HomeMy WebLinkAbout20- Improvements Agreement - Nelson Meadows Subdvision J-680
Send Original to:
City of Bozeman
Department of Community Development PLA f TED
P.O.Box 1230
Bozeman,MT 59771 2704918
Page: 1 of 8 10/19/2020 09:35:33 AM Fee: $56.00
Eric Semerad - Gallatin County MT IMP
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IMPROVEMENTS AGREEMENT FOR
NELSON MEADOWS SUBDIVISION
(LOT FRONTAGE SIDEWALKS)
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THIS AGREEMENT is made and entered into this 25 'day of �►,0 020,
by and between BarTimCo Properties, 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. 19-523,to obtain approval to file a final plat for a subdivision known as
Nelson Meadows Major Subdivision (18458), a subdivision on 69.26 acres that would create 27
lot industrial subdivision with two(2)stormwater tracts,open space,one lift station lot,and rights-
of-way on two existing parcels; and
WHEREAS, the Subdivider desires to obtain final plat approval for NELSON
MEADOWS 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.
Nelson Meadows Subdivision—Improvements Agreement Pagel of 8
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
TRACT I OF COS 1372B LOCATED IN SECTION 22,TOWNSHIP ONE (TIS) SOUTH,
RANGE FIVE(R5E)EAST,P.M.M.,CITY OF BOZEMAN, GALLATIN COUNTY,
MONTANA,
AND
TRACT 1DC OF COS 1372 LOCATED IN SECTION 22,TOWNSHIP ONE(TIS) SOUTH,
RANGE FIVE(R5E)EAST, P.M.M., CITY OF BOZEMAN, GALLATIN COUNTY,
MONTANA,
AND
THE NORTHEAST QUARTER OF THE NORTHEAST QUARTER(NE'/4NE'/,) AND THE
EAST HALF OF THE EAST HALF OF THE WEST HALF OF THE NORTHEAST
QUARTER(E'/,E'hW'/,NE'/4) OF SECTION TWENTY SEVEN (27), TOWNSHIP ONE(T1S)
SOUTH,RANGE FIVE(R5E)EAST,P.M.M., CITY OF BOZEMAN, GALLATIN COUNTY,
MONTANA.
2. Improvements
This Agreement specifically includes the following required improvements for the Nelson
Meadows Major Subdivision(the"Subdivision"): lot frontage sidewalk improvements (the above
are referred to as the"Improvements").
The estimated cost of the Improvements has been estimated by the Subdivider's agent,
Morrison-Maierle Belgrade, P.O. Box 1113, Bozeman, MT 59771, at Two Hundred Forty Six
Thousand Three Hundred Thirty and Zero Cents ($246,330.00). 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
Nelson Meadows Subdivision:—Improvements Agreement Page 2 of 8
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
irrevocable standby letters of credit: Letter of Credit No. 3609200008673 for an amount not to
exceed $369,495.00 (First Security Bank, Division of Glacier Bank, Bozeman Downtown FSB
Branch, 208 East Main Street, P.O. Box 910, Bozeman, MT 59715) acceptable to the City of
Bozeman, which is one hundred and fifty (150) percent of the Estimated Cost of said
improvements.
The Subdivider hereby agrees that the following subdivision related improvements shall
be installed and completed no later than two(2)years of the filing of the final subdivision plat for
the Nelson Meadows Major Subdivision: lot frontage sidewalks improvements in order to avoid
default on the method of security.
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 Nelson Meadows Major Subdivision.
Upon submission of fully documented invoices for the work perfoi-tned, 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 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 BarTimCo
Properties, LLC, 701 Gold Avenue, Bozeman, T 59715 or such other address as the Subdivider
Nelson Meadows Subdivision—Improvements Agreement Page 3 of 8
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.
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 indem nitee(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.
Nelson Meadows Sribdivision—Improvements Agreement Page 4 of 8
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 fi•aud, 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
Nelson Meadows Subdivision—Improvements Agreement Page 5 of 8
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. 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.
Nelson Meadons Subdivision—improvements Agreement Page 6 of 8
SUBDIVIDER
BY:
BARTIMCO, LLC
( n behaU ofi (Capacity)
STATE OF t )
:ss
County of liyl )
On this _"�_ day of Septe ber 4, 020, before me, a Notary Public of the State of
in personally appeared 644 j��COY' el;5 known to me to be the subdivider that
executed the foregoing Improvements greerne t, and acknowledged to me that (s)he executed
the foregoing instrument as of BarTimCO, LLC, and
acknowledged to me that (s)he executed t e same for and on behalf of BarTimCo,LLC.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal
the day and year first above written.
(SEAL) 0-6►reft�1 �Q✓
COREEN A GORE
(Printed Name Here)
EN A� Notary Public ,^n
V.•OLO1AR ;for the state of Montar : , Notary Public for the State of
*: *= Residing at: Residing at � Y��
%,N, SEAL." ` Livingston, Montana
.• Commisslon Expire:. My Commission Ex 'res: ,wKk ZUz
OF June 28,2021 (Use 4 digits for expiration year)
Nelson Meadows Subdivision—Imprm,ements Agreement Page 7 of 8
THE CITY OF BOZEMAN
N"gz---),/
BY: T MA N,
DIRECTOR OF COMMUNITY DEVELOPMENT
CITY OF BOZEMAN
STATE OF MONTANA )
:ss
County of Gallatin )
On this 19 day of 2020, 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.
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oliqnd NelON -631' ... 'o`'`�' Notary Public for the State of Montana
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My Commission Expires:
(Use 4 digits for expiration year)
Nelson Meadows Subdivision—Improvements Agreement Page 8 of 8