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HomeMy WebLinkAbout16- Agreement for a Revocable Encroachment Permit - CAMO Holdings LLC and Kenyon Noble Lumber CompanyAFTER RECORDING RETURN TO: Bozeman City Clerk PO Box 1230 Bozeman, MT 59771-1230 2555225 Page: 1 of 12 08/23/2016 03:31.17 PM Fee: $84.00 Charlotte Mills - Gallatin County, MT MISC 11111111111111 III 111111111111111111111111111111 IIIA 11111 IIIA 1111111 III IIIA IIIA 1111111111111 AGREEMENT FOR A REVOCABLE ENCROACHMENT PERMIT This Agreement for a Revocable Encroachment Permit is entered into this ,'day of August, 2016 by and between the City of Bozeman, Montana, a self-governing municipal government operating pursuant to its Charter and the laws of the State of Montana, with a mailing address of PO Box 1230, Bozeman, Montana, 59771-1230, (the "City") and Kenyon -Noble Lumber Company and CAMO Holdings, LLC, both with a mailing address of PO Box 1109, Bozeman, MT 59719-1109, (collectively "the Permittee"). The City and Permittee are referred to collectively as "the Parties." For good and valuable consideration, the City and Permittee agrees as follows: 1. PURPOSE. The purpose of this Agreement is to establish the terms and conditions for the Permittee to occupy certain portions of the Front Street and Birch Street Rights of Way and to establish contingencies for the permit issued pursuant to this Agreement to become effective. 2. CONSIDERATION. The Permittee shall pay the City a one-time fee of $1,000.00 (one thousand dollars and zero cents) for the occupancy of the Permit Areas. Such payment shall be due to the City no later than 30 days after the date of the City's signature to this Agreement. 3. GRANTING OF PERMIT/TERM. Subject to Permittee's compliance with the terms and conditions of this Agreement, the City grants to Permittee a Revocable Encroachment Permit (the "Permit") for the Permit Areas as described in Section 4 of this Agreement. Such Permit for the Front Street Permit Area will be in full force and effect from the date of written notice by the City's Director of Public Works that all contingencies as herein Encroachment Permit Page 1 of 11 described have been met and until revoked as herein provided. The Permit for the Birch Street Permit Area shall be in full force and effect as of the date of the City Manager's signature on this Agreement (the "Effective Date"). 4. PERMIT AREA(S). The Permit Areas are shown on Exhibit A. The Permit Areas include locations within the "Front Street Right of Way" and the "Birch Street Right of Way" wherein the City grants permission, pursuant to the terms and conditions of this Agreement, for Permittee to use such locations within each right of way only for the uses described in Section 10. From time to time, this Agreement may refer to each right of way individually and in doing may refer to the portions of the Front Street Right of Way wherein the City grants Permittee use under this Permit as the "Front Street Permit Area" and the portion of the Birch Street Right of Way wherein the City grants Permittee use under this Permit as the "Birch Street Permit Area." Collectively, the Front Street Permit Area and the Birch Street Permit Area may be referred to as the "Permit Areas." 5. TITLE. Permittee recognizes, acknowledges, and agrees it currently occupies the Permit Areas without authority or approval of the City. Permittee hereby acknowledges this permit grants a privilege and not an interest in real property or the title of the City to the Permit Areas pursuant to the terms and conditions herein stated and Permittee agrees never to deny such title or claim, at any time, or claim any interest or estate of any kind or extent whatsoever in the Permit Areas by virtue of this Agreement or Permittee's occupancy or use of the Permit Areas. Upon termination of the Permit, all improvements of a nonpermanent nature and all trade fixtures, machinery and furnishings made or installed by Permittee must be removed from the Permit Areas unless such removal, as determined solely by the City, will damage the Permit Areas. 6. REVOCATION. This permit may be revoked by the City if Permittee violates any of the conditions or terms of this Agreement, and after notice of such violation, fails to cure the same within ninety (90) days, or in all other events, upon giving one hundred eighty (180) days written notice to the Permittee's Representative by regular mail that the Bozeman City Commission has duly made a determination that the area subject to this permit is necessary for public transportation related facilities or any public or private utilities, "collectively "Public Improvements," which Public Improvements, by their very nature and placement cannot reasonably coexist with Permittee's continued use of the Permit Area. If the Permittee fails to remove the permitted encroachment(s) and remove all of its personal property and restore said right-of-way to a condition free and clear of all fixtures and appurtenances within said one hundred eighty (180) day period, or if circumstances prevent Permittee from completing the removal, in a commercially Encroachment Permit Page 2 of 11 reasonable time thereafter, not to exceed ninety (90) days, the City at its option may remove the same and restore said right-of-way to a condition free and clear of all fixtures and appurtenances and Permittee agrees it shall pay all costs and expenses thereof to the City upon written demand by the City. 7. FRONT STREET CONTINGENCY. As a condition precedent to the Permit issued pursuant to this Agreement for the Permittee to occupy the Front Street Permit Area the Permittee must no later than March 31, 2017 remove all fixtures and appurtenances that are located outside of the Front Street Permit Area but within the Front Street Right of Way, to include but not be limited to fencing and other personal property, so as to leave the portion of the Front Street Right of Way not included in the Front Street Permit Area free and clear of all Permittee's personal property, fixtures and appurtenances. This area is shown on Exhibit A as the "Front Street Trail Area." Only upon a determination and written notice by the City's Director of Public Works that all Permitee's fencing and personal property, fixtures, and appurtenances have been removed from the Front Street Trail Area shall the Permit to occupy the Front Street Permit Area vest subject at all times to the terms and conditions of this Agreement. 8. REMOVAL OF PERSONAL PROPERTY FROM THE BIRCH STREET RIGHT OF WAY. Permittee's Permit to occupy the Birch Street Permit Area commences upon the Effective Date of this Agreement. However, Permittee must, no later than the earlier of March 29, 2019 or the date the Montana Department of Transportation (MDT) obtains from Permittee legal title to the right of way MDT determines necessary for the expansion of Rouse Avenue to include improvements to the intersection of Rouse Avenue with Birch and Oak Streets, remove all its personal property, fixtures, and appurtenances from the Birch Street Right of Way, to include but not limited to fencing and other personal property, so as to leave the Birch Street Right of Way free and clear of all its personal property, fixtures, and appurtenances. 9. NO INTERFERENCE WITH TRAIL CONSTRUCTION AND USE. Permittee recognizes the City intends to construct a pedestrian and bicycle trail within the Birch Street and Front Street Rights of Way. As such, Permittee agrees it will take no action, file any claim, or interfere in any way with the City's lawful use of the Front Street and Birch Street Rights of Way including but not limited to the planning, construction, or the lawful use by the public of the trails located within the Front Street and Birch Street Rights of Way. Encroachment Permit Page 3 of 11 10. SCOPE OF USE. Permittee may use the Permit Areas for storage of goods, the placement of fixtures necessary for the storage of goods, perimeter lighting (as long as said lighting is in compliance with adopted City standards) and other like items related solely to Permittee's business of lumber and construction materials sales. Permittee may not construct any new buildings or any other permanent structures within the Permit Areas without written authorization from the City's Director of Public Works. 11. PERMIT DOES NOT RUN WITH THE LAND. The Permit issued pursuant to this Agreement does not run with the land and is personal to the Permittee and shall not vest in any of the Permittee's successors or assigns without written consent of the City. 12. RESTORATION. After notice from the City that the Permit for either or both Permit Areas issued pursuant to this Agreement will be revoked, cause the applicable Permit Area(s) to be restored to the condition existing as of the Effective Date of this Agreement absent of all Permittee's personal property and to a condition free and clear of all fixtures and appurtenances. Restoration includes but is not limited to regrading of the site to a natural grade, establishing stormwater retention on site, reseeding of the Permit Areas, weed control, and any other reasonable requirement made by the Director of Public Works at the time of revocation of the Permit. 13. WASTE, NUISANCE, AND UNLAWFUL USE PROHIBITED/RUBISH AND DEBRIS. Permittee must not commit, or suffer to be committed, any waste on the Permit Areas, nor shall Permittee, its agents, invitees, guests, hires, contractors or subcontractors maintain, commit, or permit the maintenance or commission of any nuisance on the Permit Areas. Permittee must not do or permit anything to be done on the Permit Areas which shall in any way conflict with any law, ordinance, rule, or regulation which are or may hereafter be enacted or promulgated by any public authority. 14. HAZARDOUS MATERIALS. Permittee agrees and represents that it, its agents, employees, invitees, guests, hires, contractors or subcontractors will not store or dispose of on the Permit Areas any "Hazardous Materials" as defined by Federal, State or local law which may from time to time be amended, excepting those products lawfully used and stored in the ordinary course of Permittee's business operations. 15. INDEMNIFICATION/INSURANCE. a. To the fullest extent permitted by law, Permittee, recognizing it exercises its privileges under this Permit at its own risk, shall release, and shall protect, defend, indemnify, and hold harmless the City and its present and future agents, Encroachment Permit Page 4 of 11 representatives, employees, and officers from and against any and all claims, demands, actions, fees and costs (including attorney's fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith including contamination of or adverse effects on the environment, or any violation or alleged violation of statutes, ordinances, orders, rules, or regulations of any governmental entity or agency, directly or indirectly caused by or arising out of the existence or disposal of hazardous materials or other pollutants on the Permit Areas. The above shall be without limit and without regard to the cause or causes thereof or the negligence of any person that may be asserted against, recovered from or suffered by the City and their agents, representatives, employees, and officers, occasioned by, growing or arising out of or resulting from or in any way related to: (i) the occupation or use of the Permit Areas by Permittee; (ii) the negligent, reckless, or intentional misconduct of the Permittee, its officers, employees, or agents on or related to the Permit Areas; (iii) any negligent, reckless, or intentional misconduct of any of the Permittee's guests, invitees, contractors, or subcontractors on or related to the Permit Areas; and (iv) the negligent, reckless, or intentional misconduct of any other third party with respect to use of the Permit Areas. b. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist as to an indemnitee described in this Section. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the indemnitee(s) which would otherwise exist as to such indemnitee(s). c. Permittee's indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. d. Should any indemnitee described herein be required to bring an action against the Permittee to assert its right to defense or indemnification under this Agreement or under the Permittee's applicable insurance policies required below the indemnitee shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Permittee was obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof. Encroachment Permit Page 5 of 11 e. In the event of an action filed against the City resulting from the City's performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. f. The obligations in subsections a — e of this Section shall not be limited by the existence of any insurance policy or by any limitation on the amount or type of damages, compensation, or benefits payable by or for the Permittee and shall survive termination of the Permit. g. In addition to and independent from the above, during the term of this Agreement Permittee shall at Permittee's expense maintain those insurances as may be required by the City as set forth below through an insurance company or companies duly licensed and authorized to conduct business in Montana which insures the liabilities and obligations specifically assumed by the Permittee in subsection (a) of this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Permittee in subsection (a) of this Section nor for any of Permittee's activities on the Site. h. No later than ten (10) business days after the Effective Date of this Agreement, Permittee must provide the City with proof of such insurance in the form of a certificate of insurance, and if required by the City the insuring agreement(s) and all applicable endorsements, demonstrating that such insurance is in full force and effect and the Permittee must provide such proof when requested by the City thereafter during the term of the Permit. i. Permittee must notify the City sixty (60) days prior to the expiration of any such required insurance coverage and must ensure such required insurance coverage is timely renewed so there is no lapse in coverage during the time such insurance must remain in place. Permittee must notify the City within three (3) business days of Permittee's receipt of notice that any required insurance coverage will be terminated or Permittee's decision to terminate any required insurance coverage for any reason. j. The insurance and required endorsements must be in a form suitable to the City. k. Permittee shall obtain the following type of insurance in the amount indicated: i. Workers' Compensation — not less than statutory limits; Encroachment Permit Page 6 of 11 ii. Employers' Liability - $1,000,000 each accident/$1,000,000 disease policy limit/$ 1,000,000 disease — each employee iii. Commercial General Liability - $1,000,000 per claim; $2,000,000 per occurrence for bodily injury and property damage; and iv. Contractual Liability Insurance (covering the Licensee's indemnity obligations described in this Agreement) - $1,000,000 per claim, $2,000,000 per occurrence. The City, its officers, agents, and employees, must be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General Liability policy. 16. RIGHT-OF-WAY AND DRAINAGE. If the Permittee's occupancy of the Permit Areas under this Permit interferes in any way with the drainage of City property or other City rights-of-way, the Permittee must, at its expense, make such provisions as the City may direct to remedy the interference. 17. AMENDMENT. Any amendment or modification of this Agreement or any provision herein shall be made in writing or executed in the same manner as the original document and shall after execution become a part of this Agreement. 18. ASSIGNMENT. Permittee may not assign this Agreement in whole or in part and may not lease, convey, or allow any other person not affiliated with Permittee to occupy all or any portion of the Permit Areas without the prior written consent of the City. No assignment will relieve Permittee of its responsibility for the performance of this Agreement (including its duty to defend, indemnify and hold harmless). 19. WAIVER OF CLAIMS. Permittee waives all claims against the City for injury to persons or property on or about the Permit Areas or from use of the Permit Areas. 20. REPRESENTATIVES. a. CITY'S REPRESENTATIVE. The City's Representative for the purpose of this Agreement shall be Chris Kukulski, City Manager, or his successor or designee. Whenever approval or authorization from or communication or submission to the City is required by this Agreement, except as specifically provided herein, such communication or submission shall be directed to the City's Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City's Representative is Encroachment Permit Page 7 of 11 not available, Permittee may direct their communication or submission to other Commission personnel or agents, specifically and first, the Director of Public Works and may receive approvals or authorization from such persons. b. PERMITTEE'S REPRESENTATIVES. The Permittee's Representatives for the purpose of this Agreement shall be Ashley Ogle and Alan McCollim. Whenever direction to or communication with the Permittee is required by this Agreement, such direction or communication shall be directed to Permittee's respective Representative; provided, however, that in exigent circumstances when Permittee's Representatives is not available, the City may direct its direction or communication to other Permittee employees and such communication shall be determined to be communication with Permittee. 21. LIENS AND ENCUMBRANCES. Permittee shall not permit any liens or encumbrances to be filed on the Permit Areas and if any such liens or encumbrances are placed on the Permit Areas, whether of record or not of record, Permit must remove any liens or encumbrances. If after revocation of this Permit such liens and encumbrances remain on the Permit Areas Permittee agrees to pay all costs of removing the same including costs related to litigation including attorney fees. 22. DISPUTE RESOLUTION. Any claim, controversy, or dispute between the Parties, their agents, employees, or representatives shall be resolved first by negotiation between senior -level personnel from each Party duly authorized to execute settlement agreements. Upon mutual agreement of the Parties, the Parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. If the Parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute shall be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 23. SURVIVAL. Permittee's indemnification and other obligations shall survive the termination or expiration of this Agreement as specified above or for the maximum period allowed under applicable law. 24. HEADINGS. The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. Encroachment Permit Page 8 of 11 25. WAIVER. A waiver by the City of any default or breach by Permittee of any covenants, terms, or conditions of this Agreement does not limit the City's right to enforce such covenants, terms, or conditions or to pursue the City's rights in the event of any subsequent default or breach. 26. SEVERABILITY. If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 27. APPLICABLE LAW. The Parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 28. BINDING EFFECT: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the Parties. 29. NO THIRD -PARTY BENEFICIARY: This Agreement is for the exclusive benefit of the Parties, does not constitute a third -party beneficiary agreement, and may not be relied upon or enforced by a third party except the City. 30. NON-DISCRIMINATION. Permittee must 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. Permittee will require this nondiscrimination terms of its subcontractors performing Permittee's obligations under this Agreement. 31. COUNTERPARTS. This Agreement may be executed in counterparts, which together constitute one instrument. 32. AUTHORITY. Each party represents that it has full power and authority to enter into and perform this Agreement and the person signing this Agreement on behalf of each party has been properly authorized and empowered to sign this Agreement. 33. INTEGRATION. This Agreement constitutes the entire agreement of the Parties. Covenants or representations not contained therein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the Parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. Encroachment Permit Page 9 of 11 34. RECORDATION. This Agreement shall be recorded in the files of the Gallatin County Clerk and Recorder. All costs of recording shall be borne by Permittee. The original of this recorded agreement shall be returned to the Bozeman City Clerk. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** Kenyon -Noble Lumber Company By: )Etk1__ Its: Pres'd t STATE OF MONTANA . ss. County of Gallatin DATE: �b This instrument was acknowledged before me on the /17 day of Aaa5T , 20 Ra by le/64AP-6 —'r, 06LE , President of Kenyon Noble Lumber Company. JERRY ©. SMITH Notary Public Notary P is for he State offMontana �,/ NoTnRrq� y _for the State of Montana printed me: Vim/ U S/u 1 %74 Residing at: * A"L.�F Bozeman, Montana Residing in 8&Z_ w A -i,, _ 44 -7 - My Commission Expires: February 24, 2018 My Commission Expires: f"1Zu -R-Y ZZ% 20/8 CRMO Holdings, LLC By: DATE: 1 2,0 J Ce Its:ei ber STATE OF MONTANA ss. County of Gallatin This instrument was acknowledged before me on the /I day of 146x5% , 20 by 61uey 064E , a Member of CAMO Holdings, LLC. Encroachment Permit Page 10 of 11 i<<, SM��'. JENNY D. SMITH Notary Public y : for the State of Montana TA13/q4 for the State of Montana * * = Residing at: Bozeman, Montana "N9 My Commission Expires: -;� r,,,,.,,, February 24, 2018 City of Bozeman Notary Pub c for Aie State of Montana Printed Name: 7m- " 51' ly of Residing in S6 Zf1,v,4-A/ w r My Commission Expires: le�2�, ZDlB By: DATE: Acting City Manager STATE OF MONTANA SS. County of Gallatin This instrument was acknowledged before me on the t9 day of y4 , 20 ICo by C �,ucL- W L^rr , Acting City Manager of the City of Bozeman, Montana. PEARL MICHALSON Ass '-Notary Public o Notary Public for the State of Montana 4�?NOTAgrq� for the State of Montana Printed Name:'�Rec,,r j ,b,c tccyti . S Residing at: Bozeman, Montana Residing in -;� r,,,,.,,, My Commission Expires: March 10, 2020 My Commission Expires: ►varr,�l-- to ,Zd�2� Encroachment Permit Page 11 of 11 EXHIBIT A TO AGREEMENT FOR A REVOCABLE ENCROACHMENT PERMIT FOR PORTIONS OF EAST BIRCH STREET R.O.W. AND FRONT STREET R.O.W. PREPARED FOR CITY OF BOZEMAN Sol 6% PREPARED BY S A N D E R S O N STEWARTI%V— F06N LDI R -BAR EX. BUILDING EX, BUILDNG 60.03' IND EX. GRAVEL ACR AS -T H— w J EX. GRAVEL EX. WOVEN WIRE FENCE FOUNDBENT 2" BIRCH STREET ACR (1 7211MDT) LIJ; PERMIT AREA >1 < 412 S. F. BUILDING 6034 0' GRAVEL wBLOCK 174 NORTHERN PACIFIC ADDITION TO CEL A THE CITY OF BOZEMAN 0 V TO BOZEMAN ry ry 0 FRONT STREET PERMIT AREA 18,283 S.F. so 0 50 100 NORTH6CALE:V=100' AUGUST, 2016 BOZEMAN, MONTANA SEE INSET BELOW FOR BIRCH /-STREET PERMIT AREA BEARINGS AND DISTANCES EX. SHRUBS EX. BUILDING -FOUND 1" ACR EDGE OF EX. WATER PROPOSED LOCATION OF NEW BRIDGE S 55*22'57" E 86.65' RESEARCH NORTHERN PACIFIC ADDITION TO THE CITY OF BOZEMAN EX. WOVEN WIRE FENCE 7- "\"' EX. Is BUILDING 14 70, it, LOT I - BLOCK 110, 111 & 112 NORTHERN PACIFIC ADDITION TO THE CITY OF BOZEMAN - ' ""ll y'D O EX. WOVEN WIRE FENCE FOUND FOUND V' YCR S 51*23'15" W BALD REB AR_ _ (5653R.CENTER) 0 0 2 5. ' F_ EX. BUI NO V EX. GRAVEL U 0 \—FOUND 2" BALD REBAR ACR EAST BIRCH STREET 60.03' N 00'45'01" W 1.50' BIRCH STREET PERMIT AREA 412 S. F. 89*14'59" W 274.39'-- 274.39' 74.39' 274.34; \--EX. WOVEN WIRE FENCE - BLOCK 114 - NORTHERN PACIFIC ADDITION TO THE CITY OF BOZEMAN S 00'45'01" E 1.50' EX. GRAVEL 1* fghu, ok W Wle NORTH is 0 is 30 SCALE:I" = 30' m