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HomeMy WebLinkAboutImprovements Agreement - Blackridge Companies Northwest Crossing Subdivision - Phase 1 Public Infrastructure Improvements Agreement 1 Send Original to: City of Bozeman Department of Community Development P.O. Box 1230 Bozeman, MT 59771 IMPROVEMENTS AGREEMENT FOR NORTHWEST CROSSING SUBDIVISON - PHASE 1 / PROJECT NO. 21482 BOZEMAN, MONTANA (PUBLIC INFRASTRUCTURE IMPROVEMENTS) THIS IMPROVEMENTS AGREEMENT (Agreement) is made and entered into this ______ day of , 2022 by and between NWX LLC, hereinafter called the “Subdivider,” NWX Apartments LLC, “Future Owner” who intends to purchase the Subject Property, as more particularly described in Section 1 below, and fulfill the terms of this Agreement, 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.” Collectively all parties to this Agreement are referred to as the “parties.” This Agreement is entered pursuant to and incorporates herein the provisions of section 38.270.060 of the Bozeman Municipal Code (“BMC”). WHEREAS, it is the intent and purpose of the Subdivider to meet the conditions of preliminary plat approval, Planning Application No. 20113 and as amended by application 21482, for the Final Plat application of Northwest Crossing Subdivision - Phase 1, to subdivide approximately 146.23 acres together and create 14 lots, and 15 restricted development lots that will require further subdivision and zoning review, three City park lots, open space lots, and the remaining areas as public streets (“Subdivision”); and WHEREAS, it is the intent and purpose of the Subdivider to obtain Final Plat approval for the Subdivision; and WHEREAS, it is the intent of the Subdivider to file the Final Plat for the Subdivision prior to the installation of all required subdivision improvements, therefore an improvements agreement with financial security must be provided pursuant to Division 38.270 BMC; and Northwest Crossing Subdivision - Phase 1 Public Infrastructure Improvements Agreement 2 WHEREAS, it is the intent and purpose of the Subdivider, Future Owner, and the City to hereby enter into an Agreement which will guarantee the full and satisfactory completion of the required Improvements related to the Subject Property more particularly described below; and it is the intent of this Agreement, and of the parties hereto, to satisfy the improvements security 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: Lots 1, 13, and 14 and Park Area 3, Northwest Crossing Subdivision – Tract 5 of Certificate of Survey No. 2552, a tract of land being the NE1/4 of Section 4, Township 2 South, Range 5 East, P.M.M., Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana (“Subject Property”). SUBJECT to all easements of record or apparent from a visual inspection of the Subject Property. 2. Improvements This Agreement specifically includes the following financially secured Improvements: - Landscaping and irrigation (see estimate # 1844 from Wiening Landscapes in the amount of $102,232.10 attached and made a part of this agreement as Exhibit A); - 4"Thickness Concrete Sidewalk in the amount of $175,230.00 (based on a per square foot of $7.50 required by City); and, - Irrigation Well (see invoice # 3601 from Bridger Drilling in the amount of $3,600.00 attached, estimate # 9E+08 from Bridger Drilling in the amount of $3,054.89 attached and made a part of this Agreement as Exhibit A) (the “Improvements”). The cost of the foregoing Improvements has been estimated by Morrison Maierle, Inc, 2880 Tech Blvd West, Bozeman, MT 59718, as Two Hundred Eighty-Four Thousand One Northwest Crossing Subdivision - Phase 1 Public Infrastructure Improvements Agreement 3 Hundred Sixteen Dollars and Ninety-Nine Cents ($284,116.99). The estimate is attached and made a part of this Agreement as Exhibit B. 3. Financial Security, Time for Completion of Improvements, Additional Restrictions A. The Subdivider and Future Owner represent and agree the Improvements as required by this Agreement and the Findings of Fact and Order for the Subdivision shall be installed and completed no later than one (1) year after the date of recording of the final plat for the Subdivision in order to avoid default on the method of security. In reliance on such representation, the City consents to the Subdivider filing the final plat prior to completion of the required Improvements. The Subdivider’s and Future Owner’s performance under this Agreement is specifically guaranteed and secured by a cash deposit as described below. B. The Subdivider or Future Owner must maintain adequate financial security guaranteeing the completion of the Improvements listed in Section 2 of this Agreement until the Improvements are accepted by the City. The Improvements are secured by a cash deposit in the amount of Four Hundred and Twenty-Six Thousand and One Hundred Seventy-Five Dollars and 49/00 ($426,175.49), check number , in a form acceptable to the City, from Subdivider, which is one hundred and fifty (150) percent of the estimated cost of the Improvements (the “Financial Security”). Subdivider will seek reimbursement of Financial Security from Future Owner upon transfer of the Subject Property. C. Upon Subdivider’s transfer of ownership of Lots 1, 13 and 14 of the Northwest Crossing Subdivision (“Lots 1, 13 and 14”) to Future Owner, Future Owner will accept and assume all of Subdivider’s obligations under this Agreement, that is completion of all Improvements described at Section 2, including the Improvements to Park area 3 (“Subdivider’s IA Obligations”), and, in evidence thereof, will sign and become a party to this Agreement. Such transfer, acceptance, and assumption of Subdivider’s IA Obligations shall occur at the closing for Lots 1, 13 and 14 expected to occur on or within 30 days of final plat approval (“Closing”), unless extended by the parties pursuant to the real estate sale contract (“Closing”). Subdivider will provide written notice to the City of the Subdivider’s transfer and the Future Owner’s acceptance and assumption of Subdivider’s IA Obligations along with a copy of the deed and documents, if Northwest Crossing Subdivision - Phase 1 Public Infrastructure Improvements Agreement 4 any beyond this Agreement, memorializing the Future Owner’s acceptance and assumption of Subdivider’s IA Obligations under this Agreement. Subdivider will seek reimbursement of Financial Security from Future Owner upon transfer of Lots 1, 13 and 14. Upon the transfer described in this Section, the release of the Financial Security described in Subsection 3E shall benefit the Future Owner. If the Financial Security is not reimbursed by Future Owner to Subdivider, Subdivider shall remain the beneficiary of any release thereof. If Lots 1, 13 and 14 are not transferred, Subdivider shall remain responsible for Subdivider’s IA Obligations herein and, upon completion thereof, the release of the Financial Security described in subsection E shall benefit the Subdivider. D. Subdivider and Future Owner acknowledge and agree 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 or Future Owner and used by the City for completion of the Improvements in its sole discretion, but only if the Subdivider or Future Owner fails to comply with the terms and conditions of this Agreement. E. Upon submission of fully documented invoices for the work performed on Improvements, and after the work has been inspected and certified for payment by Subdivider’s or Future Owner’s professional engineers and the City or its agents as necessary, the City may release all or a portion of the Letter of Credit for the work completed by the referenced invoices. Installation of the Improvements and any work associated with the Improvements as provided in Section 2, must be completed and accepted by the City prior to occupancy of any building located within Lots 1, 14 and 15. Upon full completion and acceptance of the public improvements, the City will provide a writing to the Subdivider and Future Owner acknowledging completion and releasing the Financial Security to the Future Owner or Subdivider consistent with the above Section 3C. No Certificate of Occupancy will be issued until completion and acceptance of all Improvements. 4. Transfer of Obligation A. Subdivider and Future Owner acknowledge and agree that no delegation of performance required by this Agreement relieves the Subdivider and Future Owner of any duty to perform or Northwest Crossing Subdivision - Phase 1 Public Infrastructure Improvements Agreement 5 any liability for the breach of that duty to complete the Improvements required. B. City and Subdivider acknowledge the intention of Subdivider to transfer the ownership of the parcels upon completion of final plat to Future Owner. Any other transfer of ownership of the parcels does not relieve Subdivider or Future Owner of obligations for installation of Improvements. The Subdivider or Future Owner may request and the City may, at its discretion, approve a transfer of obligations under this Agreement to a lot purchaser other than the Future Owner. Transfer of the obligations of this Agreement to other than the Future Owner must be made by execution of a new improvements agreement and security between the new owner and the City. The new improvements agreement must address all elements included in 38.270.060, BMC and as it may be amended. Upon full execution of a new improvements agreement, the City may issue to Subdivider and Future Owner a writing releasing Subdivider and Future Owner from specified public infrastructure obligations incurred under subdivision review and secured by this agreement. The City may, at its discretion, accept a different method of security as part of an improvements agreement transferring obligations to a new owner. 5. Change in Security and Agreement Should Subdivider, Future Owner, or a subsequent owner wish to receive City approval to begin concurrent construction, a concurrent construction plan and other requirements pursuant to 38.270.030.D BMC must be provided or satisfied, as applicable, and a new Improvements Agreement specific to the applicable parcel must be completed between the City and requesting party. The new Improvements Agreement must include appropriate security for all outstanding public infrastructure applicable to the parcel as identified in Section 2 and not yet accepted by the City. 6. City Not Bound In Its Regulatory Authority Nothing in this Agreement alters the required review processes of Chapter 38 of the UDC. Subdivider and Future Owner agree that nothing herein binds the City to make approvals in its regulatory authority in review of subdivision, zoning, building or other regulatory applications. 7. Inspection Representatives of the City shall have the right to enter upon the Subject Property at any Northwest Crossing Subdivision - Phase 1 Public Infrastructure Improvements Agreement 6 reasonable time in order to inspect it and to determine if the Subdivider or Future Owner is in compliance with this Agreement, and the Subdivider or Future Owner shall permit the City and its representatives to enter upon and inspect the Subject Property at any reasonable time. 8. Default Time is of the essence of this Agreement. If the Subdivider or Future Owner defaults in or fails 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 thirty (30) days after written notice specifying the default is deposited in the United States mail addressed to the Subdivider at P.O. Box 4082, Bozeman, MT 59772 and Future Owner at P.O. Box 4082, Bozeman, MT 59772, or such other address as the Subdivider or Future Owner 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 guarantee to be forfeited and, without the consent of the Subdivider or Future Owner, secure the complete construction and inspection of the improvements described herein. The City's representative, contractors, and engineers shall have the right to enter upon the Subject Property and perform such work and inspection, and the Subdivider and Future Owner 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 or Future Owner. B) The City may enforce any other remedy provided by law. 9. Waiver of Claims, Limitation of Liability, and Indemnification The Subdivider and Future Owner hereby expressly agree to indemnify and hold the City harmless for and against all claims, costs and liability of every kind and nature, for injury or damage received or sustained by any person or entity in connection with, or on account of the performance of work at the development site and off-site pursuant to this Agreement. Subdivider and Future Owner further agree to aid and defend the City in the event that it is named as a Northwest Crossing Subdivision - Phase 1 Public Infrastructure Improvements Agreement 7 defendant in an action concerning the performance of work pursuant to this Agreement except where such suit is brought by the Subdivider or Future Owner. The Subdivider and Future Owner are not an agents or employees of the City. To the fullest extent permitted by law, Subdivider and Future Owner waive all claims against the City, its officers and employees, agents, insurers, and consultants any and all claims for or entitlement to special, incidental, indirect, or consequential damages arising out of, resulting from, or in any way related to the installation of public infrastructure improvements, including delay of completion of any aspect of the project that may affect Northwest Crossing - Phase 1. In addition to the above, Subdivider and Future Owner shall defend and indemnify the City from any claims brought against the City by any of the Subdivider’s or Future Owner’s partners, investors, creditors, lenders, agents, or any other entity associated with the Subdivider or Future Owner or Northwest Crossing - Phase 1 for claims related to delay of or failure to complete the improvements as provided in Section 2. 10. 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. 11. Warranty The Subdivider and Future Owner 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. 12. 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. Northwest Crossing Subdivision - Phase 1 Public Infrastructure Improvements Agreement 8 13. Dispute Resolution A. Any claim, controversy, or dispute related to this Agreement between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level 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. B. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Governing Law provisions of this Agreement. 14. Modification or Alterations No modifications or amendment of this Agreement shall be valid, unless evidenced by a writing signed by the parties hereto. 15. 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. 16. No Third-Party Beneficiary 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. 17. No Assignment It is expressly agreed that the Subdivider and Future Owner shall not assign this Agreement in whole, or in part, without prior written consent to City. 18. Successors Except as provided in paragraph seventeen (17), 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. Northwest Crossing Subdivision - Phase 1 Public Infrastructure Improvements Agreement 9 19. Counterparts To facilitate execution of this Agreement, the parties may execute and exchange counterparts of signature pages by facsimile or via e-mail by .pdf (or similar format), and any such facsimile or email counterpart signatures are binding on the party providing the signature and may be combined to form one complete document. 20. Integration This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained therein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 21. Filing The Subdivider shall have this Agreement recorded in the Office of the Gallatin County Clerk and Recorder on or within thirty (30) days of the Final Subdivision Plat for the Northwest Crossing Subdivision - Phase 1 being approved and filed as part of the Closing as described in Section 3.C, or if the agreement underlying the transfer of the Subject Property is terminated or if the Closing does not occur within a reasonable time after the Final Subdivision Plat for the Northwest Crossing Subdivision - Phase 1, Subdivider shall provide notice to the City and shall file this Agreement or the City and Subdivider may enter into a subsequent improvements agreement to guarantee the full and satisfactory completion of the required Improvements related to the Subject Property. Northwest Crossing Subdivision - Phase 1 Public Infrastructure Improvements Agreement 10 SUBDIVIDER: NWX, LLC _________________________________________ By: Bryan Klein _NWX, LLC , Manager_______ (On behalf of) (Capacity) STATE OF ) :ss COUNTY OF ) On this ________ day of ____________________, 2022, before me, the undersigned, a Notary Public for the State of Montana, personally appeared Bryan Klein, known to me to be the subdivider that executed the foregoing Improvements Agreement, and acknowledged to me that he executed the foregoing instrument as Manager of NWX, LLC, and acknowledged to me that he executed the same for and on behalf of NWX, LLC. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. ________________________________________ ________________________________________ (SEAL) (Printed & Signed name) Notary Public for the State of Montana Residing at _______________________________ My Commission Expires:____________________ (Use four digits for expiration year) Northwest Crossing Subdivision - Phase 1 Public Infrastructure Improvements Agreement 11 FUTURE OWNER: NWX Apartments LLC By: Bryan Klein _NWX Apartments LLC , Manager_______ (On behalf of) (Capacity) STATE OF ) :ss COUNTY OF ) On this ________ day of ____________________, 2022, before me, the undersigned, a Notary Public for the State of ____________________, personally appeared Bryan Klein, known to me to be the subdivider that executed the foregoing Improvements Agreement, and acknowledged to me that he executed the foregoing instrument as Manager of NWX Apartments LLC, and acknowledged to me that he executed the same for and on behalf of NWX Apartments LLC. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. ________________________________________ ________________________________________ (SEAL) (Printed & Signed name) Notary Public for the State of Montana Residing at _______________________________ My Commission Expires:____________________ (Use four digits for expiration year) Northwest Crossing Subdivision - Phase 1 Public Infrastructure Improvements Agreement 12 THE CITY OF BOZEMAN _______________________________ Anna Bentley Interim Director of Community Development Division STATE OF MONTANA) :ss County of GALLATIN ) On this _______ day of _________________, 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 Director of the City of Bozeman Department of Community Development, whose name is subscribed to the within instrument and acknowledged to me that they executed the same for and on behalf of said City. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. ________________________________________ ________________________________________ (SEAL) (Printed & Signed name) Notary Public for the State of Montana Residing at Bozeman My Commission Expires:____________________ (Use four digits for expiration year)