HomeMy WebLinkAbout17- Improvements Agreement - Norton Properties, LLC - Norton East Ranch Subdivision, Phase 3B (Landscape and Irrigation Improvements) J-623
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City of Bozeman
Department of Community Development
P.O. Box 1230 PLATTED
Bozeman, MT 59771 5
2609706
Page: 1 of 10 03/30/2018 02:04:42 PM Fee: $70.00
Charlotte Mills - Gallatin County, MT IMP
1111111111111111111111111111111111111111 IN 1111111111111111111111111111111111111111111 IN
IMPROVEMENTS AGREEMENT
FOR
NORTON EAST RANCH SUBDIVISION, PHASE 3B
LANDSCAPE AND IRRIGATION IMPROVEMENTS
THIS AGREEMENT is made and entered into this day of December 2017, by
and between NORTON PROPERTIES LLC,63020 NE LOWER MEADOW DRIVE, SUITE 200;
BEND, OR, 97702, 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. 14037, to obtain approval to file a final plat for a subdivision known as
NORTON EAST RANCH SUBDIVISION, PHASE 3B, a subdivision on 9.5414 acres that
would create thirty (30) residential lots, two (2) common open space lots, three (3) park parcels,
with the remaining areas as public streets; and
WHEREAS, the Subdivider desires to obtain final plat approval for NORTON EAST
RANCH SUBDIVISION, PHASE 3B, 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
Norton East Ranch Subdivision,Phase 3B—Improvements Agreement Pagel of 9
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.
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 R3A,Norton East Ranch Subdivision, Phase 3C, according to the plat thereof, on file
and of record in the office of the Clerk and Recorder, Gallatin County, Montana and
located in the Northwest Quarter and the Southwest Quarter of Section 9, Township 2
South, Range 5 East of P.M.M., Gallatin County, Montana.
2. Improvements
This Agreement specifically includes the following required improvements for NORTON
EAST RANCH SUBDIVISION, PHASE 3B (the "Subdivision"): landscaping and irrigation in
Parks and Open Space.
The estimated cost of the Improvements has been estimated by the Subdivider' s agent,
New Sky LLC., 8553 Huffine Lane, Bozeman, MT 59718, at One Hundred Eighteen Thousand
Eight Hundred and Thirty Five Dollars and Twenty-Five Cents ($118,835.25). 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
Norton East Ranch Subdivision,Phase 311—Improvements Agreement Page 2 of 9
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 an irrevocable
letter of credit: Letter of Credit No. 25392 for a total amount not to exceed $118,835.25
from Washington Trust Bank. This 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 twelve (12) months of the filing of the final plat for the
Subdivision: landscaping and irrigation in Parks and Open Space.
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
timefiames 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 December 27, 2018 and is
subject to automatic renewal in one-year increments but in no case is the Financial Security
valid beyond December 27,2020. 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
Norton East Ranch Subdivision,Phase 3B—Improvements Agreement Page 3 of 9
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.
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 fully 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 NORTON
PROPERTIES LLC, 63020 NE LOWER MEADOW DRIVE, SUITE 200; BEND, OR, 97702 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:
Norton East Ranch Subdivision,Phase 3B—Improvements Agreement Page 4 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 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 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.
Norton East Ranch Subdivision,Phase 3B—Improvements Agreement Page 5 of 9
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.
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.
Norton East Ranch Subdivision,Phase 3B—Improvements Agreement Page 6 of 9
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 ten(10)business days of the signature of the Community Development
Director.
Norton East Ranch Subdivision,Phase 3B—Improvements Agreement Page 7 of 9
SUBDIVIDER
evin Spencer
Norton Pr perties LLC
TI LE: l�pt�
STATE OF c ej kL-r- - )
:ss
County of a a-}i.,A )
On this 7 day of C2 we b*-✓ 2017, before me, a Notary Public of the State
of Mon+a l o- , personally appeared ICQ.�;�, S`,�eM c , 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 M"-vv-�-b---� of Norton Properties
LLC,and acknowledged to me that(s)he executed the same for and on behalf of Norton Properties
LLC.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal
the day and year first above written.
(SEAL)
(Printed Name Here)
" SHEILA TINJUM
Notary Public Notary Public for the State of 4
y'�p7AR/q�� for the state of Montana Residing at
Residing at: T
* My Commission Expires: o= SEAL. Bozeman, Montana u 3 u 1 q
``q;FMo ?� My commission Expires: (Use 4 digits for expiration year)
' August o3,2019
Norton East Ranch Subdivision,Phase 3B—Improvements Agreement Page 8 of 9
THE CITY OF BOZEMAN
--yor"L
:>t L
B RTIN MATSEN,
DIRECTOR OF COMMUNITY DEVELOPMENT
CITY OF BOZEMAN
STATE OF MONTANA )
:ss
County of Gallatin )
On this Z1,11-day of r-eAD nkaA Vr 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) (�
(Printed Name Here)
SHANNON L KLOOSTERHOF Notary Public for the State of Montana
_�°`•'• •'•sl��,; Notary Public Residing at lBp:L2�(k =, `
.'NOTAR/,q� for the State of Montana
_ My Commission Expires: 3. l •ZOZI
Residing at:
,u3 SFAif. ,.:�Q_ Bozeman, Monona (Use 4 digits for expiration year)
My Commission Expires:
March 17.,2021
Norton East Ranch Subdivision,Phase 311—Improvements Agreement Page 9 of 9
PROJECT NAME PHASE 3-B PARK AND OPEN SPACES
PHYSICAL ADDRESS WEST BABCOCK TO MAYFLY
OWNERS NAME KEVIN SPENCER
GENERAL CONTRACTOR NORTON RANCH PROPERTIES
BILLABLE TO NORTON RANCH PROPERTIES
NEW SKYLL.0 DATE 811112017 JOB#
ORDERED BY PHONE# 0
DESCRIPTION ESTIMATE OF SERVICES
INSTALLATION OF THE FOLLOWING ITEMS
GROUNDCOVER INSTALLATION OF GROUNDCOVER
karl foresters 6 1G
MATERIALS $ 49.00
LABOR AND EQUIPMENT $ 41.00 $ 90.00
SHRUBS INSTALLATION OF SHRUBS
AMERICAN ELDERBERRY 5 3G
MATERIALS $ 135.00
LABOR AND EQUIPMENT $ 60.00 $ 196.00
TREES INSTALLATION OF TREES TO INCLUDE STAKING
SWAMP WHITE OAK 14 1.5"
TARTARIAN HOT WING 24 1.5"
PRINCESS KAY PLUM 5 1.5"
MATERIALS $ 9,310.00
LABOR AND EQUIPMENT $ 2,988.00 $ 12,298.00
IRRIGATION INSTALLATION OF AN UNDERGROUND SPRINKLER SYSTEM TO INCLUDE;
TESTING,WINTERIZATION AND HEAD TO HEAD COVERAGE.
LABOR AND EQUIPMENT $ 18,315.00 $ 32,580.00
SITE PREP MACHINE AND HAND EXCAVATION TO ACHIEVE FINAL GRADES FOR LANDSCAPE
INSTALLATION OF(300)CUBIC YARDS OF TOPSOIL @(2.0")DEPTH
MATERIALS 5,792.50
LABOR.AND EQUIPMENT $ 14,570.00 $ 20,362.50
ROCK INSTALLATION OF(5)CUBIC YARDS OF ROCK
500.00
LABOR AND EQUIPMENT $ 500.00 $ 1,000.00
SOD LAWN INSTALLATION OF(18,000)SQUARE FEET OF BLENDED SOD LAWN IN THE OPEN SPACES
AATERIALS $ 3,593.00
LABOR AND EQUIPMENT $ 5,846.00 $ 9,439.00
SEEDING PARK INTTALLATION OF ABC LAWN MIX SEED IN THE PARK
MATERIALS $ 924.00
LABOR AND EQUIPMENT S 1,720.00 $ 2,644.00
BENCHES TRASH CANS INSTALLATION OF 4 BENCHES,1 TRASH CAN AND 1 DOGGY STATION IN PARK
DOGGYSTATIONS NiAFERIALS ; 8i.00
LABOR AND EQUIPMENT $ 528.00 $ 615.00
NOTES TOTAL PRICE FOR THE PROJECT $ 79,223.50
ESTIMATE:THIS ESTIMATE IS BASED ON SITE CONDITIONS AND/OR NOTATIONS PER DESIGN AS DATED.ANY CHANGES IN THE SCOPE OF WORK NOT
NOTED IN THIS ESTIMATE MAYBE SUBJECT TO ADDITIONAL COSTS.
New Sky LLC
New Sky LLC 8553 Huffine Ln Bozeman MT 59718 Contact(541)280-5861