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INDEMNIFICATION AND HOLD HARMLESS AGREE ENT
This Agreement dated this 6q day of June, 2010, between the City of Bozeman
(the "CITY") and Fresh Concepts, LLC, a Montana limited liability company, d/b/a Baja
Fresh Canyons Burger Company with a mailing address of 1459 North 19th Avenue,
Suite B, Bozeman, Montana 59718 ("RECIPIENT") describes the responsibilities of
RECIPIENT for the consideration of receiving approval from the City of a public access
easement encroachment and proximity of the proposed outdoor seating area and
fencing to the existing shared use path within the public access easement along North
19 Avenue and adjacent to RECIPIENT's business located at 1459 North 19th Avenue,
Suite B, Bozeman, Montana.
WHEREAS, RECIPIENT requested from the City, a public access easement
encroachment and proximity of the proposed outdoor seating area and fencing to the
existing shared use path within the public access easement along North 19 Avenue
and adjacent to RECIPIENT's business located at 1459 North 19th Avenue, Suite B,
Bozeman, Montana and legally described on Exhibit "A" attached hereto and
incorporated herein by this reference; and
WHEREAS, the City granted the public access easement encroachment with the
following conditions:
"In consideration of the approval of a public access easement
encroachment and proximity of the proposed outdoor seating area and
fencing to the existing shared use path within the public access easement
along North 19 Avenue and adjacent to RECIPIENT's business located at
1459 North 19th Avenue, Suite B, RECIPIENT shall:
Execute a hold harmless and indemnification agreement indemnifying,
defending and holding harmless the City, its employees, agents and
assigns from and against any and all liabilities, loss, claims, causes of
action, judgments and damages resulting from or arising out of the
issuance of a re-use or conditional use permit at this site and the proximity
of the proposed outdoor seating area and fencing to the existing shared
use path within the public access easement. This hold harmless and
indemnification shall be in a form acceptable to the City Attorney.
RECIPIENT recognizes, acknowledges and assumes the increased risk to
persons and property because of the proximity of the proposed outdoor
seating area and fencing to the existing shared use path within the public
access easement. RECIPIENT shall provide and maintain adequate
liability and property insurance satisfactory to the City Attorney, and in an
amount no less that $750,000 per claim and $1,500,000 per occurrence,
naming the City of Bozeman as an additional insured. RECIPIENT shall
annually furnish evidence, satisfactory to the Bozeman City Attorney, of all
such insurance policies and the effective dates thereof. This insurance
shall remain effective during the life of the outdoor seating area, Failure of
RECIPIENT to provide or continue this coverage shall subject the
Conditional Use Permit to revocation by the City"; and
WHEREAS, RECIPIENT agrees, in consideration of the variance to
the conditions stated above, to enter into this Agreement to defend, forever
holding harmless and indemnifying the City of Bozeman for any cause of
action or claim of any kind related to the proximity of the proposed outdoor
seating area and fencing to the existing shared use path within the public
access easement.
NOW, THEREFORE, in consideration of the above recitals and for the
approval of a public access easement encroachment and proximity of the
proposed outdoor seating area and fencing to the existing shared use path
within the public access easement along North 19 Avenue and adjacent
to RECIPIENT'S business located at 1459 North 19th Avenue, Suite 13,
RECIPIENT agrees as follows:
1. To waive any and all claims and recourse against the City, and its officers, agents,
or employees, including the right of contribution for loss or damage to person or
property arising from growing out of, or in any way connected with or incident of
related to the ocbgpa,hon and use by_ the REEC;PENIT of the E putaic accEas:s
E)asernent for the RECf"'IFENT"s business or th 0 proximity of the proposed outdoor
seating area and fencing to the existing shared use path within the public access
easement along North 19 Avenue and adjacent to RECIPIENT's business
located at 1459 North 19th Avenue, Suite B.
2. To indemnify, hold harmless, and defend the City and its agents, principals, and
employees from and against any and all liability (including liability where activity is
inherently or intrinsically dangerous), damages, losses or costs, including but not
limited to reasonable attorney's fees (including fees of the Bozeman City Attorney
or retained outside counsel) arising out of or resulting from the occuRation and
use the RECF''Ff:itEr bf the ptt t)i access ease e nt for the
the of the proposed outdoor seating area and fencing to the
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existing shared use path within the public access easement along North 19
Avenue and adjacent to RECIPIENT' business located at 1459 North 19th
Avenue, Suite B.
In the event of an action filed against the City resulting from RECIPIENT's
performance under this Agreement, the City may elect to represent itself and
incur all costs and expenses of suit,
3. The obligations of RECIPIENT to defend, indemnify and hold harmless the City as
described in sections 1 and 2, above, will apply to any suit, cause of action, claim,
cost or obligation including, without limitation, those alleged under the common
law or pursuant to a federal or state statute or regulation including those arising in
tort, trespass, nuisance, and strict liability.
4. These obligations shall survive during the life of the proposed outdoor seating
area and fencing to the existing shared use path within the public access
easement along North 19 Avenue and adjacent to RECIP1ENT's business.
5. RECIPIENT further agrees that the City may peaceably hold and enjoy the rights
and privileges herein granted without any interruption by RECIPIENT. The terms
of this Agreement shall extend to and be binding upon the heirs, executors,
administrators, personal representatives, successors and assigns of the parties
hereto.
Fresh Concepts, LLC,
a Montana limited liability company
d/b/a Baja Fresh Canyons Burger Company
1459 North 19th Avenue, Suite B
Bozeman, MT 59718
By
Tim
edel perger,
le LLC Managing Member
State of in
County of
This instrument was signed and sworn to before me on
2010 by Tim Redelsperger as Sole LLC Managing Member of Fresh
Concepts, LLC, a Montana limited liability company, d/b/a Baja Fresh
Canyons Burger Company.
ACCEPTED:
y
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d C 0
STATE OF MONTANA
County of Gallatin
name
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r.rs p,,, f.-A1A L'..:
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(SEAL
On this D day of Ju,n, 2010, before me, a
Notary Public for the State of Montana, personally appeared CHRIS KUKULSKI
and STACY ULMEN, known to me to be the City Manager and City Clerk,
respectively, of the City of Bozeman and the persons whose names are
subscribed to the within instrument, and acknowledged to me that they executed
the same for and on behalf of the City of Bozeman.
IN WITNESS WHEREOF, 1 have hereunto set my hand and affixed my
official seal the day and year first above written.
(print rnitnes
Notary P the State of Montana
Residing at: k
entSSIDr\ .Qctves D77-1,21,„2.
L.
Notary Public for the State of
Residing at:
My commission expires: A
CITY F BOZE AN
B
Chris Kukulski, City Manager
FY CI
.2010.
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My commssion expires:
EXHIBIT "A"
LEGAL DESCRIPTION
Baja Fresh Canyons Burger Company business located at 1459 North
19th Avenue, Suite B, in the City of Bozeman, County of Gallatin, State of
Montana, consisting of approximately 3,347 square feet, which forms a part of
and lies within the property more particularly described as follows:
LEGAL DESCRIPTION OF SHOPPING CENTER
Lots 6A and 8A of the Amended Plat of Lots 6 and 8 Stoneridge
Square Subdivision, City of Bozeman, Gallatin County, Montana
[Plat J-446A]
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Lots 2, 3 and 4 of the Stoneridge Square Subdivision, City of
Bozeman, Gallatin County, Montana [Plat J-446]