HomeMy WebLinkAbout18- Improvements Agreement - 19th Capital Group, LLC - University Crossing Minor Subdivision (Landscaping Improvements) MINOR 503
Send Original_ to:
City of Bozeman ,
Department of Community Development
P.O. Box 1230 PLATTED
Bozeman,MT 59771
2639346
Page: 1 of 11 03/06/2019 03:27:49 PM Fee: $77.00
Eric Semerad - Gallatin County, MT IMP
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IMPROVEMENTS AGREEMENT
FOR
UNIVERSITY CROSSING MINOR SUBDIVISION
LANDSCAPING IMPROVEMENTS
/1 _ �J
THIS AGREEMENT is made and entered into this (L day of��l�it 4 2018, by
and between 19th Capital Group LLC, a Montana Limited Liability Company, with a mailing
address of 19 Lariat Loop,Bozeman,MT 59715;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. 17-396,to obtain approval to file a final plat for a subdivision known as
UNIVERSITY CROSSING MINOR SUBDIVISION, a subdivision on 3.0211 acres that would
create three (3) commercial lots and one (1) common open space lot; and
WHEREAS, the Subdivider desires to obtain final plat approval for UNIVERSITY
CROSSING MINOR 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.
University Crossing Minor Subdivision—Improvements Agreement Page 1 of 8
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
Tract 1A, Certificate of Survey No. 2008A, according to the plat thereof, on file and
of record in the office of the Clerk and Recorder, Gallatin County, Montana,
EXCEPT that part of said Tract 1A, conveyed to the State of Montana, Department
of Transportation, as evidenced by Bargain and Sale Deed recorded as Doc. No.
2312567 and located in the Southeast Quarter of Section 14,Township 2 South,Range
5 East of P.M.M., Gallatin County, Montana.
2. Improvements
This Agreement specifically includes the following required improvements for
UNIVERSITY CROSSING MINOR SUBDIVISION (the "Subdivision"): boulevard
landscaping.
The estimated cost of the Improvements has been estimated by the Subdivider' s agent,
Red Barn Montana Landscape Design/Build., 3084 Thorpe Road, Belgrade, MT 59714, at eight
thousand thirty-five dollars and ninety-six cents ($8,035.96). 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 a check for
University Crossing Minor Subdivision—Improvements Agreement Page 2 of 8
150% of the estimated amount ($12,053.94). This check 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: boulevard landscaping.
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 is subject to automatic renewal in one-
year increments but in no case is the Financial Security valid beyond November 11, 2021.
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
University Crossing Minor Subdivision—Improvements Agreement Page 3 of 8
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 19 Lariat Loop,
Bozeman, MT 59715 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
University Crossing Minor Subdivision—Improvements Agreement Page 4 of 8
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.
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.
University Crossing Minor Subdivision—Improvements Agreement Page 5 of 8
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.
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.
University Crossing Minor Subdivision—Improvements Agreement Page 6 of 8
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. Fifinjz
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.
ISUBD DER
G
TI E: Member
STATE OF ; )
:ss
County ofYl )
On this Gas day of � 2018, before me, a Notary Public of the State
of A , personally appeared 'l(-dJ/Z,_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 a member of 191h Capital Group LLC, and acknowledged to
me that (s)he executed the same for and on behalf of 19th Capital Group LLC.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal
the day and year first above written.
(SEAL) r
N e)
�ALMq' SUSAN HJA�MARSSON rinted Name He'le)
��• '"' .9s Notary Public
OUR/144�'p'_for the State of Montana Notary Public for tate of
*. Z_ Residing at: Residing at
ta,cr3.SEAL. 4= Bozeman, Montana
� �� My Commission Expires: My Co fission Expires:
July 16,2019 (Use 4 digits for expiration year)
University Crossing Minor Subdivision—Improvements Agreement Page 7 of 8
THE CITY OF BOZEMAN
—)o t—��w L
B : MARTIN ATSEN,
DIRECTOR OF COMMUNITY DEVELOPMENT
CITY OF BOZEMAN
STATE OF MONTANA )
:ss
County of Gallatin )
On this day of y M)[YX 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) ,
� S
(Pri ted Name Here)
KATHERINE MAINES Notary Public for the State of Montana
Notary Public
NosnPia�Z�cn`_for the State of Montana Residing at
_ -- - Residing at: My Commission pires: d
=m,.SEf'�L . Q< Belgrade, Montana
....•. P.,� My Commission Expires:
(Use 4 digits for expiration year
OF MO July 22,2020
University Crossing Minor Subdivision—Improvements Agreement Page 8 of 8
EXHIBIT A
Budget Estimate
RED BARN MONTANA
LAZIDSCAPE DESIGIfIBUILD
Red Barn Montana
Client Name: C&H Engineers
Project Name: University Crossing 19th and Kagy
Jobsite Address: 19th and Kagy Bozeman,Montana Billing Address: 1091 Stoneridge Drive Bozeman,
Montana 59718
Estimate ID: EST849266
Date: Apr 04,2018
Kagy Blvd $4,551.39
2325 sgft Turf Grass Sod-square foot $627.75
7 Hours Construction Crew-Labor $368.97
6 Large Canopy Tree- 1.5"B&B Prairie Expedition Elm $1,239.06
12 Tree Stakes wire and strap-Wood $85.80
11 Hours Construction Crew-Labor $579.81
1 Lawn Rain Irrigation Irrigation system installed $1,650.00
S 19th $3,484.57
1376 sqft Turf Grass Sod-square foot $371.52
4 Hours Construction Crew-Labor $210.84
4 Large Canopy Tree- 1.5"B&B Prairie Expedition Elm $826.04
8 Tree Stakes wire and strap-Wood $57.20
7 Hours Construction Crew-Labor $368.97
1 Lawn Rain Irrigation Irrigation system installed $1,650.00
Subtotal $8,035.96
Taxes $0.00
Estimate Total $8,035.96
Page 1 of 2
3084 Thorpe Road p.406-924-8038 redbarnmontana.com
Belgrade,MT 59714 email:chad@redbarnmontana.com
Estimate authorized by: Estimate approved by:
Company Representative Customer Representative
Signature Date: Signature Date:
Page 2 of 2
3084 Thorpe Road p.406-924-8038 redbommontana.com
Belgrade,MT 59714. email:chad@redbarnmontaria.com
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