License Agreement with Rock of Honor Memorial Inc for Kleiner ParkLICENSE AGREEMENT
BETWEEN CITY OF MERIDIAN AND ROCK OF HONOR MEMORIAL, INC.
FOR JOINT USE OF ROCK OF HONOR PLAZA
IN JULIUS M. KLEINER MEMORIAL PARK
This LICENSE AGREEMENT BETWEEN CITY OF MERIDIAN AND ROCK OF
HONOR MEMORIAL, INC. FOR JOINT USE OF ROCK OF HONOR PLAZA IN JULIUS M.
KLEINER MEMORIAL PARK (hereinafter "Agreement") is made and entered into this 16th
day of August, 2011 ("Effective Date"), by and between the City of Meridian, a municipal
corporation organized under the laws of the State of Idaho (hereinafter "City"), and Rock of
Honor Memorial, Inc., a non-profit corporation organized under the laws of the State of Idaho
(hereinafter "Licensee").
WHEREAS, the Julius M. Kleiner Memorial Park Trust (hereinafter "Trust") is
developing a park on the northeast corner of Fairview and Eagle Roads, in Meridian, Idaho,
identified as Ada County Parcel no. S 1104336005, which park is to be named Julius M. Kleiner
Memorial Park (hereinafter "Park") and to be donated by the Trust to the City of Meridian;
WHEREAS, Rock of Honor Memorial, Inc. was founded for the purposes of: building a
memorial to honor Meridian citizens who, since Idaho's statehood, have served and died in the
defense of our nation; educating visitors regarding the price that was paid for the freedoms that
all United States citizens share; and providing a place for public events honoring veterans;
WHEREAS, the Trust intends to construct Rock of Honor Plaza, as defined herein and
set forth in Exhibit A hereto, within Julius M. Kleiner Memorial Park, for the purpose of
furthering such purposes and fulfilling Licensee's vision;
WHEREAS, City wishes to establish, and to memorialize herein, the respective rights
and responsibilities of City and Licensee with regard to the monument and plaza that will attach
upon Trust's conveyance of Julius M. Kleiner Memorial Park to City;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged and agreed, and in consideration of the mutual promises and
covenants herein contained, and in consideration of the recitals above, which are incorporated
herein, City and Licensee agree as follows:
I. Definitions. For the purposes of this Agreement, the following definitions shall apply:
A. "City" shall mean the City of Meridian, a municipal corporation organized under the laws
of the State of Idaho.
B. "Director" shall mean the Director of the City of Meridian Parks and Recreation
Department.
C. "Flag Knoll" shall mean the three (3) permanent flagpoles located to the southeast of
Rock of Honor Plaza.
LICENSE AGREEMENT WITH ROCK OF HONOR MEMORIAL, INC. PAGE 1 OF 12
D. "Licensee" shall mean Rock of Honor Memorial, Inc., a non-profit corporation organized
under the laws of the State of Idaho.
E. "Memorial Walls" shall mean the four (4) monuments located in Rock of Honor Plaza as
set forth in Exhibit C hereto, composed of gray granite base and a polished black granite
face, upon which are engraved the names of veterans of the United States armed forces
who meet all of the criteria as set forth herein.
F. "Military Branch Flag sleeves" shall mean the five (5) permanent flag sleeves, located in
the Rock of Honor Plaza and designed to accommodate temporary flagpoles.
G. "Rock of Honor" shall mean the monument located in Rock of Honor Plaza as set forth in
Exhibit B hereto, composed of a granite, rough cut base which reflects the following
inscription: "We celebrate their valor. We shall never forget them. Their sacrifice is the
foundation upon which we build our strength." and a polished granite obelisk which
reflects the seals of the five (5) United States Military branches.
H. "Rock of Honor Plaza" shall mean that portion of Park composed of the circular
hardscape to the southeast of Civic Plaza as set forth in Exhibit A hereto, and featuring
amenities installed by Trust for the purpose of furthering Licensee's purposes and
fulfilling Licensee's vision, to -wit: the Rock of Honor, the Memorial Walls, the Military
Branch Flag sleeves, and the Rock of Honor Time Capsule.
I. "Rock of Honor Time Capsule" shall mean the time capsule that is to be buried in Rock
of Honor Plaza under the metal disk with the seal of the State of Idaho.
"Trust" shall mean Julius M. Kleiner Memorial Park Trust.
II. License granted. Upon City's acceptance of ownership of Park, City shall, for and in
consideration of one dollar ($1.00), the receipt of which is hereby acknowledged, and other
good and valuable consideration, grant to Licensee a non-exclusive license to utilize,
maintain, and oversee the Rock of Honor Plaza for the purposes, in the manner, subject to the
limitations, and pursuant to the terms and conditions set forth in this Agreement.
III. Term of license. The term of this license shall be from the Effective Date through 11:59
p.m. on December 31, 2032, unless earlier terminated by either party by the method
established herein. This lease shall automatically be renewed from year to year thereafter
unless written notice of termination is given by either party to the other at least thirty (30)
days before the expiration of the initial license term or any renewed term thereof.
IV. Rights and responsibilities of Licensee. With regard to Licensee's use and occupancy of
the Rock of Honor Plaza under this Agreement, Licensee shall be responsible for each and all
of the following.
LICENSE AGREEMENT WITH ROCK OF HONOR MEMORIAL, INC. PAGE 2 OF 12
A. Priority use. Each year, Licensee shall have automatic priority use of Rock of Honor
Plaza, on the following dates:
1. May 8 (V -E Day),
2. May 21 (Armed Forces Day),
3. May 30 (Memorial Day),
4. June 6 (D Day),
5. July 4 (Independence Day),
6. August 15 (V -J Day),
7. September 11 (Patriot Day),
8. November 11 (Armistice Day/Veteran's Day), and
9. December 7 (Pearl Harbor Remembrance Day).
B. Fees. The nine (9) annual uses of Rock of Honor Plaza by Licensee shall be scheduled
without any fee due from Licensee to City. As to all other dates, Licensee shall be on
equal footing with the general public regarding Rock of Honor Plaza reservation
requirements, priority of reservation, and payment to City of reservation or other fees.
C. Permits. No provision of this Agreement shall relieve Licensee of its obligation to
obtain a City of Meridian Temporary Use Permit and/or any other applicable permits
required by City or any other governmental agency, where such requirement applies.
Except as otherwise allowed by City Code or other law, fees for such permits shall not be
waived.
D. Adding names to Monument. Licensee shall have the right to add to the Memorial Wall
names of veterans of the United States military who meet all of the following criteria:
1. Were, at any time since Idaho statehood, i.e. since July 3, 1890, domiciled in the city
of Meridian for any length of time, and
2. Were killed in combat operations or deceased as the result of injuries sustained in
combat operations.
Licensee shall require or collect, and shall independently verify, government agency -
issued or other verified, equally reliable documentation showing that the person whose
name is to be added to the monument does meet such criteria. Names added to the
monument shall be engraved thereon in the manner and style of the names already set
forth thereon. To avoid scheduling conflicts and ensure public safety, Licensee shall, at
least fourteen (14) days in advance, notify Director of the exact date and time upon which
any new names are to be added.
E. Use of City's name and logo. City hereby allows Licensee to indicate on any
promotional or fundraising materials that the City endorses Licensee's fundraising
activities undertaken in furtherance of its mission. City hereby conveys to Licensee
permission to use City's name for purposes of advertising, marketing, and public
information, without violation of City's rights of privacy or any other rights City may
LICENSE AGREEMENT WITH ROCK OF HONOR MEMORIAL, INC. PAGE 3 OF 12
possess under this Agreement, provided that Licensee shall not use City's logo for any
purpose without the express, written permission of the Mayor's Executive Assistant.
F. Time capsule. On or after January 1, 2037, Licensee shall have the right to remove the
Rock of Honor time capsule that is to be buried in Rock of Honor Plaza. After such date,
the parties shall enter into a separate written agreement establishing the parties'
respective rights and responsibilities with regard to the removal of the time capsule from
Rock of Honor Plaza.
G. Military Branch Flags. Licensee shall provide, and shall maintain in good structural
condition and appearance, the five (5) flags and flagpoles that are custom -fitted for use in
the Military Branch Flag sleeves. Licensee may install such flagpoles and flags in the
sleeves at events and uses of Rock of Honor Plaza that are undertaken or sponsored by
Licensee. Licensee shall be solely responsible for installation of, removal of, and care for
such flagpoles and flags, subject to initial and periodic inspection and approval by City.
Licensee shall bear all risk and liability related to installation, removal, maintenance,
and/or use of such flagpoles and flags. Licensee shall fly on such flagpoles only the
official flags of, respectively, the United States Air Force, Army, Coast Guard, Marine
Corps, and Navy. Licensee shall not fly any other flag on such flagpoles without the
prior consent of Director.
H. Alterations; waste; signs. Licensee shall not make, or permit to be made, alterations on
or to the Rock of Honor Plaza or to Park, or any portion or component thereof, whether
temporary or permanent, without first obtaining City's written consent. Any additions to,
or alterations of, Rock of Honor Plaza shall become at once a part of the real property and
shall belong to City. Licensee shall not commit, permit nor suffer any damage to or
waste upon the premises of Park or any of the improvements or appurtenances situated or
placed thereon by or on behalf of City or City's agents or invitees. Except as originally
constructed and/or conveyed by the Trust or allowed by written permit, Rock of Honor
Plaza shall not feature, and Licensee shall not install or erect (without prior written
consent of City) thereon or within Park, signs, posts, poles, fencing, or other
improvements or structures.
I. Reasonable use. Licensee shall employ best efforts to ensure that its use of Rock of
Honor Plaza facilities, amenities, infrastructure, and/or vegetation is appropriate and
reasonable. Where Licensee's use of same causes disproportionately excessive damage,
Licensee shall reimburse City for the cost or proportionate cost of necessary repairs
and/or replacement. Licensee shall exercise best efforts to see that any and all uses of
Rock of Honor Plaza, where such uses are scheduled or authorized by Licensee, are in
compliance with all laws and with City's policies regarding use of City parks and/or
facilities, including, but not limited to, such reasonable policies as may be adopted or
enacted by Director.
J. Primary Source of Contact for Licensee. Licensee shall provide City the name, e-mail
address, and telephone number of the designated representative of Licensee (hereinafter
"Licensee Contact") who shall serve as the primary contact between City and Licensee
LICENSE AGREEMENT WITH ROCK OF HONOR MEMORIAL, INC. PAGE 4 OF 12
for all matters regarding the day-to-day scheduling, use, and maintenance of Rock of
Honor Plaza.
K. Liens. Licensee shall keep Park and Rock of Honor Plaza free from any liens arising out
of any work performed for, materials furnished to, or obligations incurred by Licensee.
Licensee shall not permit nor suffer any lien, judgment or encumbrance to be entered
against or filed upon Rock of Honor Plaza or any improvements or fixtures thereon.
Licensee hereby covenants to satisfy any such lien, judgment or encumbrance at
Licensee's sole and separate expense, and in all respects fully to indemnify City against
all damages, legal costs and charges, including attorney's fees reasonably incurred, in any
suit involving any liens, claims, judgments or encumbrances cause or suffered by
Licensee with respect to the premises or any part thereof.
L. Surrender of possession. Licensee agrees that upon termination or expiration of this
Agreement for any reason, Licensee shall surrender the Rock of Honor Plaza to City in
the same condition as on the Effective Date, reasonable wear and tear, act of God, act of
nature, or damage by weather excepted. Licensee agrees to surrender possession and
occupancy of the Rock of Honor Plaza and Park premises peaceably at the termination of
this Agreement and any renewal or extension thereof.
M. Indemnification. Licensee specifically indemnifies City and holds City harmless from
any loss, liability, claim, judgment, or action for damages or injury to Licensee, to
Licensee's personal property or equipment, and to Licensee's employees, agents, or
volunteers arising out of or resulting from the condition of Rock of Honor Plaza or any
lack of maintenance or repair thereon, and not caused by or arising out of the tortious
conduct of City or its employees. Licensee further agrees to indemnify and hold City
harmless from any loss, liability, claim or action from damages or injuries to persons or
property in any way arising out of or resulting from the use of Rock of Honor Plaza by
Licensee or by Licensee's employees, agents, or volunteers and not caused by or arising
out of the tortious conduct of City or its employees.
N. Worker's compensation insurance. In the event Licensee hires any person to work on
or at the Rock of Honor Plaza, any and all workers shall be covered by worker's
compensation insurance, if applicable. In such event, Licensee shall provide to City a
certificate of insurance.
O. Insurance. Licensee may, at Licensee's option, maintain property insurance on Rock of
Honor Plaza. City may, but shall not be obligated to, maintain property insurance on
Rock of Honor Plaza on City's and/or on Licensee's behalf.
P. Taxes. Licensee shall be solely responsible for the payment of taxes owed for any
income realized as the result of activities undertaken pursuant or related to the Rock of
Honor Plaza or to this Agreement.
Q. Admission. Licensee shall not charge any fee for admission to Rock of Honor Plaza
without the prior written consent of City.
LICENSE AGREEMENT WITH ROCK OF HONOR MEMORIAL, INC. PAGE 5 OF 12
V. Rights and responsibilities of City. With regard to Licensee's use and occupancy of the
Rock of Honor Plaza under this Agreement, City shall be responsible for the following.
A. Assessments; property taxes. City shall pay the regular assessments and property taxes,
if any, due and owing on Rock of Honor Plaza and/or Park.
B. Landscape maintenance. City shall be responsible for tree, turf, and landscape
maintenance; mowing; irrigation; weed and pest control; custodial services; and
hardscape cleaning and maintenance, both at Rock of Honor Plaza and throughout Park.
Licensee shall not mow, spray, prune, or otherwise alter or maintain any natural or
hardscape portion of Rock of Honor Plaza or Park.
C. Flag Knoll. City intends to fly on each of the three (3) permanent flagpoles on Flag
Knoll, respectively, the flags of the United States of America and POW/MIA flag, the
flag of the State of Idaho, and the City flag. City shall be solely responsible for raising,
lowering, and lighting of the flags on Flag Knoll in accordance with Title 4, Chapter 1,
United States Code, federal regulations, and City practices and procedures.
D. Scheduling. City shall be responsible for scheduling any and all uses of Rock of Honor
Plaza and Park, including any and all uses thereof by Licensee. Licensee shall have
priority use of Rock of Honor Plaza on the days expressly set forth in this Agreement;
any other uses must be scheduled by City in accordance with the provisions of this
Agreement. The parties hereto expressly acknowledge that Park is a public space, the
management and scheduling of which shall at all times be within the sole purview of
City. City shall have the right to use or allow the use of Park for any and all purposes
and under any and all conditions, so long as such use does not conflict or interfere with
scheduled use by Licensee.
E. Public reservation of Plaza. The parties acknowledge that except as specifically set
forth herein, City shall make available to the public the opportunity to reserve Rock of
Honor Plaza for use as a Park amenity.
F. No right to exclude conveyed. Any exclusive use granted to Licensee by this
Agreement shall include neither the right to exclude any law-abiding person from Rock
of Honor Plaza where such person is not interfering with Licensee's reserved or priority
use thereof, nor the right to interfere with any person's concurrent, lawful use of Rock of
Honor Plaza or Park where such concurrent use does not conflict or interfere with
Licensee's use. At all times during which Rock of Honor Plaza is not reserved by
Licensee, Licensee shall be on an equal footing with the general public regarding its use
of Rock of Honor Plaza and of Park, which shall include, but shall not be limited to,
reservation requirements, priority of reservation of Rock of Honor Plaza and Park
facilities, and payment of reservation and other applicable fees. Licensee shall exercise
any exclusive use granted by this Agreement only in accordance with the terms of this
Agreement and in accordance with any and all applicable laws and City policies.
LICENSE AGREEMENT WITH ROCK OF HONOR MEMORIAL, INC. PAGE 6 OF 12
G. Alterations. Upon thirty (30) days notice to Licensee in the manner established herein,
City shall have the right to make alterations to Rock of Honor Plaza and/or to construct or
locate landscaping, fixtures, structures, and/or any other improvements in or upon Rock
of Honor Plaza or Park, except that City may undertake such alterations, construction, or
improvements on an emergency or immediate basis without notice to Licensee where
such action is necessary to protect the health, safety, and/or welfare of the public, or
where such alterations, construction, or improvements will not unreasonably affect
Licensee's use of Rock of Honor Plaza as set forth in this Agreement. City shall not
make any alteration whatsoever to the Rock of Honor without the express, written
permission of Licensee, which permission shall not be unreasonably withheld. City may
undertake alteration of the Rock of Honor on an emergency or immediate basis without
notice to Licensee only where such action is necessary to protect the health, safety, and/or
welfare of the public.
H. Collection of fees. In accordance with its policies, City shall have right to assess and
collect reasonable user fees from persons who use Rock of Honor Plaza; however, in
accordance with Idaho law, the amount of such user fees shall not exceed costs and
expenses actually incurred. Though City may, at the election of Director, request and/or
accept voluntary donations for or on behalf of Licensee separate and apart from user fees,
Licensee shall not otherwise be entitled to any monies assessed and/or collected by City.
VI. General provisions.
A. No agency. It is understood and agreed Licensee shall not be considered an agent of City
in any manner or for any purpose whatsoever in Licensee's use and occupancy of the
Rock of Honor Plaza and/or any activity undertaken with regard to the Rock of Honor
Plaza, to Park, or to this Agreement. Neither Licensee nor any officer, employee or agent
thereof shall be deemed an employee of City. Licensee shall have no authority or
responsibility to exercise any rights or power vested in City. The selection and
designation of the personnel of City in the performance of this agreement shall be made
by City.
B. Breach; cure; termination. If Licensee is in breach or default of any of term, covenant,
or condition of this Agreement and Licensee fails or refuses to cure such breach or
default within thirty (30) days of written notice thereof, this Agreement, and all rights of
Licensee in and to Rock of Honor Plaza, at City's option, may be deemed terminated and
forfeited without further notice or demand. In the event of termination of this
Agreement, Licensee forfeit any and all rights established under this Agreement.
C. No waiver. City's waiver on one or more occasion of any breach or default of any term,
covenant or condition of this Agreement shall not be construed as a waiver of any
subsequent breach or default of the same or a different term, covenant or condition, nor
shall such waiver operate to prejudice, waive, or affect any right or remedy City may
have under this Agreement with respect to such subsequent default or breach by
Licensee.
LICENSE AGREEMENT WITH ROCK OF HONOR MEMORIAL, INC. PAGE 7 OF 12
D. No obligation. By the granting of this lease, City does not in any way bar, obligate,
limit, or convey any warranty with regard to any action relating to development or
operation of Rock of Honor Plaza or Park.
E. Attorney fees. Licensee shall be liable to City for all damages and costs, including legal
expenses and attorneys' fees, suffered or incurred by City in the enforcement of any of
the terms, covenants or conditions of this Agreement.
F. No assignment. Licensee shall not assign, sublet or transfer the leased premises, or any
portion thereof, or cause or suffer any alterations thereto, other than as specified in this
Agreement, without the express written consent of City. Should Licensee cease to exist
as an organization, this Agreement and all rights granted to Licensee hereunder shall be
void. Upon amendment of Licensee's bylaws or charter, this Agreement shall be
voidable, at City's option.
G. Annual review. Between December 7 and December 31 of each year, Licensee and City
shall together review the year to address any problems which may have arisen and to
discuss possible changes to improve matters regarding the parties' joint use of Rock of
Honor Plaza.
H. Conflict resolution. If either party believes that the other party is not fulfilling its
obligations as established by this Agreement, the complaining party shall give written
notice of its complaint to the other party. The party receiving the complaint shall, within
fifteen (15) calendar days, correct the situation and confirm the correction in writing, or
reject the complaint
I. Notices. All notices to be provided under this Agreement shall be in writing and
addressed as follows:
Licensee: Rock of Honor Memorial, Inc.
Attn: Secretary
P.O. Box 113
Meridian, Idaho 83680
City: City of Meridian
Director, Parks and Recreation Department
33 East Broadway
Meridian, Idaho 83642
Notices shall be in writing and either personally delivered or sent by U.S. mail, postage
prepaid, return receipt requested to the party to be notified at the address specified above.
Notice shall be deemed to have been given upon deposit in the U.S. mail, or upon
personal delivery to the party above specified.
LICENSE AGREEMENT WITH ROCK OF HONOR MEMORIAL, INC. PAGE 8 OF 12
J. Choice of law. This Agreement was negotiated in Idaho, is entered into and is intended
to be performed in the State of Idaho. The Parties agree that the laws of Idaho shall
govern the interpretation of this Agreement.
K. City Council approval required. This lease shall not be effective for any purpose
whatsoever until it is approved by the resolution of the City Council and executed by the
Mayor.
L. Entire agreement. This Agreement contains the entire agreement of the parties and
supersedes any and all other agreements, leases, or understandings, oral or written,
whether previous to the execution hereof or contemporaneous herewith.
M. Exhibits. All exhibits to this Agreement are incorporated by reference and made a part
of hereof as if the exhibits were set forth in their entirety herein.
IN WITNESS WHEREOF, the parties shall cause this Agreement to be executed by
their duly authorized officers to be effective as of the day and year first above written.
LICENSEE:
v/ John H. Burns
President, Rock of Honor Memorial, Inc.
CITY OF MERIDIAN:
j
BY:
T Weerd, Mayor
STATE OF IDAHO
ss:
County of Ada )
I HEREBY CERTIFY that on this 2q"'day of July, 2011,
before the undersigned, a Notary Public in the State of Idaho,
personally appeared John H. Burns, proven to me to be the
person who executed the said instrument, and acknowledged
to me that he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal, the day and year in this certificate
first above written.
Notary Pub 'c or daho
Residing at , Idaho
My Commission xpires: ZD
LICENSE AGREEMENT WITH ROCK OF HONOR MEMORIAL, INC. PAGE 9 OF 12
EXHIBIT A
ROCK OF HONOR PLAZA
.k
Civic Plaza
Obelisk
History Kiosk
�CFLUmture
1U[tity
enter
Senior Center
Shady Grove
Rock of Honor Plaza
* Rack of Honor
•' Memorial Wall
* Benches
Military Branch Flags
Flag Knoll
' American Flag
• Id" Flag
Mwidian Flag
g
6
Fuck of Honor
Julius M. Kleiner Park
LICENSE AGREEMENT WITH ROCK OF HONOR MEMORIAL, INC. PAGE 10 OF 12
EXHIBIT B
ROCK OF HONOR
7^"
I
WE CELEBRATE THEIR VALOR;
WE SHALL NOT FORGET THEM.
THEIR SACRIFICE IS
THE FOUNOATION UPON WHICH
WE BUILD OUR STRENGTH.
33"
LICENSE AGREEMENT WITH ROCK OF HONOR MEMORIAL, INC. PAGE i I OF 12
EXHIBIT C
MEMORIAL WALLS
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LICENSE AGREEMENT WITH ROCK OF HONOR MEMORIAL, INC. PAGE 12 OF 12