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HomeMy WebLinkAbout013 Improvements Agreement Landscaping & Sidewalk 2131 Graf Apartments Landscaping Improvements Agreement 1 Send Original to: City of Bozeman Department of Community Development P.O. Box 1230 Bozeman, MT 59771 IMPROVEMENTS AGREEMENT FOR 2131 GRAF APARTMENTS BOZEMAN, MONTANA (Landscaping & Sidewalk) THIS AGREEMENT is made and entered into this ______ day of __________________, 2023 by and between GRAF APARTMENTS LLC, hereinafter called the “Developer,” and the CITY OF BOZEMAN, a municipal corporation and political Development 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 Developer to meet the conditions of the Site Plan, Phase 2 Site Plan and the Master Plan approval, Planning Application No. 19308, 220615 & 19309, for the Site Plan, Phase 2 Site Plan and the Master Site Plan Plat application of 2131 Graf Apartments; and WHEREAS, it is the intent and purpose of the Developer to obtain Site Plan and Master Site Plan approval for 2131 Graf Apartments; and WHEREAS, the Site Plan and Master Site Plan for the 2131 Graf Apartments Development, was approved prior to the installation of all required improvements and an improvements agreement with financial security was provided; and WHEREAS, it is the intent and purpose of both the Developer and the City to hereby enter into an Agreement which will guarantee the full and satisfactory completion of the required improvements related with the property hereinafter described; and it is the intent of this Agreement, and of the parties hereto, to satisfy the improvements guarantee requirements for the Site Plan, Phase 2 Site Plan and the Master Site Plan approval for 2131 Graf Apartments. 2131 Graf Apartments Landscaping Improvements Agreement 2 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: Lot 2, Minor Sub 235 located in the northeast one-quarter, southeast one-quarter of Section 23, Township 2 South, Range 5 East, P.M.M., Gallatin County, Montana. 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 2131 Graf (Minor Subdivision: • Landscaping Improvements. The estimated construction cost of said improvements has been estimated by Madison Engineering 895 Technology Blvd, Suite 203, Bozeman, MT 59718 at: • One hundred and twenty-four thousand six hundred and thirty-seven dollars and 6 cents ($124,637.06) 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 Developer represents and agrees it will complete all Improvements as required by Site Plan, Phase 2 Site Plan and the Master Site Plan approval for the Development within three (3) years of the date of Phase I Site Plan approval. In reliance on such representation, the City consents to the Developer occupancy of Phase I prior to completion of the required Improvements. The Developer must maintain adequate financial security guaranteeing the 2131 Graf Apartments Landscaping Improvements Agreement 3 completion of the Improvements until such Improvements are accepted by the City. The Developer’s performance under this Agreement is specifically guaranteed and secured by a letter of credit __________________________ in the amount of One Hundred Twenty Four Thousand, Six-Hundred and thirty seven dollars and six cents ($124,637.06) (150% of estimated construction cost of improvements). B. Notwithstanding the time frame for completion of the Improvements stated in subsection A of this section, the City agrees the Developer may defer completion of the following Improvements to not later than three (3) years of the Phase I Site Plan approval: Landscaping C. Developer 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 time frames specified above and that the Financial Security may be drawn upon by the City without notice to the Developer and used by the City for completion of the Improvements in its sole discretion but only if the Developer fails to comply with the terms and conditions of this Agreement. D. Developer acknowledges the Financial Security lapses on _______________ and is subject to automatic renewal in one-year increments but in no case is the Financial Security valid beyond _________________. Developer also acknowledges the issuer of the Financial Security may give notice to the City of its intent to not renew the Financial Security but must do so no less than thirty (30) days prior to the expiration of the Financial Security or the Financial Security is extended for an additional year. As a result of the above, the Developer 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 of the Improvements such non-renewal may place the Developer in breach of this Agreement. In such a case, the Developer must, within ten (10) days of the Developer acquiring information of the issuer’s intent not to renew the Financial Security or the City’s notice to the Developer that the City received a notice from the issuer of the Financial Security that the issuer intends to not 2131 Graf Apartments Landscaping Improvements Agreement 4 renew the Financial Security, whichever is earlier, provide the City alternative financial security in a form acceptable to the City. Developer agrees that failure to provide such alternative financial security within 10 days of the City’s notice or the Developer acquiring knowledge of the issuer’s non-renewal shall be deemed a material breach of this Agreement and the City may, without any further notice to the Developer, draw upon the Financial Security for the costs of any outstanding Improvements at 150% of the City’s estimate construction cost of such Improvements regardless of the costs estimates included in Exhibit A and regardless of whether the timeframe for completion of such improvements has passed. E. The Developer agrees that no delegation of performance required by this agreement shall relieve the Developer of any duty to perform or any liability for the breach of that duty to complete said Development improvements required for the Development. F. Upon submission of fully documented invoices for the work performed, said work to be inspected and certified for payment by Developer’s professional engineers and the City and or its agents as necessary, the City may release a portion of the Financial 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 Developer is in compliance with this Agreement, and the Developer shall permit the City and its representatives to enter upon and inspect the Development at any reasonable time. 5. Default Time is of the essence of this Agreement. If the Developer 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 Developer at PO Box 11890 2131 Graf Apartments Landscaping Improvements Agreement 5 Bozeman MT 59719 or such other address as the Developer 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 Development and perform such work and inspection, and the Developer 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 Developer. B) The City may enforce any other remedy provided by law. 6. Indemnification To the fullest extent permitted by law, Developer 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 Developer in regards to the Development; (ii) any negligent, reckless, or intentional misconduct of any of the Developer’s agents in regards to the Development. 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 2131 Graf Apartments Landscaping Improvements Agreement 6 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). Developer’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 Developer to assert its right to defense or indemnification under this Agreement or under the Developer’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 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. Developer 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 City Attorney. 2131 Graf Apartments Landscaping Improvements Agreement 7 8. Warranty The Developer 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 Developer 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 2131 Graf Apartments Landscaping Improvements Agreement 8 The Developer shall have this Agreement recorded in the Office of the Gallatin County Clerk and Recorder within ten (10) business days of the signature of the Community Development Director. DEVELOPER _______________________________________ BY: GRAF APARTMENTS LLC TITLE: STATE OF _____________ ) :ss County of _________ ) On this _____ day of _____ 20___, before me, a Notary Public of the State of ___________, personally appeared __________________, known to me to be the Developer that executed the foregoing Improvements Agreement, and acknowledged to me that (s)he executed the foregoing instrument as ___________________________ of Graf Apartments LLC, and acknowledged to me that (s)he executed the same for and on behalf of Graf Apartments LLC. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) ________________________________ (Printed Name Here) Notary Public for the State of _________ Residing at _______________________ My Commission Expires:____________ (Use 4 digits for expiration year) 2131 Graf Apartments Landscaping Improvements Agreement 9 THE CITY OF BOZEMAN _______________________________________ BY: MARTIN MATSEN DIRECTOR OF COMMUNITY DEVELOPMENT CITY OF BOZEMAN STATE OF MONTANA ) :ss County of Gallatin ) On this _____ day of ________________ 20___, before me, a Notary Public for the State of Montana, personally appeared Martin Matsen, known to me to be the person described in and who executed the foregoing instrument as Director of Community Development for the City of Bozeman, whose name is subscribed to the within instrument and acknowledged to me that he 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. (SEAL) _________________________________________ (Printed Name Here) Notary Public for the State of Montana Residing at _______________________ My Commission Expires:____________ (Use 4 digits for expiration year) Street Frontage Lot Frontage Sidewalk Area Lot Frontage Landscape Area South 21st - East Side (SF)2,425 3,153 South 21st - West Side (SF)2,425 3,153 Graf Street - East Side (SF)2,800 4,200 Graf Street - West Side (SF)3,125 4,688 South 21st Subtotal (SF) 4,850 6,305 Graf Street Subtotal (SF)5,925 8,888 Total Sidewalk Area (SF)10,775 15,193 Unit Price/SF $7.50 $0.15 Estimated Construction Cost $80,812.50 $2,278.88 Exhibit B 2131 Graf Apartments - Phase II Right-of-Way Sidewalk and Seeding Quantities Totals $124,637.06Financial Guarantee (150% Bonding) Total Estimated Construction Cost $83,091.38