HomeMy WebLinkAbout17- Improvements Agreement - Montana DNRC, Bozeman Land Investors, LLC - Springhill Suites Site Plan and Conditional Use Permit (Landscaping & Lighting Improvements) Send Orijzinal to:
City of Bozeman
Department of Community Development
P.Q.Box 1230
Bozeman,MT 59771
IMPROVEMENTS AGREEMENT
FOR
SPRINGHILL SUITES SITE PLAN& CONDITIONAL USE PERMIT
(LANDSCAPING & LIGHTING IMPROVEMENTS)
THIS AGREEMENT is made and entered into this .9M-" day of April 2017, by and
between Montana DNRC PO Box 201601, 1539 111" Avenue, Helena, MT 59620, hereinafter
called the "Landowner", and it's land lessee, Bozeman Land Investors, LLC 1735 South 191"
Avenue, Suite B Bozeman, MT 59719, hereinafter called the "Developer", and the City of
Bozeman, a self-governing municipal corporation and political subdivision of the State of I
Montana, with offices at City Hall, 121 North Rouse Avenue, P.O. Box 1230, Bozeman, MT
59771-1230,hereinafter called the "City".
WHEREAS, the Developer desires to obtain final building occupancy approval for
buildings known as "Springhill Suites", as part of Zoning Application 15400, SPRINGHILL
SUITES SITE PLAN AND CONDITIONAL USE PERMIT, located on property described as
"LEWIS & CLARK COMMERCIAL SUBDIVISION, S36, TO S, R05 E, BLOCK 2, LOT 5, j
CITY OF BOZEMAN, GALLATIN COUNTY, MONTANA."; and
WHEREAS, the Developer desires to obtain final building occupancy approval for
SPRINGHILL SUITES SITE PLAN AND CONDITIONAL USE PERMIT, prior to the
installation of all required site improvements; as such, the Developer desires to enter into an
improvements agreement with the City and provide financial security guaranteeing the
completion of certain site improvements; and
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WHEREAS, it is the intent and purpose of both the Developer and the City to hereby
enter into this Agreement to memorialize the terms and conditions for which final building
occupancy approval may be granted.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein,it is hereby agreed as follows: 1
1. Property Description
This Agreement pertains to, and includes, those properties that are designated and
identified as being:
LEGAL DESCRIPTION
s
LEWIS & CLARK COMMERCIAL SUBDIVISION, Sad, TO S, R05 E, BLOCK 2,
LOT 5, CITY OF BOZEMAN, GALLATIN COUNTY, MONTANA.
2. Improvements
This Agreement specifically includes the following required improvements for
SPRINGHILL SUITES SITE PLAN AND CONDITIONAL USE PERMIT (the "Zoning
Application 15400"): landscaping and lighting improvements (the above are referred to as the
"Improvements").
The cost of the Improvements has been estimated by the Developer's agent, Wien.ing Landscape,
Inc. 167 4-Dot Lane, Belgrade, MT 59714, at Forty-One Thousand Two Hundred and Twelve
Dollars ($41,212.00), Reliance Electric, PO Sox 840575, Hildale, UT 84784, One Thousand
Three Hundred Dollars($1,300.00). The estimate is attached and hereby made a part of this
Agreement, as Exhibit"A".
3. Financial Guarantee, Time for Completion of Improvements, Additional
Restrictions
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A. The Developer must maintain adequate financial security guaranteeing the completion of
the Improvements until such Improvements are accepted by the City. The Developer's
performance under this Agreement is specifically guaranteed and secured by a Letter of
Credit: $61,818.00, Cash Bond: $1,950.00. The bond constitutes the"Financial Security."
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B. Notwithstanding the time frame for completion of the Improvements stated in subsection
A of this section, the City agrees the Developer may defer completion of the following
Improvements to not later than six (6) months of the execution of this agreement:
landscaping and lighting improvements.
C. Landowner and Developer acknowledge and agree the Financial Security is specifically
provided for the benefit of the City to guarantee and secure completion of the
Improvements within the timeframes specified above and that the Financial Security may
be drawn upon by the City without notice to the Landowner or Developer and used by the
City for completion of the Improvements in its sole discretion but only if the Developer
fails to comply with the terms and conditions of this Agreement.
D. The Developer agrees that no delegation of performance required by this agreement shall
relieve the Developer of any duty to perform or any liability for the breach of that duty to
complete said Improvements required for the property.
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E. Upon submission of fully documented invoices for the work performed, said work to be
inspected and certified for payment by Developer's professionals and the City and or its
agents as necessary, the City may release a portion of the Financial Security for the work
completed by the referenced invoices.
4. Inspection
Within six (6) monthss of the execution of this Agreement, representatives of the City
shall have the right to enter upon the property at any reasonable time in order to inspect it and to
determine if the Developer is in compliance with this Agreement, and the Landowner and
Developer shall permit the City and its representatives to enter upon and inspect the property and
Improvements at any reasonable time.
5. Default
Time is of the essence of this Agreement. If the Developer shall default in or fail to fully
perform any of its obligations in conformance with the time schedule under this Agreement, and
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such default or failure shall continue for a period of ten (10) days after written notice specifying
the default is deposited in the United States mail addressed to the Landowner at Montana DNRC
PO Box 201601, 1539 11" Avenue, Helena, MT 59620, and to the Developer at 1735 South 19,'
Avenue, Suite B Bozeman, MT 59719, or such other address as the Landowner or the Developer
shall provide to the City from time to time, without being completely remedied, satisfied, and
discharged,the City may elect to enforce any of the following specified remedies:
A) The City may, at its option, declare the Financial Security to be forfeited, take
possession of funds secured by the Financial Security pursuant to any lawful
means, and secure the complete construction and inspection of the Improvements.
The City's representative, contractors, and engineers shall have the right to enter
upon the property and perform such work and inspection within six (6) months of
the City's declaration of the forfeiture. In the event that any funds remain from
the financial guarantee upon completion of all Improvements, such funds shall be
promptly returned to the Developer.
B) The City may enforce any other remedy provided by law.
6. Indemnification
To the fullest extent permitted by law, Developer agrees to release, defend, indemnify,
and hold harmless the City, its agents, representatives, employees, and officers (collectively
referred to for purposes of this Section as the City) from and against any and all claims,
demands, actions, fees and costs (including attorney's fees and the costs and fees of and 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
and without limit and without regard to the cause or causes thereof or the negligence of any party
or parties that may be asserted against, recovered from or suffered by the City occasioned by,
growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or
intentional misconduct of the Developer in regards to the property; (ii)any negligent, reckless, or
intentional misconduct of any of the Developer's agents in regards to the property. Such
obligations shall not be construed to negate, abridge, or reduce other rights or obligations of
indemnity that would otherwise exist. The indemnification obligations of this Section must not
be construed to negate, abridge, or reduce any common-law or statutory rights of the
indemnitee(s) which would otherwise exist as to such indemnitee(s). Developer's indemnity
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Springhill Suites-Improvements Agreement Page 4 of
under this Section shall be without regard to and without any right to contribution from any
insurance maintained by City. Should any indemnitee described herein be required to bring an
action against the Developer to assert its right to defense or indemnification under this
Agreement or under the Developer's applicable insurance policies required below the indemnitee
shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to
indemnification or defense but only if a court of competent jurisdiction determines the Developer
was obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s)
or any portion(s)thereof.
In the event of an action filed against City or any of the indemnitee(s) resulting from the
City's performance under this Agreement, the City or an indemnitee may elect to represent itself
and incur all costs and expenses of suit.
Developer also waives any and all claims and recourse against the City or its officers,
agents or employees, including the right of contribution for loss or damage to person or property
arising from, growing out of, or in any way connected with or incident to the performance of this
Agreement except "responsibility for his own fraud, for willful injury to the person or property
of another, or for violation of law, whether willful or negligent"as per 28-2-702,MCA.
These obligations shall survive termination of this Agreement and the services performed
hereunder.
7. Attorney Fees
In the event it becomes necessary for any 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 City Attorney.
8. Warranly
The Developer acknowledges that the required landscaping must be maintained in a
healthy, growing condition at all times. The Developer, as lessee to the Landowner, or its
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assignees, is responsible for regular weeding, mowing of grass, irrigating, fertilizing, pruning,
and other maintenance of all plantings as needed. Any plant that dies must be replaced with
another living plant that complies with the approved landscape plan,
9. Governing Law
This Agreement shall be construed according to the laws of the State of Montana. In the
event of litigation concerning this Agreement, venue is in the Eighteenth Judicial District Court,
Gallatin County, State of Montana.
10. Modification or Alterations
No modifications or amendment of this Agreement shall be valid, unless evidenced by a
writing signed by the parties hereto.
11. Invalid Provision
The invalidity or unenforceability of any provision of this Agreement shall not affect the
other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
12. No Assignment
It is expressly agreed that the Developer shall not assign this Agreement in whole, or in
part, without prior written consent to City.
13. Successors
Except as provided in paragraph twelve (12), this Agreement shall be binding upon,
ensure to the benefit of, and be enforceable by the parties hereto and their respective heirs,
successors and assigns.
14. Filing
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The Developer shall have this Agreement recorded in the Office of the Gallatin County
Clerk and Recorder within ten (10) business days of the signature of the Community
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Development Director.
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LANDOWNER
BY: Michael Atwood
TITLE: Chief, Real Estate Management Bureau
MONTANA DNRC
STATE OF 1A ujMMR )
:ss
County of(F,tAA5 4 Ll,ig-"L_ )
On this 215T- day of April 2017, before me, a Notary Public of the State of
MW77'-N A , personally appeared��f 1 L- kj&Xy)b , known to me to be the Landowner
that executed the foregoing Improvements Agreement, and acknowledged to me that (s)he
executed the foregoing instrument act Mpmf$u.Mof Montana DNRC, and
acknowledged to me that (s)he executed the same for and on behalf of Montana DNRC.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal
the day and year first above written.
(SEAL)
CHLOE M.KATSILAS (Printed Name Here) C f-L#F M, KA-'f31 t A ,
NOTARY PUBLIC for the
State of Montana Notary Public for the State of /ylau 7?97t1f1-
SEAL Residing at East Helena,Montana Residing at — A
My Commission Expires My Commission Expires tk , al?�a=►n January 19,2019
(Use 4 digits for expiration year)
Springhill Suites-Improvements Agreement Page 7 of 7
DEVELOPER
BY:
TI LE: /ham9 /�rrla.�
Bozeman Land7nvestors, LLC
STATE OF MQHbr10 )
:ss
County of
On this ZI day of April 2017, before me, a Notary Public of the State of
hWN ,personally appeared doh BI'uXh n1 , known to me to be the Developer that
executed the foregoing Improvements Agreement, and acknowledged to me that (s)he executed
the foregoing instrument as room6jno memtvy—, of Bozeman Land Investors, LLC,
and acknowledged to me that (s)hV e cuted the same for and on behalf of Montana Land
Investors, LLC.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal
the day and year first above written.
(SEAL)
(PriDAd Name here) 6- zab6"h K GOUCI�
OEtH N� ELIZABETH K GOOCH Notary Public for the State of
Notary Public
' •.o; Residing at
No�nRr,ac:___for the State of Montana
Residing at: My Commission Expires:
* SEAL.••P; Bozeman,Montana
LD•. �: (Use 4 digits for ear)
expiration
'.9P•` My Commission Expires: p y
December 14,2020
Springhill Suites-Improvements Agreement Page 8 of 8
THE CITY OF BOZEMAN
BY' ARTIN MATSPN,
DIRECTOR OF COMMUNITY DEVELOPMENT
CITY OF BOZEMAN
STATE OF MONTANA }
:5s
County of Gallatin )
On this a day of PoM 2017, before me, a Notary Public for the State
of Montana, personally appeared artin Matsen, known to me to be the person described in and
who executed the foregoing instrument as Director of Community Development for the City of
Bozeman, whose name is subscribed to the within instrument and acknowledged to me that he i
executed the same for and on behalf of said City.
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IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal on the day and
year first written above.
(SEAL)
IL�oo �tY�i
(Printed Name Here)
"v�� y SHANNON L KLOOSTERHOF Notary Public for the State of Montana
'. Notary Public
FA, t4o /.';},' for the State of Montana Residing at � �T Cj l l D
Residing at: My Commission Expires:
u SF.,�#,.�Y; Bozeman, Montana
(Use 4 digits for expiration year)
's9 ? ' My Commission Expires:
March 17,2021 s
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EXHIBIT A
WIEN1NG
L A N 0 5 C A P E 5
Springhill Suites landscape project,1601 Baxter Lane,Bozeman MT
liem No. Description of Work Scheduled Value Completed To Date Balance to
4121r1017 Finish
A B C G H I
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1 Trees updated per plan 36695 36695 0
Shrubs,perenniaf plants and ornamental
2 grasses updated per plan 25356 25356 0
Planting and delivery of trees,shrubs and
3 perennials 34526 25895 8631
4 Moss boulders 6800 6800 0
Screened lop soil for planting and finish
5 grade 24001. 2400 0
6 ON work 11200 5600 5600
7 Welded steel edging Installed 3720 3720 0
8 Landscapa fabric 7174 3587 3587
9 Medicine Mt Red ground cover 10469 5235 5234
10 Bluegrass sod 14960 14960
n Native qws seed mix 3200 3200
12 Do ipol 600 600 0 _
13 Park Bench 400 400 0
13 Irrigation installation 36500 36500 0
i5 fietalning Wall per change order#1 2350 2350 0
16 18onding 6000 6000 0
TOTALS 202,850.00 161,138.00 41,212.00
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Wlening Landscapes,Inc. "167 4-Dot Lane "Belgrade MT 59714^406.582-8482
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Ralley ce Estimate
t �0SCtfnt"'4M bA April 20,2017
va.a.asn rau.w.urema Ttdr
pVw(43"a741210 f-035 A4ma1
Builder: KeyConshuetton
Address: 1601 Baxter Lane,Bozeman,INT
Phone: Keatln Herder-S10-044-7370 - ErratO:kdherderQk"onstructiorixom
Job-Site,
QTY Desuiptlon
We are prepared to offer the following to complete
the bollards&upllghts
at the Springhill Suttee located In Bozeman,Montano
20 Jabor 66 1300
TaTAt. 1,300.00
EXCLUSIONS:
ANYTHING NOT SPECIFICALLY LISTED ABOVE IN THIS PROPOSAL
HOUSING&UTILITY BILLS
SPECIAL TRIPS
TUscontract nay be voided by Reliance Electric,Inc.,if not accepted,signed and rehimadw5tldn tmnly(24)business days
of Reliance Electric's signature.This represents the entire agreement,and an items not expresslydescdbad above are
considered extras wrldt shall be charged at Reliance Electric's standard rates. Payment Is due 15 days from date of
invoice and will be subject to a$50.001ate fee and finance charge of 2%per month,24%per year,from the Indite date,plus
all costs,expenses,collection costs and attorney feesincurred in any negobabon or collection effort Ad disputes or dafrris
must be sutrmtled in writing widen thirty(30)days of completion or are othervise waived_Judsdfction of all legal actions and
the taws emit such,shall be that of Washington County.Utah,unless odwrmse re 'governing g ty, quiredtrylaw.
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Project Manager
F7elile,Yric,Inc_ Toe Omer sign&prird name Title I Oah
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Total Amount per estimates= $42,512.00
Total Amount guaranteed= $63,768.00
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