HomeMy WebLinkAboutImprovements Agreement Send Orieinal to:
City of Bozeman
Department of Community Development
P.O.Box 1230
Bozeman,MT 59771
IMPROVEMENTS AGREEMENT FOR THE
EASTLAKE PROFESSIONAL CENTER MINOR SUBDIVISION
FINAL PLAT, APPLICATION NO. 22099,
BOZEMAN, MONTANA
1 s+ day o-F Jme-
THIS AGREEMENT is made and entered into this 4 i st da7 of May,2022 by and between
Randy Scully, Eastlake Professional Center LLC, 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 58771-1230
hereinafter called the "City."
WHEREAS, it is the intent and purpose of the Subdivider to meet the conditions of the
preliminary plat approval, Planning Application No. 21447, for the Final Plat application of the
Eastlake Professional Center Minor Subdivision, Application No. 22099, to subdivide 7.065
acres together and create four commercial lots; and
WHEREAS, it is the intent and purpose of the Subdivider to obtain Final Plat approval for
the Subdivision; and
WHEREAS, the Subdivider intends to file the Final Plat for the Subdivision prior to the
installation of all required subdivision Improvements, therefore an improvements agreement with
a financial security must be 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
Improvements related to the Subdivision; 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 the
Subdivision.
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 which are designated and
identified as being: The property is legally described as Lot IA of the Minor Subdivision 221E
and subject to all easements of record or apparent from a visual inspection of the property.
2. Improvements
This Agreement specifically includes the following required improvements for the Eastlake
Professional Center Minor Subdivision(the "Subdivision"): Roadway improvements for access
to Lots 1 and 2 (east of N. 27th Avenue), road improvements to Honor Lane, subdivision internal
roads, sanitary sewer service improvements, water service improvements, storm drain
improvements and site electrical improvements, as listed in the attached Exhibit A (the
"Improvements").
The cost of the improvements has been estimated by Subdivider's agent, Alex Edwards of TDH
Engineering, 234 E. Babcock Street, Suite 3, Bozeman, MT 59715, as eight hundred eighty two
thousand, six hundred seventy dollars and seventy cents ($882,670.70). The estimate is attached
and made a part of this agreement, as Exhibit"A".
3. Financial Guarantee,Time for Completion of Improvements,Additional Restrictions
A. The Subdivider hereby agrees that the Subdivision related Improvements shall be
installed and completed no later than one (1) year after the filing of the final subdivision plat for
the Eastlake Professional Center Minor Subdivision in order to avoid default on the method of
security.
B. The Subdivider must maintain adequate financial security guaranteeing the completion
of the Improvements until the Improvements are accepted by the City. The Subdivider's
performance under this Agreement is specifically guaranteed and secured by an irrevocable
standby Letter of Credit No. 3601220013494, (the"Financial Security") acceptable to the City, in
the amount of one million, three hundred twenty four thousand, six dollars and zero cents
($1,324,006.00) from First Security Bank, Division of Glacier Bank, which is one hundred and
fifty (150) percent of the estimated cost of the Improvements.
C. The 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
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.
D. the Subdivider acknowledges the Financial Security lapses on May 25, 2023 and is
subject to automatic renewal in one year increments,but in no case is the Financial Security valid
beyond May 25, 2027. Subdivider also acknowledges the issuer of the Financial Security may
give notice to the City of its intent not to renew the Financial Security,but must do so no less than
thirty (30) days prior to the expiration of the Financial Security of the Financial Security is
extended for an additional year. As a result,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 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 not to 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 further notice to the Subdivider, draw upon the Financial Security for the
costs of any outstanding Improvements at one hundred and fifty percent of the City's estimated
cost of such Improvements, regardless of the cost estimates included in Exhibit A and regardless
of whether the timeframe for completion of such Improvements has passed.
E. 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 the subdivision Improvements required for the Subdivision.
F. Upon submission of fully documented invoices for the work performed, and after
the work has been inspected and certified for payment by Subdivider's professional engineers and
the City and its agents as necessary, the City may release a portion of the security 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.
The Subdivider shall permit the City and its representatives or agents 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 Randy Scully,
Eastlake Professional Center LLC at 5073 Patterson Road, 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 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. 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
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 the 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
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. Filing
The Subdivider shall have this Agreement recorded in the Office of the Gallatin County
Clerk and Recorder at the within 10 business days of the signature of the Community Development
Director.
SUBDIVIDER
By:
(On behalf ofi (Capacity)
STATE OF Montana )
:ss
County of Gallatin )
Oa,this day of Ha411 2022,before me,a Notary Public of the State of Montana,personally
appeared k to be the subdivider that executed the foregoing Improvements
Agreement, and acknowledged % e that he executed the foregoing instrument as vu/�e S of
ge,GJjp/ /2g ,and acknowledged to me that(s)he executed the same for and on behalf of '-wdio aF
��Td/I UGC_- GC va L L�
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day d year /'"
first above written.
LISSETTE KNOWLTON
4-. Notary Public
IA)�"A< _for the State of Montana
* — *; Residing at:
a5:.SEA.L., Bozeman, Montana
Printed Name Here
-'' My Commission Expires: Notary Public for the St a of
OF M November 14,2023
Residing at
My Commission Expires:
(Use 4 digits for expiration year)
THE CITY OF BOZEMAN
BY:ANNA BENTLEY,AICP, C __--
INTERIM DIRECTOR/DEPUTY DIRECTOR
COMMUNITY DEVELOPMENT DEPARTMENT
CITY OF BOZEMAN
STATE OF MONTANA )
:ss
County of Gallatin )
On this � day of�,U„Y\2. 2022, before me, a Notary Public for the State of Montana,
personally appeared Anna Bentley, known to me to be the person described in and who executed the foregoing
instrument as Interim Director of Community Development for the City of Bozeman,whose name is subscribed to the
within instrument and acknowledged to me that she 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.
O�LKLOpS ,. (vi
SHR ON L KLOOSTERHOF [J`
oo
• F , otary Public koW WO�
oTaR/q Ps=for the State of Montana
*. *= Residing at: (Printed Name Here)
.SEAL, Q Bozeman, Montana
y P� Notary Public for the State of Montana
-,,, •.0 My Commission Expires:
,M O° March 17,2025 Residing at � � 6AN
My Commission Expires: �- t-4•
(Use 4 digits for expiration year)
EXHIBIT A: IMPROVEMENTS COST ESTIMATE
EAST LAKE SUBDIV51CIN
IMPRCIV MENISAGREEMENT
ITEM ESTI dIA YEd <. TOTAL
rlt7. DESCRIPTION 4Et ITYTY ` UNITS LPNIT PRICE AAA 1Ltttt
ROADWAY l . P NTS
Access Gran S&2-Fe m$Al.-1 �
501 12'Thirk Sublease�4'rvtinvs 38.00 23,SOt3
502 5"T1ack Crushed Baiۥ1.5"tmiinuc 384 clr 4600 17.664 00
S43 3"Thj,,k Aspi alt Surface Caurse 1350 5Y y 19-tll'i S 2,,i,SG.Et
504 Gr'l w411f F0b-ia 1433 5Y S 8.50 5. :Tlaa:.
SOS Pin-clown:urb'stand 150 SF 75 IO 5 4.3500 00
5rS ADA Rarnip 4 Etl $ 2,506,00 S 8, J.LeI
507 ADA Cast =•in 1lr tiwct h Warr«.ig 5urfj6te 4 6A 1.20,a-.OG 5 4,1[W.CCl
508 sueet Sign 4 EA
c Btd,Ittlt; !.$ 3114a3.00
5D9 me?iDcaxe StTee 5ig'T i 1 EA } 770.Lr0
510 Ty eA Crasling StrlFsara i8 Crts,s ilk Bars 1 FA 5 -,,3W,Do 3,3Cz7.Cd3
511 Type 9 Crossin+�«ft;,*Id ors f1pjb Sic a3 .1 f EA S 5,5W.00 7 5,500,00
Sul Right Tarn Oft 4-Sv'rnbaal w/24'White Stoma Star 1 i EA 5 3,2L43.w 3,200".110
513 Remaye and N5>pm4�v A5,nhaIfj(,CanCre e 1a« SY S 15,6
6
s 1,815:OO
�M4t ar Ease t60-night Of J
F
-" i12'Thick Subb;lw-4--sAirus 576 s:�, -36CO 5 21,888.O0
2 J6"Thitk Cr:islied Bnc 1.S"Mfnu 277 Cy ; 49.00 $ 13,206.4f 7
6(li 13"Thlck Asphxt SxirfaU-Corse 15-m 5Y 19_OO S 3U,C5f,EPz
Eitd �Geotexiiln Fabric 1742 SV $ 6-kT4 S O.152. 33
605 C ii'La aryl but€e 951— LF S L00 S 17,871,G
WE Ran Rpvdential rwYwe gs3,f kpp€csch ICOS 02529.12) z EA S 5.5Ct.o0 S 3,900.CR3
m 607 5'Sidcvsslk 4'Th;ci c �
w 1tI.OSS s 4 3S,2
13i,' SF 7O.00
M- 9 ADA Ram;) 3 EA S .,2w.0a S 31aw.w
609 AAA Cast irriwn r.att'ct3h e Warr• g Surtlze 3 EA S 4w.Es3 S 1,440.Ct0
510 5t e:Sd 1 EA $ g6O.LU 'a 36L7 DO
fill Type,A Ca'ssing 5ttiping sw 124'Whte Stca Bar 1 EA a 2,300.00 x 2.1,1)w
512 IType B Crossirg Sir ping va,Ai'lel4 Bars 6-t-,5i ors 1. 3 €A S 6,3GCi.t,t7 6,not."ati
54 v4k- Mtem of R*ards
701 12"ThiT1 wbbise-4' 514 C r' S 36.00 S 1g.5t14.t
702 6'nick Crushed Base I.S'F <r 257 Cy 47 twC S ]2.>7? ,oa
7 -3 3'ThIck t°�J Sui4aee[ourm!
1,4 � 563 SY � 15 r3'.1, S 1I,07 7,Ckt
703 t aotaxtila ranch 1° 3 $Y S 6.Q0 ; 3,2`rB.owa
705 ;Curbarava Gate r 518 LF 5 21 S 4,0,3-8.6o
7ra6 ° Res dentiai Dfive wree.kpprs kch IC0902529 111 1 EA 56.60.7.00 $ 4,fiiy1.w
707 ;S'Sidewalk 4"This' 5i S 20.00 2c�,9Ca7 w
708 DA Ra. 4 EA S 2'a w:1.ba 5 8.
RJ% AG^A f3 t Iran E Cetkatxle b4'arr n Surf e 4 EA S 460.W 1.9:tIl.tlt5
: tee
710 Ty ACrowwalk 5tr1pingwjH'Cro7smalk nfs 1 FA
Cl)
711 Stree't n 1 EA S 2,1W.00 S 2,3OP
GRAVITY SEWER IMPROVEMENTS,
2O1 {c r ec,°o Existi Scwvr 1 €A S 9,61`3 0o S 3,675.0o
M2 :iAvrer Service voilh Wpe 1 IA } $35.00
u. �b
203 8'Pvift,SrA 35 5aaq,,r Pipe 912 LF 50.00 $ 45 callffl
-Ri4 8`Cap 1 EA 9H,rX S -".Oql
705 4B"5anitary 5e'A*r htavnF6e 5 E,4 7 4,7 .00'k 5 23,55TJ m
Improwarnents A gmmpnt
Page.100 2
WATER IMPROVED MIS 1
30; 17,0nrr-fi TO E,sistiI! a ale!r IH-27th1 1 CA m0.ru 4,750 rAl
342 Connect to Exr,t7 g'VVater Iflonor Lanw_I 7 E� $ 5 Si6.ft:I S.S
a � C�I.C�}
343 Comnr ea Gxistmg'''!Vafrr Kitron Riot-;Irk 1 Est S a, Z4,Gri T
ACA Watef 5e d:te CoO ,Lf""Jrl i A S S.i56 M a 1°4.Gtr
345 F*an serA c,C�nnt>.flcsi ] E y S,i5t5.�L 5 5,1.50.G11
7345 16 GIpipm -..443 LF 35181)
307 11C1Y,0W ai"d Replace IF Crl P3Fe t& LF 11SAD ta,470
E.h $ 9.99C.4t9 $ 49,95i}-f3dA
309 16'Tet . EA x 'b7✓:h; 5 e.15 G0
aRtt 15'xa"Tee 4 CA 2,35a.r?3
311 IV' 12'haducrtc 1 EA $ 2,2-IF&:t '$ 2,2"w1. ^
312 1�"�`a3c�slutsr ,��g
.113 1 1fi"ab-P.Hfpe Bem 1 R .-..-E5 S 2,.30O.00 S 2,:3f J,Cxi
314 aS.,43•I qr Pwvrd 1 FA 5 2,054.CO $ 2.GISOX0
315 ]:'6-Ca v
a.x.
i CA <a t,4494`,4 -5 1,44n.Ck7
$1 If"R2'r3al4eValy. EA }. ..5,.7$0_vt1
317' U' 'NV Tee 1 FA $ 'c.414�4 2,4st? {�
LF 3,5 52 .Sty
�- ,
314 41,Bata Val,.) 3 EA $ 4,430-30 $ 4,(10,00
32t} "xfi"Tee Ed $ 13SOOD 5 1.;-io y
32R 6"C]i F i 33. LF Y2.4-Q 5 2.asg,20
322 fi"g. 's�rlwar r,
7 EA $ 1,C2a.Gt S 2,t34dE.r
fi '7
323 4"DI Pik E L� .F $ 131 4+� !5 315-s
324 13:5'L3v "Hyd art 1 EA 1u,265.00 y." u r„w65,m
325 Sury HWGr.an.;, 1 ER 5 9,3540.C+3 $ 4,35d7.C7
325 9'Bury ivt'Tan: 1 EA 5 E,540,W
$ &,A4r7.Ctj
32: gerrm"&F,-Ikxate Hydrant 1Ffoncr1—ane] 1 EA S 92P.O.GC1 4,28OLM
..b
323 R'em ro&Rebcaty H"r)*ara 1r.3trryn crrmS fig) 1 Ew S 6,6?47 5 ®,G7G.CTJ
STORM DRAM 3MPRf VFMENTS v
4-1 ljrudcr�U Ajrd RptenttC:n P-Tank syirera S2rth duel ] G5 ; SI.wo w 5 41,44LWo
2 3-.a4'storm Drain Ir,t%ml-vrtr C Fats fi?i 5 4,34L�.L*
4d3 1 "I"r'C; 4 LF $_ $AJ5.tly'=} aZds.U;k
Site Electrital
3 fit ocees -. 1 .EA 5 7,209.W 4SZ>1.1Ca7 Cy1
832 htc s l asr s 4 EA 5 7,3CO.CCI
i143 EIe=CricaR Servirea 1 CA 9 4,,qCo.Et7 $ 4,300.00
a
904 ts�pe R ptn -ijox S I E.t 5 1,iCx7.tto 6,6 ,w
E45 121 12"11,i.i• 5a:s u 2 ( FA 5 3,5oo,m c 7,43NI-c-iJ
30i 2"lkfi.N FVZ Cm&jit 680 _F a 21 1b S 19,72000
807 1.5'conoun, 5 LF 3 3E-00 5 57br3t9
308 Cond"-,or•raprc-A.dW,530-%A; 31;ov LF $ I.15 ta5 3.$SG.4G
9rjrlC. rtlent§4rirrtert 5utsiaSai: $ MOP,,
€lancia€!g2l 1. _ S 1,324,f a,
"110rCrv?riertts 15greement
PaEe 7.",f 2