Loading...
HomeMy WebLinkAbout14-Agreement between Mendenhall Partners LLC and Bozeman Parking Commission for Parking SpacesAFTER RECORDING PLEASE RETURN TO: Scott Lee Parking Manager, City of Bozeman PO Box 1230 Bozeman, MT 59771-1230 THIS AGREEMENT made and entered into this 3rd day of June 2014 by and between the BOZEMAN PARKING COMMISSION, an entity of the City of Bozeman, Montana, created pursuant to City of Bozeman Resolutions 1676, 1839, and 3803 and formed under the laws of the State of Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771 (the "Parking Commission") and Mendenhall Partners, LLC (hereinafter the "Lessee"), with an address of 20 N. Tracy Avenue, Bozeman, MT and a mailing address of 20 N. Tracy Avenue, Bozeman, MT 59715. WHEREAS, the City of Bozeman is the recipient of a Congressional appropriation dedicated to the construction of the Bridger Park Downtown Intermodal Facility (Bridger Park); and WHEREAS, the Parking Commission is the entity charged with the regulation of parking in the City of Bozeman and is authorized by law to enter into lease and rental agreements for the long term use of the Bridger Park. 04 IV NOW THEREFORE, in consideration of the mutual promises and consideration hereinafter described, and other valuable consideration, the receipt and sufficiency of LO which are hereby acknowledged, the parties do agree as follows: N CZ4M M-C- Q.U— Page 1 of 7 1. P i ALrjLqU. The Lessee desires to use parking spaces in the Bridger Park for the sole purpose of providing parking for the Lessee, located at 5 West Mendenhall Street, Bozeman, MT (the "Property"). Said parking shall be for the use of the Lessee, including without limiting, its owners, employees, guests, invitees, and suppliers, This Agreement sets forth the terms pursuant to which the Parking Commission authorizes the Hotel to use such parking spaces. 2. Term of Agreement/Termination. This Agreement shall be executed and effective no later than Final Site Plan approval from the City of Bozeman Department of Community Development. The term of lease for parking spaces as provided for herein shall commence no later than the issuance of a certificate of occupancy from the City of Bozeman Building Division, The lease issued hereunder shall be in effect for no less than 25 years from the date of lease of parking spaces. The parties may renew this Agreement and the lease issued hereunder for five (5) additional five (5) year periods upon written request by the Hotel, The Lessee may not terminate this Agreement without the prior written consent of the Parking Commission, The Parking Commission may not terminate this Agreement unless such termination is required by law. Notwithstanding the above, unless otherwise authorized by the Parking Manager in writing, this Agreement shall terminate automatically should the final site plan approval for the Property, if granted by the City of Bozeman, lapse pursuant to the requirements of 38-19.120.E, BMC but in no case shall this Agreement remain in effect including the obligation of the Parking Commission to lease parking spaces under this Agreement should the Lessee not obtain a building permit from the City of Bozeman within two (2) years of the effective date of this Agreement. In addition, this Agreement shall terminate if a building permit is issued within two (2) years of the effective date of this Agreement but a final occupancy permit is not issued by the City of Bozeman within four (4) years of the effective date of this Agreement. In addition to the above, this Agreement and the lease hereunder is specifically contingent upon the Lessee obtaining fee simple ownership interest in the Property. Should Lessee not obtain fee simple ownership in the Property prior to May 1, 2015 this Agreement shall terminate. 3. Num )er and Use of Pij[k-[n-g §Uaces, The Parking Commission shall make available to the Lessee no more than fifty (50) spaces for the sole purpose of providing parking, and access thereto, for the use of the Lessee for the Property on a 24-hour basis, The Parking Commission shall, upon request, provide the Lessee notice of how many parking spaces are available for Lessee's use for the Property on or before December 31 each year. In addition to the above, the Parking Commission shall provide repair and maintenance, Page 2 of 7 including without limiting, graffiti removal, striping, and pothole/crack repair during normal business hours. 4. Rate and AdjustmenVAVI Access Cards. The Lessee shall pay the Parking Commission a bulk rate of thirty three dollars and seventy five cents ($33,75) per month per space upon commencement of the lease as set forth in paragraph 2, The Parking Commission may increase the rate without prior notice to the Lessee on an annual basis in accordance with Parking Commission policy. Such policy requires rates to be established in compliance with the Master Agreement as discussed in Section 5, below. The Parking Commission may charge a refundable deposit and actual costs of replacement for AVI access cards. 5, Federal Facility/Parking Qamjrnission Contrgl. The Lessee recognizes the City of Bozeman constructed the Bridger Park with funds obtained through a Congressional appropriation as administered by the United States Department of Transportation's Federal Transit Administration (FTA Project No. MT -04-0004-00). In addition, the Lessee recognizes the City of Bozeman annually enters into an agreement with the FTA called the Master Agreement (FTA MA(19), October 1, 2012) (Exhibit A). In its use of parking spaces under this Agreement the Lessee shall take no action which would adversely affect the federal interest in the Bridger Park and shall at all times use the parking spaces in a manner that complies with the Master Agreement, Further the Lessee recognizes that the City of Bozeman must maintain satisfactory continuing control over the Bridger Park and that there may be no interference with transit functions. Any revenue collected in excess of operation and maintenance costs are to be committed to the provision of public transportation services. The Lessee agrees the Parking Commission has and may adopt rules, regulations, and administrative directives for the reasonable operation of the Bridger Park. The Lessee shall abide by all such rules, regulations, and directives, 6. Modification and Assiangbillity: This document contains the entire agreement between the parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Agreement may be considered valid or binding, This Agreement may not be enlarged, modified or altered except by written agreement signed by the parties hereto, The Lessee may not subcontract or assign its rights or delegate its duties under this Agreement without the prior written consent of Parking Commission. Page 3 of 7 7. Compliance with Unified DeyClopment Code: The Lessee acknowledges it is required, pursuant to the City's Unified Development Code (Chapter 38, BMC), to provide parking spaces for Lessee uses for the Property, The Lessee intends this Agreement to satisfy some portion of its UDC parking requirement for the Property.. As such, this Agreement is revocable only with the prior written approval of the appropriate UDC review authority, 8. AU12licability: This Agreement and any extensions hereof shall be governed and construed in accordance with the laws of the State of Montana. 9. _Npan-iLig-rLim-d—naLign. The Lessee 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. 10. Indemnification/Hold Harmless, The Lessee agrees to the fullest extent permitted by law, to defend, indemnify, and hold the Parking Commission and the City of Bozeman including their officers, agents, and employees, the Intermodal Commerce Condominium Association and its individual Unit Owners, and the Mendenhall Marketplace Condominium Association and its individual Unit Owners harmless against claims, demands, proceeding, suits, damages, losses, and expenses including attorney fees and costs connected therewith that may be asserted or claimed against, recovered from or suffered by any of the above by reason of any injury or loss, including but not limited to, personal injury, including bodily injury or death, property damage, loss of use, or other injury or loss of any kind occasioned by, growing out of, or in any way arising or resulting from any intentional, reckless, or negligent act on the part of the Lessee, its owners or employees while using the Bridger Park, a n d t h o s e, invitees, suppliers, lessees, licensees, guests, patrons, officers, or agents , authorized by the Lessee to use the Bridger Park pursuant to the terms of this Lease, The Lessee on behalf of its lessees, licensees, guests, patrons, employees, officers, and agents, hereby waives any and all claims and recourse against the Parking Commission, the City of Bozeman, including its officers, agents or employees, and the Intermodal Commerce Condominium Association and its individual Unit Owners, and the Mendenhall Marketplace Condominium Association and its Individual Unit Owners including the right of contribution for loss or damage to person, or property including loss of use arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except "responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent" as per 28-2-702, MCA. Nothing contained in this paragraph shall be construed as the Page 4 of 7 Lessee waiving any claims and recourse against the Parking Commission, the City of Bozeman, including its officers, agents or employees for a breach of this Agreement.. Should the Parking Commission, the City of Bozeman, the Intermodal Commerce Condominium Association to include its individual Unit Owners, or the Mendenhall Marketplace Condominium Association to include its Unit Owners be required to bring an action against the Lessee to assert its right to defense or indemnification under this Agreement any of the entities named above shall be entitled to recover its reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Hotel was obligated to defend the claim(s) or was obligated to indemnify the above entities for a claim(s) or any portion(s) thereof, The obligations of this section (section ten (10)) shall survive termination of this Agreement., 11. Insur ni a ..c & In addition to and independent from the requirements of Section 10, the Lessee shall secure insurance coverage in a form acceptable to the Parking Commission and furnish to the Parking Commission an accompanying certificate of insurance issued by a company authorized to do business in the State of Montana in amounts not less than as follows: . Workers' Compensation - statutory . Employers' Liability - $1,000,000 per 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; $2,000,000 annual aggregate The Parking Commission, City of Bozeman, and their officers, agents, and employees, shall be endorsed as an additional insured on a primary non-contributory basis on both the Commercial General and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non -renewal. The Lessee must demonstrate to the City's satisfaction that the above insurance coverage is in place and is provided in a manner acceptable to the City including any endorsements prior to the Lessee using any parking spaces. Nothing herein shall grant the City the authority to require 'the Hotel to use the services of a specific insurance provider. 12.AUJ_h_adz,gJion, The parties signing below hereby represent and warrant that they Page 5 of 7 are duly authorized to sign this agreement on behalf of the entities. 13. RgcgLd_a_ti_ofl, This Agreement shall be recorded in the files of the Gallatin County Clerk and Recorder. All costs of recording shall be borne by the Lessee. A copy of this recorded agreement shall be provided by the Parking Manager. End of Agreement except for signature page Page 6 of 7 Executed this -3�day of June, 2014. Parkina Commissi By: SCOWLe 6(i ­ng Mange STATE OF MONTANA : ss. County of Gallatin This instrument was acknowledged before me on the day of June, 2014 by Scott Lee, as Parking Manager for the City of Bozeman, Montana, '-----f?,AAA-4 I I VI UA V- � )I I I STACY MAR IE I LM N No a bficfor the State of Montana TARY PUBU 'e I No Montana State of Mon Pri�tzAame* �eulm SEA(S BpdAq, at Manhattan. Montana ornmj%sian SOO$ Residing in ±5CE HUH -DE �--fy M My Commission 'Expi s:...--2- j,f2:,2() I re The Mendenhall Partners, ILILC, a Montana Limited Liability Company. By: Jk� Joe Rosson, Member '11-F i k .1"W"WA ss. County of Gallatin This instrument was acknowledged before me on the _day of June, 2014 by Joe Rosson, Member, Mendenhall Partners, LLC, --? I n K E�4 R. KeII for NotaFy PuUic Notary Public for �he Iptoff the State of Month ,- Residir,g onta,- Residirg at: Printed Name: (SEALBelgrade, Montana Residing in MY COMMission Explrez October 17, 2015 My Commission Expirde,_LLL Page 7 of 7 W