HomeMy WebLinkAbout17- License Agreement - BoTrails, LLC - Use of City Property at Bozeman Pond ParkAFTER 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 PARI{ 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 10" 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 encurnbrances. All other improvements of a
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nonpermanent nature and all rade 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.
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 oil the Park Property as well as
those of any other governmental entity having jurisdiction.
6 Indemnification/Insurance.
s 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
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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.
® 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 require(_[ 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
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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.
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.
9 Construction/Restrictions/Repairand Maintenance.
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,
® 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.
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.
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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.
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.
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.
® 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.
® Signage. Licensee, nor any of its agents may not install any signage except as
authorized by the City's Representative.
a Termination.
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
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cease all operations and remove all personal Park Property from the
Park Property immediately.
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.
Flue Diligence. Licensee shall at all times exercise due diligence in the protection of
the City's Park Property at the Park Property against damages.
• 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.
• 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.
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.
• 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.
• Representatives.
• 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
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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.
® 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.
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.
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.
® 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.
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
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the negotiated settlement discussions. If the patties are unable to resolve the dispute within
thirty
(30) clays 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.
® Survival. Licensee's indemnification obligations shall survive the termination or
expiration of this Agreement for the maximum period allowed under applicable law.
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.
® 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.
• Severability. If any portion of this Agreement is held to be void or unenforceable,
the balance thereof shall continue in effect.
• 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.
Binding Effect: This Agreement is binding upon and inures to the benefit of the
heirs, legal representatives, successors, and assigns of the parties.
• 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.
• Counterparts. This Agreement may be executed in counterparts, which together
constitute one instrument.
• 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.
• 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
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independent contractors of Licensee and at no time will they be the employees,
agents, or representatives of the City.
• 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.
6 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 ###########
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Execu7kikL
day of 2017.
City:
By: (�1 Bozeman G rCAM- WiAn
Acting City Manager
STATE OF MONTANA
ss.
County of Gallatin ) D li
lo, qPYil
This instrument was acknowledged before me on theday of_, 20 Irby Chuck Winn, as
Acting City Manager for the City of Bozeman, Montana.
•" ��ICF/' PEARL MICHALSON
Notary Public
for the State Montana
Noy :
of
,,',..SEAL. j-
Residing at:
Bozeman, Montana
""OFMO(c?;'
My Commission Expires:
",,,,,,I
March 10, 2020
BoTrails, LLC
(Licensee)
By.
STATE OF MONTANA
Notary Public for the State of Montana
Pri nted Name: Peo.t- L M; &6.1 sow
(SEAL) Residing in-L�'Xivvumy
Commission Expires: 3 (Ye ILA)
ss.
County of Gallatin )
IFTM L
This instrument was acknowledged before me on thy of , 20J_Iby YQI�Sl
`••�ti Whi ERIN WHITE
•�P.... , T�;, Notary Public
: ,ao1As1j4. : for the State of Montana
,`N. SEAL.- Three Forks, Montana Notary Public for the State of Montana
",?Pc My Commission Expires: 'Printed Name:
November 10, 2018
(SEAL) Residing in_ My
Commission Expires:
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EXHIBIT A
(Legal Description of Park Property)
1, >g 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.
Exhibit A - License Agreement