HomeMy WebLinkAbout3.5_Concurrent Construction_Payment Agreement_2020.02.14
Agreement for Infrastructure Improvements for N 25th Avenue from Oak Street to Tschache Lane Page 1 of 25
EXECUTION FINAL
February 14, 2020
Agreement for Infrastructure Improvements
North 25th Avenue from Oak Street to Tschache Lane
THIS AGREEMENT is made and entered into this day of , 2019, between CROW RIVER MANAGEMENT, LLC and SILVER CREEK VENTURES, LLC, 18th Street South, Suite 103, St. Cloud, MN 56301, hereinafter collectively referred to as
“Developer”, and the CITY OF BOZEMAN, a self-governing municipal corporation organized
and existing under its Charter and the laws of the State of Montana, City Hall, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City.”
RECITALS
WHEREAS, the Developer desires, at its expense, to complete certain public
transportation system improvements to benefit its development referred to as Silver Creek
Apartments and to satisfy certain conditions precedent to occupancy approval of Silver Creek
Apartments Site Plan Application Number 18408 (the “Development”) and to address possible
requirements for an adjacent development referred to as the Palisade Apartments, a development
project to be constructed by Land Link, LLC and Chris Fortin (Site Plan Application Number
18446); and
WHEREAS, the owner of Palisades Apartments and the Developer may agree in a separate
agreement to share costs of the Project not related to this Agreement and the City’s share of the
costs of improvements to North 25th Avenue, which are subject to this Agreement; and
WHEREAS, the City desires to authorize and allow the Developer to construct additional
public transportation and infrastructure system improvements concurrently with Developer’s
required improvements, said additional improvements to be paid for by the City’s General Fund
as approved for FY2020 that the City, as owner of Rose Park, the property on the east side of North
25th Avenue, will make available to Developer to assist Developer in paying a portion of the total
costs of the improvements; and
WHEREAS, the improvements include the installation, and construction of Breeze Lane between North 25th Avenue and North 27th Avenue and also North 25th Avenue from Oak Street
to Tschache Lane including for both segments a standard City local street section, sidewalks,
boulevards, street lights, storm water facilities, approaches, and other related street improvements; and
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WHEREAS, the City has included the City’s share of the costs of the improvements for North 25th Avenue in the City’s General Fund budget; and
WHEREAS, the City and the Developer desire to set forth the terms of their Agreement in writing; and
NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto
agree as follows:
1. PURPOSE OF AGREEMENT. The purpose of this Agreement is to establish the
rights and duties of the City and the Developer regarding improvements to public
infrastructure described below (the “Project”) and the rights and duties of the City
and Developer regarding the City’s payment of a portion of the Project related to
North 25th Avenue. For the portion of the Project related to North 25th Avenue this
Agreement requires the Developer to pay the costs of construction at the time the
Project is constructed, and the City to reimburse the Developer for the City’s share
of the cost of the improvements to North 25th Avenue as described in this
Agreement.
a. The Project/Timeframe for Completion: The improvements to be made include
construction of Breeze Lane and associated required infrastructure and for the
construction of North 25th from Oak Street to Tschache Lane to consist of
construction to the City’s local street standards, sidewalks, curbing, street lights,
storm water facilities, approaches, and associated street improvements
(collectively, the “Project”) as shown on the Breeze Lane and North 25th Avenue
Improvement Plan attached hereto as Exhibit 1. Prior to construction and any
payment by the City, Developer must submit to the City Engineering Division a
final set of Plans and Specifications for the Project and receive approval of the Plans
and Specifications from the City Engineering Division. No occupancy of any
structure to be built on those portions of the Development will be authorized until
the City Engineering Division, in its sole discretion, performs a final inspection,
receives final certification by the Developer’s engineer, and approves and accepts
the final Project per the process defined in the City of Bozeman Design Standards
and Specifications Policy. The Project must be completed prior to June 1, 2020,
subject to force majeure.
2. COMPLIANCE WITH PUBLIC PROCUREMENT STATUTES /
STANDARDS / DISCRIMINATION. The Developer must comply with all
Montana statutory requirements for the procurement of construction services for
the Project including, but not limited to, requirements of Title 7, chapter 5, part 43,
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MCA and Title 18, MCA including but not limited, city standards for design and
construction, competitive bidding, and contract requirements for payment and
performance bonds, prevailing wages and non-discrimination provision as required
by Bozeman City Commission Resolution 4250, attached as Exhibit 2.
3. COST OF IMPROVEMENTS FOR NORTH 25TH AVENUE.
a. The Developer’s estimate of the cost of the Project related only to North 25th
Avenue is $ 702,232(“Estimated Project Costs for N25”). An itemization of
Estimated Project Costs for N25 provided by the Developer is attached as Exhibit
3. Payment by the City will not be based on Estimated Project Costs for N25; rather,
payment by the City, in amounts as further described herein, will be based on the
actual costs of construction of the Project for N25 as determined by invoices for
material and labor and other evidence (“Actual Project Costs for N25”).
b. For purposes of this Agreement, to establish an understanding between the parties
of each party’s Estimated Project Costs for N25 prior to construction and prior to a
determination of Actual Project Costs for N25, the City and the Developer agree to
allocate the Estimated Project Costs for N25 as follows:
Responsible
Party Source Estimated Project
Cost Allocation Project Cost
Percentage
City of
Bozeman
General Fund $330,000 46.9%
Developer Developer’s Funds $ 53.1%
Totals: $702,232 100.0%
4. PAYMENT OF COSTS RELATED TO NORTH 25TH AVENUE.
The Actual Project Costs for N25 may be less than or more than Estimated Project
Costs for N25. As such, the Developer and the City agree:
a. The Actual Project Costs for N25 will be allocated as follows: per Exhibit 3 as
summarized in Section 3.b adjusted at the end of the project to reflect Actual Project
Costs for N25. No more than $330,000 of Actual Project Costs for N25 are
allocated to and must be paid by the City. The remainder of Actual Project Costs
for N25 shall be allocated to and must be paid by the Developer; notwithstanding
any other provision of this Agreement, the City will pay no more than $330,000 in
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Actual Project Costs for N25 should the Actual Project Costs for N25 exceed the
allocation of Estimated Project Costs for N25 between the parties as shown in
Section 3.b.
b. If the Actual Project Costs for N25, as finally determined by the City based on
invoices and other evidence and accepted by the City, are less than the Estimated
Project Costs for N25, the City and the Developer will share the savings pro rata to
their relative cost percentages as shown in Section 3.b.
5. CITY APPROVAL OF DESIGN AND CONSTRUCTION DOCUMENTS /
COSTS. Prior to commencing construction of any portion of the Project and prior
to the City making any payments to the Developer for the City’s share of the
improvements to N25, the City must approve the design and construction
documents for the Project. In addition, the Developer must provide the City
complete record drawings showing all installed infrastructure for the Project.
The City will reimburse Developer for the City’s portion of the Actual Project Costs
for N25 only after construction of North 25th has been completed, and the
improvements to North 25th have been accepted by the City, and Actual Project
Costs (including evidence of those costs) is provided to the City. As such:
a. The City may inspect the Project at reasonable times and the Developer must not
interfere with such inspections.
b. The City will only accept the construction of the improvements upon receipt by the
City of (a) certification by the Developer’s licensed professional engineer that the
Project is complete in accordance with the Approved Plans, and (b) evidence of the
Actual Project Costs for N25 have been delivered to and accepted by the City.
c. The City will pay the Developer, by single check, the City’s portion of the Actual
Project Costs for N25 no later than thirty (30) days following the City’s
determination the requirements of this Agreement are satisfied.
6. DEDICATION OF IMPROVEMENTS/WARRANTY. Upon acceptance by the
City of improvements completed under this Agreement, the Developer must require
its contractor to provide the City a warranty on all improvements as required by
38.270.100, BMC, and section C.9 of the City of Bozeman Plans and Specifications
Review Policy.
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7. SUBCONTRACTORS. By appropriate written agreement, the Developer must
require each Subcontractor, to the extent of the work to be performed by a
subcontractor, to be bound by terms of this Agreement.
8. PERFORMANCE AND PAYMENT BONDS. The Developer must require its
contractor to provide performance, maintenance, and payment bonds to it for
completion of the Improvements meeting all statutory requirements of the State of
Montana, in form and substance and, without limitation, complying with the
following specific requirements:
a. Require the contractor to faithfully perform all of the provisions of the contract
between the Developer and the contractor.
b. Require the contractor to pay all laborers, mechanics, subcontractors, and material
suppliers.
c. Require the contractor to pay all persons who supply the contractor with provisions,
provender, material, or supplies for performing the work.
d. Except as otherwise required by Montana law, the form and substance of such
bond(s) must be satisfactory to the Developer and the City.
e. Bond(s) shall be executed by a responsible surety licensed in Montana and listed in
the latest U.S. Dept. of Treasury Circular #570, with a Best’s rating of no less than
A/XII. Said bonds shall remain in effect through the warranty period for all
Improvements, and until all of the contractor’s obligations to the Developer are
fulfilled.
f. The Performance Bond and the Labor and Material Payment Bond shall be in an
amount equal to or exceeding one hundred percent (100%) of the contract amount
entered into between the Developer and its contractor.
g. The Developer shall require the attorney-in-fact who executes the required bond(s)
on behalf of the surety to affix thereto a certified and current copy of his or her
power of attorney indicating the monetary limit of such power.
h. Every Bond under this section must display the Surety’s Bond Number. A rider
including the following provision shall be attached to each Bond: Surety agrees that
it is obligated under the bond(s) to any successor, grantee or assignee of the
Developer and the City.
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i. The City and the Developer must be named as obligees on the bonds.
j. The Developer must require its contractor to deliver the required bonds to it and the
City prior to the commencement of any work on the Improvements.
k. Prior to acceptance of the Project improvements, the Developer’s contractor must
post a Maintenance Bond with the City equal to 20% of the actual cost of the
improvements for the City to correct any deficiencies in workmanship and/or
materials which are found within the two-year warranty period. The City Bozeman
shall be named as an obligee on the bond.
9. INDEMNIFICATION/INSURANCE.
a. The Developer agrees to require in any contract it enters into in fulfillment of its
obligations under this Agreement that it will, to the fullest extent permitted by
law, require its contractors to agree in such contracts that the contractor does
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 contractor; (ii) any negligent, reckless, or intentional
misconduct of any of the contractor’s agents including its subcontractors.
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). The indemnity under this Section the Developer
must require of its contractor 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
Developer’s contractors or engineers to assert its right to defense or
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indemnification under this Agreement or under the Developer’s contractor’s or
engineer’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 Developer’s contractor(s) or engineer(s) 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 resulting from the City’s performance
under this Agreement, the City may elect to represent itself and incur all costs
and expenses of suit.
The Developer must also require its contractors and subcontractors and engineers
to waive 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 Improvements 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.
Notwithstanding any terms, provisions or conditions contained in this Section or
in this Agreement specifying, or that may be interpreted, to the contrary, the
Developer has no obligation or duty to indemnify the City in relation to this
Agreement, and, thus, is providing no indemnity to the City. Furthermore, the
City expressly acknowledges the Developer will not indemnify the City and the
Developer has no obligation or duty to indemnify the City in relation to this
Agreement.
The obligations contained in this subsection 14(a) shall survive termination of
this Agreement.
b. In addition to and independent from the above, the Developer shall require its
contractor(s) and engineer(s) at the contractor(s)’s and engineer(s)’s expense, to
secure insurance coverage through an insurance company or companies duly
licensed and authorized to conduct insurance business in Montana which insures
the liabilities and obligations specifically assumed by the Developer’s
contractor(s) or engineer(s) in this Section. The insurance coverage shall not
contain any exclusion for liabilities specifically assumed by the contractor(s) or
engineer(s) retained by the Developer to perform its obligations under this
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Agreement and as such liabilities and obligations are included in subsection (a)
of this Section.
The insurance shall cover and apply to all claims, demands, suits, damages,
losses, and expenses that may be asserted or claimed against, recovered from, or
suffered by the City without limit and without regard to the cause therefore and
which is acceptable to the City and the Developer must cause to be furnished to
the City an accompanying certificate of insurance and accompanying
endorsements demonstrating such insurance is in place in amounts not less than
as follows:
• Workers’ Compensation – statutory;
• Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
• Commercial General Liability - $1,000,000 per occurrence; $3,000,000
annual aggregate;
• Products Completed Operations - $3,000,000;
• Automobile Liability - $1,000,000 property damage/bodily injury per
accident; and
• Professional Liability - $1,000,000 per claim; $2,000,000 annual
aggregate.
In addition to the above, The Developer must cause its contractor to purchase and
maintain insurance in the amount of the full replacement cost of the
Improvements. This insurance must:
• Include the interests of the City, the Developer, and the Developer’s
contractor, engineers, and subcontractors each of whom is deemed to have
an insurable interest and must be listed as an insured or additional insured;
• Be written on a Builder’s Risk “all risk” or open peril or special causes of
loss policy form that shall at least include insurance for physical loss and
damage to Improvements, temporary buildings, false work and materials
and equipment in transit and must insure against at least the following
perils or cause of loss: fire, lighting, extended coverage, theft, vandalism,
and malicious mischief, earthquake, collapse, debris removal, demolition
occasional by enforcement of applicable laws and regulations, and water
damage (other than caused by floods);
• Include expenses incurred in the repair or replacement of any insured
property (including but not limited to the fees and charges or engineers);
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• Cover materials and equipment in transit for incorporation in the
Improvements stored at the site or at another location prior to being
incorporated into Improvements, provided that such materials and
equipment have been included in an application for payment by the
Developer’s contractor and recommended for payment by the
Developer’s engineers;
• Be endorsed to allow occupancy and partial utilization of the
Improvements by the Developer and the City;
• Include testing and start-up; and
• Be maintained in effect until final payment is made by the City to the
Developer unless otherwise agreed to in writing by the City with forty-
five (45) days written notice to each additional insured.
c. The above amounts shall be exclusive of defense costs. The City of Bozeman, its
officers, agents, and employees, shall be endorsed as an additional or named
insured on a primary non-contributory basis on the applicable policies. The
insurance and required endorsements must be in a form suitable to City and shall
include no less than a forty-five (45) day notice of cancellation or non-renewal.
The City must approve all insurance coverage and endorsements prior to the
Developer commencing work. In addition to the notice of cancellation to the City
that must be included in the insurance policies, the Developer and its contractor(s)
and engineer(s) must notify City within two (2) business days of any of their
receipt of information that any required insurance coverage will be terminated or
of contractor(s) or engineer(s) decision to terminate any required insurance
coverage for any reason.
d. The City must receive copies of all insurance coverages and endorsements prior
to the Developer commencing construction of the Improvements.
10. INDEPENDENT CONTRACTOR STATUS/LABOR RELATIONS. The
parties agree the Developer and its contractors and subcontractors, including its
engineers, and their employees and agents are independent contractors for purposes
of this Agreement and are not to be considered employees of the City for any
purpose. As such, neither the Developer nor any of its contractors and
subcontractors are to be considered subject to the terms and provisions of the City’s
personnel policies and may not be considered a City employee for workers’
compensation or any other purpose. The Developer and its contractors and
subcontractors are not authorized to represent the City or otherwise bind the City
in any dealings between them and any other party.
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The Developer must require its contractor to comply with the applicable
requirements of the Workers’ Compensation Act, Title 39, Chapter 71, MCA, and
the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA, and must
ensure its contractor maintains workers’ compensation coverage for all members
and employees of contractor’s business, except for those members who are
exempted by law.
The Developer must require its contractor furnish it with copies showing one of the
following: (1) a binder for workers’ compensation coverage by an insurer licensed
and authorized to provide workers’ compensation insurance in the State of
Montana; or (2) proof of exemption from workers’ compensation granted by law
for independent contractors. The Developer must provide such evidence to the City
upon the City’s request.
The Developer must require its contractor to give preference to the employment of
bona fide Montana residents which means an individual who, at the time of
employment and immediately prior to the time of employment, has lived in
Montana in a manner and for a time that is sufficient to clearly justify the conclusion
that the individual's past habitation in this state has been coupled with an intention
to make this state the individual's home. The Developer must instruct its contractor
that individuals who come to Montana solely in pursuit of a contract or an
agreement to perform labor may not be considered to be bona fide Montana
residents.
The Developer must require its contractor to pay wages, fringe benefits, and
expenses including travel allowances as set forth in the Montana Prevailing Wage
Rage for either Highway Construction (2017) or Heavy Construction (2017), as
may be applicable to the work performed, and as such wages are applicable to
Gallatin County, Montana. The parties agree the adopted wage schedules are
incorporated herein. In addition, the Developer must require its contractor to pay
all hourly wage employees on a weekly basis and to maintain payroll records during
construction and for a period of three (3) years following acceptance of all
improvements by the City. Finally, the Developer must require that its contractor
ensure that any person, firm or entity constructing any portion of the City Project
under this Agreement for which the Developer’s contractor or any of its
subcontractors is responsible, is paid the applicable standard prevailing rate of
wages.
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In the event that, during construction of the improvements for the Project, any labor
problems or disputes of any type arise or materialize which in turn cause any
services to cease for any period of time, the Developer must require its contractor
to agree to take immediate steps, at its own expense and without expectation of
reimbursement from City, to alleviate or resolve all such labor problems or disputes
and that the steps contractor shall take are to be left to the discretion of contractor;
provided, however, that the Developer must require the contractor to bear all costs
of any related legal action.
The Developer must require its contractor to indemnify, defend, and hold the City
harmless from any and all claims, demands, costs, expenses, damages, and
liabilities arising out of, resulting from, or occurring in connection with any labor
problems or disputes or any delays or stoppages of work associated with such
problems or disputes and for any claims regarding underpaid wages.
11. PERMITS. The Developer must require its contractor to provide all notices,
comply with all applicable laws, ordinances, rules, and regulations, obtain all
necessary permits, licenses, including a City of Bozeman business license, and
inspections from applicable governmental authorities, and pay all fees and charges
in connection therewith.
12. LAWS AND REGULATIONS. The Developer must require its contractor to
comply fully with all applicable state and federal laws, regulations, and municipal
ordinances including, but not limited to, all workers’ compensation laws, all
environmental laws including, but not limited to, the generation and disposal of
hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules,
codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all
applicable City, County, and State building and electrical codes, the Americans
with Disabilities Act, and all non-discrimination, affirmative action, and utilization
of minority and small business statutes and regulations.
13. NONDISCRIMINATION. The Developer agrees and must require its contractor
to agree that all hiring of persons performing any work on the Improvements must
be on the basis of merit and qualifications. The Developer agrees and must require
its contractor to agree to have a policy to provide equal employment opportunity in
accordance with all applicable state and federal anti-discrimination laws,
regulations, and contracts. The Developer agrees and must require its contractor to
agree they will not refuse employment to a person, bar a person from employment,
or discriminate against a person in compensation or in a term, condition, or
privilege of employment because of race, color, religion, creed, political ideas, sex,
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age, marital status, national origin, actual or perceived sexual orientation, gender
identity, physical or mental disability, except when the reasonable demands of the
position require an age, physical or mental disability, marital status or sex
distinction. The Developer agrees and must require its contractor to agree that
while performing work on the Improvements the contractor will be subject to and
comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United
States Code, and all regulations promulgated thereunder. The Developer agrees
and must require its contractor to agree to require these nondiscrimination terms of
its sub-contractors working on the Improvements.
14. INTOXICANTS; DOT DRUG AND ALCOHOL REGULATIONS/SAFETY
AND TRAINING. The Developer must require its contractor to not permit or
suffer the introduction or use of any intoxicants, including alcohol or illegal drugs,
by any employee or agent engaged in construction of the Improvements. In
addition, The Developer must require its contractor to acknowledge it is aware of
and shall comply with its responsibilities and obligations under the U.S.
Department of Transportation (DOT) regulations governing anti-drug and alcohol
misuse prevention plans and related testing. The Developer agrees the City shall
have the right to request proof of such compliance and that The Developer must
have the authority to require its contractor to furnish such proof.
The Developer must require its contractor to be responsible for instructing and
training the contractor's employees and agents in proper and specified work
methods and procedures, to provide continuous inspection and supervision of the
work performed, and for instructing its employees and agents in safe work
practices.
15. TAXES. The Developer must and agrees to require its contractor to pay all taxes
of any kind or nature and make all appropriate employee withholdings.
16. REPRESENTATIVES.
a. City’s Representative: The City’s Representative for the purpose of this
Agreement shall be the Shawn Kohtz, Bozeman City Engineer or such other
individual as City shall designate in writing. Whenever approval or
authorization from or communication or submission to City is required by this
Agreement, such communication or submission shall be directed to the City’s
Representative and approvals or authorizations shall be issued only by such
Representative; provided, however, that in exigent circumstances when City’s
Representative is not available, the Developer may direct its communication or
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submission to other designated City personnel or agents as authorized by the
City’s Director of Public Works and may receive approvals or authorization
from such persons.
b. Developer’s Representative: The Developer’s Representative for the purpose
of this Agreement shall be the Roger Fink or such other individual as the
Developer shall designate in writing. Whenever direction to or communication
with the Developer is required by this Agreement, such direction or
communication shall be directed to the Developer’s Representative; provided,
however, that in exigent circumstances when the Developer’s Representative is
not available, City may direct its direction or communication to other
designated Developer personnel or agents.
17. REPORTS/ACCOUNTABILITY/PUBLIC INFORMATION. The Developer
agrees to develop and/or provide documentation as requested by the City
demonstrating its compliance with the requirements of this Agreement. The
Developer agrees and must require its contractor to allow the City, its auditors, and
other persons authorized by the City to inspect and copy its books and records for
the purpose of verifying that the reimbursement of monies distributed pursuant to
this Agreement was used in compliance with this Agreement. The Developer or its
contractors may not issue any statements, releases or information for public
dissemination without prior approval of the City.
18. SEPARATE LEGAL ENTITY/ADMINISTRATION. There shall be no
separate legal entity created as a consequence of this Agreement. Administration
of this Agreement shall be the responsibility of the developer.
19. DEFAULT/DISPUTE RESOLUTION.
a. Failure of or unreasonable delay by either party to perform any term or
provision of this agreement shall constitute a default hereunder. In the event of
alleged default or breach of any term or condition of this agreement, the party
alleging such default or breach shall give the other party not less than thirty (30)
days’ written notice specifying the nature of the alleged default and the manner
in which it may be satisfactorily cured. The party charged shall not be
considered in default for purposes of termination or instigation of legal
proceedings during any such 30-day period.
b. Any claim, controversy, or dispute between the parties, their agents, employees,
or representatives shall be resolved first by negotiation between senior-level
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personnel from each party duly authorized to execute settlement agreements.
Upon mutual agreement of the parties, the parties may invite an independent,
disinterested mediator to assist in the negotiated settlement discussions. If the
parties are unable to resolve the dispute within thirty (30) days from the end of
the 30-day cure period, then such dispute may only be resolved in a court of
competent jurisdiction in compliance with the Applicable Law provisions of
this Agreement.
20. NON-WAIVER. Waiver by either party of strict performance or any provision of
this Agreement shall not be a waiver of or prejudice the party's rights to require
strict performance of the same provision in the future or of any other provisions.
21. SURVIVAL. Sections 12(a) and 13 including, but not limited to, the Developer’s
obligation to require its contractor to indemnify the City as required above and the
indemnification provided shall survive the termination or expiration of this
Agreement for the maximum period allowed under applicable law.
22. TIME OF ESSENCE. It is mutually agreed that time is of the essence in the
performance of all covenants and conditions to be kept and performed under the
terms of this Agreement.
23. HEADINGS. The section headings contained herein are for convenience and
reference and are not intended to define or limit the scope of any provision of this
Agreement.
24. NOTICES. All notices required under this Agreement shall be deemed properly
served if delivered in writing, delivered in person, or sent by certified or registered
mail to the last address previously furnished by the parties hereto. Until hereafter
changed by the parties by notice in writing, notices shall be sent to the Silver Creek
LL, c/o Roger Fink, 3601 18th Street South, Suite 103, St. Cloud, Minnesota 56301,
and to the City Engineer, City of Bozeman, PO Box 1230, Bozeman, Montana
59771-1230. The date of mailing shall be deemed the date of such notice and
service thereof.
25. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties. No alterations, modifications, or additions to this Agreement
shall be binding unless reduced to writing and signed by the parties to be charged
herewith. No covenant, term or addition to this Agreement shall be deemed waived
by either party unless such waiver shall be reduced to writing and signed by the
parties.
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26. MODIFICATION AND ASSIGNABILITY. This Agreement may not be
enlarged, modified or altered except by written agreement signed by both parties
hereto. The Developer may not assign its rights, including the right to
compensation or delegate its duties arising hereunder, without the prior written
consent of City.
27. SEVERABILITY. The provisions of this Agreement shall be deemed independent
and severable, and the invalidity, partial invalidity, or unenforceability of any one
provision or portion thereof shall not affect the validity or enforceability of any
other provision herein.
28. BINDING EFFECT. This Agreement is binding upon and inures to the benefit of
the heirs, legal representatives, successors, and assigns of the parties.
29. NO THIRD-PARTY BENEFICIARY. Except as provided herein, this
Agreement is for the exclusive benefit of the Parties, does not constitute a third-
party beneficiary agreement, and may not be relied upon or enforced by a third
party.
30. COUNTERPARTS. This Agreement may be executed in counterparts, which
together constitute one instrument.
31. EFFECTIVE DATE. This Agreement shall be effective after approval by the
respective governing bodies. It is the intent that said Agreement shall be effective
on the date stated in the first paragraph of this Agreement.
#### END OF AGREEMENT EXCEPT FOR SIGNATURES ####
Agreement for Infrastructure Improvements for N 25th Avenue from Oak Street to Tschache Lane
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.
Silver Creek Ventures, LLC, a Minnesota limited liability company
By: _______________________
Name: Its: _______________________
STATE OF MINNESOTA )
) ss.
COUNTY OF ____________ )
The foregoing Agreement was acknowledged before me on ______________, 2019, by ___________________ the __________________ of Silver Creek Ventures, LLC, a Minnesota limited liability company.
__________________________________ Notary Public
[Signature Page to Agreement for Infrastructure Improvements – Silver Creek Ventures, LLC]
Signatures Continue on Next Page
Agreement for Infrastructure Improvements for N 25th Avenue from Oak Street to Tschache Lane
Crow River Management, LLC
a Minnesota limited liability company
By: _______________________ Name: Its: _______________________
STATE OF ______________ ) ) ss. COUNTY OF ____________ )
The foregoing Agreement was acknowledged before me on ______________, 2019, by
___________________ the __________________ of Crow River Management, LLC, a Minnesota
limited liability company.
__________________________________ Notary Public
[Signature Page to Agreement for Infrastructure Improvements – Crow River Management, LLC]
Signatures Continue on Next Page
Agreement for Infrastructure Improvements for N 25th Avenue from Oak Street to Tschache Lane
City of Bozeman
By: _______________________ Name: Andrea Surratt Its: City Manager
STATE OF MONTANA )
) ss. COUNTY OF ____________ )
The foregoing Agreement was acknowledged before me on ______________, 2019, by Andrea Surratt, the City Manager of the City of Bozeman, Montana.
__________________________________ Notary Public
ATTEST:
____________________________________
Robin Crough, City Clerk
APPROVED AS TO FORM:
___________________________________
Greg Sullivan, City Attorney
[Signature Page to Agreement for Infrastructure Improvements – City of Bozeman]
Agreement for Infrastructure Improvements for N 25th Avenue from Oak Street to Tschache Lane Exhibit 1
EXHIBIT 1
IMPROVEMENT PLAN
Agreement for Infrastructure Improvements for N 25th Avenue from Oak Street to Tschache Lane Exhibit 2
EXHIBIT 2
CITY OF BOZEMAN RESOLUTION #4250
Agreement for Infrastructure Improvements for N 25th Avenue from Oak Street to Tschache Lane Exhibit 3
EXHIBIT 3
ESTIMATED PROJECT COSTS
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Agreement for Infrastructure Improvements for N 25th Avenue from Oak Street to Tschache Lane Exhibit 3
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Agreement for Infrastructure Improvements for N 25th Avenue from Oak Street to Tschache Lane Exhibit 3
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Agreement for Infrastructure Improvements for N 25th Avenue from Oak Street to Tschache Lane Exhibit 3
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Agreement for Infrastructure Improvements for N 25th Avenue from Oak Street to Tschache Lane Exhibit 3