HomeMy WebLinkAbout17- Improvements Agreement - Cypress Tree - True Dragon Site Plan (Site Improvements) Send Original_ to:
City of Bozeman
Department of Community Development
P.O. Box 1230
Bozeman,MT 59771
IMPROVEMENTS AGREEMENT
FOR
TRUE DRAGON SITE PLAN
(SITE IMPROVEMENTS)
THIS AGREEMENT is made and entered into this as� day of September 2017, by
and between Cypres Tree 422 North Plum Street, Bozeman, MT 59730 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 "True Dragon Brewery", as part of Zoning Application 15554, TRUE
DRAGON SITE PLAN, located on property described as"LOTS 24-30,BLOCK 53 AND LOTS
A-B, BLOCK 50, NORTHERN PACIFIC ADDITION, SECTION 7, T2S, R6E, CITY OF
BOZEMAN, GALLATIN COUNTY, MONTANA.'; and
WHEREAS,the Developer desires to obtain final building occupancy approval for TRUE
DRAGON 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.
True Dragon-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
LOTS 24-30, BLOCK 53 AND LOTS A-B, BLOCK 50,NORTHERN PACIFIC ADDITION,
SECTION 7, T2S, R6E, CITY OF BOZEMAN, GALLATIN COUNTY, MONTANA.
2. Improvements
This Agreement specifically includes the following required improvements TRUE
DRAGON SITE PLAN(the"Zoning Application 15554"): landscaping improvements(the above
are referred to as the "Improvements").
The cost of the Improvements has been estimated by the Developer's agent, CS Structures Inc,
PO Box 104, Gallatin Gateway, MT 59730, at Two Thousand Six Hundred Forty-Seven Dollars
and Fifty Cents ($2,647.50). 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 a Letter of
Credit: $3,971.25. 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 twelve months (12) months of the execution of this
agreement: landscaping and lighting improvements.
True Dragon-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 Cypres Tree 422 North Plum
Street,Bozeman,MT 59730 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:
True Dragon-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 indemnitee(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
True Dragon-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
True Dragon-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 Assignment
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.
True Dragon-Improvements Agreement Page 6 of 9
LANDOWNER
Cypres Tree
BY:
TITLE: w -R
STATE OF
:ss
County of C, OLh11 )
On this A 5 day of September 201 V07
e me, a Notary Public of the State of
(1��11�'o Q ,personally appeared 6u sS y ,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 0U3ft.R,Y of Cypess Tree and acknowledged
to me that(s)he executed the same for and on behalf of Cypess Tree.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal
the day and year first above written.
(SEAL)
A��a1NEMq� KATH€F-1 MAUVES
2 . (Pr' ted Name Here)
Notary Public
OTAR'g4�N for the state of Montana Notary Publi�favwor th^e,�tate of nn (�
" SEAL.'*= Bel Residing at: Residing at �i Q r(XW t
Residing
9'• , Montana
P' M Commission x ires: a jQ�O
OF•pAO�o�`' MY Commission Expires: y p
/ '''�""" July 22,2020
(Use 4 digits for expiration year)
True Dragon-Improvements Agreement Page 7 of 9
THE CITY OF BOZEMAN
BY: MARTIN MATSEN,
DIRECTOR OF COMMUNITY DEVELOPMENT
CITY OF BOZEMAN
STATE OF MONTANA )
:ss
County of Gallatin )
On this 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)
"K,o , SHANNON L KLOOS-MRHOF Notary Public (printed Name Here)
P
'y �oTaR1q�;?n:for the State of Montana Notary Public for the State of Montana
Residing at: Residin
;cg• ��Q: Bozeman, Montana g at 1�� CrEPJNA0..V�, N1
9 .�o My commission Expires: My Commission Expires: 3 • 1�• aUa l
March 17,2021 (Use 4 digits for expiration year)
True Dragon-Improvements Agreement Page 8 of 9
EXHIBIT A
Total Amount per estimates= $2,647.50
Total Amount guaranteed= $3,971.25
True Dragon-Improvements Agreement Page 9 of 9
t+ A UI N n D M
X X 3 X j a
N A A n m mC
X X p X !D G
6 C! J N (D N H O
O J
o w -Ti m m m 7AC
n J J v T
n m
d 0 N C
m Z m
3
'n = O
7-Gf 0
N Z
A
N N N
fD N fD (D !D (D G
0) N N N d J
W A W N W N 0
W N VI N C
Of W In O Vt V
O O
V
O
D
0
o
C
W W W W W W W K
0 0 0 0 0 0 O p
0
0 0 0 0 0 0 O ry
r
v
W A t+ 0
W m o V IVJ� V tmft 0
O O O VI O U1 O
O O O O O O O
0 3
C�
O o G i
in o o O J.w
ltl O O O
W V N V O N
OJ O O O O N
O O O O O
W
n v
o m
0 0 0 0 0 <J
0 0 0 0 0 0
0 0 0 0 0 0 d
R
0
w
v
n
0 0 0 0 0 0 0 0�
0 000000 �*
0 0 0 0 0 0 0 ^w
A
0
(1 a
o c
Co
0 0 0 0 o cn c 3
to vi in in in o "T
n
0 a'
.j w .- .�.3
O O VI 0 0 U1 O T
0
� M�
N G ry
O
O
m O
N N n
O O O
O O
N N
00
V V r V N 1
0
VI Vt di tp W O A O
O O O Ul O O VI O