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HomeMy WebLinkAboutC2023-081 - License Agreement - Cactus Transport II, LLC DBA Cactus AsphaltContract No. 2023-081 When Recorded Mail To: Town of Fountain Hills Town Clerk 16705 East Avenue of the Fountains Fountain Hills, Arizona 85268 LICENSE AGREEMENT GRANTOR: Town of Fountain Hills, an Arizona municipal corporation (the "Town") GRANTEE: Cactus Transport II, LLC D/B/A Cactus Asphalt, an Arizona limited liability company THIS LICENSE AGREEMENT (this "Agreement") is entered into and effective April 10, 2023, by and between The Town and Grantee for the purposes set forth below. RECITALS A.The Town is the record owner of certain real property at the location described and depicted on Exhibit A. attached hereto and incorporated herein by this reference (the "Property"). B.The Grantee has requested, and Town has agreed to grant to the Grantee, a non- exclusive license upon, over, across and through the Property to use as a staging area for the Fountain Hills El Lago Traffic Calming Paving Project (the "Permitted Use"). AGREEMENT NOW, THEREFORE, in consideration of the recitals set forth above, which are incorporated herein by reference, the mutual covenants set forth herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Town and the Grantee agree as follows: 1.Grant of License and Term. The Town hereby grants to the Grantee a license (the "License") on, over, through and across the Property for the Permitted Use for the period from April 10, 2023, until June 30, 2023 (the "Licensed Period"). This License shall be for the benefit and use of the Grantee, its employees, subcontractors and assigns (including without limitation employees, officers and agents) and no others. This License shall automatically terminate and shall be of no force or effect after the Licensed Period. 2.Manner of Use of the Property. Grantee shall use due care and diligencein the use of the Property for the duration of the Licensed Period and in the exercise of its rights hereunder, and it will at all times exercise its rights hereunder at such times and in such manner as approved by the Town and will not cause (i) any interference with the business operations (if any) on the Town's Property, (ii) any interference with the customary access to or from the Town's Property or (iii) any damage or injury to the Town's Property, or to any agents, employees or invitees of the Town, ordinary wear and tear excepted. Additionally, Grantee, at its sole expense, without reimbursement from the Town, shall: 2.1 Property Protection Ensure that all asphalt and drainage channels or swales on the Property are protected from damage by Grantee's vehicles entering or exiting the Property. If Grantee's vehicles damage the asphalt, drainage channels or swales, Grantee shall repair or replace such damages to the satisfaction of the Town, at no cost to the Town. Prior to first utilizing the Property, Grantee shall provide photographic evidence to the Town of all existing damage to perimeter pavement, drainage channels or swales if any. Photographs will clearly show the location of existing damage on the Property. 2.2 Dust Control Prior to use of the Property, clear and grub stabilize all areas of the Property to be accessed by vehicles with native type material in sufficient quantities to prevent the generation of dust. Grantee shall stabilize (crust over) such dust preventative materials at the end of the Project. The Grantee shall identify the Property in its dust control permit and provide the Town with a copy of such permit. 2.3 Property Restoration. Restore or cause to be restored the portions of the Property accessed or utilized by Grantee pursuant to this License to substantially its original condition prior to the completion of the License Period, ordinary wear and tear excepted. 2.4 No Hazardous Materials. Not release, discharge or deposit any toxic, hazardous or petroleum products onto the Property. 2.5 Limitations on Use; Security. Not use any portion of the Property for staging or storage of materials or equipment other than those to be used in connection with the Permitted Use. At the end of each day during the License Period, Grantee shall secure the Property to prevent access by unauthorized persons. 3. Permits; Compliance with Laws. The Grantee shall secure, maintain and comply with all required licenses, permits and certificates relating to, or otherwise necessary or appropriate for Grantee's use of the Property during the Licensed Period. Grantee shall comply with all applicable federal, state and local laws, rules, regulations, statutes, codes, orders and ordinances, including, but not limited to, those governing the prevention, abatement and elimination of pollution and/or protection of the environment, and the employment of workers. In exercising any rights and privileges under this License, the Grantee shall comply fully with all applicable permits, authorizations, approvals and other requirements. 4. Liens and Encumbrances. The Grantee represents and warrants that it will maintain the Propet1y free and clear from any liens or encumbrances of any nature whatsoever in connection with the Grantee's use of the Property. 5. Indemnification. The Grantee covenants and agrees with the Town, on behalf of itself or its successors and assigns, as the case may be, to indemnify, defend and to hold harmless the Town, its successors and assigns, for, from and against any and all losses, claims, liabilities, or the Property to the extent arising from the negligence or willful misconduct of the Grantee, including, but without limitation, injury to any person or property, any mechanics' or materialmen's liens or claims of lien which may be asserted against the Town as a result of the Grantee's negligence or willful misconduct. 6. Insurance Coverage and Limits. Prior to making use of the Property, the Grantee shall obtain at its own expense, and provide the Town with evidence of, insurance sufficient to insure the Town's interests against claims for personal injury, bodily injury, death and property damage occurring on, in, or about the Property, with a "Combined Single Limit" covering personal injury liability, bodily injury liability and property damage liability of not less than $2,000,000.00. The Town shall be endorsed as an additional insured on such policy. 7. Reservation of Rights. The Town hereby reserves all such rights and privileges in the Property as may be used and enjoyed by the Town without interfering with or abridging the rights conveyed to the Grantee. 8. Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or dedication of any Prope1ty or any portion of any Property to the general public, or for any public use or purpose whatsoever. Except as herein specifically provided, no right, privileges immunities of any party hereto shall inure to the benefit of any third party person, nor shall any third party person be deemed to be a beneficiary of any of the provisions contained herein. 9. Counterpat1s. This Agreement may be executed in counterparts, all of which are identical, each of which shall be deemed an original, and all of which counterparts, when executed, taken together shall constitute one and the same instrument. 10. Cancellation by Town. This Agreement may be cancelled by the Town pursuant to ARIZ.REV.STAT.§ 38-511. 11. Early Termination. The Town reserves the right to terminate this License at any time due to the Grantee's failure to meet any of the conditions of this Agreement. The Grantee shall remove all fencing, equipment and non-native material, and return the Property to its original condition (as of the effective date of this License) within 48 hours of receipt of written notice that this License has been terminated. [SIGNATURES ON FOLLOWING PAGES] IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first set forth above. “Town” TOWN OF FOUNTAIN HILLS, an Arizona municipal corporation Rachael Goodwin, Interim Town Manager ATTEST: Linda Mendenhall, Town Clerk APPROVED AS TO FORM: Aaron D. Arnson, Town Attorney [SIGNATURES CONTINUE ON FOLLOWING PAGES] Rachael Goodwin (Jul 6, 2023 12:03 CDT) Rachael Goodwin EXHIBIT A TO LICENSE AGREEMENT [Description of License Property] A 40,000 SF area located at the northeast corner of Golden Eagle Boulevard and Bainbridge Avenue; APN #176-17-300Y. License Area EXHIBIT A TO LICENSE AGREEMENT [Description of License Property] A 23,000 SF area located in the unpaved alley Phase 5, between Sioux and Rand Dr.