HomeMy WebLinkAbout15- Etha Hotel, LLC for License Agreement for the Use of City PropertypLATT�D
AFTER RECORDING PLEASE RETURN TO: 2525356
Chuck Winn Page: 1 of 17 09/21/2015 03:112:28 PMFee: $119.00
Assistant City Manager, City of Bozeman Char� 111IIIIIIIIIIItIII II1111lls - Gallatin County, MT M I SC
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Bozeman, MT 59771-1230
2524966
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BOZEMAN PARKING COMMISSION 11
LICENSE AGREEMENT FOR THE USE OF CITY PROPERTY
BY ETHA HOTEL, LLC
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 3 803 and formed under the laws of the State of Montana,
with a mailing address of P.O. Box 1230, Bozeman, MT 59771 (the "Commission"), The Etha
Hotel, LLC (hereinafter "Etha") with a mailing address of P.O. Box 1795, Bozeman, MT 59771,
and the Commission and Etha 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
Whereas, Etha is constructing a hotel at 24 West Mendenhall (the "Project") and desires
to utilize the Parking Lot for construction staging purposes; and
Whereas, Etha has contracted with one general contractor and may contract with others to
provide construction and related services for the Project and the Commission understands
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contractors, their subcontractors and other entities contracted with or hired by Etha may use the
Parking Lot as a construction staging area during the terms of the Project; and
Whereas, the Etha 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 Etha and its contractors at all times.
Now therefore, in consideration of Etha'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 Etha for its use
of the parking lot property described below (the "Parking Lot") for the Project, during the period
commencing on the date on which the Parking Lot is closed in by fencing installed by Etha or its
contractors and no longer available for public use and in all events no later than November 1, 2015
("Effective Date") until 20 months following the Effective Date on the terms and conditions set
forth below, which Licensees promise to comply with and abide by. The Parking Manager must
authorize closure and do so upon Etha providing written notice to the Parking Manager of no less
than 48 hours.
1. Description of Parking Lot. The Parking Lot is located on the following real property:
Lots 14 and 15 and the West 26.75 feet off of Lot 16, all in Block "A" of
Tracy's First 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 79, Page 134).
2. Rent/License payment. This Agreement and permission is given to Etha for a monthly
fee license payment ("Rent") of two thousand five hundred 00/100 dollars ($2,500.00),
payable in advance on or before the 1st of each month during the term of this
Agreement. The first payment must be made prior to Etha's 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.
3. Title. Etha 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 Etha 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 Parking Lot by virtue of this Agreement or Etha's occupancy or use
hereunder. The City and Commission may enter the Parking Lot at any time to assert
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its real property interests or for other purposes which do not unreasonably interfere
with the activities of Etha.
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 Etha 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 Etha 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 Etha for Etha's 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 Etha promises to comply with and abide by. Such
right shall include the right to use the Parking Lot for purposes of providing Etha a
staging area for storage of construction materials and construction equipment and for a
construction headquarters for construction of the Project. Etha agrees 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, Etha 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 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 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, subject
to the exception stated herein, 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 Etha; (ii) the negligent, reckless, or intentional misconduct of Etha, their
officers, employees, or agents on or related to the Parking Lot; (iii) any
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negligent, reckless, or intentional misconduct of any of Etha's 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.
The Etha's obligations above shall not apply to claims made against the
Commission and/or the City which are solely the result of the intentional or
negligent acts of the Commission and/or the City or any of the Commission's
or City's representatives, employees, agents, or officials while such
Commission or City agents, representatives, employees or officials are present
on the Parking Lot and are acting within the scope of their employment or
official duties.
Etha's 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).
Subject to the exception stated above, Etha's 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
Etha 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 Etha was obligated to defend the claim(s)
or was 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.
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These obligations shall survive termination of this Agreement for the statute
of limitations period of any such claims, demands, actions, etc.
Etha shall include in all its 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 Etha is required pursuant to this subsection of 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 Etha is
required pursuant to Section 16 of this Agreement. The City and the
Commission, and their agents, representatives, employees, and officers may
require Etha to provide evidence that any of Etha's contractors or persons or
entities conducting work on the Parking Lot have provided such written release
and waiver.
b. In addition to and independent fiom subsection (a), above, during the term of
this Agreement Etha shall, at Etha's 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 Etha in subsection (a) of this Section. The
insurance coverage shall not contain any exclusion for liabilities specifically
assumed by the Etha in subsection (a) of this Section nor for any of Etha's
activities on the Site.
Etha shall notify the Commission thirty (30) 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. Etha shall notify the Commission within
two (2) business days of Etha's receipt of notice that any required insurance
coverage will be terminated or Etha's 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 Etha agrees it may not occupy the Site until such insurances
are approved by the Bozeman City Attorney.
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Etha 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 - $3,000,000 per occurrence
$5,000,000 aggregate; and
• Additional coverage as may be required by the Commission.
The parties recognize that as of the date of this Agreement Etha does not have
any employees and therefore does not have and cannot obtain Workers'
Compensation and Employers' Liability. At any point during the term of this
Agreement, should Etha employ employees, it shall notify the City prior to
such employment and obtain Workers' Compensation and Employer's
Liability coverage prior to such employment pursuant to this Agreement.
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 the Commercial General Liability and Contractual Liability policies.
c. In addition to and independent from subsections (a) and (b), above, Etha agrees
that it will require through a written agreement with its contractors that such
contractors shall name the City and the Commission as an additional insureds
as required below related to the use of the Parking Lot for construction of the
Project.
Etha agrees during the term of this Agreement that it shall require its
contractors and hires to 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-. In all events this requirements shall not be at the
expense of the City. The insurance coverage shall not contain any exclusion
for liabilities specifically assumed by Etha's or for its contractors' activities
on the Site.
Within ten (10) days following execution of this Agreement, and prior to any
occupation of the Parking Lot, Etha shall provide the Commission with proof
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of such insurance in the form of a certificate of insurance, the insuring
agreement(s), and all applicable endorsements, as may be required by the
Bozeman City Attorney, demonstrating that such insurance is in full force and
effect and shall provide such proof when requested by Commission thereafter
during the term of this Agreement.
Etha agrees to require its contractors and hires to notify the Commission thirty
(30) 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.
Etha shall notify the Commission's representative within two (2) business days
of the receipt of notice that any required insurance coverage will be terminated
or any decision to terminate any required insurance coverage for any reason.
The insurance and required endorsements must be in a form suitable to
Commission. Etha agrees it may not occupy the Parking Lot until such
insurances are approved by the Bozeman City Attorney.
Etha agrees to require its contractors and hires to 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 the Commercial General Liability and Contractual Liability policies.
6. Construction/Restrictions/Repair and Maintenance.
a. Etha may, at its sole expense and subject to approval from the City'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
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consistent with the permitted uses and in no way interferes with 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. Etha must, at its 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. Etha must, at its 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. 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 Parking Manager. Said fence shall contain a
shield or barrier that will protect the area outside the Site 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, Etha shall obtain an encroachment permit from the
Director of Public Works.
L Etha must keep these adjacent private and public properties including streets,
alleys, and sidewalks free 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. Etha shall be responsible for ensuring the sidewalks adjacent to
the Parking Lot on Mendenhall Street and North Willson Avenue 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.
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g. Etha agrees to immediately repair any damage caused by Etha, its 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 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. Etha agrees to
timely comply with any request of Commission or the City including the
Director of Public Works to perform maintenance and repairs to streets, curbs,
sidewalks and other infrastructure damaged by Etha or its 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 Etha's use of the Parking Lot or within
30 days of termination of this Agreement pursuant to Section 11, whichever is
earlier, the Etha shall cause the Site 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, Etha shall restore damage it, 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 Etha's 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, respectively. Etha may be required to enter into a
public works contract with the City for such work. Etha may cause its contractor
or other agents to conduct such restoration but in no case shall Etha be relieved
of its obligation under this Section until such restoration is accepted by the City.
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b. Prior to Etha occupying the Parking Lot, the City and Etha 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 Etha may enter into an agreement prior to the expiration
of the term of this Agreement or prior to the end of Etha's 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 Etha's 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 Etha
regarding restoration and repair of the Site. Nothing in such an agreement will
reduce the obligations of Etha under this Agreement.
e. Site Restoration Performance Bond. The Etha shall require its contractor
Langlas &Associates, Inc. to obtain a good and sufficient site restoration
performance bond payable to the City of Bozeman and in a form approved by
the Bozeman City Attorney. The performance bond shall be for the complete
restoration of the Site as required by Section 7 in an amount equal to $50,000.
Such bond shall be conditioned on the Commission's determination whether
restorations required under Section 7 have been satisfactorily completed. The
Etha guarantees the validity of any such restoration performance bond provided
by Langlas & Associates, Inc.
8. Waste, Nuisance, and Unlawful Use Prohibited. Etha shall not commit, or suffer to
be committed, any waste on the Parking Lot, nor shall Etha, its 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. Etha 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. Etha agrees and represents that its, its 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
amended.
Page 10 of 16
10. Signage. Etha, its 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 Etha fails 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 Etha.
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 shall result in
an order by the Commission's Representative for Etha to cause removal of all
personal property from the Parking Lot immediately.
Etha agrees 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 License for cessation of construction activities on the
Site does not relieve Etha of any obligations or requirements of this License.
b. Etha may terminate this Agreement, at Etha's sole option, upon thirty (30) days
prior written notice to Commission. Upon termination, Etha 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. Etha shall at all times exercise due diligence in the protection of the
Parking Lot against damages.
13. Non-discrimination. Etha 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. Etha shall require
these nondiscrimination terms of its subcontractors.
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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. Etha 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 Etha of is responsibility for the performance
of the License (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. Etha waives 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, except as to negligent or intentional acts of City employees in the scope of their
respective employment which maybe the sole cause such claims. 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 Etha 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
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, Etha may direct is
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 Cory Lawrence for the Etha. Whenever direction to
or communication with Etha is required by this Agreement, such direction or
communication shall be directed to Etha's Representative; provided, however,
Page 12 of 16
that in exigent circumstances when Etha's Representatives is not available, the
Commission may direct its direction or communication to other designated
personnel of Etha.
18. Permits. Etha 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 from applicable
governmental authorities, and pay all fees and charges in connection therewith.
19. Intoxicants; DOT Drug and Alcohol Regulations. Etha shall not permit or suffer the
introduction or use of any intoxicants, including alcohol or illegal drugs, upon the
Parking Lot. Etha 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
Commission shall have the right to request proof of such compliance and Etha shall be
obligated to furnish such proof. The Commission may order removal from the Parking
Lot of any employee or agent of Etha or any of its subcontractors for use of controlled
substances and alcohol on the Parking Lot. Etha shall ensure the above requirements
apply to all subcontractors.
20. Liens and Encumbrances. Etha shall not permit any liens or encumbrances to be filed
on the Parking Lot related to either Etha's use of the Parking Lot or Etha's construction
of the Project prior to the expiration of this Agreement or termination by the
Commission or Etha as provided herein shall furnish the Commission with satisfactory
proof that there are no outstanding liens or encumbrances in connection with Etha's
use of the Parking Lot.
21. Leases for Bridger Park. Etha shall, no later than 10 days after the Effective Date of
this Agreement, as mitigation for the impacts to downtown parking facilities caused by
this Agreement and the encroachment permit issued by the Director of Public Works
dated May 13, 2015, execute leases for parking spaces in the Bridger Park Downtown
Intermodal Facility as stated below:
a. 20 spaces to be used by Etha, its agents, invitees, guests, hires, contractors or
subcontractors vehicles associated with the Project; and
b. 34 spaces to be used at Etha's discretion by vehicles associated with the
construction of the Project or by those downtown businesses or residents that
Etha authorizes for said use. Etha must make the first monthly payments for
said leases at the time the leases are executed as stated above. This provision
does not supersede the requirement in Section 2 of the Agreement for the Use
Page 13 of 16
of Parking Spaces In the Bridger Park Downtown Intermodal Facility that the
term of leases for all spaces required pursuant to the Etha Hotel Site Plan
approval shall commence no later than the issuance of a certificate of
occupancy.
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. Etha's indemnification and warranty 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 Etha 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.
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.
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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 Etha at all times will be considered the
agents, employees, or independent contractors of Etha 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 Etha. The original of this
recorded agreement shall be returned to the Asst. City Manager.
#### END OF AGREEMENT EXCEPT FOR SIGNATURES ####
Page 15 of 16
Executed this � � day of t , 2015.
Bozeman Parking Commission:
B t { Date: t i
Assistant Bozeman City Manager
The Etha Hotel, LLC, a Montana limited liability company:
By: _ Date: —V/1 /
Cory H wrence, managing member of Etha spi ality, LLC, managing member of The
Etha Hotel, LLC
STATE OF MONTANA )
ss.
County of Gallatin )
Vd-
This instrument was acknowledged before me on the day of r 1 �. , 20 �)
by Cory Lawrence, as managing member of Etha Hospitality, LLC, fhe Etha Hotel LLC's
managing member.
THp
CORIE THOMA ,
r
o:- 9�
Notary Public
I
,()ri.rirj�. for the State of Mnntm,
Residing al:
Notary Public for the State of Montana
Belgrade, Montana
Printed Name: r -e Z
"v
My commission Explrr> ::
June 19, 2019
.F�
Residing in
My Commission Expires:Lp l
Page 16 of 16
Bozeman Parking Commission:
B _.. A -
�' -
Assistant Bozeman City Manager
STATE OF MONTANA )
ss.
County of Gallatin )
Date:
f�� f
This instrument was acknowledged before me on the __ day of E� F' 'f , 20 by
Chuck Winn, Assistant Bozeman City Manager and duly authorized representative of the Bozeman
Parking Commission.
Page 17 of 17
Notary Public for the State of Montana
Printed Name: �`d�-e E
� :
CORIE THOMAS
Notary
Residing in
�
14/'1 •, :
_.
PUblic I
for the State of Montana
My Commission Expires:
Residing at:
Belgrade, Montana
My Commission Expires:
June 19, 2019
Page 17 of 17