HomeMy WebLinkAbout17- Improvements Agreement - Westbrook Development, LLC - Westbrook Subdivision, Phases 2-4 (Fencing Public Landscaping, and Open Space Improvements) J-599
Send Ori ink al to:
City of Bozeman
Department of Community Development PLATTED
P.O. Box 1230
Bozeman,MT 59771
2577240
Page: 1 of Q Charlotte Mills 04/14/2017 01.59:47 PM Fee: $56.00
- Gallatin County MT IMP
I IIIIIII IIIIII III IIII IIIIIII IIIIII IIII IIII 111111111111111111111111111111111111111111111111
IMPROVEMENTS AGREEMENT
FOR
WESTBROOK SUBDIVISION—PHASES 2-4
(FENCING, PUBLIC LANDSCAPING,AND OPEN SPACE IMPROVEMENTS)
THIS AGREEMENT is made and entered into this ('? day of Ajjv ( 2017, by
and between Westbrook Development, LLC, 125 Central Avenue, Unit l A, Bozeman MT 59718,
hereinafter called the "Subdivider", and the CITY OF BOZEMAN, a municipal corporation and
political subdivision of the State of Montana, with offices at City Hall, 121 North Rouse Avenue,
P.O. Box 1230, Bozeman, MT 59771-1230, hereinafter called the "City".
WHEREAS, it is the intent and purpose of the Subdivider to meet the conditions of
preliminary plat approval, Planning Application No. P13047, for the Final Plat application of
WESTBROOK SUBDIVISION-PHASES 2-4(16525),to subdivide 25.8704 acres together and
create Forty-One (41)residential lots,three (3) common open space lots, one (1) city park,and the
remaining areas as public streets; and
WHEREAS, it is the intent and purpose of the Subdivider to obtain Final Plat approval for
WESTBROOK SUBDIVISION-PHASES 2-4; and
WHEREAS, the Final Plat for WESTBROOK SUBDIVISION- PHASES 2-4, is to be
filed prior to the installation of all required subdivision improvements and an improvements
agreement with financial security was provided; and
WHEREAS, it is the intent and purpose of both the Subdivider and the City to hereby
enter into an Agreement which will guarantee the full and satisfactory completion of the required
improvements related with the property hereinafter described; and it is the intent of this
Westbrook Subdivision-Phases 2-4—Improvements Agreement Page 1 of 7
Agreement, and of the parties hereto, to satisfy the improvements guarantee requirements for the
Final Plat approval of WESTBROOK SUBDIVISION-PHASES 2-4.
NOW,THEREFORE, in consideration of the mutual covenants and conditions contained
herein, it is hereby agreed as follows:
1. Property Description
This Agreement pertains to, and includes, those properties that are designated and
identified as being:
LEGAL DESCRIPTION
LOT R1, WESTBROOK SUBDIVISION - PHASE 1, LOCATED IN THE SE1/4,
SECTION 4, T2S, R5E, P.M.M., CITY OF BOZEMAN, GALLATIN COUNTY,
MONTANA.
2. Improvements
This Agreement specifically includes the following improvements for WESTBROOK
SUBDIVISION - PHASES 2-4: Fencing, Park Improvements and Common Open Space
Improvements.
The Estimated Cost of said improvements was estimated by Bear Paw Landscapes and
Sprinklers, 150 Red Fox Lane, Bozeman MT 59718 and Fence Pro, LLC, 809 Cape Avenue,
Bozeman MT 59715, with the estimated cost of improvements being in total One Hundred
Twenty Thousand One Hundred Dollars and Ninety-Two Cents (120,100.92). 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
It is the Subdivider's intent with this Agreement to file the Final Plat prior to completion
of all required subdivision improvements. Therefore, this Agreement shall be secured by an
irrevocable standby letter of credit: Letter of Credit No. Z 3OG 7 31—a in the amount of
$180,166.38 from )3t,!, Vk:2 4jer7c.-^ t3_.,IC acceptable to the City of Bozeman,
which is one hundred and fifty (150)percent of the Estimated Cost of said improvements.
Westbrook Subdivision-Phases 2-4—Improvements Agreement Page 2 of 7
The Subdivider hereby agrees that the following subdivision related improvements
shall be installed and completed not later than six(6) months of the filing of the final
subdivision plat for WESTBROOK SUBDIVISION-PHASES 2-4 in order to avoid default
on the method of security: Fencing,Public Landscaping,and Common Open Space
Improvements.
The Subdivider agrees that no delegation of performance required by this agreement shall
relieve the Subdivider of any duty to perform or any liability for the breach of that duty to complete
said subdivision improvements required for WESTBROOK SUBDIVISION-PHASES 2-4.
Upon submission of fully documented invoices for the work performed, said work to be
inspected and certified for payment by Subdivider's professional engineers and the City of
Bozeman and or its agents as necessary,the City of Bozeman may release a portion of the letter of
credit for the work completed by the referenced invoices.
4. Inspection
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 Subdivider is in compliance with this Agreement,
and the Subdivider shall permit the City and its representatives to enter upon and inspect the
property at any reasonable time.
5. Default
Time is of the essence of this Agreement. if the Subdivider shall default in or fail to fully
perform any of its obligations in conformance with the time schedule under this Agreement, and
such default or failure shall continue for a period of thirty(30)days after written notice specifying
the default is deposited in the United States mail addressed to the Subdivider at Westbrook
Development, LLC, 125 Central Avenue,Unit 1A, Bozeman MT 59718,or such other address as
the Subdivider 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 guarantee to be forfeited and secure
the complete construction and inspection of the improvements described herein.
The City's representative, contractors, and engineers shall have the right to enter
upon the property and perform such work and inspection, and the Developer shall
Westbrook Subdivision-Phases 2-4—Improvements Agreement Page 3 of 7 F
i
permit and secure any additional permission required to enable them to do so. In
the event that any funds remain from the financial guarantee upon completion of
all improvements, such funds shall be promptly returned to the Subdivider.
B) The City may enforce any other remedy provided by law.
6. Indemnification
The Subdivider 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, or on account of the performance of work at
the development site and elsewhere pursuant to this Agreement. Subdivider further agrees to aid
and defend the City in the event that it is named as a defendant in an action concerning the
performance of work pursuant to this Agreement except where such suit is brought by the
i
Subdivider. The Subdivider is not an agent or employee of the City.
7. Attorney Fees
In the event it becomes necessary for either party to this Agreement to retain an attorney
i
to enforce any of the terms or conditions of this Agreement, then the prevailing party shall be
3
entitled to reasonable attorney's fees and costs,including fees,salary,and costs of in-house counsel
k
including City Attorney.
S. Warrant
The Subdivider shall warrant against defects of all improvements and that these
improvements are made in a good and workman-like manner for a period of two (2) years from
the date of their written acceptance by the governing body.
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.
a
Westbrook Suhdh ision - Phases 2-4—Improvements Agreement Page 4 of 7 1
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 Subdivider 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
i
assigns.
14. Filing
The Subdivider shall have this Agreement recorded in the Office of the Gallatin County
Clerk and Recorder within 10 business days of the signature of the Community Development
i
Director.
i
Westbrook SubdiNsion -Pliases 2-4--Improvements Agreement Page 5 of 7
1
n
SUBDIVIDER
' l
WESTBROOK DEVELOPMENT, LLC
TITLE: ��-
STATE OF
:ss
County of )
On this S day of ma�Vtx 2017, before me, a Notary Public of the State of
W17� ,personally appeared C-i2�lnae ( , known to me to be the subdivider that
executed the foregoing Improvemen s Agreement, and acknowledged to me that (s)he executed
the foregoing instrument as N Q r— of Westbrook Development, LLC,
and acknowledged to me that (s)he executed the same for and on behalf of Westbrook
Development, LLC
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal
the day and year first above written.
(SEAL)
ASHLEY M KOENIG -
,���Y•M•Ko�� Notary Public (Printed gaind Here)
of r,Rtn j.� for the State of Montana
Residing at: Notary Public for the ate of
SEaI.. ;; Belgrade, Montana Residing at
pjfi• P My Commission Expires:
- of rn August 15,2017 My Commi on Expires:
(Use 4 d' its for expiration year)
Westbrook Subdivision-Pb«ses 2-4—Improvements Agreement Page 6 of 7
THE CITY OF BOZEMAN
/'—
BY44ARffN VfATSEN,
DIRECTOR OF COMMUNITY DEVELOPMENT
CITY OF BOZEMAN
STATE OF MONTANA )
:ss
County of Gallatin )
On this IJ day of Y'Y�a" 2017, before me, a Notary Public for the State
of Montana, personally appeared Martin 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
executed the same for and on behalf of said City.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal on the day and
year first written above.
(SEAL) (],
(Printed Name H e)
Notary Public for the��o
ntana
Residing at
- y ti,'KC),
ASHLEY M KOEMG My Commissionrxppi
ires:
Notary Public (Use 4 digits forration year)
the state of Montana
at:
- �-residing ,
N. SE:., .° Lieigrade, Monta
9 My Commission Expires:
OF tiro, August 15,2017
Westbrook Suhi/rvrsron-Phrases 2-4—Improvements Agreement Page 7 of 7
RESOLUTION OF WESTBROOK
DEVELOPMENT, LLC
The following resolution was unanimously adopted by the Members of WESTBROOK
DEVELOPMENT, LLC, a Montana limited liability company, the members of which are Rosa-
Johnson Development, LLC, Gerharter Development, LLC, and C2Q Ltd., LLC, all of which are
Montana limited liability companies, to-wit:
RESOLVED,that due to the travel schedules of the individuals named as managers
in the Operating Agreement of Westfork Development, LLC, and to remove all
doubt as to the ability of any individual to act on behalf of the Company with respect
to potential lot sales by the Company in the next 90 days, the members of the
Company hereby authorize John Rosa, Scott V. Johnson, Dan Gerharter and
Christopher Johnson to execute all documents necessary to consummate the sale of
any lots within Westbrook Subdivision,Gallatin County,Montana,which are for sale
to the general public. This resolution shall remain in effect for 90 days from the date
of execution and during that time all of the individuals named above shall be
authorized to execute all necessary documents to carry out the purpose of this
resolution, including plats for phases 2, 3 and 4 of Westbrook Subdivision, any
documents necessary to effectuate the filing of the final plat for the phases described
above, contracts, amendments, addenda, deeds, closing documents and all other
documents reasonably necessary to effectuate sales ofthe properties described above.
E
Any one of the individuals named above, acting alone, shall be deemed to act with
the full authority of the Company with respect to the actions described above and any
third party in receipt of a copy of this Resolution shall be entitled to rely upon the
same.
Dated this_/V day of March 2017.
bn
Scott V. Jo on,authorized representative an Gerh r, managing member of
of Rosa-Johnson Development, LLC Gerharter Development,LLC
Chris, Johnson,managing member of
C2Q Lt ., LLC �
x
i