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HomeMy WebLinkAbout04-03-17 City Commission Packet Materials - C6. License Agreement with BoTrails for Bozeman Pond Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Carolyn Poissant – Manager of Trails, Open Space, and Park Development Mitch Overton – Director of Parks and Recreation SUBJECT: License Agreement with BoTrails, LLC for Bozeman Pond Park Trail Work MEETING DATE: April 3, 2017 AGENDA ITEM TYPE: Consent RECOMMENDATION: Approve the License Agreement with BoTrails, LLC for trail construction work to be performed in Bozeman Pond Park and authorize the City Manager to sign the Agreement (Attachment A). BACKGROUND: Run Dog Run, a local non-profit organization, and the Gallatin Valley Land Trust (GVLT) worked in partnership with the City of Bozeman to install the new off-leash dog park, known as “Lewis and Bark Park” as part of the Bozeman Pond Park Expansion Project, funded by the 2012 Trails, Open Space and Parks bond via Resolution No. 4494. BoTrails, LLC performed the initial trail preparation work performed by GVLT under a previous license agreement approved in 2016. Staff has identified some minor additional trail work in the dog park that Run Dog Run has agreed to pay for to better serve park users. Run Dog Run has agreed to pay for the work. Parks staff will supervise the work. Run Dog Run has also provided ADA-accessible gate latches and has greatly assisted with dog waste removal due to Park Operations capacity constraints. UNRESOLVED ISSUES: None ALTERNATIVES: Per Commission. FISCAL EFFECTS: None. Run Dog Run is covering all costs associated with the work. ATTACHMENTS: Attachment A - License Agreement Report compiled on: March 27, 2017 50 License Agreement Page 1 of 10 AFTER RECORDING PLEASE RETURN TO: Robin Crough City Clerk, City of Bozeman PO Box 1230 Bozeman, MT 59771-1230 Attachment A LICENSE AGREEMENT FOR THE USE OF CITY PARK PROPERTY BY BoTrails, LLC This License Agreement (the “Agreement”) is an agreement between the City of Bozeman, a self governing municipality operating pursuant to its Charter and the laws of the State of Montana, with a mailing address of P.O. Box 1230, Bozeman, MT 59771 (the “City”) and BoTrails, LLC, with a mailing address of 206 10th Street, Unit B, Belgrade, MT 59714(hereinafter the “Licensee”, and together with the City the “Parties”). In consideration of Licensee’s promises herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Purpose. The City desires to authorize Licensee to access Bozeman Pond Park, located at 667 S. Fowler Av., 59718 (“Park Property”) for purposes of completing certain improvements to the Park Property, which shall constitute the elements of the “Park Project” as follows: a. Installation of 6-ft wide gravel path between the existing parking lot and the dog park (“Lewis and Bark Park”) entrance gate; b. Install gravel fines path around the shade pavilion in the dog park 2. Description of Park Property. The Park Property consists of the real Property as described in Exhibit A. 3. Title. Licensee hereby acknowledges this license grants a privilege and not an interest in the Park Property and the title of the City to the Park Property, and Licensee 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 Park Property by virtue of this Agreement or Licensee’s occupancy or use hereunder. The City may enter the site at any time to assert its real Park Property interest or for other purposes which do not unreasonably interfere with the activities of the Licensee. Upon termination of this Agreement, title to all permanent improvements on the Park Property and on public rights-of-way adjacent to the Park Property made by Licensee or its agents shall vest in the City, free and clear of all debts, liens and encumbrances. All other improvements of a 51 License Agreement Page 2 of 10 nonpermanent nature and all trade fixtures, machinery and furnishings made or installed by Licensee may be removed from the Park Property at any time unless such improvements are a component of the Park Project, or as otherwise agreed to by the City and such removal will not damage the realty and/or permanent improvements. 4. License. The City hereby grants permission, revocable and terminable as provided herein, during the period commencing April 4, 2017 until May 30, 2017 on the terms and conditions set forth herein, which Licensee promises to comply with and abide by to Licensee for Licensee’s fulfillment of its obligations, which Licensee promises to comply with and abide by. Such permission shall include the permission of Licensee to use the Park Property to fulfill its obligations and for no other purpose. The term of this License may be extended by mutual agreement of the Parties in writing. Licensee agrees to comply with all City ordinances and other rules and regulations regarding permits and approvals related to operations on the Park Property as well as those of any other governmental entity having jurisdiction. 5. Indemnification/Insurance. a. To the fullest extent permitted by law, Licensee, recognizing it exercises its privileges under this Agreement at its own risk, shall release, and shall protect, defend, indemnify, and hold harmless the City and its agents, 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 and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City, occasioned by, growing or arising out of or resulting from or in any way related to: (i) the occupation or use of the Park Property by Licensee; (ii) the negligent, reckless, or intentional misconduct of the Licensee, its officers, employees, or agents on or related to the Park Property; and (iii) any negligent, reckless, or intentional misconduct of any of the Licensee’s guests, invitees, contractors, or subcontractors on or related to the Park Property. 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 52 License Agreement Page 3 of 10 rights of the indemnitee(s) which would otherwise exist as to such indemnitee(s). Licensee’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should any indemnitee described herein be required to bring an action against the Licensee to assert its right to defense or indemnification under this Agreement or under the Licensee’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 Licensee was obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof. In the event of an action filed against the City, the City may elect to represent itself and incur all costs and expenses of suit. The obligations of this Section 5(a) shall survive termination of this Agreement. b. In addition to and independent from the above, during the term of this Agreement Licensee shall at Licensee’s expense maintain those insurances as may be required by 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 Licensee in Section 5(a). The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Licensee in Section 5(a). Within ten (10) days following execution of this Agreement, Licensee shall provide City with proof of such insurance in the form of a certificate of insurance, the insuring agreement and all applicable endorsements demonstrating that such insurance is in full force and effect and shall provide such proof when requested by the City thereafter during the term of this Agreement. The City may require additional evidence of the nature and scope of the insurance required herein. Licensee shall ensure such required insurance coverage is timely renewed so that there is no lapse in coverage during the time such insurance must remain in place. Licensee shall notify the City within two (2) business days of Licensee’s receipt of notice that any required insurance coverage will be 53 License Agreement Page 4 of 10 terminated or Licensee’s decision to terminate any required insurance coverage for any reason. The insurance and required endorsements must be in a form suitable to the City. c. Licensee shall obtain the following type of insurance in the amount indicated:  Workers’ Compensation: not less than statutory limits; and  Employers’ Liability: $1,000,000 each occurrence; $2,000,000 annual aggregate;  Commercial General Liability: $1,000,000 per occurrence; $2,000,000 annual aggregate;  Automobile Liability: $1,000,000 Park Property damage/bodily injury; $2,000,000 annual aggregate;  Additional coverage as may be reasonably required by the City from time to time. For liabilities assumed hereunder, the City, its officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General Liability and Automobile Liability policies. 6. Construction/Restrictions/Repair and Maintenance. a. Licensee shall, at its sole cost and expense, install and maintain in good condition a barrier fence or other suitable and customary barrier around the perimeter of any portion of the Park Property currently under construction by Licensee. The barrier shall be installed pursuant to a plan, approved in advance by the City’s Director of Parks and Recreation, or its designee. Any such barrier shall be provided for in a manner to ensure emergency responders’ access. b. For the use of any public rights-of-way or any real Park Property of the City other than the Park Property the Licensee shall obtain an encroachment permit from the City’s Director of Public Works or other applicable approvals. c. Licensee shall keep the adjacent private and public properties including streets, alleys, and sidewalks free from construction debris, snow, ice, and other materials stored or located on the Park Property. Sediment, rock, mud, ice, snow, and other debris entering upon public or private Park Property outside the Park Property from the Licensee’s project shall be cleaned or removed immediately. 54 License Agreement Page 5 of 10 d. Licensee agrees to immediately repair any damage caused by Licensee, its agents, invitees, guests, contractors or subcontractors to any public or private Park Property outside the Park Property including but not limited to streets, curbs, sidewalks, and other infrastructure to, for public infrastructure, the current City standard for that infrastructure and, for privately owned infrastructure, to a condition acceptable to the owner of such private infrastructure. Licensee agrees to timely comply with any request of the City to perform maintenance and repairs to streets, curbs, sidewalks and other infrastructure damaged by Licensee or Licensee’s agents, invitees, guests, contractors, or subcontractors. e. Any damage to the Site shall be repaired to a condition acceptable to the City. Maintenance or repair work to the Park Property shall be performed to the City’s reasonable satisfaction. 7. Waste, Nuisance, and Unlawful Use Prohibited. Licensee shall not commit, or suffer to be committed, any waste on the Park Property, nor shall Licensee maintain, commit, or permit the maintenance of any nuisance on the Park Property or use the Park Property for any unlawful purpose. Licensee shall not do or permit anything to be done in or about the Park Property which shall in any way conflict with any law, ordinance, rule, or regulation affecting the occupancy and use of the Park Property, which are or may hereafter be enacted or promulgated by any public authority. 8. Hazardous Materials. Licensee agrees and represents that it shall not store or dispose of on the Site any “Hazardous Materials” as defined by Federal, State or local law as from time to time amended. 9. Signage. Licensee, nor any of its agents may not install any signage except as authorized by the City’s Representative. 10. Termination. a. If Licensee fails to comply with any condition of this Agreement at the time or in the manner provided for, the City may, at its option, terminate this Agreement and be released from all obligations if the Licensee’s default is not cured within sixty (60) calendar days after written notice of the default is provided by the City to the Licensee. Said notice shall set forth the items to be cured. Notices shall be provided in writing and hand-delivered or mailed to the parties at the addresses set forth in the first paragraph of this Agreement. Failure to cure any default may result in an order by the City’s Representative for the Licensee to 55 License Agreement Page 6 of 10 cease all operations and remove all personal Park Property from the Park Property immediately. b. Licensee may terminate this Agreement upon thirty (30) days prior written notice to City. Upon termination, Licensee shall remove its equipment and improvements, and will restore the site to substantially the condition existing as of the commencement date of this Agreement, normal wear and tear excepted. 11. Due Diligence. Licensee shall at all times exercise due diligence in the protection of the City’s Park Property at the Park Property against damages. 12. Non-discrimination. Licensee agrees that all hiring by Licensee of persons performing this Agreement shall be on the basis of merit and qualifications. The Licensee 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. The Licensee shall require these nondiscrimination terms of its agents and sub- contractors providing services under this Agreement. 13. Amendment. This Agreement represents the entire understanding between the Parties regarding the subject matter and supersedes any prior agreement, verbal or written. 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. 14. Assignment. Licensee may not assign this Agreement in whole or in part and may not sublet all or any portion of the Park Property without the prior written consent of the City. No assignment will relieve Licensee of its responsibility for the performance of the Agreement (including its duty to defend, indemnify and hold harmless). This license shall not run with the land. 15. Waiver of Claims. Licensee waives all claims against City for injury to persons or Park Property on or about the Park Property or from its use of the Park Property. It shall be understood that the responsibility for protection and safekeeping of equipment and materials on or near the Park Property will be entirely that of the Licensee and that no claim shall be made against the City by reason of any act of an employee, officer, or, agent of the City or any trespasser. 16. Representatives. a. City’s Representative. The City Representative for the purpose of this Agreement shall be Carolyn Poissant, Manager of Trails, Open Space, and Parks Development, or her successor or designee. Whenever approval or 56 License Agreement Page 7 of 10 authorization from or communication or submission to City is required by this Agreement, 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 not available, Licensee may direct its communication or submission to other City personnel or agents and may receive approvals or authorization from such persons. b. Licensee’s Representative. The Licensee’s Representative for the purpose of this Agreement shall be Grant Best, owner of BoTrails, LLC. Whenever direction to or communication with Licensee is required by this Agreement, such direction or communication shall be directed to Licensee’s Representative; provided, however, that in exigent circumstances when Licensee’s Representative is not available, the City may direct its direction or communication to other designated employees or agents of Licensee. 17. Permits. Unless otherwise agreed to in writing by the parties, Licensee shall provide all notices, comply with all applicable federal, state, and local laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 18. Intoxicants; DOT Drug and Alcohol Regulations. Licensee shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, upon the Park Property. Licensee acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. The City shall have the right to request proof of such compliance and Licensee shall be obligated to furnish such proof. The City may order removal from the Park Property of any employee or agent of Licensee or any of its subcontractors for use of intoxicants on the Park Property. 19. Liens and Encumbrances. Licensee shall not permit any liens or encumbrances to be filed on the Park Property related to the Licensee’s use of the Park Property. Prior to the expiration of this Agreement or termination by the City or Licensee as provided herein Licensee shall furnish the City with satisfactory proof that there are no outstanding liens or encumbrances in connection with the Licensee’s use of the Park Property. 20. 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 57 License Agreement Page 8 of 10 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. 21. Survival. Licensee’s indemnification obligations shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 22. 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. 23. Waiver. A waiver by City of any default or breach by Licensee of any covenants, terms, or conditions of this Agreement does not limit City’s right to enforce such covenants, terms, or conditions or to pursue City’s rights in the event of any subsequent default or breach. 24. Severability. If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 25. Applicable Law. The Parties agree that this Agreement is governed in all respects by the laws of the State of Montana. Jurisdiction for any dispute or claim raised under this Agreement or proceeding brought to interpret the Agreement shall lie solely in the State of Montana, Gallatin County. 26. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 27. 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. 28. Counterparts. This Agreement may be executed in counterparts, which together constitute one instrument. 29. 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. 30. Independent Contractor. The Parties agree and acknowledge that in the performance of this Agreement Licensee shall not be considered an agent, representative, subcontractor, or employee of the City. The Parties further agree that all individuals and companies retained by Licensee at all times will be considered the agents, employees, or 58 License Agreement Page 9 of 10 independent contractors of Licensee and at no time will they be the employees, agents, or representatives of the City. 31. 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. 32. 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 Licensee. A copy of this recorded agreement shall be provided to the City’s Representative. ########### End of Agreement except for signatures ########### 59 License Agreement Page 10 of 10 Executed this _____ day of __________________, 2017. City: By: _____________________ Bozeman Acting City Manager STATE OF MONTANA ) : ss. County of Gallatin ) This instrument was acknowledged before me on the _____ day of ________________, 20___ by Chuck Winn, as Acting City Manager for the City of Bozeman, Montana. __________________________________________ Notary Public for the State of Montana Printed Name: _____________________________ (SEAL) Residing in________________________________ My Commission Expires:_____________________ BoTrails, LLC (Licensee) By: _______________________ STATE OF MONTANA ) : ss. County of Gallatin ) This instrument was acknowledged before me on the _____ day of ________________, 20___ by __________________________________________. __________________________________________ Notary Public for the State of Montana Printed Name: _____________________________ (SEAL) Residing in________________________________ My Commission Expires:_____________________ 60 Exhibit A - License Agreement EXHIBIT A (Legal Description of Park Property) Legal Description Lot 2 of the Amended Plat of Tract B-1 of the Amended Van Horn Subdivision (E-39-B) and Lot 4A Amended Van Horn Subdivision (E-39-C) ), located in the city of Bozeman, Montana according to the official survey thereof on file and of record in the office of the County Clerk and Recorder, Gallatin County, Montana. 61