Loading...
HomeMy WebLinkAbout21- Amendment 1 - Development Agreement Ruh Building - LIfe Style Solutions Real Estate FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (Ruh Building) This FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (this “First Amendment”) is dated as of June 22, 2021 by and between LIFE STYLE SOLUTIONS REAL ESTATE, LLC (the “Developer”), and the CITY OF BOZEMAN, MONTANA (the “City”). RECITALS: WHEREAS, the City and the Developer have entered into a Development Agreement, dated as of September 23, 2019 (the “Development Agreement”), pursuant to which the Developer agreed to undertake the Project and the City agreed to reimburse the Developer for the Eligible Costs, subject to the terms and conditions of the Development Agreement. Capitalized terms used and not otherwise defined herein have the meanings given such terms in the Development Agreement; and WHEREAS, the Infrastructure Improvements constituting Eligible Costs included streetscape improvements on North 7th Avenue and Durston Road, including sidewalks, street trees and tree vaults, landscaping and street furniture (collectively, the “Streetscape Improvements”), at a projected cost of $235,000; and WHEREAS, following execution of the Development Agreement, the City requested certain changes to meet the City’s criteria and design preferences, and the Developer agreed to modify the original plans for the Streetscape Improvements in accordance with the City’s request; and WHEREAS, the modifications requested by the City resulted in $103,736.90 in additional costs related to the Streetscape Improvements, for which the Developer has requested reimbursement; and WHEREAS, pursuant to Section 3.4 of and Exhibit D to the Development Agreement, the Developer agreed to complete steps in the development of the Project (each, a “Milestone”) by particular dates (the “Milestone Dates”), and acknowledged that completion of the Milestones by the Milestone Dates was a condition to the City’s obligation to reimburse the Eligible Costs; and WHEREAS, the Project is nearing completion, and the parties wish to amend the provisions of the Development Agreement relating to Milestones and Milestone Dates to simplify and clarify those provisions; and WHEREAS, pursuant to Section 8.9 of the Development Agreement, the Development Agreement may be amended by written amendment authorized and signed by the City and the Developer. NOW, THEREFORE, the City and the Developer agree as follows: Section 1. Additional Streetscape Funds. In addition to the reimbursement of $747,500 for the Eligible Costs described under the Development Agreement, the City hereby DocuSign Envelope ID: B3905C78-1B7C-4512-A7FA-66E429AB743A 2 agrees to reimburse the Developer an additional $103,736.90 for the additional costs of the Streetscape Improvements (the “Additional Reimbursement”), subject to the following conditions and in accordance with the following procedures: 1.1. Conditions to Payment or Reimbursement. (a) (i) The Developer must have completed or satisfied the Milestone by the Milestone Date, as amended hereby, (ii) the City must have issued a certificate of occupancy for the Project, (iii) the Streetscape Improvements must have been completed in their entirety and the City must have delivered to the Developer written acceptance of the Streetscape Improvements as shown in the MOD Application 21028 as approved on April 30, 2021 (which may be in the form of a Certificate of Completion or such other format as required by the City), and (iv) the Developer must demonstrate to the City’s satisfaction, by a title report, UCC report, or other means acceptable to the City, that the Streetscape Improvements are free of financial liens and any encumbrances affecting the Streetscape Improvements must be acceptable to the City. (b) The Additional Reimbursement must be based on paid invoices for costs incurred by the Developer, its contractors and subcontractors or utility companies or other third parties, which the Developer must supply to the City. The City may reject, in its sole discretion, any invoice related to the Streetscape Improvements. The City will notify the Developer of any rejected invoice and the reason it was rejected. (c) The Parties agree that the City will have no obligation to pay or reimburse any of the Additional Reimbursement unless at the time of such request (i) all of the Developer’s representations as set forth in Section 2.2 of the Development Agreement are true and correct, (ii) the Developer is not in breach of any covenant or undertaking as set forth in Section 3 of the Development Agreement, and (iii) there shall be adequate Tax Increment on hand to pay the amount of the reimbursement or cost or expense and satisfy all other financial obligations related to the District. If any of the above conditions are not satisfied in the determination of the City, the City shall have no obligation to pay or reimburse the Additional Reimbursement and the City’s determination to refrain from paying or reimbursing, or its inability to pay or reimburse, any of the Additional Reimbursement shall not be or result in a default of the Development Agreement or this First Amendment thereof. 1.2. Process for Payment or Reimbursement. (a) After receiving a certificate of occupancy for the Project, the Developer shall provide to the City a signed request for reimbursement substantially in a form attached as Exhibit E to the Development Agreement and acceptable to the City, accompanied by the invoices and lien waivers from the contractors or subcontractors performing or that have performed the work to be reimbursed. In addition, the Developer agrees to provide to the City any additional information requested by the City for the City to determine whether the Developer’s request for reimbursement complies with the Development Agreement and this First Amendment. DocuSign Envelope ID: B3905C78-1B7C-4512-A7FA-66E429AB743A 3 (b) Subject to the remaining provisions of this paragraph, the City agrees to pay the Additional Reimbursement to the Developer on the later of (i) four weeks following submission by the Developer of the request for reimbursement and all additional information required under Section 1.2(a) of this First Amendment, to the City’s satisfaction, or (ii) August 31, 2021. In no event shall the Additional Reimbursement be payable prior to July 1, 2021. The Additional Reimbursement will be paid directly from Tax Increment; provided, however, if the City shall earlier determine that the Tax Increment then available is not sufficient to reimburse the Developer for the Additional Reimbursement, then the City shall so inform the Developer in writing and Section 1 of this First Amendment shall thereupon terminate and neither Party will have any further rights or obligations hereunder, except as set forth in those provisions that expressly survive termination of the Development Agreement. Section 2. Amendment and Restatement of Exhibit D to Development Agreement. Exhibit D to the Development Agreement is hereby amended and restated in its entirety, and is replaced by the Amended and Restated Exhibit D attached to this First Amendment to Development Agreement. All references in the Development Agreement to Exhibit D shall be read to refer to the Amended and Restated Exhibit D, and all references in the Development Agreement to Milestones and Milestone Dates shall be read to refer to the Milestones and Milestone Dates set forth in the Amended and Restated Exhibit D. Section 3. Effect of Amendments. Except as specifically amended hereby, the Development Agreement shall remain unamended and shall continue in full force and effect as amended hereby. Section 4. Consent to Electronic Signatures. The Parties have consented to execute this instrument electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. DocuSign Envelope ID: B3905C78-1B7C-4512-A7FA-66E429AB743A 4 IN WITNESS WHEREOF, the Parties hereto have caused this First Amendment to Development Agreement to be executed as of the 22nd day of June, 2021. CITY OF BOZEMAN, MONTANA By: _______________________________________ Its: City Manager LIFE STYLE SOLUTIONS REAL ESTATE, LLC By: Its: [Signature Page to First Amendment to Development Agreement] DocuSign Envelope ID: B3905C78-1B7C-4512-A7FA-66E429AB743A Authorized signer/President AMENDED AND RESTATED EXHIBIT D MILESTONES MILESTONE MILESTONE DATE Substantial completion of Project, including Infrastructure Improvements July 31, 2021 DocuSign Envelope ID: B3905C78-1B7C-4512-A7FA-66E429AB743A