HomeMy WebLinkAbout20- Improvements Agreement - Rosa Johnson Development, LLC - Boulder Creek Subdivision Phase 3 Park & Open Space Landscape Improvements J-663
Send Original to:
City of Bozeman
Department of Community Development
P.O. Box 1230 ,
Bozeman,MT 59771 PLATTED V
2673606
Page: 1 of 9 02/19/2020 04:36:56 PM Fee. $63.00
Eric Semerad - Gallatin County MT IMP
I I I I I I I I I I I I I III I I I 1111111111111111111111111111111111111111111111111111111111111 IN
IMPROVEMENTS AGREEMENT
FOR
BOULDER CREEK SUBDIVISION—PHASE 3
(PARK & OPEN SPACE LANDSCAPE IMPROVEMENTS)
THIS AGREEMENT is made and entered into this )3 day of a647 20 f 1, by
and between ROSA JOHNSON DEVELOPMENT, LLC, 2264 JACKRABBIT LANE UNIT B,
BOZEMAN MT 59718, hereinafter called the "Subdivider", and the CITY OF BOZEMAN, a
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, it is the intent and purpose of the Subdivider to meet the conditions of
preliminary plat approval, Planning Application No. P 14023, for the Final Plat application of
BOULDER CREEK SUBDIVISION-PHASE 3 (19233), to subdivide 14.6145 acres and create
twenty-one(21)residential lots,four(4)common open space lots,and the remaining areas as public
streets; and
WHEREAS, it is the intent and purpose of the Subdivider to obtain Final Plat approval for
BOULDER CREEK SUBDIVISION-PHASE 3; and
WHEREAS, the Final Plat for BOULDER CREEK SUBDIVISION-PHASE 3, is to be
filed prior to the installation of all required subdivision improvements and an improvements
agreement with financial security was provided; and
WHEREAS,it is the intent and purpose of both the Subdivider and the City to hereby enter
into an Agreement which will guarantee the full and satisfactory completion of the required
BOULDER CREEK SUBDIVISION—PHASE 3 Park&Open Space Landscape Improvements Agreement
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improvements related with the property hereinafter described; and it is the intent of this
Agreement, and of the parties hereto, to satisfy the improvements guarantee requirements for the
Final Plat approval of BOULDER CREEK SUBDIVISION-PHASE 3.
NOW,THEREFORE, in consideration of the mutual covenants and conditions contained
herein, it is hereby agreed as follows:
1. Prollerly Description
This Agreement pertains to, and includes, those properties that are designated and
identified as being:
LEGAL DESCRIPTION
LOT 1R-1, BOULDER CREEK SUBDIVISION—PHASE 1,
LOCATED IN THE S ``/z, SECTION 4, T2S, R5E, P.M.M.,
CITY OF BOZEMAN, GALLATIN COUNTY, MONTANA.
2. Improvements
This Agreement specifically includes the following improvements for BOULDER CREEK
SUBDIVISION-PHASE 3: Park and Open Space landscape improvements.
The Estimated Cost of said improvements was estimated by C&H Engineering and
Surveying, 1091 Stoneridge Drive, Bozeman MT 59718, with the estimated cost of
improvements being in total Sixty-Three Thousand, One Hundred Twelve Dollars and Sixty-
Nine Cents ($63,112.69). 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
It is the Subdivider's intent with this Agreement to file the Final Plat prior to completion
of all required subdivision improvements. Therefore, this Agreement shall be secured by an
irrevocable standby letter of credit: Letter of Credit No. 6(00 ` �10 in the
amount of$94,669.04 from J a acceptable to the City of
Bozeman,which is one hundred and fifty(150)percent of the Estimated Cost of said improvements
attributable to BOULDER CREEK SUBDIVISION - PHASE 3.
BOULDER CREEK SUBDIVISION—PBASE 3 Park&Open Space Landscape Improvements Agreement
Pap-e 2 of 7
The Subdivider hereby agrees that the following subdivision related improvements
shall be installed and completed not later than twelve (12) months of the filing of the final
subdivision plat for BOULDER CREEK SUBDIVISION-PHASE 3 in order to avoid
default on the method of security: park and open space landscape improvements.
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 BOULDER CREEK SUBDIVISION-PHASE 3.
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 of
Bozeman and or its agents as necessary, the City of Bozeman may release a portion of the letter of
credit for the work completed by the referenced invoices.
4. Inspection
Representatives of the City shall have the right to enter upon the property 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
property 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 thirty(30)days after written notice specifying
the default is deposited in the United States mail addressed to the Subdivider at ROSA JOHNSON
DEVELOPMENT, LLC, 2264 JACKRABBIT LANE, UNIT B, BOZEMAN MT 59718, 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 guarantee to be forfeited and secure
the complete construction and inspection of the improvements described herein.
The City's representative, contractors, and engineers shall have the right to enter
upon the property and perform such work and inspection, and the Developer shall
BOULDER CREEK SUBDIVISION—PHASE 3 Park&Open Space Landscape Improvements Agreement
Paee 3 of 7
permit and secure any additional permission required to enable them to do so. In
the event that any funds remain from the financial guarantee upon completion of
all improvements, such funds shall be promptly returned to the Subdivider.
B) The City may enforce any other remedy provided by law.
6. Indemnification
The Subdivider hereby expressly agrees to indemnify and hold the City harmless for and
against all claims, costs and liability of every kind and nature, for injury or damage received or
sustained by any person or entity in connection with, or on account of the performance of work at
the development site and elsewhere pursuant to this Agreement. Subdivider further agrees to aid
and defend the City in the event that it is named as a defendant in an action concerning the
performance of work pursuant to this Agreement except where such suit is brought by the
Subdivider. The Subdivider is not an agent or employee of the City.
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 governing body.
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
BOULDER CREEK SUBDIVISION—PHASE 3 Park&Open Space Landscape Improvements Agreement
Page 4 of 7
No modifications or amendment of this Agreement shall be valid, unless evidenced by a
writing signed by the parties hereto.
11. Invalid Provision
The invalidity or unenforceability of any provision of this Agreement shall not affect the
other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
12. No Assignment
It is expressly agreed that the Subdivider shall not assign this Agreement in whole, or in
part, without prior written consent to City.
13. Successors
Except as provided in paragraph twelve(12),this Agreement shall be binding upon, ensure
to the benefit of, and be enforceable by the parties hereto and their respective heirs, successors and
assigns.
14. FilinLy
The Subdivider shall have this Agreement recorded in the Office of the Gallatin County
Clerk and Recorder within 10 business days of the signature of the Community Development
Director.
BOULDER CREEK SUBDIVISION—PHASE 3 Park&Open Space Landscape Improvements Agreement
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SUBD IDER:
Rosa J son Development, LLC.,
A M n na Li •ted Liability Company
By: Jo I fin Rosa, Manager By: Scott' o kri,-Manager
i
STATE OF MONTANA )
):ss
County of Gallatin )
This instrument was signed or acknowledged before me on this l day of Ae -" - ,
20 , by John Rosa and Scott Johnson as Managers of Rosa-Johnson Development, LLC, a
Montana limited liability company.
Tl"'".,, SHELA TINJUM
.t.��..•N`!. Notary Public
%for the State of Montana
*; Residing at:
Notary Public for the tate of Mont* (SEAL) SEAL -Q=_ eozern9n, Montana
'�- � My Commission Expires:
Printed Name: �9 °F "�° August 03,2023
Residing at: /
My Commission Expires: (Use 4 digits for expiration year)
BOULDER CREEK SUBDIVISION—PHASES Park&Open Space Landscape Improvements Agreement
Page 6 of 7
THE CITY OF BOZEMAN
B artin sen,
Director of Community Development
City of Bozeman
STATE OF MONTANA )
):SS
County of Gallatin )
On this �°� day of QADO X v5 20 26 , before me, a Notary Public for the
State of Montana, personally appeared Martin Matsen, known to me to be the person 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 of Bozeman.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal on the day
and year first written above.
""'l SHANNON L KLOOSTERHOF
••`ON�KLOps �i
F9 Notary Public
UAW NOTnRrq�?o for the State of Montana
Residing at:
No ary Public for the State of Montana n j.SEAL.��;= Bozeman, Montana
Printed Name- S L_ k-1CCSNQ'< My Commission Expires:
•,.,,,,,,, March 17,2l)21
Residing at: 1&1f_ p,� MT
My Commission Expires: (Use 4 Digits for Expiration Year)
G:\C&H\I4\14624\Fina1 Plats\Phase 3 Final Plat\Improvements Agreements\Draft Documents\19233 Improvements Agreement-Park&Open
Space Landscaping(Draft).Docx
BOULDER CREEK SUBDIVISION—PHASE 3 Park&Open Space Landscape Improvements Agreement
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*003601200007126%1470%01062020%#######RCC1833%06*
IRREVOCABLE LETTER OF CREDIT
Borrower: ROSA-JOHNSON DEVELOPMENT, LLC Lender: First Security Bank, Division of Glacier Bank
2264 JACKRABBIT LN Bozeman Downtown FSB Branch
BOZEMAN, MT 59718-5521 208 E. Main St
PO BOX 910
Bozeman, MT 59715
Beneficiary: City of Bozeman
PO Box 1230
Bozeman, MT 59771
NO.: 3601200007126
EXPIRATION DATE. This letter of credit shall expire upon the earlier of the close of business on 07-06-2021 and all drafts and accompanying
statements or documents must be presented to Lender on or before that time, or the day that Lender honors a draw under which the full amount
of this Letter of Credit has been drawn (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 Ninety-four Thousand Six Hundred Ninety-nine & 00/100 Dollars ($94,699.00) (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 Beneficiary's 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 Security Bank, Division of Glacier Bank IRREVOCABLE LETTER OF
CREDIT NO. 3601200007126 DATED 01-06-2020," 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: (i) 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.
NON-SEVERABILITY. If any aspect of this Letter of Credit is ever declared unenforceable for any reason by any court or governmental 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 Montana 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, ICC Publication No.
600. This Agreement has been accepted by Lender in the State of Montana.
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.
IRREVOCABLE LETTER OF CREDIT
Loan No: 3601200007126 (Continued) Page 2
Dated:January 6, 2020
LENDER:
FIRST SECURITY BANK, DIVISION OF GLACIER BANK
By:
us rley,Corn r ial Lender
Le58 N,V—19.1.10.016 C.,Fm-,.USA C,,p.,.tion 1997,2020. All Rl,h I.Reserved. -MT C:1LPL0CALICR%PL\C43L0C.FC TR 80460 PR