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HomeMy WebLinkAbout035 - Appendix U - Easement Maintenance AgreementAfter Recording, Please Return to: City of Bozeman Department of Community Development P.O. Box 1230 Bozeman. MT 59771-1230 EASEMENT MAINTENANCE AGREEMENT This EASEMENT MAINTENANCE AGREEMENT ("Agreement", "Easement Maintenance Agreement") is made and entered into this _____ day of ______________, 2022 ("Effective Date"), by and between the CITY OF BOZEMAN ("City"), with a mailing address of 121 N. Rouse, P.O. Box 1230, Bozeman, Montana, 59771-1230, and BOARDWALK PROPERTIES, INC. a Montana Corporation ("Boardwalk") with a mailing address of 101 East Main Street, Suite D, Bozeman, MT 59715. City and Boardwalk may hereinafter be referred to collectively as the "Parties" and individually as a "Party." RECITALS: A. Boardwalk is the owner of the following described real property located within the Bozeman City limits in Gallatin County, Montana: Lot 5, Minor Subdivision No. 295, according to the plat thereof, on file and of record in the office of the Clerk and Recorder of Gallatin County, Montana, and located in the SW 1/4 of Section 10, Township 2 South, Range 5 East, P.M.M., Gallatin County, Montana. B. Boardwalk is developing proposed Ferguson Farm II Subdivision PUD on the Property and has submitted a Preliminary Plat Application to the City for approval. (Exhibit A). C. The Preliminary Plat includes street right of ways so that the City may provide the Boardwalk Property with water and sewer services (City's Right of Ways). D. Boardwalk plans to finish the surface of the City's Right of Ways with specialized finishes, including stamped concrete and grass pavers (Special Surface Finishes). E. Should the City have to remove the Special Surface Finishes to maintain, repair and/or replace any component of the water and sewer utilities within the City's easement, the City will not repair or replace the Special Surface Finishes. F. This Easement Maintenance Agreement is necessary for the City to provide utilities to the Boardwalk project, and is necessary for Boardwalk so it can complete its Preliminary Plat review. AGREEMENT: NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Incorporation of Recitals. The above recitals are true and correct and incorporated herein. 2. Easement Maintenance Agreement. The City shall have the right to remove any and all Special Surface Finishes in order to maintain, repair and replace any component of the water and sewer utilities within the City's utility easement on the Boardwalk Property. The Parties agree that the City will return the land to a finished grade, but the City will not be responsible for the repair or replacement of any Special Surface Finishes. 3. Easement Maintenance Agreement to Run with the Land. This Agreement, the obligations, and all other covenants, agreements, rights, and obligations created hereby, shall run with, benefit and burden the Boardwalk Property, and shall benefit the development and use of the constructed Improvements on the Boardwalk Property, and shall be binding on and inure to the benefit of all persons having or acquiring fee title to the Boardwalk Property. This Agreement, the obligations, and all the rights and obligations of the City and Boardwalk with respect to thereto as set forth herein will commence as of the Effective Date and shall continue in perpetuity unless terminated in accordance with this Agreement. 4. Waiver of Claims, Limitation of Liability, and Indemnification. Except for the City's own negligence and/or willful misconduct, Boardwalk hereby expressly agrees to indemnify and hold the City harmless for and against all claims, costs, and liability of every kind and nature, for injury or damage received or sustained by any person or entity in connection with this Agreement. Boardwalk further agrees to aid and defend the City in the event that it is named as a defendant in an action concerning this Agreement, except where the suit is brought by Boardwalk. To the fullest extent permitted by law, Boardwalk waives all claims against the City, its officers and employees, agents, insurers, and consultants for any and all claims for or entitlement to special, incidental, indirect, or consequential damages arising out of, resulting from, or in any way related to this Agreement. In addition to the above, except in matters involving the City's own negligence and/or willful misconduct, Boardwalk shall defend and indemnify the City from any claims brought against the City by any of Boardwalk’s partners, investors, creditors, lenders, agents, or any other entity associated with Boardwalk for claims related to this Agreement. 5. Miscellaneous. a. Counterparts. This Easement and Maintenance Agreement may be executed in several counterparts, and all such counterparts together shall constitute one (1) Agreement binding on the Parties hereto, notwithstanding that the Parties are not signatories to the same counterpart. b. Successors and Assigns. This Agreement shall be binding on and inure to the benefit of City's and Boardwalk’s respective successors and assigns; provided, however, that Boardwalk may not assign this Agreement, or its rights thereunder, or delegate its obligations hereunder to any third party without the express written approval of City and except concurrently with an assignment or conveyance of Boardwalk's interest in the Boardwalk Property. References to Boardwalk and City in this Agreement shall be deemed to also refer to any successors in interest to such Parties with respect to their interests in the Boardwalk Property, as applicable. c. Section Headings. Section headings are only for convenience and reference and shall in no way define, limit or prescribe the scope or intent of any provisions of this Agreement. d. Entire Agreement. This Easement Maintenance Agreement, together with the Exhibits attached hereto, and the documents referenced and incorporated into this Agreement, contain the entire agreement of the Parties hereto with respect to the subject matter hereof and no prior written or oral agreement with respect to the subject matter hereof shall have any force or effect or be binding upon the Parties hereto. e. Severability. If any provision contained herein is found to be invalid, illegal or unenforceable the remaining provisions of this Agreement shall nevertheless continue in full force and effect and be binding on the Parties hereto, their successors and assigns, and the Parties shall negotiate in good faith and attempt to agree to another provision (in lieu of the provision held to be invalid, illegal or unenforceable) that is valid, legal and enforceable and carries out the Parties intentions as closely as possible to effect the original intent and purpose, f. Governing Law. The terms and provisions of this Easement Maintenance Agreement shall be construed under and governed by the laws of the State of Montana and venue for judicial resolution of any dispute relating to this Agreement shall be the 18th Judicial District Court, Gallatin County, Montana. g. Waivers. No provision of this Easement Maintenance Agreement shall be deemed waived except by a writing executed by the Party against whom the waiver is sought to be enforced; No waiver of any provision of this Agreement shall be deemed a continuing waiver of such provision or deemed a waiver of any other provision of this Agreement. h. Notices. All notices, requests, consents and other formal communication between the Parties that are required or permitted under this Agreement (each, a "Notice") shall be in writing and sent to the address for the respective addressee provided in the preamble to this Agreement. The Parties may provide the required Notice by electronic means in compliance with the requirements of the Montana Uniform Electronic Transactions Act, MCA Sections 30-18- 101, et seq. Each Party shall be entitled to change its Notice address from time to time by delivering to the other Party Notice thereof in the manner provided for the delivery of Notices. i. Amendment and Termination. This Easement Maintenance Agreement may not be amended or terminated except by a written instrument signed by the Parties, or their successors in interest with respect to the Boardwalk Property; provided however, if there are multiple owners of the Boardwalk Property, any amendment or termination shall require the signature of a majority in interest of the owners of the Boardwalk Property, and shall not require the signature of all owners of the Boardwalk Property. j. Default. If any Party hereto breaches any provision of this Easement Maintenance Agreement and fails to cure such breach within ten (10) days after receipt of written notice thereof, the non-defaulting Party shall have the right to enforce the terms and provisions of this Agreement by any proceeding at law or in equity. The failure by any Party to enforce this Agreement or any term or provision hereof shall in no event be deemed a waiver of the right to do so hereunder. k. Attorney's Fees. In the event it becomes necessary for either party to this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement, then the prevailing party shall be entitled to reasonable attorney’s fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney. l. Authority to Execute. Each person executing this Easement Maintenance Agreement represents and warrants that the person so executing is duly authorized to execute this Agreement for, and bind, the Party on whose behalf the person is so executing. m. Recordation. Boardwalk shall record this Easement Maintenance Agreement at Boardwalk 's sole cost and expense. In the event this Agreement is terminated, the Parties shall prepare, execute and record, at the shared expense of both Parties, any reasonable instrument necessary to release this Agreement of record. n. Disclaimer of Joint Venture. This Easement Maintenance Agreement is not intended to create a joint venture, partnership or agency relationship between City and Boardwalk, and such joint venture, partnership or agency relationship is specifically disclaimed. o. Survival. All terms, conditions, covenants, and indemnities which are intended to survive termination of this Easement Maintenance Agreement shall survive such termination and shall be binding upon the heirs, successors and assigns of the Parties hereto. p. Construction. The Parties to this Easement Maintenance Agreement have participated jointly in the negotiation and drafting of this Agreement. In the event of ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. DATED this ______ day of _____________________, 2022. Grantor: Boardwalk Properties, Inc., a Montana corporation ___________________________________ By: Michael W. Delaney, President STATE OF MONTANA ) ) ss. County of Gallatin ) This instrument was signed or acknowledged before me on this ____ day of ________________, 2022, by Michael W. Delaney, as President of Boardwalk Properties, Inc., a Montana corporation. _______________________________________ (SEAL) Notary Public for the State of Montana Printed Name: ______________________ Residing at: _______________, _________ My Commission Expires: _____/ _____, 20 ____. ACCEPTED - CITY OF BOZEMAN _______________________________________ By: _____________, acting Public Works Director STATE OF MONTANA ) )ss. County of Gallatin ) On this ________ day of ___________________, 2022, before me, a Notary Public for the State of Montana, personally appeared Scott Shirley, known to me to be the acting Public Works Director of the City of Bozeman, and the person whose name is subscribed to the within instrument, and acknowledged to me that he 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 G:\C&H\17\170827\Files In\From City\Easement Maintenance Agreement.Docx