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HomeMy WebLinkAbout09-10-18 City Commission Packet Materials - C5. Land Use Agreement Renewal with GVLT and Bozeman Health for Nature Trails Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Mitch Overton, Parks and Recreation Department Director Chuck Winn, Assistant City Manager SUBJECT: Renewal of Land Use Agreement between City of Bozeman, Gallatin Valley Land Trust and Bozeman Health for Trails in the Highland Glen Nature Preserve MEETING DATE: September 10, 2018 AGENDA ITEM TYPE: Consent RECOMMENDED MOTION: I move to authorize the City Manager to sign the Land Use License between Bozeman Health, Gallatin Valley Land Trust and City of Bozeman for continued use of Bozeman Health property for trails in the area known as Highland Glen Nature Preserve. BACKGROUND: On May 20, 2013 the City of Bozeman entered into land use license agreement with Bozeman Health (Deaconess) and the Gallatin Valley Land Trust (GVLT) to construct and manage trails on hospital property to be named Highland Glen Nature Preserve. Highland Glen has been a successful trail project with the trails utilized 12 months a year, including a partnership with the Bridger Ski Foundation (BSF) to groom Nordic trails in Highland Glen in the winter months. An extension to the Land Use License was granted on October 14, 2016. Bozeman Health has no immediate plans to develop this particular property and given the success of the trails and benefit to the community, Bozeman Health is offering a five-year renewal to the Land Use License. UNRESOLVED ISSUES: None, this partnership has been successful for the previous five years. ALTERNATIVES: As recommended by Commission FISCAL EFFECTS: The trails do fall within the city limits, therefore city ordinances do apply and staff may be needed at times to enforce such ordinances. Attachments: Land Use License Agreement (Renewal) Report compiled on: August 30, 2018 94 1 LAND USE LICENSE THIS LAND USE LICENSE (this “License”) is given by Bozeman Deaconess Health Services, d/b/a Bozeman Health, whose address is 915 Highland Boulevard, Bozeman, Montana 59715 (hereinafter referred to as the "Licensor") to Gallatin Valley Land Trust, whose address is 212 South Wallace, Suite 102, P.O. Box 7021, Bozeman, Montana 59771 (hereinafter referred to as "GVLT") and the City of Bozeman, whose address is 121 North Rouse, Bozeman, Montana 59715 (hereinafter referred to as the “City”). Reference herein to “Licensees” shall mean collectively GVLT and the City. RECITALS A. The Licensor owns and possesses certain real estate in Bozeman, Montana which land is particularly described on Exhibit A attached hereto (referred to as the “BH Land”); B. The Licensor and Licensees previously entered into a Land Use License (referred to as the “Original License”) for the purposes of developing non-motorized trails for pedestrian and bicycle use by the general public on a portion of the BH Land known as the “Highland Glen Nature Preserve” which Original License expired on October 15, 2016; C. The Licensor granted a temporary extension of the Original License to Licensees on October 14, 2016 to allow time for the parties to negotiate a new license agreement; D. The Licensor also entered into a Trail Construction Agreement with GVLT on May 11, 2013 giving GVLT permission to construction and develop certain trails on the BH Land as envisioned by the Original License (referred to as the “Trail Construction Agreement”); E. Under the Original License and Trail Construction Agreement, the trails within the area known as “Highland Glen Nature Preserve” were successfully constructed, safely utilized by the public, and have become an important part of the City’s trail system; and F. The Licensees now wish to enter into this new Land Use License to continue utilizing the area known as “Highland Glen Nature Preserve” on the BH Land to offer the general public access to and upon the existing trails located thereon subject to the terms and conditions set forth herein. NOW THEREFORE, the parties agree to the following terms and conditions: 1. Incorporation of Recitals. The parties agree that the foregoing recitals are true and correct, and shall be incorporated herein by this reference. 2. License for Trails; Description and Location. In consideration of GVLT’s and the City’s promises herein, Licensor gives permission, revocable and terminable as hereinafter provided to Licensees to use the area known as “Highland Glen Nature Preserve” on the BH Land (as depicted on the Exhibit B attached hereto and incorporated herein by this reference) (referred to as the “License Area”), for the purpose of maintenance and management of existing non-motorized trails for pedestrian and bicycle use by the general public as a part of and an extension of the City’s trail system, subject to the terms and conditions as set forth herein. Licensees, by affixing their authorized signatures to this License, promise to comply with and abide by the terms and conditions herein. 95 2 3. Term. The term of the License will commence on the execution of this Agreement and will continue for five (5) years thereafter unless earlier revoked or terminated by Licensor as provided herein. 4. Licensees’ Responsibilities. Licensees’ responsibilities under this License shall be allocated between them as follows: a. GVLT shall be responsible for the following: i. Physically maintaining and repairing the trails and related infrastructure such as bridges, culverts, fencing, and gates within the License Area in a safe condition for non-motorized recreational use by the general public; ii. Locating and constructing trails and related improvements within the License Area authorized by this License; iii. Controlling noxious weeds along the trail corridors within the License Area; iv. Providing proper signage for the safe use of the trails within the License Area by the public; and v. Picking up litter caused by the public. b. The City shall be responsible for the following subject to the qualification in section c. below: i. Managing public use of the trails within the License Area in accordance with the rules, regulations, procedures and practices that apply to the City’s system of public pedestrian and non-motorized use trails; ii. Assisting with any parking problems associated with the use of the trails within the License Area; and iii. Ensuring that trails are utilized during a time that does not interfere with the quiet enjoyment of surrounding neighborhoods. c. GVLT and Licensor recognize the City has limited resources to manage public use on trails developed on the BH Land. As such, GVLT and Licensor agree the City’s monitoring and inspections of trails, trail related infrastructure, and public use will be infrequent and not regularly scheduled. While the City agrees to manage public use of the trails on the BH Land within the License Area in accordance with the rules, regulations, procedures and practices that generally apply to the City’s system of public pedestrian and non-motorized trails and Licensor authorizes such oversight, Licensor and GVLT agree the City shall not be responsible for actively monitoring the public’s use of the trail system. 5. Title to Property. Licensees hereby acknowledge the title of Licensor in and to the BH Land and agree never to assail or to resist the title. 6. Prior Title Rights. All rights herein provided to Licensees are subject to all existing rights, rights of way, reservations, and easements by whomever held in and to the BH Land. 7. Limitation of Public Access. Nothing herein shall be construed as a grant to the general public, or to a person or persons, of the right to enter upon any part of the BH Land other than the License Area for uses described herein. 8. Use of License Area by Licensor. Except for the rights expressly provided to Licensees herein, Licensor reserves to itself, its representatives, successors and assigns all other rights arising out of the 96 3 ownership of the BH Land and the License Area, including, without limitation, the right to use the License Area for purposes which will not unreasonably interfere with the Licensees’ enjoyment of the rights provided by this License. In particular, Licensor reserves the right enter into separate agreements with the Bridger Ski Foundation, or other organizations, to provide winter recreational use opportunities including cross-country ski trails on the License Area. 9. Limitation on Liability. Licensor shall enjoy the limitations on legal liability involving recreational use of the License as provided for in Sections 70-16-301 and 70-16-302 of the Montana Code Annotated, and nothing herein shall be deemed to limit Licensor’s rights under said statutes. 10. Farm Leases. Licensees understand and acknowledge that historically the Licensor has leased portions of the BH Land adjacent to the License Area to third parties for growing crops and livestock grazing. Licensees agree that the uses permitted by this License shall not interfere with the rights of any third party holding a farm lease on the BH Land (referred to as “Farm Leases”). Licensor hereby represents and warrants to Licensees, however, that any third party holding a Farm Lease shall have no right to object to, or to prevent, Licensees’ exercise of the rights and privileges conferred under this License. Licensor is responsible for notifying any Farm Lease lessee of the existence of this License and of its terms and conditions. 11. Drainage Sensitive Area. Licensees agree that trail system near and adjacent to the Drainage Sensitive Area marked on Exhibit B shall be used and maintained in a manner as to not cause drainage issues for the buildings and any other improvements on the adjacent property. Licensees, at their expense, shall make improvements to the trail system near the Drainage Sensitive Area as necessary to prevent damage to the buildings and other improvements on the adjacent property. 12. Trail Changes. GVLT shall obtain Licensor’s prior written consent to any material improvements, changes, modifications or additions to the existing trail system within the License Area. 13. Insurance. GVLT shall maintain comprehensive and general liability insurance in the amount of at least $1,000,000.00 per claim and $3,000,000.00 in aggregate insuring GVLT against loss and liability for damages including, but not limited to, personal injury, death, or property damage arising out of or in connection with GVLT’s location, construction and physical maintenance of the trail system on BH Land by GVLT or those under its direction or with its permission. As partial consideration for this License, GVLT’s general liability policy must name Licensor, the City, and any additional lessees as an “Additional Insured” party, and GVLT must provide Licensor with written evidence of such coverage upon receipt of Licensor’s request. In addition, the policy or policies shall contain a provision that no cancellation thereof shall be effective by the insurer without thirty (30) days written notice to Licensor. 14. Indemnification. Licensees will defend, indemnify and hold harmless the Licensor, its officers, agents, and employees, against and from any and all actions, suits, judgments, claims, demands, costs, expenses (including attorney's fees) and liabilities of any character whatsoever, brought or asserted for injuries to, or death of any person or persons or damages to property arising out of, resulting from, or occurring in connection with Licensee’s responsibilities, as set forth in Paragraph 4, and other obligations under this License. 15. Revocation. This License may be revoked, suspended or modified at the will of the Licensor under the following circumstances: 97 4 a. upon thirty (30) days written notice of a material breach of any of the terms and conditions herein and Licensees failure to cure; or b. upon one hundred eighty (180) days’ written notice in the event Licensor includes all or any portion of the License Area in a plan for higher and better use, development, land exchange or sale; or c. in the case of an emergency, at any time without giving any notice. 16. Revocation. Upon revocation, surrender or termination of this License, it is expressly understood and agreed that Licensees will leave all trail facilities in a clean, safe and sanitary manner, at no cost to Licensor, and shall comply with all ordinances, conditions, statutes and regulations applicable thereto. If GVLT and /or the City fail to comply with the terms of this Paragraph 16, Licensor may undertake all actions and expenses necessary to restore the trail system and its facilities to a clean, safe, functional condition and shall be entitled to reimbursement of such costs and expenses from GVLT and/or the City. 17. Notice. Written notice shall be deemed to have been received when the same is deposited in the United States Mail, properly addressed, postage prepaid, certified mail, return receipt requested. Notice to GVLT shall be directed to: Gallatin Valley Land Trust 212 S Wallace, Suite 102 Bozeman, MT 59715 Notice to The Licensor shall be directed to: Bozeman Health Attn: Darci Bentson, Chief Legal Officer 915 Highland Blvd. Bozeman, MT 59715 Notice to the City shall be directed to: City of Bozeman Attention Director of Parks and Recreation PO Box 1230 Bozeman, MT 59771-1230 18. Amendment. Any amendment or modification to this License or any provision herein shall be made in writing and executed in the same manner as the original document and shall after execution become a part of this License. 19. Assignment. GVLT's privileges hereunder shall not be assignable by GVLT, in whole or in part, except to the City. Notwithstanding any provision in this License that may be construed to the contrary, however, Licensor understands and agrees that GVLT’s trail development and maintenance is intended to be for the benefit and use of the general recreating public. 20. Governing Law. In the event any dispute arises over the interpretation or enforcement of the terms and conditions of this license, the laws of the State of Montana shall govern resolution of such dispute. 98 5 21. Attorney’s Fees. In any action brought by Licensor or Licensees to enforce any of the terms of this License, the prevailing party in such action shall be entitled to recover its reasonable attorney fees and costs from the non-prevailing party(ies). 22. Binding Effect. The rights, conditions and provisions of this License shall inure to the benefit of, and be binding on, the successors and assigns of the parties hereto. 23. Entire Agreement. This license sets forth the entire agreement of the parties and supersedes all prior discussions, negotiations, understandings, or agreements, all of which are merged herein. The parties agree that the Recitals are true and correct and accurately reflect their intentions as of the date of this license. 24. Waiver. Licensor’s failure to require strict compliance with the terms and conditions of this License or to exercise any right provided herein, shall not be deemed a waiver of Licensor’s rights herein with respect to revoking or terminating this License. 25. Execution. This License shall not be deemed effective until all parties named have executed the agreement. 26. Counterparts. This License may be executed simultaneously in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 27. Severability. If a part of this License is invalid, all valid parts that are severable from the invalid part shall remain in effect. 28. Time. Time is of the essence to the terms of this License. 29. Authority. Each party hereto expressly warrants and represents that the person signing this License below has actual authority to bind the entity for which he or she signs for the term of and to the conditions of this License, and upon request, each shall furnish the other party with appropriate resolutions authorizing the execution of this license by the party signing below. 99 6 IN WITNESS WHEREOF, we have hereunto set our hands and seals on the dates subscribed below. GALLATIN VALLEY LAND TRUST By: ________________________________ Its: ________________________________ Date:_______________________________ BOZEMAN DEACONESS HEALTH SERVICES d/b/a BOZEMAN HEALTH ________________________________ John G. Hill Chief Executive Officer Date:____________________________ BOZEMAN DEACONESS HEALTH SERVICES d/b/a BOZEMAN HEALTH ________________________________ Darci Bentson Chief Legal Officer Date:____________________________ CITY OF BOZEMAN By: ________________________________ Its: ________________________________ Date:_______________________________ 100 7 EXHIBIT A BH LAND DESCRIPTION Tract 3A of Minor Subdivision No. 162C, to the City of Bozeman, Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder Gallatin County, Montana. 101 8 EXHIBIT B LICENSE AREA MAP 102