HomeMy WebLinkAbout020 Eastlake Professional Center Improvements Agreement
East Lake Professional Center Master Site Plan Modification
Curb Improvements Agreement
1
Send Original to:
City of Bozeman
Department of Community Development
P.O. Box 1230
Bozeman, MT 59771
IMPROVEMENTS AGREEMENT
FOR EAST LAKE PROFESSIONAL CENTER SUBDIVISION
MASTER SITE PLAN MODIFICATION
BOZEMAN, MONTANA
(CURB)
THIS AGREEMENT is made and entered into this ______ day of __________________,
2023 by and between BZN Hotel 2, 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
Master Site Plan Modification of the Master Site Plan of East Lake Professional Center
Subdivision; and
WHEREAS, it is the intent and purpose of the Developer to obtain Master Site Plan
Modification approval for East Lake Professional Center Subdivision; and
WHEREAS, the Master Site Plan Modification for East Lake Professional Center
Subdivision 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
Master Site Plan Modification approval for East Lake Professional Center Subdivision.
East Lake Professional Center Master Site Plan Modification
Curb Improvements Agreement
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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, 2, and 3 of Eastlake Professional Center Subdivision located in the
Southwest Quarter of Section 26, Township 1 South, Range 5 East, P.M.M., City of
Bozeman, 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 improvements: Curb Improvements. The
estimated construction cost of said improvements has been estimated by Madison Engineering 895
Technology Blvd, Suite 203, Bozeman, MT 59718 at:
The Curb Improvements along east Boundary of Phase I of the Eastlake Professional
Center Subdivision Master Site Plan Modification
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
Master Site Plan Modification approval for the Development within three (3) years of the
date of commencement of Phase I construction. In reliance on such representation, the City
consents to the Developer occupancy of all Phase I building prior to completion of the
required Improvements. The Developer must maintain adequate financial security
guaranteeing the completion of the Improvements until such Improvements are accepted
East Lake Professional Center Master Site Plan Modification
Curb Improvements Agreement
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by the City. The Developer’s performance under this Agreement is specifically guaranteed
and secured by either a cash deposit or a letter of credit in the amount of Eleven Thousand
Seven Hundred Forty Eight and No/100 Dollars ($11,748.00) (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 within three (3) years of the date of commencement of Phase II construction.
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 Guarantee is subject to automatic renewal in one-
year increments but in no case is the Financial Security valid beyond September 1, 2026.
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 renew the Financial
Security, whichever is earlier, provide the City alternative financial security in a form
East Lake Professional Center Master Site Plan Modification
Curb Improvements Agreement
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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
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
East Lake Professional Center Master Site Plan Modification
Curb Improvements Agreement
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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
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
East Lake Professional Center Master Site Plan Modification
Curb Improvements Agreement
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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.
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.
East Lake Professional Center Master Site Plan Modification
Curb Improvements Agreement
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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
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.
East Lake Professional Center Master Site Plan Modification
Curb Improvements Agreement
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DEVELOPER
_______________________________________
BY:
BZN Hotel 2 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 BZN Hotel 2 LLC, and
acknowledged to me that (s)he executed the same for and on behalf of BZN Hotel 2 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:____________
East Lake Professional Center Master Site Plan Modification
Curb Improvements Agreement
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THE CITY OF BOZEMAN
_______________________________________
BY: ANNA BENTLEY
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 Anna Bentley, 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)
5/19/2023
ITEM
No.ITEM DESCRIPTION Quantity Unit Unit Price Sub Total
Curb Installation
1 Curb and Gutter - Complete 356 CY $22.00 $7,832.00
Total $7,832.00
150% of Construction Costs $11,748.00
Exhibit A
East Lake Professional Center Master Site Plan Modification
Phase I Boundary Curb Installation Estimate
2131 Graf
Schedule A
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KEY NOTES
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C1.0 SITE PLANSITE PLAN
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60'15'30'
BLOCK FRONTAGE
MIXED LANDSCAPEBLOCK FRONTAGEMIXED LANDSCAPESHEETMADISON ENGINEERING895 TECHNOLOGY BLVD, SUITE 203BOZEMAN, MT 59718(406) 586-0262 (406) 586-5740 FAXEASTLAKE MSP MODMSP MOD FOR LOTS 1A & 3A OFEASTLAKE PROFESSIONAL CENTERSUBDIVISIONBOZEMAN, MT