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Home My WebLink About15- 5 West Access to Storm Sewer System PLA��E City ®f Bozeman-City Clerk P.O. Box 12230 j'f 2541398 Bozeman, MT 597 r°]1-1230 Page:Charlotiaf Mills 04/04/2016- Gallatin 02:5Coun1:52MTM Fee: $3MIS0 111111111111111101111111111111IN1111111111111111111111111111111111IN1111 This Agreement is between the City of Bozeman, Montana, with a mailing address of P.O. Box 1230, Bozeman, MT 59771 and 5 West, LLC, with a mailing address of 20 North Tracy, Bozeman,MT 59715. The City and 5 West, LLC are referred to collectively as the Parties. Whereas, 5 West, LLC is constructing a mixed use building at 5 West Mendenhall and has requested, as part of its application for site plan approval pursuant to Chpt. 38, Bozeman Municipal Code, and due to site constraints are requesting discharge of a foundation drain and parking garage drainage to the City's storm sewer system; and , ICI Whereas, the City agrees to allow 5 West, LLC access to its storm sewer system in return for the terms and conditions included here. Ij Now Therefore, the City and 5 West, LLC agree as follows. 1. City to Allow Access to Storm Sewer. The City authorizes 5 West, LLC to connect its onsite foundation drain and parking garage drainage system to the City's storm sewer f system conditioned upon the approval of the City Engineer. 2. City providing no Guarantee or Representations. 5 West, LLC recognizes that in so choosing to use the City's storm sewer system the City makes no guarantee or warranty of any kind or nature regarding the capacity or condition of such storm sewer system to U handle the foundation drain and parking garage drainage that may be generated on the 5 E West property. 1 3. Backflow from the City's System. 5 West, LLC recognizes it accepts all risks of backflow from the City's storm sewer system and as such will take all necessary steps to prevent such backflow. In doing so, 5 West, LLC must install and maintain drainage pumps, check valves, and other requirements to address backflow from the City's storm sewer system. { I r Agreement for Access to Storm Sewer System � Page 1 of 5 f 1= I 4. Maintenance/Covenants. All infrastructure required to connect to and protect the City's storm sewer system shall be maintained at no cost to the City in perpetuity by 5 West, LLC or its successors in interest which specifically includes the 5 West Condominium Association. 5 West, LLC or its successors in interest represents it will maintain and are responsible for the pump system that is used to discharge water to the City's storm sewer system. 5 West, LLC or its successors in interest represents it will also maintain the sand and oil separator in the garage structure such that sediments and oil from the building l parking structure shall not contaminate water that is pumped to the City's storm sewer system. 5 West, LLC shall include in its Declaration of Condominium for the 5 West Condominium a requirement, to the same extent required of 5 West, LLC in Sections 5 and 6, below, that the 5 West Condominium Association and all condominium owners located within the 5 West Condominium building maintain such infrastructure and agree, to waive claims, release, protect, indemnify and hold harmless the City from any claims 3 for damage to real or personal property or for personal injury. 5. Indemnification/Ttold Harmless. 5 West, LLC, and by transfer of any unit and the creation of the 5 West Condominium Association on behalf of the Unit Owners as defined in the Declaration for the 5 West Condominium and the Association does, to the fullest extent permitted by law, release, and shall protect, defend, indemnify, and hold harmless the City of Bozeman, and its agents, representatives, employees, and officers from and against any and all claims, demands, actions, fees and costs (including attorney's fees and the costs and fees of 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, regardless of the cause or causes thereof or the negligence of any party or parties that the above may be asserted against, recovered from or that may be suffered by the City its agents, representatives, employees, and officers, occasioned by, growing or arising out of or resulting from or in any way related to the connection to and contribution of stormwater, groundwater, or snow melt water to the City of Bozeman storm sewer system. 6. Waiver and Release. 5 West, LLC, hereby waive all claims against the City and its agents, representatives, employees, and officers for injury to persons or property related to or in any way connected with the connection to the City's storm sewer system. It shall be understood that the responsibility for protection and safekeeping of the 5 West ! Condominiums will be entirely that of 5 West, LLC and its successors and that no claim shall be made against the City its agents, representatives, employees, and officers by reason of an act of an employee, officer or, agent of the City except as to negligent or Yg Y p Agreement for Access to Storm Sewer System Page 2 of 5 s I intentional acts of City employees in the scope of their respective employment which are the sole cause such claims. 7. Dispute Resolution. 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. If the Parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute shall be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 8. Survival. 5 West, LLC' indemnification and other obligations shall survive as long as the stormwater system for 5 West Condominiums is connected to the City's storm sewer j and thereafter for the maximum period allowed under applicable law. g 9. 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. i 10. Waiver. A waiver by City of any default or breach by 5 West, LLC or its successors in interest of any covenants, terms, or conditions of this Agreement does not limit City's right to enforce such covenants, terms, or conditions or to pursue City's rights in the event of any subsequent default or breach. 11. Severability. Tf any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 1 12. Applicable Law. The Parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 13. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the Parties. 3 14. No Third-Party Beneficiary: 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 parry except the City. ; 15. Counterparts. This Agreement may be executed in counterparts, which together constitute one instrument. N 16. Authority. Each party represents that it has full power and authority to enter into and �E Agreement for Access to Storm Sewer System Page 3 of 5 '� perform this Agreement and the person signing this Agreement on behalf of each party has been properly authorized and empowered to sign this Agreement. 17. Integration. This Agreement constitutes 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. 18. Recordation. This Agreement shall be recorded in the files of the Gallatin County Clerk and Recorder. All costs of recording shall be borne by Licensees. The original of this recorded agreement shall be returned to the Assistant Bozeman City Manager. ###########End of Agreement except for signatures ########### r i� Agreement for Access to Storm Sewer System Page 4 of 5 II Executed this dk day of , 2015. City of Bozeman: By: ,{f ' � ti�, i Date: Chris A. Kukulski,Bozeman City Manager N ° w ' ' e raNbrazvc. �l 5 West,LLC, a Montana limited liability company: HEATHER BIENVENUE By: Date: 10 f r Notary Public Andrew Holloran in member of LLC =�" t?rc1:far{l'ie State of Montana managing g b f Mendenhall Partners, Residing at: � , ,:sE31.,`y;= Bozeman, Mo�Explres,. My CommissionJanuary 26, STATE OF MONTANA ) ss. County of Gallatin ) , I This instrument was acknowledged before me on the "4 day of 20 by Andrew Halloran, managing member of Mendenhall Partners Montana,LLC. otary P#61ic for the State of Montana Printed Name: � A/7 (SEAL) Residing ink wi My Commission xpires: ,-i 7 2,01- JENNY ANN BENN �y•' iy'; Notary Public '='ao1►Rrq<.F�' for the State of!Montana Residing at: Belgrade, Montana My Commission Expires:OF g ' n.,•,,o.,, April 07,2017 E J Agreement for Access to Storm Sewer System Page 5 of 5 E E s i