HomeMy WebLinkAbout17- Improvements Agreement - Bozeman 6 LLC - Opportunity Subdivision (Seeding Only) -631
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City of Bozeman
Department of Community Development
P.O. Box 1230
Bozeman, MT 59771 PLATTED I:,
2618872
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Charlotte Mills - Gallatin County, MT IMP
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IMPROVEMENTS AGREEMENT
FOR
OPPORTUNITY SUBDIVISION
(SEEDING ONLY)
THIS AGREEMENT is made and entered into this Wday of No\1VMW 2017, by
and between the Bozeman 6 LLC, 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. 16235, to obtain approval to file a final plat for a subdivision known as
Opportunity Subdivision Phase, a subdivision on 20.333 acres that would create Five (5)
commercial lots, one (1) common open space lot, with the remaining areas as public streets; and
WHEREAS, the Subdivider desires to obtain final plat approval for OPPORTUNITY
SUBDIVISION 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
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:
Opportunity Subdivision—Improvements Agreement Pagel of 8
1. Property Description
This Agreement pertains to, and includes, those properties that are designated and
identified as being:
LEGAL DESCRIPTION
A tract of land as shown on Certificate of Survey No. 331, excepting therefrom that portion
conveyed to the State of Montana for the benefit and use of its Department of Transportation by
Bargain and Sale Deed recorded in Film 140, Page 2686 located in the Southeast '/4 of Section
35, Township 1 South, Range 5 East, Principal Meridian Montana(P.M.M.), City of Bozeman,
Gallatin County, Montana, being fully bounded and described as follows:
Beginning at the Southwest corner of the herein described tract; thence N00°27'11"E a distance
of 940.34' to a point on the South line of Block 1 of Final Plat of Phase 1 of the Gallatin Center
Subdivision PUD Phase 4; thence along said South line S89°32'30"E a distance of 941.41' to a
point on the West right-of-way line of North 19"'Avenue; thence along said right of way
S00°24'50"W a distance of 940.68';thence N89°31'16"W a distance of 942.05' to the point of
beginning.
2. Improvements
This Agreement specifically includes the following required improvements for
Opportunity Subdivision(the "Subdivision"): Seeding of Lot 6 and Adjacent Boulevard (referred
to as the"Improvements").
The estimated cost of the Improvements has been estimated by the Subdivider's agent,
Madison Engineering LLC, 895 Technology Blvd, Ste 203, Bozeman, MT 59718, at Nine
Hundred Sixty Eight Dollars and Ninety Three Cents ($968.93). 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 six (6) 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
Opportunity Subdivision—Improvements Agreement Page 2 of 8
performance under this Agreement is specifically guaranteed and secured by Cash in the
amount of$1,453.39.
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: no applicable Improvements.
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 and is subject to
automatic renewal in one year increments but in no case is the Financial Security valid
beyond Not Applicable . 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 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.
Opportunity Subdivision—Improvements Agreement Page 3 of 8
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 Bozeman 6 LLC,
600 South Main Street Butte MT 59701-2534 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
Opportunity Sribdivision—Improvements Agreement Page 4 of 8
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.
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
Opportunity Subdivision—Improvements Agreement Page 5 of 8
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.
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.
Opportunity Subdivision—Improvements Agreement Page 6 of 8
SUBDIVIDER
BY:,
Bozeman 6 LLC
STATE OF )
:ss
County o6dV av )
On this �`day o 2017, before me, a Notary Public of the State of
personally appeared)�, iQl , known to me to be the subdivider that
ex cuted the foregoing Improvements Agreement, and acknowledged to me that (s)he executed
the foregoing instrument as C of Bozeman 6 LLC, and
acknowledged to me that (s)he executed the same for and oA behalf of Opportunity Subdivision.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal
the day and year first above written.
MONICA A BURT17)
�o2�oj �'q NOTARY PUBLIC for the (Prin eere)
State of Montana Notary Public for the State of
SEAL Residing at Butte,Montana
AL)M'Commission Expires Residing at
February 17,2020 g
My Commission Expires: Ly-O&-o
(Use 4 digits for expiration year)
Opportunity Subdivision—Improvements Agreement Page 7 of 8
THE CITY OF BOZEMAN
B : MARTI ATSEN,
DIRECTOR OF COMMUNITY DEVELOPMENT
CITY OF BOZEMAN
STATE OF MONTANA )
:ss
County of Gallatin )
'fl..
On this q day of I)c?jQ!V*k 2017, before me, a Notary Public for the State
of Montana, personally appeared Mai-tin 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.
?°` I " SHANNON L KLOOST RHOF o CA&"m N LNotary Public
'�oTnRiq�.y� for the State of Montana (Printed Name Here)
*' SEAL.' Residing y
at: Notary Public for the State of
Bozem MT
Montana
., F.
M AL�vly Commission Expires: Residing at
J March 17,2021 g
My Commission Expires: ?j ' 1� • ?,OZ1
(Use 4 digits for expiration year)
Opportunity Subdivision—Improvements Agreement Page 8 of 8
Exhibit A
Opportunity Subdivision
Cost Estimate & Bonding Summary
Seeding - Lot 6
Construction Bonding
Block Lot Area Sf Cost Cost per Lot Cost per Lot
1 6 Boulevard 1,452.75 sf $0.15 $217.91 $326.87
6 Open Space 5,006.75 sf $0.15 $751.01 $1,126.52
Block 1 Lot 6 Subtotal $968.93
150% Bonded Amount $1,453.39
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