HomeMy WebLinkAbout023-Hold Harmless23114, Nelson Meadows Business Park, Site Plan Hold Harmless Agreement Regarding Conducting a Preconstruction Meeting Prior to
Receipt of Final DEQ Project Approval Letter
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Original to: City of Bozeman City Clerk PO Box 1230 Bozeman, MT 59771-1230
HOLD HARMLESS AGREEMENT TO PROCEED WITH DEVELOPMENT PRIOR TO RECEIVING A FINAL PROJECT APPROVAL LETTER FROM THE MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY This Hold Harmless Agreement (Agreement) is made and entered in to this ____ day of ____________, 20__, by and between Summit Properties, LLC, (Developer) and the City of Bozeman, a Municipal Corporation of the State of Montana operating pursuant to its Charter (City).
WHEREAS, Developer has submitted Site Plan Application number 23114, (Application) which has received approval from the City’s Department of Transportation and Engineering;
WHEREAS, the City’s Design Standards and Specifications Policy (DSSP)provides, “For projects subject to Department of Environmental Quality (DEQ) review and approval, a copy of the project approval letter from DEQ must be submitted to the City Engineer prior to the preconstruction meeting” and “No work is to begin on the project prior to obtaining the [City’s] and DEQ’s written approval of the plans and specifications, and the completion of a
preconstruction meeting conducted by the Owner’s Engineer and attended by the Contractor(s) and [City] representative(s). …” (See DSSP, Section A, Standard Process, pp. 5-6); WHEREAS, DEQ is experiencing delays in reviewing and providing final approval letters to applicants;
WHEREAS, the City is willing to allow Developer to proceed with a preconstruction meeting and subsequent construction, solely at the Developer’s risk and after execution of this Agreement, prior to receiving a final project approval letter from DEQ; and
WHEREAS, the City is in the process of amending its Design Standards and Specification Policy to allow commencement of a preconstruction meeting and subsequent construction so long as a Hold Harmless Agreement substantially similar to this Agreement is executed between the Developer and the City.
23114, Nelson Meadows Business Park, Site Plan Hold Harmless Agreement Regarding Conducting a Preconstruction Meeting Prior to
Receipt of Final DEQ Project Approval Letter
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THEREFORE, in consideration of the mutual promises and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, including the City
allowing Developer to proceed with the preconstruction meeting and subsequent construction prior to receiving a final project approval letter from DEQ, the Developer hereby agrees as follows:
1. Incorporation of Recitals. The foregoing recitals of this Agreement are hereby
incorporated by reference. 2. Release, Hold Harmless, and Indemnification.
a. Developer agrees to release, indemnify and hold harmless the City, its officers,
agents, and employees (Indemnitee) from and against any suit, cause of action, claim, cost, expenses, obligation, and liability of any character, including attorney’s fees to include costs and salary of attorney employed by or retained by the City, which are brought or asserted for any injury, death, or damage to
property, costs, damages, and for any other expenses, costs, and fees related to
loss of use of property or other economic losses of any nature, as the above may be received or sustained by any person(s), property, business or other entity, arising out of, resulting from, or in connection with commencing a preconstruction meeting and subsequent construction, including any revision to
work necessitated by DEQ prior to issuing a final project approval letter, and the
City’s decisions regarding approval of the Application prior to receiving a final project approval letter from DEQ. b. Such indemnification obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist,
including any common-law or statutory rights of the Indemnitee. c. Developer’s indemnity under this Agreement shall be without regard to and without any right to contribution from any insurance maintained by the City. d. Should any Indemnitee described herein be required to bring an action against the Developer to assert its right to defense or indemnification under this Agreement,
the Indemnitee shall be entitled to recover reasonable costs and attorney fees,
including the costs and salary of attorneys employed by or retained by Indemnitee incurred in asserting its right to indemnification or defense, but only if a court of competent jurisdiction determines the Developer was obligated to defend the claim(s) or was obligated to indemnify the Indemnitee for a claim(s) or any
portion(s) thereof. e. In the event of an action filed against any Indemnitee resulting from the Indemnitee’s performance under this contract, the Indemnitee may elect to represent itself and incur all costs and expenses of the action. f. Developer also waives any and all claims and recourse against Indemnitee,
including the right of contribution for loss or damage to a person or property
23114, Nelson Meadows Business Park, Site Plan Hold Harmless Agreement Regarding Conducting a Preconstruction Meeting Prior to
Receipt of Final DEQ Project Approval Letter
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arising from, growing out of, or in any way connected with or incident to the performance of this Agreement.
g. These obligations shall survive termination of this Agreement and its
performance. 3. Construction in the Public Right-of-Way and Connecting to City Infrastructure. Developer is prohibited from connecting to any public infrastructure, including but not limited to
roads, water, and sanitary sewer systems until the City receives a final project approval letter
from DEQ. 4. Remedies. In addition to any other remedy available to the City at law or equity, Developer agrees that should the Developer not provide a final project approval letter from DEQ,
the City or its agents may, for any of the real property that is the subject of the Application or
this Agreement, and without notice issue an order stopping work on the ongoing construction of any building or structure or deny the issuance of any building permit or site plan final approval, or both.
5. Successors and Assigns. The terms, covenants and conditions of this Agreement
shall run with the land and be binding upon and shall inure to the benefit of the City and the Developer and their respective successors and assigns. 6. Attorney’s Fees and Costs. In the event it becomes necessary for either party of this
Agreement 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 those attorneys employed or retained by the City.
7. Governing Law. This Agreement is executed and delivered and is to be performed in
Montana and it shall be governed by and construed in accordance with the laws of the State of Montana. 8. Entire Agreement. This Agreement expressly terminates all previous agreements
among the parties and constitutes and contains the entire agreement between the City and
Developer and supersedes any and all prior negotiations, correspondence, understandings, and agreements between the parties with respect to the subject matter of this Agreement.
###END OF AGREEMENT EXCEPT FOR SIGNATURES###
23114, Nelson Meadows Business Park, Site Plan Hold Harmless Agreement Regarding Conducting a Preconstruction Meeting Prior to
Receipt of Final DEQ Project Approval Letter
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DATED this _____ day of __________________, 202__.
DEVELOPER
_________________________________________ Summit Properties, LLC By: David Schultz Title: Member
STATE OF ____________ ) :ss COUNTY OF __________ )
On this ________ day of ____________________, 202__, before me, the undersigned, a Notary Public for the State of , personally appeared ___David Schultz__, known to me to be the _Member_ of __Summit Properties, LLC__ that executed the within instrument, and acknowledged to me
that they executed the same for and on behalf of landowner. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. (SEAL)
_________________________________________
(Printed Name Here) Notary Public for the State of _________ Residing at _______________________ My Commission Expires:____________
(Use 4 digits for expiration year)
23114, Nelson Meadows Business Park, Site Plan Hold Harmless Agreement Regarding Conducting a Preconstruction Meeting Prior to
Receipt of Final DEQ Project Approval Letter
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CITY OF BOZEMAN
____________________________________ By: Jeff Mihelich, City Manager
ATTEST:
________________________________ City Clerk
STATE OF MONTANA ) :ss COUNTY OF GALLATIN )
On this _____ day of , 202__, before me, a Notary Public
for the state of Montana, personally appeared Jeff Mihelich and Mike Maas, known to me to the persons described in and who executed the foregoing instrument as City Manager and City Clerk respectively, of the City of Bozeman, whose names are subscribed to the within instrument and acknowledged to me that they executed the same for and on behalf of said City.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. (SEAL)
_________________________________________
Notary Public for the State of Montana