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HomeMy WebLinkAbout20- Indemnification Agreement - Wallace-Babcock Properties, LLC - South Wallace Sewer UpgradeIndemnity Agreement Wallace & Babcock LLC Page 1 of 6 City of Bozeman Indemnification Agreement This Agreement for Indemnification, to Hold Harmless and defend arising out of Montana Department of Transportation Utility Occupancy and Location Agreement by and between the City of Bozeman and the State of Montana, Department of Transportation for the Wallace and Main Project, dated July 15, 2020 (hereinafter “MDT Agreement”). This agreement is by and between Wallace - Babcock Properties, LLC (“Developer”) with address of 1283 N 14th Ave., Suite 101, Bozeman, Montana, 59718, and the City of Bozeman, PO Box 1230, Bozeman, Montana 59771 (“City”). RECITALS Whereas, Developer is a Montana limited liability company which has been permitting and constructing the Wallace and Babcock Building – City of Bozeman Project 27148 on the real property described as Lot 13A of the Amended Plat of Lot 13, Lot 14, Lot 15A and Lot 16A, Block A of Rouse’s 2nd Addition to Bozeman, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder, Gallatin County, Montana (Plat Reference: C-6-F) (“Development Project”); and Whereas, to proceed with the Development Project, Developer must upgrade the sewer main consistent with the South Wallace Sewer Upgrade - City of Bozeman Project - Site Plan Development 17-263 and incorporated located in the State of Montana Highway commonly referred to as East Main Street (“Sewer Project”); and Whereas, at the end of the Development Project the newly installed lines within the Sewer Project will become the property of the City and be permanently located in the State of Montana Highway right of way, which is under the authority of the Montana State Department of Transportation (“MDT”); and Whereas, MDT requires the City to consent to the MDT Agreement and refuses to issue an occupancy permit or encroachment permit for the Sewer Project until such time as the City has signed the Agreement; and DocuSign Envelope ID: 5492C28D-A9E2-4114-99A9-E9D09D34B241 Indemnity Agreement Wallace & Babcock LLC Page 2 of 6 Whereas, the City and Developer agree the terms and conditions of the MDT Agreement as required by MDT erroneously shift responsibilities and obligations away from Developer to the City; and Whereas, Developer remain steadfast in supporting the efforts of the City to secure water and sewer service to the Development Project and agree to be fully responsible for fulling the conditions of the MDT Agreement and release the City from responsibility to do so. Now therefore Developer and the City agree as follows: 1. Purpose and Consideration/Developer’s Responsibilities. The purpose of this Agreement is for the City and Developer to understand the City consents to sign the MDT Agreement only if Developer enters into this Agreement and willingly accepts the responsibilities, obligations, and liabilities imposed by MDT upon the City pursuant to the MDT Agreement. As such, in exchange for the City executing the MDT Agreement and any further permits required by MDT in order for the Development Project to proceed, which is recognized as good valuable consideration for both parties, Developer agrees to be solely responsible and obligated for fulfilling, abiding by, and complying with the MDT Agreement and the terms and commitments set forth therein. Such terms include but are not limited to the Terms and Conditions as stated in the MDT Agreement, Standard MDT Permit Conditions, and any other requirement imposed upon the City as part of MDT’s authorization to construct the Sewer Project. 2. Indemnity. Should MDT or any other party attempt to enforce against the City any and all provisions of the MDT Agreement, Developer must immediately take all steps and actions necessary, regardless of cost or effort required, to comply with the requirements and fulfill all obligations of the MDT Agreement. In addition, Developer shall hold harmless, defend and indemnify the City from all actions, damages, costs, including attorney’s fees which may arise out of MDT’s enforcement actions or which become necessary to comply with the MDT Agreement. In addition, the duty and obligation to indemnify the City, its officers, agents, and employees extends to the duty and obligation to hold harmless, defend and indemnify the City, it’s officers, agents, and employees, from all actions, damages, claims, obligations, liabilities, demands, judgements, and costs, including attorney’s fees, of any kind which may arise in relation to Developer’s activities in performance of the MDT Agreement and design, engineering, and construction of the Sewer Project. DocuSign Envelope ID: 5492C28D-A9E2-4114-99A9-E9D09D34B241 Indemnity Agreement Wallace & Babcock LLC Page 3 of 6 3. Representatives and Notices. 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’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, Developer may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Consultant’s Representative: The Developer’s Representative for the purpose of this Agreement shall be or such other individual as Developer shall designate in writing. Whenever direction to or communication with Developer is required by this Agreement, such direction or communication shall be directed to Developer’s Representative; provided, however, that in exigent circumstances when Developer’s Representative is not available, the City may direct its direction or communication to other designated Developer personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 4. Permits. Developer shall provide all notices, comply with all applicable 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. 5. Costs to the City. Developer agrees to reimburse the City for all costs related to the City entering into the MDT Agreement. 6. Laws and Regulations. Developer shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, DocuSign Envelope ID: 5492C28D-A9E2-4114-99A9-E9D09D34B241 Indemnity Agreement Wallace & Babcock LLC Page 4 of 6 Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non- discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 7. Nondiscrimination and Equal Pay. The Developer agrees that all hiring by Developer of persons performing this Agreement shall be on the basis of merit and qualifications. The Con Developer tractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Developer will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Developer represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Developer must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Developer shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 8. Modification and Assignability. This Agreement may not be enlarged, modified, amended or altered except by written agreement signed by both parties hereto. The Developer may not subcontract or assign Developer’s rights or duties arising hereunder, without the prior written consent of the City. 9. Non-Waiver. A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 10. Attorney’s Fees and Costs. In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in- house counsel including the City Attorney’s Office staff. DocuSign Envelope ID: 5492C28D-A9E2-4114-99A9-E9D09D34B241 Indemnity Agreement Wallace & Babcock LLC Page 5 of 6 11. 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 the Applicable Law provisions of this Agreement. 12. Survival. Consultant’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 13. Legal Review. The City and Developer sought independent legal advice prior to executing this Indemnification Agreement. 14. 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. 15. Severability. If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 16. Applicable Law. The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 17. Binding Effect. This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 18. 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 including but not limited to Developer’s contractors or MDT. 19. Counterparts. This Agreement may be executed in counterparts, which together constitute one instrument. 20. Integration. This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein 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. DocuSign Envelope ID: 5492C28D-A9E2-4114-99A9-E9D09D34B241 Indemnity Agreement Wallace & Babcock LLC Page 6 of 6 21. Consent to Electronic Signatures. The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** The person signing below represents it has the authority to enter into this Agreement on behalf of its respective entity. Wallace – Babcock Properties, LLC By __________________________________ DATE: _________ Peter Belschwender, Managing Member City Of Bozeman By ___________________________________ DATE: _________ Jeff Mihelich, City Manager Attested by: ______________________________________ DATE: _________ City Clerk DocuSign Envelope ID: 5492C28D-A9E2-4114-99A9-E9D09D34B241 7/16/2020 7/20/2020 7/20/2020