HomeMy WebLinkAbout23 - Hold Harmless & Indemnification - MJN Properties LLC - Nahorniak Commons 2797948
Page, 1 of 5 03127/2023 12 44: 13 PM Fee. $40,00
Eric Semerad - Gallatin County, MT MISC
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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
&Kh , 208 by and between MJN 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 the Engineering Infrastructure Application
number 1458, (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.
1458, Nahorniak Commons, Engineering Infrastructure
Hold Harmless Agreement Regarding Conducting a Preconstruction Meeting Prior to
Receipt of Final DEQ Project Approval Letter
Page I of 5
2797948 Page 2 of 5 03/27/2023 12:44:13 PM
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
1458, Nahorniak Commons, Engineering Infrastructure
Hold Harmless Agreement Regarding Conducting a Preconstruction Meeting Prior to
Receipt of Final DEQ Project Approval Letter
Page 2 of 5
2797948 Page 3 of 5 03/27/2023 12:44:13 PM
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.
G. 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 tenns 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###
1458, Nahorniak Commons, Engineering Infrastructure
Hold Harmless Agreement Regarding Conducting a Preconstruction Meeting Prior to
Receipt of Final DEQ Project Approval Letter
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2797948 Page 4 of 5 03/27/2023 12:44:13 PM
DATED this a day of ac�� , 202;_.
DEVELOPER
a
MJN Properties, LLC
By: Mark. Nahorniak
Title: Owner
STATE OF
:ss
COUNTY OF )
On this 2"—`` day of rA , 202 3, before me, the undersigned, a Notary
Public for the State of M� ��� , personally appeared
known to me to be the landowner 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)
(PrinW Name Here) K I G7.
"'YIA KAYLA G Notary Public for the Statetj On4741 O-J
Notary Public �h? t�
No'tAR1,q�. `< for the state of Montana Residing at tZ/?, r
,; Residing at: My Commission Expires: mr, f , 'NZI/
�} SF,A1..-�_ Bozeman, Montana (Use 4 digits for expiration year)
My Commission Expires:
December 1, 2026
1458, Nahorniak Commons, Engineering Infrastructure
Hold Harmless Agreement Regarding Conducting a Preconstruction Meeting Prior to
Receipt of Final DEQ Project Approval Letter
Page 4 of 5
2797948 Page 5 of 5 03/27/2023 1 2:44:13 PM
CITY OF BOZEMAN
B . , ff TihcIfc1i9 City Manager
ATTEST: of 13
City Clerk88.3
`v co. TAO
STATE OF MONTANA )
:ss
COUNTY OF GALLATIN ) JJ
On this�day of U�-Jln _-_ , 2023 , 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) r
Nota PL Iic for the State of Montana
i �E Ht,Al;;, JULIE HUNTER
Notary public
Nos�Rrq�. for the State of Montana
Residing at:
y SEAL•'"e: Bozeman, Montana
My Commission Expires:
June 11, 2025
1458, Nahorniak Commons, Engineering Infrastructure
Hold Harmless Agreement Regarding Conducting a Preconstruction Meeting Prior to
Receipt of Final DEQ Project Approval Letter
["age 5 of 5