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HomeMy WebLinkAbout034 Shared Stormwater Easement & Agreement Shared Stormwater Easement and Agreement Hidden Creek Minor Subdivision Page 1 of 7 Inter-office Original to: [County Attorney’s Office] Project 24533 Hidden Creek PP SHARED STORMWATER EASEMENT AND AGREEMENT This Easement and Agreement (the “Agreement”) is made and established this by______ day of _______________, 2026, by Gallatin County, Montana, a political subdivision of the State of Montana, whose address is c/o Gallatin County Attorney’s Office 1709 West College, Bozeman, Montana 59718 (the “County”). . RECITALS: WHEREAS, The County is the record owner of Lot 1, Lot 2, Lot 3 and Lot 4 (the “County Lots”), of Hidden Creek Minor Subdivision within the boundary of Bozeman City limits subject to future development, including the following described real property: Tract B, Certificate of Survey No. 2439, Located in the SW1/4 of Section 1, Township 2 South 5 East, P.M.M. Gallatin County, Montana and WHEREAS, the County, or its successors or assignees (collective the “Lot Owners”) intend to construct certain multi-family complexes and land improvements on the County Lots and have determined that it is in the County’s best interest to establish a shared stormwater easement and agreement to construct and maintain shared stormwater facilities for the development of the County Lots; AGREEMENT NOW THEREFORE, the County covenants and agrees as follows: 1. The foregoing recitals are true and correct. Shared Stormwater Easement and Agreement Hidden Creek Minor Subdivision Page 2 of 7 2. Grant of Shared Stormwater Easement. The County grants certain easements and agrees to undertake certain maintenance obligations that will benefit the Hidden Creek Minor Subdivision for the joint construction, use and maintenance of stormwater facilities, as further described below (the “Shared Stormwater Easement”). The Shared Stormwater Easement is more particularly described on the attached Exhibit A – Property Layout. The County declares and grants a nonexclusive, perpetual easement to lay, construct and maintain stormwater facilities, accessories and appurtenances for the purpose of storing, treating and conveying stormwater. This Shared Stormwater Easement shall be a perpetual easement and shall be superior to and paramount to the rights of any of the Lot Owners, and the subsequent owner of said properties and the respective servient estates so created. the County further state that this Agreement is a covenant that shall run with the land, and shall be for the benefit of and inure to the County, the Lot Owners, and their successors and assigns, their agents, employees, tenants, and guests of tenants, and shall burden their respective parcels, perpetually. 3. Required Maintenance of Stormwater Facilities. The Lot Owners shall directly pay the Required Maintenance (defined below) costs for the stormwater facilities as required hereunder. The Lot Owners shall pay a proportionate share of all Required Maintenance for the stormwater facilities, which such proportionate share based on the ration of the square footage of each Lot to the total square footage of all of the Lots. Required Maintenance means any and all maintenance and repairs reasonably necessary to keep the stormwater facilities in good repair, in a condition substantially similar to its condition upon original installation, and keeping the stormwater facilities free of debris. Required Maintenance shall include, but shall not be limited to …..The Required Maintenance shall meet requirements in City of Bozeman Design and Construction Standards and BMC §38.270.090, 40.04.700, 40.04.710, 40.04.720, and 40.04.850. Owner of Lot 1, Owner of Lot 2 and 3, and Owner of Lot 4 shall create and maintain records of stormwater facilities installation, maintenance, and repairs for the life of the development and shall be made available to the City of Bozeman Transportation and Engineering Department upon request. Any failure to maintain stormwater facilities or to correct deficiencies at stormwater facilities within a reasonable time after receiving written notice from City of Bozeman or other enforcement agents may result in criminal or civil penalties. Waste shall be disposed of from maintenance of stormwater facilities in accordance with applicable federal, state and local laws and regulations. The costs associated with the Shared Stormwater Easement are described on the Shared Stormwater Easement and Agreement Hidden Creek Minor Subdivision Page 3 of 7 attached Exhibit B – Shared Stormwater Easement Costs. The maintenance plan associated with the Shared Stormwater Easement are described on the attached Exhibit C – Shared Stormwater Easement Maintenance Plan. The Lot Owners and their heirs and assigns shall be responsible for the maintenance and repair of their respective portions of the Shared Stormwater Easement as documented in this agreement and Exhibits A through C, including the underground and above ground facilities. The Lot Owners and their heirs and assigns shall hold the other party harmless from any liability resulting from the use of the shared stormwater facilities for their respective properties. 4. Cost of Required Maintenance. Payment and Reconciliation. At any time there is more than one Lot Owner, than within one hundred fifty (150) days after the last day of each calendar year, the Lot Owners shall deliver to the other Lot Owners a statement (an “Annual Reconciliation Statement”) containing the following information: (i) the maintenance performed; (ii) the maintenance Costs; (iii) reasonable supporting data to evidence the maintenance costs incurred; (iv) the allocation of maintenance costs as provided for Section 3 herein; and (v) each Lot Owner’s share of the maintenance costs. Each Lot Owner shall pay any amount owing within thirty (30) days after receipt of the Annual Reconciliation Statement. The Lot Owners shall maintain, on an open-book basis, accurate records regarding maintenance costs for the shared stormwater facilities to be shared and, upon request, shall provide the requesting Lot Owner with a reasonable opportunity to review such records on reasonable prior notice. If any Lot Owner wishes to challenge the computations of actual, maintenance costs, the challenging Lot Owner shall give the opposing Lot Owner written notice of the Lot Owner’s intent to audit the opposing Lot Owner’s books and records pertaining to its operation and maintenance of the shared stormwater facilities during the period in question. Any objections shall be made within one hundred eighty (180) days following the date of receipt of the Annual Reconciliation Statement or such objections shall be deemed waived. In the event that the audit discloses any error in the calculation of the amounts payable by the challenging Lot Owner, an appropriate adjustment shall be made forthwith. The costs of any such audit shall be paid by the challenging Lot Owner unless it is finally determined as a result of such audit that the challenging Lot Owner is entitled to a refund of more than five percent (5%) of the final maintenance costs for such period, in which event the reasonable costs of the audit shall instead be paid by the opposing Lot Owner. Remedies for Non-Payment of Allocated Share. If a Lot Owner fails to pay its share of Shared Stormwater Easement and Agreement Hidden Creek Minor Subdivision Page 4 of 7 maintenance costs, within thirty (30) days of the date due, then in addition to such rights and remedies provided for under Montana law, the defaulting Lot Owner shall be liable for: (i) interest at a rate equal to the lower of the highest rate permitted by law from the date the payment was due until the date the payment is received; (ii) a late payment charge in the amount of Two Hundred Fifty Dollars adjusted for inflation, not as a penalty, but as a way of defraying the costs that would be incurred in dealing with late payments; and (iii) reasonable attorneys’ fees and costs of collection, including without limitation court costs, if it becomes necessary to bring an action to recover the amount due. 5. Enforcement. If a Lot Owner fails to carry out any of the obligations allocated to that Lot under this Agreement other than payment of monetary obligations, or if a Lot violates any covenants hereunder or threatens to violate such a covenant, the Lot Owners of any other Lot shall be entitled to any remedy available at law or in equity, including the right to restrain such violation or threatened violation by injunction, or to obtain a decree to compel performance of the terms, covenants or conditions in default, it being agreed that the remedy at law for a breach of any such term covenant, or condition (except those, if any, requiring the payment of money) is not adequate. 6. Release/Hold Harmless/Indemnification. The County and any future Lot Owners, on behalf of themselves and their assigns and successors, hereby release, indemnify, and hold the City of Bozeman (City) harmless, its officials, agents, and employees (the "Indemnitees") from and against any suit, cause of action, claim, cost, expense, obligation, and liability of any character, including attorney's fees (to include costs and salary of attorneys employed by or retained by the City), which are brought or asserted by any person or entity, related to the shared stormwater facilities and duties and obligations described in this Agreement. In addition, the County and any future Lot Owners waive all claims against the Indemnitees and their agents, insurers, and consultants, including all claims for contribution or entitlement to special, incidental, indirect, or consequential damages arising out of, resulting from, or in any way related to the duties and obligations described in this Agreement or related to the shared stormwater facilities. Such indemnity obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations contained in this Agreement may not be construed to negate, abridge, or reduce any common-law or statutory rights of the City which would otherwise exist. The indemnity under this Agreement shall be without regard to, and without any right to, contribution from any insurance maintained by the City. Should the City be required to bring an action against the County or any future Lot Owner to assert its right to defense or indemnification under this Agreement, the City Shared Stormwater Easement and Agreement Hidden Creek Minor Subdivision Page 5 of 7 shall be entitled to recover reasonable costs and attorney fees, including costs and salary of attorneys employed by or retained by the City, incurred in asserting its right to indemnification or defense, but only if a court of competent jurisdiction determines the County or any future Lot Owners was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from or in any way related to the City's performance or failure to perform obligations of the County or any future Lot Owner contained in this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. These obligations stated herein shall survive termination of this Agreement, and the services performed hereunder. 7. Miscellaneous. a. 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 parties hereto and their respective successors and assigns. b. Attorney's Fees and Costs. That 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, the prevailing party shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs including those attorneys employed by or retained by the City. c. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Montana. d. Notice. Any notices, requests, consents, claims, demands, waivers, summons, or other legal process, or similar types of communication hereunder (each a "Notice") must be in writing and addressed to the relevant party at the addresses set on the first page of this Agreement, or to such other address that may be designated by the receiving party from time to time. All Notices must be delivered by personal delivery, nationally recognized overnight courier (fees pre- paid), or certified or registered mail (return receipt requested, postage prepaid). A Notice is effective on receipt by the receiving party and if the party giving Notice complied with this section. Shared Stormwater Easement and Agreement Hidden Creek Minor Subdivision Page 6 of 7 e. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which constitute one and the same agreement. f. Headings. The headings used in this Agreement are for convenience only and are not to be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. g. Severability. If any portion of this Agreement is held to be void or unenforceable, all other provisions of this Agreement shall remain in effect. h. Consent to Electronic Signatures. The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. i. Integration. This Agreement constitute the entire Agreement of the parties. Covenants or representations not contained herein 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 oral 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. Shared Stormwater Easement and Agreement Hidden Creek Minor Subdivision Page 7 of 7 The County has executed this shared stormwater easement and agreement on the day and year first written above. COUNTY: GALLATIN COUNTY, MONTANA ____________________________ Name: Title: STATE OF ___________________ ) : ss. County of ____________________ ) On this __ day of _________________, 20__, this instrument was acknowledged before me by ____________________________ as the Chair of the Board of Gallatin County Commissioners on behalf of whom this instrument was executed. (Seal) Notary Signature Line Notary Printed Name Notary Public for the State of Residing at: My Commission Expires: / / 20 41159466v1 GALLATIN COUNTYRESTHOMEJUNIPER STREETCCCCCCCCCCCCCCCCCCCCCCCCCCCSD SDSDCCCCCCCCCCCCCCC<<<<<<<<<<<<CSDSDSDSDSDSDSDSDSD SD SDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSDSD SDSDSDCCCCCCCX X X X XOAK PARK DRIVELOT 15.165 ac4.589 ac (net)LOT 30.184 acLOT 40.427 acLOT 24.048 ac3.708 ac (net)DURSTON ROADBUILDING 5BUILDING 1BUILDING 4BUILDING 2BUILDING 3SD SD SD SDSDSDSDSDSDSDSDSDSDNEW 30' x40' SHOP< <<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<SD SD SD SD SD SD SD SD SDSDSDSDSDSDSDSDSDSDSD LOT 2 RETENTION PONDLOT 1 LANDSCAPE DRAIN (TYP) LOT 1, LOT 3, AND LOT 4 SHARED PUBLIC STREET SUBSURFACE RETENTION SYSTEM LOT 1, LOT 3, AND LOT 4 SHARED ON-SITE SUBSURFACE RETENTION SYSTEM 00 50'100' SCALE IN FEET L:\3668-UHP_Design_LLC\-00325_Hidden_Creek_Civil\DWG\Exhibits\EX 1 - OVERALL DRAINAGE EXHIBIT.dwg, EX1 - OVERALL DRAINAGE EXHIBIT, Plotted: Nov 19, 2025 - 4:11pm, nmoschettiEXHIBIT A - PROPERTY LAYOUT NOTE: A SHARED STORMWATER EASEMENT IS GRANTED OVER ALL PORTIONS OF LOTS 1, 3, AND 4 EXCEPT BUILDINGS AND PUBLIC STREETS 1 EXHIBIT B Hidden Creek Shared Stormwater Maintenance Estimated Costs This estimate of cost is based on best available data and present-day costs. Costs may be higher during initial operation. Operation and maintenance will likely become more efficient as operator familiarity increases. As with any infrastructure, over time these systems may require replacement. Any future replacement costs are not considered in this estimate. Stormwater Maintenance Training (One time, By Design Engineer) - $5,000 Stormwater Facilities Maintenance Schedule For All Systems (All Lots) 1. Site Housekeeping. (Continuously as needed) - $1,500/yr 2. System Monitoring. (Quarterly, except in winter) - $1,500/yr 3. System Non-compliance – TBD Stormwater Facilities Maintenance Schedule For Lot 1 Landscape Drains 1. Lot 1 Landscape Drain Maintenance. (Quarterly) - $500/yr Stormwater Facilities Maintenance Schedule For Lot 2 Retention Basin 2. Lot 2 Retention Basin Maintenance. (Quarterly) - $500/yr 3. Lot 2 Retention Basin Maintenance. (Annually) - $500/yr 4. Lot 2 Retention Basin Maintenance. (Long-term) - TBD Stormwater Facilities Maintenance Schedule For Lot 1, 3, and 4 Subsurface Retention System (on-site) 1. Lots 1, 3, and 4 Subsurface Retention Maintenance. (Quarterly) - $500/yr 2. Lots 1, 3, and 4 Subsurface Retention Maintenance. (Annually) - $1,500/yr 3. Lots 1, 3, and 4 Subsurface Retention Maintenance. (Long-term) - TBD Stormwater Facilities Maintenance Schedule For Lot 1, 3, and 4 Subsurface Retention System (off-site) 1. Lots 1, 3, and 4 Subsurface Retention Maintenance. (Quarterly) - $1,000/yr 2. Lots 1, 3, and 4 Subsurface Retention Maintenance. (Annually) - $500/yr 3. Lots 1, 3, and 4 Subsurface Retention Maintenance. (Long-term) – TBD Total Annual Cost - $8,000 1 EXHIBIT C Hidden Creek Shared Stormwater Maintenance Plan The proposed stormwater facilities consist of shared and individually-owned systems including: • The landscape drain system serving Lot 1 • The retention basin to be owned and maintained by the owner of Lot 2 • The on-site subsurface retention systems serving Lots 1, 3, and 4 • The public street subsurface system serving Lots 1, 3, and 4. The Stormwater Systems have been designed in accordance with City of Bozeman standards and are described in the Storm Drainage Report and approved Plans. The owner shall maintain copies of these documents as a record of required operating and performance standards. Each System will be monitored and maintained by the lot owner(s) individually or jointly as identified for each type of system. Monitoring and maintenance requirements will be provided in the owners’ association documents and are excerpted here for review. Stormwater Facilities Maintenance Schedule For All Systems (All Lots) 1. Site Housekeeping. (Continuously as needed) The main cause of stormwater facility damage is poor site housekeeping. Sediment tracked onto pavement can be washed into stormwater retention basins and conveyance piping and damage these facilities. Trash can clog pipes and inlet structures causing property damage. • Keep sidewalk and pavement areas clean • Pick up trash • Restore damaged landscaping in order to prevent sediment runoff 2. System Monitoring. (Quarterly, except in winter) The stormwater facilities shall be inspected quarterly to quickly identify small issues before expensive damage can occur. In addition to regular monitoring, the best time to inspect the performance of stormwater facilities is during runoff events. • Observe system during runoff. Look for ponding outside of retention areas. This can indicate a clogged inlet or pipe. • Inspect Subsurface system and Retention Basins • Inspect Inlets, Manholes and Pipes 2 3. System Non-compliance In the event that any of the stormwater facilities cease to comply with performance requirements—either in operation or in any way that affects public safety—the owner(s) of the Lot(s) served by that facility, as identified above, are responsible for completing any repairs or replacements needed to restore the system to compliant, safe, and proper working condition. All repairs or replacements must return the facility to the performance standards shown in the engineering record drawings recorded with the City. Stormwater Facilities Maintenance Schedule For Lot 1 Landscape Drains 1. Lot 1 Landscape Drain Maintenance. (Quarterly) The Landscape Drains provide initial infiltration of stormwater from recently landscaped areas until the impacts of landscape construction have dissipated and natural infiltration rates have been restored. • Observe system during runoff. Look for ponding outside of drain areas. This can indicate infiltration capacity has not been restored. • Continue quarterly monitoring until there is no evidence of ponding in landscaped areas during storm events. Stormwater Facilities Maintenance Schedule For Lot 2 Retention Basin 2. Lot 2 Retention Basin Maintenance. (Quarterly) The retention basin is designed to provide long-term sustainable treatment of stormwater. However, with poor housekeeping sediment can clog these facilities and reduce infiltration capacity. Proper and timely cleaning of incidental sediment in these basins can prevent these facilities from being damaged. The retention basin is intended to be vegetated, since the vegetation provides microbiological communities that can treat common pollutants in stormwater. Unhealthy vegetation can diminish the performance of these basins. The landscaping of the retention basin shall follow typical landscape maintenance guidelines. The vegetation on the bottom of the retention basin should not be regularly mowed, since mowing can cause plant debris to build up in the basin. • Remove sediment, trash, and debris • Inspect for healthy vegetation • Inspect for uniform ponding and water disappears in 3 days 3. Lot 2 Retention Basin Maintenance. (Annually) The vegetation should be maintained annually to reduce plant debris build-up. The retention basin vegetation should be cut to a height of 6” in the fall with the clippings removed from the basin. • Cut retention basin vegetation and remove clippings. • Clean inlet piping or chases, remove sediment if present. 3 4. Lot 2 Retention Basin Maintenance. (Long-term) If regular housekeeping and maintenance is not performed adequately, sediment and debris can accumulate in the basin and reduce the required storage capacity. If this occurs the basins should be excavated back down to original plan grade. • Hire a contractor to return basin(s) condition to initial design found on City engineering plans. • Dredge basin if sediment build-up is greater than 3” Stormwater Facilities Maintenance Schedule For Lot 1, 3, and 4 Subsurface Retention System (on-site) 1. Lots 1, 3, and 4 Subsurface Retention Maintenance. (Quarterly) The Subsurface Stormwater Retention System is designed to capture sediment and debris and requires regular monitoring and periodic maintenance to remove sediments and debris. If this sediment and debris is not periodically removed, it can cause undesired ponding and clogging. The stormwater retention system consists of manhole structures and underground chambers. These components need to be inspected quarterly, except in winter, and cleaned if required. • Inspect for sediment or debris in the manhole structures and remove if present. • Check for damage, repair as needed • Maintain records of quarterly inspections and cleaning and provide records to the City upon request. 2. Lots 1, 3, and 4 Subsurface Retention Maintenance. (Annually) The Subsurface Retention System requires a more intensive inspection annually to check sediment depth in the Isolator Row. • Inspect Isolator Row infiltration chambers through inspection ports for sediment accumulation. Sediment depth less than 3” is acceptable. Sediment depth exceeding 3” requires removal by a cleaning service. 3. Lots 1, 3, and 4 Subsurface Retention Maintenance. (Long-term) If regular housekeeping and maintenance is not performed adequately, sediment and debris can accumulate in the underground chambers and reduce the required storage capacity. If this occurs the owner shall consult with an engineer to determine the work required to restore the system to original intended performance. • Hire an engineer and contractor to return system(s) condition to initial design found on City engineering plans. 4 Stormwater Facilities Maintenance Schedule For Lot 1, 3, and 4 Subsurface Retention System (off-site) 1. Lots 1, 3, and 4 Subsurface Retention Maintenance. (Quarterly) The Subsurface Stormwater Retention System is designed to capture sediment and debris and requires regular monitoring and periodic maintenance to remove sediments and debris. If this sediment and debris is not periodically removed, it can cause undesired ponding and clogging. The stormwater retention system consists of manhole structures and underground modules. These components need to be inspected quarterly, except in winter, and cleaned if required. • Inspect for sediment or debris in the manhole structures and remove if present. • Clean pre-treatment manhole to remove sediment and organic matter. • Check for damage, repair as needed • Maintain records of quarterly inspections and cleaning and provide records to the City upon request. 2. Lots 1, 3, and 4 Subsurface Retention Maintenance. (Annually) The Subsurface Retention System requires a more intensive inspection annually to ensure sediment has not been deposited in the underground modules. • Inspect modules through inspection port for sediment accumulation. If it is observed that sediment has been deposited in the modules, more frequent cleaning of the pre-treatment manhole is required. 3. Lots 1, 3, and 4 Subsurface Retention Maintenance. (Long-term) If regular housekeeping and maintenance is not performed adequately, sediment and debris can accumulate in the underground modules and reduce the required storage capacity. If this occurs the owner shall consult with an engineer to determine the work required to restore the system to original intended performance. • Hire an engineer and contractor to return system(s) condition to initial design found on City engineering plans.