HomeMy WebLinkAbout17- Improvements Agreement - DA Land Company LLC - Southbridge Subdivision, Phase VI (Lot Frontage Sidewalk Improvements) J-613
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City of Bozeman
Department of Community Development
P.O.Box 1230
Bozeman,MT 59771
2592973
Page: 1 of 9 09/15/2017 04:39:19 PM Fee $63.00
Charlotte Mills - Gallatin County, MT IMP
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IMPROVEMENTS AGREEMENT
FOR
SOUTHBRIDGE SUBDIVISION, PHASE VI
(LOT FRONTAGE SIDEWALK IMPROVEMENTS)
THIS AGREEMENT is made and entered into this gl' day of August 2017, by and
between DA Land Company LLC, 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. P 14010, to obtain approval to file a final plat for a subdivision known
as Southbridge Subdivision Phase VI (17281), a subdivision on 10.285 acres that would create
thirty-one (31) residential lots, four (4) common open space lots, with the remaining areas as
public streets; and
WHEREAS, the Subdivider desires to obtain final plat approval for SOUTHBRIDGE
SUBDIVISION, PHASE VI, 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.
Southbridge Subdivision,Phase VI—Improvements Agreement Page 1 of 10
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
THE REMAINDER TRACT 1 OF SOUTHBRIDGE SUBDIVISION PHASE 5, PLAT
J-594 LOCATED IN THE SE1/4 OF SECTION 23, TOWNSHIP 2 SOUTH, RANGE 5
EAST, P.M.M., GALLATIN COUNTY, MONTANA.
2. Improvements
This Agreement specifically includes the following required improvements for
Southbridge Subdivision Phase VI (the "Subdivision"): sidewalks along all private lots (the
above are referred to as the "Improvements").
The estimated cost of the Improvements has been estimated by the Subdivider's agent,
Madison Engineering LLC, 895 Technology Blvd, Ste 203, Bozeman, MT 59718, Seventy-
Seven Thousand Thirty-Nine Dollars and Twenty Cents ($77,039.20). 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 thirty-six (36) 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 irrevocable
standby Letter of Credit No. 116 in the amount of$115,558.80 from Opportunity Bank of
Southbridge Subdivision,Phase VI—Improvements Agreement Page 2 of 10
Montana, 1455 W. Oak, Bozeman, MT 59715. The 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 07-28-2018 and is subject to automatic
renewal in one year increments but in no case is the Financial Security valid beyond 07-28-2021.
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.
Southbridge Subdivision,Phase VI—Improvements Agreement Page 3 of 10
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 frilly 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.
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 DA Land
Company, LLC, 1871 S 22nd Ave, Ste 4, 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.
Southbridge Subdivision,Phase VI—Improvements Agreement Page 4 of 10
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 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.
Southbridge Subdivision,Phase VI—Improvements Agreement Page 5 of 10
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
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
Southbridge Subdivision,Phase VI—Improvements Agreement Page 6 of 10
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
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.
SUBDIVIDER
BY:,
DA LAND COMPANY, LL
TITLE: 179t M15C/L
STATE OF 1/ 10aT8,4$ )
:ss
County of- �1611 )
On this St day of 6 (�LLar 2017, before me, a Notary Public of the State of
ITV olit personally appeared 0 1%K �i gq s4c5 , 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 _0 9tjL of Southbridge Subdivision Phase
VI, DA Land Company, LLC, and ac mowledged to me that (s)he executed the same for and on
behalf of Southbridge Subdivision Phase VI, DA Land Company, LLC
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal
the day and year first above written.
SEAL
,•�'`�s Buo',. CHRIS BUDESKI
notary Public (Printed Name Here)
,•NoTArirrz*. for the State of Montana
Residina at: Notary Public for the State of
=��•�--�a�•'_�: Eozeman, Montana
y ;.•. . F-, Residing at caertog 4, A
• My Commission Expires:
of t`'�°S� November 2a, 2019 ` My Commission Expires: Nov e 1,
(Use 4 digits for expiration year)
Southhridge Subdivision, Phase VI—Improvements Agreement Page 7 of 8
THE CITY OF BOZEMAN
—�'k�- �'I'IL
BPY'MARTIN19ATSEN,
DIRECTOR OF COMMUNITY DEVELOPMENT
CITY OF BOZEMAN
STATE OF MONTANA )
:ss
County of Gallatin )
On this I day of 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) '
KATHERINE MAINES
P1NE Myiti;; Notary Public Prin ed Name Here)
,g.NOTnaiq��N for the State of Montana No ublic for the State of Montana
Residing at:
.SEAL.�Q Belgrade, Montana Residing at
of My Commission Expires: M C0111nussiori Ex s:
July 22,2020 Y
(Use 4 digits for expiratio ar)
Southbridge Subdivision,Phase VI—Improvements Agreement Page 8 of 8
Landscaping Estimate Date 6/14/2017 CASHMAX
Phone# Nursery & Landscaping ,
Estimate E17 -418 Cell
a Parks P.O. Box 10242
Southbridge Exhibit "A.. Bozeman, MT 59719
(406) 587-3406
Bozeman MT
1.Plantings
Quantity Item Size Price Extension
16 Greenspire Linden 1.5" 175.00 2800.00
15 Honeylocust 1.51' 175.00 2625.00
8 Northwood Maple 1.5" 175.00 1400.00
80 Wood tree stake, wire, strap 6' 5.20 416.00
7 Mulch for tree rings cu yd 46.00 322.00
1 Labor to Plant & Stake 3612.00 3612.00
Subtotal $11175.00
2.Seeding
Quantity Item Size Price Extension
15000 Boulevard Seeding sq ft .31 4650.00
49000 Open Space Seeding sq ft .15 7350.00
Subtotal $12000.00
Grand Total $23,175.00
150% $349762.50
Exhibit "A"
Estimated Cost for Improvements
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