HomeMy WebLinkAbout17- Improvements Agreement - Yellowstone Theological Institute - Yellowstone Theological Institute Minor Subdivision (Landscaping, Irrigation Improvements) MINOR., 494
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City of Bozeman
Department of Community Development
P.O.Box 1230
Bozeman,MT 59771
2600279
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Charlotte Mills - Gallatin County, MT IMP
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IMPROVEMENTS AGREEMENT
FOR
THE YELLOWSTONE THEOLOGICAL INSTITUTE SUBDIVISION
(LANDSCAPING, IRRIGATION IMPROVEMENTS)
THIS AGREEMENT is made and entered into this So day of October 2017, by and
between Yellowstone Theological Institute, 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. 15574,to obtain approval to file a final plat for a subdivision known as
YELLOWSTONE THEOLOGICAL INSTITUTE MINOR SUBDIVISION application No.
17050, a subdivision on 79.983 + acres that would create five (5) lots and the remaining area as
public streets and alleyways; and
WHEREAS, it is the intent and purpose of the Subdivider to obtain Final Plat approval
for YELLOWSTONE THEOLOGICAL INSTITUTE MINOR SUBDIVISION; and
WHEREAS, the Final Plat for the YELLOWSTONE THEOLOGICAL INSTITUTE
SUBDIVISION was 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 on the property hereinafter described; and it is the intent of this Agreement, and of
Yellowstone Theological Institute 3linor Subdivision—Improvements Agreement Pagel of 9
the parties hereto, to satisfy the improvements and guarantee requirements for the Final Plat
approval of YELLOWSTONE THEOLOGICAL INSTITUTE MINOR SUBDIVISION.
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
YELLOWSTONE THEOLOGICAL INSTITUTE MINOR SIBDIVISION
A tract of land being the SW1/4NW1/4 and the NW1/4SW1/4 of Section 24,
Excepting therefrom that portion conveyed to the State of Montana in Bargain and
Sale Deed recorded June 30, 1964 in Book 146 of Deeds, Page 24, Records of
Gallatin County, located in the NW1/4 and SW1/4 of Section 24, Township 2,
South, Range 5 East, P.M.M., City of Bozeman, Gallatin County, Montana, being
more fully described as follows:
Beginning at the NW1/16 corner of said Section 24, thence along the West line of
C.O.S. 252 s 01' 07'36" w a distance of 1322.36 feet to the corner of C.O.S. 792;
thence along the west line of C.O.S. 792 and the West line of the Plat of Alder
Creek Subdivision, Phase 5, respectively, S 00°59'23" W a distance of 1329.61
feet to the SW 1/16 corner of said Section 24; thence along said right-of-way the
two (2) following courses; 1) N 00°02'55" E a distance of 152.86 feet;
2) N 00°35'25" E a distance of 2508.45 feet to a point on the South line of Lot 3,
South University District Phase I; thence along the South line of said Lot 3
S 89°20'00" E a distance of 1323.14 feet to the Point of Beginning. Said tract
containing in area 79.983 acres, along with and subject to any easements.
2. Improvements
This Agreement specifically includes the following required improvements for
Yellowstone Theological Institute Minor Subdivision (the "Subdivision"):
- Public Trail Easement
o Landscaping (trees, native seeding)
o Irrigation
- Roadway Improvements (Graf and 191n)
o Landscaping(trees, shrubs, perennials, sod, native seeding, bark mulch)
o Irrigation
Yellowstone Theological Institute Minor Subdivision—Improvements Agreement Page 2 of 9
- Stormwater Detention Pond
o Landscaping (trees, shrubs, native seeding, boulders)
o Irrigation
The estimated cost of the Improvements has been estimated by the Subdivider's agent,
Madison Engineering, LLC., 895 Technology Boulevard, Suite 203 Bozeman, MT 59718, at
Three Hundred Eighty Thousand Ninety-Six Dollars and Eighty cents ($380,096.80). 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 twelve (12) 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 one
irrevocable letter of credit: Letter of Credit No. 11700110 in the amount of$570,146.70
for a total amount from First Security Bank. This letter of credit constitutes the "Financial
Security."
B. 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.
C. Subdivider acknowledges the Financial Security lapses on 03-01-2019. 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
Yellowstone Theological Institute Minor Subdivision—Improvements Agreement Page 3 of 9
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.
D. 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.
E. 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.
Yellowstone Theological Institute Minor Subdivision—Improvements Agreement Page 4 of 9
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 Yellowstone
Theological Institute, 599 High Tower Road, 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 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
Yellowstone Theological histitute Minor Subdivision—Improvements Agreement Page 5 of 9
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
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.
Yellowstone Theological hislitule Minor Subdivision—Improvements Agreement Page 6 of 9
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
Cleric and Recorder within ten (10) business days of the signature of the Community
Development Director.
Yellowstone Theological histitute Minor Subdivision—Improvements Agreement Page 7 of 9
SUBDIVIDER
BY: KAREN GILHOUSEN, TRUSTEE
YELLOWSTONE THEOLOGICAL INSTITUTE
STATE OF Montana )
:ss
County of Gallatin )
On this '5 O day of October 2017, before me, a Notary Public of the State of Montana,
personally appeared Karen Gilhousen, known to me to be the subdivider that executed the
foregoing Improvements Agreement, and acknowledged to me that she executed the foregoing
instrument as Trustee of Yellowstone Theological Institute, and acknowledged to me that she
executed the same for and on behalf of Yellowstone Theological Institute.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal
the day and year first above written.
(SEAL) �—
FTA
>. (Chris Budeski)
s, CHRIS BUDESKI Notary Public Notary Public for the State of Montana
• for tine State of MontanaResiding at: Bozeman, MT
Residin QBozeman, Montana My Commission Expires: November 26,2019
��,,` My Commission Expires' (Use 4 digits for expiration year)
November 26,2019
Yellowstone Theological Institute Minor Subdivision—Improvements Agreement Page 8 of 9
THE CITY OF BOZEMAN
L ---� �4
B ARTIN M SEN,
DIRECTOR OF COMMUNITY DEVELOPMENT
CITY OF BOZEMAN
STATE OF MONTANA )
:ss
County of Gallatin )
On this j day of PIOv'Qmb�r 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)
q�NEti KATFiER1NE MAINES
Notary Public (P inted Name Here)
Z. p�<.
�.No1nR�q��N':for the State of Montana Notary Public for the State of Montana
- Residing at: Residing at � r
N SEAG.`�Q Belgrade, Montana g
Commission Erplres: My COmmisslori xpires:
luty 22, 2020 (Use 4 digits for expiration year)
Yellowstone Theological Institute Minor Subdivision—Improvements Agreement Page 9 of 9
Exhibit A
Landscaping & Irrigation Improvements
Yellowstone Theological Institute Subdivision
Final Plat- Infrastructure Improvements Summary
No. ITEM DESCRIPTION Quantity Unit Unit Price Sub Total
Public Trail Easement
10 Landscaping
a. Trees 51 EA $300.00 $15,300.00
b. Native Seeding 29,719 SF $0.18 $5,349.42
11 Irrigation 29,719 SF $1.25 $37,148.75
Public Trail Easement Subtotal $57,798.17
Roadway Improvements(Graf and 19th)
20 Landscaping
a. Trees 78 EA $300.00 $23,400.00
b. Shrubs 196 EA $60.00 $11,760.00
c. Perennials 124 EA $18.00 $2,232.00
d. Sod 18,443 SF $0.60 $11,065.80
e. Native Seeding 106,081 SF $0.18 $19,094.58
f. Bark Mulch 2,835 SF $0.35 $992.25
21 Irrigation 127,359 SF $1.25 $159,198.75
Roadway Improvements(Graf and 19th)Subtotal $227,743.38
Stormwater Detention Pond
30 Landscaping
a. Trees 7 EA $300.00 $2,100.00
b. Shrubs 18 EA $60.00 $1,080.00
e. Native Seeding 62,675 SF $0.18 $11,281.50
f. Boulders 5 EA $350.00 $1,750.00
31 Irrigation 62,675 SF %1.25 $78,343.75
Roadway Improvements(Graf and 19th)Subtotal $94,555.25
Estimated Construction Cost $380,096.80
150%Work to be Completed $570,145.20
A--
Page 1 Landscape-Final Plat Bonding Summary