Loading...
HomeMy WebLinkAbout17- Improvements Agreement - Swissdetail, Inc. - Swissdetail Site Plan (Landscaping Improvements) Send Original to: City of Bozeman Department of Community Development P.O.Box 1230 Bozeman,MT 59771 IMPROVEMENTS AGREEMENT FOR SWISSDETAIL SITE PLAN (LANDSCAPING IMPROVEMENTS) THIS AGREEMENT is made and entered into this j q ` day of September 2017, by and between Swissdetail, Inc. 7 Sweetgrass Avenue, Bozeman, MT 59718 hereinafter called the "Landowner" and "Developer" by 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 Developer desires to obtain final building occupancy approval for buildings known as "Swissdetail", as part of Zoning Application 16148, SWISSDETAIL SITE PLAN, located on property described as "LOT 3, BLOCK 4 OF CATTAIL CREEK SUBDIVISION PHASE 1 WITHIN SECTION 35, TOWNSHIP 01 S, RANGE 05 E, TO BOZEMAN, GALLATIN COUNTY, MONTANA."; and WHEREAS, the Developer desires to obtain final building occupancy approval for SWISSDETAIL SITE PLAN,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 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. Swissdetail-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 LOT 3, BLOCK 4 OF CATTAIL CREEK SUBDIVISION PHASE I WITHIN SECTION 35, TOWNSHIP 01 S, RANGE 05 E, TO BOZEMAN, GALLATIN COUNTY, MONTANA. 2. Improvements This Agreement specifically includes the following required improvements SWISSDETAIL SITE PLAN(the"Zoning Application 16148"): landscaping improvements(the above are referred to as the "Improvements"). The cost of the Improvements has been estimated by the Developer's agent, Wiening Landscape, 167 Four Dot Lane, Belgrade, MT 59714, at Twenty Five Thousand Six Hundred Thirty Nine Dollars and Fifty Cents ($25,639.00). 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 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 Cash: $38,458.50. The bond 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 Landowner may defer completion of the following Improvements to not later than Nine (9) months of the execution of this agreement: landscaping improvements. Swissdetail-Improvements Agreement Page 2 of 9 C. Landowner 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 Landowner and used by the City for completion of the Improvements in its sole discretion but only if the Landowner fails to comply with the terms and conditions of this Agreement. D. The Landowner agrees that no delegation of performance required by this agreement shall relieve the Landowner of any duty to perform or any liability for the breach of that duty to complete said Improvements required for the property. E. Upon submission of fully documented invoices for the work performed, said work to be inspected and certified for payment by Landowner'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 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 Landowner is in compliance with this Agreement, and the Landowner 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 Landowner 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 Swissdetail, Inc. 7 Sweetgrass Avenue, Bozeman, MT 59718 or such other address as the Landowner 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: Swissdetail-Improvements Agreement Page 3 of 9 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,and the Landowner 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 Landowner. B) The City may enforce any other remedy provided by law. 6. Indemnification To the fullest extent permitted by law, Landowner 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 Landowner in regards to the property; (ii) any negligent,reckless, or intentional misconduct of any of the Landowner'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 indenmitee(s)which would otherwise exist as to such indemnitee(s). Landowner'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 Landowner to assert its right to defense or indemnification under this Agreement or under the Landowner'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 Swissdetail-Improvements Agreement Page 4 of 9 jurisdiction determines the Landowner 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. Landowner 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 The Developer acknowledges that the required landscaping must be maintained in a healthy, growing condition at all times. The Landowner 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 Swissdetail-Improvements Agreement Page 5 of 9 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 Assiunment It is expressly agreed that the Landowner 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 The Landowner 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. Swissdetail-Improvements Agreement Page 6 of 9 THE CITY OF BOZEMAN B : MARTIN ATSEN, DIRECTOR OF COMMUNITY DEVELOPMENT CITY OF BOZEMAN STATE OF MONTANA ) :ss County of Gallatin ) On this 1 94�- day of XAYk 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) %annon L KI00St2A PP (Printed Name Here) °N�K�posr,, SHANNON L KLOOSTERHOF Notary Public for the State of Montana Fp': Notary Public Residing aty2,�(Y10.X1 i MT Z�yf XkoTARIq� �p for the State of Montana Residing at: My Commission Expires: .SEAI,,�q;= Bozeman, Montana (Use 4 digits for expiration year) My Commission Expires: ,,OF,Mo�.' March 17,2021 Swissdetail-Improvements Agreement Page 8 of 9 LANDOWNER Swis tail, Inc. BY: Gres O.r S,e o.e'Uer TITLE: Ov r,.er' STATE OF :ss County of On this day of September 2017, before me, a Notary Public of the State of personally appeared (Aa!le or 11.Sepelder,known to me to be the Landowner that executed the foregoing Improvements Agreement, and acknowledged to me that (s)he executed the foregoing instrument as ()Lk)V-%QA-- of Wallace Babcock Properties, LLC and acknowledged to me that(s)he executed the same for and on behalf of Wallace Babcock Properties, LLC. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) (1 �VID•Y�Y101/� L.. �I�-�OdS'��'1AT (Printed Name Here) KLOp SHANNON L KLOOSTERHOF Notary Public for the State of M-T '�`.'•.••• SrFy Notary Public Residing at �IeACnm_; 1-�T N No1nR :for the State of Montana My Commission Expires: 3 14• -LD7-1 Residing at: j.SEA L.��` Bozeman, Montana (Use 4 digits for expiration year) ? ? My commission Expires: Mo March 17 2021 Swissdetail-Improvements Agreement Page 7 of 9 EXHIBIT A Waning Landscapes 167F 167 Four Dot Lane Belgrade,MT 59714 WIENING (406)681-8482 iANOSCAYCS chase@wieninglandscapes.com ESTIMATE ADDRESS ESTIMATE N 1551 Greg Spoelder DATE 09/11/2017 SwissDetail 1 OD Maus Lane,Unit B Bozeman,MT 59715 ACTIVITY CITY RATE AMOUNT Dirt work 1 800.00 800.00 Screened top soil 1 600.00 600.00 Fully automatic underground sprinkler system using commercial grade 1 4,500.00 4,500.00 components,with a 5 year warranty on all parts and labor.Includes drip to trees. Pipestone boulders. 1 1,500.00 1,500.00 Bluegrass sod(Installed) 1 2,50100 2,500.00 Native grass seed mix(installed) 1 800.00 800.00 Steel edging.(eliminated 1601t of edging between sod and native 1 850.00 850.00 grass) Landscape fabric(Installed) 1 1,260.00 1,260.00 1.51nch washed round landscape rock(Installed) 1 1,740.00 1,740.00 24 Trees(using 1.5"caliper trees Instead of the 2.5"caliper trees 1 5,425.00 5,425.00 specified on landscape plan) 78 Shrubs and perennials 1 1,464.00 1,464.00 Planting labor 1 4,200.00 4,200.00 Thank you for the opportunity to earn your business. TOTAL �-5,639 00 Accepted By Accepted Date Total Amount per estimates= $26,639.00 Total Amount guaranteed= $38,458.50 Swissdetail-Improvements Agreement Page 9 of 9