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Home My WebLink AboutRESOLUTION NO. 2023-129RESOLUTION NO. 2023-129 RESOLUTION AUTHORIZING A LICENSE AND INDEMNIFICATION AGREEMENT BETWEEN THE CITY OF FAIRFAX AND BELLON- AFRICA FAMILY FARMS, L.C. WHEREAS, the Fairfax City Council intends to construct, maintain, and operate water wells, water supply treatment facilities, and infrastructure to support these facilities ("Water Facilities") on portions of the Bellon-Africa Family Farms, L.C. properly, which is part of the Real Property Donation Agreement between Bellon-Africa Family Farms, L.C. and the City of Fairfax, Iowa, dated December 8, 2020; and WHEREAS, Bellon-Africa Family Farms, L.C. would like to limit their liability related to the City's construction, maintenance, and/or operations of the Water Facilities on this property; and WHEREAS, as part of said License and Indemnification Agreement, Bellon-Africa Family Farms, L.C. grants the City of Fairfax permission to construct, maintain, and operate said Water Facilities on the Bellon-Africa Family Farms, L.C. property, and WHEREAS, as part of said License and Indemnification Agreement, the City of Fairfax shall indemnify and hold harmless Bellon-Africa Family Farms, L.C. against all liability for damages, costs, losses and expenses resulting from the occupation or use of this property by the City of Fairfax; and WHEREAS, attorneys for Bellon-Africa Family Farms, L.C. and the City of Fairfax have prepared and reviewed said License and Indemnification Agreement. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Fairfax, Iowa, to enter into this License and Indemnification Agreement with Bellon-Africa Family Farms, L.C. as attached. BE IT FURTHER RESOLVED, by the City Council of the City of Fairfax, Iowa, that the Mayor and City Clerk are hereby authorized and directed to execute both this Resolution and the Professional Services Agreement. Passed and approved this 12th day of December, 2023. AYES: Nurre, Daly, Pacha, Volk, and Wainwright NAYS: None AT�EST: � � Cyn' ia Stimson, City Clerk/Treasurer LJ(�''�Jz�/��Q c�`'P/ Jo Ann Beer, Mayor . _ . .}^. ,>£,,-,- Prepared by and return to: Matthew Barnd, Bradley & Riley P.C. 2007 First Avenue, S.E., Cedar Rapids, IA 52402, (319) 363-0101 LICENSE AND INDEMNIFICATION AGREEMENT This License and Indemnification Agreement("Agreement") is effective as of the day of November, 2023, between Bellon-Africa Family Farms, L.C. (hereinafter "Licensor"), and the City of Fairfax, Iowa (hereinafter "Licensee," which term when used herein shall include Licensee's employees, .'• agents, invitees, licensees, and contractors). °• The parties agree as follows: I. GRANT OF PERMISSION In consideration of Licensee's promises herein, Licensor hereby gives permission, terminable .as hereinafter provided, to Licensee to enter onto the Premises (described below) only to the extent reasonably necessary for the sole purpose of constructing, maintaining and operating water wells and water supply treatment facilities and any infrastructure, improvements and facilities incident thereto (collectively, the "Water Facilities") in locations on the Premises as Licensee may from time to time deem reasonable and appropriate, in Licensee's sole and uncontrolled discretion, subject to the terms and conditions of the Real Property Donation Agreement between Licensor and Licensee dated December 8, 2020, all on the terms and conditions herein set forth which Licensee promises to comply and abide with. The construction of the Water Facilities is at the sole request and far the sole benefit of Licensee, and the provisions of this Agreement shall be construed accordingly. The rights granted above shall be accompanied by the right of ingress and egress for access from public roads to the Water Facilities via vehicular or pedestrian means, including without limitation heavy machinery and equipment. If reasonably necessary for Licensee to exercise its rights pursuant to this Agreement, Licensee shall have the right to build, improve and maintain access roads on the Premises at its sole expense. II. PREMISES The Premises are legally described as: Lot 2 Irregular Survey NW '/4 Section 16-82-8 Linn County, Iowa According to the Plat recorded at Page 17 of Irregular Plat Book 4 on file in County Recorder's Office, Li�m County, Iowa including Lot 4 Irregular Survey in said Lot 2 above-described (said Lot 4 according to the Plat recorded at Page 38 of Irregular Plat Book above-described) Except the following described premises: Beginning at a point 209 '/2 feet South of the SE Corner of said Lot 4; thence North 370 feet; thence West 153 feet; thence South 375 feet; thence Easterly to point of beginning and And further excepting: Parcel `A' Plat of Survey No. 1942 as recorded in Book 9079 at Page 134 in the Office of the Linn County Recorder on October 6, 2014. And further excepting that part of said Lot 4 described as follows: Beginning at a point which lies 310.5 feet North and 4.2 feet South 89° 27' 30" West of the SE corner of said Lot 4; said point being on the W-ly right-of-way line of Iowa Highway No. 149 and the North line of Lot 3 Irregular Survey NW'/4 said Section 16; thence North 3° 56' West 330.18 feet along said right-of- way to an extension of the North line of Church St., Fairfax, Iowa; thence North 89° 36' 20" West 125.02 feet along said extension; thence South 0°18' 10" East 331.71 feet to the North line of said Lot 3; thence North 89° 27' 30" East 145.78 feet to the point of beginning. AND Lot 1, Irregular Survey E'/z NE '/a of Section 17-82-8, Linn County, Iowa Except from all of the above the public highways (the "Premises"). III. ALTERATIONS Licensee shall have no right to alter the Premises in any way except for the purposes of constructing, maintaining and operating the Water Facilities and any improvements or alterations necessary and incident thereto. IV. INDEMNIFICATION Licensee shall exercise its privileges hereunder at its own risk and, except for Licensor's own negligent or intentional acts, shall indemnify and hold harmless Licensor against all liability for damages, costs, losses, and expenses (including, without limitation, reasonable attorney fees) resulting from, arising out of, or in any way connected with, the occupation or use of the Premises by Licensee, the Construction of the Water Facilities by Licensee, the access to the Water Facilities by Licensee, or the failure on the part of Licensee to perform fully all of Licensee's promises herein. Licensor shall not be liable to Licensee if for any reason whatsoever Licensee's occupation or use of the Premises hereunder shall be hindered, revoked, or disturbed by any reason that is not the fault of Licensor. Licensee shall indemnify the Licensor for any liability for injuries to persons or property made against the Licensor with respect to Licensee's use of the Premises and construction of the Water Facilities. Licensee shall maintain policies of insurance to reasonably insure against insurable hazards which may occur as a result of Licensee's activities permitted by this Agreement. V. DUTY OF CARE {02731637.DOCX} 4872-5810-5230, v. 1 Licensee covenants and agrees to exercise good and reasonable care at all times when on the Premises and when carrying out the activities permitted by this Agreement. Licensor agrees not to store or apply any chemicals or pesticides within 200 feet of any water well located on the Premises. VI. PRIVILEGE NOT ASSIGNABLE Licensee's privileges hereunder shall not be assignable by Licensee in whole or in part. VII. NO CREATION OF RIGHT TO POSSESSIO Licensee acknowledges that this Agreement constitutes a revocable license, that this Agreement does not create a lease nor any right to the possession of the Premises, nor does it create any estate or interest in the Premises. Further, in no event shall this Agreement create any rights whatsoever in the Water Facilities in favor of Licensor. VIII. TERMINATION Licensee's privileges hereunder shall terminate upon the end of the life estate interest in the Premises of Nancy K. Africa and Howard Frank Bellon, Jr. IX. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the parties and supersedes any prior agreements or discussions between the parties related to the subject matter hereof, which are merged herewith, with respect to the subject matter hereof. X. GOVERNING LAW This Agree�nent shall be govemed by Iowa law. XI. ATTORNEY FEES In any action or proceeding relating to this Agreement, the successful party shall be entitled to receive reasonable attorney fees and costs as permitted by law. {02731637.DOCX} 4872-5810-5230, v. 1 BELLON AFRICA FAMILY FARMS, L.C., CITY OF FAIRFAX, IOWA ("Licensor") ("Licensee") i B '�-'� _ �� / ��.' _ By: � � ��t ��i:.t- Y� ,, Howard Frank Bellon, Jr. Title: Co-Manager Printed Name: � �F\l'� t1 I�C�? � Title:_�IY��,� � � $ � � . Nancy K. Africa Title: Co-Manager STATE OF IOWA, COLJNTY OF LINN, ss: This instrument was acknowledged before me on 1�2e�2mY�er ��'� , 2023 by Howard Frank Bellon, Jr. as Co-Manager of Bellon Africa Family Farms, L.C. o�� ,.� SYDNEY SCHMUECKER �� V �C"��v��J� �� : , Commission Number 836743 (1'Yint Name)��Qv�.� S VY�vf.C�R� ' My Commission Expires Notary Public in and for said State �w' Januacy 14,2Q25 STATE OF IOWA, COLTNTY OF LINN, ss: This instrument was acknowledged before me on �c.evn�Y' �9j''� , 2023 by Nancy K. Africa as Co-Manager of Bellon Africa Family Farms, L.C. �pP�� S� SYDNEY SCHMUECKEI :°�� Gommission Number 83674 My Commission Expires 'O"'" January 14, 2025 'rint Name) �y�ne� �C� otary Public in and ro saf id State STATE OF IOWA, COUNTY OF LINN, ss: This instrument was acknowledged before me on U1�� , ,�- �,3� , 2023 by �� -ti�� - as _��1�;�,� of the City of Fairfax, Iowa. �� `_ � Et 4rP��tdF CYNTHIA K. STIMSON �py� tName) ��2�� S��S��fE'Z _ � Commission Number 128033 My Comm;ss;on Expires Notary Public in and for said State . ow► April 13, 2025 {02731637.DOCX} 4872-5810-5230, v. 1