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Home My WebLink About18- Improvements Agreement - Rosa Johnson Development, LLC - Boulder Creek Subdivision, Phase 2 (Oak Street) J-622 Send Original to: City of Bozeman Department of Community Development P.O. Box 1230 Bozeman,MT 59771 2609504 Page': 1 of 7 03/28/2018 04:22:56 PM Fee $49.00 Charlotte Mills Gallatin count,(, MT 11111111111111 III 11111111 111 ��111111111111111111111111111111 III 11111111111111 IN IMP IMPROVEMENTS AGREEMENT FOR BOULDER CREEK SUBDIVISION—PHASE 2 (OAK STREET) THIS AGREEMENT is made and entered into this day of 2018, by and between ROSA JOHNSON DEVELOPMENT, LLC, 2264 JACKRABBIT LANE UNIT C, BOZEMAN MT 59718, hereinafter called the "Subdivider", and the CITY OF BOZEMAN, a 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 11City" WHEREAS, it is the intent and purpose of the Subdivider to meet the conditions of preliminary plat approval, Planning Application No. P14023, for the Final Plat application of BOULDER CREEK SUBDIVISION-PHASE 2 (17527),to subdivide 35.3422 acres and create Eighteen(18)residential lots,two (2)common open space lots,two (2)parks, one (1)unimproved lot for future development, and the remaining areas as public streets; and WHEREAS,it is the intent and purpose of the Subdivider to obtain Final Plat approval for BOULDER CREEK SUBDIVISION-PHASE 2; and WHEREAS, the Final Plat for BOULDER CREEK SUBDIVISION-PHASE 2, is to be 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 BOULDER CREEK SUBDIVISION—PHASE 2—Oak Street Improvements Agreement Page 1 of 7 improvements related with the property hereinafter described; and it is the intent of this Agreement, and of the parties hereto, to satisfy the improvements guarantee requirements for the Final Plat approval of BOULDER CREEK SUBDIVISION-PHASE 2. 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 3A MINOR SUBDIVISION 201A, LOCATED IN THE S 'I/2, SECTION 4, T2S, R5E, P.M.M., CITY OF BOZEMAN, GALLATIN COUNTY, MONTANA. 2. Improvements This Agreement specifically includes the following improvements for BOULDER CREEK SUBDIVISION-PHASE 2: Oak Street. The Estimated Cost of said improvements was estimated by C&H Engineering and Surveying, 1091 Stoneridge Drive, Bozeman MT 59718, with the estimated cost of improvements being in total One Hundred Ninety-Eight Thousand Five Hundred Fourteen Dollars and Eighty-One Cents (198,514.81). 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 It is the Subdivider's intent with this Agreement to file the Final Plat prior to completion of all required subdivision improvements. Therefore, this Agreement shall be secured by cash to be held by the City in the amount of$297,772.22 which is one hundred and fifty (150)percent of the Estimated Cost of said improvements attributable to BOULDER CREEK SUBDIVISION - PHASE 2. BOULDER CREEK SUBDIVISION—PHASE 2—Oak Street Improvements Agreement Page 2 of 7 The Subdivider hereby agrees that the following subdivision related improvements shall be installed and completed not later than nine (9) months of the filing of the final subdivision plat for BOULDER CREEK SUBDIVISION-PHASE 2 in order to avoid default on the method of security: Oak Street. 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 BOULDER CREEK SUBDIVISION-PHASE 2. 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 of Bozeman and or its agents as necessary,the City of Bozeman may release a portion of the letter of credit 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 Subdivider is in compliance with this Agreement, and the Subdivider shall permit the City and its representatives to enter upon and inspect the property at any reasonable time. S. 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 thirty(30) days after written notice specifying the default is deposited in the United States mail addressed to the Subdivider at ROSA JOHNSON DEVELOPMENT, LLC, 2264 JACKRABBIT LANE, UNIT C, 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 guarantee to be forfeited and secure the complete construction and inspection of the improvements described herein. The City's representative, contractors, and engineers shall have the right to enter upon the property and perform such work and inspection, and the Developer shall BOULDER CREEK SUBDIVISION—PHASE 2—Oak Street Improvements Agreement Page 3 of 7 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 The Subdivider hereby expressly agrees to indemnify and hold the City harmless for and against all claims, costs and liability of every kind and nature, for injury or damage received or sustained by any person or entity in connection with, or on account of the performance of work at the development site and elsewhere pursuant to this Agreement. Subdivider further agrees to aid and defend the City in the event that it is named as a defendant in an action concerning the performance of work pursuant to this Agreement except where such suit is brought by the Subdivider. The Subdivider is not an agent or employee of the City. 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 governing body. 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 BOULDER CREEK SUBDIVISION—PHASE 2—Oak Street Improvements Agreement Page 4 of 7 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. Filing The Subdivider shall have this Agreement recorded in the Office of the Gallatin County Clerk and Recorder within 10 business days of the signature of the Community Development Director. BOULDER CREEK SUBDIVISION—PHASE 2—Oak Street Improvements Agreement Page 5 of 7 SUBDIVIDER BY: ROSA JOHNSON DEVELOPMENT, LLC TITLE: A STATE OF MONTANA ) :ss County of Gallatin ) On this day of 2011, b✓1�0 be'Ore me, a Notary Public of the State of Montana, personally appeared > `known to me to be the subdivider that executed the foregoing Improvements Agreement, and acknowledged to me that he executed the foregoing instrument as r4k'?a of Rosa Johnson Development, LLC, and acknowledged to me that he e cuted the same for and on behalf of Rosa Johnson Development, LLC IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) ,U71 � ARSSON (Printed Name Here) 'A�"' NotaryPublic for the St Aqs lic _\a::NOTgr�iq�0p-_forMontana Residing at :�. --•— z- at:KCAL Q ontana My Com ton Expires: MCom1ion 9 Aires: (Use lgits for expiration year) BOULDER CREEK SUBDIVISION—PHASE 2—Oak Street Improvements Agreement Page 6 of 7 , 6 THE CITY OF BOZEMAN BY. ARTIN MAT EN, DIRECTOR OF COMMUNITY DEVELOPMENT CITY OF BOZEMAN STATE OF MONTANA ) :SS County of Gallatin ) On this � day of �kQXC\e\ 2018, 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) \/ SHANNON L KLOOSTERHOF v VlQX1Y�01/� L. 1'��OOS �O� & Po" S' ' (Printed Name Here) ; Notary Public �pTARtq�?�==for the State of Montana Residing at: Notary Public for the State of Montana Bozeman, Montana = ?: Residing at 1?�orteafylCS.X1 ►,AT >? P; My Commission Expires: °FMO March 17,2021 My Commission Expires: (Use 4 digits for expiration year) BOULDER CREEK SUBDIVISION—PHASE 2—Oak Street Improvements Agreement Page 7 of 7