HomeMy WebLinkAbout12- Gallatin Mall Group and Gallatin Valley Land Trust Trail Construction Agreement (2)TRAIL CONTRUCTION AGREEMENT
THIS TRAIL CONSTRUCTION AGREEMENT (the "Construction Agreement ") is
made and entered into this 25`h day of July, 2012, by and between Gallatin Mall Groun. L.L.C. a
Montana limited liability company, with address at P.O. Box 80510, 2280 Grant Road, Suite A,
Billings, Montana 59108 -0510 ( "Landowner "); the City of Bozeman, a Municipal Corporation of
the State of Montana, with offices at 121 North Rouse, Bozeman, Montana 59715 ( "City "), and
the Gallatin Valley Land Trust, a non - profit Montana corporation with its offices located at 25 N.
Willson, Suite E, Bozeman, MT 59715 (hereafter "GVLT "), which is acting as the City's agent
for the purposes of overseeing and coordinating trail construction hereunder.
RECITALS
WHEREAS, City and Landowner entered into a certain Trail Corridor Access Agreement
(hereafter "Trail Easement") burdening real property owned by Landowner, as described in
Exhibit A hereof, and the route of the Trail Easement is depicted on Exhibit B attached hereto;
and
WHEREAS, the City now proposes to construct a trail within said Trail Easement for the
purpose of providing recreational pedestrian and non - motorized access, as envisioned in the Trail
Easement; and
WHEREAS, the City has reached an agreement with GVLT, under which GVLT will act
as the City's agent in construction of the trail within the Easement in accordance with the terms
of this Construction Agreement; and
WHEREAS, Landowner understands, accepts and agrees to GVLT's role as the City's
agent in overseeing and managing the construction of the trail within the Trail Easement.
NOW, THEREFORE, it is agreed as follows:
1. Trail construction responsibilities
The Landowner and the City hereby agree that GVLT shall be responsible for
construction of the a public trail according to specifications outlined both in this Construction
Agreement and in the Trail Easement, including but not limited to the hiring and supervision of
licensed and bonded landscaping companies, other professional service providers, and/or
supervision of volunteers who contribute time, skills, and labor to complete trail construction
(hereafter collectively referred to as "GVLT's contractors ").
2. Access for construction.
Landowner agrees to provide the City and GVLT, and all of GVLT's contractors,
employees, laborers, and volunteers, with access to the Trail Easement over and across its
adjacent Mall properties, as depicted on Exhibit B attached hereto, for the term of this
Construction Agreement as defined by Paragraph 3 below, provided, however, that the City and
GVLT and GVLT's contractors may not block the roadway running behind the Mall at any time.
Nevertheless, the Landowner expressly understands and agrees that the City and GVLT may
create short-term obstruction of parts of said roadway as machinery and materials are delivered
to the trail construction site.
3. Term of Agreement.
Trail construction activity pursuant to this Construction Agreement may not exceed ten
(10) days from the commencement of construction to the completion of all trail building
activities by GVLT and by GVLT's contractors, unless Landowner and GVLT mutually extend,
in writing, the time allowed for trail construction hereunder. GVLT will notify the City and
Landowner at least ten (10) calendar days prior to the start of construction and in said notice,
GVLT will provide the City and the Landowner with the name of and contact information for
GVLT's supervising employee, and names and contact information of GVLT's contractors,
construction crew supervisors, and volunteer supervisors. GVLT will also notify, in writing, the
Landowner and the City when construction is complete.
4. Specifications for trail construction.
The City, GVLT and the Landowner agree to the following trail specifications, as further
described in Exhibit C:
(a) The length of the trail runs for approximately 780 feet and is located within a 16 -foot
wide Easement Corridor described in the Trail Easement.
(b) The existing fence on the north side of the retention pond will be relocated to the
south, as close to the pond as possible, to make room for the trail corridor.
(c) The improved, finished surface of the trail will be six feet (6') in width.
(d) Overburden will be excavated to approximate 6" depth and base will be compacted.
Excavated spoils will be spread on -site or removed.
(e) Pit run gravel will be spread 3" deep and compacted.
(f) Gravel fines (3/8 minus) will be spread 3" deep and compacted.
(g) No living trees will be removed. Tree limbs and brush will be trimmed within the trail
corridor to 10' height for vertical clearance and 5' both directions from centerline of
trail for lateral clearance.
5. Changes to specifications.
Any change to the foregoing specifications outlined in Paragraph 4, as proposed by
GVLT, must be specifically approved in writing the by the City and the Landowner, which
approval may not be unreasonably denied. The 10 -day term of this Construction Agreement
shall automatically be deemed suspended from the date that GVLT first proposes a change until
the date that the City and the Landowner inform GVLT of their agreement to the proposed
modification, at which time the unfulfilled term of this Construction Agreement will begin to run
again.
6. Insurance; Indemnities.
Prior to commencing trail construction work pursuant to this Construction Agreement,
GVLT agrees to provide Landowner and the City with certificates of worker's compensation and
liability insurance, which coverage shall include GVLT's employees and volunteers, and
evidence of worker's compensation insurance and State of Montana Certificates of Contractor
Registration for any independent contractors which GVLT hires to help with trail construction.
GVLT will add both the City and Landowner as additional named insureds to its comprehensive
and general liability insurance policy and will carry coverage in the amount of $1.0 Million per
occurrence, $2.0 Million aggregate, and $3.0 Million in umbrella coverage. Such coverage shall
provide for a a thirty (30) day notice of cancellation, with such notice to be served
simultaneously upon Landowner. GVLT will provide proof of insurance, as outlined herein,
upon receipt of the City's and/or Landowner's request.
GVLT also agrees to indemnify, hold harmless, and defend the City and the Landowner,
and their officers, employees, or agents for liability, damages, losses, or costs, including but not
limited to reasonable attorney fees, but only to the extent that the liability, damages, losses, or
costs are caused by the negligence, recklessness, or intentional misconduct of GVLT or GVLT's
officers, employees, and agents. In addition, the Landowner agrees to indemnify, hold harmless,
and defend the City and GVLT, and their officers, employees, or agents for liability, damages,
losses, or costs, including but not limited to reasonable attorney fees, but only to the extent that
the liability, damages, losses, or costs are caused by the negligence, recklessness, or intentional
misconduct of the Landowner, or Landowner's officers, employees, and agents, including
tenants.
7. Amendment
Any amendment of this Agreement must be in writing, signed by Landowner, the City
and GVLT.
8. Termination
This Construction Agreement shall terminate completely upon Landowner's receipt from
GVLT of GVLT's notice of completion of construction under Paragraph 3 above. The parties
hereto may also mutually agree to terminate this Construction Agreement prior to the expiration
of its term, provided all parties agree to the termination in writing.
9. Breach and Restoration
In the event of breach of this Construction Agreement, the non - breaching parry and its
successors and assigns shall be entitled to all remedies available under Montana law, both legal
and equitable, including without limitation, injunctive and specific relief and compensatory
damages. In the event any action is brought to construe or enforce the terms of this Construction
Agreement or to recover damages for the breach thereof, the prevailing party shall be entitled to
recover all fees and costs reasonably incurred therein, including (in addition to statutory costs)
attorney's fees, expert witness fees, and costs and fees on appeal.
10. Mediation.
The parties agree that nonbinding mediation offers an alternative to the expense and time
required to resolve disputes by litigation. Mediation is therefore the parties' preferred dispute
resolution procedure when circumstances do not require the parties to seek immediate injunctive
relief from the courts. In the event of any dispute over the meaning, requirements, interpretation,
or implementation of this Construction Agreement, any party may refer the dispute to mediation
by written request served upon the other parties. The non - requesting parries shall have ten (10)
days after receipt of a mediation request to consent thereto or to refuse to mediate the dispute.
The mediation process shall proceed as follows:
A. Within ten (10) days after the parties agree to mediation of a dispute, the parties shall
mutually select a mediator. Mediation hearings shall remain informal, with each party
being permitted to present such facts and evidence as it may reasonably believe supports
that party's position. Costs and expenses of mediation shall be divided equally between
the parties.
B. Notwithstanding any provision to the contrary, the nonbinding mediation procedure set
forth herein shall in no way be construed to deprive the parties from any judicial
remedies provided at law, or by agreement herein, and is intended solely as an informal
dispute resolution mechanism. No party shall have the right to compel performance of
the mediator's recommended solutions, unless such solutions are reduced to a binding
written agreement between the parties at the conclusion of the mediation process.
The parties hereto intend that each conflict and dispute submitted to mediation shall be
unique, with facts, circumstances, and recommended resolutions to be determined on a case -by-
case basis, without reference to prior conflicts, disputes, or the resolutions thereto.
11. Notice.
Whenever one parry provides the other parties with written notice pursuant to the terms
of this Agreement, such notice shall be directed to the names and addresses set forth on page 1 of
this Construction Agreement. All notices shall be deemed effective when hand delivered, or
deposited in the United States mail as registered or certified mail, with postage prepaid, or, if
sent by facsimile device or e-mail, notice shall be presumed to have been received
contemporaneous with transmission. In the event notice is provided by facsimile device or e-
mail, it shall be followed by "hard copy." mailed to the parties to whom it has been directed, to
the addresses as provided in this notice.
12. Venue. The parties covenant and agree that this Agreement shall be interpreted
and enforced according to the laws of the State of Montana and that venue for any dispute of the
interpretation and enforcement of this Agreement shall be in Gallatin County, Montana.
13. Good faith. Each party promises and agrees to act in good faith and to deal fairly
toward the other party in the management of this Construction Agreement. When any party's
consent or approval is required or requested by the other party, the consenting or approving party
shall not unreasonably withhold such consent or approval.
14. Time is of the Essence. Time is of the essence of this Construction Agreement.
The parties acknowledge that this Construction Agreement is subject to timely performance by
the parties hereto of the covenants, terms and conditions set forth herein. Failure to adhere to the
terms and conditions of this Construction Agreement may result in breach or termination, as
hereinbefore described.
4
DATED this 25th day of July, 2012.
LA
State o£ Washington
County of. Spokane
Its: Managing Member
This instrument was acknowledged before me on this 25th day of July, 2012 by John P.
Morrow in his capacity as Managing Member of GALLATIN MALL GROUP, LLC.
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PUBLIC
1$ (Name)
WASH�N Title /Rank: P&Yf % C
Residing at:
My commission expires: % I (, t
DATED this 15 day of A t , 2012.
State of-
County of:
Montana
Gallatin
CITY OF BOZEMAN:
By: C `^{I A .�4"
Its: &viageI
This instrument was acknowledged before me on this day of ,
2012 by Chris iku(5 k i in his or her capacity as
(Vjar�c,e,i of CITY OF BOZEMAN
AIMEE BRUNCKHORST �-
'�., NOTARY PUBLIC for the
*' SEAL;
State of Montana (Si nature)
; ...... .. My Commission Expires
Fof: .. December 04, 2012
(seal) (Name)
Title/Rank:
Residing at: �(a�
My commission expires:
DATED this �Q day of 2012.
GALLATIN VALLEY LAND TRUST:
By: Steve Schnee
Its: President, Board of Directors
State of: Montana
County of. Gallatin
This instrument was acknowledged before me on this � day of dv ,
2012 by Steve Schnee in his capacity as President of the Board of Dire rs of the
Gallatin Valley Land Trust.
��pOtit KAPOHL
/ NOTARY PUBLIC to the
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LSEAL)* Mote d Mohan°
Residing d Bonemon, Mi
.r fury Convnission EXPires
March 10, 2016
(seal)
Title /Rank:
Residing at:
My commission expires:
(Signature)
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EXHIBIT A
Tract 1 of Certificate of Survey No. 647A, located in the S1 /2SW1 /4 of Section 11,
Township 2 South, Range 5 East, P.M.M., in 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.
Subiect to all third party rights of record in the Property existing at the time of conveyance of
the Easement and not subordinated to the Easement.
EXHIBIT B
Exhibit C :Trail Specifications
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