HomeMy WebLinkAbout19- Improvements Agreement - Baxter Meadows Land Partners, LLC - Sundance Minor Subdivision Phase A and C - Lot Front Sidewalks I
MINOR 509
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City of Bozeman
Department of Community Development
P.O.Box 1230
Bozeman,MT 59771 PLATTED L
2670322
Page: 1 of 12 01/16/2020 08:44:19 AM Fee: $84.00
Eric Semerad - Gallatin County, MT IMP
11111111111 I I 11111111111111111111111111111111111111111111111111111 I I 11111111111111111111 IN
IMPROVEMENTS AGREEMENT
FOR SUNDANCE MINOR SUBDIVISION, PHASE A AND C
(LOT FRONT SIDEWALKS)
THIS AGREEMENT is made and entered into this I r/' day of December 2019, by
and between the Baxter Meadows Land Partners, LLC, hereinafter called the "Subdivider", and
the City of Bozeman, a self-governing municipal corporation and political subdivision of the State
of Montana, with offices at City Hall, 121 North Rouse Avenue, P.O. Box 1230, Bozeman, MT
59771-1230, hereinafter called the "City".
WHEREAS, the Subdivider desires to meet the conditions of preliminary plat approval,
Planning Application No. 19-307,to obtain approval to file a final plat for a subdivision known as
Sundance Minor Subdivision (P14052), a subdivision on 28.210 acres that would create five (5)
commercial lots with the remaining areas as public streets; and
WHEREAS,the Subdivider desires to obtain final plat approval for SUNDANCE MINOR
SUBDIVISION, PHASE A & C, 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.
Sundance Minor Subdivision,Phase A &C—Improvements Agreement Page I of 9
NOW,THEREFORE,in consideration of the mutual covenants and conditions contained
herein, it is hereby agreed as follows:
1. Property Description
This Agreement pertains to, and includes, those properties that are designated and
identified as being:
LEGAL DESCRIPTION
LOT R1 OF THE AMENDED PLAT OF BAXTER MEADOWS SUBDIVISION,
PHASE 213, AND LOT 1 OF MINOR SUBDIVISION NO 400 AS FILED IN BOOK J
ON PAGE 506A, LOCATED IN THE SOUTHEAST ONE-QUARTER(SE1/4) OF
SECTION 34, TOWNSHIP ONE SOUTH (TIS), RANGE FIVE EAST (R5E), P.M.M.,
CITY OF BOZEMAN, GALLATIN COUNTY, MONTANA.
2. Improvements
This Agreement specifically includes the following required improvements for the
Sundance Minor Subdivision (the "Subdivision"): Lot front sidewalks (the above are referred to
as the "Improvements").
The estimated cost of the Improvements has been estimated by the Subdivider's agent,
TD&H Engineering,Inc.,234 East Babcock Street, Suite 3,Bozeman,MT 59715,at One Hundred
Thirty Two Thousand three hundred Dollars and Zero Cents ($132,300.00). 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 36 months of the date of recording
of the final plat. hi 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
Sundance Minor Subdivision,Phase A&C—Improvements Agreement Page 2 of 9
this Agreement is specifically guaranteed and secured by an irrevocable standby letters of
credit: Letter of Credit No. 895 in the amount of$198,450.00 for a total amount not to
exceed$198,450.00 from First Interstate Bank,Boise Plaza 121,401 W Front Street,Boise,
ID 83702. This letters of credit constitute 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 36 months of the filing of the final plat for the Subdivision: sidewalks along all private
lots.
C. Subdivider acknowledges and agrees the Financial Security is specifically provided for the benefit
of the City to guarantee and secure completion of the Improvements within the timeframes
specified above and that the Financial Security may be drawn upon by the City without notice to
the Subdivider and used by the City for completion of the Improvements in its sole discretion but
only if the Subdivider fails to comply with the terms and conditions of this Agreement.
D. Subdivider acknowledges the Financial Security lapses on November 15,2022. Subdivider
also acknowledges the issuer of the Financial Security may give notice to the City of its
intent to not renew the Financial Security but must do so no less than thirty(30) days prior
to the expiration of the Financial Security or the Financial Security is extended for an
additional year. As a result of the above, the Subdivider agrees that if the issuer of the
Financial Security provides notice to the City of non-renewal of the Financial Security
prior to the completion of all of the Improvements such non-renewal may place the
Subdivider in breach of this Agreement. In such a case, the Subdivider must, within ten
(10) days of the Subdivider acquiring information of the issuer's intent not to renew the
Financial Security or the City's notice to the Subdivider that the City received a notice
from the issuer of the Financial Security that the issuer intends to not renew the Financial
Security, whichever is earlier, provide the City alternative financial security in a form
acceptable to the City. Subdivider agrees that failure to provide such alternative financial
security within 10 days of the City's notice or the Subdivider acquiring knowledge of the
issuer's non-renewal shall be deemed a material breach of this Agreement and the City
may,without any further notice to the Subdivider,draw upon the Financial Security for the
costs of any outstanding Improvements at 150% of the City's estimate cost of such
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Sundanee Mir:or Subdivision,Phase A& C—Improvements Agreement Page 3 of 9
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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 Baxter Meadows
Land Partners, LLC, 1356 North Chancy Lane, Midway, UT 84049 or such other address as the
Subdivider shall provide to the City from time to time, without being completely remedied,
satisfied, and discharged, the City may elect to enforce any of the following specified remedies:
A) The City may, at its option, declare the Financial Security to be forfeited, take
possession of funds secured by the Financial Security pursuant to any lawful means,
and secure the complete construction and inspection of the Improvements. The
City's representative, contractors, and engineers shall have the right to enter upon
the Subdivision and perform such work and inspection, and the Subdivider shall
permit and secure any additional permission required to enable them to do so. In
the event that any funds remain from the financial guarantee upon completion of
all Improvements, such funds shall be promptly returned to the Subdivider.
Sup:dance Alinor Subdivision,Phase A & C—Improvements Agreement Page 4 of 9
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.
I
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
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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
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another, or for violation of law,whether willful or negligent" as per 28-2-702, MCA.
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Sundance Minor Subdivision,P/tase A & C—Improvements Agreement Page 5 of 9
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.
Sundance Minor Subdivision,Pliase A& C—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.
Sundance Minor Subdivision,Phase A& C—Improvements Agreement Page 7 of 9
SUBDIVIDER
BY: 6mv�:Tl irzz Ai>riimr
BAXTER MEADOWS LAND PARTNERS, LLC
TITLE: MAr4Aef=P—
STATE OF
:SS
County of < 1Ak r- )
On this day of December 2019, before me, a Notary Public of the State of
( h!ktw , personally appeared C.5myf ?mA c jbz 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 M,,0bCIFa_ of Baxter Meadows Land Partners,
LLC, and acknowledged to me that(s)he executed the same for and on behalf of Baxter Meadows
Land Partners, LLC.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal
the day and year first above written.
(SEAL)
(Prin d N me Here)
RUSSELL B POULSEN Notar Public for the State of es.
Notary Public-State of Utah y
0 uov-�,)'R Comm.No.696172 Residing at Z�Q& E g2 a VT
My Commission Expires on
Aug 18,2021 My Commission Expires: AL* ($ 2Cfll
(Use 4 digits for expiration year) '
Sundance Minor Subdivision,Phase A& C—Improvements Agreement Page 8 of 9
THE CITY OF BOZEMAN
BY: NTAARTIN MAPTSEN,
DIRECTOR OF COMMUNITY DEVELOPMENT
CITY OF BOZEMAN
STATE OF MONTANA )
:ss
County of Gallatin )
On this 13 day of 73XUA%bEr 2019, 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)
KATHERINE MAINES Printed Name Here)
Fzz:;�
:��A'"�"'aye Notary Public No ublic for the State of Montana
�•poi q�.N_for the state of Montana
Residing at: Residing at
Belgrade Montana
:,�,• My Commission Expir
'9 oFMo�`P My commission Expires:
July 22,2020 (Use 4 digits for expiration year
Srnrdance Minor Subdivision,Phase A& C—Improvements Agreement Page 9 of 9
Sundance Minor Subdivision Improvements Agreement Estimate of Costs
Summary
item Description Amount Estimated Completion
1 Subdivision Sidewalks- Condtion 23 $ 132,300.00 Fall of 2021
2 Sundance Park Improvements $ 207,736.00 Summer 2020
3 Davis Street Frontage Landscape Imp. $ 56,147.00 Summer 2020
4 Phase A Recreation Pathway Improvements $ 153,920.00 Fall of 2021
5 Phase C Recreation Pathway Improvements $ 54,831.00 Fall of 2021
Total $ 604,934.00
150%of estimated costs $ 907,401.00
234 East Babcock Street TD&
1 EXHIBIT A
Suite 3 406.586.0277
Bozeman, MT 59715 Engineering y tdhengineering.com
October 10, 2019 `
City of Bozeman — Planning Department
20 E Olive Street
Bozeman, MT 59715
RE: SUNDANCE SUBDIVISION PH II - IMPROVEMENTS
AGREEMENT COST ESTIMATE
TD&H ENGINEERING JOB NO. B13-016
Improvements Agreement A — Sidewalk Improvements
Item Quantity Units Unit Price Amount
Sidewalk 18,900 SF $7.00 $ 132,300.00
Total $132,300.00 O
Notes: 160% $198,450.00
1. Sidewalk along rights-of way per item 23 of Findings of Fact and Order for
Sundance Subdivision Ph II Recommended Conditions of Approval.
MONTANA I WASHINGTON I IDAHO I NORTH DAKOTA I PENNSYLVANIA
IRREVOCABLE LETTER OF CREDIT
Borrower: Baxter Meadows Land Partners,LLC Lender: First Interstate Bank
2929 W Navigator Drive,Suite 400 Boise Plaza 121
Meridian,ID 83642 401 W Front St
Boise,ID 83702
Beneficiary: CITY OF BOZEMAN
121 N ROUSE AVE
BOZEMAN,MT 59715
NO.:895
EXPIRATION DATE. This letter of credit shall expire upon the close of business on 11-15-2022 and all drafts and accompanying statements or
documents must be presented to Lender on or before that time(the"Expiration Date").
AMOUNT OF CREDIT. Lender hereby establishes at the request and for the account of Borrower,an Irrevocable Letter of Credit in favor of
Beneficiary for a sum of One Hundred Ninety-eight Thousand Four Hundred Fifty 8 00/100 Dollars($198,450.00)(the"Letter of Credit").
These funds shall be made available to Beneficiary upon Lender's receipt from Beneficiary of sight drafts drawn on Lender at Lender's address
indicated above(or other such address that Lender may provide Beneficiary in writing)during regular business hours and accompanied by the
signed written statements or documents indicated below.
WARNING TO BENEFICIARY: PLEASE EXAMINE THIS LETTER OF CREDIT AT ONCE. IF YOU FEEL UNABLE TO MEET ANY OF ITS
REQUIREMENTS,EITHER SINGLY OR TOGETHER,YOU SHOULD CONTACT BORROWER IMMEDIATELY TO SEE IF THE LETTER OF CREDIT
CAN BE AMENDED. OTHERWISE,YOU WILL RISK LOSING PAYMENT UNDER THIS LETTER OF CREDIT FOR FAILURE TO COMPLY STRICTLY
WITH ITS TERMS AS WRITTEN.
DRAFT TERMS AND CONDITIONS. Lender shall honor drafts submitted by Beneficiary under the following terms and conditions:
Upon Lender's honor of such drafts,Lender shall be fully discharged of Lender's obligations under this Letter of Credit and shall not be obligated
to make any further payments under this Letter of Credit once the full amount of credit available under this Letter of Credit has been drawn.
Beneficiary shall have no recourse against'Lender for any amount paid under this Letter of Credit once Lender has honored any draft or other
document which complies strictly with this Letter of Credit,and which on its face appears otherwise in order but which is signed,issued,or
presented by a party or under the name of a party purporting to act for Beneficiary, purporting to claim through Beneficiary,or posing as
Beneficiary without Beneficiarys authorization. By paying an amount demanded in accordance with this Letter of Credit, Lender makes no
representation as to the correctness of the amount demanded and Lender shall not be liable to Beneficiary,or any other person,for any amount
paid or disbursed for any reason whatsoever,including,without limitation,any nonapplication or misapplication by Beneficiary of the proceeds of
such payment. By presenting upon Lender or a confirming bank, Beneficiary certifies that Beneficiary has not and will not present upon the
other,unless and until Beneficiary meets with dishonor. Beneficiary promises to return to Lender any funds received by Beneficiary in excess of
the Letter of Credit's maximum drawing amount.
USE RESTRICTIONS. All drafts must be marked"DRAWN UNDER First Interstate Bank IRREVOCABLE LETTER OF CREDIT NO.895 DATED
11-25-2019,"and the amount of each draft shall be marked on the draft. Only Beneficiary may complete a draft and accompanying statements
or documents required by this Letter of Credit and make a draw under this Letter of Credit. This original Letter of Credit must accompany any
draft drawn hereunder.
Partial draws are not permitted under this Letter of Credit.
PERMITTED TRANSFEREES. The right to draw under this Letter of Credit shall be nontransferable,except for:
A. A transfer(in its entirety, but not in part)by direct operation of law to the administrator,executor, bankruptcy trustee, receiver,
liquidator,successor,or other representative at law of the original Beneficiary;and
B. The first immediate transfer(in its entirety, but not in part)by such legal representative to a third party after express approval of a
governmental body(judicial,administrative,or executive).
TRANSFEREES REQUIRED DOCUMENTS. When the presenter is a permitted transferee(i)by operation of law or(ii)a third party receiving
transfer from a legal representative,as described above,the documents required for a draw shall include a certified copy of the one or more
documents which show the presenter's authority to claim through or to act with authority for the original Beneficiary.
COMPLIANCE BURDEN. Lender Is not responsible for any impossibility or other difficulty in achieving strict compliance with the requirements of
this Letter of Credit precisely as written. Beneficiary understands and acknowledges: (1)that unless and until the present wording of this Letter
of Credit is amended with Lender's prior written consent,the burden of complying strictly with such wording remains solely upon Beneficiary,
and(ii)that Lender is relying upon the lack of such amendment as constituting Beneficiary's initial and continued approval of such wording.
NONSEVERABILITY. If any aspect of this Letter of Credit is ever declared unenforceable for any reason by any court or govemmental body
having jurisdiction, Lender's entire engagement under this Letter of Credit shall be deemed null and void ab initio, and both Lender and
Beneficiary shall be restored to the position each would have occupied with all rights available as though this Letter of Credit had never
occurred. This non-severability provision shall override all other provisions in this Letter of Credit, no matter where such provision appears
within this Letter of Credit.
GOVERNING LAW. This Agreement will be governed by federal law applicable to Lender and,to the extent not preempted by federal law,the
laws of the State of Idaho without regard to Its conflicts of law provisions,and except to the extent such laws are inconsistent with the 2007
Revision of the Uniform Customs and Practice for Documentary Credits of the International Chamber of Commerce,[CC Publication No.600.
This Agreement has been accepted by Lender In the State of Idaho.
EXPIRATION. Lender hereby agrees with Beneficiary that drafts drawn under and in compliance with the terms of this Letter of Credit will be
duly honored if presented to Lender on or before the Expiration Date unless otherwise provided for above.
Dated:November 25,2019
LENDER:
FIRST INTERST T A
By:
-bZ1ak1rRItff.e,Commer4dRelaflonshlp Manager