HomeMy WebLinkAbout23 - Hold Harmless & Indemnification - Black Dirt,LLC - South Range Condominium, Southbridge SubdivisionPhase 1 Water and Sanitary Sewer Main Trench Subsidence Liability Agreement for South Range Condominium
When recorded return to: 2813785
Page: 1 of 9 10/23/2023 03:48:51 PM Fee: $72.00
Bozeman City Clerk
Eric Semerad - Gallatin County, MT MISC
PO Box 1230
Bozeman,MT 59771-1230
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WATER A NIT RV SEWER MAIN TRENCH ID .N LIARTUTY
AGREEMENT FOR SOUTH RANGE CONDOMINIUM
This Agreement is made this (o day of OGTo gcR— , 2o23 by and between Black
Dirt,LLC, a Montana limited liability company with a mailing address of 2320 W Main STE
6,Bozeman,MT 59718, hereinafter called the "Owner" and the City of Bozeman,hereinafter
called the "City" a self-governing Municipal Corporation operating pursuant to its Charter and
the laws of the State of Montana,with offices at 121 North Rouse Avenue, P.O.Box 1230,
Bozeman, Montana 59771-1230.
THE PARTIES AGREE AS FOLLOWS:
1. As required by the Montana Public Works Specifications and City requirements,the Owner
and its agents failed to test and document the compaction of the trench backfill for the public
water and sanitary sewer mains installed by the Owner in,through, and across the South
Range Condominium,hereinafter called the "Project," located on Lot 1, Block 5,
Southbridge Subdivision Phase 1A, located in the Southeast Quarter of Section 23, T. 2 S.,
R. 5 E. of P.M.M., City of Bozeman, Gallatin County, Montana.
2. All risks and liabilities associated with the subsidence or settlement of the trench backfill for
the public water and sanitary sewer mains are hereby assumed and shall be borne by the
Owner, its heirs, assigns, and successors, and the Owner its heirs, assigns, and successors
shall hold the City of Bozeman harmless from any liability to persons or property resulting
from or arising out of any subsidence or settlement of the trench backfill for the public water
and sanitary sewer mains.
3. All risks and liabilities associated with the subsidence or settlement of the asphalt, concrete,
or other parking lot improvements located above, or within 10 feet of,the public water and
sanitary sewer mains, are hereby assumed and shall be borne by the Owner, its heirs,assigns,
and successors, and the Owner its heirs, assigns, and successors shall hold the City harmless
from any liability to persons or property resulting from or arising out of any subsidence or
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Water and Sanitary Sewer Main Trench Subsidence Liability Agreement for South Range Condominium
settlement of the asphalt, concrete, or other parking lot improvements located above, or
within 10 feet of, the public water main.
4. All risks and liabilities associated with the sagging or breaking of the public water and
sanitary sewer mains associated with the subsidence or settlement of the trench backfill for
the water and sanitary sewer mains in the Project are hereby assumed and shall be borne by
the Owner, its heirs, assigns,and successors and the Owner its heirs, assigns, and successors
shall hold the City harmless from any liability to persons or property resulting from or arising
out of any subsidence or settlement of the trench backfill or sagging or breaking of the public
water and sanitary sewer mains in the Project.
5. Within ten(10)business days of execution of this Agreement,the Owner must provide the City a
financial guarantee in a form acceptable to the City for 150% of the estimated cost of replacing
the backfill along the entire length of the public water and sanitary sewer mains constructed by
the Owner including but not limited to: cutting the asphalt, excavating the trench backfill to the
public water and sanitary sewer mains,reconstructing the water and sanitary sewer mains,
replacing the backfill over the mains in lifts, compacting the lifts,testing compaction of the lifts,
pressure testing the water mains, disinfection testing of the water mains, TV inspection of the
sanitary sewer mains, cleaning of the sanitary sewer mains, exfiltration testing the sanitary sewer
mains, and patching the pavement cuts. The City will hold the financial guarantee for a period of
at least three(3)years. If at the end of the three(3)year period,the provisions of this Agreement
are not met to the City's satisfaction the Owner must provide an updated financial guarantee on
terms acceptable to the City.No later than September 30, 2026,the Owner shall schedule and
conduct an inspection with the City Engineering Division to determine if any settlement or
subsidence of trenches have occurred. Within a reasonable time after the inspection,the City will
return the financial guarantee to the Owner only if the City Transportation&Engineering
Department agrees no subsidence or settlement has occurred related to the public water and
sanitary sewer mains or no other issues exist related to the integrity of the water and sanitary
sewer mains or the finished surfaces over the public mains. The inspection must include a video
inspection of the sanitary sewer main and a pressure test of the water main,which the Owner
must also schedule and conduct prior to September 30,2026 with the City Water and Sewer
Division. Costs of such inspection shall be borne by the Owner. If the inspection proves
unsatisfactory in the City's sole discretion,the Owner must,prior to November 15,2026 and at
Owner's sole expense, and as determined by the City in its sole discretion,reconstruct the
trenches,water and sanitary sewer mains as necessary and all necessary surface repairs prior to
the City releasing the financial guarantee. In addition,prior to the City accepting the
improvements and releasing the financial guarantee, the Owner's engineer of record must certify
no later than September 30,2026 that no substantial settlement has occurred that would
compromise the integrity of the public water and sanitary sewer mains or the finished surfaces
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Water and Sanitary Sewer Main Trench Subsidence Liability Agreement for South Range Condominium
over the public mains.
6. Notwithstanding paragraph five above,the Owner must perform an annual inspection,the first
occurring no later than September 15,2024 to verify no issues have arisen associated with
subsidence or settlement of the trench backfill for the public sanitary sewer and water mains and
no other issues exist related to the integrity of the mains or the finished surfaces over the public
mains. The Owner's engineer must file an inspection report with the City Engineer within two
weeks of the completion of each annual inspection. Any observed issues related to trench backfill
settlement or subsidence or related to the integrity of the sanitary sewer and water mains must, as
determined by the City in its sole discretion,be immediately corrected by the Owner."
7. The terms, covenants, and provisions of this Agreement shall be binding upon the heirs,
executors, administrators,personal representatives, successors, and assigns of the parties
hereto, including members of a property owners' association for the South Range
Condominium,be of record with the clerk and recorder's office,and be a covenant running
with the land. As between the Owner and the owners of units within South Range
Condominium and/or between the Owner and the South Range Condominium Owners
Association,Inc., all risks and liabilities associated with the subsidence or settlement as
described above are hereby assumed and shall be borne solely by the Owner(Black Dirt,
LLC), and the Owner shall hold said unit owners and association harmless from any liability
or claims resulting from or arising out of the above-described subsidence or settlement and all
other obligations of the Owner under this Agreement.
8. If the Owner defaults in or fails to fully perform any of its obligations in conformance with
the time schedule under this Agreement, and such default or failure shall continue for a
period of ten(10)days after written notice specifying the default is deposited in the United
States mail addressed to the Owner at 2323 West Main Street Ste 6,Bozeman,Montana
59718,or such other address as the Owner shall provide to the City from time to time,
without being completely remedied, satisfied, and discharged,the City may elect to
enforce any of the following specified remedies:
a. The City may, at its option, declare the financial guarantee to be forfeit, take
possession of funds secured by the financial guarantee pursuant to any lawful
means, and secure the complete construction and inspection of the sanitary
sewer and water mains and all surfaces disturbed by such construction. The
City's representative,contractors,and engineers shall have the right to enter
upon the Project property and perform such work and inspection,and the
Owner shall permit and secure any additional permission required to enable
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Water and Sanitary Sewer Main Trench Subsidence Liability Agreement for South Range Condominium
them to do so. The City shall be entitled to an administrative fee of 10% of the
costs of conducting the work. In the event that any funds remain from the
financial guarantee upon completion of all improvements, such funds shall be
promptly returned to the Owner.
b. If costs and expenses, including the administrative fee, exceed the amount of the
financial guarantee,the Owner, its heirs, representatives,and successors shall,
within 30 days written notice of such exceedance, reimburse the City for all costs
and expenses, including the administrative fee, which exceed the financial
guarantee.
c. The City may enforce any other remedy provided by law.
9. To the fullest extent permitted by law, the Owner agrees to release, defend, indemnify,
and hold harmless the City, its agents, representatives, employees, and officers
(collectively referred to as the City) from and against any and all claims, demands,
actions, fees and costs (including attorney's fees and the costs and fees of and expert
witness and consultants),losses, expenses, liabilities(including liability where activity is
inherently or intrinsically dangerous) or damages of whatever kind or nature connected
therewith and without limit and without regard to the cause or causes thereof or the
negligence of any party or parties that may be asserted against, recovered from or
suffered by the City occasioned by, growing or arising out of or resulting from or in any
way related to settlement or subsidence of the trench backfill for the public water and
sanitary sewer mains or, if reconstruction is undertaken by the City for Owner's failure
to reconstruct as required by the City,the City's reconstruction of the water and sanitary
sewer mains and related surface improvements.
10. Owner's assumptions of liability and agreements of indemnity specifically provided
under this Agreement shall remain in force and effect until the later of (i)satisfactory
inspection and approval by the City Engineer at the end of the 3-year period; or(ii)
satisfactory completion and City approval of any reconstruction that may be required
under this Agreement. Such obligations shall not be construed to negate,abridge, or
reduce other rights or obligations of indemnity that would otherwise exist. The
indemnification obligations of this Section must not be construed to negate,abridge, or
reduce any common-law or statutory rights of the indemnitee(s) which would otherwise
exist as to such indemnitee(s). Owner's indemnity under this Section shall be without
regard to and without any right to contribution from any insurance maintained by City.
Should the City be required to bring an action against the Owner to assert its right to
defense or indemnification under this Agreement or under the Owner's applicable
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Water and Sanitary Sewer Main Trench Subsidence Liability Agreement for South Range Condominium
insurance policies required below the City shall be entitled to recover reasonable costs
and attorney fees incurred in asserting its right to indemnification or defense, including
attorney fees of in house counsel, but only if a court of competent jurisdiction
determines the Owner was obligated to defend the claim(s)or was obligated to
indemnify the City for a claim(s) or any portion(s) thereof.
11. In the event of an action filed against City resulting from the City's performance
under this Agreement, including reconstruction of the water and sanitary sewer mains,
trenches, and related surface improvements, the City may elect to represent itself and
incur all costs and expenses of suit.
12. Owner waives any and all claims and recourse against the City, including the right of
contribution for loss or damage to person or property arising from, growing out of,or in
any way connected with or incident to the performance of this Agreement,including
reconstruction of the water and sanitary sewer mains,trenches, and related surface
improvements, and the Owner's failure to comply with the Montana Public Works
Specifications and other City requirements.
13. Representatives:
a. City's Representative: The City's Representative for the purpose of this
Agreement shall be the City Engineer or such other individual as City shall
designate in writing. Whenever approval or authorization from or communication
or submission to City is required by this Agreement, such communication or
submission shall be directed to the City Engineer as the City's Representative and
approvals or authorizations shall be issued only by such Representative;provided,
however, that in exigent circumstances when City's Representative is not
available,Owner may direct its communication or submission to other City
personnel or agents designated by the Director of Transportation and Engineering
and may receive approvals or authorization from such persons.
b. Owner's Representative: The Owner's Representative for the purpose of this
Agreement shall be Caddis Engineeringor such other individual as the
Owner shall designate in writing. Whenever direction to or communication with
Owner is required by this Agreement, such direction or communication shall be
directed to Owner's Representative; provided,however, that in exigent
circumstances when Owner's Representative is not available, City may direct its
direction or communication to other designated Owner personnel or agents.
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Water and Sanitary Sewer Main Trench Subsidence Liability Agreement for South Range Condominium
14. Dispute Resolution:
a. Any claim,controversy,or dispute between the parties,their agents,employees,
or representatives shall be resolved first by negotiation between senior-level
personnel from each party duly authorized to execute settlement agreements.
Upon mutual agreement of the parties,the parties may invite an independent,
disinterested mediator to assist in the negotiated settlement discussions.
b. If the parties are unable to resolve the dispute within thirty(30) days from the date
the dispute was first raised,then such dispute may only be resolved in a court of
competent jurisdiction in compliance with Section 17 of this Agreement.
15. Contractor's indemnification shall survive the termination or expiration of this Agreement
for the maximum period allowed under applicable law.
16. If any portion of this Agreement is held to be void or unenforceable,the balance thereof shall
continue in effect.
17. The parties agree that this Agreement is governed in all respects by the laws of the State of
Montana.
18. This Agreement is binding upon and inures to the benefit of the heirs,legal representatives,
successors, and assigns of the parties.
19. This Agreement is for the exclusive benefit of the parties,does not constitute a third-party
beneficiary agreement, and may not be relied upon or enforced by a third party.
Notwithstanding anything in this Agreement to the contrary,nothing in this Agreement
shall be construed as a release by Owner(or its heirs, successors and assigns) of any
third party from any negligence or liability.
20. This Agreement may be executed in counterparts, which together constitute one instrument.
21. This Agreement and all Exhibits attached hereto constitute the entire agreement of the
parties. Covenants or representations not contained therein or made a part thereof by
reference, are not binding upon the parties. There are no understandings between the parties
other than as set forth in this Agreement. All communications,either verbal or written,made
prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically
made a part of this Agreement by reference.
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Water and Sanitary Sewer Main Trench Subsidence Liability Agreement for South Range Condominium
22. This Agreement will be recorded by the City in the records of the Gallatin County Clerk and
Recorder. Owner and City agree to execute and record, at Owner's sole cost and expense, a
termination of this Agreement upon the Owner fulfilling all of Owner's obligations under
this Agreement.
23. This agreement will only be used in this instance and failure to produce the inspection and
testing required by the City of Bozeman DSSP will not be tolerated in the future. If compaction
testing is not provided to the City Engineering Department prior to paving,the owner will be
required to reinstall and retest any public infrastructure at their own expense.
The parties have executed this agreement on the day and year first written above.
#### End of Agreement Except for Signatures #1 ##
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Water and Sanitary Sewer Main Trench Subsidence Liability Agreement for South Range Condominium
OWNER:
DATED this (,::::> day of D,--M q ram— , 202 3.
LANDOWNER
Blac
By: Dan Barnes
Title: Member
STATE OF ly QW44 M )
:ss
COUNTY OF C Gaoi..-h►,, )
On this Lf day of O CAd 202_a,before me, the undersigned,a Notary Public
for the State of I�I�OV�.�Gt 1�y, ,personally appeared DAN BARNES ,known to me to be the
Member of BLACK DIRT,LLC that executed the within instrument,and acknowledged to me that he
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)
"'W"�k SARAH GRACEY
�H'!�9p;s,, Notary Public (Printed Name Here)
�'NOTARIA. =for the State of Montana Notary Public for the State of
Residing at:
_ .SEAL.-'e Bozeman, Montana Residing at
My January 1io Expires: My Commission Expires:
025 (Use 4 digits for expiration year)
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Water and Sanitary Sewer Main Trench Subsidence Liability Agreement for South Range Condominium
ACCEPTED:
CIWFFE: By
7r
Ci
ATTEST: ;
City Clerk r�;•.• ��
o
STATE OF MONTANA )
ON
) ss.
County of Gallatin )
On this 14-1. day of ,243 before me, a Notary Public for the State
of Montana,personaly appeared JEFF MIHELICH and MIKE MAAS,known to me to be the City
Manager and City Clerk for the City of Bozeman and the persons whose names are subscribed to the
within instrument,and acknowledged to me that they executed the same for and on behalf of the City of
Bozeman.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal on the day and year
first above written.
(SEAL) �``�E Hu%'''�, JULIE HUNTER
Notary Public
1ARi4j. for the State of Montana
Residing at:
SEAL Q- Bozeman, Montana
No ary Publ c for a State of Montana 9 P?
My Commission Expires:
June 11,2025
(Printed Name)
Residing at Bozeman,Montpna J
My Commission Expires /__A_/20�S
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