensor or its agents or employees.
9.2 If Licensee defaults in the performance of the obligations set forth in Section 9.1,
and Licensor gives notice of the default, Licensee shall correct such default to the reasonable
satisfaction of Licensor within the required period of time set forth in the notice of default (the
"Correction Period"), which period of time shall be reasonable under the circumstances. If Licensee
fails to correct the default within the Correction Period, Licensor may take 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 Licensee's improvements. Licensee shall
reimburse Licensor for the reasonable costs it incurs to correct such default within thirty (30)
calendar days after Licensor presents Licensee with a statement of such costs. Licensee shall
release Licensor, Association and USA from all damages resulting to Licensee from the correction
of such default, including, without limitation, those damages arising from all repairs or
modifications to or removal of any of Licensee's improvements.
10. Nonexclusive Rights
This License is nonexclusive and nothing herein shall be construed to prevent or restrict
Licensor from granting other privileges to use the Licensed Property in a manner not inconsistent
with Licensee's use of the Licensed Property in accordance with this License.
11. Existing Easements and Licenses
This License is subject to all existing encumbrances of record, including easements and
licenses. It shall be Licensee's obligation and responsibility to ascertain the rights of all third parties
in the Licensed Property. Licensor consents only to the use of the Licensed Property for the
purposes described herein, in its capacity as manager of the Licensed Property and on behalf of the
USA. Nothing in this License shall be construed as Licensor's representation, warranty, approval or
consent regarding rights in the Licensed Property held by other parties. Licensee shall indemnify
and hold Licensor, the USA and the Association harmless from any liability arising out of any
dispute or claim regarding actual or alleged interests in the Licensed Property, affecting Licensee's
interests created herein, and shall release Licensor, the USA and the Association from any such
claims on its own behalf.
12. Indemnification
To the extent not prohibited by law or expressly excepted herein, Licensee, its successors
and assigns ("Indemnitors"), shall indemnify, release, and hold harmless Licensor, Association and
the United States of America ("Indemnitees") and the directors, officers, employees, agents,
successors and assigns thereof, for, from and against any damage, loss or liability caused in whole
or in part by Licensee, regardless of whether caused in part by Indemnitees or any of them, and
suffered by Indemnitees as a result of any claim, demand, lawsuit or action of any kind, whether
such damage or loss is to person or property, arising out of, resulting from or caused by: (a)the acts
or omissions of Licensee, its agents, contractors, officers, directors, or employees; (b) Licensee's
use or occupancy of the Licensed Property for the purposes contemplated by this License, including
but not limited to claims by third parties who are invited or permitted onto the Licensed Property,
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either expressly or impliedly, by Licensee or by the nature of Licensee's improvement or other use
of the Licensed Property pursuant to this License; (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 costs incurred by Licensor in defending against such claims, demands, lawsuits or
actions, including but not limited to attorney, witness and expert witness fees, and any other
litigation related expenses. Indemnitors' obligation pursuant to this Section shall not extend to any
damage, loss or liability as a result of any claim, demand, lawsuit or action of any kind, whether
such damage, loss or liability is to person or property arising out of, resulting from or caused by the
sole, exclusive acts or omissions of Indemnitees, their contractors, directors, officers, employees,
agents, successors or assigns for which Licensor shall indemnify, release and hold harmless
Indemnitors. Licensor's obligation to indemnify Indemnitors shall extend to and encompass all
costs incurred by Indemnitors in defending against such claims, demands, lawsuits or actions,
including but not limited to attorney,witness and expert witness fees,and any other litigation related
expenses. The provisions of this Section shall survive termination of this License.
13. Insurance
Without limiting any liabilities or any other obligations of Licensee, Licensee shall provide
and maintain, with forms and insurers acceptable to Licensor, and until all obligations under the
License are satisfied,the minimum insurance coverages, as follows:
13.1 Worker's compensation insurance to cover obligations imposed by applicable federal
and state statutes and employer's liability insurance with a minimum limit of One Million and
No/100 Dollars ($1,000,000.00).
13.2 Commercial general liability insurance with a minimum combined single limit of
Two Million and No/100 Dollars ($2,000,000.00) each occurrence. The policy shall include
coverage for bodily injury liability, property damage liability, personal injury liability, and contrac-
tual liability for liability assumed under this License. The policy shall contain a severability of
interests provision.
13.3 If applicable, comprehensive automobile liability insurance with a combined single
limit for bodily injury and property damage of not less than Two Million and No/100 Dollars
($2,000,000.00) each occurrence with respect to Licensee's vehicle, whether owned, hired or non-
owned, assigned to or used in the performance of the work.
13.4 The policies required by Sections 13.2 and 13.3 hereof shall be endorsed to include
Licensor, members of its governing bodies, its officers, agents and employees as additional insureds
and shall stipulate that the insurance afforded for Licensor, members of its governing bodies, its
officers, agents and employees shall be primary insurance and that any insurance carried by
Licensor, members of its governing bodies, its officers, agents or employees shall be excess and not
contributory insurance.
13.5 Licensee shall waive their rights of recovery and require its insurers providing the
required coverages to waive all rights of subrogation against Licensor and members of its governing
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bodies, its officers, agents and employees for matters arising out of this License.
13.6 Upon execution of this License, Licensee shall furnish Licensor with Certificates of
Insurance as evidence that policies providing the required coverages, conditions and limits are in
full force and effect. Such certificates shall provide that not less than thirty (30) days advance
notice of cancellation, termination, or alteration shall be sent directly to Licensor addressed as
follows:
Manager, Land Rights Management, PAB348
Salt River Project
P.O. Box 52025
Phoenix, Arizona 85072-2025
14. Construction
14.1 Prior to making any improvements on the Licensed Property, Licensee shall submit
to Licensor for its approval final construction documents and plan showing the location of any such
improvements. Licensor shall approve or disapprove such documents and plans within 30 days. If
applicable, Licensee shall obtain a Construction License from Water Engineering (Susana Ortega
602-236-5799) prior to the start of construction. Construction on the Licensed Property shall be
performed only in accordance with approved construction documents and plan. At least ten (10)
days prior to the beginning of any construction on the Licensed Property, Licensee shall give
Licensor notice of the date that construction will begin and a schedule listing all 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.
14.2 Licensee's improvements constructed, installed, operated and maintained on the
Licensed Property shall not interfere with Licensor's use of Licensor's existing or any future
irrigation or electric facilities on or adjacent to the Licensed Property.
14.3 Licensor may request Licensee to alter the scheduling of construction undertaken
pursuant to Section 14.1 but only when and to the extent necessary to prevent any material
interference with Licensor's use of the Licensed Property, and if such improvements do interfere
with Licensor's use, Licensor may request Licensee to relocate Licensee's material, facilities and
improvements as deemed necessary by Licensor.
14.4 If relocation of Licensee's materials, facilities, or improvements is necessitated by
Licensor's use of existing facilities or the construction of improvements by or on behalf of
Licensor, Licensee shall bear the entire actual cost of relocating said materials, facilities and
improvements.
14.5 Licensor shall not exercise its right to require relocation of Licensee's facilities,
materials, and improvements in an unreasonable or arbitrary manner.
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15. Permits,Statutes and Codes
Licensee shall comply with all requirements of all statutes, acts, ordinances, regulations,
codes, and standards of legally constituted authorities with jurisdiction, applicable to Licensee's use
of the Licensed Property. 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.
16. Licensor's Right to Inspect
16.1 Licensor, Association or the USA may enter any part of the Licensed Property at all
reasonable limes to make an inspection thereof During any construction by Licensee, Licensor
may inspect all trenching, backfilling and other related construction activity that potentially affects
Licensor's facilities, and require conformance with all Licensor's requirements and specifications
related thereto.
16.2 Licensee shall release Licensor, Association and the USA from any claims for
damages arising out of any delay caused by Licensor in permitting or inspecting any work on the
Licensed Premises. The provisions of this Section shall survive termination of this License.
17. Service of Notice
All notices, demands and invoices required or permitted by this License shall be in writing
and shall be considered to have been properly delivered: (i) if mailed, three (3) business days after
deposit in the U.S. mail, postage prepaid, return receipt requested, addressed as follows; (ii) if sent
by overnight delivery service, on the next business day after deposit with such service, addressed as
follows; (iii)if personally delivered, or(iv)if by email on the date of delivery service to:
Mail
Notices to Licensor Notices to Licensee
Attn: Manager, PAB348 Attn: Bill Passmore, P.E.
SALT RIVER PROJECT City of Glendale
Land Rights Management 5850 West Glendale Avenue
P.O. Box 52025 Glendale, Arizona 85301
Phoenix,AZ 85072-2025
Hand/Certified Delivery
Notices to Licensor Notices to Licensee
Attn: Manager,PAB348 Attn: Bill Passmore, P.E.
SALT RIVER PROJECT City of Glendale
Land Rights Management 5850 West Glendale Avenue
2727 E. Washington Street Glendale,Arizona 85301
Phoenix, AZ 85034-1422
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Either party may change its address or the designated person to receive notification
hereunder by giving notice of such change in the manner provided above.
18. Waiver
This License may not be modified or any provision waived except by written agreement
executed by both Licensor and Licensee. The waiver by either party of any breach or failure to
provide full performance under any of the terms and conditions of this License, 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.
19. Attorneys' Fees Upon Default
If either party brings or defends any legal action, suit or proceeding based on rights or
obligations arising from this License, the successful party shall be entitled to recover reasonable
litigation expenses, court costs and reasonable attorneys' fees, as determined by a court, in any such
action, suit or proceeding. The foregoing shall not in any way limit or restrict any other right or
remedy at law or equity otherwise available to such party.
20. Force Majeure
If either party is rendered unable, wholly or in part, by force majeure to carry out its
obligations under this License, other than the obligation of Licensee to make payments of amounts
due hereunder, then the obligations of both Licensee and Licensor, so far as they are affected by
such force majeure, shall be suspended during the continuance of any inability so caused, but for no
longer period, and such cause shall so far as possible be remedied within a reasonable time. The
term "force majeure" as used herein shall mean acts of God, strikes, lockouts, or other industrial
disturbances, acts of public enemies, wars, blockades, insurrections, riots, epidemics, landslides,
lightning, earthquakes, fires, storms, floods, washouts, interruptions by government not due to the
fault of the parties, civil disturbances, explosions, or unforeseeable action or nonaction by
governmental bodies in approving the applications for approvals or permits or any material change
in circumstances arising out of legislation, regulation or litigation. Nothing in this Section shall
require Licensor to settle a strike.
21. Entire Agreement; Changes After Execution
This License, including its specified addenda and exhibits, if any, constitutes the entire
agreement between the parties, and any amendment hereto must be in writing, signed by both
parties.
22. Governing Law,Venue and Waiver of Trial by Jury
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This License shall be interpreted, governed by, and constructed in accordance with the
substantive and procedural laws of the State of Arizona, without regard to conflicts of law
principles. Licensor and Licensee agree that any action, suit, or proceeding arising out of, or in any
way connected with this License, shall be initiated and prosecuted in a state or federal court of
competent jurisdiction located in Maricopa County, Arizona, and the parties irrevocably submit to
the jurisdiction and venue of such court. To the fullest extent permitted by law, each party hereby
irrevocably waives any and all rights to a trial by jury and covenants and agrees that it will not
request a trial by jury with respect to any legal proceeding arising out of or in any way connected
with this License.
23. Water Damage
Except when the result of the negligent or willful act or omission of Licensor or Association
or their directors, officers, employees, agents or assigns, neither Licensor, Association or the USA
shall be liable for any loss sustained by Licensee, its officers, employees, agents or invitees on the
Licensed Property 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 Licensor of the
possibility of such flood, drainage or run-off, arising from or in connection with the operation or
maintenance of any Reclamation Project dam, canal or other facility.
24. Transactional Conflict of Interest
Notice is hereby given of A.R.S. § 38-511.
25. Approvals
Each party agrees that if any consent or approval shall be required of such party, such
consent or approval shall not be unreasonably withheld.
26. Reservation of Remedies
Unless otherwise provided herein, each party shall have available to it, all remedies
provided by law or equity.
27. Archaeological and Environmental Compliance
27.1 Licensee shall obtain a cultural resource clearance from the Environmental
Department of the Arizona Projects Office of the Bureau of Reclamation prior to construction on
the Licensed Property whenever required by the National Historic Preservation Act, Section 106,
and ensuing 36 CFR 800 regulations, A copy of the Bureau of Reclamation archaeological
clearance shall be provided to Licensor's staff archaeologist prior to any construction activity on the
Licensed Property.
Licensee shall notify Licensor's staff archaeologist should any cultural resources or
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human remains be found on the Licensed Property, and when appropriate, shall be responsible for
other notifications and legal requirements as required by the Archeological Resource Protection Act
and the Native American Graves Protection and Repatriation Act and ensuing 43 CFR 10
regulations. All costs are the responsibility of the Licensee.
27.2 Licensee hereby assumes and accepts all liability and responsibility for initiation and
completion of response, cleanup, and corrective and remedial action, and the cost thereof, required
. on the Licensed Property and any other affected premises, due to any action taken by licensee or its
contractors, subcontractors, agents, or representatives during use of the Licensed Property that
results in release or threatened release of any hazardous substance within the meaning of the Federal
Comprehensive Environmental Response, Compensation and Liability Act -- 42 U.S.C. § 9601 et
seq., or the Arizona Environmental Quality Act -- A.R.S. § 49-101 et seq., as such laws have been
or are amended from time to time, or regulated substance within the meaning of Subtitle I of the
Federal Resource Conservation and Recovery Act (Underground Storage Tanks) -- 42 U.S.C. §
6991a et seq., or the Arizona Underground Storage Tank Law -- A.R.S. § 49-1001 et seq., as such
laws have been or are amended from time to time. This Section 27.2 shall survive termination of
this License.
28. Motor Vehicle Use—Special Conditions
When operating a motor vehicle on the Licensed Property, Licensees must at all times:
28.1 Enter onto and exit from the Licensed Property at the point of reasonable access
closest to the component of Licensee's facilities requiring maintenance;
28.2 Maintain a speed not to exceed five (5) miles per hour;
28.3 Ensure safe and reasonable passage through and around Licensee's vehicle and other
repair facilities to all recreational users of the Licensed Property;
28.4 Ensure that no site of ongoing maintenance of Licensee's facilities is left unattended;
and,
28.5 Refrain from accessing the Licensed Property with a motor vehicle except when
necessary to effectuate maintenance of Licensees facilities.
LICENSOR:
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SALT RIVER PROJECT AGRICULTURAL
IMPROVEMEENT AND POWER DISTRICT
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LICENSEE:
CITY OF GLENDALE
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