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HomeMy WebLinkAbout17- Improvements Agreement - Norton Properties, LLC - Norton East Ranch Subdivision, Phase 3B (Sidewalk Improvements) J-623 Send Original to: City of Bozeman Department of Community Development P.O. Box 1230 PLATTED Bozeman,MT 59771 2609705 Page: 1 of 10 03/30/2018 02:04:42 PM Fee. $70.00 Charlotte Mills - Gallatin County MT IMP I IIIIIII IIIIII III IIIII IIII IIIIIII IIIIII IIII IIII IIIII IIIII IIIII IIIIIII III IIIII IIIII IIII IIII IMPROVEMENTS AGREEMENT FOR NORTON EAST RANCH SUBDIVISION, PHASE 3B SIDEWALK IMPROVEMENTS 67 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 Page 1 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"): all sidewalks along private lots. The estimated cost of the Improvements has been estimated by the Subdivider' s agent, C&H Engineering and Surveying Inc., 1091 Stoneridge Drive, Bozeman, MT 59718, at One Hundred Sixty-Nine Thousand Seven Hundred Six Dollars and Seventy-Eight Cents ($169,706.78). 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 thirty-six(36)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. 25393 for a total amount not to exceed $169,706.78 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 thirty-six (36) months of the filing of the final plat for the Subdivision: sidewalks along all private lots. 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 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. 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 19,2020. 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 311—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 311—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 lz_�// BY:, Kevi S ncer No rop/erties LLC TITLE: , STATE OF 'm :ss County of C A 11 a�i/� ) On this day of P&&vyt-b6""" 2017, before me, a Notary Public of the State of 1A,,,14'0-A0t- , personally appeared Kevl,, o2od e-✓ , known to me to be the subdivider that executed the foregoing Improvements Agr ement, and acknowledged to me that (s)he executed the foregoing instrument as IN►tVA h&-y— 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) t? (Printed Name Here) f•-ii:�►hA TINJUM Notary Public for the State of I770,"7 It Notary Public TAR/^z I{,;thc; State of Montana Residing at lid ZQYyi 0-.g T -* SEA!, r_3ozc:m ding at: a My Commission Expires: � o s ,N. arty Commission Expires: (Use 4 digits for expiration year) AUgu: t 03, 2019 Norton East Ranch Subdivision, Phase 3B—Improvements Agreement Page 8 of 9 THE CITY OF BOZEMAN BY:AARTIN m4ffsEN, DIRECTOR OF COMMUNITY DEVELOPMENT CITY OF BOZEMAN STATE OF MONTANA ) :ss County of Gallatin ) On this T day of k uopx 2018, before me, a Notary Public for the State of Montana, personally appeared Martin Mats n, 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 (Printed Name Here) ` �O�IKIOp,�i Notary Public Notary Public for the State of Montana r 'NOT^Ai l<• for the State of Montana *: }` Residing at: Residing at Bozeman, Montana My Commission Expires: FOF Mod`: My commission Expires: (Use 4 digits for expiration year) March 17,2021 Norton East Ranch Subdivision,Phase 3B—Improvements Agreement Page 9 of 9 Exhibit A - Improvements Agreement Estimate Norton East Ranch Subdivision, Phase 313 September 6, 2017 Sidewalks Unit Cost Financial Guarantee Lot# Length (ft) Width (ft) Area (SF) ($/SF) Total Cost (150%) Block 5 Lot 1 230.04 5.00 1,150.20 $ 7.00 $ 8,0S1.40 $ 12,077.10 Lot 2 115.54 5.00 577.70 $ 7.00 $ 4,043.90 $ 6,065.85 Lot 3 118.02 5.00 590.10 $ 7.00 $ 4,130.70 $ 6,196.05 Lot 4 118.02 5.00 590.10 $ 7.00 $ 4,130.70 $ 6,196.05 Lot 5 118.02 5.00 590.10 $ 7.00 $ 4,130.70 $ 6,196.05 Lot 6 118.02 5.00 590.10 $ 7.00 $ 4,130.70 $ 6,196.05 OS D 30.01 5.00 150.05 $ 7.00 $ 1,050.35 $ 1,575.53 Block 6 Lot 1 163.35 5.00 816.75 $ 7.00 $ 5,717.25 $ 8,575.88 Lot 2 57.51 5.00 287.55 $ 7.00 $ 2,012.85 $ 3,019.28 Lot 3 57.51 5.00 287.55 $ 7.00 $ 2,012.85 $ 3,019.28 Lot 4 57.51 5.00 287.55 $ 7.00 $ 2,012.85 $ 3,019.28 Lot 5 57.51 5.00 287.55 $ 7.00 $ 2,012.85 $ 3,019.28 Lot 6 57.51 5.00 287.55 $ 7.00 $ 2,012.85 $ 3,019.28 Lot 7 57.51 5.00 287.55 $ 7.00 $ 2,012.85 $ 3,019.28 Lot 8 57.51 5.00 287.55 $ 7.00 $ 2,012.85 $ 3,019.28 Lot 9 57.51 5.00 287.55 $ 7.00 $ 2,012.85 $ 3,019.28 Lot 10 57.51 5.00 287.55 $ 7.00 $ 2,012.85 $ 3,019.28 Lot 11 57.51 5.00 287.55 $ 7.00 $ 2,012.85 $ 3,019.28 Lot 12 163.65 5.00 818.25 $ 7.00 $ 5,727.75 $ 8,591.63 Park 2 195.80 10.00 1,958.00 $ 7.00 $ 13,706.00 $ 20,559.00 Block 7 Lot 1 164.86 5.00 824.30 $ 7.00 $ 5,770.10 $ 8,655.15 Lot 2 57.51 5.00 287.55 $ 7.00 $ 2,012.85 $ 3,019.28 Lot 3 57.51 5.00 287.55 $ 7.00 $ 2,012.85 $ 3,019.28 Lot 4 57.51 5.00 287.55 $ 7.00 $ 2,012.85 $ 3,019.28 Lot 5 57.51 5.00 287.55 $ 7.00 $ 2,012.85 $ 3,019.28 Lot 6 57.51 5.00 287.55 $ 7.00 $ 2,012.85 $ 3,019.28 Park 3A 99.02 10.00 990.20 $ 7.00 $ 6,931.40 $ 10,397.10 Block B Lot 2 158.90 5.00 794.50 $ 7.00 $ 5,561.50 $ 8,342.25 Lot 3 55.59 5.00 277.95 $ 7.00 $ 1,945.65 $ 2,918.48 Lot 4 55.59 5.00 277.95 $ 7.00 $ 1,945.65 $ 2,918.48 Lot 5 55.59 5.00 277.95 $ 7.00 $ 1,945.65 $ 2,918.48 Lot 6 57.51 5.00 287.55 $ 7.00 $ 2,012.85 $ 3,019.28 Lot 7 57.51 5.00 287.55 $ 7.00 $ 2,012.85 $ 3,019.28 TOTAL 2,937.69 16,162.55 $ 113,137.85 $ 169,706.78 Z/B/10& �W