HomeMy WebLinkAbout19- Development Agreement - Bangtail Partners, LLC - Cottonwood and Ida DEVELOPMENT AGREEMENT
(Cottonwood and Ida)
This DEVELOPMENT AGREEMENT(this "Agreement") is dated as of 70rti-,�o 19
by and between BANGTAIL PARTNERS, LLC (the "Developer"), and the CITY OF
BOZEMAN,MONTANA, 121 N. Rouse Ave., Bozeman, Montana 59771 (the"City"). The
Developer and the City are each individually referred to herein as a"Party" and collectively as
the"Parties."
RECITALS:
WHEREAS,under the provisions of Montana Code Annotated, Title 7, Chapter 15, Parts
42 and 43, as amended (the"Act"),the City is authorized to create urban renewal areas,prepare
and adopt an urban renewal plan therefor and amendments thereto, undertake urban renewal
projects therein,provide for the segregation and collection of tax increment with respect to
property taxes collected in such areas, and apply tax increment revenues derived from projects
undertaken within the urban renewal area to pay eligible costs;
WHEREAS,pursuant to the Act and Ordinance No. 1655 adopted by the City
Commission of the City(the"City Commission") on November 28, 2005, the City has created
the Northeast Urban Renewal District(the "District") as an urban renewal district and has
approved the Northeast Urban Renewal Plan(the "Plan") as an urban renewal plan in
accordance with the Act, which Plan provides for the segregation and collection of tax increment
revenues with respect to the District;
WHEREAS,the Developer proposes to undertake the construction of a mixed-use
development consisting of residential housing; office,retail and artist/maker spaces; parking;
public plaza spaces, greenways and/or pavilions; and related public infrastructure improvements,
including sidewalks,bike lanes, street improvements and utility improvements, as described
more particularly on Exhibit A hereto (the"Project"), on land in the District immediately to the
northwest of the intersection of East Cottonwood Street and North Ida Avenue, in Bozeman,
Montana, which is legally described on Exhibit B hereto (the"Land");
WHEREAS,the Developer submitted to the Northeast Urban Renewal Board of the City
(the "Board") an application for tax increment assistance with respect to certain eligible costs of
the Project;
WHEREAS,by resolution adopted on March 5,2019,the Board approved and
recommended that the City Commission approve, subject to the terms and conditions of this
Agreement,the application of tax increment assistance with respect to certain eligible costs of
the Project;
WHEREAS,pursuant to Resolution No. 5030 adopted on April 22, 2019, after a duly
called and noticed public hearing,the City Commission approved the Project as an urban
renewal project under the Plan and the Act and authorized the use of tax increment revenue of
the District to reimburse the Developer for certain eligible costs of the Project described more
particularly on Exhibit C hereto (the "Eligible Costs")in the maximum amount of
$2,129,215.68, subject to the terms and conditions of this Agreement; and
WHEREAS, certain of the Eligible Costs are costs paid by the Developer in connection
with the design, engineering, work, construction, materials, equipment, and other improvements
eligible to be reimbursed by Tax Increment, which improvements are identified as such on
Exhibit C hereto (the "Infrastructure Improvements"), and certain of the Eligible Costs are
costs to be paid by the Developer as fees or charges pertaining to the Project, which fees and
charges are identified as such on Exhibit C hereto (the "Project Fees and Charges"); and
WHEREAS,the City Commission may determine in its sole discretion to issue tax
increment urban renewal revenue bonds in one or more series (the "Bonds")to finance all or a
portion of the Eligible Costs,to fund a debt service reserve account, if necessary or appropriate,
and to pay associated costs of the financing; and
WHEREAS, the Parties desire to enter into this Agreement which sets forth the
obligations and commitments of the Parties with respect to the Project, including the Eligible
Costs consisting of the costs of the Infrastructure Improvements and of the Project Fees and
Charges.
NOW, THEREFORE,the City and the Developer,pursuant to the Act, each in
consideration of the representations, covenants and agreements of the other, as set forth herein,
mutually represent, covenant and agree as follows:
Section 1. Definitions; Rules of Interpretation; Exhibits.
1.1. Definitions. For all purposes of this Agreement, except as otherwise expressly
provided or unless the context clearly requires otherwise,the following terms have the meanings
assigned to them, respectively:
"Act"means Montana Code Annotated, Title 7, Chapter 15, Parts 42 and 43, as amended
or supplemented.
"Agreement"means this Development Agreement, dated as of April 22, 2019, by and
between the City and the Developer, as it may be amended or supplemented from time to time in
accordance with the terms hereof.
"Bonds"has the meaning given in the Recitals above.
"City"means the City of Bozeman, Montana, or any successors to its functions under
this Agreement.
"City Commission"means the governing body of the City.
"Costs of Issuance"means, if the City issues Bonds,the following costs but only to the
extent incurred in connection with, and allocable to the Bonds: underwriter's spread, counsel
fees, financial advisor fees,rating agency fees,trustee fees,paying agent fees, bond registrar,
certificate, and authentication fees, accounting fees, printing costs for bonds and offering
documents, public approval process costs, feasibility study costs, guarantee fees, other than for
qualified guarantees; and similar costs.
2
"Developer"means Cottonwood and Ida, LLC, a Montana limited liability company, and
its successors and assigns in accordance with and as permitted under this Agreement.
"Developer Certificate"means the certificate attached hereto as Exhibit E.
"District"means the Northeast Urban Renewal District, an urban renewal district created
by the Ordinance pursuant to the Act, as such may be enlarged or reduced from time to time in
accordance with the Act.
"DOR"means the State of Montana Department of Revenue.
"Eligible Costs"means the costs identified as such on the attached Exhibit C.
"Environmental Laws and Regulations"means and includes the Federal
Comprehensive Environmental Compensation Response and Liability Act ("CERCLA" or the
"Federal Superfund Act") as amended by the Superfund Amendments and Reauthorization Act
of 1986 ("SARA"), 42 U.S.C. §§ 9601 et seq.; the Federal Resource Conservation and Recovery
Act of 1976 ("RCRA"), 42 U.S.C. §§ 6901 et seq.; the Clean Water Act, 33 U.S.C. § 1321 et
seq.; and the Clean Air Act, 42 U.S.C. §§ 7401 et seq., all as the same may be from time to time
amended, and any other federal, state, county, municipal, local or other statute, code, law,
ordinance, regulation, requirement or rule which may relate to or deal with human health or the
environment including without limitation all land use, zoning, and stormwater control
regulations as well as all regulations promulgated by a regulatory body pursuant to any statute,
code, law, ordinance, regulation, requirement or rule.
"Fiscal Year"means the period commencing on the first day of July of any year and
ending on the last day of June of the next calendar year, or any other twelve-month period
authorized by law and specified by the Commission as the City's fiscal year.
"Indemnified Parties"has the meaning given to it in Section 7.1.
"Infrastructure Improvements"means the design, engineering, work, construction,
materials, equipment, and the other improvements,the costs of which form a part of the Eligible
Costs described as such in Exhibit C hereto, as the same may be amended or supplemented from
time to time, in accordance with the terms hereof.
"Land"has the meaning given to it in the recitals hereof.
"Land Use Regulations"means all federal, state and local laws, rules,regulations,
ordinances and plans relating to or governing the development or use of the Land or the Project.
"Milestone" of"Milestones"has the meaning given in Section 3.4 hereof.
"Milestone Date" or"Milestone Dates"has the meaning given in Section 3.4 hereof.
"Ordinance"means Ordinance No. 1655 adopted by the City Commission on November
28, 2005.
3
"Original Resolution"means Resolution No. 4801 adopted by the City Commission on
May 22, 2017,pursuant to which the City issued the Series 2017 Bond.
"Person"means any individual, corporation, limited liability company,partnership,
limited liability partnership,joint venture, association,joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Prevailing Wage Rates"means the Montana Prevailing Wage Rate for public works
projects as published from time to time by and available from the Montana Department of Labor
and Industry, Research and Analysis Bureau, P.O. Box 1728, Helena, Montana 59624, telephone
number(800) 541-3904.
"Project"means the facilities to be constructed by the Developer on the Land pursuant to
this Agreement, as described more particularly on the attached Exhibit A.
"Project Fees and Charges"means those fees and charges pertaining to the Project that
form a part of the Eligible Costs described as such in Exhibit C hereto, as the same may be
amended or supplemented from time to time, in accordance with the terms hereof.
"Series 2017 Bond"means the Tax Increment Urban Renewal Revenue Bond, Series
2017 (Northeast Urban Renewal District), issued in the principal amount of$1,446,000 pursuant
to the Original Resolution.
"State"means the State of Montana.
"Tax Increment"means the amount received by the City pursuant to the Act from the
extension of levies of Taxes (expressed in mills) against the incremental taxable value (as
defined in the Act) of all Taxable Property, and shall include all payments in lieu of Taxes
attributable to the incremental taxable value and all payments received by the City designated as
replacement revenues for lost Tax Increment.
"Taxable Property"means all real and personal property located in the District and
subject to Taxes, including land, improvements and equipment.
"Taxes"means all taxes levied on an ad valorem basis by any Taxing Body against the
Taxable Property (exclusive of the six mill levy for university purposes levied by the State), and
shall include all payments in lieu of taxes received by the City with respect to Taxable Property.
"Taxing Body"means the City; the County of Gallatin, Montana; High School District
No. 7 (Bozeman), Gallatin County, Montana; Elementary School District No. 7 (Bozeman),
Gallatin County, Montana; the State; and any other political subdivision or governmental unit
that levies or may hereafter levy or cause to be levied Taxes against property within the District.
"Unavoidable Delay"means a delay resulting from a cause over which the Party
required to perform does not have control and which cannot or could not have been avoided by
the exercise of reasonable care, including but not limited to, acts of God, accidents, war, civil
unrest, embargoes, strikes, unavailability of raw materials or manufactured goods, litigation, and
4
the delays of the other Party or its contractors, agents or employees in the performance of their
duties under or incident to this Agreement.
1.2. Rules of Interpretation.
(a) The words "herein," "hereof' and words of similar import, without reference to
any particular section or subdivision,refer to this Agreement as a whole rather than to any of its
particular sections or subdivisions.
(b) References to any particular section or subdivision hereof are to the section or
subdivision of this Agreement in its original signed form, unless otherwise indicated.
(c) The word"or" is not exclusive but is intended to contemplate or encompass one,
more or all of the alternatives conjoined.
1.3. Exhibits. The following Exhibits are attached to and by reference made a part of
this Agreement:
Exhibit A: Project and Project Costs
Exhibit B: Description of the Land
Exhibit C: Eligible Costs; Infrastructure Improvements and Project Fees and
Charges
Exhibit D: Milestones
Exhibit E: Form of Developer Certificate
Exhibit F: City's Statement of Non-Discrimination
Section 2. Representations.
2.1. City Representations. The City hereby represents as follows:
(a) Pursuant to the Act, and after a public hearing duly called and held,the City by
the Ordinance has duly created the District.
(b) Pursuant to the Original Resolution, the City has issued and there is outstanding
the Series 2017 Bond. In the Original Resolution,the City covenanted that it would not issue
additional bonds payable on a parity with the Series 2017 Bond unless certain conditions are met,
including the requirement that the City have received Tax Increment (as adjusted in accordance
with the Original Resolution) in the last completed fiscal year in an amount equal to at least
110% of the maximum principal and interest requirements for any future calendar year with
respect to outstanding bonds and the additional bonds proposed to be issued.
(c) Pursuant to Resolution No. 5030 of the City Commission,the City approved the
use of Tax Increment, if available, to reimburse or, as appropriate,pay the Eligible Costs in a
total amount not to exceed$2,129,215.68.
5
(d) The DOR has advised the City that the base taxable value (as defined in the Act)
of the District is $423,054.
(e) Based on the representations of the Developer, beginning in tax year 2022 (fiscal
year ending June 30, 2023),the completed Project is expected to have a market value of at least
$37,027,833 and tax increment of at least$352,159.
(f) The City Commission has duly authorized the execution and delivery of this
Agreement.
2.2. Developer Representations. The Developer hereby represents as follows:
(a) The Developer is a Montana limited liability company, duly formed, validly
existing and in good standing under the laws of the State and is duly qualified to do business in
the State. The Developer has the power to enter into this Agreement and by all necessary
corporate action has duly authorized the execution and delivery of this Agreement.
(b) The Developer has good marketable title to the Land, free and clear of all liens,
encumbrances and defects except such as do not materially affect the value of the Land or
materially interfere with the use made and proposed to be made of the Land by the Developer.
(c) The Developer has the financial capability or commitments to complete the
Project at a cost not less than$35,300,000.
(d) The Developer is not aware of any facts the existence of which would cause the
Developer to be in violation in any material respect of any Environmental Laws and Regulations
applicable to the Project or the Infrastructure Improvements. The Developer has not received
from any local, state or federal official any notice or communication indicating that the activities
of the Developer have been, may be or will be in violation of any Environmental Laws and
Regulations applicable to the Project or the Infrastructure Improvements.
(e) Neither the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions hereof is prohibited or limited by, conflicts with or results in a breach of the terms,
conditions or provisions of the certificate of formation,partnership agreement or operating
agreement of the Developer or any evidence of indebtedness, agreement or instrument of
whatever nature to which the Developer is now a party or by which it is bound, or constitutes a
default under any of the foregoing.
(f) There is no action, suit, investigation or proceeding now pending or, to the
knowledge of the Developer, threatened against or affecting the Developer or its business,
operations,properties or condition(financial or otherwise) before or by any governmental
department, commission,board, authority or agency, or any court, arbitrator, mediator or grand
jury, that could, individually or in the aggregate, materially and adversely affect the ability of the
Developer to complete the Project.
(g) The Developer acknowledges and agrees that the sole source of funds for
reimbursing the Developer under this Agreement is Tax Increment and/or proceeds of the Bonds,
6
which would be paid from Tax Increment,that the City's ability to issue the Bonds is governed
in part by the terms of the Original Resolution, and that the City requires that the taxable value of
the Project be in an amount sufficient to produce adequate Tax Increment to issue the Bonds in
an amount that will pay or reimburse the Developer for the Eligible Costs and satisfy all other
terms and conditions of the Original Resolution, including, without limitation, the additional
bonds test and the funding of the Reserve Account. The Developer further acknowledges and
agrees the amount of Tax Increment is dependent upon a number of variables, including, without
limitation,the taxable value of the Project, the number of mills levied by Taxing Bodies, and
then-prevailing state laws regarding computation of Tax Increment, and that the City has no
control over such variables. The Developer agrees that if Tax Increment in the amount required
to issue the Bonds to pay or reimburse the Eligible Costs and satisfy all other terms and
conditions of the Original Resolution is not available to the City and/or, if the City, in its sole
discretion, determines that it cannot satisfy the conditions in the Original Resolution necessary to
issue the Bonds or cannot reasonably sell the Bonds, whether due to lack of Tax Increment,
market conditions, or otherwise, the City shall have no obligation to pay to the Developer the
amount of reimbursement described in Section 4. The Developer agrees that such event shall not
constitute a default by the City hereunder.
(h) The Developer acknowledges and agrees that the estimates of assessed (market)
and taxable values set forth in this Agreement (and any resulting estimates of Tax Increment) are
estimates only and are based on information provided by the Developer to the City and various
assumptions that the City believes are reasonable. Actual assessed (market) and taxable values
of the Project and actual Tax Increment generated by the Project or in the District may vary
significantly based on variables over which the City has no control.
(i) The Developer acknowledges and agrees that the Bonds, if authorized and issued,
are special, limited obligations of the City and shall not be paid from any funds of the City other
than Tax Increment. The Developer understands and agrees the Bonds, if authorized and issued,
will be subject to all the terms and conditions of the Original Resolution and the supplemental
bond resolution authorizing their issuance (such supplemental bond resolution,the"Bond
Resolution"), including, without limitation, if the Parties agree, a requirement that the Developer
make up any shortfalls in the Tax Increment available to pay the debt service on the Bonds, and
that, if the Bonds are draw-down bonds,the City may be prohibited from making future draws on
the Bonds if all the conditions applicable to a draw are not satisfied. The Developer
acknowledges and agrees that an event of default or default under the Bonds or the Bond
Resolution does not constitute a default under this Agreement, unless the event of default or
default is a result of the failure by the Developer to perform an obligation of the Developer
identified in the Bond Resolution.
Section 3. Developer Undertakings.
3.1. Construction and Maintenance of Project. The Developer hereby agrees and
commits to the City that it will diligently prosecute to completion the construction of the Project
in accordance with this Agreement, the site plan submitted to the City and all applicable federal,
State and local laws, rules,regulations, ordinances and plans relating to or governing the
development or use of the Project, including applicable Land Use Regulations and
Environmental Laws and Regulations. The Developer agrees and commits to the City that
7
construction of the Project shall be completed by July 1, 2022, subject to Unavoidable Delays.
The total costs of the Project are shown on Exhibit A hereto. The Developer has the financial
capacity to complete the Project, and the Developer agrees to pay all costs thereof. If there is an
increase in the costs of the Project from that shown on Exhibit A hereto that cannot be covered
by the contingency amount, the Developer shall notify the City of the increase and submit
additional evidence in a form acceptable to the City that the Developer has the financial capacity
to cover such additional costs and complete the Project. At all times during the term of this
Agreement, the Developer will operate and maintain, preserve and keep the Project or cause the
Project to be operated, maintained,preserved and kept for the purposes for which it was
constructed, and with the appurtenances and every part and parcel thereof, in good repair and
condition. The Developer agrees to permit the City and any of its officers, employees or agents
access to the Land for the purpose of inspection of all work being performed in connection with
the Project;provided, however, that the City shall have no obligation to inspect such work.
3.2. Preparation Review and Approval of Construction Plans. In connection with the
Project, the Developer, at its sole expense, shall prepare and submit construction plans, drawings,
and related documents for each portion of the Project to the appropriate City officials for
architectural, engineering or land use review and written approval or permits. The Developer
acknowledges that no review or approval by City officials hereunder may be in any way
construed by the Developer to replace, override or be in lieu of any required review, inspection,
or approval by the City [Planning Division], or any other building construction official review or
approvals required by any State laws or local ordinances or regulations. Nothing contained in
this Agreement indicates or evidences that the City has approved or will approve the Project or
any portion thereof. This Agreement does not affect or limit the City's regulatory powers with
regard to the Project, including, without limitation,those relating to building permits or other
permits or the payment of fees. Without limitation of the meaning of the foregoing, the
Developer acknowledges and agrees that the Project is scheduled to be reviewed as a planned
unit development ("PUD")under the City's municipal code and policies and procedures and
nothing contained in this MOU will have a bearing upon or affect the City's review and, if
applicable, approval of the Project as a PUD. The City retains all powers and rights conferred
upon it with regard to the PUD without any liability to or limitation on the City, including, but
not limited to, the right, within legal limits,to reject all or a portion of the Project or impose
conditions or limitations on the Project.
3.3. Construction of the Infrastructure Improvements. The Developer shall acquire,
install, construct or otherwise provide the Infrastructure Improvements. The Developer
acknowledges and agrees that the City is not responsible for acquiring, installing, constructing or
otherwise providing the Infrastructure Improvements. The estimated costs of the Infrastructure
Improvements, which,form a part of the Eligible Costs, are shown on Exhibit C hereto.
3.4. Milestones of the Project. Certain steps in the development of the Project are
listed on Exhibit D attached hereto (collectively,the "Milestones"; each a"Milestone"),
together with the dates by which the Developer is obligated to complete the Milestones
(collectively,the"Milestone Dates"; each as it relates to a particular Milestone, the "Milestone
Date"). The Developer acknowledges and agrees that the City in reserving or offering to make
available Tax Increment to pay or reimburse the Eligible Costs necessarily means that certain
Tax Increment is not available to pay or reimburse other undertakings or costs for the benefit of
8
the District and that the City reasonably expects additional Tax Increment as a result of
completion of the Project. The Developer acknowledges and agrees that conditioning the
availability of Tax Increment or proceeds of Bonds to pay or reimburse the Eligible Costs on
completion or satisfaction of the Milestones by the corresponding Milestone Dates is reasonable.
If the Developer is unable to complete or satisfy a Milestone by the corresponding Milestone
Date, the Developer shall make a formal written request to the City Commission, with
appropriate supporting material,to extend the Milestone Date and, as appropriate, subsequent
Milestone Dates. The City Commission may, in its sole discretion, determine whether such
extension is appropriate and, if so, fix a new and superseding Milestone Date and also adjust
other subsequent Milestone Dates, along with any other terms or conditions, or it may, in its sole
discretion, elect to terminate this Agreement, in which case the City will have no obligation to
reimburse or pay the Developer hereunder.
3.5. Prevailing Wage Rates; Competitive Bidding. The Developer understands that
the City is obligated to follow certain laws with respect to the expenditure of public funds, which
includes Tax Increment. The Developer agrees to comply with laws that govern City contracting
obligations, including public procurement laws relating to all of the Infrastructure Improvements,
such as, without limitation, laws and rules regarding prevailing wage and solicitation of work on
a competitive basis.
Without limitation of the foregoing, the Developer agrees that in the awarding of
contracts for the Infrastructure Improvements (i) it will,and it will cause its contractor to,
publicly bid competitively contracts for each component of the Infrastructure Improvements, and
(ii)through its contract with its contractor, it will, in addition to the requirements of Sections 3.9
and 3.10,require its contractor to,pay the Prevailing Wage Rates on such contracts related to the
Infrastructure Improvements. The Developer will provide to the City all documentation
requested to verify the compliance of the Developer and its contractor with the foregoing
requirements. Failure of the Developer or its contractor to bid competitively contracts for each
component of the Infrastructure Improvements or to require contracts entered into directly with
contractors or sub-contractors to include provisions requiring the contractor or sub-contractor to
pay the Prevailing Wage Rates on the work related to the Infrastructure Improvements will be
considered a breach of this Agreement and the City will be entitled, at its discretion and without
obligation,to exercise any and all measures to assure compliance and retroactive compensation
plus interest to workers not paid in accordance with this Agreement, and recovery of any penalty
or fine assessed by the State attributed to any failure to pay the Prevailing Wage Rates.
Additionally,the Developer acknowledges that a violation of these requirements may, in the
City's sole discretion, cause the Infrastructure Improvements to be ineligible for the application
of Tax Increment, in which case the City will have no obligation to reimburse or pay the
Developer hereunder.
3.6. Utilities. The Developer shall not interfere with, or construct any improvements
over, any public street or utility easement without the prior written approval of the City. All
connections to public utility lines and facilities shall be subject to approval of the City and any
private utility company involved. The Developer at its own expense shall replace any public
facilities or utilities damaged during the Project by the Developer or its agents or by others acting
on behalf of or under their direction or control of the Developer.
9
3.7. Permits and Compliance With Laws. The Developer will obtain, in a timely
manner, all required permits, licenses and approvals, and will meet all requirements of all local,
state and federal laws, rules and regulations which must be obtained or met in connection with
the acquisition and construction of the Project, including the Infrastructure Improvements.
Without limiting the foregoing, the Developer will request and seek to obtain from the City or
other appropriate governmental authority all necessary land use, zoning, and building permits.
The Developer will comply in all material respects with all Environmental Laws and Regulations
applicable to the construction, acquisition, and operation of the Project, including the
Infrastructure Improvements, will obtain any and all necessary environmental reviews, licenses
or clearances under, and will comply in all material respects with, Environmental Laws and
Regulations. In addition, the Developer shall comply fully with all applicable state and federal
laws, regulations, and municipal ordinances related to worker safety including but not limited to
the Occupational Safety and Health Act(OSHA), the safety rules, codes, and provisions of the
Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State
building and electrical codes, and the Americans with Disabilities Act.
3.8. Easements. To the extent that the Infrastructure Improvements are to be located
on the Land, the Developer hereby agrees to grant to the City and applicable utility companies
from time to time such easements, rights-of-way and similar licenses in a form required by the
City and as are reasonably necessary to permit the City to own, operate and maintain the
Infrastructure Improvements.
3.9. Non-Discrimination Statement. The Developer agrees to require its contractor(s)
to be in compliance with the City's Statement of Non-Discrimination attached hereto as Exhibit
F, as well as Title 49, Montana Code Annotated, regarding activities related to the Project,
including the Infrastructure Improvements. The Developer agrees that in its contracts with its
contractors the Developer's contractor will be required to require its subcontractors to comply
with the City's Statement of Non-Discrimination attached hereto as Exhibit F, as well as Title
49, Montana Code Annotated,regarding activities related to the Project. The Developer agrees to
provide copies of all such contracts upon request by the City.
3.10. Worker's Compensation Insurance. The Developer shall provide in its
construction contracts related to the Project with all of its respective contractors that such
contractors are to be covered by a Worker's Compensation insurance program with the State, a
private insurance carrier, or an approved self-insurance plan in accordance with State law.
3.11. Cooperation with City and DOR. The Developer agrees to provide to the City
and, as requested, the DOR information that may be required by the City and/or the DOR to
determine, or make reasonable projections regarding,the amount and timing of receipt of Tax
Increment resulting from the Project. Such information may include, but is not limited to timing
of construction and estimated completion dates of all or portions of the Project, costs of
construction, materials used in construction, uses of the Project or any portion thereof,
allocations of uses to spaces and square feet of spaces included in the Project, and any other
information that may be relevant. The Developer understands and agrees that the City will rely
on such information from the Developer in making determinations regarding the amount of Tax
Increment resulting from the Project that may be available and the timing of the availability of
Tax Increment resulting from the Project, and that such information may be a critical factor in
10
the City's determination regarding whether to issue and the sizing and other features of the
Bonds.
3.12. Project Fees and Charges. The Developer reasonably expects that it will
capitalize the Project Fees and Charges (other than Costs of Issuance, if any) into the costs of the
Project, and treat such fees and charges as capital expenditures.
3.13. Walkaway Provision. The Developer shall have the option, in its sole discretion
and for any reason, to cease developing the Project and terminate this Agreement without penalty
at any time prior to the Developer submitting any request for reimbursement or payment to the
City ("walkaway provision"). If the Developer exercises this walkaway provision,this
Agreement shall immediately terminate and all rights and obligations of the Parties under this
Agreement shall cease, except for those rights and obligations specifically identified in this
Agreement as surviving termination. If the Developer exercises this walkaway provision, the
Developer automatically waives any and all rights to reimbursement or payment from the City
under this Agreement. This walkaway provision shall not limit or prohibit any other rights,
claims, or recourse outside of this Agreement that the City may have in connection with the
Project.
Section 4. City Undertakings. Subject to satisfaction of all conditions in Section 5
below, and solely from Tax Increment on hand or proceeds of the Bonds,the City agrees to
reimburse the Developer for, or, as applicable,pay the Eligible Costs in an amount not to exceed
$2,129,215.68. Subject to the terms and conditions of the Original Resolution, the City may
issue the Bonds, in its sole discretion,to pay all or a portion of the Eligible Costs,to fund a
deposit to a debt service reserve account, if necessary or appropriate, and to pay Costs of
Issuance. The Bonds, if authorized and issued, will have such terns and conditions as are
approved by the City Commission. This Agreement does not require or imply that the City has
any obligation to issue the Bonds.
Section 5. Payment of Reimbursement Amount for the Eligible Costs. Payment of
the amount of reimbursement described in Section 4 by the City to the Developer for Eligible
Costs paid by the Developer shall be subject to the following conditions and in accordance with
the following procedures:
5.1. Conditions to Payment or Reimbursement.
(a) (i) The Developer must have completed or satisfied each of the Milestones by the
applicable Milestone Date, as such date may have been extended by the City Commission
pursuant to Section 3.4 hereof, (ii)the City must have issued a certificate of occupancy for the
Project, (iii) the Infrastructure Improvements must have been completed in their entirety and the
City must have delivered to the Developer written acceptance of the Infrastructure Improvements
(which may be in the form of a Certificate of Completion or such other format as required by the
City), and (iv)the Developer must demonstrate to the City's satisfaction, by a title report or other
means acceptable to the City, that the Infrastructure Improvements are free of financial liens and
any encumbrances affecting the Infrastructure Improvements must be acceptable to the City.
11
(b) Reimbursement by the City for costs of the Infrastructure Improvements must be
based on paid invoices for costs incurred by the Developer, its contractors and subcontractors or
utility companies, which the Developer must supply to the City. The City may reject, in its sole
discretion, any invoice related to the Infrastructure Improvements. The City will notify the
Developer of any rejected invoice and the reason it was rejected.
(c) The Parties agree that the City will have no obligation to pay or reimburse any of
the Eligible Costs unless at the time of such request (i) all of the Developer's representations as
set forth in Section 2.2 are true and correct, (ii)the Developer is not in breach of any covenant or
undertaking as set forth in Section 3, and (iii) unless and to the extent the City issues the Bonds,
there shall be adequate Tax Increment on hand to pay the amount of the reimbursement or cost or
expense and satisfy all other financial obligations related to the District.
(d) If some or all of the Eligible Costs are to be paid with the proceeds of the Bonds,
the City shall have determined, in its sole discretion, but with the cooperation of the Developer,
that the Tax Increment is sufficient to satisfy the conditions to the issuance of the Bonds set forth
in the Original Resolution, pay the debt service on the Bonds as and when due, and, as
applicable,to satisfy other requirements under the Original Resolution and/or the Bond
Resolution, such as funding a deposit to a debt service reserve account, meeting applicable debt
service coverage requirements, and paying Costs of Issuance, and to satisfy all other financial
obligations related to the District. The Developer understands and agrees the City shall have no
obligation to and may not issue the Bonds if the City is unable to find and determine that the
conditions set forth in the Original Resolution are met and that Tax Increment is and will be
sufficient to pay the Bonds timely,to satisfy the requirements of the Original Resolution and/or
Bond Resolution, and to satisfy all other financial obligations related to the District.
If any of the above conditions are not satisfied in the determination of the City, the City
shall have no obligation to pay or reimburse any of the Eligible Costs and the City's
determination to refrain from paying or reimbursing, or its inability to pay or reimburse, any of
the Eligible Costs shall not be or result in a default of this Agreement.
5.2. Process for Payment or Reimbursement.
(a) By the date that is 90 days before the date the Developer estimates the Project will
be first placed in service, the Developer shall notify the City in writing of the components of the
Project remaining to be completed before it expects the City will issue the certificate of
occupancy for the Project. The Developer shall provide a further update to the City when it
reasonably expects that the Project will be placed in service in roughly 30 days.
(b) After receiving a certificate of occupancy for the Project,the Developer shall
provide to the City a signed Developer Certificate substantially in a form attached as Exhibit E
hereto and acceptable to the City, accompanied by the invoices and lien waivers from the
contractors or subcontractors performing or that have performed the work to be reimbursed. In
addition,the Developer agrees to provide to the City any additional information requested by the
City for the City to determine whether the Developer's request for reimbursement complies with
this Agreement.
12
(c) By the date that is five months after the submission by the Developer of a
complete and acceptable request for reimbursement, as determined by the City, the City, subject
to the terms and conditions of this Agreement, shall reimburse to the Developer such Eligible
Costs, in an amount not to exceed $2,129,215.68, either directly from Tax Increment or from
proceeds of Tax Increment Bonds; provided, however, if the City shall earlier determine that the
Tax Increment is not sufficient to reimburse the Developer for the Eligible Costs it has paid,
either because there is insufficient Tax Increment then available or the City determines there is
insufficient Tax Increment to permit the issuance of Bonds, then the City shall so inform the
Developer in writing and this Agreement shall thereupon terminate and neither Party will have
any further rights or obligations hereunder, except as set forth in those provisions that expressly
survive termination of this Agreement.
Section 6. Sources of Repayment; Covenants to Pay Taxes.
6.1. Taxes. The Developer shall pay or cause to be paid when due and prior to the
imposition of penalty all Taxes and all installments of any special assessments payable with
respect to the Land and the Project and any improvements thereto or extension thereof.
6.2. Maintenance of Land and Protect. The Developer agrees to use its commercially
reasonable best efforts to maintain and operate the Land and the Project so as to be able at all
times to pay promptly and when due all property taxes levied with respect to the Land and the
Project.
6.3. Injunction; Specific Performance. The Parties agree that, in the event of a breach
of this Section 6 by the Developer or its successors or assigns,the City would suffer irreparable
harm. Therefore, in the event the Developer or its successors or assigns fails to comply with the
provisions of this Section 6,the Developer agrees that the City may pursue any remedy at law or
in equity, including, without limitation,the remedies of injunction and specific performance.
Section 7. Indemnification and Insurance.
7.1. Indemnification. The Developer releases the City and all City Commission
members, board members, officers, agents, servants and employees of the City (the
"Indemnified Parties") from, and covenants and agrees that the Indemnified Parties shall not be
liable for, and agrees to indemnify, defend and hold harmless the Indemnified Parties against,
any loss, damage, cost(including reasonable attorneys' fees), claim, demand, suit, action or other
proceeding whatsoever(i) arising or purportedly arising out of, or resulting or purportedly
resulting from, the acquisition and construction of the Project, including the Infrastructure
Improvements, any violation by the Developer of any agreement, condition or covenant of this
Agreement, the ownership, maintenance and operation of the Project, or the presence on any
portion of the Land, of any dangerous,toxic or hazardous pollutants, contaminants, chemicals,
waste, materials or substances; or(ii) which is proximately caused by the Developer or its
officers, agents, contractors, consultants or employees.
7.2. Insurance. Developer shall keep and maintain the Project at all times insured
against such risks and in such amounts, with such deductible provisions, as are customary in
connection with facilities of the type and size comparable to the Project, and the Developer shall
13
carry and maintain, or cause to be carried and maintained, and pay or cause to be paid timely the
premiums for direct damage insurance covering all risks of loss, including, but not limited to,the
following:
1. fire
2. extended coverage perils
3. vandalism and malicious mischief
4. boiler explosion(but only if steam boilers are present)
5. collapse
on a replacement cost basis in an amount equivalent to the Full Insurable Value thereof. "Full
Insurable Value" shall include the actual replacement cost of the Project, exclusive of
foundations and footings, without deduction for architectural, engineering, legal or
administrative fees or for depreciation. The policies required by this Section 7.2 shall be subject
to a no coinsurance clause or contain an agreed amount clause, and must contain a deductibility
provision not exceeding $100,000.
Subject to the terms of any mortgage relating to the Project,policies of insurance
required by this Section 7.2 shall insure and be payable to Developer, and shall provide for
release of insurance proceeds to Developer for restoration of loss. The City shall be furnished
certificates showing the existence of such insurance. In case of loss, Developer is hereby
authorized to adjust the loss and execute proof thereof in the name of all parties in interest.
During construction of the Project, any and all of the foregoing insurance policies may be
maintained by the Developer's contractor; provided that once the Project is placed into service,
Developer shall maintain all of the foregoing insurance policies. In addition, as a condition to
placing the Project in service, the City may require that the Developer or owner of the Project
obtain additional insurance that would protect the City or the City's interest in the Infrastructure
Improvements.
In addition to and independent of the above,the Developer shall at the Developer's
expense secure liability insurance through an insurance company or companies duly licensed and
authorized to conduct insurance business in Montana. The insurance shall not contain any
exclusion for liabilities specifically assumed by the Developer in this Section. The insurance
shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be
asserted or claimed against,recovered from, or suffered by the City in relation to construction of
the Project and the Infrastructure Improvements without limit and without regard to the cause
therefore. The Developer must furnish to the City an accompanying certificate of insurance and
accompanying endorsements in amounts not less than as follows:
Commercial General Liability- $1,000,000 per occurrence; $2,000,000 annual
aggregate
The above amounts shall be exclusive of defense costs. The City, its officers, agents, and
employees, shall be endorsed as an additional or named insured on a primary non-contributory
basis on the Commercial General Liability policy. The insurance and required endorsements
must be in a form suitable to City and shall include no less than a thirty (30) day notice of
14
cancellation or non-renewal. The City must approve all insurance coverage and endorsements
prior to the Developer commencing work on Project or Infrastructure Improvements. Developer
must notify the City within two (2) business days of Developer's receipt of notice that any
required insurance coverage will be terminated or Developer's decision to terminate any required
insurance coverage for any reason.
Section 8. General Provisions.
8.1. Conflicts of Interest• City s Representatives Not Individually Liable. The
Developer represents that it does not employ,retain, or contract with an officer or employee of
the City and that no member, officer or employee of the City has a personal or financial interest,
direct or indirect, in this Agreement or in the Project, or a financial interest in the Infrastructure
Improvements. No member, officer or employee of the City shall be personally liable to
Developer in the event of any default under or breach of this Agreement by the City, or for any
amount that may become due to Developer for any obligation issued under or arising from the
terms of this Agreement.
8.2. Rights Cumulative. The rights and remedies of the Parties of this Agreement,
whether provided by law or by this Agreement, shall be cumulative, and the exercise by any
Party hereto of any one or more of such remedies shall not preclude the exercise by such Party,
at the same or different times, of any other remedy for the same default or breach or of any of its
remedies for any other default or breach of the Party subject to the limitation of remedies
provided herein. No waiver made by such Party with respect to the performance or the manner
or time thereof, of any obligation under this Agreement, shall be considered a waiver with
respect to the particular obligation of the other Party or a condition to its own obligation beyond
those expressly waived in writing and to the extent thereof, or a waiver in any respect in regard
to any other rights of the Party making the waiver of any obligations of the other Party. Delay by
a Party hereto instituting or prosecuting any cause of action or claim hereunder shall not be
deemed a waiver of any rights hereunder.
8.3. Term of Agreement. This Agreement shall remain in effect until the date that it
terminates or is terminated by the City, as follows:
(a) If payment or reimbursement of Eligible Costs is made directly from Tax
Increment and not proceeds of Bonds, this Agreement will terminate on the date that is 10 days
after the date the City makes the final payment or reimbursement of Eligible Costs to the
Developer hereunder.
(b) If the City issues Bonds, this Agreement will remain in effect until the final
maturity or payment date of the Bonds or such earlier date that the Bonds are prepaid in full,
discharged, and no longer outstanding.
(c) This Agreement may be terminated by the City in its sole discretion on a date
earlier than described in(a) or (b) above at any time after failure by the Developer to complete or
satisfy a Milestone by the applicable Milestone Payment Date.
15
(d) If the City has determined Tax Increment is insufficient under Section 5.2(c)
above, this Agreement shall terminate in the manner and on the date described in Section 5.2(c)
above.
(e) Notwithstanding the foregoing provisions of this Section 8.3, Sections 6, 7, and 8
of this Agreement shall in all events survive the termination of this Agreement.
8.4. Limitation on City Liability. No agreements or provisions contained in this
Agreement nor any agreement, covenant or undertaking by the City contained in any document
in connection with the Project, including the Infrastructure Improvements, or the Eligible Costs
shall give rise to any pecuniary liability of the City or a charge against its general credit or taxing
powers, or shall obligate the City financially in any way except with respect to then-available
Tax Increment. No failure of the City to comply with any term, condition, covenant or
agreement herein shall subject the City to liability for any claim for damages, costs or other
financial or pecuniary charge except to the extent that the same can be paid or recovered from
then-available Tax Increment; and no execution on any claim, demand, cause of action or
judgment shall be levied upon or collected from the general credit, general funds or taxing
powers of the City (except as such constitute then-available Tax Increment). Nothing herein
shall preclude a proper party in interest from seeking and obtaining specific performance against
the City for any failure to comply with any term, condition, covenant or agreement herein;
provided that no costs, expenses or other monetary relief shall be recoverable from the City
except as may be payable from the Tax Increment. This Agreement shall not constitute or be
construed to give rise to a debt of the City.
8.5. Assignment. This Agreement is unique between the City and Developer and no
Party may assign any rights or privileges, or delegate any duties or obligations under this
Agreement, without first obtaining the written consent of the other Party; provided that:
(i)the Developer may assign this Agreement to an entity in which [Bangtail
Partners, LLC], as presently constituted, owns a majority of the membership interests
without the written consent of the City if prior to the assignment, the Developer has
provided notice to the City of such assignment and evidence satisfactory to the City that
[Bangtail Partners, LLC], as presently constituted, owns a majority of the membership
interests of the proposed assignee, and
(ii)the Developer may assign this Agreement to an unrelated third party with the
City's prior written consent, which shall not be unreasonably withheld so long as the
Developer provides evidence satisfactory to the City that the proposed assignee is at least
as financially solvent as the Developer and has the financial capability or commitments to
complete the Project.
8.6. Successors Bound By Agreement;No Third Party Beneficiary;No Property
Interest. Subject to compliance with Section 8.5, this Agreement will inure to the benefit of and
be binding upon the Parties to this Agreement and their respective successors in interest and
permitted assignees. This Agreement is for the exclusive benefit of the Parties, does not
constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third
16
party. This Agreement, by itself, does not create or give rise to a property interest in the Land or
the Project.
8.7. Prior Agreements. This Agreement supersedes, merges and voids any and all
prior discussions, negotiations, agreements and undertakings between the Parties with respect to
the subject matter of this Agreement. The Parties waive and release each other from any claims,
actions, or causes of action that relate in any manner to any prior discussions, negotiations,
agreements and undertakings between the Parties with respect to the subject matter of this
Agreement.
8.8. Entire Agreement. This Agreement, including any exhibits and attachments
hereto, embodies the entire agreement and understanding of the Parties with respect to its subject
matter. The Developer and the City previously entered into a Memorandum of Understanding
with respect to the Project, dated as of June 5, 2018 (the "MOU"), in which the City and the
Developer stated their shared intention to enter into a definitive development agreement defining
the obligations of the Developer and the City in connection with the Project. This Agreement
constitutes the development agreement referenced in the MOU, and expressly supersedes and
replaces the MOU. As of the effective date of this Agreement,the MOU shall be of no further
force or effect. All Parties shall be prohibited from offering into evidence in any arbitration or
civil action any terms, conditions, understandings, warranties, statements or representations,
whether oral or written, with respect to the subject matter of this Agreement and that are not
contained in this Agreement.
8.9. Amendments, Changes and Modifications. This Agreement may be amended and
any of its terms may be modified only by written amendment authorized and signed by the
Parties hereto.
8.10. Headings. The headings of articles and sections in this Agreement are inserted for
convenience of reference only and do not limit or amplify the terms and provisions of the
Agreement in any manner. The headings will be ignored and will not affect the construction of
any provisions of this Agreement.
8.11. Notice. Any formal notice, demand or communication required or permitted by
the terms of this Agreement to be given to the City or Developer will be in writing and will be
delivered to such Party either: (i) by personal hand-delivery; or (ii) by depositing the same in the
United States mail, certified mail with return receipt requested, addressed to such Party at the
address named below, with postage prepaid thereon. Notice will be deemed complete upon
receipt of the notice pursuant to any of the foregoing methods of notice.
If to City:
City of Bozeman
Attention: Bozeman City Manager
121 N. Rouse Ave.
P.O. Box 1230
Bozeman, MT 59771
17
With a copy to:
City of Bozeman
Attention: Urban Renewal Program Manager
If to Developer:
Bangtail Partners, LLC
PO Box 10195
Palo Alto CA 94303
With a copy to:
Holly March Summers
517 S. 22"d Ave, Suite 1
Bozeman, MT 59718
The City and the Developer, by notice given hereunder, may designate different addresses to
which subsequent notices, certificates or other communications should be sent.
8.12. Severability. If any provision of this Agreement is declared void or held invalid,
such provision will be deemed severed from this Agreement and the remaining provisions of this
Agreement will otherwise remain in full force and effect.
8.13. Duplicate Originals or Counterparts. This Agreement may be executed in two or
more counterparts, each of which will be deemed to be an original copy of this Agreement and
all of which, when taken together, will be deemed to constitute one and the same agreement.
8.14. Place of Performance. The place of performance of this Agreement will be in the
City of Bozeman, Gallatin County, Montana.
8.15. Governing Law. This agreement and the legal relations between the Parties
hereto will be governed by and construed in accordance with the laws of the State of Montana,
without giving effect to any choice of law statutes, rules, or principles.
8.16. Dispute Resolution.
(a) Any claim, controversy, or dispute between the Parties, their agents, employees, or
representatives shall be resolved first by negotiation between senior-level personnel from each
Party duly authorized to execute settlement agreements. Upon mutual agreement of the Parties,
the Parties may invite an independent, disinterested mediator acceptable to the Parties to assist in
the negotiated settlement discussions.
(b) If the Parties are unable to resolve the dispute within thirty(30) days from the date
the dispute was first raised,then such dispute may only be resolved in a court of competent
jurisdiction in compliance with the applicable law and the provisions of this Agreement.
18
8.17. Further Assurances and Corrective Instruments. The Parties agree that they will,
from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, such supplements hereto and such further instruments as may reasonably be required
for correcting any inadequate or incorrect description of the Project, including the Infrastructure
Improvements, or the Eligible Costs or for carrying out the expressed intention of this
Agreement.
8.18. Repol-ts/Accountability/Public Information. Developer agrees to develop and/or
provide documentation as requested by the City demonstrating the Developer's compliance with
the requirements of this Agreement. Developer shall allow the City, its auditors, and other
persons authorized by the City to inspect and copy its books and records for the purpose of
verifying that the reimbursement of monies distributed to Developer pursuant to this Agreement
was used in compliance with this Agreement and all applicable provisions of federal, state, and
local law. The Developer shall not issue any statements, releases or information for public
dissemination regarding this Agreement or the work contemplated hereunder without prior
written approval of the City.
[Balance of page intentionally left blank]
19
IN WITNESS WHEREOF,the Parties hereto have caused this Development Agreement
to be executed as of the 22 day of April, 2019.
CITY OF BOZEMAN, MONTANA
By:
Printed Name: AS&6-at-u-rraft
Title: City Manager
[Signature Page to Development Agreement]
20
BANGTAIL PARTNERS, LLC
B n'
Y
Name: or C9r�jur y ,�• NJ, c
Title: jvj 19
[Signature Page to Development Agreement]
21
EXHIBIT A
PROJECT AND PROJECT COSTS
SUMMARY DESCRIPTION OF PROJECT:
The project is to construct roughly 125,000 SF of space on a 90,000 SF site to accommodate 92
residential units, 30,000 SF of commercial space, a 96 unit below grade parking structure, public
plaza space and other associated landscape and site amenities. The project requires the
reconstruction and new construction of offsite infrastructure that includes the following.
EAST ASPEN STREET
The entire right-of-way adjacent to the property is currently undeveloped. The proposal is to construct a
roadway,with sidewalk and other street improvements along the north and south side of the right-of-way.In
addition to the parking garage entry, the street will accommodate several parallel parking spaces, and a
loading zone. These improvements will also include underground public utilities such as new sewer water
and storm drain lines.
EAST COTTONWOOD STREET
The Northern half of the right-of-way adjacent to the project site will be improved. The intention is for the
proposed improvements to match the character of recent improvements directly across the street - with
sidewalk,street trees,and diagonal parking.This improvements will also include upgrades to existing public
water,sewer and storm drain facilities.
NORTH IDA AVENUE
The right-of-way adjacent to the project site will be improved with sidewalk,street trees,curb,and parallel
parking.Improvements will continue East across the Ida right-of-way up to,but not including,the opposite
curb.
FRONT STREET PARKING IMPROVEMENTS
A parking lot will be constructed in the Front street right of way along the East side of the current boulder
park to provide parking for the park.
CITY INFRASTRUCTURE IMPACT FEES
The project requires funds for the various impact fees the City levies for infi•astructure needs and is
included as part of the overall Infrastructure project costs.
A-1
PROJECT COSTS:
Cottonwood &Ida Project
Development Budget Summary
Amount %of Total Project Cost
Site Acquistion $ 2,385106 6.44%
Hard Costs
Vertical Construction $ 25,310,436
Offsite Construction $ 965,807
Onsite Construction $ 1,723,757
Contingency $ 1,400,000
Total Hard Costs $ 29,400,000 79.40%
Soft Costs
A&E $ 2,226,098
Financial $ 913,877
Fees $ 872,000
Pre-Opening Marketing& Leasing $ 70,000
FFE $ 70,000
Other Third Party Fees $ 564,000
Other Costs $ 277,098
Soft Cost Contingency $ 249,654
Total Soft Costs ! $ 5,242,727 14.16%
Total Project Costs $ 37,027,833 100.00%
TotalProject Costs........................................................................................ 37.027.833
2
EXHIBIT B
LEGAL DESCRIPTION OF THE LAND
Parcel A: Lots 5 through 16, inclusive, all in Block 105 of The Northern Pacific Addition to The
City of Bozeman, Gallatin County, Montana. Together with the vacated alley, adjacent and
contiguous thereto,pursuant to Ordinance No 628, recorded July 29, 1991 in Film 117, page
1328„according to the official plat thereof on file and of record in the office of the County Clerk
and Recorder of Gallatin County, Montana. [Plat No. C-23]
Parcel B: Lots 17 through 28, inclusive, all in Block 105 of The Northern Pacific Addition to the
City of Bozeman, Gallatin County, Montana. Together with the vacated alley adjacent and
contiguous thereto,pursuant to Ordinance No. 628, recorded July 29, 1991 in Film 117,page
1328, according to the official plat thereof on file and of record in the office of the County Clerk
and Recorder of Gallatin County, Montana.
B-1
EXHIBIT C
ELIGIBLE COSTS
Summary Description of the Infrastructure Improvements:
Improvements to East Cottonwood Street, including replacing water
and sewer mains, new diagonal parking on the north side of
Cottonwood Street,new concrete sidewalk, gravel base and asphalt
paving patch for new water and sewer mains
$544,842.12
Improvements to Ida Avenue, including new 31-foot asphalt street
section with 1 %2-inch base course gravel and curb and cutter, new
sidewalk on west side
279,987.35
Improvements to East Aspen Street, including new water, sewer and
storm drain mains; new water, sewer and fire service lines; new
manholes; new sidewalks on the north and south sides; new 35-foot
asphalt street section with 1 1/2-inch base course gravel and curb and
gutter
590,950.05
Improvements for Front Street parking, including new 31-foot asphalt
parking section with 1 1/2-inch base course gravel and curb and gutter
191,316.16
Total Costs of Infrastructure Improvements
$ 1,607,095.68
Summary Description of the Project Fees and Charges:
Transportation Impact Fees $ 420,395
Water Impact Fees 73,459
Fire Impact Fees 28,266
Total Project Fees and Charges $ 522,120
Total Eligible Costs $2,129,215.68
C-1
EXHIBIT D
MILESTONES
MILESTONE MILESTONE DATE
Approval by City of Site Plan December 1, 2019
Approval by City of Infrastructure March 1, 2020
Plans
Building Permit Issued May 1, 2020
Infrastructure Complete February 1, 2021
Issuance of Certificate of July 1, 2022
Occupancy
D-1
EXHIBIT E
FORM OF DEVELOPER CERTIFICATE
TO: City of Bozeman, Montana
FROM: Bangtail Partners, LLC (the "Developer")
SUBJECT: Reimbursement for Eligible Costs
This Developer Certificate requests $ for reimbursement of Eligible Costs, as
defined in the Development Agreement between the Developer and the City of Bozeman,
Montana, dated as of , 2019 (the "Development Agreement"). Capitalized
terms used but not otherwise defined herein shall have the respective meanings given such terms
in the Development Agreement.
Pursuant to Section 5.2(b) of the Development Agreement,the undersigned hereby
certifies on behalf of the Developer that:
(a) the expenditures for which reimbursement is requested are listed in
summary form in the attached schedule headed"Project Expenditures;"
(b) invoices paid by the Developer corresponding to the expenditures set forth
on the attached Project Expenditures Schedule are appended to the attached schedule
headed"Project Invoices;"
(c) the amounts for which reimbursement is requested have been paid by the
Developer to the [City] for Project Fees and Charges or to contractors, subcontractors,
materialmen, engineers, architects or other persons who or that have performed necessary
or appropriate services or supplied necessary or appropriate materials for the acquisition,
construction, renovation, equipping, and installation of the Infrastructure Improvements;
(d) with respect to the Infrastructure Improvements, the contractor and
subcontractors were solicited and retained competitively and all persons performing work
on the Infrastructure Improvements were paid the Montana prevailing wage for such
work;
(e) no part of the several amounts requested to be paid, as stated in such
certificate, has been or is the basis for the payment of any money in any previous request;
(f) the reimbursement of the amounts requested will not result in a breach of
any of the covenants of the Developer contained in the Development Agreement; and
(g) no litigation has been instituted or is threatened with regard to any
amounts sought to be reimbursed, and binding and enforceable lien waivers have been
obtained fiom all contractors, subcontractors,materialmen, and others with regard to all
work related to any amounts for which reimbursement is requested.
E-1
The Developer represents that all of the representations of the Developer in Section 2.2 of
the Development Agreement are true and correct as of the date hereof and the Developer is not in
default of the performance of any of its undertakings or obligations under Section 3 of the
Development Agreement as of the date hereof.
Dated: , 20 Bangtail Partners, LLC
By:
Authorized Developer Representative
E-2
EXHIBIT F
CITY'S STATEMENT OF NON-DISCRIMINATION
Statement of Non-Discrimination
(name of entity submitting) hereby affirms it will
not discriminate on the basis of race, color,religion, creed, sex, age,marital status,national
origin, or because of actual or perceived sexual orientation, gender identity or disability and
acknowledges and understands the eventual contract will contain a provision prohibiting
discrimination as described above and this prohibition on discrimination shall apply to the hiring
and treatrAnts or propos is mployees and to all subcontracts.
Name and title of person authorized tg sign on behalf of submitter
1
F-1