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HomeMy WebLinkAbout01-13-20 City Commission Packet Materials - C5. License Agreement with Merin Property Owner, LLC and Dick Anderson Construction1 Commission Memorandum REPORT TO: City Commission FROM: Dennis Taylor, Interim City Manager Greg Sullivan, City Attorney SUBJECT: Authorize City Manager to Sign License Agreement with Merin Property Owner, LLC and Dick Anderson Construction for Use of Community Gardens for Construction Staging for the Merin Building. MEETING DATE: January 13, 2020 AGENDA ITEM TYPE: Consent RECOMMENDED MOTION: I move to authorize the City Manager to sign the License Agreement with Merin Property Owner LLC and Dick Anderson Construction for staging of construction for the Merin Building. BACKGROUND: The owner of the real property to the west of City Hall requests the City agree to allow use of the western most 20 feet of the City owned property where the Community Garden is located for staging of construction for the Merin Building. The most relevant terms of the proposed license are: • Licensees’ occupation ends April 1, 2021 unless extended by agreement of the City Manager; • Payment of $500.00 per month; • Payment of $2,000.00 administrative costs for developing the agreement and monitoring licensees’ compliance with the terms of the agreement; • Adequate liability insurance; and • $50,000.00 performance bond for restoration of the Community Garden. The attached License Agreement is similar to agreements for construction staging the City has entered into with other property owners at the City’s surface parking lots adjacent to Mendenhall Street for the Armory Hotel and the 5 West buildings. 80 2 Parks and Recreation Director Mitch Overton has communicated with residents who used the Community Garden in 2019 regarding the property owner’s request. The City’s decision is discretionary; it is not related to the City’s regulatory review of the Merin Building site plan. The City’s decision in in its capacity as owner of the real property. In addition, the property owner requests an encroachment permit to close certain portions of adjacent streets and the alley to the west of City Hall. The encroachment permit is within the discretion of the City’s Director of Public Works. NEXT STEPS: After review and approval of the required insurance and restoration bond, the city manager will be authorized to enter into the agreement for the licensees’ use of the property pursuant to the terms of the license. Oversight of the licensees’ use of the property will be the responsibility of the City’s Parks and Recreation Department in coordination with other City staff. UNRESOLVED ISSUES: The interim City Manager has not identified other pressing needs for the Community Garden during the term of the license. Staff will ensure the Community Garden is restored for use in 2021 unless the Staff identify other preferred uses; if so, the City may restore the property for other uses. FISCAL EFFECTS: The City receives approximately $1,000 per year in revenue from residents’ use of the Community Garden. The proposed agreement recovers this lost revenue, requires payment of $500 per month for the use of the property and also recovers administrative costs related to developing this agreement and monitoring the licensees’ compliance. ALTERNATIVES: As suggested by the City Commission. Attachments: License Agreement for the Use of City Hall Community Garden 81 Licensee Agreement for City of Bozeman Real Property Page 1 of 18 AFTER RECORDING PLEASE RETURN TO: City Clerk PO Box 1230 Bozeman, MT 59771-1230 LICENSE AGREEMENT FOR THE USE OF CITY OF BOZEMAN PROPERTY BY MERIN PROPERTY OWNER, LLC AND DICK ANDERSON CONSTRUCTION THIS LICENSE AGREEMENT (the “Agreement”) is an agreement between the City of Bozeman, with a mailing address of P.O. Box 1230, Bozeman, MT 59771 (the “City”), Merin Property Owner, LLC (hereinafter “MPO”) with a mailing address of 20 North Tracy, Bozeman, MT 59715, and Dick Anderson Construction, with an address of 88 Bull Trout Rd, Bozeman, MT 59718, hereinafter (“Dick Anderson”). MPO and Dick Anderson Construction are referred to collectively as the “Licensees” and the City, Merin Property Owner, LLC and Dick Anderson Construction referred to collectively as the “Parties.” Whereas, the City is the owner of certain real property located in the City of Bozeman, Montana, described with more particularity below, and which currently contains a community garden (“Community Garden”); and Whereas, MPO is constructing the The Merin located at 116 N. Bozeman, Bozeman, MT (the “Project”) and desires to use a portion of the Community Garden for construction purposes; and Whereas, MPO has contracted with Dick Anderson as its general contractor and may contract with others to provide construction and related services for the Project and the City understands contractors, their subcontractors and other entities contracted with or hired by Licensees will use a portion of the Community Garden (the “Licensed Property”) as specifically defined herein during the term of this Agreement; and Whereas, the Licensees acknowledge the City’s use of its property including use as a Community Garden may continue on the City’s property in areas not subject to this License during 82 Licensee Agreement for City of Bozeman Real Property Page 2 of 18 construction and respects the City’s use of its facilities as paramount to that of the Licensees at all times. Now therefore, in consideration of Licensee’s promises herein, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, the City hereby grants permission, revocable and terminable as hereinafter provided, to the Licensees for their use of the Licensed Property for the Project, during the period commencing upon execution by the City Manager of this Agreement to April 1, 2021 on the terms and conditions set forth below, which Licensees promise to comply with and abide by. Licensees specifically agree the Licensed Property may not be fenced off until City Commission approval of this License Agreement. Licensees must provide the City’s Representative 48 hour written notice prior to closure. 1. Description of Community Garden. The Community Garden is located on the following real property: Lots 33-34, & 12’ WS of Lot 32, Block I of Bozeman Original Plat, City of Bozeman, County of Gallatin, State of Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder, Gallatin County, Montana. 2. Description of Licensed Area. The Licensed Property is shown on Exhibit A attached to this License and includes the western 20 feet of the Community Garden property from the northern boundary to the southern boundary. No other portion of the Community Garden property may be occupied by Licensees without prior written approval of the Bozeman City Manager. 3. Rent/License payment. a. This Agreement and the license is provided to Licensees for a monthly license payment (“Rent”) of Five Hundred Dollars ($500.00) per month, payable by MPO in advance on or before the first day of each month during the term of this Agreement. Failure of MPO to pay on or before the first day of each month is cause for immediate termination of the license granted by this Agreement without notice to MPO and in such a case, MPO must immediately halt all use of the Licensed Property. Any partial month of occupancy of the Licensed Property shall be prorated by multiplying the Rent by the result of the number of days included in the term for said month divided by the total number of days in the same month. 83 Licensee Agreement for City of Bozeman Real Property Page 3 of 18 b. In addition, prior to Licensees’ occupation of the Licensed Area, Licensees must pay the City a payment of $1,000.00 equal to lost revenue from the Community Garden for the year 2020. This payment must be made prior to Licensees’ occupation of the Licensed Property. c. Prior to occupation of the Licensed Property, Licensees shall pay a one-time payment of $2,000.00 to reimburse the City for administrative costs related to entering into this License Agreement. 4. Extensions/Costs. Licensees agree that any request for extension of the term of this Agreement and the license it provides beyond April 1, 2021 is at the sole discretion of the City and, if the City determines to authorize an extension, any extension shall result in, at a minimum, the following: a. Require an addendum to this Agreement signed by the Bozeman City Manager no later than 30 days prior to April 1, 2021; b. Require Licenses to pay an additional $1000.00 administrative charge for such addendum; c. Require the ongoing payment of rent pursuant to Section 3.a; and d. Require an additional payment of $1,000.00 for lost revenue from the Community Gardens for the year 2021. Should Licensees request an extension of this Agreement and the license it provides, the City may require additional conditions including the payment of costs not mentioned herein. 5. Title. Licensees hereby acknowledge this Agreement grants a privilege and not an interest in real property or the title of the City to the Licensed Property and Licensees agree never to deny such title or claim, at any time, or claim any interest or estate of any kind or extent whatsoever in the Licensed Property by virtue of this Agreement or Licensees’ occupancy or use hereunder. The City may enter the Licensed Property at any time to assert its real property interests or for other purposes which do not unreasonably interfere with the activities of Licensees. Upon termination of this Agreement, title to all permanent improvements on the Licensed Property and improvements on public rights-of-way adjacent to the Community Garden made by Licensees or any of its contractors shall vest in City, free 84 Licensee Agreement for City of Bozeman Real Property Page 4 of 18 and clear of all debts, liens and encumbrances. All other improvements of a nonpermanent nature and all trade fixtures, machinery and furnishings made or installed by Licensees may be removed from the Licensed Property at any time unless such removal will damage the realty and/or permanent improvements of the Licensed Property. 6. License. The City hereby grants exclusive permission, revocable and terminable as provided herein, to Licensees for Licensees’ use of the Licensed Property for the Project, during the term listed above and only on the terms and conditions set forth herein or reasonable orders of the City’s authorized representatives made from time to time, which Licensees promise to comply with and abide by. Such right shall include the right to use the Licensed Property for purposes of providing Licensees a staging area for storage of construction materials and construction equipment for construction of the Project. Licensees agree to comply with all City ordinances and other rules and regulations regarding permits and approvals related to operations on the Community Garden as well as those of any other governmental entity having jurisdiction. Licensees use of the Licensed Property must not interfere with the City’s or its permittees’ use of the Community Garden are not subject to this License. 7. Indemnification/Insurance. a. To the fullest extent permitted by law, Licensees recognizing they exercise their privileges under this Agreement at their own risk, shall release, and shall protect, defend, indemnify, and hold harmless the City, and their 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, regardless of the cause or causes thereof or the negligence of any party or parties that the above may be asserted against, recovered from or that may be suffered by the City and its 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 Licensed Property by Licensees; (ii) the negligent, reckless, or intentional misconduct of Licensees, their officers, employees, or agents on or related to the Licensed Property; (iii) any negligent, reckless, or intentional misconduct of any of Licensees’ guests, invitees, contractors, or subcontractors on or related to the Licensed Property; and (iv) the negligent, reckless, or intentional misconduct of any other third party with respect to use of the Licensed Property. 85 Licensee Agreement for City of Bozeman Real Property Page 5 of 18 Licensees’ obligations 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). Licensees’ indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City and its agents, representatives, employees, and officers described herein be required to bring an action against Licensees to assert its right to defense or indemnification under this Agreement, the City, and their agents, representatives, employees, and officers 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 Licensees were obligated to defend the claim(s) or were obligated to indemnify the City and their agents, representatives, employees, and officers for a claim, demand, action, etc. or any portion(s) thereof. In the event of an action filed against the an indemnitee resulting from the Licensees performance under this Agreement, the indemnitee may elect to represent itself and incur all costs and expenses of suit. These obligations shall survive termination of this Agreement for the statute of limitations period of any such claims, demands, actions, etc. Licensees shall include in all their contracts, agreements, work orders, services orders or any other written or oral requests for work on the Project wherein such work or actions occurs in any part on the Licensed Property that any such contractor, person or entity performing any such work on the Licensed Property fully releases the City and its agents, representatives, employees, and officers in writing to the same extent and under the same terms and conditions as Licensees are required pursuant to this Agreement and waive all claims of any kind or nature against the City and its agents, representatives, employees, and officers to the same extent as Licensees are required pursuant to Section 19 of this Agreement. The City and its agents, representatives, employees, and officers may require Licensees to provide evidence that any of Licensees’ contractors 86 Licensee Agreement for City of Bozeman Real Property Page 6 of 18 or persons or entities conducting work on the Licensed Property has provided such written release and waiver. b. In addition to and independent from subsection (a), above, during the term of this Agreement Licensees shall, at Licensees’ 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 with a Best’s rating of no less than A- which insures the liabilities and obligations specifically assumed by Licensees in subsection (a) of this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Licensees in subsection (a) of this Section nor for any of Licensees’ activities on the Licensed Property. Licensees shall notify the City’s Representative sixty (60) days prior to the expiration of any such required insurance coverage and 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. Licensees shall notify the City’s Representative within two (2) business days of Licensees’ receipt of notice that any required insurance coverage will be terminated or Licensees’ decision to terminate any required insurance coverage for any reason. The insurance and required endorsements must be in a form suitable to the City. The Licensees agree they may not occupy the Licensed Property until such insurances are approved by the Bozeman City Attorney. MPO shall obtain the following type of insurance in the amount indicated: • Workers’ Compensation – not less than statutory limits; • Employers’ Liability - $1,000,000 each accident/$1,000,000 disease policy limit/$1,000,000 disease – each employee • Commercial General Liability - $1,000,000 per occurrence; $5,000,000 annual aggregate for bodily injury and property damage; • Contractual Liability Insurance - $2,000,000 per occurrence $5,000,000 aggregate; and • Additional coverage as may be required by the City. The City, their officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non-contributory basis on Merin 87 Licensee Agreement for City of Bozeman Real Property Page 7 of 18 Property Owner, LLC’s Commercial General Liability and Contractual Liability policies. Dick Anderson shall obtain the following type of insurance in the amount indicated: • Workers’ Compensation – not less than statutory limits; • Employers’ Liability - $1,000,000 each accident/$1,000,000 disease policy limit/$1,000,000 disease – each employee • Commercial General Liability - $3,000,000 per occurrence; $5,000,000 annual aggregate for bodily injury and property damage; • Contractual Liability Insurance (covering the Licensee’s indemnity obligations described in this Agreement) - $3,000,000 per occurrence $5,000,000 aggregate; and • Additional coverage as may be required by the City. The City, their officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non-contributory basis on Dick Anderson’s Commercial General Liability and Contractual Liability policies. 8. Construction/Restrictions/Repair and Maintenance. a. Licensees may, at its sole expense and subject to approval from the City’s Representative, modify, supplement, replace, and upgrade the Licensed Property at reasonable times during the term of this Agreement, so long as such activity is consistent with the permitted uses and in no way interferes with the use of the Community Garden as a public gardening space upon expiration or termination of this Agreement. Any improvements or modifications required for installation or operation of equipment, as well as utility provisions and service, must conform to applicable regulations, specifications, codes and all standard engineering requirements, in addition to all terms of this Agreement. b. Licensees must maintain, at their sole cost and expense, the Licensed Property in a presentable condition consistent with good business practice and in a safe, neat, and good physical condition and free of garbage and graffiti. c. Licensees must, at their sole cost and expense, install and maintain in good condition a barrier fence around the perimeter of the Licensed Property. The fence shall be located up to but not on the sidewalk on Lamme except as allowed 88 Licensee Agreement for City of Bozeman Real Property Page 8 of 18 pursuant to the encroachment permit granted by the Public Works Department of the City of Bozeman. The fence shall be installed pursuant to a plan, approved in advance by the City’s Representative. Said fence shall contain a shield or barrier that will protect the area outside the Community Garden from debris and hazards. The fence shall be secured with Knox padlocks to ensure emergency responders’ access. d. Any additions or changes to the existing ingress or egress on the Licensed Property must be approved in advance by the City’s Representative. e. Licensees may not locate the base of a crane on the Licensed Property without prior approval of the City Manager. Licensees may, however, unload materials from a truck located on the Licensed Property using a crane located off the Licensed Property. Notwithstanding the above, for any crane use including offloading of materials and prior to such use, Licensees must provide liability insurance specifically for the operation of the crane in an amount satisfactory to the Bozeman City Attorney. f. For the use of any public rights-of-way or any real property of the City other than the Licensed Property, Licensees must obtain an encroachment permit from the Director of Public Works and comply at all times with all requirements of such permit. Failure to comply with the requirements of the encroachment permit may be deemed by the City to be a breach of the requirements of this Agreement. g. Licensees must keep adjacent private and public properties including streets, alleys, and sidewalks free from construction debris, snow, ice, and other materials stored or located on the Licensed Property. Sediment, rock, mud, ice, snow, and other debris entering upon public or private property outside the Licensed Property from the Project shall be cleaned or removed immediately. Snow and ice accumulating on the Licensed Property must be removed from the Licensed Property on a regular basis. Licensees shall be responsible for ensuring the sidewalks adjacent to the Licensed Property on Lamme are reasonably safe for pedestrians and as such shall ensure without limiting its duties under this Agreement that all snow and ice is removed from the sidewalks adjacent to the Licensed Property on Lamme pursuant to the requirements of the Bozeman Municipal Code. 89 Licensee Agreement for City of Bozeman Real Property Page 9 of 18 h. Licensees agree to immediately repair any damage caused by Licensees, their agents, invitees, guests, hires, contractors or subcontractors to any public or private property outside the Licensed 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. Licensees agree to timely comply with any request of City’s Representative or others with the City including the Director of Public Works to perform maintenance and repairs to streets, curbs, sidewalks and other infrastructure damaged by Licensees or their agents, invitees, guests, hires, contractors, or subcontractors. i. Any damage to the Licensed Property shall be repaired to a condition acceptable to the City’s Representative. Maintenance or repair work to the Licensed Property shall be performed to the City’s reasonable satisfaction. 9. Restoration. a. Within 30 days upon completion of the Licensees’ use of the Licensed Property or within 30 days of termination of this Agreement pursuant to Section 13, whichever is earlier, and under no circumstances later than April 1, 2021, the Licensees shall cause the Licensed Property to be fully restored to the condition existing at the date of execution by the City including reinstallation of personal property of the City removed by Licensees. Restoration is at the discretion of the City and may include but is not limited to such reinstallations and also grading, repairs to failed sub-grade, reconstruction of accesses, fencing, water systems, and raised garden plots including reinstallation of organic soils. In addition, Licensees shall restore damage it or its agents, invitees, guests, hires, contractors or subcontractors cause to the streets, curbs, sidewalks, and other public or private infrastructure adjacent to the Licensed Property to a condition as good or better than existed prior to Licensees’ occupation of the Licensed Property. All work to restore the Licensed Property shall comply with applicable building codes and the City’s design and construction standards, except to the extent that the Existing Condition, as explained below, does not comply with such codes and standards. Licensees may be required to enter into a contract with the City for such work. Licensees may cause their contractors or other agents to conduct such restoration but in no case shall Licensees be relieved of its obligation under this Section until such restoration is accepted by the City. 90 Licensee Agreement for City of Bozeman Real Property Page 10 of 18 b. Prior to Licensees occupying the Licensed Property, the City’s Representative and Licensees shall perform an inspection of the Licensed Property and adjacent public and private infrastructure with video and/or photographs to record the condition of the Licensed Property and/or public or private infrastructure (the “Existing Condition”). c. The City retains the right to approve any plans for and to inspect work done under this Section. d. The City and Licensees may enter into an agreement prior to the expiration of the term of this Agreement or prior to the end of Licensees’ occupation of the Licensed Property regarding restoration of the Licensed Property to a condition different from the Existing Condition. Such agreement may address: (i) improvements to the Site in addition to or different than the Licensees’ obligations for restoration/repair under this Agreement; (ii) the City’s contribution of funds to such improvements; and (iii) other duties and obligations of the Licensees regarding restoration and repair of the Licensed Property. Nothing in such an agreement will reduce the obligations of Licensees under this Agreement. e. Site Restoration Security. The Licensees, or any one of them, shall provide the City security for Licensees’ restoration requirement through a form acceptable to the Bozeman City Attorney. Licensees may provide a cash deposit, a letter of credit, or obtain a good and sufficient site restoration performance bond payable to the City of Bozeman. The security shall be for the complete restoration of the Site as required by this Section in an amount equal to fifty thousand dollars ($50,000.00). Such security shall be conditioned on the City’s determination whether required restorations have been satisfactorily completed. Licensees may substitute such security upon a written requested directed to the City’s Representative and upon approval by the Bozeman City Attorney. Release of the security to Licensees upon satisfaction of their restoration obligations shall be upon written request of the Licensee providing the security and must be authorized in writing by the City’s Representative. 10. Waste, Nuisance, and Unlawful Use Prohibited. Licensees shall not commit, or suffer to be committed, any waste on the Licensed Property, nor shall Licensees, their agents, invitees, guests, hires, contractors or subcontractors maintain, commit, or 91 Licensee Agreement for City of Bozeman Real Property Page 11 of 18 permit the maintenance or commission of any nuisance on the Licensed Property or use the Licensed Property for any unlawful purpose. Licensees shall not do or permit anything to be done in or about the Licensed Property that will in any way conflict with any law, ordinance, rule, or regulation affecting the occupancy and use of the Licensed Property as City owned real property, which are or may hereafter be enacted or promulgated by any public authority. 11. Hazardous Materials. Licensees agree and represent that they, their agents, invitees, guests, hires, contractors or subcontractors shall not store or dispose of on the Licensed Property any “Hazardous Materials” as defined by Federal, State or local law as from time to time as amended. 12. Signage. Licensees, their agents, invitees, guests, hires, contractors or subcontractors may not install any exterior building or other signs unless approved by the City’s Department of Community Development, and all signage must be in compliance and conformity with any and all local sign ordinances and zoning requirements. 13. Termination. a. If Licensees fail to comply with any condition of this Agreement at the time or in the manner provided for, the City Manager may, at its option, terminate this Agreement and the City shall be released from all obligations if default is not cured within thirty (30) calendar days after written notice of the default is provided to Licensees. 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 or by email to the Parties’ representatives. Failure to cure any default shall result in an order by the City’s Representative for Licensees to cause removal of all personal property from the Licensed Property immediately. Licensees agree that cessation of construction activities for the Project for a consecutive period of thirty (30) days or more during the Term may result in revocation of this Agreement and the license it authorizes and as such Licensees agree the City Manager may order Licensees to vacate the Licensed Property within five (5) business days of written notice for cessation of construction activities. An order revoking this Agreement for cessation of construction activities on the Site does not relieve Licensees of any obligations or requirements of this License. 92 Licensee Agreement for City of Bozeman Real Property Page 12 of 18 b. Licensees may terminate this Agreement, at Licensees’ sole option, upon thirty (30) days prior written notice to the City. Upon termination, Licensees shall remove their equipment and improvements, and must, prior to the end of the term, restore the Licensed Property in accordance with section 9. 14. Liquidated Damages. If Licensees occupy the Licensed Area beyond the term provided in this Agreement or if Licensees fail to comply with the restoration requirements of this Agreement, Licensees shall be subject to a payment to the City in the collective sum of Five Hundred Dollars ($500.00) per day from the date of notice by the City as payment for liquidated damages resulting from the Licensees’ unauthorized occupation of the Licensed Property of Licensees failure to restore the Licensed Property to a condition satisfactory to the City. The Licensees specifically agree this amount shall be owning to the City without the City having to file a lawsuit to collect such amounts. 15. Due Diligence. Licensees shall at all times exercise due diligence in the protection of the Community Garden against damage. 16. Non-discrimination. Licensees 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. Licensees shall require these nondiscrimination terms of its subcontractors. 17. 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. 18. Assignment. Licensees may not assign this Agreement in whole or in part and may not sublet all or any portion of the Community. No assignment will relieve Licensees of their responsibility for the performance of this Agreement (including its duty to defend, indemnify and hold harmless). This Agreement and the license it authorizes does not run with the land. 19. Waiver of Claims. Licensees waive all claims against the City, its officers, agents, and employees, for injury to persons or property on or about the Community Garden or from use of the Licensed Property. Licensees agree the responsibility for protection and safekeeping of equipment and materials on or near the Licensed Property will be entirely that of Licensees and that no claim shall be made against the City by reason of 93 Licensee Agreement for City of Bozeman Real Property Page 13 of 18 any act of an employee, officer, or agent of the City or any trespasser except as to negligent or intentional acts of City employees in the scope of their respective employment which are the sole cause of such claims. 20. Representatives. a. City’s Representative. The City’s Representative for the purpose of this Agreement shall be Mitch Overton, Parks & Recreation Director or his successor or designee. Whenever approval or 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, Licensees may direct their communication or submission to other City personnel or agents, specifically and first, the Assistant Bozeman City Manager, and may receive approvals or authorization from such persons. b. Licensees’ Representatives. The Licensee’s Representatives for the purpose of this Agreement shall be Andy Holloran for Merin Property Owner, LLC and ________________________ for Dick Anderson Construction. Whenever direction to or communication with either Licensee is required by this Agreement, such direction or communication shall be directed to Licensees’ respective Representative; provided, however, that in exigent circumstances when one of Licensees’ Representatives is not available, the City may direct its direction or communication to other Licensee’s Representative and such communication shall be determined to be communication with both Licensees. 21. Permits. Licensees shall provide all notices, comply with all applicable federal, state, and local laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 22. Intoxicants; DOT Drug and Alcohol Regulations. Licensees shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, upon the Licensed Property. Licensees acknowledge they are aware of and shall comply with their 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 Licensees shall be obligated to furnish such proof. The City may order 94 Licensee Agreement for City of Bozeman Real Property Page 14 of 18 removal from the Licensed Property of any employee or agent of Licensees or any of their subcontractors for use of controlled substances and alcohol on the Licensed Property. Licensees shall ensure the above requirements apply to all subcontractors. 23. Liens and Encumbrances. Licensees shall not permit any liens or encumbrances to be filed on the Licensed Property related to Licensees’ use of the Licensed Property or construction of the Project prior to the expiration of this Agreement or termination by the City or Licensees as provided herein. Licensees shall furnish the City with satisfactory proof that there are no outstanding liens or encumbrances in connection with Licensees’ use of the Licensed Property. 24. 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. 25. Survival. Licensees’ 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. 26. 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. 27. Waiver. A waiver by City of any default or breach by Licensees 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. 28. Severability. If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 29. Applicable Law. The Parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 95 Licensee Agreement for City of Bozeman Real Property Page 15 of 18 30. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the Parties. 31. 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. 32. Counterparts. This Agreement may be executed in counterparts, which together constitute one instrument. 33. 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. 34. Independent Contractor. The Parties agree and acknowledge that in the performance of this Agreement Licensees shall not be considered an agent, representative, subcontractor, or employee of the City. The parties further agree that all individuals and companies retained by Licensees at all times will be considered the agents, employees, or independent contractors of Licensees and at no time will they be the employees, agents, or representatives of the City. 35. 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. 36. Recordation. This Agreement shall be recorded in the files of the Gallatin County Clerk and Recorder. All costs of recording shall be borne by Licensees. The original of this recorded agreement shall be returned to the Bozeman City Clerk. ########### End of Agreement except for signatures ########### 96 Licensee Agreement for City of Bozeman Real Property Page 16 of 18 Executed this _____day of January, 2020. City of Bozeman: By: __________________________ Date: ___________ Dennis Taylor, Interim City Manager Attest: _________________________ Bozeman City Clerk Merin Property Owner, LLC a Delaware limited liability company By: WL-HB Merin Parent, LLC a Delaware limited liability company By: The Merin, LLC a Montana limited liability company Its Operating Member By: ____________________________ Date: ___________ Andrew Holloran, its managing member STATE OF MONTANA ) : ss. County of Gallatin ) This instrument was acknowledged before me on the _____ day of ________________, 20___ by Andrew Holloran, managing member of The Merin, LLC. __________________________________________ Notary Public for the State of Montana Printed Name: _____________________________ (SEAL) Residing in________________________________ My Commission Expires:___________________ 97 Licensee Agreement for City of Bozeman Real Property Page 17 of 18 98 Licensee Agreement for City of Bozeman Real Property Page 18 of 18 Dick Anderson Construction: By: ____________________________ Date: ___________ Marty Schuma, Dick Anderson Construction STATE OF MONTANA ) : ss. County of _________ ) This instrument was acknowledged before me on the _____ day of ________________, 20___ by Marty Schuma, as President Dick Anderson Construction __________________________________________ Notary Public for the State of Montana Printed Name: _____________________________ (SEAL) Residing in________________________________ My Commission Expires:_____________________ 99 DN DN UP DN SOUTH RETAIL 100B NORTH RETAIL 100A STAIR 1 S1-1 STAIR 2 S2-1 CORRIDOR 106 WATER RISER ROOM 107 PARKING GARAGE 109 MAIL ROOM 103 RESIDENTIAL LOBBY 101 TRASH ROOM 104 ELEVATOR E1-1 CORRIDOR 102 ABV. 1 2 3 7 8 9 10-14 4 5 6 15-19 20-24 25-29 STORAGE RM 105 ELEC. ROOM 110 N. BOZEMAN AVE. (57' ROW- PLAT C-1) SUBJECT PARCEL LOTS 35-38, BLOCK I OF ORIGINAL TOWNSITE OF BOZEMAN 16,907 SF 0.39 AC LAMME ST. (60' ROW PLAT C-1) PROFESSIONAL ENGINEERS & SURVEYORS THE MERIN 116 & 122 NORTH BOZEMAN STAHLY ENGINEERING & ASSOCIATES HOMEBASE 20 N. TRACY AVE. BOZEMAN, MT 59715 C1.1 CIVIL SITE PLAN EXHIBIT A 100