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HomeMy WebLinkAbout011 Angled Parking Maintenance AgreementAfter Recording, Please Return to: City of Bozeman Department of Community Development P.O. Box 1230 Bozeman. MT 59771-1230 ANGLED PARKING MAINTENANCE AGREEMENT This ANGLED PARKING MAINTENANCE AGREEMENT ("Agreement", "Maintenance Agreement") is made and entered into this _____ day of ______________, 2022 ("Effective Date"), by and between the CITY OF BOZEMAN ("City"), with a mailing address of 121 N. Rouse, P.O. Box 1230, Bozeman, Montana, 59771-1230, and BLACKWOOD LAND FUND, LLC, a Delaware limited liability company, ("Blackwood") with a mailing address of 140 Village Crossing Way, Unit 3B, Bozeman, MT 59715. City and Blackwood may hereinafter be referred to collectively as the "Parties" and individually as a "Party." RECITALS: A. Blackwood is the owner of the following described real property located within the Bozeman City limits in Gallatin County, Montana: BLACKWOOD GROVES SUBDIVISION, PHASE 2, City of Bozeman, according to the plat thereof, on file and of record in the office of the Clerk and Recorder, Gallatin County, Montana, and located in the Southwest 1/4 of Section 24 and Northwest 1/4 of Section 25, Township 2 South, Range 5 East of P.M.M., Gallatin County, Montana. B. Blackwood is developing proposed Blackwood Groves Subdivision on the Property and has submitted a Final Plat Application to the City for approval. C. The Final Plat includes public right of ways so that the City may provide the Blackwood Property with access, water, and sewer services (City's Right of Ways). D. Blackwood plans to install angled parking stalls within the City's Right of Ways. The angled parking stalls will be installed along South 15th Avenue between Victoria Street and Blackwood Road and along Victoria Street between South 15th Avenue and South 11th Avenue. 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. Maintenance Agreement. Blackwood will install a concrete border and/or valley gutter between the paved travel lanes and the angled parking stalls. The City is responsible for all maintenance, snow removal, and all other maintenance functions of the paved travel lanes in between said concrete borders and/or valley gutters. The Blackwood Groves Owner’s Association is responsible for all maintenance, snow removal, and all other maintenance functions of the angled parking spaces as well as the concrete border and/or valley gutter. The Blackwood Groves Owner’s Association reserves the right to remove snow and ice within the City-maintained paved travel lanes within these sections in order to ensure snow and ice are removed in a timely manner to enhance public health and safety. 3. 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 Blackwood Property, and shall benefit the development and use of the constructed Improvements on the Blackwood Property, and shall be binding on and inure to the benefit of all persons having or acquiring fee title to the Blackwood Property. This Agreement, the obligations, and all the rights and obligations of the City and Blackwood 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. Waiver of Claims, Limitation of Liability, and Indemnification. Except for the City's own negligence and/or willful misconduct, Blackwood 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. Blackwood 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 Blackwood. 5. Miscellaneous. a. Counterparts. This 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 Blackwood’s respective successors and assigns; provided, however, that Blackwood 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 Blackwood's interest in the Blackwood Property. References to Blackwood 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 Blackwood 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 Maintenance Agreement 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 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 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 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 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 Blackwood Property; provided however, if there are multiple owners of the Blackwood Property, any amendment or termination shall require the signature of a majority in interest of the owners of the Blackwood Property, and shall not require the signature of all owners of the Blackwood Property. j. Default. If any Party hereto breaches any provision of this 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. 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. l. Authority to Execute. Each person executing this 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. m. Recordation. Blackwood shall record this Maintenance Agreement at Blackwood '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 Maintenance Agreement is not intended to create a joint venture, partnership or agency relationship between City and Blackwood, 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 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 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 _____________________, 2022. Grantor: Blackwood Land Fund LLC, a Delaware limited liability company ___________________________________ By: Grant Syth, Member STATE OF MONTANA ) ) ss. County of Gallatin ) This instrument was signed or acknowledged before me on this ____ day of ________________, 2022, by Grant Syth, as Member of Blackwood Land Fund, LLC, a Delaware limited liability company. _______________________________________ (SEAL) Notary Public for the State of Montana Printed Name: ______________________ Residing at: _______________, _________ My Commission Expires: _____/ _____, 20 ____. ACCEPTED - CITY OF BOZEMAN _______________________________________ By: Nicholas Ross, Director of Transportation and Engineering of the City of Bozeman STATE OF MONTANA ) )ss. County of Gallatin ) On this ________ day of ___________________, 2022, before me, a Notary Public for the State of Montana, personally appeared Nicholas Ross, known to me to be the Director of Transportation and Engineering of the City of Bozeman, and the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same for and on behalf of the City of Bozeman. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) Notary Public for the State of Montana Printed Name: ________________________ Residing at My Commission Expires / /20