HomeMy WebLinkAbout19- Improvements Agreement - Gallatin TR, LP - Lot 11 Gallatin Center Minor Subdivision J-423B
Send Orij4inal to: P�EEb4
City of Bozeman
Department of Community Development
P.O.Box 1230
Bozeman,MT 59771
2666802
Page: 1 of 12 12/09/2019 11:19:49 AM Fee $84.00
Eric Semerad - Gallatin County, MT IMP
I IIIIIII IIIIII III IIIII IIII IIIIIII IIIIII IIII IIII IIIII IIIII IIIII IIIIIII III IIIII IIIII IIIII IIII IIII
IMPROVEMENTS AGREEMENT
FOR
LOT 11 GALLATIN CENTER MINOR SUBDIVISION
THIS AGREEMENT is made and entered into this a5"day of 20115 by
and between Gallatin TR, LP, 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. 17483, to obtain approval to file a final plat for a subdivision known as
Lot 11 Gallatin Center Minor Subdivision, a subdivision on 8.615 acres that would create two (2)
commercial lots; and
WHEREAS, the Subdivider desires to obtain final plat approval for the LOT 11
GALLATIN CENTER 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.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, it is hereby agreed as follows:
Lot 11 of Gallatin Center Minor Subdivision—Improvements Agreement Page 1 of 9
1. Property Description
This Agreement pertains to, and includes, those properties that are designated and
identified as being:
LEGAL DESCRIPTION
A tract of land being Lot 11 of the Final Plat of Phase 1 of the Gallatin Center Subdivision PUD
Phase 4 on record with the Gallatin County Clerk and Recorder located in the Northeast One-
Quarter of Section 35,Township 1 South, Range 5 East,Principal Meridian Montana,City of
Bozeman, Gallatin County, Montana,being more particularly described as follows:
Beginning at the north corner of said Lot 11, an Engineering Inc yellow plastic cap;
thence S00°03'31"E a distance of 157.53' to an Engineering Inc yellow plastic cap;
thence N 89°59'54"E a distance of 226.67' to a 5/8"rebar;
thence S 00°21'02"W a distance of 386.15' to an Allied aluminum cap;
thence S 89°38'35" W a distance of 150.58' to a 5/8"rebar;
thence 48.88' along a curve concave to the north with a radius of 255.00', a delta angle of
10°58'58",a chord bearing of N 84°42'08"W and a chord length of 48.80' to an Allied
aluminum cap;
thence N 79°17'01"W a distance of 178.05' to an Allied aluminum cap;
thence 66.29' along a curve concave to the south with a radius of 345.00', a delta angle of
11'00'34",a chord bearing of N 84°50'33"W and a chord length of 66.19' to an Allied
aluminum cap;
thence S 89°42'06"W a distance of 352.77' to an Allied aluminum cap;
thence N 00°00'26"W a distance of 502.80' to an Allied aluminum cap;
thence N 89°59'31"E a distance of 568.41' to the point of beginning,containing 8.615 acres,
more or less.
2. Improvements
This Agreement specifically includes the following required improvements for Lot 11
Gallatin Center Minor Subdivision (the"Subdivision"): Lighting on north side of Cattail between
Max Ave (roundabout excluded) and South 19`h Ave(referred to as the"Improvements").
The estimated cost of the Improvements plus the cost of District Creation has been
estimated by the Subdivider's agent, Madison Engineering LLC, 895 Technology Blvd, Ste 203,
Bozeman, MT 59718, at Thirty Six Thousand Six Hundred Forty Two and Fifty Eight Cents
($36,642.58). The estimate is attached and hereby made a part of this Agreement,as Exhibit"A".
Lot 11 of Gallatin Center Minor Subdivision—Improvements Agreement Page 2 of 9
I
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 eleven (11) 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�10►�IY'1
o., in the amount of$54, 963.87.
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.
i
D. Subdivider acknowledges the Financial Security lapses on N'o� 3W),and is subject to
automatic renewal in one year increments but in no case is the Financial Security valid
beyond P 1u lAt afj ` � Subdivider also acknowledges the issuer of the
Financial Sec •ity 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.
Lot 11 of Gallatin Center Minor Subdivision—Improvements Agreement Page 3 of 9
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.
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 Gallatin TR, LP
2501 Josey Lane Suite 120 Carrollton, Texas, 75006 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
Lot 11 of Gallatin Center Minor Subdivision—Improvements Agreement Page 4 of 9
I
i
completion of all Improvements, such funds shall be promptly returned to the
Subdivider.
i
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
Lot 11 of Gallatin:Center Minor Subdivision—Improvements Agreement Page 5 of 9
Agreement except "responsibility for his own fraud, for willful injury to the person or property
of another,or for violation of law,whether willful or negligent"as per 28-2-702,MCA.
These obligations shall survive termination of this Agreement and the services performed
hereunder.
7. Attorney Fees
In the event it becomes necessary for either party to this Agreement to retain an attorney
to enforce any of the terms or conditions of this Agreement, then the prevailing party shall be
entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house
counsel including City Attorney.
8. Warranty
The Subdivider shall warrant against defects of all Improvements and that these
Improvements are made in a good and workman-like manner for a period of two (2) years from
the date of their written acceptance by the City.
9. Governing Law
This Agreement shall be construed according to the laws of the State of Montana. In the
event of litigation concerning this Agreement, venue is in the Eighteenth Judicial District Court,
Gallatin County, State of Montana.
10. Modification or Alterations
No modifications or amendment of this Agreement shall be valid, unless evidenced by a
writing signed by the parties hereto.
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 Assi nment
It is expressly agreed that the Subdivider shall not assign this Agreement in whole, or in
part,without prior written consent to City.
Lot 11 of Gallatin Center Minor Subdivision—Improvements Agreement Page 6 of 9
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. Filin
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.
Lot 11 of Gallatin Center Minor Subdivision—Improvements Agreement Page 7 of 9
SUBDIVIDER
BY:,� �L ?—
Gallatin TR, L
TITLE: //`e v
STATE OF
:SS
County of )
fOn this 30 day of a( 201 before me, a Notary Public of the State of
J eKs,- ,personally appeared f , known to me to be the subdivider that
executed the foregoing Improvemen s�Aeemetht, and acknowledged to me that (s)he executed
the foregoing instrument as 4,,�,_� of Gallatin TR, L.P., and
acknowledged to me that(s)he executed the same for and on behalf of Lot 11 Gallatin Center Lot
Minor Subdivision.
IN WITNESS WHEREOF, I have hereunto set m\andaffixed my Notarial Seal
the day and year first above written.
�i7���' (Printed Name Here) �'
`��tiPPY Pie,% DARRELL A. BLANK Notary Public for the State off
_2°? nsNotary Public,State of Texas T I
�,LrAL9�F,i-es i i•1(]- 02 Residing at 21'/5� /j( Josue /� rtiul` �K
;,,; Notary IG i3oui9932 ?S��s
My Commission Expires:
(Use 4 digits for expiration year)
Lot 11 of Gallatin Center Minor Subdivision—Improvements Agreement Page 8 of 9
i
THE CITY OF BOZEMAN
B : MARTIN TSEN,
DIRECTOR OF COMMUNITY DEVELOPMENT
CITY OF BOZEMAN
STATE OF MONTANA )
:ss
County of Gallatin )
20 , before me, a Notary Public for the State
On this day of_IW EMWDtX ff Y
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.
(Printed Name Here)
Notary Public for the State of
(SEAL) Residing at aTA la+ n
My Commission Expires:
(Use 4 digits for expiration year)
RHEA J ,�'\PKE
Notard F!ibhc
oIAai,I -fc-t.ha s_,t : ct r.^nntana
( an an, f,�1ontana
9 S� N%iy Comrriss;on Expires:
�OF WD' February 01, 2021
Lot 11 of Gallatin Center Minor Subdivision—Improvements Agreement Page 9 of 9
Improvements Agreement
Lot 11 — Gallatin Center
"Exhibit A"
Lot 11 Gallatin Center Minor Subdivision
Cost Estimate & Bonding Summary
*Lighting*
Cost per Light Number of Lights Total Cost Bonding Cost
Lighting Cost: $ 6,934.34 5 $35,922.58 $53,883.87
Cost of Creation: $720.00 $1,080.00
150% Bonded Amount $54,963.87
CONSTRUCTION COST ESTIMATE for 5 Luminaitres Fronting Lots 11A & 11B 7/11/19
CATTAIL STREET LIGHTING
ITEM UNIT
NO. DESCRIPTION QUANTITY UNIT PRICE TOTAL COST
101 Structural Concrete Pole Foundations 3.1 CY $1,200.00 $3,720.00
102 Conduit, 2.0" PVC, Trench 645 LF $13.00 $8,385.00
103 Conduit, 2.0" PVC, Sleeve 0 LF $10.00 $0.00
104 Conduit, 2.0" PVC, Push 0 LF $25.00 $0.00
105 Pull Box, Composite Type 1 2 EA $515.00 $1,030.00
106 Pull Box, Composite Type 2 0 EA $575.00 $0.00
107 Conductor, Copper, #10 AWG, Lighting &Ground 2610 LF $0.75 $1,957.50
108 Light Std. 30' Mount- 15' Mast Arm (Type 10-A) 5 EA $2,500.00 $12,500.00
109 Luminaire, (Type 3S 72w LED) 5 EA $1,000.00 $5,000.00
110 20 Amp-Single Lighting - Power Supply 0.28 EA $3,500.00 $980.00
TOTAL ALL ABOVE ITEMS = $33,572.50
CONTINGENCY @ 7% $2,350.08
TOTAL CONSTRUCTION $35,922.58