HomeMy WebLinkAbout21- Easement Maintenance Agreement - Bozeman COHO, LLC - Parcel 1, Tract B Survey 526, Parcel 2 SW Q. 19 Township 2 After Recording Please Return to: V4PL�T�EJ
City of Bozeman
Department of Community Development
P.O.Box 1230
Bozeman,MT 59771 2758748
Page 1 of 9 11/17/2021 03:22:45 PM Fee: $72.00
Eric semerad - Gallatin County, MT MISC
IIIII Ell 11111 III�111111�111
EASEMENT MAINTENANCE AGREEMENT
This MAINTENANCE AGREEMENT ("Agreement", "Easement 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.
(Collectively, "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).
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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 any component of the water and sewer utilities within the City's
easement, the City will not repair or 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 its 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 any component of the water and
sewer utilities within the City's utility easement on the CoHo Property. The Parties agree that
the City will return the land to a finished grade, but the City will not be responsible for the repair
or 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 Improvements on the CoHo's Property, and shall be binding on and inure to the
benefit of all persons having or acquiring fee title to the CoHo's Property. 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.
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4. Waiver of Claims, Limitation of Liability, and Indemnification. Except for the City's
own negligence and/or willful misconduct, CoHo hereby expressly agrees to indemnify and hold
the City harmless for and against all claims, costs, and liability of every kind and nature, for
injury or damage received or sustained by any person or entity in connection with this
Agreement. CoHo further agrees to aid and defend the City in the event that it is named as a
defendant in an action concerning this Agreement, except where the suit is brought by CoHo.
To the fullest extent permitted by law, CoHo waives all claims against the City, its
officers and employees, agents, insurers, and consultants for any and all claims for or.entitlement
to special, incidental, indirect, or consequential damages arising out of, resulting from, or in any
way related to this Agreement.
In addition to the above, except in matters involving the City's own negligence and/or
willful misconduct, CoHo shall defend and indemnify the City from any claims brought against
the City by any of CoHo's partners, investors, creditors, lenders, agents, or any other entity
associated with CoHo for claims related to this Agreement.
5. 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 parry 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 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 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.
Page 3 of 8
e. Severability. If any provision contained herein is found to be invalid, illegal
or unenforceable 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.
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 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 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
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
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term or provision hereof shall in no event be deemed a waiver of the right to
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do so hereunder.
k. Attorney's Fees. In the event it becomes necessary for either party to this
Agreement to retain an attorney to enforce any of the terms or conditions of
this Agreement, then the prevailing party shall be entitled to reasonable
attorney's fees and costs, including fees, salary, and costs of in-house counsel
including the City Attorney.
1. Authority to Execute. Each person executing this Easement Maintenance
Agreement represents and warrants that the person so executing is duly
authorized to execute this Agreement for, and bind, the Party on whose behalf
the person is so executing.
in. 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.
** END OF AGREEMENT EXCEPT FOR SIGNATURES**
Page 5 of 8
DATED this i if day of N %10E021.
City of Bozeman
By:
Its:
ACKNOWLEDGEMENT
STATE OF MONTANA )
COUNTY OF GALLATIN )
This Instrument was acknowledged before me this l-Ir"day of Igo,JeN►b2r 20 Z I by
Sco+P Sh;r-le— as 3:Menm Pw61-c. Mks '0`nd06f the City of
Bozeman.
Notary PuA forQhAtate of Montana
Printed Name:
(SEAL) Residing at $a l4 r-a dg
My Commission Expires: , 20 ZS
MARCY YEYKAL
>'`PPGY YEy ,
Notary Public
.,00TAFIq� ?for the State of Montana
- — Residing at:
' SEAL. Q Belgrade, Montana
9 P=' My Commission Expires:
OFM `' July 14,2025
Page 6 of 8
DATED thiO day of 4 6 U 5 , 2021.
GRANTOR—Bozeman COHO, LLC
By: 11?ar 60
its: // 11o,"k1 ; 14
STATE OF MONTANA )
):ss
County of Gallatin )
On this day of t,,L , 20 �1 , before me the undersigned, a Notary
Public for the State of Montana, personally appeared OAPIL Oluf&> , known to
me to be of �y-- Get- 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 Bozeman COHO, LLC.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal
the day and year first above written.
(Printed Name) G I-t 5 r5 Un G5 r�
C Q��DESKI
.0 ,> ( r/�biic Notary Public for the State of Bk o'
V r�pSARlq� `,for the State of Montana
Residing at: Residing atT
* SEAL.._s Bozeman, Montana yExpires
9jF.. P ' My Commission Expires: M Commission
OF MO,,`° November 26,2023
Page 7 of 8
EXHIBIT A: INDEMNIFICATION EXHIBIT
Page 8 of 8
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PROJECT NUMBER
DATE
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