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HomeMy WebLinkAbout031622 Subdivision-IA-template_FinalPlatSend Original to: City of Bozeman Department of Community Development P.O. Box 1230 Bozeman, MT 59771 Project Number_________ IMPROVEMENTS AGREEMENT FOR [NAME OF SUBDIVISION] BOZEMAN, MONTANA THIS AGREEMENT is made and entered into this ______ day of __________________, 20__ by and between [insert legal name of subdivider], hereinafter called the “Subdivider,” and the CITY OF BOZEMAN, a municipal corporation and political subdivision of the State of Montana, with offices at City Hall, 121 North Rouse Avenue, P.O. Box 1230, Bozeman, MT 58771-1230 hereinafter called the “City.” WHEREAS, it is the intent and purpose of the Subdivider to meet the conditions of preliminary plat approval, Planning Application No. _____ for the Final Plat application of [Insert Name of Subdivision], ([insert final plat application #), to subdivide ____ acres together and create ____ [insert description of project; e.g. multi-household residential lots and the remaining areas as public streets]; and WHEREAS, it is the intent and purpose of the Subdivider to obtain Final Plat approval for the Subdivision; and WHEREAS, the Subdivider intends to file the Final Plat for the Subdivision prior to the installation of all required subdivision Improvements, therefore an improvements agreement with a financial security must be provided; and WHEREAS, it is the intent and purpose of both the Subdivider and the City to hereby enter into an Agreement which will guarantee the full and satisfactory completion of the required Improvements related to the Subdivision; and it is the intent of this Agreement, and of the parties hereto, to satisfy the improvements guarantee requirements for the Final Plat approval of the Subdivision. NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, it is hereby agreed as follows: Property Description This Agreement pertains to, and includes, those properties which are designated and identified as being: LEGAL DESCRIPTION – The property is legally described as [Insert Legal Description of Property] SUBJECT to all easements of record or apparent from a visual inspection of the property. 2. Improvements This Agreement specifically includes the following required improvements for [insert name of subdivision] (the “Subdivision”): [Insert list of improvements that are covered by the IA or reference an attachment]. (the “Improvements”) The cost of the improvements has been estimated by Subdivider’s agent, [insert name and address of Engineering firm or other that supplied the estimate], as [insert written out amount of estimate] ($XXX,XXX.XX). 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 Subdivider hereby agrees that the Subdivision related Improvements shall be installed and completed no later than one (1) year after the filing of the final subdivision plat for [insert name of subdivision] in order to avoid default on the method of security. B. The Subdivider must maintain adequate financial security guaranteeing the completion of the Improvements until the Improvements are accepted by the City. The Subdivider’s performance under this Agreement is specifically guaranteed and secured by [cash, an irrevocable standby Letter of Credit No. ______________, or bond] (the “Financial Security”) acceptable to the City, in the amount of $XXX,XXX.XX from [Insert name and address of bank or financial institution providing the guarantee], which is one hundred and fifty (150) percent of the estimated cost of the improvements. C. The Subdivider 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 timeframes specified above and that the Financial Security may be drawn upon by the City without notice to the Subdivider and used by the City for completion of the Improvements in its sole discretion, but only if the Subdivider fails to comply with the terms and conditions of this Agreement. D. Subdivider acknowledges the Financial Security lapses on ____________ and is subject to automatic renewal in one year increments, but in no case is the Financial Security valid beyond _______________. Subdivider also acknowledges the issuer of the Financial Security may give notice to the City of its intent not to renew the Financial Security, but must do so no less than thirty (30) days prior to the expiration of the Financial Security of the Financial Security is extended for an additional year. As a result, the Subdivider 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 Improvements, such non-renewal may place the Subdivider in breach of this Agreement. In such a case, the Subdivider must within ten (10) days of the Subdivider acquiring information of the issuer’s intent not to renew the Financial Security or the City’s notice to the Subdivider that the City received a notice from the issuer of the Financial Security that the issuer intends not to renew the Financial Security, whichever is earlier, provide the City alternative financial security in a form acceptable to the City. Subdivider agrees that failure to provide such alternative financial security within 10 days of the City’s notice or the Subdivider acquiring knowledge of the issuer’s non-renewal shall be deemed a material breach of this Agreement and the City may, without further notice to the Subdivider, draw upon the Financial Security for the costs of any outstanding Improvements at one hundred and fifty percent of the City’s estimated cost of such Improvements, regardless of the cost estimates included in Exhibit A and regardless of whether the timeframe for completion of such Improvements has passed. E. The Subdivider agrees that no delegation of performance required by this agreement shall relieve the Subdivider of any duty to perform or any liability for the breach of that duty to complete the subdivision Improvements required for the Subdivision. F. Upon submission of fully documented invoices for the work performed, and after the work has been inspected and certified for payment by Subdivider’s professional engineers and the City and its agents as necessary, the City may release a portion of the 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 Subdivider is in compliance with this Agreement. The Subdivider shall permit the City and its representatives or agents to enter upon and inspect the Subdivision at any reasonable time. 5. Default Time is of the essence of this Agreement. If the Subdivider 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 Subdivider at [Insert name and mailing address of the Subdivider where notice of default should be sent], or such other address as the Subdivider shall provide to the City from time to time, without being completely remedied, satisfied, and discharged, the City may elect to enforce any of the following specified remedies: 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 Subdivision and perform such work and inspection, and the Subdivider shall permit and secure any additional permission required to enable them to do so. In the event that any funds remain from the financial guarantee upon completion of all Improvements, such funds shall be promptly returned to the Subdivider. The City may enforce any other remedy provided by law. Indemnification To the fullest extent permitted by law, Subdivider 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 Subdivider in regards to the Subdivision; (ii) any negligent, reckless, or intentional misconduct of any of the Subdivider’s agents in regards to the Subdivision. 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). Subdivider’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should any indemnitee described herein be required to bring an action against the Subdivider to assert its right to defense or indemnification under this Agreement or under the Subdivider’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 Subdivider 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. Subdivider 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 the City Attorney. 8. Warranty The Subdivider shall warrant against defects of all Improvements and that these Improvements are made in a good and workman-like manner for a period of two (2) years from the date of their written acceptance by the City. 9. Governing Law This Agreement shall be construed according to the laws of the State of Montana. In the event of litigation concerning this Agreement, venue is in the Eighteenth Judicial District Court, Gallatin County, State of Montana. 10. Modification or Alterations No modifications or amendment of this Agreement shall be valid, unless evidenced by a writing signed by the parties hereto. 11. Invalid Provision The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 12. No Assignment It is expressly agreed that the Subdivider 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 Subdivider shall have this Agreement recorded in the Office of the Gallatin County Clerk and Recorder at the within 10 business days of the signature of the Community Development Director. THE CITY OF BOZEMAN _______________________________________ BY: ERIN GEORGE, DIRECTOR OF COMMUNITY DEVELOPMENT CITY OF BOZEMAN STATE OF MONTANA ) :ss County of Gallatin ) On this _____ day of ________________ 2022, before me, a Notary Public for the State of Montana, personally appeared Erin George, 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 she 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)