On Monday night, November 7, the City of Big Timber and the Friends of Dornix Park released a licensing agreement. Below is a copy of that agreement. We apologize for not having the legal format exactly correct, but the words are as accurate as a couple of edits can make them. SGCCI thinks it is vitally important for the citizens of Big Timber and Sweetgrass County to familiarize themselves with this agreement. On November 21, the City Council will hold another public meeting to listen to comments and answer questions about the license.
This AGREEMENT is effective as of September ______, 2011, by and between the City of Big Timber (hereinafter “LICENSOR”) and the Friends of Dornix Park (hereinafter “LICENSEE”) a 501 (c)(3) non-profit organization organized under the laws of the state of Montana.
WHEREAS, LICENSOR is the sole and exclusive owner of the Property identified as Dornix Park, located within COS 14409 RCB, Sections 13 and 14, TIN, R14E, and for the purpose of this AGREEMENT is identified as the property diagrammed in Exhibit A more fully and referred to hereinafter as “Dornix Park”;
WHEREAS, LICENSOR has the power and authority to grant to LICENSEE the right, privilege and license to enter upon Dornix Park for particular purposes, uses, and enjoyments;
WHEREAS, LICENSEE has represented that it has the ability and means to maintain Dornix Park for the benefit of the LICENSOR and the benefit of any persons who wish to enjoy Dornix Park for any lawful purposes;
WHEREAS, LICENSEE desires to obtain from LICENSOR the non-exclusive license to enter upon Dornix Park for the purposes of maintenance and operation, of Dornix Park and to secure this right and license without disturbance, or obstruction from any party or person, for a duration of 7 years from the date this license is approved by the parties;
WHEREAS, LICENSOR is currently a party in a lawsuit concerning Dornix Park in Sweet Grass County, Sixth Judicial District, State of Montana, styled Drinkard, et al. v. City of Big Timber, et al.; Case No. DV 2010-40, concerning access and use of Dornix Park, to which some of the members of the LICENSEE are a party;
WHEREAS, both LICENSEE and LICENSOR agree it is in the best interests of both parties to enter into a mutual agreement whereby the rights, privileges, obligations, and duties of both parties with respect to Dornix Park are fixed clearly and unambiguously by mutual agreement;
NOW, THERFORE, in consideration of the promises and agreements set forth herein, the parties, each intending to be legally bound hereby, do promise and agree as follows.
LICENSOR hereby grants to LICENSEE for the term of this Agreement, the right to enter upon Dornix Park to perform the following activities, at LICENSEE’s own expense, as described in particular herein:
Trail mowing and maintenance.
LICENSEE shall be allowed to maintain and mow those paths, trails (see #7 of Exhibit A), yard areas surrounding the building, and picnic areas of Dornix Park, so that park may continue to be used by the general public.
Supplemental Weed Control
LICENSEE may provide supplemental weed control in Dornix Park to supplement any efforts at weed control maintained by the licensor, and its agents.
LICENSEE shall remove garbage from any of the areas in Dornix Park and maintain or replace any garbage containers used for this purpose.
Maintenance of Park Signage
No additional signs may be created or installed without the consent of the Licensor, except that the Licensee may install a sign at each end of the newly created Boulder River Trail.
Maintenance of Osprey poles on upper level.
LICENSEE shall be allowed to maintain the Osprey poles on the upper level of Dornix Park. Which is identified as #6 on Exhibit A
LICENSEE shall be allowed to install and maintain landscape plants at the entery sign for Dornix Park.
Structure Building repair and maintenance
The LICENSEE shall be allowed the non-exclusive right to use Dornix Park and its improvements. LICENSEE shall be required to perform maintenance service described in this AGREEMENT. The nature and scope of any repairs to any structure may not be made without the express written consent of the City Council and after an opportunity for public comment.
Use of garage
LICENSEE shall be allowed to use the garage and Dornix Park to store any materials, tools, or items that it requires in order to effectuate the purpose of its grant of license.
Construction and maintenance of picnic tables and benches.
LICENSEE shall be permitted to construct and maintain picnic tables and benches at Dornix Park. The location and specification of these picnic tables and benches shall be submitted in writing to the LICENSOR prior to construction, and shall be subject to the written approval of the LICENSOR before construction and maintenance are begun.
Completion and maintenance of footbridge on lower level
LICENSEE shall be permitted to complete and maintain the footbridge on the Boulder River Trail.
Roads, Entry, and Signage
LICENSEE shall be permitted to maintain the entry road, parking areas, signage and plants which are identified in Exhibit A.
LICENSEE agrees not to use the existing well water near the homestead buildings.
LICENSEE required to carry liability insurance at its own expense. There is a 30 day grace period to get the insurance up to date. If it is not, the AGREEMENT is void.
LICENSEE may not grant any sublicense regarding its use of Dornix Park to any third party without prior express written consent of LICENSOR.
The scope of the grant of license contained in this AGREEMENT may be modified by prior written consent of both parties as set forth in paragraph 9 below.
Statement of Consideration
Term of the Agreement
This AGREEMENT and the provisions thereof, except as otherwise provided, shall be in full force and effect commencing on the date of execution by both parties and shall extend for a term of 7 years.
Warranty and Obligations
A. LICENSOR represents and warrants that it has the right and power to grant the licenses granted herein and that there are no other agreements with any other party in conflict herewith.
LICENSOR further represents and warrants that it will not interfere with the grant of license as provided herein to LICNESEE
LICENSEE represents and warrants that its use of Dornix Park shall be in accordance with Montana law and the terms of this AGREEMENT, and that its purpose in exercising its grant of license is to maintain the park for use by the general public.
LICENSEE further represents and warrants that it will be solely responsible for all of the costs associated with its use of Dornix Park under the grant of license provided herein.
It is the intent of both parties that the LICENSEE shall maintain Dornix Park for the benefit of the general public, and that its exercise of the grant of license herein is done in order to preserve and maintain Dornix Park for future use and enjoyment of the general public.
Under state statutes and the ordinances of the City of Big Timber, the City Council of Big Timber is responsible for the operation and control of the park and its improvements. Nothing contained in this AGREEMENT abrogates suh duty or responsibility.
Any notice required to be given pursuant to this AGREEMENT shall be in writing and delivered personally to the other designated party at the above stated address or mailed by certified or registered mail, return receipt requested or delivered by a recognized national overnight courier service.
Either party may change the address to which notice or payment is to be sent by written notice to the other in accordance with the provision of this paragraph.
Failure of Licensee to Exercise Grant. LICENSOR shall have the right to terminate this AGREEMENT, upon proper notice, if LICENSEE fails to utilize its grant of license with respect to Dornix Park for a period of at least one year.
This AGREEMENT may be modified upon sixty days written notice if and when the LICENSOR has secured the necessary permits and approvals, as required by the appropriate state or federal agencies under state or federal law, to develop and safeguard the City of Big Timber’s sewage system and discharge permit, and the use of any portion of Dornix Park is required to this end;
ii. If the conditions described in Paragraph 8 (a)(i) are satisfied, this AGREEMENT will (be?) modified in a manner that reasonably accommodates the LICENSEE’s exercise of its grant of License as described herein, and allows the LICENSOR to compy with its obligations to develop and safeguard the City of Big Timber’s sewage system.
If the conditions in Paragraph 8(A)(i) are satisfied, but the required use of Dornix Park for the development and safeguarding of the City of Big Timber’s sewage system and discharge permit is so substantial as to make continued use of Dornix Park hazardous to the general public, then this AGREEMENT may be terminated upon sixty days written notice.
The terms of this AGREEMENT, including the scope of the grant of license in paragraph 1, may be modified at any time during its term by the mutual consent of the parties.
Jurisdiction and Disputes
This AGREEMENT shall be governed in accordance with the laws of the State of Montana. Specifically, both parties recognize that the Sixth Judicial District, Sweetgrass County, is the proper venue for any action concerning this AGREEMENT.
If any dispute arises concerning the interpretation and enforcement of this AGREEMENT, the parties agree to mediate, in good faith, their dispute as a recondition to seeking any judicial remedies. The mediator shall be chosen by mutual agtreement of the parties. The parties shall share equally in the costs of mediation.
Pursuant to Paragraph 8 above, either party may seek to enforce the terms of this AGREEMENT through judicial action if either party fails to abide by its obligations and the terms as stated herein. In the event of litigation, each party shall bear their own attorney fees and costs.
Binding Agreement on Successors
Both LICENSEE and LICENSOR warrant that the provisions of this AGREEMENT shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, administrators, and to their successors, and assigns.
If any term, clause, or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect (sic) the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the AGREEMENT.
The license granted hereunder is personal to LICENSEE and shall not be assigned by any act of LICENSEE or by operation of law except with the prior written consent of the LICENSOR.
This AGEEMENT constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their AGREEMENT. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this AGREMENT. This AGREMENT shall take precedent over any other document or oral expression that may be in conflict with said AGREEMENT.