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HomeMy WebLinkAboutEasementMaintenanceAgreement_06-25-21 After Recording Please Return to: EASEMENT MAINTENANCE AGREEMENT This MAINTENANCE AGREEMENT (“Agreement”, “Easement and Maintenance Agreement”) is made and entered into as of the _____day of ______ 2021 (“Effective Date”), by and between the CITY OF BOZEMAN. (“City”), with a mailing address of 121 N. Rouse, Bozeman, Montana, 59715, and BOZEMAN COHO, LLC (“COHO” ), with a mailing address of Post Office Box 161487, Big Sky, Montana 59716. City and CoHo may hereinafter be referred to collectively as the “Parties” and individually as a “Party.” RECITALS: A. CoHo is the owner of the following described real property located within the City limits in Gallatin County, Montana: PARCEL 1: Tract B of Certificate of Survey No. 526, a tract of land located in the SW% of Section 19, Township 2 South, Range 6 East, P.M.M., Gallatin County, Montana, according to the official plat there of on file and of record in the office of the county Clerk and Recorder of Gallatin County, Montana. PARCEL 2: All that part of the Southwest Quarter of Section 19, Township 2 South, Range 6 East P.M.M., Gallatin County, Montana, more particularly described as follows, to-wit: Beginning at the Northwest corner of the Southwest Quarter of said Section 19: thence East 30 feet: thence South 316.25 feet to the place of beginning; thence East parallel with the North line of the said Southwest Quarter of said Section 19, 729 feet: thence South 258.75 feet: thence West parallel with the North line of said Southwest Quarter of Section 19, 729 feet: thence North 258.75 feet to the place of beginning, as recorded in Film 65 of Deeds, Page 1961. Page 2 of 7 (CoHo’s Property) B. CoHo is developing condominiums on CoHo’s Property and has submitted a Site Plan to the City for approval. (Exhibit A). C. The Site Plan includes water and sewer easements so that the City may provide the CoHo’s Property with water and sewer services (City’s Utility Easement). D. CoHo plans to finish the surface of the City’s Utility Easement with specialized finishes, including stamped concrete and grass pavers (Special Surface Finishes). E. Should the City have to remove the Special Surface Finishes to maintain, repair and/or replace the equipment within the City’s easement, the City does not have the capacity to replace the Special Surface Finishes. F. This Easement Maintenance Agreement is necessary for the City to provide utilities to the CoHo project, and is necessary for CoHo so it can complete it’s Site Plan. AGREEMENT: NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Incorporation of Recitals. The above recitals are true and correct and incorporated herein. 2. Easement Maintenance Agreement. The City shall have the right to remove any and all Special Surface Finishes in order to maintain, repair and replace its equipment within the City’s utility easement within the CoHo project. The parties agree that the City will return the land to a finished grade, but the City will not be responsible for the replacement of any Special Surface Finishes. 3. Easement Maintenance Agreement to Run with the Land. This Agreement, the obligations, and all other covenants, agreements, rights, and obligations created hereby, shall run with, benefit and burden the CoHo’s Property, and shall benefit the development and use of the constructed on the CoHo’s Property, and shall be binding on and inure to the benefit of all Page 3 of 7 persons having or acquiring fee title to the CoHo’s Property. The Easement rights granted herein are for the sole use and benefit of the owner(s) of the CoHo’s Property and cannot be severed therefrom. This Agreement, the obligations, and all the rights and obligations of the City and CoHo with respect to thereto as set forth herein will commence as of the Effective Date and shall continue in perpetuity unless terminated in accordance with this Agreement. 4. Miscellaneous. a. Counterparts. This Easement and Maintenance Agreement may be executed in several counterparts, and all such counterparts together shall constitute one (1) Agreement binding on the Parties hereto, notwithstanding that the Parties are not signatories to the same counterpart. b. Successors and Assigns. This Agreement shall be binding on and inure to the benefit of City’s and CoHo’s respective successors and assigns; provided, however, that CoHo may not assign this Agreement, or its rights thereunder, or delegate its obligations hereunder to any third party without the express written approval of City and except concurrently with an assignment or conveyance of CoHo’s interest in the CoHo’s Property. References to CoHo and City in this Agreement shall be deemed to also refer to any successors in interest to such Parties with respect to their interests in the Parking Property and the CoHo’s Property, as applicable. c. Section Headings. Section headings are only for convenience and reference and shall in no way define, limit or prescribe the scope or intent of any provisions of this Agreement. d. Entire Agreement. This Easement and Maintenance Agreement, together with the Exhibits attached hereto, and the documents referenced and incorporated into this Agreement, contain the entire agreement of the Parties hereto with respect to the subject matter hereof and no prior written or oral agreement with respect to the subject matter hereof shall have any force or effect or be binding upon the Parties hereto. e. Severability. If any provision contained herein is found to be invalid, illegal or unenforceable by a court of competent jurisdiction, or through the act of the Legislature of this State, the remaining provisions of this Agreement shall nevertheless continue in full force and effect and be binding on the Parties hereto, their successors and assigns, and the Parties shall negotiate in good faith and attempt to agree to another provision (in lieu of the provision held to be invalid, illegal or unenforceable) that is valid, legal and enforceable and carries out the Parties intentions as closely as possible to effect the original intent and purpose. Page 4 of 7 f. Governing Law. The terms and provisions of this Easement Maintenance Agreement shall be construed under and governed by the laws of the State of Montana and venue for judicial resolution of any dispute relating to this Agreement shall be the 18th Judicial District Court, Gallatin County, Montana. g. Waivers. No provision of this Easement Maintenance Agreement shall be deemed waived except by a writing executed by the Party against whom the waiver is sought to be enforced; No waiver of any provision of this Agreement shall be deemed a continuing waiver of such provision or deemed a waiver of any other provision of this Agreement. h. Notices. All notices, requests, consents and other formal communication between the Parties that are required or permitted under this Agreement (each, a “Notice”) shall be in writing and sent to the address for the respective addressee provided in the preamble to this Agreement. The Parties may provide the required Notice by electronic means in compliance with the requirements of the Montana Uniform Electronic Transactions Act, MCA Sections 30-18-101, et seq. Each Party shall be entitled to change its Notice address from time to time by delivering to the other Party Notice thereof in the manner provided for the delivery of Notices. i. Amendment and Termination. This Easement and Maintenance Agreement may not be amended or terminated except by a written instrument signed by the Parties, or their successors in interest with respect to the Parking Property or the CoHo’s Property; provided however, if there are multiple owners of the CoHo’s Property, any amendment or termination shall require the signature of a majority in interest of the owners of the CoHo’s Property, and shall not require the signature of all owners of the CoHo’s Property. j. Default. If any Party hereto breaches any provision of this Easement and Maintenance Agreement and fails to cure such breach within ten (10) days after receipt of written notice thereof, the non-defaulting Party shall have the right to enforce the terms and provisions of this Agreement by any proceeding at law or in equity. The failure by any Party to enforce this Agreement or any term or provision hereof shall in no event be deemed a waiver of the right to do so hereunder. k. Attorney’s Fees. The prevailing Party in any action or arbitration brought to enforce or interpret this Agreement shall be awarded its costs and reasonable attorney’s fees (determined on an hourly and not a contingency fee basis), including fees and costs incurred for any appellate review. l. Authority to Execute. Each person executing this Easement Maintenance Agreement represents and warrants that the person so executing is duly Page 5 of 7 authorized to execute this Agreement for, and bind, the Party on whose behalf the person is so executing. m. Recordation. CoHo shall record this Easement Maintenance Agreement at CoHo’s sole cost and expense. In the event this Agreement is terminated, the Parties shall prepare, execute and record, at the shared expense of both Parties, any reasonable instrument necessary to release this Agreement of record. n. Disclaimer of Joint Venture. This Easement Maintenance Agreement is not intended to create a joint venture, partnership or agency relationship between City and CoHo, and such joint venture, partnership or agency relationship is specifically disclaimed. o. Survival. All terms, conditions, covenants, and indemnities which are intended to survive termination of this Easement Maintenance Agreement shall survive such termination and shall be binding upon the heirs, successors and assigns of the Parties hereto. p. Construction. The Parties to this Easement Maintenance Agreement have participated jointly in the negotiation and drafting of this Agreement. In the event of ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. DATED this _____ day of ________, 2021. City of Bozeman ___________________________________________ By: Its: ACKNOWLEDGEMENT STATE OF MONTANA ) : COUNTY OF GALLATIN ) This Instrument was acknowledged before me this ___ day of 20____ by _____________________________________ as ______________________ of the City of Bozeman. Page 6 of 7 Notary Public for the State of Montana Printed Name: (SEAL) Residing at My Commission Expires:__________, 20 BOZEMAN COHO, LLC By: Its: STATE OF MONTANA ) : COUNTY OF GALLATIN ) This Instrument was acknowledged before me this ___ day of 2021 by ___________________, as Manager of Bozeman CoHo, LLC. . Notary Public for the State of Montana Printed Name: (SEAL) Residing at My Commission Expires:__________, 20 Page 7 of 7 EXHIBIT A: SITE PLAN