HomeMy WebLinkAbout18- Water and Sanitary Sewer Main Trench Subsidence Liability Agreement - 2B Holdings, LLC - Cottonwood Corner Apartments When recorded return to:
Bozeman City Clerk
PO Box 1230
Bozeman, MT 59771-1230
PLATTED
2611946
Page: 1 of 8 04/25/2018 01:46:08 PM Fee: $56.00
Charlotte Mills - Gallatin County, MT MISC
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WATER AND SANITARY SEWER MAIN TRENCH SUBSIDENCE LIABILITY
AGREEMENT FOR COTTONWOOD CORNER APARTMENTS
This Agreement is made this day of"e , 20 I� by and between
2B HOLDINGS LLC, a Montana limited liability company, with a mailing address of P.O. Box
10968, Bozeman, Montana 59719, hereinafter called the "Owner" and the City of Bozeman,
hereinafter called the "City" a self-governing Municipal Corporation operating pursuant to its
Charter and the laws of the State of Montana, with offices at 121 North Rouse Avenue, P.O. Box
1230, Bozeman, Montana 59771-1230.
THE PARTIES AGREE AS FOLLOWS:
1. As required by the Montana Public Works Specifications and City requirements,the Owner
and its agents failed to test and document the compaction of the trench backfill for the public
water and sanitary sewer mains installed by the Owner in,through, and across the
Cottonwood Corner Apartments development,hereinafter called the "Project," located on
Lots IA and 1B,Minor Subdivision No. 340B, located in the Southwest Quarter of Section
10, T 2. S.,R. 5 E. of P.M.M., City of Bozeman, Gallatin County, Montana.
2. All risks and liabilities associated with the subsidence or settlement of the trench backfill for
the public water and sanitary sewer mains are hereby assumed and shall be borne by the
Owner, its heirs, assigns, and successors, and the Owner its heirs, assigns, and successors
shall hold the City of Bozeman harmless from any liability to persons or property resulting
from or arising out of any subsidence or settlement of the trench backfill for the public water
and sanitary sewer mains.
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3. All risks and liabilities associated with the subsidence or settlement of the asphalt, concrete,
or other parking lot improvements located above, or within 10 feet of, the public water and
sanitary sewer mains, are hereby assumed and shall be borne by the Owner, its heirs, assigns,
and successors, and the Owner its heirs, assigns, and successors shall hold the City harmless
from any liability to persons or property resulting from or arising out of any subsidence or
settlement of the asphalt, concrete, or other parking lot improvements located above, or
within 10 feet of, the public water and sanitary sewer mains.
4. All risks and liabilities associated with the sagging or breaking of the public sanitary sewer
main or sagging or breaking of the public water main associated with the subsidence or
settlement of the trench backfill for the sanitary sewer and water mains in the Project are
hereby assumed and shall be borne by the Owner, its heirs, assigns, and successors and the
Owner its heirs, assigns, and successors shall hold the City harmless from any liability to
persons or property resulting from or arising out of any subsidence or settlement of the trench
backfill for the public sanitary sewer and water mains in the Project.
5. Within ten (10) business days of execution of this Agreement,the Owner must provide the
City a financial guarantee in a form acceptable to the City for 150% of the estimated cost of
replacing the backfill along the entire length of the public water and sanitary sewer mains
constructed by the Owner including but not limited to: cutting the asphalt, excavating the
trench backfill to the public water/sanitary sewer mains, replacing the backfill over the mains
in lifts, compacting the lifts, testing compaction of the lifts, pressure testing the water mains,
disinfection testing of the water mains, TV inspection of the sanitary sewer mains, and
patching the pavement cuts. The City will hold the financial guarantee for a period of at least
two (2) years. At the end of two (2) years, the Owner shall schedule an inspection with the
City Engineering Division to determine if any settlement or subsidence of trenches have
occurred. At the end of the two-year period,the City will return the financial guarantee to the
Owner only if the City Engineer agrees no subsidence or settlement has occurred related to
the public sewer and water mains or no other issues exist related to the integrity of the water
and sewer mains or the finished surfaces over the public mains. The inspection must include
a video inspection of the sanitary sewer main, which the Owner must also schedule with the
City Water and Sewer Division. Costs of such inspection shall be borne by the Owner. If the
inspection proves unsatisfactory in the City's sole discretion,the Owner must, within six (6)
months and at Owner's sole expense, and as determined by the City in its sole discretion,
reconstruct the trenches, water and sewer mains as necessary and all necessary surface
repairs prior to the City releasing the financial guarantee. In addition,prior to the City
accepting the improvements and releasing the financial guarantee, the Owner's engineer of
record must certify at the end of two years that no substantial settlement has occurred that
would compromise the integrity of the public water and sewer mains or the finished surfaces
over the public mains.
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6. Notwithstanding paragraph five, above, the Owner must perform an annual inspection one
year from the date of this Agreement to verify no issues have arisen associated with
subsidence or settlement of the trench backfill for the public sanitary sewer and water mains
and no other issues exist related to the integrity of the mains or the finished surfaces over the
public mains. The Owner's engineer must file an inspection report with the City Engineer.
Any observed issues related to trench backfill settlement or subsidence or related to the
integrity of the sewer and water mains must, as determined by the City in its sole discretion,
be immediately corrected by the Owner.
7. The terms, covenants, and provisions of this Agreement shall be binding upon the heirs,
executors, administrators,personal representatives, successors, and assigns of the parties
hereto, including members of a property owners' association for the Cottonwood Corner
Apartments, be of record with the clerk and recorder's office, and be a covenant running with
the land.
8. If the Owner defaults in or fail to fully perform any of its obligations in conformance with
the time schedule under this Agreement, and such default or failure shall continue for a
period of ten(10) days after written notice specifying the default is deposited in the United
States mail addressed to the Owner at P.O. Box 10968, Bozeman, Montana 59719, or such
other address as the Owner shall provide to the City from time to time, without being
completely remedied, satisfied, and discharged, the City may elect to enforce any of the
following specified remedies:
a. The City may, at its option, declare the financial guarantee to be forfeit, take
possession of funds secured by the financial guarantee pursuant to any lawful
means, and secure the complete construction and inspection of the sewer and
water mains and all surfaces disturbed by such construction. The City's
representative, contractors, and engineers shall have the right to enter upon the
Project property and perform such work and inspection, and the Owner shall
permit and secure any additional permission required to enable them to do so.
The City shall be entitled to an administrative fee of 10% of the costs of
conducting the work. In the event that any funds remain from the financial
guarantee upon completion of all improvements, such funds shall be promptly
returned to the Owner.
b. If costs and expenses, including the administrative fee, exceed the amount of the
financial guarantee, the Owner, its heirs, representatives, and successors shall,
within 30 days written notice of such exceedance, reimburse the City for all costs
and expenses, including the administrative fee, which exceed the financial
guarantee.
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c. The City may enforce any other remedy provided by law.
9. To the fullest extent permitted by law, the Owner agrees to release, defend, indemnify, and
hold harmless the City, its agents, representatives, employees, and officers (collectively
referred to for purposes of this Section as the City) from and against any and all claims,
demands, actions, fees and costs (including attorney's fees and the costs and fees of and
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
settlement or subsidence of the trench backfill for the public water and sanitary sewer mains
or, if reconstruction is undertaken by the City for Owner's failure to reconstruct as required
by the City, the City's reconstruction of the sewer and water mains and related surface
improvements.
10. Owner's assumptions of liability and agreements of indemnity specifically provided under
this Agreement shall remain in force and effect until the later of. (i) satisfactory inspection
and approval by the City Engineer at the end of the 2-year period; or (ii) satisfactory
completion and City approval of any reconstruction that may be required under this
Agreement. Such obligations shall not be construed to negate, abridge, or reduce other rights
or obligations of indemnity that would otherwise exist. 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). Owner'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 Owner to assert its right to defense or indemnification under
this Agreement or under the Owner'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 Owner was obligated to defend the claim(s) or was obligated to indemnify the
indemnitee for a claim(s) or any portion(s)thereof.
11. In the event of an action filed against City or any of the indemnitee(s)resulting from the
City's performance under this Agreement, including reconstruction of the sewer and water
mains, trench, and related surface improvements, the City or an indemnitee may elect to
represent itself and incur all costs and expenses of suit.
12. Owner waives any and all claims and recourse against the City or its officers, agents or
employees, including the right of contribution for loss or damage to person or property
arising from, growing out of, or in any way connected with or incident to the performance of
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this Agreement, including reconstruction of the sewer and water mains, trench, and related
surface improvements, and the Owner's failure to comply with the Montana Public Works
Specifications and other City requirements except"responsibility for his own fraud, for
willful injury to the person or property of another, or for violation of law, whether willful or
negligent"as per 28-2-702, MCA.
13. Representatives:
a. City's Representative: The City's Representative for the purpose of this
Agreement shall be the City Engineer or such other individual as City shall
designate in writing. 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 Engineer as 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, Owner may direct its communication or submission to other designated
City personnel or agents as listed above and may receive approvals or
authorization from such persons.
b. Owner's Representative: The Owner's Representative for the purpose of this
Agreement shall be 13,en or such other individual as the
Owner shall designate in writing. Whenever direction to or communication with
Owner is required by this Agreement, such direction or communication shall be
directed to Owner's Representative; provided,however,that in exigent
circumstances when Owner's Representative is not available, City may direct its
direction or communication to other designated Owner personnel or agents.
14. Dispute Resolution:
a. 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.
b. If the parties are unable to resolve the dispute within thirty (30) days from the
date the dispute was first raised,then such dispute may only be resolved in a court
of competent jurisdiction in compliance with Section 17 of this Agreement.
15. Contractor's indemnification shall survive the termination or expiration of this Agreement
for the maximum period allowed under applicable law.
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16. If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall
continue in effect.
17. The parties agree that this Agreement is governed in all respects by the laws of the State of
Montana.
18. This Agreement is binding upon and inures to the benefit of the heirs, legal representatives,
successors, and assigns of the parties.
19. 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.
20. This Agreement may be executed in counterparts, which together constitute one instrument.
21. This Agreement and all Exhibits attached hereto constitute 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.
22. This Agreement will be recorded by the City in the records of the Gallatin County Clerk and
Recorder.
The parties have executed this agreement on the day and year first written above.
####End of Agreement Except for Signatures ####
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OWNER:
2B HOLDINGS, LLC
By:
Be •. n istler, Manager
DATED this day of , 20�.
STATE OF MONTANA )
):ss
County of Gallatin )
On this day of r—'?j�u,avrv\ , 20 A,before me the undersigned, a Notary
Public for the State of Montana,personally appeared BENJAMIN E. NISTLER,known to me to
be Manager of 2B HOLDINGS, LLC, a Montana limited liability company and the person whose
name is subscribed to the within instrument, and acknowledged to me that he executed the within
instrument for and on behalf of 2B HOLDINGS, LLC, a Montana limited liability company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the
day and year first above written.
SHEILA TINJUM
(SEAL) gt`•....• . ; Notary Public
aoTas�q�• :for the State of Montana
*: _._ •*_ Residing at:
.UN SEAL. e; Bozeman, Montana
My Commission Expires:
August 03,2019
Notary Public f the State of Montana
(Printed Name)
Residing at 9vze't'n" M
My Commission expires o� o .s /2-r /
Page 7 of 8
ACCEPTED: CITY OF BOZEMAN
\ I
By:
City Manager
ATTEST: `OF,B OZ•
Robin Crough, City Cl,-, •• -""� `�'.•�� '
-; • '• 1883
o
STATE OF MONTANA ) L9TIN co��l
) ss.
County of Gallatin )
On this (q+k day of '�pzi ,201 lam,before me, a Notary Public for the State of
Montana, personally appeared X'P i and ROBIN CROUGH, known to
me to be the City Manager and City Clerk for the City of Bozeman and the persons whose names
are subscribed to the within instrument, and acknowledged to me that they executed the same for
and on behalf of the City of Bozeman.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal on the day and year
first above written.
BRENDA SWEENEY
A3WFFti'; Notary Public
�o
�`m�.'N�TARIAC <':for the State of Montana
Notary Public for the State of Nontana *: -- :*= Residing at:
Printed Name ` q.SEAL,,-'* Bozeman, Montana
Y e1f�d.A��S a My commission Expires:
Residing at�oz�� ' OF �'. December 02,2018
My Commission Expires /Q-/_-/20 /f
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