HomeMy WebLinkAbout20- Improvements Agreement - Delesalle Projects (Montana), Inc. - 623 North Montana Avenue Subdivision Water and Sewer Services to Lot 1A C-41P
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City off Bozeman
Department of Community Development Page: 1 or 9 09/11/2020 01:00:54 PM Fee $63 00
P.O.Box 1230 Eric Semerad - Gallatin County, MTIMP
Bozeman,MTT 59771 11111111111111111 IN 1111111111111 IN 11111111111111111111111111 III 111111111111111111111
IMPROVEMENTS AGREEMENT
FOR �I
THE 623 NORTH MONTANA AVENUE SUBDIVISION EXEMPTION
(WATER AND SEWER SERVICES TO LOT IA)
THIS AGREEMENT is made and entered into this 2-11d day of ��(��V�fT , 2020, I�
by and between Delesalle Projects (Montana), Inc., 400-1788 West 5' Avenue, Vancouver, BC,
V6J 1P2 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 subdivision exemption
approval, Planning Application No. 20101, to obtain approval to file the amended plat known as
623 N.Montana Ave. (20101),a common boundary relocation on 0.227 acres that would rearrange
existing lot lines to create two (2) residential lots; and
WHEREAS, the Subdivider desires to obtain approval for 623 N. Montana Ave
Subdivision Exemption, 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:
623 N.Montana Avenue Subdivision Exemption 20101—Improvements Agreement Page 1 of 8
1. Property Description
This Agreement pertains to, and includes, those properties that are designated and
identified as being:
LEGAL DESCRIPTION
AMENDED PLAT IMES ADDITION TO BOZEMAN BEING LOTS 1, 2, & 3 OF
BLOCK 44 OF IMES ADDITION TO BOZEMAN LOCATED IN THE SW 1/4 OF
SECTION 6,T2S, R5E, P.M.M., CITY OF BOZEMAN, GALLATIN COUNTY,
MONTANA.
2. Improvements
This Agreement specifically includes the following required improvements for the 623 N.
Montana Ave. Subdivision Exemption (the "Subdivision"): water and sewer service line
extensions to Lot IA (the above are referred to as the "Improvements").
The estimated cost of the Improvements has been estimated by the Subdivider' s agent,
Hyalite Engineers, PLLC, 2304 N. 7ch Ave, Suite L, at seven thousand five hundred dollars
($7,500.00) 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 within two (2)
years of the date of recording of the 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 letter of credit. This letter of credit constitutes the "Financial Security."
B. 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
623 N.Montana Avenue Subdivision Exemption 20101—Improvements Agreement Page 2 of 8
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.
C. Subdivider acknowledges the Financial Security lapses on v and is
subject to automatic renewal in one year increments but in no case i the Financial Security
valid beyond kl Q Subdivider also acknowledges the issuer of the Financial
Security may give otice 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 Improvements regardless of the costs estimates included
in Exhibit A and regardless of whether the timeframe for completion of such improvements
has passed.
D. 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.
E. 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
623 N. Montana Avenue Subdivision Exemption 20101—Improvements Agreement Page 3 of 8
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
'I
the default is deposited in the United States mail addressed to the Subdivider at Delesalle Projects
Montana, Inc., 400-1788 West 5�h Avenue, Vancouver, BC, VO 1P2 or such other address as the
I
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 b the Financial Security pursuant to an lawful means
P Y Yp Y
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.
B) The City may enforce any other remedy provided by law.
i
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6. Indemnification
I
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
623 N.Montana Avenue Subdivision Exemption 20101—Improvements Agreement Page 4 of 8
consultants), losses, expenses, liabilities (including liability where activity is inherently or
intrinsically dangerous) or damages of whatever kind or nature connected therewith and without
limit and without regard to the cause or causes thereof or the negligence of any party or parties
that may be asserted against, recovered from or suffered by the City occasioned by, growing or
arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional
misconduct of the Subdivider in regards to the Subdivision; (ii) any negligent, reckless, or
intentional misconduct of any of the Subdivider' s agents in regards to the Subdivision. Such
obligations shall not be construed to negate, abridge, or reduce other rights or obligations of
indemnity that would otherwise exist. The indemnification obligations of this Section must not be
construed to negate, abridge, or reduce any common-law or statutory rights of the indemnitee(s)
which would otherwise exist as to such indemnitee(s). Subdivider's indemnity under this Section
shall be without regard to and without any right to contribution from any insurance maintained by
City. Should any indemnitee described herein be required to bring an action against the Subdivider
to assert its right to defense or indemnification under this Agreement or under the Subdivider's
applicable insurance policies required below the indemnitee shall be entitled to recover reasonable
costs and attorney fees incurred in asserting its right to indemnification or defense but only if a
court of competent jurisdiction determines the Subdivider was obligated to defend the claim(s) or
was obligated to indemnify the indemnitee for a claim(s) or any portion(s)thereof.
In the event of an action filed against City or any of the indemnitee(s) resulting from the
City's performance under this Agreement, the City or an indemnitee may elect to represent itself
and incur all costs and expenses of suit.
Subdivider also waives any and all claims and recourse against the City or its officers,
agents or employees, including the right of contribution for loss or damage to person or property
arising from, growing out of, or in any way connected with or incident to the performance of this
Agreement except"responsibility for his own fraud, for willful injury to the person or property of
another, or for violation of law, whether willful or negligent" as per 28-2-702, MCA.
These obligations shall survive termination of this Agreement and the services performed
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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.
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623 N. dlontana Avenue Subdivision Exemption 20101—Improvements Agreement Page 5 of 8 �
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.
u
13. Successors
II
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. Filing
623 N. Montana Avenue Subdivision Exemption 20101—Improvements Agreement Page 6 of 8
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.
SUBDIVIDER
BY:,
DELESALLE PROJECTS (MONTANA), INC.
TITLE:
leav►tJGC Br-►I IS (0LOME14
STATE al*
C►�_/ Of 1/0lvl('0AVe :ss
att"'.' e )
PYO✓�hf�of
On this 1_''` day of 44 Vls State 2020, before me, a Notary Public of the ��e 4-
6Y N'�S�t cot% b 1&**-- , personally appeared ' q I ( � M(S 14,, known to me to be the subdivider that
executed the foregoing Improvements Agree r e t and acknowledged to me that (s)he executed
the foregoing instrument as F[(5IACI of DELESALLE PROJECTS
(MONTANA), INC., and acknowledged to me that (s)he executed the same for and on behalf of
'Fit, f7akes at Valley West, ma_ +w T T OCIC-Sa►IIC, p(OSeas H6+hr) Ih(.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal
the day and year first above written.
AA)Aj
(Printed NNime Here) PypU1nCG'�1Sv��tsl� �Ol�r►+biti
Notary Public for the State-4
Residing at VAAt0WVV_
My Commission Expires: 00TA h C 1 I /
(Use 4 digits for expiration year)
PIP 'N NEIL R. DAVIE*
BARRISTER & SOLICITOR
NORTON ROSE FULBRIGHT CANADALLP
SUITE 1800-510 WEST GEORGIA STRMT
VANCOUVER, B.C. V6B OM3
(604)641-4930
623 N.Montana Avenue Subdivision E.ven*i�hWiPMMFLAA$� ovements Agreement Page 7 of 8
THE CITY OF BOZEMAN
BY. A T MATSEN,
DIRECTOR OF COMMUNITY DEVELOPMENT
CITY OF BOZEMAN
STATE OF MONTANA )
:ss
County of Gallatin )
On this I 0� day of f( 2020, before me, a Notary Public for the State
of Montana, personally appeared Ma in 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.
" ( p�RJQN L KLOQSTERHOF
al Ki OGSr''. ``fi�dd
otary Public
for the State of Montana
Residing at: (Printed Name Here)
sozeman, Montana
9 •, fir'; My commission E"ir�:�: Notary Public for the State of Montana
''•,,�M°,, March 17,2021 Residing at �t�p , mmu M�T
My Commission Expires:
(Use 4 digits for expiration year)
623 N. Hontana Avenue Subdivision Exemption 20101—Improvements Agreement Page 8 of 8
LExhibit A
ITEM QUANITY UNIT COST
1"WATER SERVICE(INCL TAP, FTG'S,STOPS,
BOX,CONNECT INTO HOUSE, ETC.) 1.0 LS $ 1,500.00
4" SEWER SERVICE(INCL TAP, FTG'S,
CLEANOUTS,CONNECT INTO HOUSE, ETC.) 1.0 LS $ 1,500.00
ASPHALT&CONCRETE PATCH/REPAIR 1.0 LS $ 2,000.00
TOTAL WATER&SEWER COST $ 5,000.00
Estimate Total = $5,000.00
Guaranteed Amount (1 .5x) = $7,500.00