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HomeMy WebLinkAbout021_Bozeman Street Maintenance agreement DRAFTAgreement Bozeman Street Maintenance Page 1 of 4 Version 2 – 11.30.2021 AGREEMENT FOR ACCESS DRIVE MAINTENANCE AND REPAIR LOCATED IN CITY OF BOZEMAN STREET – NORTH of NELSON MEADOWS SUBDIVISION This Agreement (the “Agreement”) is dated _______________, 2021 by and between Sawmill Gulch Properties, LLC, a Delaware limited liability company with address of 701 Gold Ave., Bozeman, MT 59715 (“Sawmill Gulch”) their successors or assigns, and City of Bozeman, a Montana municipal corporation with offices at City Hall, 121 North Rouse Avenue, P.O. Box 1230, Bozeman, MT 59771- 1230, hereinafter called the "City" to address the access drive repair, maintenance and snow removal by Sawmill Gulch in, over and across that certain City of Bozeman street located west of Nelson Road and north of Nelson Meadows Subdivision as a future alignment of Stonegate Drive situated in the City of Bozeman depicted in the attached Exhibit A (“Bozeman Street”). This Agreement supersedes any prior discussions and is intended to establish a general basis of understanding, operations and agreement among the Parties hereto regarding said Bozeman Street. Sawmill Gulch and the City may each be referred to as a “Party” and together as the “Parties.” 1. Purpose: The purpose of the Agreement is to protect Bozeman Street while ensuring the access drive for Lots 5 and 6 in Block 3 of Nelson Meadows is maintained and repaired, which shall continue until such time as the street is fully constructed and the City assumes repair and maintenance responsibility for the Bozeman Steet. 2. Bozeman Street Use: The City hereby acknowledges that the owner(s) of Lots 5 and 6 in Block 3 of Nelson Meadows Subdivision, subject to the terms and conditions set forth herein, will use and occupy the Bozeman Street for access, ingress and egress, consistent with all the public purposes. 3. Bozeman Street Maintenance, Snow Removal and Repair: Sawmill Gulch shall ensure that the Bozeman Street shall be maintained and repaired regularly routinely as well as snow shall be removed and stored in designated areas by personnel qualified to conduct such maintenance, repair and snow removal. 4. Covenants, Representations and Warranties: a. Sawmill Gulch agrees that for any damage to the Bozeman Street, excepting reasonable wear and tear, Sawmill Gulch will use commercially reasonable efforts to commence repairs within a 72-hour period following receipt of notice from any person or entity that such repairs are required. In the case that repair cannot be commercially reasonably commenced within 72 hours, Sawmill Gulch will repair, modify or improve, or cause to be repaired, modified or improved affected are of the Bozeman Street, acting reasonably, so as to return said Bozeman Street to substantially the same condition as existed prior to the occurrence of such damage, accounting for reasonable wear and tear that would have been experienced in any event. b. The City has no obligation to acquire additional right-of-way or easements outside of Bozeman Street described in this Agreement. If the Bozeman Street is a width Agreement Bozeman Street Maintenance Page 2 of 4 Version 2 – 11.30.2021 insufficient for any public use, Sawmill Gulch is solely responsible for acquisition of such temporary construction license or easement to remain and maintenance the Bozeman Street in its current condition c. Sawmill Gulch will ensure all noxious weeds shall be controlled along the Bozeman Street in accordance with the Nelson Meadows Noxious Weed Management Plan. 5. Indemnification: Sawmill Gulch and the City each acknowledge that each is solely responsible for any and all damages, modifications, repairs and improvements, as a result this Agreement, that each shall for the other Party indemnify, defend and hold harmless from and against any and all third party claims, suits, actions, judgments, demands, losses, costs, expenses, damages and liability related to bodily injury (including death) and third-party property damage to the extent directly and solely caused by the acts, errors, or omissions of the other Party, their officers, employees, agents, representatives, suppliers or subcontractors with regard to the repair and maintenance of the Bozeman Street, other than on account of willful misconduct of the Party. Notwithstanding any other provisions in this Agreement, neither Party nor its respective affiliates shall be liable to the other party or its affiliates for any special, indirect, consequential, incidental, punitive or exemplary damages, whether or not foreseeable, arising out of or in connection with the matters contemplated in this Agreement. Such damages include, without limitation, loss of profits, revenue, interest, opportunity, goodwill or financing costs. 6. Insurance: Sawmill Gulch acknowledges that it will maintain general liability insurance for the benefit of the City in the minimum amount of Two Million Dollars ($2,000,000) per claim that would cover damages and/or claims as a result of and/or relating to any and all proposed work, activity, actions or omissions cause or directed by Sawmill Gulch involving, the repairs, maintenance and snow removal this Agreement as well as for any personal injury or wrongful death claims, as well as general liability and property loss claims effected, interfered with or otherwise result in any claim as a result of intended activities and work. 7. Term: This Agreement shall become effective immediately upon the execution hereof by both Parties hereto and shall remain in effect until such time as the City assume maintenance, repair and snow removal of the Bozeman Street. 8. Assignability: Sawmill Gulch shall have the right to assign, in its entirety, this Agreement to one or more third parties. The assignee or transferee shall be subject to all of the obligations, covenants and conditions applicable under the terms of this Agreement. Any assignee shall acknowledge that it consents to, and is bound by, the terms and conditions of this Agreement and must provide requisite proof of insurance and an endorsement naming the City as an additional insured, prior to assignment of the Agreement. 9. Governing Law and Venue: Any dispute between the Parties arising out of a breach, or purported breach, in relation to this Agreement, shall be governed by and construed in accordance with the laws of the State of Montana and venue shall be in the Eighteenth Judicial District, Gallatin County. Agreement Bozeman Street Maintenance Page 3 of 4 Version 2 – 11.30.2021 10. Dispute Resolution: The Parties may mediate any dispute or seek resolution of any dispute arising between the Parties in relation to this Agreement in a court of law in the State of Montana. Assuming the foregoing accurately reflects our understandings, please so confirm by signing a copy of this Agreement in the space provided below and returning a fully executed copy to the address above. Sawmill Gulch, LLC By: ________________________________________ Name: ________________________________________ Title: ________________________________________ Dated: ________________________________________ STATE OF MONTANA ) :ss. County of Gallatin ) On this day of ________________, 2021, before me, the undersigned, a Notary Public for the State of Montana, personally appeared , the _________ of _________________________ known to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he/she did execute the same on behalf of the limited liability company/corporation. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) Notary Public for the State of ___________ (Printed Name) Residing at My Commission Expires / /20_ ACCEPTED: CITY OF BOZEMAN by ________________________ City Manager ATTEST: City Clerk Agreement Bozeman Street Maintenance Page 4 of 4 Version 2 – 11.30.2021 STATE OF MONTANA ) :ss. County of Gallatin ) On this ________ day of ___________________, 2021, before me, a Notary Public for the State of Montana, personally appeared ________________ and ____________________, known to me to be the City Manager and City Clerk, respectively, of 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 Notarial Seal the day and year first above written. (SEAL) Notary Public for the State of Montana (Printed Name) Residing at My Commission Expires / /20