HomeMy WebLinkAbout17- Assignment and Assumption - 5 West, LLC - Mixed Use Building 5 West Mendenhall r �
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After recording return to:
City of Bozeman—City Clerk
P.O.Box 1230
Bozeman MT 59771-1230
2590072
Page: 1 of 8 08/21/2017 03:31:56 PM Fee: $56.00
Charlotte Mills - Gallatin County, MT MIS.
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ASSIGNMENT AND ASSUMPTION EKJA
MIXED USE BUILDING 5 WEST MENDENHALL
This Assignment and Assumption is executed by 5 West, LLC, a Montana limited liability
company, with address of 20 North Tracy, Bozeman, MT 59175 and 5 West, LLC, a Montana
limited liability company, with address of 20 North Tracy, Bozeman, MT 59175 as Declarant of
HBM Commercial Condominium and HPB Residential Condominium both being condominium
regimes recorded and encumbering the real property commonly referred to as 5 West
Mendenhall Street, Bozeman Montana.
5 West, LLC entered into the attached stormwater and indemnification agreement with the City
of Bozeman, recorded in the office of Gallatin County Clerk and Recorder, Gallatin County
Montana as Document No. 2541398, attached as Exhibit A and incorporated herein.
5 West, LLC as Declarant of HBM Commercial Condominium and HPB Residential
Condominium does here by assign all of the obligations; duties and responsibilities of said
agreement and of HBM Commercial Condominium and HPB Residential Condominium, both
Owners and Associations are hereby assuming all obligations of 5 West, LLC pursuant to said
agreement.
To the extent the agreement reference building and construction, this Assignment and
Assumption modifies that agreement to ensure the same obligations for the constructed building
on the real property and survives the declaration of condominium regimes thereon.
5 West, LLC a Montana limited liability company
BY ITS Managing Member, Mendenhall Partners, LLC
By: Dated:g
Andrew Holloran, managing member of Mendenhall Partners, LLC
STATE OF MONTANA )
: ss.
County of Gallatin )
This instrument was acknowledged before me on the /dt�day of 201-4"
by Andrew Holloran, managing member of Mendenhall Partners Montana, LLC, the managing
member of 5 West, LLC.
j i;U41, , LAURENoi rrCUMMINGS
NOTnk�.r<:� f Public
or the State of Montane
-"- = Residing. at: Afor the State of tana
SN'Al•.'�r Bozeman, Montana /My COmiT11SSlOn Expires: uren�':�
� r VA
September 04, 2019 Residing in e C 7x-�r�
My Commission Expires: -44 - 1
ACCEPTING ASSIGNMENT AND ASSUMPTION
5 West, LLC a Montana limited liability company
BY ITS Managing Member, Mendenhall Partners, LLC
Declarant of HBM Commercial Condominium and HPB Residential Condominium
By: Dated:6 /O -7
Andrew Holloran, managing member of Mendenhall Partners, LLC
STATE OF MONTANA )
: ss.
County of Gallatin )
This instrument was acknowledged before me on the jc - day of � 20
by Andrew Holloran, managing member of Mendenhall Partners Montana, t LC, the managing
member of 5 West, LLC, as Declarant of HBM Commercial Condominium and HPB Residential
Condominium.
LAUREN J CUMMINGS
JtCuM "I-4e Q- I Ao �'X&'&Lw
,�'- Notary Public
�oTnHl l�N for the State of Montana NO ub 1 r the State Of tang
Residing at: ed Nam Uri
��,SI.AI..;�, 6ozeman, Montana
SEA , My corn,
Y�ission Exoirr.;: Residing in c C����
oFpn�., Septembcr 04,201
My Commission Expires: - 4J —
CONSENT TO ASSIGNMENT AND ASSUMPTION
City of Bozeman:
By: r'-J-��• Date: 8
' ozeman City Manager
Attested:
City Clerk „
L`g'PIN C®';k;'
.< 1(
k
STATE OF MONTANA )
ss.
County of Gallatin )
This instrument was acknowledged before me on the day of u S 20LI
by 1 S acting City Manager and ` City Clerk on behalf of the
City of Bozeman, Montana.
" BRENDA SWEENEY
>\OA,S. Notary Public Notary Public for the State tana
Q�? c`_for the State of Montana
m:�pTAR,g4.. Printed Name.
� Residing at:
* S►' Bozeman,Montana Residing in
ccv My commission Expires: M Commission Ex ires: ,Z_
cc\>' December 02,2018 y p
EXHIBIT "A"
City of Bozeman-City Clerk
P.O. Box 1230 2541398
Bozeman MT 59771-1230 Page: 1 of 5 04104/2016 02:51:52 PM Fee: $35.00
Charllatin County, MT
11111111111111111111111111111I IN11111111111111llNl IIIIIIll ll {111111111111111I MISC
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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
Whereas, the City agrees to allow 5 West, LLC access to its storm sewer system in return
for the terms and conditions included here.
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
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
handle the foundation drain and parking garage drainage that may be generated on the 5
West property.
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.
Agreement for Access to Storm Sewer System
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2541398 Page 2 of 5 04/04/201 6 02:51 :52 PM
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
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
for damage to real or personal property or for personal injury,
5. IndemnificationlHold 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 parry 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 any act of an employee, officer, or, agent of the City except as to negligent or
Agreement for Access to Storm Sewer System
Page 2of5
2541398 Page 3 of 5 04/04/201 6 02:51 :52 PM
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
and thereafter for the maximum period allowed under applicable law.
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.
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. If any portion of this Agreement is held to be void or unenforceable, the
balance thereof shall continue in effect.
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.
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 party except the City.
15. Counterparts. This Agreement may be executed in counterparts, which together
constitute one instrument.
16.Authority. Each party represents that it has full power and authority to enter into and
Agreement for Access to Storm ScAver System
Page 3 of 5
2541398 Page 4 of 5 04/04/201 6 02:51 :52 PM
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 home by Licensees. The original of this
recorded agreement shall be returned to the Assistant Bozeman City Manager.
###########End of Agreement except for signatures############
Agreement for Access to Storm Sewer System
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2541398 Page 5 of 5 04/04/201 6 02:51 :52 PM
Executed this e day of 2015.
City of Bozeman:
By: Lu- /� Date: I0-Z - I 5
Chris A. Kukulski,Bozeman City Manager
5 West,LLC, a Montana limited liability company: �C
`dam In C��•�!� �
1 HEATHER BIENVENUE
BY Date: to t ,;��� � "�� Notary Public
�o7Ar;�,;�.G';for the State of Montan<
Andrew Holloran,managing member of Mendenhall Partners,LLC x: ,• R� Residing at:
Bozeman, Montana
9`�••• ��� My Commission Expires'
of MO January 26,2018
STATE OF MONTANA )
ss.
County of Gallatin )
This instrument was acknowledged before me on the /01111 day of _ 20
by Andrew Halloran,managing member of Mendenhall Partners Montana,LLC.
otary P691ic for the State of Montana
Printed Name: 7 `J
(SEAL) Residing in� _
My Commission xpires: AP 1/ 7,ZU/I
JENNY ANN BENN
'may•' '•�1'> Notary Public
for the State of Montana
*: *_ Residing at:
c .SEAL.2T* Beigrade, Montana
%9 OF ?;s' My Commission Expires:
Aprii 07,2017
Agreement for Access to Storm Sewer System
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