HomeMy WebLinkAboutResolutions 5596 - Approving a Project in the Midtown Urban Renewal District Known as the 7th and Aspen Project
RESOLUTION NO. 5596
RESOLUTION APPROVING A PROJECT IN THE BOZEMAN MIDTOWN URBAN
RENEWAL DISTRICT AS AN URBAN RENEWAL PROJECT; MAKING FINDINGS
WITH RESPECT THERETO AND APPROVING THE USE OF TAX INCREMENT
REVENUES TO REIMBURSE ELIGIBLE COSTS THEREOF AND APPROVING A
RELATED DEVELOPMENT AGREEMENT
BE IT RESOLVED by the City Commission (the “Commission”) of the City of
Bozeman, Montana (the “City”), as follows:
Section 1
Recitals.
1.01. Under the provisions of Montana Code Annotated, Title 7, Chapter 15, Parts 42 and
43, as amended (the “Act”), the City is authorized to create urban renewal areas, prepare and
adopt an urban renewal plan therefor and amendments thereto, undertake urban renewal projects
therein, provide for the segregation and collection of tax increment with respect to property taxes
collected in such areas, and apply tax increment revenues derived from projects undertaken
within the urban renewal area to pay eligible costs.
1.02. Pursuant to the Act and Ordinance No. 1685 adopted by the Commission on
November 27, 2006, as amended by Ordinance No. 1925, adopted by the Commission on
December 16, 2015 (collectively, the “Ordinance”), the City has created the Bozeman Midtown
Urban Renewal District (the “District”) as an urban renewal district and has approved the
Bozeman Midtown Urban Renewal Plan (the “Plan”) as an urban renewal plan in accordance
with the Act, which Plan provides for the segregation and collection of tax increment revenues
with respect to the District.
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Resolution 5596, Approving a Project in the Midtown URD Known as the 7th and Aspen Project
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1.03. Boundary Development, LLC (the “Developer”) or affiliated entities, together with
Midtown Aspen, LLC, owns certain property in the District (collectively, the “Land”). The
Developer, together with Midtown Aspen, LLC and the Human Resource Development Council
(“HRDC”), proposes to undertake a project on the Land in two phases. Phase I is or will be
owned by Midtown Aspen LLC, a Delaware limited liability company, or an affiliated entity,
and consists of the design, engineering and construction of a four-story apartment building
containing 46 residential rental units, 29 of which are expected to be affordable at 60% area
median income (“AMI”) and 17 of which are expected to be affordable at 50% AMI, together
with residential common space and related improvements (“Phase I of the Project”), which will
be located on “Lot 4A”. Phase I of the Project will be financed in part with low income housing
tax credits awarded or allocated to Midtown Aspen 4 LLLP, a Montana limited liability limited
partnership, and Midtown Aspen 9 LLLP, a Montana limited liability limited partnership, which
will each own condominium units comprised of the residential housing units upon which such
tax credits were awarded or allocated. Phase I of the Project will be subject to a regulatory
agreement or similar instrument restricting the use of Lot 4A to affordable housing meeting
certain requirements, and will be owned and operated in partnership with HRDC.
The second phase of the project is expected to consist of the design, engineering and
construction of a four-story apartment building containing 50 residential rental units, all of which
are expected to be workforce housing affordable at 80% AMI, together with residential common
areas and related improvements (“Phase II of the Project” and, collectively with Phase I of the
Project, the “Project”), which will be located on “Lot 6A.” Phase II of the Project will be owned
by Developer or an affiliated entity.
The under the Act, permissible uses of tax increment and tax increment financing include
the acquisition, construction and improvement of public improvements or infrastructure, with
“infrastructure” defined to include “workforce housing.” Although “workforce housing” is not
defined in the Act, Section 90-6-143, Montana Code Annotated, defines “attainable workforce
housing” as housing of a cost that a household earning between 60% and 140% of median
household income would spend no more than 30% of gross monthly income to attain.
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Resolution 5596, Approving a Project in the Midtown URD Known as the 7th and Aspen Project
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The Developer has requested that the City use tax increment revenues of the District to
reimburse the Developer with respect to certain eligible costs of the Project (the “Eligible
Costs”). The Eligible Costs include costs of the demolition of existing structures on the Land,
together with the design, engineering and construction of infrastructure, including water, sewer,
storm water, streets, sidewalks, curbs and gutters serving the entire Project and certain costs of
the workforce housing, and related improvements, as well as certain fees or charges pertaining to
the Project.
Section 2
Approval of the Project as an Urban Renewal Project.
The Commission hereby approves the Project as an urban renewal project under the Act
and the Plan. The Project, including the Eligible Costs, is contemplated by and within the scope
of the Plan, and the Eligible Costs are eligible for tax increment financing under the Act.
Section 3
Findings.
The Commission hereby finds with respect to the Project as follows:
a. no persons will be displaced from their housing by the Project;
b. the Plan and the Project conform to the Bozeman Community Plan or parts
thereof for the City as a whole;
c. the Plan and the Project will afford maximum opportunity, consistent with
the needs of the City as a whole, for the rehabilitation or redevelopment of the
District by private enterprise;
d. taking into account the use of tax increment revenues to reimburse the
Developer for all or a portion of the Eligible Costs, there is expected to be a sound
and adequate financial program for the financing of the Project;
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e. the Project constitutes an urban renewal project within the meaning of the
Act and the Plan; and
f. the Project is a means to provide safe, sanitary and healthful workforce
housing, which constitutes a public purpose and a public use for which tax
increment funds may be spent.
Section 4
Development Agreement; Use of Tax Increment.
4.01. Staff of the City’s Economic Development Department and the Developer have
negotiated a Development Agreement, the form of which is attached hereto as Exhibit A. The
Development Agreement is hereby approved in substantially the form attached. The Interim City
Manager, or in the event of his absence or disability, his designee, is hereby authorized and
directed to finalize, approve, execute and deliver to the Developer the Development Agreement,
substantially in the form attached as Exhibit A, with such changes as such officer shall deem
necessary or appropriate. The execution and delivery by an appropriate officer of the City of the
Development Agreement shall be conclusive as to the approval of such officer of the terms of the
Development Agreement.
4.02. The Commission hereby approves the use of tax increment revenues to reimburse
the Developer for Eligible Costs of the Project, subject to the terms and conditions of the
Development Agreement.
PASSED, ADOPTED, AND APPROVED by the City Commission of the City of
Bozeman, Montana, at a regular session thereof held on the 21 day of May, 2024.
___________________________________
TERRY CUNNINGHAM
Mayor
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Resolution 5596, Approving a Project in the Midtown URD Known as the 7th and Aspen Project
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ATTEST:
___________________________________
MICHAEL MAAS
City Clerk
APPROVED AS TO FORM:
___________________________________
GREG SULLIVAN
City Attorney
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CERTIFICATE AS TO RESOLUTION AND ADOPTING VOTE
I, the undersigned, being the duly qualified and acting recording officer of the City of
Bozeman, Montana (the “City”), hereby certify that the attached resolution is a true copy of
Resolution No. 5596 entitled: “RESOLUTION APPROVING A PROJECT IN THE
MIDTOWN URBAN RENEWAL DISTRICT AS AN URBAN RENEWAL PROJECT;
MAKING FINDINGS WITH RESPECT THERETO AND APPROVING THE USE OF
TAX INCREMENT REVENUES TO REIMBURSE ELIGIBLE COSTS THEREOF AND
APPROVING A RELATED DEVELOPMENT AGREEMENT” (the “Resolution”), on file in
the original records of the City in my legal custody; that the Resolution was duly adopted by the
City Commission of the City at a regular meeting on May 21, 2024, and that the meeting was duly
held by the City Commission and was attended throughout by a quorum, pursuant to call and notice
of such meeting given as required by law; and that the Resolution has not as of the date hereof
been amended or repealed.
I further certify that, upon vote being taken on the Resolution at said meeting, the following
Commission members voted in favor thereof:
; voted against the same:
; abstained from voting thereon: ; or
were absent: .
WITNESS my hand and seal officially this [___] day of [___________], 2024.
(SEAL)
__________________________________
MIKE MAAS
City Clerk
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Morrison
Cunningham, Madgic, Fischer
none
none
May21st
Resolution 5596, Approving a Project in the Midtown URD Known as the 7th and Aspen Project
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EXHIBIT A
[Form of Development Agreement]
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DEVELOPMENT AGREEMENT
(7th and Aspen)
This DEVELOPMENT AGREEMENT (this “Agreement”) is dated as of May 21, 2024,
by and between BOUNDARY DEVELOPMENT, LLC (the “Developer”) and the CITY OF
BOZEMAN, MONTANA, 121 N. Rouse Ave., Bozeman, Montana 59771 (the “City”). The
Developer and the City are each individually referred to herein as a “Party” and collectively as
the “Parties.”
RECITALS:
WHEREAS, under the provisions of Montana Code Annotated, Title 7, Chapter 15, Parts
42 and 43, as amended (the “Act”), the City is authorized to create urban renewal areas, prepare
and adopt an urban renewal plan therefor and amendments thereto, undertake urban renewal
projects therein, provide for the segregation and collection of tax increment with respect to
property taxes collected in such areas, and apply tax increment revenues derived from projects
undertaken within the urban renewal area to pay eligible costs; and
WHEREAS, pursuant to the Act and Ordinance No. 1685 adopted by the City
Commission of the City (the “City Commission”) on November 27, 2006, as amended by
Ordinance No. 1925, adopted by the City Commission on December 16, 2015 (collectively, the
“Ordinance”), the City has created the Bozeman Midtown Urban Renewal District (the
“District”) as an urban renewal district and has approved the Bozeman Midtown Urban Renewal
Plan (the “Plan”) as an urban renewal plan in accordance with the Act, which Plan provides for
the segregation and collection of tax increment revenues with respect to the District; and
WHEREAS, the Developer or affiliated entities, together with Midtown Aspen, LLC,
owns certain property in the District, legally described on Exhibit B hereto (collectively, the
“Land”), and together with Midtown Aspen, LLC and the Human Resource Development
Council (“HRDC”), Developer proposes to undertake a project on the Land in two phases. Phase
I is or will be owned by Midtown Aspen LLC, a Delaware limited liability company, or an
affiliated entity, and consists of the design, engineering and construction of a four-story
apartment building containing 46 residential rental units, 29 of which are expected to be
affordable at 60% area median income (“AMI”) and 17 of which are expected to be affordable at
50% AMI, together with residential common space and related improvements (“Phase I of the
Project”), which will be located on “Lot 4A”. Phase I of the Project will be financed in part with
low income housing tax credits awarded or allocated to Midtown Aspen 4 LLLP, a Montana
limited liability limited partnership, and Midtown Aspen 9 LLLP, a Montana limited liability
limited partnership, who will each own condominium units comprised of the residential housing
units upon which such tax credits were awarded or allocated. Phase I of the Project will be
subject to a regulatory agreement or similar instrument restricting the use of Lot 4A to affordable
housing meeting certain requirements, and will be owned and operated in partnership with
HRDC; and
WHEREAS, the second phase of the project is expected to consist of the design,
engineering and construction of four-story apartment building containing 50 residential rental
units, all of which are expected to be workforce housing affordable at 80% AMI, together with
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residential common areas and related improvements (“Phase II of the Project” and, collectively
with Phase I of the Project, the “Project”), which will be located on “Lot 6A”. Phase II of the
Project will be owned by Developer or an affiliated entity. The current budget for the Project is
set forth on Exhibit A hereto; and
WHEREAS, under the Act, permissible uses of tax increment and tax increment
financing include the acquisition, construction and improvement of public improvements or
infrastructure, with “infrastructure” defined to include “workforce housing;” and
WHEREAS, although “workforce housing” is not defined in the Act, Section 90-6-143,
Montana Code Annotated, defines “attainable workforce housing” as housing of a cost that a
household earning between 60% and 140% of median household income would spend no more
than 30% of gross monthly income to attain; and
WHEREAS, the Developer has requested tax increment assistance with respect to certain
eligible costs of the Project; and
WHEREAS, pursuant to Resolution No. 5596 adopted on May 21, 2024, the City
Commission approved the Project as an urban renewal project under the Plan and the Act and
authorized the use of tax increment revenue of the District to reimburse the Developer for certain
eligible costs of the Project described more particularly on Exhibit C hereto (the “Eligible
Costs”) in the maximum amount of $3,024,061, subject to the terms and conditions of this
Agreement; and
WHEREAS, certain of the Eligible Costs are costs paid by the Developer in connection
with the demolition of existing structures on the Land, together with the design, engineering and
construction of infrastructure, including water, sewer, storm water, streets, sidewalks, curbs and
gutters serving the entire Project and certain costs of the workforce housing to be provided by
Phase II of the Project and related improvements (the “Infrastructure Improvements”), and
certain of the Eligible Costs are costs to be paid by the Developer as fees or charges pertaining to
the Project (the “Project Fees and Charges”); and
WHEREAS, as a condition to the City’s reimbursing the Developer for Eligible Costs,
the Developer will record the Restrictive Covenants (as hereinafter defined) against Lot 6A,
which will require the long-term use of that property for workforce housing; and
WHEREAS, the City Commission expects to reimburse the Developer for Eligible Costs
solely out of Tax Increment, as further described herein; and
WHEREAS, the Parties desire to enter into this Agreement which sets forth the
obligations and commitments of the Parties with respect to the Project and the Eligible Costs.
NOW, THEREFORE, the City and the Developer, pursuant to the Act, each in
consideration of the representations, covenants and agreements of the other, as set forth herein,
mutually represent, covenant and agree as follows:
Section 1. Definitions; Rules of Interpretation; Exhibits.
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1.1. Definitions. For all purposes of this Agreement, except as otherwise expressly
provided or unless the context clearly requires otherwise, the following terms have the meanings
assigned to them, respectively:
“Act” means Montana Code Annotated, Title 7, Chapter 15, Parts 42 and 43, as amended
or supplemented.
“Agreement” means this Development Agreement, dated as of May 21, 2024, by and
between the City and the Developer, as it may be amended or supplemented from time to time in
accordance with the terms hereof.
“City” means the City of Bozeman, Montana, or any successors to its functions under this
Agreement.
“City Commission” means the governing body of the City.
“Developer” means Boundary Development, LLC, a Montana limited liability company,
or affiliated entities, and its successors and assigns in accordance with and as permitted under
this Agreement.
“Developer Certificate” means the certificate attached hereto as Exhibit E.
“District” means the Bozeman Midtown Urban Renewal District, an urban renewal
district created by the Ordinance pursuant to the Act, as such may be enlarged or reduced from
time to time in accordance with the Act.
“DOR” means the State of Montana Department of Revenue.
“Eligible Costs” means the costs identified as such on the attached Exhibit C.
“Environmental Laws and Regulations” means and includes the Federal Comprehensive
Environmental Compensation Response and Liability Act (“CERCLA” or the “Federal
Superfund Act”) as amended by the Superfund Amendments and Reauthorization Act of 1986
(“SARA”), 42 U.S.C. §§ 9601 et seq.; the Federal Resource Conservation and Recovery Act of
1976 (“RCRA”), 42 U.S.C. §§ 6901 et seq.; the Clean Water Act, 33 U.S.C. § 1321 et seq.; and
the Clean Air Act, 42 U.S.C. §§ 7401 et seq., all as the same may be from time to time amended,
and any other federal, state, county, municipal, local or other statute, code, law, ordinance,
regulation, requirement or rule which may relate to or deal with human health or the environment
including without limitation all land use, zoning, and stormwater control regulations as well as
all regulations promulgated by a regulatory body pursuant to any statute, code, law, ordinance,
regulation, requirement or rule.
“Fiscal Year” means the period commencing on the first day of July of any year and
ending on the last day of June of the next calendar year, or any other twelve-month period
authorized by law and specified by the Commission as the City’s fiscal year.
“Indemnified Parties” has the meaning given to it in Section 7.1.
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“Infrastructure Improvements” means the demolition of existing structures on the Land,
together with the design, engineering and construction of infrastructure, including water, sewer,
storm water, streets, sidewalks, curbs and gutters serving the entire Project and certain costs of
the workforce housing, and related improvements.
“Land” has the meaning given to it in the recitals.
“Land Use Regulations” means all federal, state and local laws, rules, regulations,
ordinances and plans relating to or governing the development or use of the Land or the Project.
“Lot 4A” means that portion of the Land on which Phase I of the Project will be
constructed.
“Lot 6A” means that portion of the Land on which Phase II of the Project will be
constructed.
“Milestone” or “Milestones” has the meaning given in Section 3.4 hereof.
“Milestone Date” or “Milestone Dates” has the meaning given in Section 3.4 hereof.
“Ordinance” means Ordinance No. 1685 adopted by the City Commission on November
27, 2006, as amended by Ordinance No. 1925, adopted by the City Commission on December
16, 2015.
“Original Resolution” means Resolution No. 5131, adopted by the City Commission on
July 6, 2020, pursuant to which the City issued the Series 2020 Bonds.
“Person” means any individual, corporation, limited liability company, partnership,
limited liability partnership, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
“Phase I of the Project” has the meaning given to it in the recitals.
“Phase II of the Project” has the meaning given to it in the recitals.
“Prevailing Wage Rates” means the Montana Prevailing Wage Rate for public works
projects as published from time to time by and available from the Montana Department of Labor
and Industry, Research and Analysis Bureau, P.O. Box 1728, Helena, Montana 59624, telephone
number (800) 541-3904.
“Project” means the facilities to be constructed by the Developer on the Land in
accordance with this Agreement, as described more particularly in the recitals hereto.
“Project Fees and Charges” means those fees and charges pertaining to the Project that
form a part of the Eligible Costs, including cash in lieu of water rights and parkland and impact
fees.
“Restrictive Covenants” has the meaning given to it in Section 3.12 hereof.
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“Series 2020 Bonds” means the Tax Increment Urban Renewal Revenue Bonds
(Bozeman Midtown Urban Renewal District), Series 2020, issued in the principal amount of
$6,500,000 pursuant to the Original Resolution.
“State” means the State of Montana.
“Tax Increment” means the amount received by the City pursuant to the Act from the
extension of levies of Taxes (expressed in mills) against the incremental taxable value (as
defined in the Act) of all Taxable Property, and shall include all payments in lieu of Taxes
attributable to the incremental taxable value and all payments received by the City designated as
replacement revenues for lost Tax Increment.
“Taxable Property” means all real and personal property located in the District and
subject to Taxes, including land, improvements and equipment.
“Taxes” means all taxes levied on an ad valorem basis by any Taxing Body against the
Taxable Property (exclusive of the six mill levy for university purposes levied by the State and
any other mills that may hereafter be excluded from the calculation of increment by the Act), and
shall include all payments in lieu of taxes received by the City with respect to Taxable Property.
“Taxing Body” means the City; the County of Gallatin, Montana; High School District
No. 7 (Bozeman), Gallatin County, Montana; Elementary School District No. 7 (Bozeman),
Gallatin County, Montana; the State; and any other political subdivision or governmental unit
that levies or may hereafter levy or cause to be levied Taxes against property within the District.
“Unavoidable Delay” means a delay resulting from a cause over which the Party required
to perform does not have control and which cannot or could not have been avoided by the
exercise of reasonable care, including but not limited to, acts of God, accidents, war, civil unrest,
embargoes, strikes, unavailability of raw materials or manufactured goods, litigation, pandemics,
epidemics, labor shortages, unusual permitting delays, unusually inclement weather and the
delays of the other Party or its contractors, agents or employees in the performance of their
duties under or incident to this Agreement.
“Workforce Housing Covenants” has the meaning given to it in Section 3.12 hereof.
“Workforce Housing Units” has the meaning given to it in Section 3.12 hereof.
1.2. Rules of Interpretation.
(a) The words “herein,” “hereof” and words of similar import, without reference to
any particular section or subdivision, refer to this Agreement as a whole rather than to any of its
particular sections or subdivisions.
(b) References to any particular section or subdivision hereof are to the section or
subdivision of this Agreement in its original signed form, unless otherwise indicated.
(c) The word “or” is not exclusive but is intended to contemplate or encompass one,
more or all of the alternatives conjoined.
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1.3. Exhibits. The following Exhibits are attached to and by reference made a part of
this Agreement:
Exhibit A: Project Costs
Exhibit B: Description of the Land
Exhibit C: Eligible Costs
Exhibit D: Milestones
Exhibit E: Form of Developer Certificate and Request
Exhibit F: Nondiscrimination and Equal Pay Affirmation
Exhibit G: Form of Restrictive Covenants
Section 2. Representations.
2.1. City Representations. The City hereby represents as follows:
(a) Pursuant to the Act, and after a public hearing duly called and held, the City by
the Ordinance has duly created the District.
(b) Pursuant to the Original Resolution, the City has issued and there are outstanding
the Series 2020 Bonds. In the Original Resolution, the City reserved the right to issue
obligations having a lien on Tax Increment subordinate to the lien of the Series 2020 Bonds
(“Subordinate Obligations”). Any obligation of the City to make payments under this
Agreement constitutes a Subordinate Obligation under the Original Resolution, subordinate and
junior in all respects to the repayment of the Series 2020 Bonds and the replenishment of the
debt service reserve account for the Series 2020 Bonds, and subject to all other terms and
conditions of the Original Resolution.
(c) Pursuant to Resolution No. 5596 of the City Commission, the City Commission
authorized the execution and delivery by the City of this Agreement and approved the use of Tax
Increment, if available, to reimburse the Eligible Costs in a total amount not to exceed
$3,024,061.
(d) The City has found and determined that the Project is a means to provide safe,
sanitary and healthful workforce housing, which constitutes a public purpose and a public use for
which tax increment funds may be spent.
2.2. Developer Representations. The Developer hereby represents as follows:
(a) The Developer is a Montana limited liability company, duly formed, validly
existing, in good standing and duly qualified to do business in the State of Montana. The
Developer has the power to enter into this Agreement and by all necessary corporate action has
duly authorized the execution and delivery of this Agreement.
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(b) The Developer or its affiliated entities have good marketable title to the Land, free
and clear of all liens, encumbrances and defects except such as do not materially affect the value
of the Land or materially interfere with the use made and proposed to be made of the Land by the
Developer, or such liens and encumbrances that may otherwise be approved by the City in
writing. The individual condominium units comprised of the residential housing units in Phase I
of the Project are owned by Aspen 4 LLLP, a Montana limited liability limited partnership, and
Midtown Aspen 9 LLLP, a Montana limited liability limited partnership, and such condominium
units are free and clear of all liens, encumbrances and defects except such as do not materially
affect the value of the Land or materially interfere with the use made and proposed to be made of
the Land by the Developer, or such liens and encumbrances that may otherwise be approved by
the City in writing.
(c) The Developer has the financial capability or commitments to complete the
Project.
(d) The Developer is not aware of any facts the existence of which would cause the
Developer to be in violation in any material respect of any Environmental Laws and Regulations
applicable to the Project or the Infrastructure Improvements. The Developer has not received
from any local, state or federal official any notice or communication indicating that the activities
of the Developer have been, may be or will be in violation of any Environmental Laws and
Regulations applicable to the Project or the Infrastructure Improvements.
(e) Neither the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions hereof is prohibited or limited by, conflicts with or results in a breach of the terms,
conditions or provisions of the certificate of formation, partnership agreement or operating
agreement of the Developer or any evidence of indebtedness, agreement or instrument of
whatever nature to which the Developer is now a party or by which it is bound, or constitutes a
default under any of the foregoing.
(f) There is no action, suit, investigation or proceeding now pending or, to the
knowledge of the Developer, threatened against or affecting the Developer or its business,
operations, properties or condition (financial or otherwise) before or by any governmental
department, commission, board, authority or agency, or any court, arbitrator, mediator or grand
jury, that could, individually or in the aggregate, materially and adversely affect the ability of the
Developer to complete the Project.
(g) The Developer acknowledges and agrees that the sole source of funds for
reimbursing the Developer under this Agreement is Tax Increment. The Developer further
acknowledges and agrees the amount of Tax Increment in the District is dependent upon a
number of variables, including, without limitation, the taxable value of the Project, the number of
mills levied by Taxing Bodies, and then-prevailing state laws regarding computation of Tax
Increment, and that the City has no control over such variables. In addition, if Tax Increment in
the District decreases, the City may need to use Tax Increment to pay debt service on the Series
2020 Bonds or to replenish the debt service reserve account for the Series 2020 Bonds, and there
may not be Tax Increment available to reimburse the Developer for Eligible Costs, despite the
Developer having paid all property taxes then due with respect to the Project. The Developer
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agrees that if Tax Increment is not available to reimburse the Developer, the City shall have no
obligation to pay to the Developer the amount of reimbursement described in Section 4. The
Developer agrees that such event shall not constitute a default by the City hereunder. In such
event, if the Developer has not received any reimbursement but has recorded the Restrictive
Covenants described in Section 3.12, upon request of the Developer or subsequent owner of
Phase II of the Project, the City agrees to cooperate with the Developer or subsequent owner of
Phase II of the Project to remove the Restrictive Covenants from Lot 6A.
Section 3. Developer Undertakings.
3.1. Construction and Maintenance of Project. The Developer hereby agrees and
commits to the City that it will diligently prosecute to completion the construction of the Project
in accordance with this Agreement, the site plan submitted to the City and all applicable federal,
State and local laws, rules, regulations, ordinances and plans relating to or governing the
development or use of the Project, including applicable Land Use Regulations and
Environmental Laws and Regulations. The Developer agrees and commits to the City that
construction of the Project shall be completed by July 1, 2027, subject to Unavoidable Delays.
The total estimated costs of the Project are shown on Exhibit A hereto. The Developer has the
financial capacity to complete the Project, and the Developer agrees to pay all costs thereof. If
there is an increase in the costs of the Project from that shown on Exhibit A hereto that cannot be
covered by the contingency amount, the Developer shall notify the City of the increase and
submit additional evidence in a form acceptable to the City that the Developer has the financial
capacity to cover such additional costs and complete the Project. At all times during the term of
this Agreement, the Developer will operate and maintain, preserve and keep the Project or cause
the Project to be operated, maintained, preserved and kept for the purposes for which it was
constructed, and with the appurtenances and every part and parcel thereof, in good repair and
condition. The Developer agrees to permit the City and any of its officers, employees or agents
access to the Land for the purpose of inspection of all work being performed in connection with
the Project; provided, however, that the City shall have no obligation to inspect such work.
3.2. Preparation, Review and Approval of Construction Plans. In connection with the
Project, the Developer, at its sole expense, shall prepare and submit construction plans, drawings,
and related documents for each portion of the Project to the appropriate City officials for
architectural, engineering or land use review and written approval or permits. The Developer
acknowledges that no review or approval by City officials hereunder may be in any way
construed by the Developer to replace, override or be in lieu of any required review, inspection,
or approval by the City Planning Division, or any other building construction official review or
approvals required by any State laws or local ordinances or regulations. Nothing contained in
this Agreement indicates or evidences that the City has approved or will approve the Project or
any portion thereof. This Agreement does not affect or limit the City’s regulatory powers with
regard to the Project, including, without limitation, those relating to building permits or other
permits or the payment of fees. As further described in Section 7.1, the City shall have no
liability and the Developer shall hold the City harmless with respect to any increases in costs of
the Project related to or arising out of delays resulting from the City’s regulatory actions or
approvals.
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3.3. Construction of the Infrastructure Improvements. The Developer shall acquire,
install, construct or otherwise provide the Infrastructure Improvements. The Developer
acknowledges and agrees that the City is not responsible for acquiring, installing, constructing or
otherwise providing the Infrastructure Improvements. The estimated costs of the Infrastructure
Improvements, which form a part of the Eligible Costs, are shown on Exhibit C hereto.
3.4. Milestones of the Project. Certain steps in the development of the Project are
listed on Exhibit D attached hereto (collectively, the “Milestones”; each a “Milestone”), together
with the dates by which the Developer is obligated to complete the Milestones (collectively, the
“Milestone Dates”; each as it relates to a particular Milestone, the “Milestone Date”). The
Developer acknowledges and agrees that the City in reserving or offering to make available Tax
Increment to pay or reimburse the Eligible Costs necessarily means that certain Tax Increment is
not available to pay or reimburse other undertakings or costs for the benefit of the District and
that the City reasonably expects additional Tax Increment as a result of completion of the
Project. The Developer acknowledges and agrees that conditioning the availability of Tax
Increment to pay or reimburse the Eligible Costs on completion or satisfaction of the Milestones
by the corresponding Milestone Dates is reasonable. If the Developer is unable to complete or
satisfy a Milestone by the corresponding Milestone Date, the Developer shall make a formal
written request to the Director of Economic Development, with appropriate supporting material,
to extend the Milestone Date and, as appropriate, subsequent Milestone Dates. The Director of
Economic Development may, in his or her sole discretion, (i) determine whether such extension
is appropriate and, if so, fix a new and superseding Milestone Date and also adjust other
subsequent Milestone Dates, along with any other terms or conditions, or (ii) refer the request to
the City Commission to either approve the extension and adjust other Milestone Dates, as
appropriate, or, in its sole discretion, terminate this Agreement upon thirty (30) days prior
written notice, in which case the City will have no obligation to reimburse the Developer
hereunder. If this Agreement is terminated as described in this Section 3.4 and the Developer
has not received any reimbursement but has recorded the Restrictive Covenants described in
Section 3.12, upon request of the Developer or subsequent owner of Phase II of the Project, the
City agrees to cooperate with the Developer or subsequent owner of Phase II of the Project to
remove the Restrictive Covenants from Lot 6A.
3.5. Prevailing Wage Rates; Competitive Bidding. The Developer understands that
the City is obligated to follow certain laws with respect to the expenditure of public funds, which
includes Tax Increment. The Developer agrees to comply with laws that govern City contracting
obligations, including public procurement laws relating to all of the Infrastructure Improvements,
such as, without limitation, laws and rules regarding prevailing wage and solicitation of work on
a competitive basis.
Without limitation of the foregoing, the Developer agrees that in the awarding of
contracts for the Infrastructure Improvements (i) it will, and it will cause its contractor to,
publicly bid competitively contracts for each component of the Infrastructure Improvements, and
(ii) through its contract with its contractor, it will, in addition to the requirements of Sections 3.9
and 3.10, require its contractor to, pay the Prevailing Wage Rates on such contracts related to the
Infrastructure Improvements. The Developer will provide to the City all documentation
requested to verify the compliance of the Developer and its contractor with the foregoing
requirements. Failure of the Developer or its contractor to bid competitively contracts for each
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component of the Infrastructure Improvements or to require contracts entered into directly with
contractors or sub-contractors to include provisions requiring the contractor or sub-contractor to
pay the Prevailing Wage Rates on the work related to the Infrastructure Improvements will be
considered a breach of this Agreement and the City will be entitled, at its discretion and without
obligation, to exercise any and all measures to assure compliance and retroactive compensation
plus interest to workers not paid in accordance with this Agreement, and recovery of any penalty
or fine assessed by the State attributed to any failure to pay the Prevailing Wage Rates.
Additionally, the Developer acknowledges that a violation of these requirements may, in the
City’s sole discretion, cause the Infrastructure Improvements to be ineligible for the application
of Tax Increment, in which case the City will have no obligation to reimburse or pay the
Developer hereunder.
3.6. Utilities. The Developer shall not interfere with, or construct any improvements
over, any public street or utility easement without the prior written approval of the City. All
connections to public utility lines and facilities shall be subject to approval of the City and any
private utility company involved. The Developer at its own expense shall replace any public
facilities or utilities damaged during the Project by the Developer or its agents or by others acting
on behalf of or under their direction or control of the Developer.
3.7. Permits and Compliance With Laws. The Developer will obtain, in a timely
manner, all required permits, licenses and approvals, and will meet all requirements of all local,
state and federal laws, rules and regulations which must be obtained or met in connection with
the acquisition and construction of the Project, including the Infrastructure Improvements.
Without limiting the foregoing, the Developer will request and seek to obtain from the City or
other appropriate governmental authority all necessary land use, zoning, and building permits.
The Developer will comply in all material respects with all Environmental Laws and Regulations
applicable to the construction, acquisition, and operation of the Project, including the
Infrastructure Improvements, will obtain any and all necessary environmental reviews, licenses
or clearances under, and will comply in all material respects with, Environmental Laws and
Regulations. In addition, the Developer shall comply fully with all applicable state and federal
laws, regulations, and municipal ordinances related to worker safety including but not limited to
the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the
Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State
building and electrical codes, and the Americans with Disabilities Act.
3.8. Easements. To the extent that the Infrastructure Improvements are to be located
on the Land, the Developer hereby agrees to grant to the City and applicable utility companies
from time to time such easements, rights-of-way and similar licenses in a form required by the
City and as are reasonably necessary to permit the City to own, operate and maintain the
Infrastructure Improvements.
3.9. Nondiscrimination and Equal Pay Affirmation. The Developer agrees to require
its contractor(s) to be in compliance with the City’s Nondiscrimination and Equal Pay
Affirmation attached hereto as Exhibit F, as well as Title 49, Montana Code Annotated,
regarding activities related to the Project, including the Infrastructure Improvements. The
Developer agrees that in its contracts with its contractors the Developer’s contractor will be
required to require its subcontractors to comply with the City’s Nondiscrimination and Equal Pay
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Affirmation attached hereto as Exhibit F, as well as Title 49, Montana Code Annotated,
regarding activities related to the Project. The Developer agrees to provide copies of all such
contracts upon request by the City.
3.10. Worker’s Compensation Insurance. The Developer shall provide in its
construction contracts related to the Project with all of its respective contractors that such
contractors are to be covered by a Worker’s Compensation insurance program with the State, a
private insurance carrier, or an approved self-insurance plan in accordance with State law.
3.11. Walkaway Provision. The Developer shall have the option, in its sole discretion
and for any reason, to cease developing the Project and terminate this Agreement without penalty
at any time prior to the Developer submitting any request for reimbursement or payment to the
City (“walkaway provision”). If the Developer exercises this walkaway provision, this
Agreement shall immediately terminate and all rights and obligations of the Parties under this
Agreement shall cease, except for those rights and obligations specifically identified in this
Agreement as surviving termination. If the Developer exercises this walkaway provision, the
Developer automatically waives any and all rights to reimbursement or payment from the City
under this Agreement. This walkaway provision shall not limit or prohibit any rights, claims, or
recourse that the City may have in connection with the Project. The Parties expect that, if the
Developer determines to exercise this walkaway provision, the Restrictive Covenants will not be
recorded against Phase II of the Project or Lot 6A. If the Developer records the Restrictive
Covenants and, at a later date, determines to exercise the walkaway provision, the City agrees to
cooperate with the Developer to remove the Restrictive Covenants from Lot 6A.
3.12. Workforce Housing Covenants. The Developer agrees that, as a condition to
receiving any reimbursement under this Agreement, the Developer will file a restrictive covenant
on Lot 6A, providing that any residential housing units developed on Lot 6A (the “Workforce
Housing Units”) will be restricted for a period not less than 50 years for use as workforce
housing affordable to households with incomes equal to 80% area median income (“AMI”). As
a condition to reimbursement hereunder, the Developer shall record the restrictive covenants,
substantially in the form attached hereto as Exhibit G (the “Restrictive Covenants”) against Lot
6A. The Restrictive Covenants must (i) run with the land, (ii) bind, for a period not less than 50
years from the date of issuance of a certificate of occupancy with respect to Phase II of the
Project, the Workforce Housing Units to be used as residential rental units affordable at 80%
AMI, with rental prices tied to affordability at 80% AMI, and (iii) provide that a third-party or
government entity with experience in managing affordable housing units must manage the rental
of the Workforce Housing Units. In addition, the Restrictive Covenants will provide that the
Workforce Housing Units are prohibited from being used, rented or made available as short term
rentals, as that term is defined in the Bozeman Municipal Code. The affordability requirements
in the Restrictive Covenants will be index-based, tied to AMI, and pursuant to the Restrictive
Covenants, permissible rental prices of the Workforce Housing Units will be based on the most
recent affordability data available through the Housing and Urban Development’s Housing
Availability Data System or other similar affordability data that is available at the time of rental.
The Developer’s covenants described in this Section 3.12 are referred to herein as the
“Workforce Housing Covenants.” The Developer acknowledges and agrees that the Workforce
Housing Covenants are fundamental to the City’s agreements hereunder. The Parties
acknowledge that, as development proceeds at Lot 6A, it may be necessary or desirable to record
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other instruments to implement the Workforce Housing Covenants and provide for the
affordability of the Workforce Housing Units, either in addition to or in replacement of the
Restrictive Covenants to be recorded as a condition to reimbursement of the Developer under
this Agreement, and the Parties agree to cooperate with respect to recording such other
instruments if necessary or desirable. The Developer acknowledges that, as determined by the
City, one-person household pricing relates to studios, two-person household pricing relates to
one bedroom units, three-person household pricing relates to two bedroom units, and four-person
household pricing relates to three bedroom units.
Section 4. Housing Choice Vouchers and Phase I of the Project. Five of the residential units
developed as Phase I of the Project must accept Housing Choice Vouchers (HCV) as a form of
rental payment for those units targeting 50% AMI or below. In connection with the five units
accepting HCV as a form of rental payment, the property owner with respect to Phase I of the
Project must participate in the HCV program and comply with all program requirements,
including but not limited to rent reasonableness standards. In the event that the rent charged to a
tenant receiving HCV assistance exceeds the applicable payment standard established by the
U.S. Department of Housing and Urban Development (HUD), the rent will be adjusted to the
Fair Market Rents (FMRs) or payment standard set by HUD for tenants utilizing the HCV
program. City Undertakings. Subject to satisfaction of all conditions in Section 5 below, and
solely from Tax Increment, and subject to the prior lien of the Series 2020 Bonds and the debt
service reserve account therefor, the City agrees to reimburse the Developer in an amount equal
to the amount of the Eligible Costs (not to exceed $3,024,061).
Section 5. Reimbursement for the Eligible Costs. Reimbursement of the Developer for
Eligible Costs shall be subject to the following conditions and in accordance with the following
procedures:
5.1. Conditions and Procedure.
(a) The Developer shall complete or satisfy Milestones by the applicable Milestone
Dates, as such dates may have been extended pursuant to Section 3.4 hereof.
(b) Reimbursement by the City for costs of the Infrastructure Improvements must be
based on paid invoices for costs incurred by the Developer, its contractors and subcontractors or
utility companies, which the Developer must supply to the City. The City may reject, in its sole
discretion, any invoice related to the Infrastructure Improvements. The City will notify the
Developer of any rejected invoice and the reason it was rejected.
(c) At the time of the Developer’s request for reimbursement (i) all of the
Developer’s representations as set forth in Section 2.2 must be true and correct, (ii) the
Developer must not be in breach of any covenant or undertaking set forth in Section 3, and (iii)
there must be adequate Tax Increment on hand to satisfy all financial obligations related to the
Series 2020 Bonds and the debt service reserve account for the Series 2020 Bonds such that Tax
Increment is available to reimburse the Developer.
(d) The Developer must provide evidence satisfactory to the City that the Restrictive
Covenants have been recorded with the Gallatin County Clerk and Recorder’s Office with
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respect to Lot 6A and have not been modified, amended or rescinded other than with the prior
written consent of the City.
(e) The Developer must provide evidence satisfactory to the City that a regulatory
agreement or similar instrument restricting the use of Lot 4A to affordable housing has been
recorded with the Gallatin County Clerk and Recorder’s Office.
(f) The Developer shall have been issued a certificate of occupancy for the Project.
(g) When the above conditions have been met, the Developer shall submit to the
Director of Economic Development a certificate substantially in the form attached hereto as
Exhibit E, together with such supporting documentation as may be requested by the City.
5.2. Failure to Satisfy Conditions. If any of the conditions described in Section
5.1 are not satisfied in the determination of the City, the City shall have no obligation to
reimburse the Developer, and the City’s determination to refrain from reimbursing, or its
inability to reimburse, any of the Eligible Costs shall not be or result in a default of this
Agreement.
Section 6. Covenants to Pay Taxes.
6.1. Taxes. The Developer shall pay or cause to be paid when due and prior to the
imposition of penalty all Taxes and all installments of any special assessments payable with
respect to the Project and any improvements thereto or extension thereof.
6.2. Maintenance of Land and Project. The Developer, for itself and its successors
and assigns, agrees to use its commercially reasonable best efforts to maintain and operate the
Project so as to be able at all times to pay promptly and when due all property taxes levied with
respect to the Project.
6.3. Injunction; Specific Performance. The Parties agree that, in the event of a breach
of this Section 6 by the Developer or its successors or assigns, the City would suffer irreparable
harm. Therefore, in the event the Developer or its successors or assigns fails to comply with the
provisions of this Section 6, the Developer agrees that the City may pursue any remedy at law or
in equity, including, without limitation, the remedies of injunction and specific performance.
Section 7. Indemnification and Insurance.
7.1. Indemnification. The Developer releases the City and all City Commission
members, board members, officers, agents, servants and employees of the City (the “Indemnified
Parties”) from, and covenants and agrees that the Indemnified Parties shall not be liable for, and
agrees to indemnify, defend and hold harmless the Indemnified Parties against, any loss, damage,
cost (including reasonable attorneys’ fees), claim, demand, suit, action or other proceeding
whatsoever (i) arising or purportedly arising out of, or resulting or purportedly resulting from,
the acquisition and construction of the Project, including the Infrastructure Improvements, any
violation by the Developer of any agreement, condition or covenant of this Agreement, the
ownership, maintenance and operation of the Project, or the presence on any portion of the Land,
of any dangerous, toxic or hazardous pollutants, contaminants, chemicals, waste, materials or
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substances; or (ii) which is proximately caused by the Developer or its officers, agents,
contractors, consultants or employees.
7.2. Insurance. Developer shall keep and maintain the Project at all times insured
against such risks and in such amounts, with such deductible provisions, as are customary in
connection with facilities of the type and size comparable to the Project, and the Developer shall
carry and maintain, or cause to be carried and maintained, and pay or cause to be paid timely the
premiums for direct damage insurance covering all risks of loss, including, but not limited to, the
following:
1. fire
2. extended coverage perils
3. vandalism and malicious mischief
4. boiler explosion (but only if steam boilers are present)
5. collapse
on a replacement cost basis in an amount equivalent to the Full Insurable Value thereof. “Full
Insurable Value” shall include the actual replacement cost of the Project, exclusive of
foundations and footings, without deduction for architectural, engineering, legal or
administrative fees or for depreciation. The policies required by this Section 7.2 shall be subject
to a no coinsurance clause or contain an agreed amount clause, and must contain a deductibility
provision not exceeding $100,000.
Subject to the terms of any mortgage relating to the Project, policies of insurance
required by this Section 7.2 shall insure and be payable to Developer and shall provide for
release of insurance proceeds to Developer for restoration of loss. The City shall be furnished
certificates showing the existence of such insurance. In case of loss, Developer is hereby
authorized to adjust the loss and execute proof thereof in the name of all parties in interest.
During construction of the Project, any and all of the foregoing insurance policies may be
maintained by the Developer’s contractor; provided that once the Project is placed into service,
Developer shall maintain all of the foregoing insurance policies.
In addition to and independent of the above, the Developer shall at the Developer’s
expense secure liability insurance through an insurance company or companies duly licensed and
authorized to conduct insurance business in Montana. The insurance shall not contain any
exclusion for liabilities specifically assumed by the Developer in this Section. The insurance
shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be
asserted or claimed against, recovered from, or suffered by the City in relation to construction of
the Project and the Infrastructure Improvements without limit and without regard to the cause
therefore. The Developer must furnish to the City an accompanying certificate of insurance and
accompanying endorsements in amounts not less than as follows:
Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate
The above amounts shall be exclusive of defense costs. The City, its officers, agents, and
employees, shall be endorsed as an additional or named insured on a primary non-contributory
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basis on the Commercial General Liability policy. The insurance and required endorsements
must be in a form suitable to City and shall include no less than a thirty (30) day notice of
cancellation or non-renewal. The City must approve all insurance coverage and endorsements
prior to the Developer commencing work on Project or Infrastructure Improvements. Developer
must notify the City within two (2) business days of Developer’s receipt of notice that any
required insurance coverage will be terminated or Developer’s decision to terminate any required
insurance coverage for any reason.
Section 8. General Provisions.
8.1. Conflicts of Interest; City’s Representatives Not Individually Liable. The
Developer represents that it does not employ, retain, or contract with an officer or employee of
the City and that no member, officer or employee of the City has a personal or financial interest,
direct or indirect, in this Agreement or in the Project, or a financial interest in the Infrastructure
Improvements. No member, officer or employee of the City shall be personally liable to
Developer in the event of any default under or breach of this Agreement by the City, or for any
amount that may become due to Developer for any obligation issued under or arising from the
terms of this Agreement.
8.2. Rights Cumulative. The rights and remedies of the Parties of this Agreement,
whether provided by law or by this Agreement, shall be cumulative, and the exercise by any
Party hereto of any one or more of such remedies shall not preclude the exercise by such Party,
at the same or different times, of any other remedy for the same default or breach or of any of its
remedies for any other default or breach of the Party subject to the limitation of remedies
provided herein. No waiver made by such Party with respect to the performance or the manner
or time thereof, of any obligation under this Agreement, shall be considered a waiver with
respect to the particular obligation of the other Party or a condition to its own obligation beyond
those expressly waived in writing and to the extent thereof, or a waiver in any respect in regard
to any other rights of the Party making the waiver of any obligations of the other Party. Delay by
a Party hereto instituting or prosecuting any cause of action or claim hereunder shall not be
deemed a waiver of any rights hereunder.
8.3. Term of Agreement.
(a) This Agreement shall remain in effect until the earlier of (i) the date that is 10
days after the date the City reimburses the Developer in full hereunder, or (ii) the termination of
this Agreement pursuant to Sections 5.2 or 3.11; provided that this Agreement may be earlier
terminated by the City in its sole discretion at any time after failure by the Developer to complete
or satisfy a Milestone by the applicable Milestone Payment Date (as such date may be extended
as described in Section 3.4).
(b) Notwithstanding the foregoing provisions of this Section 8.3, (i) Sections 6, 7, and
8 of this Agreement shall in all events survive the termination of this Agreement, and (ii) if the
Developer is reimbursed under this Agreement, Section 3.12 shall survive the termination of this
Agreement.
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8.4. Limitation on City Liability. No agreements or provisions contained in this
Agreement nor any agreement, covenant or undertaking by the City contained in any document
in connection with the Project, including the Infrastructure Improvements, or the Eligible Costs
shall give rise to any pecuniary liability of the City or a charge against its general credit or taxing
powers, or shall obligate the City financially in any way except with respect to then-available
Tax Increment. No failure of the City to comply with any term, condition, covenant or
agreement herein shall subject the City to liability for any claim for damages, costs or other
financial or pecuniary charge except to the extent that the same can be paid or recovered from
then-available Tax Increment; and no execution on any claim, demand, cause of action or
judgment shall be levied upon or collected from the general credit, general funds or taxing
powers of the City (except as such constitute then-available Tax Increment). Nothing herein
shall preclude a proper party in interest from seeking and obtaining specific performance against
the City for any failure to comply with any term, condition, covenant or agreement herein;
provided that no costs, expenses or other monetary relief shall be recoverable from the City
except as may be payable from the Tax Increment. This Agreement shall not constitute or be
construed to give rise to a debt of the City.
8.5. Assignment. This Agreement is unique among the City and the Developer and no
Party may assign any rights or privileges, or delegate any duties or obligations under this
Agreement, without first obtaining the written consent of the other Party, which consent shall not
be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing or any other
provision herein, the Parties acknowledge and agree that the investor limited partner with respect
to Phase I of the Project may require certain amendments or modifications to this Agreement,
which may include the assignment by Developer of this Agreement to Midtown Aspen LLC, a
Delaware limited liability company, or another affiliate of Developer in relation to the tax credit
financing for Phase I of the Project.
8.6. Successors Bound By Agreement; No Third Party Beneficiary; No Property
Interest. Subject to compliance with Section 8.5, this Agreement will inure to the benefit of and
be binding upon the Parties to this Agreement and their respective successors in interest and
permitted assignees. 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. This Agreement, by itself, does not create or give rise to a property interest in the Land or
the Project.
8.7. Prior Agreements. This Agreement supersedes, merges and voids any and all
prior discussions, negotiations, agreements and undertakings between the Parties with respect to
the subject matter of this Agreement. The Parties waive and release each other from any claims,
actions, or causes of action that relate in any manner to any prior discussions, negotiations,
agreements and undertakings between the Parties with respect to the subject matter of this
Agreement.
8.8. Entire Agreement. This Agreement, including any exhibits and attachments
hereto, embodies the entire agreement and understanding of the Parties with respect to its subject
matter. All Parties shall be prohibited from offering into evidence in any arbitration or civil
action any terms, conditions, understandings, warranties, statements or representations, whether
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oral or written, with respect to the subject matter of this Agreement and that are not contained in
this Agreement.
8.9. Amendments, Changes and Modifications. This Agreement may be amended and
any of its terms may be modified only by written amendment authorized and signed by the
Parties hereto.
8.10. Headings. The headings of articles and sections in this Agreement are inserted for
convenience of reference only and do not limit or amplify the terms and provisions of the
Agreement in any manner. The headings will be ignored and will not affect the construction of
any provisions of this Agreement.
8.11. Notice. Any formal notice, demand or communication required or permitted by
the terms of this Agreement to be given to the City or the Developer will be in writing and will
be delivered to such Party either: (i) by personal hand-delivery; (ii) by depositing the same in the
United States mail, certified mail with return receipt requested; (iii) by depositing the same with
a nationally recognized overnight delivery service; or (iv) with respect to notice to the
Developer, by email (in which case the notice shall be effective as of the date of confirmed
delivery). Notice will be deemed complete upon receipt of the notice pursuant to any of the
foregoing methods of notice. Notices and communications to the parties must be addressed to
and delivered at the following addresses:
If to City:
City of Bozeman
Attention: Bozeman City Manager
121 N. Rouse Ave.
P.O. Box 1230
Bozeman, MT 59771
If to Developer:
Boundary Development, LLC
Attention: Joseph Walsh
233 E. Main Street, Suite 404
Bozeman, MT 59715
Email: joe@boundarydev.com
The City and the Developer, by notice given hereunder, may designate different
addresses to which subsequent notices, certificates or other communications should be sent.
8.12. Severability. If any provision of this Agreement is declared void or held invalid,
such provision will be deemed severed from this Agreement and the remaining provisions of this
Agreement will otherwise remain in full force and effect.
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8.13. Duplicate Originals or Counterparts. This Agreement may be executed in two or
more counterparts, each of which will be deemed to be an original copy of this Agreement and
all of which, when taken together, will be deemed to constitute one and the same agreement.
8.14. Place of Performance. The place of performance of this Agreement will be in the
City of Bozeman, Gallatin County, Montana.
8.15. Governing Law. This agreement and the legal relations between the Parties
hereto will be governed by and construed in accordance with the laws of the State of Montana,
without giving effect to any choice of law statutes, rules, or principles.
8.16. 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 acceptable to the Parties 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 and the provisions of this Agreement.
8.17. Further Assurances and Corrective Instruments. The Parties agree that they will,
from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, such supplements hereto and such further instruments as may reasonably be required
for correcting any inadequate or incorrect description of the Project, including the Infrastructure
Improvements, or the Eligible Costs or for carrying out the expressed intention of this
Agreement.
8.18. Reports/Accountability/Public Information. The Developer agrees to develop
and/or provide documentation as requested by the City demonstrating the Developer’s
compliance with the requirements of this Agreement. The Developer shall allow the City, its
auditors, and other persons authorized by the City to inspect and copy its books and records for
the purpose of verifying that the monies reimbursed to the Developer pursuant to this Agreement
were used in compliance with this Agreement and all applicable provisions of federal, state, and
local law. The Developer shall not issue any statements, releases or information for public
dissemination regarding this Agreement or the work contemplated hereunder without prior
written approval of the City.
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IN WITNESS WHEREOF, the Parties hereto have caused this Development Agreement
to be executed as of the date first set forth above.
CITY OF BOZEMAN, MONTANA
By: _______________________________________
Printed Name: ______________________________
Title: City Manager
[Signature Page to Development Agreement]
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BOUNDARY DEVELOPMENT, LLC,
a Montana limited liability company
By:
Name: Joseph Walsh
Title: Authorized Signatory
[Signature Page to Development Agreement]
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A-1
EXHIBIT A
PROJECT COSTS
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B-1
EXHIBIT B
LEGAL DESCRIPTION OF THE LAND
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C-1
EXHIBIT C
ELIGIBLE COSTS
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EXHIBIT D
MILESTONES
MILESTONE MILESTONE DATE
PHASE I OF THE PROJECT:
Site Plan Submittal to the City Complete
Development Building Permit Submittal 7/1/2025
Start of Development Construction 12/31/2025
Completion of Development Construction (occupancy) 7/1/2027
PHASE II OF THE PROJECT:
Site Plan Submittal to the City Complete
Development Building Permit Submittal 7/1/2025
Start of Development Construction 12/31/2025
Completion of Development Construction (occupancy) 7/1/2027
DocuSign Envelope ID: A0B94729-911F-48F3-9E36-FC4CBA0BB478
E-1
EXHIBIT E
FORM OF DEVELOPER CERTIFICATE AND REQUEST
TO: City of Bozeman, Montana
FROM: Boundary Development, LLC (the “Developer”)
SUBJECT: Request for Reimbursement
This Developer Certificate is delivered in accordance with the Development Agreement
between the Developer and the City of Bozeman, Montana, dated as of May 21, 2024 (the
“Development Agreement”). Capitalized terms used but not otherwise defined herein shall have
the respective meanings given such terms in the Development Agreement.
Pursuant to Section 5.1 of the Development Agreement, the undersigned hereby certifies
on behalf of the Developer that:
(a) the expenditures for which reimbursement is requested are listed in summary
form in the attached schedule headed “Project Expenditures;”
(b) invoices paid by the Developer corresponding to the expenditures set forth on the
attached Project Expenditures Schedule are appended to the attached schedule headed “Project
Invoices;”
(c) the amounts for which reimbursement is requested have been paid by the
Developer to the City for Project Fees and Charges or to contractors, subcontractors,
materialmen, engineers, architects or other persons who or that have performed necessary or
appropriate services or supplied necessary or appropriate materials for the acquisition,
construction, renovation, equipping, and installation of the Infrastructure Improvements;
(d) with respect to the Infrastructure Improvements, the contractor and subcontractors
were solicited and retained competitively and all persons performing work on the Infrastructure
Improvements were paid the Montana prevailing wage for such work;
(e) the reimbursement of the amounts requested will not result in a breach of any of
the covenants of the Developer contained in the Development Agreement; and
(f) no litigation has been instituted or is threatened with regard to any amounts
sought to be reimbursed, and binding and enforceable lien waivers have been obtained from all
contractors, subcontractors, materialmen, and others with regard to all work related to any
amounts for which reimbursement is requested.
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E-2
Based on the attached invoices, the Developer hereby requests reimbursement for the
Eligible Costs in the amount of $[_______].1
The Developer represents that all of the representations of the Developer in Section 2.2 of
the Development Agreement are true and correct as of the date hereof and the Developer is not in
default of the performance of any of its undertakings or obligations under Section 3 of the
Development Agreement as of the date hereof.
Dated: _____________, 20__ Boundary Development, LLC
By:
Authorized Developer Representative
1 Lesser of $3,024,061 or total cost.
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F-1
EXHIBIT F
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G-1
EXHIBIT G
[Form of Affordable Housing Restrictive Covenant and Agreement]
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Declaration of Restrictive Covenants 1
Original to: City of Bozeman Attn: City Clerk PO Box 1230 Bozeman, MT 59771-1230 DECLARATION OF RESTRICTIVE COVENANTS
This Declaration is made this _____ day of ______________, 20__ by BOUNDARY DEVELOPMENT, LLC [address] (“Declarant”).
RECITALS
A. Declarant owns certain real property described as follows (the “Property”):
[legal description]
B. It is the intent of Declarant to meet the conditions of the Development Agreement (the “Agreement”), dated as of [________], by and between Declarant and the City of Bozeman, Montana (the “City”); and
C. Declarant agrees that it receives a significant benefit from the Agreement; and
D. To satisfy the requirements of the Agreement, Declarant desires to place covenants, conditions and restrictions upon the Property for the use and benefit of Declarant and the City.
NOW, THEREFORE, Declarant hereby declares:
1. Provision of Income Restricted Housing.
a. Declarant agrees that all of the residential rental units developed as part of Phase II of the Project (as defined in the Agreement) (the “Units”) will be restricted for a period not less than 50 years for use as housing affordable to households with incomes equal to 80% of the area
DocuSign Envelope ID: A0B94729-911F-48F3-9E36-FC4CBA0BB478
Declaration of Restrictive Covenants 2
median income (“AMI”), as reported annually for single persons and households of various sizes by the United States Department of Housing and Urban Development, or by any successor
United States Government department, agency, or instrumentality, for the Primary Metropolitan
Statistical Area which includes the City.
b. The sale and management of the Units shall be administered by a third-party or government entity with experience in managing affordable housing units, or other entity acceptable to the City.
c. Throughout the term of this Declaration, the Units must be affordable to households
with income no greater than 80% of the AMI. All rental prices for the Units must be based on the most recent affordability data available through the Housing and Urban Development’s Affordability Data System for the City or similar affordability data available at the time of rental.
2. Prohibition on Use as Short Term Rentals. The Units are prohibited from
being used, rented, or made available as short term rentals, as the term is defined in the Bozeman
Municipal Code.
3. Term. This Declaration shall remain in place and be enforceable for a term of 50 years from the date of the issuance of a certificate of occupancy with respect to the Units and shall inure to the benefit of Declarant, each owner of property, the City, and their respective legal
representatives, heirs, successors, or assigns, subject to the right of amendment provided in this
Article.
4. Amendment. This Declaration may not be amended without the prior written consent of the Bozeman City Commission. Any amendment shall become effective only upon the filing of such amendment in the records of the Clerk and Recorder of Gallatin County,
Montana.
5. Enforcement. The Declarant, the City, or any owner of real property within the Property may take action to enforce the provisions of this Declaration. Enforcement may be by injunction, declaratory judgment, action for damages, or any other legal claims, all of which shall be cumulative and non-exclusive. The prevailing party in any action shall be entitled to recover,
in addition to other damages, its reasonable litigation expenses, including attorney’s fees, as may
be awarded in the judgment of the court.
6. Covenants to Run with the Land. The Declarant intends that the terms of this Declaration shall with the land and shall continue in effect with respect to the entire Property notwithstanding any partition or division of the Property.
7. Severability. Invalidation of any one of these covenants or restrictions by
judgment or court order shall in no way affect any other provisions, which shall remain in full force and effect.
8. Choice of Law and Venue. This Declaration of Covenants, Conditions, and Restrictions shall be governed by the laws of Montana and venue shall be in Gallatin County,
Montana.
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Declaration of Restrictive Covenants 3
IN WITNESS WHEREOF the DECLARANT has signed this instrument and arranged for its recordation in the real property records of Gallatin County, Montana.
BOUNDARY DEVELOPMENT, LLC
By:_______________________________________
Title:_____________________________________ STATE OF ____________ )
:ss
COUNTY OF __________ ) This instrument was signed or acknowledged before me on _________________ by ___________, as ______________ of ____________________.
____________________________________ (NOTARIAL SEAL) Printed Name:________________________ Notary Public for the State of ___________
Residing at __________________________
My commission expires ________________
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Declaration of Restrictive Covenants - 4 -
Acknowledged by:
CITY OF BOZEMAN
____________________________________
By: City Manager
ATTEST:
________________________________
Mike Maas, City Clerk
STATE OF MONTANA ) :ss
COUNTY OF GALLATIN )
This instrument was signed or acknowleged before me on _______________ by ______________ and Mike Maas, acting in the capacities of City Manager and City Clerk, respectively, of the City of Bozeman, Montana.
.
____________________________________ (NOTARIAL SEAL) Printed Name:________________________
Notary Public for the State of ___________
Residing at __________________________ My commission expires ________________
DocuSign Envelope ID: A0B94729-911F-48F3-9E36-FC4CBA0BB478
Certificate Of Completion
Envelope Id: A0B94729911F48F39E36FC4CBA0BB478 Status: Completed
Subject: Complete with DocuSign: K.3 Res 5596 7th and Aspen project.pdf
Source Envelope:
Document Pages: 39 Signatures: 4 Envelope Originator:
Certificate Pages: 5 Initials: 0 Mike Maas
AutoNav: Enabled
EnvelopeId Stamping: Enabled
Time Zone: (UTC-07:00) Mountain Time (US &
Canada)
Stamps: 2 PO Box 1230
Bozeman, MT 59771
Mmaas@bozeman.net
IP Address: 69.145.83.100
Record Tracking
Status: Original
5/22/2024 9:27:07 AM
Holder: Mike Maas
Mmaas@bozeman.net
Location: DocuSign
Security Appliance Status: Connected Pool: StateLocal
Storage Appliance Status: Connected Pool: City of Bozeman Location: DocuSign
Signer Events Signature Timestamp
Terry Cunningham
tcunningham@bozeman.net
Mayor
City of Bozeman
Security Level: Email, Account Authentication
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Signature Adoption: Pre-selected Style
Using IP Address: 174.231.88.45
Signed using mobile
Sent: 5/22/2024 9:31:22 AM
Resent: 5/28/2024 8:09:19 AM
Viewed: 5/28/2024 8:53:24 AM
Signed: 5/28/2024 8:53:32 AM
Electronic Record and Signature Disclosure:
Accepted: 6/29/2021 4:59:06 PM
ID: 47eea7cb-ba9e-4f63-bb08-c11196c7c534
Greg Sullivan
gsullivan@bozeman.net
Bozeman City Attorney
City of Bozeman, Montana
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(None)
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Using IP Address: 69.145.83.100
Sent: 5/28/2024 8:53:33 AM
Viewed: 5/28/2024 8:57:22 AM
Signed: 5/28/2024 8:57:30 AM
Electronic Record and Signature Disclosure:
Accepted: 5/28/2024 8:57:22 AM
ID: 85127d33-40b5-4dc5-b352-bfd64ed6d960
Mike Maas
mmaas@bozeman.net
City Clerk
City of Bozeman
Security Level: Email, Account Authentication
(None)
Signature Adoption: Pre-selected Style
Using IP Address: 69.145.83.100
Sent: 5/28/2024 8:57:32 AM
Viewed: 5/28/2024 9:18:19 AM
Signed: 5/28/2024 9:18:32 AM
Electronic Record and Signature Disclosure:
Accepted: 1/6/2020 4:08:14 PM
ID: 79370d6f-72a4-4837-866f-9ec31f00062f
In Person Signer Events Signature Timestamp
Editor Delivery Events Status Timestamp
Agent Delivery Events Status Timestamp
Intermediary Delivery Events Status Timestamp
Certified Delivery Events Status Timestamp
Carbon Copy Events Status Timestamp
David Fine
dfine@bozeman.net
Urban Renewal Program Manager
Security Level: Email, Account Authentication
(None)
Sent: 5/28/2024 9:18:35 AM
Electronic Record and Signature Disclosure:
Accepted: 8/21/2018 6:01:11 PM
ID: 62dd404e-fe1b-420e-a30a-e5423a6b956d
Jesse DiTommaso
jditommaso@bozeman.net
Economic Development Specialist
City of Bozeman
Security Level: Email, Account Authentication
(None)
Sent: 5/28/2024 9:18:36 AM
Electronic Record and Signature Disclosure:
Accepted: 3/25/2022 2:34:30 PM
ID: 46577c8a-5eb2-4ca4-bc57-d65950eb4b8f
Witness Events Signature Timestamp
Notary Events Signature Timestamp
Envelope Summary Events Status Timestamps
Envelope Sent Hashed/Encrypted 5/22/2024 9:31:22 AM
Certified Delivered Security Checked 5/28/2024 9:18:19 AM
Signing Complete Security Checked 5/28/2024 9:18:32 AM
Completed Security Checked 5/28/2024 9:18:36 AM
Payment Events Status Timestamps
Electronic Record and Signature Disclosure
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Electronic Record and Signature Disclosure created on: 7/9/2018 4:06:02 PM
Parties agreed to: Terry Cunningham, Greg Sullivan, Mike Maas, David Fine, Jesse DiTommaso
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