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HomeMy WebLinkAbout22- Infrastructure Reimbursement Agreement - NWX, LLC & WH Bozeman NWX 358, LLC - Lowering the Existing Trunk Sewer Main in Baxter LanePage 1 of 8 CITY OF BOZEMAN INFRASTRUCTURE REIMBURSEMENT AGREEMENT THIS INFRASTRUCTURE REIMBURSEMENT AGREEMENT (this “Agreement”) is made and effective this _____ day of ____________, 2022, by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City”, NWX, LLC, with a mailing address of PO Box 4082, Bozeman, MT, 59772, hereinafter referred to as “Developer”, and WH Bozeman NWX 358 LLC, a Delaware limited liability company, with a mailing address of 24911 Avenue Stanford, Santa Clarita, CA 91355, hereinafter referred to as “Future Owner” who intends to purchase the property and fulfill the terms of this Agreement. WHEREAS, Developer and Future Owner desire to complete certain public wastewater system improvements to benefit their development project, Major Subdivision Development Application #20113, Northwest Crossing (the “Development”) and the City consents to accommodate Developer’s request and in doing so the City agrees to augment ongoing street improvement projects SIF-138, Cottonwood Road, and SIF-086, Intersection of Baxter and Cottonwood (the “Project”) to include the Improvements (as hereinafter defined) for the benefit of Developer and Future Owner; WHEREAS, Developer and Future Owner will pay for all costs of the Improvements to the Project desired by Developer which will provide a benefit to the Development; WHEREAS, the Improvements include the design and construction of sewer main improvements from existing Manhole #1A (Baxter Lane) of the Norton East Ranch Sewer Outfall of the Davis Lane Lift Station & Norton Sewer, Project Number 19012, west along Baxter Lane to the eventual west side of the SIF-086, Intersection of Baxter and Cottonwood improvements and other related wastewater system improvements; and WHEREAS, the City, Developer, and Future Owner desire to set forth the terms of their agreement in writing. DocuSign Envelope ID: E9BD39A1-FB39-4E3A-879E-B43A8257E932 November15 Page 2 of 8 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. Incorporation: The foregoing recitals of this Agreement are contractual and are hereby incorporated by reference. 2. Improvements: The design and construction of improvements to the Project (the “Improvements”) are generally shown in the attached conceptual modifications to the Project (Exhibit 1). 3. Contracts for Design and Construction of Project: Developer intends for the design engineering to be conducted under current contracts let by Developer and intends to have the City bid the Improvements with CIP projects SIF-138, Cottonwood Road, and SIF-086, Intersection of Baxter and Cottonwood. In order for the Project to proceed, the City Commission must approve the Notice of Award after the bids are received. As such, Developer and Future Owner understand completion of the construction of the Improvements in the Project is contingent upon the Bozeman City Commission awarding the Project. Developer and Future Owner also agree that timing of construction of the Improvements is in the sole discretion of the City. Developer or Future Owner will be obligated to pay the City for all cost associated with the Improvements. This Agreement does not give Developer or Future Owner any interest or control in how the City completes the Improvements nor does Developer or Future Owner have an interest in or become a beneficiary of the City’s design, engineering, or construction contracts. 4. Project Costs: City will provide Developer and Future Owner the final contract pricing from the City’s contractor and engineer at least ten (10) days before it is submitted to the City Commission. Developer shall have the right, prior to approval by the City Commission, to terminate this Agreement if the final contract pricing is not acceptable to Developer in Developer’s sole discretion. Developer and Future Owner specifically recognize and agree the ultimate financial obligation for the Improvements will be based on the actual final costs of the Improvements as determined by the contract. 5. Payment: Developer or Future Owner must pay the amount for the actual work for the completed Improvements within thirty (30) days after final completion of the Improvements, such final completion date being the date on which the Improvements have passed all inspections required by the City and the City has formally accepted the Improvements as complete via written approval. DocuSign Envelope ID: E9BD39A1-FB39-4E3A-879E-B43A8257E932 Page 3 of 8 6. Waiver of Claims/Limitation of Liability/Indemnity: To the fullest extent permitted by law, Developer and Future Owner waive any and all claims against the City, its officers and employees, agents, insurers, and consultants for or entitlement to special, incidental, indirect, or consequential damages arising out of, resulting from, or in any way related to the City’s construction of the Improvements, including delay of completion of the Project that may affect the Development. Furthermore, Developer and Future Owner recognize that if the City does not complete the construction of the Improvements as part of the Project, Developer’s sole and exclusive remedy against the City is for the City to return the Construction portion of Project Costs provided by Developer at the time of contract resolution; however, as noted above, City will not reimburse the design portion of Improvement Costs. In addition to the above, Developer and Future Owner shall defend and indemnify the City from any claims brought against the City by any of Developer’s or Future Owner’s partners, investors, creditors, lenders, agents, or any other entity associated with Developer, Future Owner or the Development for claims related to delay of or failure to complete the Improvements, provided the Improvements are completed to the required specifications and provide the benefit to the Development as contemplated herein, or the City has refunded to Developer the preliminary or actual costs paid by Developer in the event the Improvements are not completed. 7. City Not Bound In Its Regulatory Authority: Developer and Future Owner recognize the City enters this Agreement in its capacity as a municipality constructing public infrastructure and not in its regulatory role. As such, Developer and Future Owner agree that nothing herein binds the City to make certain approvals in its regulatory authority in review of subdivision, zoning, building or other regulatory applications. 8. Representations and Warranties: Each party represents and warrants to the other that: a. Execution of this Agreement does not violate any agreement, bylaw, statute or ordinance binding on or applicable to such party; and b. The individual executing this Agreement on behalf of the party is duly authorized and empowered to execute this Agreement for the party and following execution and delivery by both parties this Agreement will be a legally binding obligation of the party, enforceable against the party in accordance with its terms. 9. Representatives and Notices: DocuSign Envelope ID: E9BD39A1-FB39-4E3A-879E-B43A8257E932 Page 4 of 8 a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Bob Murray, Project Engineer, or such other individual as the City shall designate in writing. Whenever approval or authorization from or communication or submission to the 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 the City’s Representative is not available, Developer may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Developer’s Representative: Developer’s Representative for the purpose of this Agreement shall be Parker Lange or such other individual as Developer shall designate in writing. Whenever direction to or communication with Developer is required by this Agreement, such direction or communication shall be directed to Developer’s Representative; provided, however, that in exigent circumstances when Developer’s Representative is not available, the City may direct its direction or communication to other designated Developer personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to the party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the party’s Representative; or on the fifth (5th) business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 10. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. Neither Developer nor Future Owner may subcontract or assign its rights, including duties and obligations arising hereunder, without the prior written consent of the City, which shall not be unreasonably withheld. The City acknowledges that Developer may assign and Future Owner may assume the obligations of Developer under this Agreement, but Developer shall remain obligated until the payment obligation required in Section 5 is satisfied. 11. Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or condition or to pursue any available legal or equitable rights in the event of any subsequent default or breach. DocuSign Envelope ID: E9BD39A1-FB39-4E3A-879E-B43A8257E932 Page 5 of 8 12. Attorneys’ Fees and Costs: In the event it becomes necessary for either party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing party or the party giving notice shall be entitled to reasonable attorneys’ fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 13. Dispute Resolution: a. Any claim, controversy, or dispute 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 applicable law provisions of this Agreement. 14. Survival: Developer’s and Future Owner’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 15. Headings: The headings used in this Agreement are for convenience only and are not to be construed as a part of this Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 16. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 17. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 18. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 19. 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. DocuSign Envelope ID: E9BD39A1-FB39-4E3A-879E-B43A8257E932 Page 6 of 8 20. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 21. Integration: This Agreement and all exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein 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. 22. Consent to Electronic Signatures: The parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** DocuSign Envelope ID: E9BD39A1-FB39-4E3A-879E-B43A8257E932 Page 7 of 8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. Dated this ____ day of _______________, 2022 NWX, LLC By: Bryan Klein, Managing Member Dated this ____ day of _______________, 2022 WH Bozeman NWX 358 LLC, a Delaware limited liability company Print Name: Title: By: Dated this ____ day of _______________, 2022 CITY OF BOZEMAN _________________________________________ Print Name: Title: By: 2906096.2 DocuSign Envelope ID: E9BD39A1-FB39-4E3A-879E-B43A8257E932 November18 Jason Leep 18 November DIV Pres City Manager Jeff Mihelich 15 November Page 8 of 8 Exhibit 1 Improvement Conceptual Plans DocuSign Envelope ID: E9BD39A1-FB39-4E3A-879E-B43A8257E932