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HomeMy WebLinkAbout15- Homebase Montana, LLC and L. Keeley Construction Company for 5 West License Agreement900T*�R M®NTANATITLIE AND 9SCROW l ORDER #f k AFTER RECORDING PLEASE RETURN TO: Chuck Winn Assistant City Manager, City of Bozeman PO Box 1230 Bozeman, MT 59771-1230 EPLATTE�D,` 2525410 Page: i Charlottel17 Mills—©GallatinoCounty, MTM Fee: $ 00 MISC 1111111111111111111111 IN 111II 11111111111111111111111II 11111111111111111111111 IN 130 =4 BOZEMAN PARKING COMMISSION 83"' 9?�N CO. NCO LICENSE AGREEMENT FOR THE USE OF CITY PROPERTY BY HOMEBASE MONTANA, LLC AND L.KEELEY CONSTRUCTION COMPANY THIS LICENSE AGREEMENT (the "Agreement") is an agreement 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 P.O. Box 1230, Bozeman, MT 59771 (the "Commission"), Homebase Montana, LLC (hereinafter "Homebase") with a mailing address of 20 North Tracy, Bozeman, MT 59715, L.Keeley Construction Co., with an address of 2901 Falling Springs Road, Sauget, IL 62206, hereinafter (L.Keeley) and Homebase and L.Keeley are referred to collectively as the "Licensees" and the Commission, Homebase and L.Keeley referred to collectively as the "Parties." Whereas, the City of Bozeman (the "City") is the owner of certain real property located in the City of Bozeman, Montana, which property described with more particularity below contains surface parking spaces open to the public ("Parking Lot'); and Whereas, the Commission is authorized by the City to operate and maintain the Parking Lot; and Licensee Agreement for 5West Page 1 of 16 Whereas, Homebase is constructing the 5West at 5 West Mendenhall (the "Project") and desires to utilize the Parking Lot for construction staging purposes; and Whereas, Homebase has contracted with L.Keeley as its general contractor and may contract with others to provide construction and related services for the Project and the Commission understands contractors, their subcontractors and other entities contracted with or hired by Licensees will use the Parking Lot as a construction staging area during the terms of the Project; and Whereas, the Licensees acknowledges the Commission's use of its Parking Lot as a facility for public safety and convenience purposes and respects the Commission'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 Commission hereby grants permission, revocable and terminable as hereinafter provided, to the Licensees for their use of the parking lot property described below (the "Parking Lot") for the Project, during the period commencing September 21, 2015 until January 21, 2017, on the terms and conditions set forth below, which Licensees promise to comply with and abide by. Licensees specifically agrees the Parking Lot may not be closed until a final building permit for the Proiect is issued by the City. Licensees must provide the Commission's Representative 48 hour written notice prior to closure. 1. Description of Parking Lot. The Parking Lot is located on the following real property: Lots 9, 10, 11, and 12 all in Block "A" of Tracy's Second Addition to the 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 (Deed Reference: Book 150, Page 22). 2. Rent/License payment. This Agreement and permission is given to Licensees for a monthly fee license payment ("Rent") of three thousand eight hundred twenty nine dollars ($3,829), payable in advance on or before the Is' of each month during the term of this Agreement. The first payment must be made prior to Licensees' occupation of the site. Any partial month of occupancy of the Parking Lot 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. The Rent shall be reduced by eighty nine dollars ($89) per month per space during the time period Homebase maintains leases for parking spaces within the Parking Lot. As for the date Licensee Agreement for 5West Page 2 of 16 of this Agreement, Homebase is currently leasing ten (10) spaces. If Homebase maintains leases for those ten (10) spaces during the term of this Agreement Homebase may reduce the rent by eight hundred ninety dollars ($890) per month. 3. Title. Licensees hereby acknowledge this Agreement grants a privilege and not an interest in real property or the title of the City to the Parking Lot 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 Parking Lot by virtue of this Agreement or Licensees' occupancy or use hereunder. The City and Commission may enter the Parking Lot 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 Parking Lot and improvements on public rights-of-way adjacent to the Parking Lot made by Licensees or any of its contractors shall vest in 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 Licensees may be removed from the Parking Lot at any time unless such removal will damage the realty and/or permanent improvements of the Parking Lot. 4. License. The Commission hereby grants exclusive permission, revocable and terminable as provided herein, to Licensees for Licensees' use of the Parking Lot for the Project, during the term listed above and only on the terms and conditions set forth herein or reasonable orders of the Commission or its 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 Parking Lot for purposes of providing Licensees a staging area for storage of construction materials and construction equipment and for a construction headquarters 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 Parking Lot as well as those of any other governmental entity having jurisdiction. 5. 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 the Commission, 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 Licensee Agreement for West Page 3 of 16 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 or Commission and their 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 Parking Lot by Licensees; (ii) the negligent, reckless, or intentional misconduct of Licensees, their officers, employees, or agents on or related to the Parking Lot; (iii) any negligent, reckless, or intentional misconduct of any of Licensees' guests, invitees, contractors, or subcontractors on or related to the Parking Lot; and (iv) the negligent, reckless, or intentional misconduct of any other third party with respect to use of the Parking Lot. 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 or Commission. Should the City and the Commission, and their 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 the Commission, 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 the Commission, 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 Commission and/or the City resulting from the Commission's performance under this Agreement, the Commission and/or the City may elect to represent itself and incur all costs and expenses of suit. Licensee Agreement for 5West Page 4 of 16 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 order, services orders or any other written or oral request for work on the Project wherein such work or actions occurs in any part on the Parking Lot that any such contractor, person or entity performing any such work on the Parking Lot fully release the City and the Commission, and their 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 the Commission and their agents, representatives, employees, and officers to the same extent as Licensees are required pursuant to Section 16 of this Agreement. The City and the Commission, and their agents, representatives, employees, and officers may require Licensees to provide evidence that any of Licensees' contractors or persons or entities conducting work on the Parking Lot have 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 Commission 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 Parking Lot. Licensees shall notify the Commission 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 Commission 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 Commission. The Licensees agree they may not occupy the Parking Lot until such insurances are approved by the Bozeman City Attorney. Licensee Agreement for West Page 5 of 16 Homebase 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 Commission. The Commission and City, their officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non-contributory basis on Homebases' Commercial General Liability and Contractual Liability policies. L.Keeley 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 Commission. The Commission and City, their officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non-contributory basis on L.Keeley's Commercial General Liability and Contractual Liability policies. 6. Construction/Restrictions/Repair and Maintenance. a. Licensees may, at its sole expense and subject to approval from the Commission's Representative, modify, supplement, replace, and upgrade the Parking Lot 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 Licensee Agreement for 5West Page 6 of 16 the use of the Parking Lot as a parking facility 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, at their sole cost and expense, maintain the Parking Lot in a presentable condition consistent with good business practice and in a safe, neat, sightly, 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 Parking Lot. The fence shall be located up to but not on the sidewalk on both Willson Ave. and Mendenhall St. and along the alley on the north side of the Parking Lot except as allowed 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 Commission's Representative. Said fence shall contain a shield or barrier that will protect the area outside the Parking Lot 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 Parking Lot must be approved in advance by the City's Director of Public Works. e. For the use of any public rights-of-way or any real property of the City other than the Parking Lot, L.Keeley shall obtain an encroachment permit from the Director of Public Works. L Licensees must keep adjacent private and public properties including streets, alleys, and sidewalks fi•ee from construction debris, snow, ice, and other materials stored or located on the Parking Lot. Sediment, rock, mud, ice, snow, and other debris entering upon public or private property outside the Parking Lot from the Project shall be cleaned or removed immediately. Snow and ice accumulating on the Parking Lot must be removed from the Parking Lot on a regular basis. Licensees shall be responsible for ensuring the sidewalks adjacent to the Parking Lot on Mendenhall Street and North Willson Avenue and the alley on the north side of the Parking Lot 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 Parking Lot on Mendenhall Street and North Willson Avenue pursuant to the requirements of the Bozeman Municipal Code. Licensee Agreement for 5West Page 7 of 16 g. Licensees agrees to immediately repair any damage caused by Licensees, their agents, invitees, guests, hires, contractors or subcontractors to any public or private property outside the Parking Lot including but not limited to streets, curbs, sidewalks, and other infi•astructure 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 agrees to timely comply with any request of Commission's Representative or the City including the Director of Public Works to perforin maintenance and repairs to streets, curbs, sidewalks and other infrastructure damaged by Licensees or their agents, invitees, guests, hires, contractors, or subcontractors. h. Any damage to the Parking Lot shall be repaired to a condition acceptable to the Commission. Maintenance or repair work to the Parking Lot shall be performed to the Commission's reasonable satisfaction, but the Parties agree that this is interim repair maintenance and need not be completed to the same standards as set forth in Section 7. 7. Restoration. a. Within 30 days upon completion of the Licensees' use of the Parking Lot or within 30 days of termination of this Agreement pursuant to Section 11, whichever is earlier, the Licensees shall cause the Parking Lot to be restored to the condition existing at the date of execution by the Parties of this Agreement pursuant to Section 7.b. including reinstallation of personal property of the Commission removed prior to Licensees' occupation of the Site such as jersey barriers, signage, etc. Restoration may include but is not limited to such reinstallations and also grading, repairs to failed sub -grade, striping of parking spaces, reconstruction of accesses, bike racks, trash cans, etc. and new surfacing material of hot mix asphalt or concrete. 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 Parking Lot to a condition as good or better than existed prior to Licensees occupation of the Parking Lot. All work to restore the Parking Lot 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 public works contract with the City for such work. Licensees may cause its contractor or other agents to conduct such Licensee Agreement for 5West Page 8 of 16 restoration but in no case shall Licensees be relieved of its obligation under this Section until such restoration is accepted by the City. b. Prior to Licensees occupying the Parking Lot, the City and Licensees shall perform a review of the Parking Lot and adjacent public and private infrastructure with video and/or photographs to record the condition of the Parking Lot and/or public or private infrastructure (the "Existing Condition"). c. The Commission retains the right to approve any plans for and to inspect work done under this Section. d. The Commission and Licensees may enter into an agreement prior to the expiration of the tern of this Agreement or prior to the end of Licensees occupation of the Parking Lot regarding restoration of the Parking Lot 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 Commission's contribution of funds to such improvements; and (iii) other duties and obligations of the Licensees regarding restoration and repair of the Parking Lot. 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 seventy six thousand seven hundred eighty six dollars ($76,786.00). Such security shall be conditioned on the Commission's determination whether restorations required under Section 7 have been satisfactorily completed. Licensees may substitute such security upon a written requested directed to the Commission'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 Commission's Representative. Licensee Agreement for West Page 9 of 16 8. Waste, Nuisance, and Unlawful Use Prohibited. Licensees shall not commit, or suffer to be committed, any waste on the Parking Lot, nor shall Licensees, their agents, invitees, guests, hires, contractors or subcontractors maintain, commit, or permit the maintenance or commission of any nuisance on the Parking Lot or use the Parking Lot for any unlawful purpose. Licensees shall not do or permit anything to be done in or about the Parking Lot which shall in any way conflict with any law, ordinance, rule, or regulation affecting the occupancy and use of the Parking Lot as City owned real property, which are or may hereafter be enacted or promulgated by any public authority. 9. Hazardous Materials. Licensees agree and represent that they, their agents, invitees, guests, hires, contractors or subcontractors shall not store or dispose of on the Parking Lot any "Hazardous Materials" as defined by Federal, State or local law as from time to time as amended. 10. 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. 11. Termination. a. If Licensees fail to comply with any condition of this Agreement at the time or in the manner provided for, the Commission may, at its option, terminate this Agreement and 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 Commission's Representative for Licensees to cause removal of all personal property from the Parking Lot 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 Commission may order Licensees to vacate the Parking Lot 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. Licensee Agreement for 5West Page 10 of 16 b. Licensees may terminate this Agreement, at Licensees' sole option, upon thirty (30) days prior written notice to Commission. Upon termination, Licensees shall remove their equipment and improvements, and will restore the Parking Lot to substantially the condition existing as of the commencement date of this Agreement, normal wear and tear excepted. 12. Due Diligence. Licensees shall at all times exercise due diligence in the protection of the Parking Lot against damages. 13. 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. 14. 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. 15. Assignment. Licensees may not assign this Agreement in whole or in part and may not sublet all or any portion of the Parking Lot without the prior written consent of the Commission. 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. 16. Waiver of Claims. Licensees waive all claims against the Commission and the City for injury to persons or property on or about the Parking Lot or from use of the Parking Lot. It shall be understood that the responsibility for protection and safekeeping of equipment and materials on or near the Parking Lot will be entirely that of Licensees and that no claim shall be made against the City or the Commission by reason of any act of an employee, officer, or, agent of the City or Commission 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 such claims. 17. Representatives. a. Commission's Representative. The Commission's Representative for the purpose of this Agreement shall be Thomas Thorpe, Parking Manager, or his successor or designee. Whenever approval or authorization from or Licensee Agreement for 5West Page 11 of 16 communication or submission to Commission is required by this Agreement, such communication or submission shall be directed to the Commission's Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when Commission's Representative is not available, Licensees may direct their communication or submission to other Commission 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 Andrew Halloran for Homebase and Jim Fisher for L.Keeley. 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 Commission may direct its direction or communication to other Licensee's Representative and such communication shall be determined to be communication with both Licensees. 18. 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 fiom applicable governmental authorities, and pay all fees and charges in connection therewith. 19. 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 Parking Lot. 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 Commission shall have the right to request proof of such compliance and Licensees shall be obligated to furnish such proof. The Commission may order removal from the Parking Lot of any employee or agent of Licensees or any of their subcontractors for use of controlled substances and alcohol on the Parking Lot. Licensees shall ensure the above requirements apply to all subcontractors. 20. Liens and Encumbrances. Licensees shall not permit any liens or encumbrances to be filed on the Parking Lot related to Licensees' use of the Parking Lot or construction of the Project prior to the expiration of this Agreement or termination by the Commission or Licensees as provided herein. Licensees shall furnish the Commission Licensee Agreement for 5West Page 12 of 16 with satisfactory proof that there are no outstanding liens or encumbrances in connection with Licensees' use of the Parking Lot. 21. Leases for Bridger Park. Homebase shall cause to be executed and shall maintain, as mitigation for the impacts to downtown parking facilities caused by the Project and the encroachment permit issued by the Director of Public Works dated September 16, 2015, parking space leases in the Bridger Park Downtown Intermodal Facility for the Term of this Agreement to include the 50 leases required of Mendenhall Partners, LLC pursuant to document number 2482451, records of the Gallatin County Clerk and Recorder, as follows: no less than 73 spaces to be used by Licensees, their agents, invitees, guests, hires, contractors or subcontractors associated with the Project. 22. 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. 23. Survival. Licensees' indernnification and other obligations shall survive the termination or expiration of this Agreement as specified above or for the maximum period allowed under applicable law. 24. 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. 25. Waiver. A waiver by Commission of any default or breach by Licensees of any covenants, terms, or conditions of this Agreement does not limit Commission's right to enforce such covenants, terms, or conditions or to pursue Commission's rights in the event of any subsequent default or breach. 26. Severability. If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 27. Applicable Law. The Parties agree that this Agreement is governed in all respects by the laws of the State of Montana. Licensee Agreement for 5West Page 13 of 16 28. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the Parties. 29. 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. 30. Counterparts. This Agreement may be executed in counterparts, which together constitute one instrument. 31. 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. 32. 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 or the Commission. 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 or the Commission. 33. 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. 34. 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 Assistant Bozeman City Manager. ########### End of Agreement except for signatures ########### Licensee Agreement for West Page 14 of 16 Executed this 16th day of September, 2015. Bozem n Parking Commission: r By $ -. Assistant Bozeman City Manager Date: Homebase Montana, LLC, a Montana limited liability company: Date: Andrew Halloran, managing member of Homebase Montana, LLC STATE OF MONTANA SS. County of Gallatin This instrument was acknowledged before me on thed y of , 20 by Andrew Halloran, managing member of Homebase Montana, LLC. Notary Public for the State of Montana Printed Name: (�,V-C C"" —rn- 5 Residing in tf My Commission Expires: Licensee Agreement for West Page 15 of 16 CORIE THOMAS Notary Public c.rnHi - for the State of Montana (SEAL) _ Residing at: * Belgrade, Montana �'� •,tier .. My Commission Expires: June 19. 2019 Notary Public for the State of Montana Printed Name: (�,V-C C"" —rn- 5 Residing in tf My Commission Expires: Licensee Agreement for West Page 15 of 16 L.Keeley Construction Company: By: f� _ Date:`` Tom Birkemeier, President, L.Keeley Construction Co. STATE OF ILLINOIS ss. County of This instrument was acknowledged before me on the day of , 20 ' by Tom Birkemeier, as President, L.Keeley Construction Co. a t, Notary,0,6blic for the State of Illinois Printed Name:' (SEAL) Residing in w r x ` ` My Commission Expires: s "OFFICIAL SEAL" JEAN 80WASH NOTARY PUBLIC —STATE OF ILLINOIS s MY COMMISSION EXPIRES APRIL 21 2018 Licensee Agreement for West Page 16 of 16 Bozeman Parking Commission: Assistant Bozeman City Manager STATE OF MONTANA . ss. County of Gallatin Date: Z P This instrument was acknowledged before me on the �, 1! day of 1r , 20aby Chuck Winn, Assistant Bozeman City Manager and duly authorized representative of the Bozeman Parking Commission. Notary Public for the State of Montana Printed Name: COs , Residing in ; 1-7— My -My Commission Expires: Licensee Agreement for West Page 17 of 17 CORIE THOMAS P�� TFi�tii Notary Public 0OV'Rrq4'. for the State of Montana Residing at: Belgrade, Montana �r� • . • r��; OF NtOJune My Commission Expires: 19, 2019 Notary Public for the State of Montana Printed Name: COs , Residing in ; 1-7— My -My Commission Expires: Licensee Agreement for West Page 17 of 17