HomeMy WebLinkAbout17- Improvements Agreement - JBE LLC - Valley Meadows Subdivision (Sidewalk Improvements) j-611
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City of Bozeman
Department of Community Development
P.O.Box 1230
Bozeman,MT 59771
2591104
Page: 1 of 12 08/29/2017 04:51:44 PM Fee: $84.00
Charlotte Mills - Gallatin County MT IMP
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IMPROVEMENTS AGREEMENT PLATTED ;t,�V
FOR
VALLEY MEADOWS SUBDIVISION
SIDEWALK IMPROVEMENTS
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THIS AGREEMENT is made and entered into this day of 2017, by and
between JBE LLC, 1044 Durham Avenue; Bozeman, MT, 59718, hereinafter called the
"Subdivider", and the City of Bozeman, a self-governing 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, the Subdivider desires to meet the conditions of preliminary plat approval,
Planning Application No. 14062,to obtain approval to file a final plat for a subdivision known as
Valley Meadows Subdivision, a subdivision on 8.6934 acres that would create sixty two (62)
residential lots, one(1) common open space lots, one (1)park, with the remaining areas as public
streets; and
WHEREAS, the Subdivider desires to obtain final plat approval for VALLEY
MEADOWS SUBDIVISION, and to record the same prior to the installation of all required
subdivision improvements; as such, the Subdivider desires to enter into an improvements
agreement with the City and provide financial security guaranteeing the completion of certain
improvements; and
WHEREAS, it is the intent and purpose of both the Subdivider and the City to hereby
enter into this Agreement to memorialize the terms and conditions for which final plat may be
granted.
Valley Meadows Subdivision—Improvements Agreement Page 1 of 9
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
That part of Tract 6, SMITH SUBDIVISION, according to the plat thereof, on file and of record
in the office of the Clerk and Recorder, Gallatin County, Montana, and located in the Northwest
Quarter of Section 11, Township 2 South, Range 5 East of P.M.M., Gallatin County, Montana,
described as follows:
Commencing at the Northwest corner of Section 11, Township 2 South, Range 5 East; thence
easterly 089'29'15", assumed azimuth from north, 1099.29 feet along the North line of the
Northwest Quarter of said Section 11, to the northeast corner of said Tract 6; thence southerly
180°33'00" azimuth, 45.01 feet along the east line of said Tract 6 to the Point of Beginning of the
Parcel herein described; thence southerly 180°33'00" azimuth, 1289.66 feet along said east line;
thence westerly 269°26'23" azimuth, 326.76 feet along the north line of WESTGLEN
SUBDIVISION and also being the south line of said Tract 6; thence northerly 000°27'06"
azimuth, 971.40 feet along the east line of the remainder of Tract 7, COS G-27-A; thence
easterly 089°29'15" azimuth, 135.45 feet along the south line of the property described in Film
186, Page 4480; thence northerly 000°27'06" azimuth, 73.50 feet along the east line of the
property described in Film 186, Page 4480; thence easterly 089°29'15" azimuth, 4.00 feet along
said east line; thence northerly 000°27'06" azimuth, 244.99 feet along said east line; thence
easterly 089'29'15" azimuth, 189.52 feet along the south right of way line of Durston Road to the
point of beginning.
2. Improvements
This Agreement specifically includes the following required improvements for Valley
Meadows Subdivision (the "Subdivision"): all sidewalks along private lots.
Valley Meadows Subdivision—Improvements Agreement Page 2 of 9
The estimated cost of the Improvements has been estimated by the Subdivider' s agent,
C&H Engineering and Surveying Inc., 1091 Stoneridge Drive, Bozeman, MT 59718, at One
Hundred Twenty-Six Thousand Nine Hundred Sixty Dollars and Seventy-Five Cents
($126,960.75). 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
A. The Subdivider represents and agrees it will complete all Improvements as required by
Findings of Fact and Order for the Subdivision within six (6) months of the date of
recording of the final plat. In reliance on such representation, the City consents to the
Subdivider filing the final plat prior to completion of the required Improvements. The
Subdivider must maintain adequate financial security guaranteeing the completion of the
Improvements until such Improvements are accepted by the City. The Subdivider's
performance under this Agreement is specifically guaranteed and secured by an irrevocable
letter of credit: Letter of Credit No. 1294 for a total amount not to exceed $126,961.00
from Yellowstone Bank. This letter of credit constitutes the "Financial Security."
B. Notwithstanding the time frame for completion of the Improvements stated in subsection
A of this section, the City agrees the Subdivider may defer completion of the following
Improvements to not later than thirty-six (36) months of the filing of the final plat for the
Subdivision: sidewalks along all private lots.
C. Subdivider acknowledges and agrees 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 Subdivider and used by the City for completion of the Improvements
in its sole discretion but only if the Subdivider fails to comply with the terms and conditions
of this Agreement.
D. Subdivider acknowledges the Financial Security lapses on July 19, 2019 and is subject to
automatic renewal in one year increments but in no case is the Financial Security valid
Valley Meadows Subdivision—Improvements Agreement Page 3 of 9
beyond July 19, 2020. Subdivider also acknowledges the issuer of the Financial Security
may give notice to the City of its intent to not renew the Financial Security but must do so
no less than thirty(30)days prior to the expiration of the Financial Security or the Financial
Security is extended for an additional year. As a result of the above, the Subdivider agrees
that if the issuer of the Financial Security provides notice to the City of non-renewal of the
Financial Security prior to the completion of all of the Improvements such non-renewal
may place the Subdivider in breach of this Agreement. In such a case,the Subdivider must,
within ten (10) days of the Subdivider acquiring information of the issuer's intent not to
renew the Financial Security or the City's notice to the Subdivider that the City received a
notice from the issuer of the Financial Security that the issuer intends to not renew the
Financial Security, whichever is earlier,provide the City alternative financial security in a
form acceptable to the City. Subdivider agrees that failure to provide such alternative
financial security within 10 days of the City's notice or the Subdivider acquiring
knowledge of the issuer's non-renewal shall be deemed a material breach of this Agreement
and the City may, without any further notice to the Subdivider, draw upon the Financial
Security for the costs of any outstanding Improvements at 150%of the City's estimate cost
of such Improvements regardless of the costs estimates included in Exhibit A and
regardless of whether the timeframe for completion of such improvements has passed.
E. 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 the Subdivision.
F. 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
and or its agents as necessary, the City may release a portion of the Financial Security for
the work completed by the referenced invoices.
Valley Meadows Subdivision—Improvements Agreement Page 4 of 9
4. Inspection
Representatives of the City shall have the right to enter upon the Subdivision 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 Subdivision 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 ten (10) days after written notice specifying
the default is deposited in the United States mail addressed to the Subdivider at JBE LLC, 1044
Durham Avenue; 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 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 Subdivision and perform such work and inspection, and the Subdivider shall
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
To the fullest extent permitted by law, Subdivider 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
Valley Meadows Subdivision—Improvements Agreement Page 5 of 9
arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional
misconduct of the Subdivider in regards to the Subdivision; (ii) any negligent, reckless, or
intentional misconduct of any of the Subdivider's agents in regards to the Subdivision. 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). Subdivider's indemnity 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 Subdivider
to assert its right to defense or indemnification under this Agreement or under the Subdivider'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 Subdivider 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.
Subdivider 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 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 City Attorney.
8. Warranty
Valley Meadows Subdivision—Improvements Agreement Page 6 of 9
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 City.
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 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
assigns.
14. Filin
The Subdivider 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 Development
Director.
Valley Meadows Subdivision—Improvements Agreement Page 7 of 9
SUBDIVIDER
BY:1: Mta9'A1C�j,)
JBE
TIT yva 1,
STATE OF
:ss
County of
On this -kday of ;fit Gn 2017, before me, a Notary Public of the State
of personally appeared 4 ,F-q , , known to me to be the subdivider
that executed the foregoing Improvements Agreement, -and acknowledged to me that (s)he
executed the foregoing instrument as ma,,iama84 ;tee t,,.i _ of JBE, LLC, and
acknowledged to me that (s)he executed the same f: •add on behalf of JBE, LLC
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal
the day and year first above written.
(SEAL)
��� �N✓
SMEILA TINJUM
yam.• ''' •L?; Notary Public (Printed Name Here)
�nTnrtiy�. for the State of Montana Notary Public for the State ofa fr'1 C�
Residing at:
SEAL. - Bozeman, Montana Residing at
My Commission Expires: M Commission Expires:
3
August 03, 2019 y p —
(Use 4 digits for expiration year)
Valley Meadows Subdivision—Improvements Agreement Page 8 of 9
THE CITY OF BOZEMAN
BY: VART114 MAT N,
DIRECTOR OF COMMUNITY DEVELOPMENT
CITY OF BOZEMAN
STATE OF MONTANA )
:ss
County of Gallatin )
CST J
On this 5 day of 4 1 S� 2017, before me, a Notary Public for the State
of Montana, personally appeared MaAin 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 Here)
Notary Public for the State of�Montana
SHANNON L KLOOSTERHOF Residing at FDC)V.Mf�V1
j Notary Public
for the State of Montana My Commission Expires:
• ,SEAL.-* Residing at: (Use 4 digits for expiration year)
i Bozeman, Montana j
, M commission Expires:
- y March 17,2021
Valley Meadows Subdivision—improvements Agreement Page 9 of 9
Exhibit A- Improvements Agreement Estimate
Valley Meadows Subdivision
March 13, 2017
Sidewalks
Unit Cost Financial Guarantee
Lot# Length(ft) Width(ft) Area(SF) ($/SF) Total Cost (150%)
Block 1
Lot 1A 54.26 5.00 271.30 $ 7.00 $ 1,899.10 $ 2,848.65
Lot 113 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 2A 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 213 32.01 5.00 160.05 $ 7.00 $ 1,120.35 $ 1,680.53
Lot 3A 32.89 5.00 164.45 $ 7.00 $ 1,151.15 $ 1,726.73
Lot 313 36.58 5.00 182.90 $ 7.00 $ 1,280.30 $ 1,920.45
Lot 3C 126.42 5.00 632.10 $ 7.00 $ 4,424.70 $ 6,637.05
Block 2
Lot 1A 38.21 5.00 191.05 $ 7.00 $ 1,337.35 $ 2,006.03
Lot A 32.31 5.00 161.55 $ 7.00 $ 1,130.85 $ 1,696.28
Lot 2A 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 213 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 3A 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 313 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 4A 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 48 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 5A 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 513 178.79 5.00 893.95 $ 7.00 $ 6,257.65 $ 9,386.48
Block 3
Lot 1A 37.49 5.00 187.45 $ 7.00 $ 1,312.15 $ 1,968.23
Lot 113 24.27 5.00 121.35 $ 7.00 $ 849.45 $ 1,274.18
Lot 1C 23.21 5.00 116.05 $ 7.00 $ 812.35 $ 1,218.53
Lot 1D 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 2A 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 26 23.00 5.00 115.00 $ 7.00 $ 805.00 $ 1,207.50
Lot 2C 23.00 5.00 115.00 $ 7.00 $ 805.00 $ 1,207.50
Lot 2D 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 3A 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 313 23.00 5.00 115.00 $ 7.00 $ 805.00 $ 1,207.50
Lot 3C 23.00 5.00 115.00 $ 7.00 $ 805.00 $ 1,207.50
Lot 3D 173.01 5.00 865.05 $ 7.00 $ 6,055.35 $ 9,083.03
Block 4
Lot 1A 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 113 27.00 5.00 135.00 $ 7.00 $ 945.00 $ 1,417.50
Lot 1C 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 2A 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 213 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 3A 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 313 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 4A 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 413 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 5A 32.34 5.00 161.70 $ 7.00 $ 1,131.90 $ 1,697.85
Lot 513 33.06 5.00 165.30 $ 7.00 $ 1,157.10 $ 1,735.65
Lot 6A 32.89 5.00 164.45 $ 7.00 $ 1,151.15 $ 1,726.73
Lot 613 29.39 5.00 146.95 $ 7.00 $ 1,028.65 $ 1,542.98
Block 5
Lot 1A 173.00 5.00 865.00 $ 7.00 $ 6,055.00 $ 9,082.50
Lot 1B 27.00 5.00 135.00 $ 7.00 $ 945.00 $ 1,417.50
Lot 1C 27.00 5.00 135.00 $ 7.00 $ 945.00 $ 1,417.50
Lot 1D 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 2A 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 2B 23.00 5.00 115.00 $ 7.00 $ 805.00 $ 1,207.50
Lot 2C 23.00 5.00 115.00 $ 7.00 $ 805.00 $ 1,207.50
Lot 2D 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 3A 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 3B 23.00 5.00 115.00 $ 7.00 $ 805.00 $ 1,207.50
Lot 3C 23.00 5.00 115.00 $ 7.00 $ 805.00 $ 1,207.50
Lot 3D 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 4A 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 4B 23.00 5.00 115.00 $ 7.00 $ 805.00 $ 1,207.50
Lot 4C 23.00 5.00 115.00 $ 7.00 $ 805.00 $ 1,207.50
Lot 4D 32.00 5.00 160.00 $ 7.00 $ 1,120.00 $ 1,680.00
Lot 5A 32.24 5.00 161.20 $ 7.00 $ 1,128.40 $ 1,692.60
Lot 5B 23.70 5.00 118.50 $ 7.00 $ 829.50 $ 1,244.25
Lot 5C 23.76 5.00 118.80 $ 7.00 $ 831.60 $ 1,247.40
Lot 5D 41.47 5.00 207.35 $ 7.00 $ 1,451.45 $ 2,177.18
TOTAL 2,418.30 12,091.50 $ 84,640.50 $ 126,960.75
YELLOWSTONEBANK
1960 NORTH 19TH AVENUE
BOZEMAN, MONTANA 59715
July 19, 2017
City of Bozeman
Subject: Irrevocable Letter of Credit No. 1294
Customer: JBE, LLC
1044 Durham Ave
Bozeman, MT. 59718
Amount: $126,961.00
Expiration: July 19, 2019
To Whom It May Concern:
We hereby established in your favor our Irrevocable Letter of Credit #1294 for the account of
JBE, LLC available by your drafts at sight up to an aggregate amount of$126,961.00. Should
JBE, LLC fail to complete and pay for the completion of the sidewalks at 5200 Durston Road,
Bozeman, MT, Yellowstone Bank shall pay on demand your sight draft or drafts for such funds,
to the limit of credit set forth herein.
All drafts must be presented prior to July 19, 2019 and this Letter of Credit must accompany the
final draft for payment. Drafts drawn hereunder must be by sight draft marked:
"Drawn under Yellowstone Bank, Letter of Credit#1294 date July 19, 2017" and the
amount drawn endorsed on the reverse hereof by the lending institution.
Unless otherwise stated, this Letter of Credit is subject to the Uniform Customs and Practices for
Commercial Documentary Credits (1983 Revision) International Chamber of Commerce. We
hereby agree with the drawers, endorsers, and bona fide holders of the drafts drawn under and in
compliance with the terms of this credit that these drafts shall be duly honored upon presentation
to the drawee.
Since ,
ay Harris
President
P.O. Box 1 1670 59719-1670 (406) 587-9900