HomeMy WebLinkAbout14- Story Mill Community Park License Agreement for the use of City Property by the Trust for Public LandsAFTER RECORDING PLEASE RETURN TO
Stacy Ulmen
City Clerk, City of Bozeman
PO Box 1230
Bozeman, MT 59771-1230
Attachment C. Res. 4572
PLATTED
2500645
Page: 1 of 11 12/31/2014 09:35:07 RM Fee $77 00
Charlotte Mills - Gallatin County, MT MIsc
11111111111111 III 1111111111111111111111 IN 111111111111111111111111111111111111111111
LICENSE AGREEMENT FOR THE USE OF CITY PROPERTY
BY THE TRUST FOR PUBLIC LAND
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 Trust for
Public Land, a nonprofit California public benefit corporation, with a mailing address of 111
South Grand Avenue, Suite 203, Bozeman, MT 59715 (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 will be, upon purchasing the real property described in Exhibit
A (the "Property") pursuant to the terms of the Real Estate Purchase and Sale Agreement
authorized by Commission Resolution No. 4572, owner of said Property and 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. 4572. The Parties agree this Agreement shall be executed prior to
the transfer of the Property from Licensee to the City but shall not be effective until such transfer
of the Property occurs.
2. Description of Property. The Property consists of the real property as described
in Exhibit A.
3. Title. Licensee hereby acknowledges this license grants a privilege and not an
interest in the Property and the title of the City to the 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 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.
License Agreement for the Story Mill Community Park
Page ] of 10
Upon termination of this Agreement, title to all permanent improvements on the Property and on
public rights-of-way adjacent to the Property made by Licensee or its agents shall 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 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 January 1, 2015 until December 31, 2017 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 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.
Licensee agrees to comply with all City ordinances and other rules and regulations regarding
permits and approvals related to operations on the Property as well as those of any other
governmental entity having jurisdiction.
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 Property by Licensee; (ii) the
negligent, reckless, or intentional misconduct of the Licensee, its officers,
employees, or agents on or related to the 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 Property.
License Agreement for the Story Mill Community Park
Page 2 of 10
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 portion(s) 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
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
License Agreement for the Story Mill Community Park
Page 3 of 10
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, at its sole cost and expense, install and maintain in good
condition a barrier fence or other suitable and customary barrier around the
perimeter of any portion of the Property currently under construction by
Licensee. The barrier 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 shall be provided for in a manner to ensure emergency
responders' access.
License Agreement for the Story Mill Community Park
Page 4 of 10
b. For the use of any public rights-of-way or any real property of the City other
than the 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 Property. Sediment, rock, mud, ice,
snow, and other debris entering upon public or private property outside the
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 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 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 Property, nor shall Licensee maintain, commit, or
permit the maintenance of any nuisance on the Property or use the Property for any unlawful
purpose. Licensee shall not do or permit anything to be done in or about the Property which
shall in any way conflict with any law, ordinance, rule, or regulation affecting the occupancy and
use of the 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.
License Agreement for the Story Mill Community Park
Page 5 of 10
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 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. Due Diligence. Licensee shall at all times exercise due diligence in the protection
of the City's property at the Property against damages.
12. Non-discrimination. Licensee agrees that all hiring by Licensee of persons
performing this Agreement shall be on the basis of merit and qualifications. The Licensee 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. The Licensee shall require these nondiscrimination terms of its agents and sub-
contractors 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 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.
License Agreement for the Story Mill Community Park
Page 6 of 10
15. Waiver of Claims. Licensee waives all claims against City for injury to persons
or property on or about the Property or from its use of the Property. It shall be understood that
the responsibility for protection and safekeeping of equipment and materials on or near the
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 Carolyn Poissant, Manager of Trails, Open Space, and
Parks Development, 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 Maddy Pope. Whenever 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
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 Property of any employee or agent of Licensee or any of its
subcontractors for use of intoxicants on the Property.
License Agreement for the Story Milt Community Park
Page 7 of 10
19. Liens and Encumbrances. Licensee shall not permit any liens or encumbrances
to be filed on the Property related to either the Licensee's use of the 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
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.
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.
License Agreement for the Story Mill Community Park
Page 8 of 10
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
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 home 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 Story Mill Community Park
Page 9 of 10
Executed this 23 day of DeefV1h8 e!' 2014.
Cityrs
(�
By:
Bozeman City Manager
STATE OF MONTANA
ss.
County of Gallatin
This instrument was acknowledged before me on the day of , 20-�
by Chris A. Kukulski, as City Manpigerjr thhe City of Bozeman,
`Montana.
HEATHER BIENVE'U. ! �K/ CU/U �UVv�
?�Z.E...... 0 , Notary Public i Notary Public for the State of Montana
aoTr,n,q�?cfor the State of Montan%:
T' :MResiding at:
Q- Bozeman, Montana
-,y�•...��P;` My Commission Expires:
Printed Name:
Residing in
My Commission Expires:
The Trust for Public Land, a California nonprofit public benefit corporation:
By: d V
Thomas E. Tyner
STATE OF WASHINGTON)
ss.
County of King )
This instrument was acknowledged before me on the tq- day of t}r R 20A
by Thomas E. Tyner, as Division Legal Director of The Trust for Public Land.
K.\W!<Slh/,
O //
C'@'•55`ta exq ��i,
Notary Public for the State of Washington
Printed Name: �CthttQ W i�4pV�
N ooB\.,o ? Z -
O
Residing in e U%q
2e �� r—
yj'Ir,,,�2`Qa a$.'�� =
My Commission Expires:owl -D `{ -1'8
/Ill '
O\`\`�
5r �\AS�
License Agreement for the Story Mill Community Park
Page 10 of 10
EXHIBIT A
(Description of Property)
Parcels 1, 2, 3, 4, 5, 6, 7, 8 and 9, of Certificate of Survey No. 2865, located within
Sections 31 and 32, Township I South, Range 6 East, and Sections 5 and 6, Township 2
South, Range 6 East, P.M.M., according to the official survey thereof on file and of
record in the office of the County Clerk and Recorder, Gallatin County, Montana.
Exhibit A - License Agreement for the Story Mill Community Park