Albemarle County Tax Map Parcel Number: 05600-00-00-09500
401 East Market Street, Suite 101
Charlottesville, Virginia 22902-5264
NON-EXCLUSIVE REVOCABLE LICENSE
THIS NON-EXCLUSIVE REVOCABLE LICENSE (the “License”) is made on August __, 2004, by and between COUNTY OF ALBEMARLE, VIRGINIA, a political subdivision of the Commonwealth of Virginia (hereinafter referred to as “Licensee”) and ROUTE 240 HOLDINGS, LLC, a Virginia limited liability company (hereinafter referred to as “Licensor”).
WHEREAS, Licensor is the fee simple owner of a certain tract of real property comprising 88.21 acres located in Albemarle County, Virginia, as described more particularly on Exhibit A attached hereto and incorporated herein (hereinafter referred to as the “Property”)
WHEREAS, Licensor desires to grant to Licensee a non-exclusive revocable temporary license to use a portion of the Property described below as the “Licensed Premises” for the purposes hereinafter set forth, including establishing a trail linking together two (2) sections of an Albemarle County-wide system of greenway trails and parkways for pedestrians, hikers, bicyclists and other non-motorized vehicular travel that seeks to link together the area’s natural, recreational, cultural and commercial resources (the “Trail”) and other purposes hereinafter expressly set forth, all subject to the terms and conditions set forth in this License.
NOW, THEREFORE, for and in consideration of TEN DOLLARS ($10.00), cash in hand paid and in consideration of the mutual premises stated herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Licensor and Licensee hereby agree as follows:
1. Grant of License. Subject to the terms and conditions set forth herein, Licensor hereby grants to Licensee a non-exclusive revocable temporary license (i) to establish, install, construct, maintain, repair, manage, use, and operate, at its sole costs and expense, within the Licensed Premises the Trail and the Improvements (as defined below), and (ii) to permit and grant the Trail Users (as defined below) a sublicense to travel over and across and otherwise use the Trail and the Improvements established, installed, constructed, repaired, maintained, managed, and operated by Licensee within the Licensed Premises. The Licensed Premises shall consist of a thirty-foot (30’) wide linear strip of land located on the Property as described more particularly and as shown on the plat attached hereto as Exhibit B.
2. Establishment and Maintenance of Trail Improvements. During the Term (as defined below), Licensee may establish, install, construct, maintain, repair, manage, use and operate, at its sole cost and expense, within the Licensed Premises the following Trail-associated improvements (collectively, the “Improvements”):
A. Trail Surfaces, Foot Bridges, Culverts and Associated Trail Improvements. Appropriate surfaces for Class A trails or Class B trails, foot bridges, culverts and other associated trail improvements as Licensee deems reasonably necessary or provided for the convenience, comfort and enjoyment of Trail Users and in all such instances as customarily used by Licensee and along similar trails comprising the Albemarle County-wide system of greenway trails and parkways (the “Greenway Trail System”).
B. Trail Markers and Signs. Trail markers and signs installed along the Trail and at all points of access thereto, clearly informing all Trail Users of the location and boundary of the Trail and the Licensed Premises, and the location of the Improvements and other features of the Trail, and clearly identifying all applicable rules of use governing the Trail and the Licensed Premises (including, but not limited to, such rules and regulations as Licensor may reasonably request in connection with Licensee’s good stewardship of the Licensed Premises, the Trail and the Improvements as set forth and otherwise contemplated in this License). All markers and signs shall be approved in advance by Licensor and shall be similar to and consistent with markers and signs customarily used by Licensee in and along similar trails comprising the Greenway Trail System.
C. Barriers, Fences and Gates. Barriers, fences and gates to prevent motorized vehicular access into the Licensed Premises and to provide (i) Licensee with the ability to close the Trail as and when necessary, and (ii) Licensor the ability to close the Licensed Premises and the Trail for one twenty-four (24) hour period each calendar year as provided in Section 14(C) below.
All Improvements within the Licensed Premises installed by Licensee shall be and remain the property of Licensee during the Term (as defined below).
3. Maintenance of Licensed Premises Trail Improvements. Licensee shall maintain, at its sole cost and expense, the Licensed Premises in its natural state as close as possible as currently exists, excepting the Trail and the Improvements and reasonable wear and tear from permitted uses hereunder. Licensor shall have the right, but not the obligation, to maintain the Licensed Premises in the event that Licensee fails or otherwise refuses to maintain the Licensed Premises and thereafter Licensor shall be entitled to reimbursement from Licensee for the reasonable costs associated therewith.
4. Rights of Licensee Associated with Maintaining the Licensed Premises. Licensee may enter the Licensed Premises at all times to inspect, maintain, repair, operate and manage the Licensed Premises as provided herein:
A. Right of Ingress and Egress. Licensee may enter the Licensed Premises at any time for the purpose of inspecting, maintaining, repairing, operating and managing the Licensed Premises and shall be solely responsible at all times during the Term for inspecting, maintaining, repairing operating and managing the Licensed Premises and all of the Trail and Improvements thereon.
B. Right to Disturb, Maintain and Repair the Licensed Premises.
(i) While establishing, installing and constructing the Trail and installing the Improvements, Licensee may trim, cut or remove from the Licensed Premises any trees, brush or shrubbery and other natural vegetation; remove and relocate fences, structures or other obstructions within the Licensed Premises; and take other similar action reasonably necessary in its good faith judgment to establish, install and construct the Licensed Premises and install the Trail and the Improvements; and
(ii) After establishing, installing and constructing the Trail and installing the Improvements, Licensee may to trim, cut or remove from the Licensed Premises any trees, brush or shrubbery; remove and relocate fences, structures or other obstructions within the Licensed Premises; and take other similar action reasonably necessary to maintain, operate, use and manage the Licensed Premises; provided, however, that: (1) Licensee shall provide to Licensor no less than annually a maintenance and repair plan for the Licensed Premises showing in adequate detail all plans of Licensor for taking any of the foregoing actions on or about the Licensed Premises, the Trail and the Improvements (the “Maintenance Plan”); (2) Licensee, at its own expense, shall restore, repair and replace any ground cover and other natural vegetation and plants disturbed, damaged or removed as a result of maintaining, operating, using or managing the Licensed Premises to the extent such restoration, repair or replacement is consistent with the proper maintenance, operation, use and management of the Licensed Premises; and (3) no trees having a diameter at breast height of six (6) inches or greater shall be removed, destroyed or cut within the Licensed Premises except in each instance to protect public safety, eliminate diseased, dying or dead trees, or as deemed necessary by Licensee in its good faith judgment in accordance with standard arborist practices and as either completed in accordance with the Maintenance Plan approved by Licensor or otherwise as approved in advance by Licensor in writing.
C. Obligation to Remove Trash and Other Debris. Licensee shall remove from the Property all trash and other debris resulting from or otherwise accumulating due to the establishment, installation, construction, maintenance, repair, management, use and operation of the Licensed Premises, the Trail, the Improvements including any use thereof by Trail Users.
5. Restrictions on Uses and Activities within the Licensed Premises. Licensee shall regulate and restrict the uses and activities of all parties other than Licensor within the Licensed Premises, and such regulations and restrictions shall include, but not be limited to, the following:
A. Right of Access. The general public shall have a right of access to the Licensed Premises as sublicensees by and through the rights granted to Licensee hereunder (collectively, the “Trail Users”), subject to the right of Licensee, in its sole discretion, to restrict, regulate or limit any such use and action thereupon and Licensor’s right to terminate this License and the rights of Licensee and the Trail Users set forth herein.
B. Scope of Use. The Licensed Premises shall be used by the Trail Users only for the purposes of walking, jogging, running, cross-country skiing, hiking, bicycle riding, nature study and other similar outdoor activities uses consistent with the Albemarle County Greenway Plan as set forth in the Albemarle County Comprehensive Plan.
C. Motorized Vehicles Prohibited; exception. All motorized vehicles, including, but not limited to, motorcycles, motor bikes, 4-wheel drives, all terrain vehicles, snowmobiles, automobiles, trucks and the like, shall be prohibited at all times within the Licensed Premises, provided Licensee may permit (i) motorized maintenance machinery, equipment and vehicles of Licensee operated thereupon in accordance with all laws, (ii) motor-driven wheelchairs or all terrain vehicles for use solely by handicapped persons within the Licensed Premises on a Class A Trail, and (iii) such other vehicles as may be permitted on or about the Licensed Premises with the express prior approval of Licensor for purposes related to the License rights herein granted.
D. Other Restrictions Deemed Necessary. Licensee shall have the right to impose any additional restrictions, limitations or regulations it deems reasonably necessary and efficient to the goals of this License with the prior approval of Licensor.
6. Term of License. The term of this License shall be for a period of one (1) year from the date hereof (the “Term”), and shall automatically renew for an additional one (1) year term on the anniversary date; provided, however, that such renewal shall be subject to the rights of termination set forth in Section 7 below.
A. Either Licensor and its successors or Licensee shall have the right to revoke this License at anytime and for any reason by giving sixty (60) day’s written notice to the other party of the terminating party’s intent to terminate, and this License shall automatically terminate without any further action of either party hereto on the date specified in such notice (but not earlier than 60 days after such notice) and shall not thereafter be reinstated without the express consent of Licensor.
B. Within thirty (30) days of the termination of this License, Licensee shall promptly remove, at its sole cost and expense, all trail markers, signs, barriers, fences, gates and improvements installed by Licensee in the Licensed Premises, except any improvements described in Section 2(A) above which shall remain in the Licensed Premises, and install barriers and signage as required to close the Trail and deny access to the Licensed Premises. If Licensee does not promptly complete such removal, Licensor shall have the option of (i) completing such removal and thereafter Licensor shall be entitled to reimbursement by Licensee for reasonable costs associated therewith, or (ii) accepting ownership of the Improvements and thereupon Licensor shall be the sole owner of said Improvements which shall be deemed a part of the real property and improvements comprising the Property, free and clear of any claims, liens, encumbrances or the like of any party.
C. Default. If any party hereto defaults in the performance of its obligations under this License, and fails to cure such default within thirty (30) days after written notice from the non-defaulting party, the non-defaulting party shall be entitled to terminate this License upon written notice to the defaulting party and to pursue its remedies at law and in equity with respect to such default, including, without limitation, the right to recover its reasonable attorneys' fees and costs incurred in connection with or otherwise arising as a result of such default.
8. Non-Exclusivity; Restrictions.
A. This License is non-exclusive; provided, however, that Licensor will not grant during the Term to any other person any license, right, permission, consent or any interest in land that allows the grantee thereof to occupy or enter the Licensed Premises in a manner inconsistent with the terms of this License; to modify, alter, reconstruct, interfere with, disturb or otherwise materially change the real estate, the Trail or any Improvements comprising the Licensed Premises; or to construct or maintain any roadway or erect any building, fence, retaining wall or other substantial improvement within the Licensed Premises.
B. Licensee shall use reasonable best efforts to insure that no party shall interfere with the peaceful enjoyment of Licensor in the use of the remainder of the Property.
C. Licensee shall only use the Licensed Premises, the Trail and the Improvements for the purposes set forth in this License as governed in accordance with this License and the rules and requirements promulgated by Licensee and shall require all Trail Users to do the same. Licensor shall have the right to enter the Licensed Premises, the Trail and the Improvements at any time and from time to time for any purpose during the Term. Licensee shall maintain the Licensed Premises, the Trail and the Improvements in a neat and orderly fashion at all times, free of refuse and debris and anything that might reasonably pose a hazard or danger to the safety of any person thereupon, including, but not limited to, Licensor and the Trail Users. Notwithstanding any other provision in this License, Licensee shall be solely responsible for the safety and supervision of the Trail Users while using the Licensed Premises, the Trail and/or the Improvements during the Term.
D. The Trail and the Improvements shall not be substantially relocated or expanded by Licensee within the Licensed Premises without Licensor’s prior written consent in each instance.
9. Security. Licensor shall not have any affirmative obligation to provide any security or management of the Licensed Premises (or on or about all or any part of the Property, the Trail or any Improvement thereon). It is acknowledged and agreed that Licensor cannot and does not guarantee the safety of any person using the Licensed Premises or the protection of any Trail User in any use of the Licensed Premises, and Licensor shall, notwithstanding anything to the contrary set forth herein, have no liability or obligation with respect thereto.
10. Liability Insurance. Licensee shall add Licensor to Licensee’s general liability insurance policy as an additional insured with respect to the License granted herein to Licensee. Licensee shall maintain throughout the Term general liability insurance coverage reasonably satisfactory to Licensor which shall name Licensor as an additional insured thereon. Licensor shall not be liable to Licensee or Licensee’s employees, agents, patrons, visitors, the Trail Users or to any other person whomsoever, for any injury to person or damage to property, or for any loss, liability, damages or claims resulting on or about or otherwise arising in connection with the Licensed Premises from the use thereof or of the Trail or the Improvements by Licensee, its agents, servants or employees, the Trail Users or any other person. Such insurer shall agree, by endorsement upon the policy or policies issued by it or by independent instrument furnished to Licensor, that such insurer will give Licensor and its mortgagee thirty (30) days' prior written notice of the effective date of any alteration or cancellation of such policy. If such insurance policy does lapse, with or without notice to Licensor, this License shall automatically terminate without any further action of either party hereto and shall not thereafter be reinstated without the express consent of Licensor.
11. Hold Harmless. To the fullest extent permitted by applicable law, including, without limitation, Virginia Code § 29.1-509(E) and notwithstanding any other provision in this License, Licensee shall protect, indemnify, defend and save harmless Licensor from and against any and all liabilities, obligations, losses, claims, damages, demands, penalties, causes of action, costs and expenses (including, without limitation, attorneys' fees and expenses and court costs) of any kinds imposed upon, incurred by, or otherwise asserted against Licensor on account of any loss or damage to the Licensed Premises or the Property, or any injury to, or death of, any person that may be occasioned by any cause whatsoever pertaining to or otherwise associated with this License or the Licensed Premises, the Trail and the Improvements, except the gross negligence or malfeasance of Licensor. The terms of this Section 11 including the Licensee’s indemnity obligations hereunder shall survive the expiration or termination of this License.
12. Reimbursement of Costs. Licensee shall reimburse Licensor for any cost or expenses incurred by Licensor in maintaining this License or the Licensed Premises, the Trail or the Improvements, within thirty (30) working days after receiving a written request from Licensor for such reimbursement.
13. Title, Access and Authority. Licensor covenants and warrants to Licensee that it presently owns the fee simple interest in and to the Property and that Licensor is duly authorized and empowered to grant this License, subject to the approval of Licensor’s mortgagee.
14. Not Public Dedication.
A. Licensee certifies, represents and declares that it has no title in or to the Licensed Premises or the Property nor to the fee or any portion thereof and has not, does not, and shall not in the future claim any such title nor any easement (or other rights except as expressly set forth in this License) on, over, though under, across or otherwise burdening all or any portion of the Property.
B. Notwithstanding any other provision in this License, the License herein granted is not intended to and shall not effect or constitute a dedication for public use of all or any portion of the Property (including without limitation the Licensed Premises), and the rights created hereunder are and shall remain during the Term private and for the benefit only of the authorized and permitted persons designated herein, including Licensee and the Trail Users.
C. Licensor shall have the right in its sole discretion (i) not less than one (1) time during each calendar year to close the Trail and the Licensed Premises for a period of twenty-four (24) hours, and (ii) to locate such markers on and along the boundary of the Licensed Premises confirming that this License shall not effect or constitute a dedication for public use of all or any portion of the Property and that the rights created under this License in the Trail and/or the Licensed Premises are private and for the benefit only of authorized and permitted users.
15. Governmental and Other Requirements. Licensee shall faithfully observe in the use of the Licensed Premises, and shall bear all costs incurred in the performance of any permitted activities set out herein and shall complete all such activities in accordance with, all municipal and county ordinances and codes and all state and federal statutes, rules and regulations, and reasonable rules and regulations established by Licensor, now in force or which may hereafter be in force.
16. Miscellaneous Provisions.
A. Modifications. This Agreement shall not be modified, except in a writing signed by Licensor and Licensee.
B. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supercedes any prior understandings or oral or written agreements between the parties respecting subject matter herein contained.
C. Assignment. Licensee may not assign or allow another party to assume its interest in this License without the prior written approval of Licensor in each such instance and permission to any single assignment shall not operate as a waiver of such right to approve any subsequent assignment. This License shall not be considered appurtenant to nor shall this License run with the Property.
D. Successors and Assigns. The covenants, promises, conditions, licenses and agreements contained in this License shall be binding upon, apply and inure to the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns.
E. Governing Law. This License shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, principles of conflicts of law notwithstanding.
F. Recordation; Release. In the event of recordation of this License, Licensor and Licensee agree to deliver upon the termination of this License an executed document or instrument (in form reasonably acceptable to Licensor and recordable in the in the Clerk’s Office of the Circuit Court of Albemarle County, Virginia) acknowledging the termination of this License and that Licensee, for itself, its successor and assigns, and each and every Trail User, expressly relinquishes any and all rights and interest in the Licensed Premises arising under this License, and Licensee expressly authorizes Licensor to record such document or instrument in the aforesaid Clerk’s Office upon receipt of same.
Licensee, acting by and through its County Executive, duly authorized by the Board of Supervisors of Albemarle County, Virginia, does hereby consent to the terms of this License.
WITNESS the following signatures.
DESCRIPTION OF THE PROPERTY
All that certain tract or parcel of land, with improvements thereon and appurtenances thereto, situated in the County of Albemarle, Virginia, containing in the aggregate 88.21 acres, more or less, shown as “Parcel K” on a plat by Roudabush, Gale & Associates, Inc., dated February 21, 2001, and recorded in the Clerk's Office of the Circuit Court of Albemarle County, Virginia, in Deed Book 2012, pages 361-364.
Being a portion of the property conveyed by special warranty deed of Route 240, LLC, a Virginia limited liability company, to Licensor dated December __, 2002, and recorded in the Clerk's Office of the Circuit Court of Albemarle County, Virginia, on December __, 2002, in Deed Book ___, page___.
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