HomeMy WebLinkAbout21- License Agreement - Gallatin Valley Land Trust - West Side Connectins and Wayfinding Project �
AFTER RECORDING PLEASE RETURN TO: PLATTED
Mike Maas
City Clerk, City of Bozeman 2742698
PO Box 1230 Page: 1 of 13 07/23/2021 01:35:51 PM Fee: $104.00
Eric Semerad - Gallatin County, MT MISC
Bozeman, MT 59771-1230 IIIIIIIIIIIIIIIIIIIIIIINIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIN
LICENSE AGREEMENT FOR THE USE OF CITY PROPERTY
BY THE GALLATIN VALLEY LAND TRUST
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 the Gallatin Valley
Land Trust, a Montana non-profit public benefit corporation, with an address of 212 S Wallace
Ave, Bozeman, MT (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 is owner of Property that will be improved as part of the West
Side Connections and Wayfinding Project that received funding through the Trails, Open Space
and Parkland Bond via Resolution 5221. The City desires to authorize Licensee to access the
Property for purposes of completing certain improvements to the Property pursuant to the
Memorandum of Understanding ("MOU") between the Parties authorized by Commission
Resolution No. 5321. The Parties agree this Agreement shall be executed prior to commencement
of any work within the City Property.
2. Description of Property. The Property consists of the real property as described
in Exhibit A ("Licensed Property").
3. Title. Licensee hereby acknowledges this Agreement grants a privilege and not an
interest in the Licensed Property and the title of the City to the Licensed 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 Licensed 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 property interest or for
other purposes which do not unreasonably interfere with the activities of the Licensee authorized
by the MOU.
Upon termination of this Agreement,title to all permanent improvements on the Licensed Property
and on public rights-of-way adjacent to the Licensed Property made by Licensee or its agents shall
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vest in the City, free 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
Licensee may be removed from the Licensed Property at any time unless such improvements are
a component of the Park Project, as described in the MOU, 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 July 20, 2021 until December 31, 2023 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 as stated in the MOU, which Licensee
promises to comply with and abide by. Such permission shall include the permission of
Licensee to use the Licensed Property to fulfill its obligations under the MOU and for no other
purpose. The term of this License may be extended by mutual agreement of the Parties in writing.
The term of the Use License may be extended by mutual agreement of the Parties in writing. The
City Manager is authorized to agree on behalf of the City to extension(s) of the term of the Use
License
Licensee agrees to comply with all City ordinances and other rules and regulations regarding
permits and approvals related to operations on the Licensed Property as well as those of any other
governmental entity having jurisdiction.
Title to all permanent improvements on the Licensed Property(ies) and on public rights-of-way
adjacent to the Licensed Property(ies) made by Licensee or its agents shall vest in the City, free
and clear of all debts, liens and encumbrances.
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
Licensed Property by Licensee; (ii) the negligent, reckless, or intentional
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misconduct of the Licensee, its officers, employees, or agents on or related to
the Licensed 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 Licensed 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
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
portions)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
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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
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 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,in collaboration with the Parks Department,install and maintain
in good condition a barrier fence or other suitable and customary barrier or
signage around the perimeter of any portion of the Licensed Property currently
under construction by Licensee. The barrier or signage 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 or signage shall be provided for in
a manner to ensure emergency responders' access.
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b. For the use of any public rights-of-way or any real property of the City other
than the Licensed 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 Licensed Property. Sediment,rock,mud, ice,
snow, and other debris entering upon public or private property outside the
Licensed Property from the Licensee's project shall be cleaned or removed
immediately.
d. Licensee agrees to immediately repair any damage caused by Licensee, its
agents, invitees, guests, 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. 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 Licensed 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 Licensed Property,nor shall Licensee maintain, commit,
or permit the maintenance of any nuisance on the Licensed Property or use the Licensed Property
for any unlawful purpose. Licensee shall not do or permit anything to be done in or about the
Licensed Property which shall in any way conflict with any law, ordinance, rule, or regulation
affecting the occupancy and use of the Licensed 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 pursuant to the MOU or as may otherwise be approved by the City's Representative.
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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
cease all operations and remove all personal property from the Licensed
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.
Such termination does not abrogate Licensee's responsibility under the MOU.
11. Restoration.
a. Within 30 days upon completion of the Licensee's use of the Licensed Property
or within 30 days of termination of this Agreement pursuant to Section 12,
whichever is earlier,and under no circumstances later than December 31,2023,
the Licensee shall cause the Licensed Property (and any portion of the Park
Properties disturbed by Licensee's activities) to be fully restored to the
condition existing at the date of execution by the City. Restoration is at the
discretion of the City and may include but is not limited to grading and repairs
to failed sub-grade; reconstruction of accesses, fencing, and existing water
systems, as applicable; installation of ground cover as specified by the Parks
Superintendent or City Representative; and installation of temporary water
system or application of water sufficient to stabilize the area disrupted. In
addition, Licensee shall restore damage it or its agents, invitees, guests, hires,
contractors or subcontractors cause to other public or private infrastructure
adjacent to the Licensed Property to a condition as good or better than existed
prior to Licensee's 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.
Licensee may be required to enter into a contract with the City for such work.
Licensee may cause their contractors or other agents to conduct such restoration
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but in no case shall Licensee be relieved of its obligation under this Section
until such restoration is accepted by the City.
b. Unless waived by the City Representative, prior to Licensee occupying the
Licensed Property, the City's Representative and Licensee 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 Licensee may enter into an agreement prior to the expiration of
the term of this Agreement or prior to the end of Licensee's 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 Licensed Property 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, if any; and (iii) other duties
and obligations of the Licensee 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.Not required.
12. Due Diligence. Licensee shall at all times exercise due diligence in the protection
of the City's property against damages.
12. Non-discrimination and Equal Pay. The Licensee agrees that all hiring by
Licensee of persons performing this Agreement shall be on the basis of merit and qualifications.
The Licensee will have a policy to provide equal employment opportunity in accordance with all
applicable state and federal anti-discrimination laws,regulations,and contracts. The Licensee will
not refuse employment to a person,bar a person from employment,or discriminate against a person
in compensation or in a term, condition, or privilege of employment because of race, color,
religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual
orientation, gender identity,physical or mental disability, except when the reasonable demands of
the position require an age, physical or mental disability, marital status or sex distinction. The
Licensee shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140,
Title 2, United States Code, and all regulations promulgated thereunder.
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Licensee represents it is, and for the term of this Agreement will be, in compliance with
the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal
Pay Act). Licensee must report to the City any violations of the Montana Equal Pay Act that
Licensee has been found guilty of within 60 days of such finding for violations occurring during
the term of this Agreement.
Licensee shall require these nondiscrimination terms of its sub-licensees 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 Licensed 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
property on or about the Licensed Property or from its use of the Licensed Property. It shall be
understood that the responsibility for protection and safekeeping of equipment and materials on or
near the Licensed 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 Addi Jadin, Park Planning and Development Manager, or her 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,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 Matt Parsons, Matthew Marcinek, Chet Work. Whenever
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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
Licensed 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 Licensed Property of any employee or agent of Licensee or any of its
subcontractors for use of intoxicants on the Licensed Property.
19. Liens and Encumbrances. Licensee shall not permit any liens or encumbrances
to be filed on the Licensed Property related to either the Licensee's use of the Licensed Property
or the Licensee's actions pursuant to the MOU. 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 Licensed 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
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.
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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
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
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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 ###########
License Agreement for the West Side Connections and Wayfinding TOP Project
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Executed this day of y �i , 2021.
City:
By-
VelVat City Manager
STATE OF MONTANA )
ss.
County of Gallatin )
This instrument was acknowledged before me on the 02' 'day of , 204 by
Jeff Mihelich, as City Manager for the City of Bozeman, Montana.
Ewww'
HEATHER BIENVENUE
' Notary Public otary Public for the State of Montana
�oTARtq<?m for the State of Montana printed Name:
Residing at:
Bozeman, Montana Residing in
<%9'�oF•��(C? ' My Commission Expires:
January 26,2022 My Commission Expires:
The Gallatin Valley Land Trust, a Montana nonprofit public benefit corporation:
By:
Charles Work,Executive Director
STATE OF MONTANA )
ss.
County of Gallatin )
This instrument was acknowledged before me on the day of �A 20A by
Charles Work, as Executive Director of The Gallatin Valley Land Trust.
KRISTIN HOW 4�-
y0". Notary Public
Notary Public for the State of Montana
NoTARi,44• for the State of Montana
Residing at: Printed Name:
Bozeman, Montana Residing in
My Commission Expires:
July 23,2022 My Commission Expires:
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EXHIBIT A
(Legal Description of Licensed Property)
Legal Description
Traditions Park 8 -Traditions Subdivision Phase 1, 504,T02 S, R05 E
Flanders Creek Parks 2, 3 -Flanders Creek Subdivision, 504,T02 S,R05 E
Bronken Park Natural Space-Valley West Subdivision, 509, T02 S, R05 E
Valley Unit Park-Valley Unit Subdivision Phase 1, S 10, T02 S, R05 E
Exhibit A-License Agreement for the West Side Connections and Wayfinding TOP Project
r