HomeMy WebLinkAbout16- Agreement, Parking Commission - Imperial 400 LLC, Use of Parking Spaces AFTER RECORDING PLEASE RETURN TO:
Thomas Thorpe
Parking Manager, City of Bozeman 2548873
PO Box 1230
Bozeman, MT 59771-1230 Page: 1 of 7 06/23/2016 09 33 46 AM Fee: $49.00
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s i iQ BOZEMAN PARKING COMMISSION
AGREEMENT FOR THE USE OF PARKING SPACES
IN THE BRIDGER PARK DOWNTOWN INTERMODAL FACILITY
THIS AGREEMENT made and entered into this 18t" day of December 2015 by and
between the BOZEMAN PARKING COMMISSION, an entity of the City of Bozeman,
Montana, created pursuant to City of Bozeman Resolutions 1676, 1839, and 3803 and formed
under the laws of the State of Montana, with a mailing address of PO Box 1230, Bozeman, MT
59771 (the "Parking Commission") Imperial 400, L L C (hereinafter the "Lessee"), with an
address of 136 West Main Street, Bozeman, MT and a mailing address of 33 North Black
Avenue, Bozeman, MT 59715.
WHEREAS, the City of Bozeman is the recipient of a Congressional
appropriation dedicated to the construction of the Bridger Park Downtown Intermodal
Facility (Bridger Park); and
WHEREAS, the Parking Commission is the entity charged with the regulation of
parking in the City of Bozeman and is authorized by law to enter into lease and rental
agreements for the long term use of the Bridger Park.
NOW THEREFORE, in consideration of the mutual promises and consideration
hereinafter described, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties do agree as follows:
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1. Purpose. The Leasee desires to use parking spaces in the Bridger Park for the
sole purpose of providing parking for the Leasee ' s hotel known as
the Lark 2 , located at 136 West Main Street (the "Hotel"). Said parking
shall be for the use of the Leasee's Hotel only, including without limiting, its
owners, employees, guests, invitees, and suppliers. This Agreement sets forth the
terms pursuant to which the Parking Commission authorizes the Leasee to use
such parking spaces.
2. Term of Agreement/Termination. This Agreement shall be executed and effective
no later than f inal site plan approval from the City of Bozeman Department of
Community Development. The term of lease for parking spaces as provided for
herein shall commence no later than the issuance of a certificate of occupancy for
the Hotel from the City of Bozeman Building Division. The lease issued hereunder
shall be in effect for no less than 25 years from the initial date of lease of parking
spaces. The parties may renew this Agreement and the lease issued hereunder for
five (5) additional five (5) year periods upon written request by the Leasee. The
Leasee may not terminate this Agreement without the prior written consent of the
Parking Commission. The Parking Commission may not terminate this Agreement
unless such termination is required by law.
Notwithstanding the above, this Agreement shall terminate should the final site plan
approval for the Hotel, if granted by the City of Bozeman, lapse pursuant to
38.19.120.D, BMC. In no case shall this Agreement remain in effect including the
obligation of the Parking Commission to lease parking spaces under this
Agreement should the Leasee not obtain a building permit from the City of
Bozeman for construction of the Hotel within two (2) years of the
effective date of this Agreement. In addition, this Agreement terminates
if the Leasee obtains a building permit during the first two years
after the effective date of this Agreement but such building
permit expires. In addition, this Agreement shall terminate if a building permit
is issued but a final occupancy permit is not issued by the City of Bozeman's
Building Division within four (4) years of the effective date of this Agreement.
3. Number and Use of Parking Spaces. The Parking Commission shall make
available to the Leasee no more than twenty seven (27) spaces for the sole
purpose of providing parking, and access thereto, for the use of the Leasee's
Hotel on a 24-hour basis. The Parking Commission shall, upon request, provide
the Leasee notice of how many parking spaces are available on or before
December 31 each year. In addition to the above, the Parking Commission shall
provide repair and maintenance, including without limiting, graffiti removal,
striping, and pothole/crack repair during normal business hours.
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4. Rate and Adjustment/AVI Access Cards. The Leasee shall pay the Parking
Commission a bulk rate of forty dollars ($40.00) per month per space
upon commencement of the lease as set forth in paragraph 2. The Parking
Commission may increase the rate without prior notice to the Leasee on an annual
basis in accordance with Parking Commission policy. Such policy requires rates to
be established in compliance with the Master Agreement as discussed in Section
5, below. The Parking Commission may charge a refundable deposit and actual
costs of replacement for AV[ access cards.
5. Federal Facility/Parking Commission Control. The Leasee recognizes the City
of Bozeman constructed the Bridger Park with funds obtained through a
Congressional appropriation as administered by the United States Department of
Transportation's Federal Transit Administration (FTA Project No. MT-04-0004-00).
In addition, the Leasee recognizes the City of Bozeman annually enters into an
agreement with the FTA called the Master Agreement (FTA MA(19), October 1,
2012) (Exhibit A). In its use of parking spaces under this Agreement the Leasee
shall take no action which would adversely affect the federal interest in the Bridger
Park and shall at all times use the parking spaces in a manner that complies
with the Master Agreement. Further the Leasee recognizes that the City of
Bozeman must maintain satisfactory continuing control over the Bridger Park and
that there may be no interference with transit functions. Any revenue collected in
excess of operation and maintenance costs are to be committed to the provision of
public transportation services.
The Leasee agrees the Parking Commission has and may adopt rules,
regulations, and administrative directives for the reasonable operation of the
Bridger Park. The Leasee shall abide by all such rules, regulations, and directives.
6. Modification and Assignability: This document contains the entire agreement
between the parties and no statements, promises or inducements made by either
party or agents of either party not contained in this written Agreement may be
considered valid or binding. This Agreement may not be enlarged, modified or
altered except by written agreement signed by the parties hereto. The Leasee
may not subcontract or assign its rights or delegate its duties under this
Agreement without the prior written consent of Parking Commission.
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7. ComMiance with Unified Development Code: The Leasee acknowledges it is
required, pursuant to the City's Unified Development Code (Chapter 38, BMC), to
provide parking spaces for Leasee's Hotel uses. The Leasee intends this
Agreement to satisfy some portion of its UDC parking requirement. As such, this
Agreement is revocable only with the prior written approval of the appropriate UDC
review authority.
8. Applicability: This Agreement and any extensions hereof shall be governed and
construed in accordance with the laws of the State of Montana.
9. Non-discrimination. The Leasee shall not discriminate in the fulfillment of this
Agreement on the basis of race, color, religion, creed, sex, age, marital status,
national origin, or actual or perceived sexual orientation, gender identity or disability.
10.Indemnification/Hold Harmless. The Leasee agrees to the fullest extent permitted
by law, to defend, indemnify, and hold the Parking Commission and the City of
Bozeman including their officers, agents, and employees, the Intermodal Commerce
Condominium Association and its individual Unit Owners, and the Mendenhall
Marketplace Condominium Association and its individual Unit Owners harmless
against claims, demands, proceeding, suits, damages, losses, and expenses
including attorney fees and costs connected therewith that may be asserted or
claimed against, recovered from or suffered by any of the above by reason of any
injury or loss, including but not limited to, personal injury, including bodily injury or
death, property damage, loss of use, or other injury or loss of any kind occasioned
by, growing out of, or in any way arising or resulting from any intentional, reckless, or
negligent act on the part of the Leasee, its owners or employees while using
the Bridger Park, a n d t h o s e , invitees, suppliers, lessees, licensees, guests,
patrons, officers, or agents , authorized by the Leasee to use the Bridger
Park pursuant to the terms of this Lease.
The Leasee on behalf of its lessees, licensees, guests, patrons, employees,
officers, and agents, hereby waives any and all claims and recourse against the
Parking Commission, the City of Bozeman, including its officers, agents or
employees, and the Intermodal Commerce Condominium Association and its
individual Unit Owners, and the Mendenhall Marketplace Condominium
Association and its Individual Unit Owners including the right of contribution for
loss or damage to person or property including loss of use arising from, growing
out of, or in any way connected with or incident to the performance of this
Agreement except "responsibility for his own fraud, for willful injury to the person
or property of another, or for violation of law, whether willful or negligent" as per
28-2-702, MCA. Nothing contained in this paragraph shall be construed as the
Page 4 of 7
Leasee waiving any claims and recourse against the Parking Commission, the City
of Bozeman, including its officers, agents or employees for a breach of this
Agreement.
Should the Parking Commission, the City of Bozeman, the Intermodal Commerce
Condominium Association to include its individual Unit Owners, or the Mendenhall
Marketplace Condominium Association to include its Unit Owners be required to
bring an action against the Leasee to assert its right to defense or
indemnification under this Agreement any of the entities named above shall be
entitled to recover its reasonable costs and attorney fees incurred in asserting its
right to indemnification or defense but only if a court of competent jurisdiction
determines the Hotel was obligated to defend the claim(s) or was obligated to
indemnify the above entities for a claim(s) or any portion(s) thereof.
The obligations of this section (section ten (10)) shall survive termination of this
Agreement.
11.Insurance. In addition to and independent from the requirements of Section 10, the
Leasee shall secure insurance coverage in a form acceptable to the Parking
Commission and furnish to the Parking Commission an accompanying certificate of
insurance issued by a company authorized to do business in the State of Montana in
amounts not less than as follows:
• Workers' Compensation - statutory
• Employers' Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate
• Commercial General Liability - $1,000,000 per occurrence; $2,000,000
annual aggregate
• Automobile Liability - $1,000,000 property damage/bodily injury;
$2,000,000 annual aggregate
The Parking Commission, City of Bozeman, and their officers, agents, and
employees, shall be endorsed as an additional insured on a primary non-contributory
basis on both the Commercial General and Automobile Liability policies. The
insurance and required endorsements must be in a form suitable to City and shall
include no less than a thirty (30) day notice of cancellation or non-renewal. The
Leasee must demonstrate to the City's satisfaction that the above insurance
coverage is in place and is provided in a manner acceptable to the City including
any endorsements prior to the Leasee using any parking spaces. Nothing herein
shall grant the City the authority to require the Hotel to use the services of a
specific insurance provider.
Page 5 of 7
12.Authorization. The parties signing below hereby represent and warrant that they
are duly authorized to sign this agreement on behalf of the entities.
13.Recordation. This Agreement shall be recorded in the files of the Gallatin County
Clerk and Recorder. All costs of recording shall be borne by the Leasee.
############ End of Agreement except for signature page ##/##########
Page 6 of 7
Executed this f. Z day of �L 201_6
Parking Commission:
Parking Manager ;
STATE OF MONTANA )
ss.
County of Gallatin )
This instrument was acknowledged before me on the12day of �v► ,
20_Lp by Thomas Thorpe, as Parking Manager for the City of Bozeman, Montana.
PEARL MICHALSON
S: Notary Public
a.NOTAr3rg4-o-y:for the State of Montana
=}_
Rcsiding at: Notary Public for the State of Montana
;N�.SEAL. Bozertian, Montana Printed Name:
My comrnission Expires:
March 10,2020 Residing in , OA I
My Commission Expires:
Imperial 400 LLC :
By: laxh!��
Brian Caldwell, Imperial 400, LLC Member
STATE OF MONTANA )
ss.
County of Gallatin )
This instrument was acknowledged before me on the 2Z day of
20 (4by Brian Caldwell as for Imperial 400, LLC.
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`` P�MrcNc,, PEARL,MIyCP bLSON
0.a:Nlic
OTAR�g4.z=for the State of Montana Notary Public for the State of Montana
SEAL. Fzcsiair,g at. Printed Name:
9. Vie, Bozeman, Montana
pF' jl�L)Mycommission Expires: Residing in MT
March 10,2020 My Commission Expires:
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