HomeMy WebLinkAbout22 - License Agreements - Sheryl L. Simkins - Peets' Hill - South Property i
AFTER RECORDING PLEASE RETURN TO:
City Clerk
City of Bozeman 2765440
PO Box 1230 Page: 1 of 15 0112SI2022 01.15:16 PM Fee $120.00
Bozeman,MT 59771-1230 EricII III Semerad - Gallatin County: MT MI5C
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LICENSE AGREEMENT FOR THE USE OF CITY PROPERTY
BY SHERYL L. SIMKINS
IiI
This License Agreement (the "Agreement") is entered into on , 2022, 1
between the City of Bozeman, a self-governing municipality operating pur ant to its Charter
and the laws of the State of Montana, with a mailing address of P.O. Box 1230, Bozeman, MT
59771 (the "City") an Sheryl L. Simkins, 1625 Kenyon Drive, Bozeman, Bozeman MT 59715 j
("Licensee" and collectively with the City, the"Parties"),
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In consideration of Licensee's promises herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as
follows:
1. Purpose. The City owns the real property described as Exhibit A attached hereto
and incorporated herein by this reference ("Pects Hill _. South Property"). Licensee owns the
real property described as Exhibit B attached hereto and incorporated herein by this reference
("Licensee's Property"). Licensee's Property is located immediately adjacent to Peets Hill -
South Property owned by the City. For some years prior to the City's acquisition of the Peets
Hill-- South Property, Licensee has maintained and used a small storage shed (hereafter"Shed")
thereon in association with the residential use of her adjacent Licensee's Property. Pursuant to
this Agreement, the City authorizes Licensee's continued access to the Shed from Licensee's
Property and her continued use and maintenance of the Shed and lands immediately surrounding
it in compliance with the terms and conditions set forth below.
2. Description of Licensed Property. The location and dimensions of the Shed
subject to this Agreement is depicted on Exhibit C, which includes a map showing the location
of the Licensee's Property, the Peets Hill — South Property, and the Shed. Exhibit C is attached
hereto and incorporated herein by this reference. The property underlying the shed and the area
identified as the "Licensed Property" on Exhibit C are hereby licensed by the City to Licensee
("Licensed Property").
City's License Agreement with Sheryl L.Simkins
Poets'Hill—South Propelrty
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3. Title. Licensee hereby acknowledges this Agreement grants a privilege to
Licensee and not an interest in the Licensed Property and the title of the City to the Licensed
Properties, and Licensee agrees never to deny the City's title or claim, at any time, or claim any
real property interest or estate of any kind or extent whatsoever in the Licensed Properties by j
virtue of this Agreement or Licensee's occupancy or use hereunder. The City may enter the
Licensed Properties at any time to assert its real property interest or for other purposes which do
not unreasonably interfere with the activities of the Licensee authorized by this Agreement.
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4. License for access to and use of Licensed Property; Term. The City hereby i
grants permission, revocable and terminable as provided herein, during period commencing
on the Effective Date and expiring on January 15, 2027, on the terms and conditions set forth
herein, with which and by which Licensee promises to comply and abide ("Use License"). The
Use License consists of permission for Licensee, her agents, permittees, employees, I
contractors or subcontractors, to use and to access the Licensed Property, and no other portion of
the Peets Hill - South Property for only the purposes and in the manner as stated herein. Access
shall be limited to pedestrian and access associated with storage of landscaping tools, supplies,
machinery (e.g., lawnmowers and trimmers) and other uses complementary to residential uses of
Licensee's Property. Any other uses shall be considered to be a breach of this Use License and
shall be grounds for revocation and termination of this Agreement in accordance with Paragraph
12 below. This License does not run with the land and shall be automatically terminated upon
Licensee's transfer of the Licensee's property.
The term of the Use License may be extended by mutual agreement of the Parties in writing.
The City Manager is authorized to agree on behalf of the City to extension(s) of the term of the
Use License.
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5. Indemnification/Insurance.
a. To the fullest extent permitted by law, Licensee, recognizing it exercises its
privileges under this Agreement at its own risk, shall release, and shall
protect, defend, indemnify, and hold harmless the City and its agents,
representatives, employees, and officers from and against any and all claims,
demands, actions, fees and costs (including attorney's fees and the costs and
fees of expert witness and consultants), losses, expenses, liabilities (including
liability where activity is inherently or intrinsically dangerous) or damages
["Indemnified Claims"lof whatever kind or nature connected therewith and
without limit and without regard to the cause or causes thereof or the
negligence of any party or parties that may be asserted against, recovered
from or suffered by the City, occasioned by, growing or arising out of or
City's License Agreement with Sheryl L.Simkins
Peets'Dill—South Property
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resulting from or in any wayrelated to: i) the occupation or use of the I
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Licensed Property by City; (ii) the negligent, reckless, or intentional !
misconduct of the City, its officers, employees, or agents on or related to the
Licensed Property; and(iii)any negligent, reckless, or intentional misconduct
of any of the City permittees, agents, employees, contractors or subcontractors
on or related to the Licensed Property. No indemnity obligation shall arise if
the Indemnified Claims relate in whole or in part to: (i) the occupation or use
of the Licensed Property by City; (ii) the negligent, reckless, or intentional
misconduct of the City, its officers, employees, or agents on or related to the j
Licensed Property; and(iii) any negligent, reckless, or intentional misconduct
of any of the City permittees, agents, employees, contractors or subcontractors
on or related to the Licensed Property.
Except as noted herein, such obligation shall not be construed to negate,
abridge, or reduce other rights or obligations of indemnity that would
otherwise exist as to an indemnitee described in this Section. The
indemnification obligations of this Section must not be construed to negate, [
abridge, or reduce any common-law or statutory rights of the indemnitees
which would otherwise exist as to such indemnitees. ,
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Licensee's indemnity under this Section shall be without regard to and
without any right to contribution from any insurance rrraintained by City,
unless as specified above the allegations are made against City or jointly
against City.
Should any indemnitee described herein be required to bring an action against
the Licensee to assert its right to defense or indemnification under this
Agreement or under the Licensee's applicable insurance policies required
below the indemnitee shall be entitled to recover reasonable costs and attorney
fees incurred in asserting its right to indemnification or defense but only if a
court of competent jurisdiction determines the Licensee was obligated to
defend the claims or was obligated to indemnify the indemnitee for a claims
or any portions thereof.
In the event of an action filed against the City, the City may elect to represent
itself and incur all costs and expenses of suit.
The obligations of this Section S(a) shall survive termination of this
Agreement.
City's License Agreement with Sheryl L.Simkins
Peets'Hill—South Property
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b. Before City incur any attorney's fees or costs in the defense of any such
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claims presented, City shall deliver written notice to the indemnitor trending {
Licensee's defense. If the indemnitor fails to immediately accept or undertake
the defense tendered, then the indemnitor fails to immediately include the
responsibility to reimburse City for reasonable attorney's fees and costs
incurred in the defense of any such claim presented. If the defenses is
accepted or undertaken the City agree to assign all known and potential
counterclaims. If any proceeds received from the counterclaims exceed the
costs of the indemnification, such excess shall be paid to the City.
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c. In addition to and independent from the above, during the term of this
Agreement Licensee shall at Licensee's expense maintain homeowners
insurance as set forth below through an insurance company or companies duly
licensed and authorized to conduct business in Montana which insures the
liabilities and obligations specifically assumed by the Licensee in Section
5(a). The insurance coverage shall not contain any exclusion for liabilities
specifically assumed by the Licensee in Section 5(a). The insurance coverage
is satisfied through the issuance of an acceptable rider to Licensee's r
homeowner policy.
Within ten (10) days following execution of this Agreement, Licensee shall
provide City with proof of such insurance in the form of a certificate of
insurance, the insuring agreement and all applicable endorsements
demonstrating that such insurance is in full force and effect and shall provide
such proof when requested by the City thereafter during the term of this
Agreement. The City may require additional evidence of the nature and scope
of the insurance required herein.
Licensee shall ensure such required insurance coverage is timely renewed so
that there is no lapse in coverage during the time such insurance must remain
in place. Licensee shall notify the City within two (2) business days of
Licensee's receipt of notice that any required insurance coverage will be
terminated or Licensee's decision to terminate any required insurance
coverage for any reason.
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The insurance and required endorsements must be in a form suitable to the
City.
City's License Agreement with Sheryl L.Simkins
Deets'Hill—South Property
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d. Licensee shall obtain the following type of insurance:
Homeowner's Insurance
For liabilities assumed hereunder, the City, its officers, agents, and
employees, shall be endorsed as additional or named insureds on a primary
non-contributory basis on the Homeowners insurance policy.
6. Construction/Restrictions/Repair and Maintenance.
a. Licensee shall keep the adjacent private and public properties free from debris
and other materials stored or located on the Licensed Property.
b. Licensee agrees to immediately repair any damage caused by Licensee, her
agents, permittees, employees, contractors or subcontractors, to any public or
private property outside of the Licensed Property to a condition acceptable to
the owner of such private infrastructure. f
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e. Any damage to the Peets Hill — South Property and the Licensed Property
shall be repaired to a condition acceptable to the City. Maintenance or repair
work to the Property shall be performed to the City's reasonable satisfaction.
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7. Waste, Nuisance, and Unlawful Use Prohibited. Licensee shall not commit, or
suffer to be committed, any waste on the Peets Hill—South Property and the Licensed Property,
nor shall Licensee maintain, commit, or permit the maintenance of any nuisance on the Peets Hill
— South Property and the Licensed Property or use the Licensed Property for any unlawful
purpose_ Licensee shall not do or permit anything to be done in or about the Peets Hill-- South
Property and the Licensed Property which shall in any way conflict with any law, ordinance,
rule, or regulation affecting the occupancy and use of the Peets Hill — South Property and the
Licensed Property, which are or may hereafter be enacted or promulgated by any public
authority.
8. Hazardous Materials. Licensee agrees and represents that it shall not store or
dispose of on the Licensed Property any "Hazardous Materials" as defined by Federal, State or
local law as from time to time amended, except for small quantities of lawn and garden
fertilizers, herbicides, or pesticide that are stored in the Shed and used for maintenance of
Licensee's Property for residential purposes.
City's License Agreement with Sheryl L. Simkins
Peets'Hill--South Property
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9. Signage. Licensee may not install any signage except as authorized by the City's
Representative.
11. Restoration.
a. Within six (6) months upon completion of the Licensee's use of the Licensed
Property or within 30 days of termination of this Agreement pursuant to
Section 12, whichever is earlier, and under no circumstances later than July
15, 2027, the Licensee shall remove all buildings and structures on the
Licensed Property and shall cause the Licensed Property (and any portion of
the Peels' Hill— South Property disturbed by Licensee's activities) to be fully j
restored to a condition similar to or equivalent to the surrounding unlicensed
Peels Hill — South Property by reclaiming land contours, restoring soils,
replanting vegetation, and husbanding replanted vegetation until the
vegetation is mature, established, and self-perpetuating, as specified by the
Parks Superintendent or City Representative. In addition, Licensee shall
restore damage Licensee or Licensee's agents, permittees, employees,
contractors or subcontractors cause to the Licensed Property to a condition as
good or better than existed prior to Licensee's occupation of the Licensed
Property. All work to restore the Licensed Property shall comply with
applicable building codes and the City's design and construction standards,
except to the extent that the Existing Condition, as explained below, does not
comply with such codes and standards. Licensee may be required to enter into
a contract with the City for such work. Licensee may cause their contractors
or other agents to conduct such restoration but in no case shall Licensee be
relieved of its obligation under this Section until such restoration is accepted
by the City.
b. Upon completion of the restoration Licensee shall provide notice to City that
the restoration work has been completed.
c. Within sixty (60) days of the receipt of the Notice sent pursuant to section
1lb, unless waived by the City Representative, the City's Representative and
Licensee shall perform an inspection of the Licensed Property and adjacent
public and private lands with video and/or photographs to record the condition
of the Licensed Property and/or adjacent public or private lands (the "Existing z
Condition"), Upon completion of the inspection which shall occur no later
than sixty (60) days after completion after receipt of Notice, City shall notify
Licensee in writing of any additional restoration work that may be required. If
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Peets'Hill—South Property
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Notice is not provided within sixty (60) days Licensee shall have no further
restoration obligation under the terms of this Agreement.
d. The Cityretains the right to approve an plans for and to inspect work done
g pp Y p P
under this Section.
The City and Licensee may enter into an agreement prior to the expiration of the term of this
Agreement or prior to the end of Licensee's occupation of the Licensed Property regarding
restoration of the Licensed Property to a condition different from the Existing Condition. Such
agreement may address: (i) improvements to the Licensed Property in addition to or different
than the Licensees' obligations for restoration/repair under this Agreement, and (ii) other duties
and obligations of the Licensee regarding restoration and repair of the Licensed Property. f
Nothing in such an agreement will reduce the obligations of Licensees under this Agreement.
12, Termination. If Licensee fails to comply with any condition of this Agreement
at the time or in the manner provided for, the City may, at its option, terminate this Agreement
and be released from all obligations if the Licensee's default is not cured within sixty (60)
calendar days after written notice of the default is provided by the City to the Licensee. Said
notice shall set forth the items to be cured. Notices shall be provided in writing and hand-
delivered or mailed to the parties at the addresses set forth in the first paragraph of this
Agreement. Licensee agrees that its failure to cure any default shall result in the Licensee paying
all costs related to the City's enforcement of this Agreement.
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13. Non-discrimination and Equal Pay. The Licensee agrees that all hiring by
Licensee of persons performing this Agreement shall be on the basis of merit and qualifications.
The Licensee will have a policy to provide equal employment opportunity in accordance with all
applicable state and federal anti-discrimination laws, regulations, and contracts. The Licensee
will not refuse employment to a person, bar a person from employment, or discriminate against a
person in compensation or in a term, condition, or privilege of employment because of race,
color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived
sexual orientation, gender identity, physical or mental disability, except when the reasonable
demands of the position require an age, physical or mental disability, marital status or sex
distinction. The Licensee shall be subject to and comply with Title VI of the Civil Rights Act of
1964; Section 140,'title 2,United States Code, and all regulations promulgated thereunder.
Licensee represents it is, and for the term of this Agreement will be, in compliance with
the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal
Pay Act). Licensee must report to the City any violations of the Montana Equal Pay Act that
Licensee has been found guilty of within 60 days of such finding for violations occurring during
the term of this Agreement.
City's License Agreement with Sheryl L.Simkins
Peers'Hill—South Property
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Licensee shall require these nondiscrimination terms of its sub-licensees providing
services under this Agreement.
14. Amendment. This Agreement represents the entire understanding between the
Parties regarding the subject matter and supersedes any prior agreement, verbal or written. Any
amendment or modification of this Agreement or any provision herein shall be made in writing
or executed in the same manner as the original document and shall after execution become a part
of this Agreement.
15. Assignment. Licensee may not assign this Agreement in whole or in part and
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may not sublet all or any portion of the Property without the prior written consent of the City,
and any attempt to assign this Agreement shall be deemed a breach of the Agreement and
grounds for immediate termination. No assignment will relieve Licensee of its responsibility for
the performance of the Agreement (including its duty to defend, indemnify and hold harmless). J
This Use License shall not run with the land.
16. Waiver of Claims. Licensee waives all claims against City for injury to persons
or property on or about the Property or from its use of the Licensed Property. It shall be
understood that the responsibility for protection and safekeeping of equipment and materials on
the Licensed Property will be entirely that of the Licensee and that no claim shall be made
against the City by reason of any act of an employee, officer, or, agent of the City or any
trespasser.
17. Representatives. j
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a. City's Representative. The City Representative for the purpose of this
Agreement shall be Addi Jadin,Parks Planning and Development Manager, or her
successor or designee. Whenever approval or authorization from or
communication or submission to City is required by this Agreement, such
communication or submission shall be directed to the City's Representative and
approvals or authorizations shall be issued only by such Representative;provided,
however, that in exigent circumstances when City's Representative is not
available, Licensee may direct its communication or submission to other City
personnel or agents and may receive approvals or authorization from such
persons.
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b. Licensee's Representative. ^The Licensee's Representative for the purpose of
this Agreement shall be I Whenever direction to or
communication with Licensee is 1equired by this Agreement, such direction or
City's License Agreement with Sheryl L.Simkins
Peels'Hill—South Property
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communication shall be directed to Licensee's Representative; provided,
however, that in exigent circumstances when Licensee's Representative is not
available, the City may direct its direction or communication to other designated
employees or agents of Licensee.
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18. Permits. Unless otherwise agreed to in writing by the Parties, and if required,
Licensee shall provide all notices, comply with all applicable federal, state, and local laws, j
ordinances, rules, and regulations, obtain all necessary permits, licenses, and inspections from
applicable governmental authorities, and pay all fees and charges in connection therewith.
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19. Intoxicants; DOT Drug and Alcohol Regulations. Licensee shall not permit or
suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, upon the
Licensed Property. The City may order removal from the Licensed Property of Licensee's
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agents, permittees, employees, contractors or subcontractors for use of intoxicants on the
Licensed Property.
20. Liens and Encumbrances. Licensee shall not permit any liens or encumbrances
to be filed on the Peets Hill — South Property, including the Licensed Property, related to either
the Licensee's use of the Licensed Property or the Licensee's actions pursuant to this Agreement. =
Prior to the expiration of this Agreement or termination by the City or Licensee as provided
herein Licensee must furnish the City with satisfactory proof that there are no outstanding liens
or encumbrances in connection with the Licensee's use of the Licensed Property.
21. Dispute Resolution. Any claim, controversy, or dispute between the Parties,their
agents, employees, or representatives shall be resolved first by negotiation between the Parties. I
Upon mutual agreement of the Parties, the Parties may invite an independent, disinterested j
mediator to assist in the negotiated settlement discussions. if the Parties are unable to resolve the
dispute within thirty(30) days from the date the dispute was first raised, then such dispute shall
be resolved in a court of competent jurisdiction in compliance with the Applicable Law
provisions of this Agreement.
22. Survival. Licensee's indemnification obligations shall survive the termination or
expiration of this Agreement for the maximum period allowed under applicable law.
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23. Headings. The headings used in this Agreement are for convenience only and are
not to be construed as a part of the Agreement or as a limitation on the scope of the particular
paragraphs to which they refer.
City's License Agreemcnt with Sheryl L.Simkins
Pects'Hill—South Property
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24. Waiver. A waiver by City of any default or breach by Licensee of any covenants, j
terms, or conditions of this Agreement does not limit City's right to enforce such covenants,
terms,or conditions or to pursue City's rights in the event of any subsequent default or breach.
25. Severability. If any portion of this Agreement is held to be void or
unenforceable, the balance thereof shall continue in effect.
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26. Applicable Law. The Parties agree that this Agreement is governed in all
respects by the laws of the State of Montana. Jurisdiction for any dispute or claim raised under
this Agreement or proceeding brought to interpret the Agreement shall lie solely in the State of
Montana, Gallatin County.
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27. Binding Effect: This Agreement is binding upon and 'inures to the benefit of the
heirs, legal representatives, successors, and assigns of the parties.
28. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
Parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party except the City.
29. Counterparts. This Agreement may be executed in counterparts, which together
constitute one instrument.
30. Authority. Each party represents that it has full power and authority to enter into
and perform this Agreement and the person signing this Agreement on behalf of each party has
been properly authorized and empowered to sign this Agreement.
31. Independent Contractor. The Parties agree and acknowledge that in the
performance of this Agreement Licensee shall not be considered an agent, representative,
subcontractor, or employee of the City. The Parties further agree that all individuals and
companies retained by Licensee at all times will be considered the agents, employees, or
independent contractors of Licensee and at no time will they be the employees, agents, or
representatives of the City.
32. Integration. This Agreement constitutes the entire agreement of the Parties.
Covenants or representations not contained therein or made a part thereof by reference, are not
binding upon the parties. There are no understandings between the parties other than as set forth
in this Agreement. All communications, either verbal or written, made prior to the date of this
Agreement are hereby abrogated and withdrawn unless specifically made a part of this i
Agreement by reference.
City's License Agreement with Sheryl I.,,Simkins
Peets'Hill—South Property
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33. Recordation. This Agreement shall be recorded in the files of the Gallatin
County Clerk and Recorder. All costs of recording shall be borne by the Licensee. A copy of this
recorded agreement shall be provided to the City's Representative.
34. Consent to Electronic Signatures: The Parties have consented to execute this
Agreement electronically in conformance with the Montana Uniform Electronic Transactions
Act, Title 30, Chapter 18, Part 1, MCA.
########### End of Agreement except for signatures###########
Executed this 0""day of Jar�tir�y , 20aa .
City: - ` �
cJ 13P •e ='
By: 67ff Iihelich
Bozeman City Manager
STATE OF MONTANA } cQ 'oe3
ss.
County of Gallatin }
This instrument was acknowledged before me on the ,;2-91—y-day of , 20
by Jeff 1VI U igh as C'itv nager for the City of Bozeman, Montana.
VICKI POLLINGTON
QOLLf�r.,
Notary Public �,.,•--� T' , ,� `,/ `
�. oYnargt:Z for the State of Montana
Residing at:
* "" ' *` Notary Public for the State of ntana
u SI trL. �, Bozeman,Montana
My Commission Expires:
September 28,2022 Printed Name:
(SEAL) Residing in
My Commission Expires:
Sheryl L. Simkins
U
STATE OF MONTANA )
ss.
City's License Agreement with Sheryl L.Simkins
Peers'Hill-South Property
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County of Gallatin )
This instrument was acknowledged before me on the day of , 20 a,-,A
by Sheryl L. Simkins.
Notary Public for the State of Montana
P lr nted Name,:---
(SEAL) Residing in
My Commission Expires:
,.,Eye --I.? KRISTfN'HOW
`` ;NOTAR/q�, for theNotary Pubfic
* - _ _* Reate of Montana
�.SEAL.�,� ematding at:
OF iP M°� , Montana
'''in,r+u,,n�,,,no` Y j 3 on Exores..
City's License Agreement with Sheryl L.Simkins
Peets'Hill—South Property
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EXHIBIT A
(Legal Description of City's Property)
All of Blocks Twenty-Two (22), Twenty-Three (23) of Electric Heights Addition to Bozeman,
Montana and also all streets and alleys adjacent thereto, the same having been vacated by the
City of Bozeman, by Ordinance No. 169 which said Ordinance was adopted August 4, 1898 and
recorded September 21, 1899 in Volume 7 of Miscellaneous Records at page 80, including that
portion of Ida Avenue vacated by the City of Bozeman, by Ordinance No. 1459 recorded in Film
182, page 4573, Records of Gallatin County, Montana, according to the official plat thereof on
file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana.
Exhibits—City's License Agreement with Sheryl L. Simpkins(Deets'Hill—South Property)
2765440 Page 14 of 15 01/25/2022 01 .15.16 PM
EXHIBIT B
(Legal Description of Licensee's Property)
Lot Three (3), of BIock One (1), Graf First Addition, Second Filing, to the city of Bozeman,
Montana, according to the official plat thereof on file and of record in the office of the County
Clerk and Recorder, Gallatin County, Montana.
Exhibits—City's License Agreement with Sheryl L. Simpkins(Peets'Hill—South Property)
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