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Home My WebLink About12- Meadow Creek Subdivision Phase One Improvements Agreement City of Bozeman Department of Planning and Community Development P.O. Box 1230 Bozeman, MT 59771-1230 IMPROVEMENTS AGREEMENT FOR MEADOW CREEK SUBDIVISION, PHASE ONE BOZEMAN 1, L.L.C. This AGREEMENT is made and entered into this day of 2012, by and between DANNY T. SKARDA, Managing Member of BOZEMAN 1, LLC, Rocky Mountain Bank, 2901 W. Main Street, Bozeman, MT 59718, hereinafter called the "Landowner", and the CITY OF BOZEMAN, a municipal corporation and political subdivision of the State of Montana, with offices at 411 East Main Street, P. O. Box 1230, Bozeman, MT 59771-1230, hereinafter called the "City". WHEREAS, it is the intent and purpose of the Landowner to meet the conditions of preliminary plat approval, Planning Application No. P-05053 and the Final Plat application, Planning Application No. P-06058 of Meadow Creek Subdivision, Phase One, to subdivide 118.4709± acres and create 155 residential lots; and WHEREAS, the Landowner recognizes the need to satisfy the improvements guarantee requirements for the Final Plat approval of Meadow Creek Subdivision, Phase One and to guarantee the full and satisfactory completion of the required improvements related with the property hereinafter described; and Meadow,Creek Subdivision,Phase One-Bozeman 1,LLC,Improvements Agreement 2012 1 WHEREAS, the Landowner has requested an extension to complete the required subdivision improvements for Meadow Creek Subdivision, Phase One; and WHEREAS, it is the intent and purpose of both the Landowner and the City to hereby enter into an new Agreement which will guarantee the full and satisfactory completion of the required improvements related with the property hereinafter described; and it is the intent of this Agreement, and of the parties hereto, to satisfy the improvements guarantee requirements for the Final Plat approval of Meadow Creek Subdivision, Phase One. NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, it is hereby agreed as follows: I Property Description This Agreement pertains to, and includes, those properties which are designated and identified as being: A tract of land situated in portions of the SW1/4NEI/4, SEI/4SWI/4, and Wl/2SEl/4 of Section 23, T. 2. S., R. 5 E., P.M.M., Gallatin County, Montana, more particularly described as follows, to-wit: Beginning at a point which is the southeast comer of Lot 27 of Genesis Business Park subdivision; thence from said point of beginning S 01'02'41" W, 337.74 feet along the west line of Minor Subdivision 235; thence S 01002'09" W, 923.12 feet; thence S 00'4524" W, 77.29 feet; thence S 01'03'32" W, 669.17 feet to the southerly right-of-way limit of Enterprise Boulevard; thence N 88153'05" W, 39.44 feet along said right-of-way limit to a point of curve; thence clockwise along a curve with a radius of 380.00 feet an arc, distance of 317.94 feet (chord bearing N 64'5455" W, chord length 308.75 feet) to the southerly right-of-way limit of Parkway Avenue; thence S 52019'53" W, 90.04 feet to a point of curve; thence counterclockwise along a curve with a radius of 770.00 feet an arc distance of 688.94 feet (chord bearing S 26'41'57" W, chord length 666.19 feet); thence S 01°04'01" W, 101.49 feet to the northerly right-of-way limit of Ainsworth Drive; thence S 88057'47 E, 161.31 feet; thence S 01'04'01 W, 181.83 feet to a point of curve; thence counterclockwise along a curve with a radius of 485.00 feet an are distance of 106.36 feet (chord bearing S 05'l 2'56" E, chord length 106.15 feet); thence S 11°29"53" E, 33.91 feet; thence clockwise along a curve with a radius of 515.00 feet an are distance of 116,47 feet (chord bearing S 05'01'10" E, chord length 116.22 feet); thence Meadow Creek Subdivision,Phase One-Bozeman 1,LLC,improvements Agreement 2012 2 S 01"27'34" W, 306.42 feet; thence clockwise along a curve with a radius of 315.00 feet an arc distance of 54,79 feet (chord bearing S 06'26'32" W, chord length 54,72 feet); thence S 11 '25'31" W, 101.63 feet; thence counterclockwise along a curve with a radius of 285.00 feet an are distance of 42.75 feet (chord bearing S 0707"41" W, chord length 42.71 feet); thence S 02049'51" W, 103.12 feet to the northerly right-of-way limit of Last Loop Drive; thence S 21031'34" W, 64.64 feet to the southerly right-of-way limit of Last Loop Drive; thence S 01"01'54" W, 258.86 feet to the south line of Section 23; thence N 88'58'06" W, 786.91 feet along said line to the south 1/4 comer of Section 23; thence N 88'49'22" W, 1328.27 feet to the west 1/16th comer common to Sections 23 and 26; thence N 01'19'12" E, 1331.29 feet along the west I/16th line of Section 23 to the southwest 1/1 6th comer of said section; thence S 88"50'58" E, 1331.58 feet along the south 1/16th line to the center-south 1/16th comer; thence N 01'2744" E, 1378.08 feet to the northerly right-of-way limit of Graf Street; thence S 88053'38" E, 562.85 feet to the westerly line of the Certificate of Survey on file in the clerk & recorders office of Gallatin county on Film 9, Page 1156; thence N 04'25'12" E, 23.20 feet; thence N 26"11'10" E, 78.28 feet; thence N 00'33'44" W, 1203.91 feet to the south line of Genesis Park subdivision; thence S 88'34'05" E a distance of 738.75 feet to the Point of Beginning, containing 118.4709 acres, more or less, subject to any easements and or rights of way of record or apparent on the ground. 2. Improvements This Agreement specifically includes the following subdivision improvements for Meadow Creek Subdivision, Phase One; a) boulevard sidewalks, b) trails, c) boulevard landscape and landscape irrigation improvements, d) parkland and stone water facility improvements, e) January 9, 2009 warranty list, and fl South I 91h Avenue improvements. The Estimated Cost of said improvements has been updated and revised by Morrison Maierle, Inc., 2800 Technology Boulevard West, PO Box 1113, Bozeman, MT 59771-1113 at Four Hundred and Eleven Thousand, Eight Hundred Eighty Four Dollars and Six Cents ($411,884.06) and is attached and made a part of this Agreement, as Exhibit "All, 3. Financial Guarantee,Time for Com pletion of Improvements It is the Landowner's intent with this Agreement to complete all required subdivision improvements related to the subject property. Therefore, this Agreement shall be secured by a Meadow Creek Subdivision,Phase One—Bozeman 1,LLC,Improvements Agreement 2012 3 financial guarantee in the forin of a Letter of Credit, which is one hundred and fifty (150) percent of the Estimated Cost of said improvements. The financial guarantee shall be in full force and effective for a minimum of two (2) years, or until the work is completed by the Subdivider and accepted by the City of Bozeman. The Subdivider hereby agrees that the remaining subdivision improvements will be completed and accepted by City of Bozeman based on the following time line as established by the current expiration date of Irrevocable Standby Letter of Credit No. 119 on December 4, 2011 as follows: 1) all January 9, 2009 warranty list improvements and South 19t" Avenue improvements to be completed prior to August 4, 2012, 2) all parkland and open space areas, trails, storm water facilities, and all other related landscape improvements will be completed prior to August 4, 2012, 3) schedule one for boulevard sidewalks identified in Exhibit 111311 prior to August 4, 2012, and 4) all remaining boulevard sidewalks shall be completed prior to December 4, 2013, in order to avoid default on the method of security. Upon submission of fully documented invoices for the work performed, said work to be inspected and certified for payment by Subdivider's professional engineers and the City of Bozeman and or its agents as necessary, the City of Bozeman may release a portion of the letter of credit for the work completed by the referenced invoices. Said financial guarantee shall be automatically renewed or extended within thirty (30) days of the expiration date if all required subdivision improvements are not installed at that time. 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, and the Subdivider shall permit the City and its representatives to enter upon and inspect the property at any reasonable time. Meadow Creek Subdivision,Phase One—Bozeman 1,LLC,Improvements Agreement 2012 4 5. Default Time is of the essence of this Agreement. If the Landowner 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 thirty(30) days after written notice specifying the default is deposited in the United States mail addressed to the Landowner at 2901 W. Main Street, Bozeman, MT 59718, or such other address as the Landowner shall provide to the City from time to time, without being completely remedied, satisfied, and discharged, the City may elect to enforce any of the following specified remedies: A) The City may, at its option, declare the financial guarantee to be forfeited and secure the complete construction and inspection of the improvements described herein. The City's representative, contractors, and engineers shall have the right to enter upon the property and perform such work and inspection, and the Landowner shall pen-nit 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. 13) The City may enforce any other remedy provided by law. 6. Indemnification The Landowner hereby expressly agrees to indemnify and hold the City harmless for and against all claims, costs and liability of every kind and nature, for injury or damage received or sustained by any person or entity in connection with, or on account of the performance of work at the development site and elsewhere pursuant to this Ageement. Landowner further agrees to aid and defend the City in the event that it is named as a defendant in an action concerning the performance of work pursuant to this Agreement except where such suit is brought by the Landowner. The Landowner is not an agent or employee of the City. Meadow Creek Subdivision,Phase One-Bozeman 1,LLC,improvements Agreement 20112 7. Attorney Fees In the event it becomes necessary for either party to this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement, then the prevailing party shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including City Attorney. 8. Warranty The Landowner shall warrant against defects of all improvements and that these improvements are made in a good and workman-like manner for a period of one (1) year from the date of their written acceptance by the governing body. All landscaped areas required by this Agreement shall be permanently maintained by the Landowner pursuant to section 18.48.100 of the City of l3ozernan Unified Development Ordinance. 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. Modifleation or Alterations No modifications or amendment of this Agreement shall 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. Meadow Creek Subdivision,Phase One—Bozeman 1,LLC,Improvements Agreement 2012 6 12. No Assianment The responsibilities and benefits of this Agreement to the Landowner may not be assigned in whole, or in part, without the express written approval of the City. Such approval may not be withheld unreasonably, but any unapproved assignment is void. There is no prohibition on the right of the City to assign its rights under this Agreement. The City shall release the original Landowner fi-oin their liability under this agreement if it accepts and approves a proper assignment from any developer or lender who obtains the property. Transfer of said lands shall not release any developer or lender who obtains the property fi-orn the responsibility of completing said required subdivision improvements, unless otherwise approved by the City. 13. Successors Except as provided in paragraph twelve (12), this Agreement shall be binding-upon, enure to the benefit of, and be enforceable by the parties hereto and their respective heirs, successors and assigns. 14. Filing The Landowner shall have this Agreement recorded in the Office of the Gallatin County Clerk and Recorder within ten (10) workings days of being executed by the Landowner and City. R N LA NDO WE NDO NE B Dann T. SAaV., Managing Partner Bozeman 1, LL STATE OF MONTANA :ss County of %b n , I Meadow Creek Subdivision,Phase One—Bozeman 1,LLC,Improvements Agreement 2.012 7 On this 7'rh day of Mafch 2012, before me a Notary Public of the State of Montana, personally appeared Danny T. Skarda, Managing Partner, Bozeman 1, LLC, known to me to be the representative that executed the foregoing Improvements Agreement, and acknowledged to me that he executed the same for and on behalf of said Corporation. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year first above written. (SEAL) (Printed Name Aere) CE SK Notary Public NQW4Y for the State of Montana EM ER, Residingat e) 1y)0:S NOW V M soo ot Mont" My Commission Ex s:a JD Expires: �- MAL wok my 19, 13 MY.rC0TMtftA I Wee (Use 4 digits for expiration year) oc-totiit 19,2013 , Meadow Creek Subdivision,Phase One—Bozeman 1,LLC,Improvements Agreement 2012 8 TM,ICITY OF BOZEMAN BY: Tin AX nning Director City of Zen n e STATE OF MONTANA .ss County of Gallatin On the� day of Ck.rcl, 2012, before me, a Notary Public for the State of Montana, personally appeared Tim McHarg, known to me to be the person described in and who executed the foregoing instrument as Planning Director of the City of Bozeman, whose name is subscribed to the within instrument and acknowledged to me that he executed the same for and on behalf of said City. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal on the day and year first written above. (SEAL) o—i—a r- (Printed Name Here) 11:D yGP1or,,1,nger b Notary Public for the State of Montana for the ,'Cte Of Montana Residing at SEAL.-'* Bo. My Commission Expires: 1"qrro 7 2�ojlg- �7rlan, Montana Expires: Marc;-) se 4 digits for expiration year) -)2 5,2015 Meadow Creek Subdivision,Phase One—Bozeman 1,LLC,Improvements Agreement 2012 9 EXHIBIT "All ESTIMATED COST FOR IMPROVEMENTS Date: .'" Project: Meadow Creek Snbdivisi*Bozeman1JL Landowner: Danny Skarda Managing Member, Improvement Sq. Ft./Ln. Ft Estimated Cost Street Boulevard/Trail Per Cashman Nursery/ Parkland, Stoma Water Improvements Madison Engineering Estimates $ 47,496.56 Boulevard Sidewalks Per Morrison Maierle Estimates $ 352,792.50 Schedule One Boulevard Sidewalks Per Morrison Maierle Estimates $ 5,695.00 Installed by August 4, 2012 South 19"' Avenue Striping Per Engineering, Inc. Estimates $ 900.00 January 9, 2009 Punch List Per Engineering, Inc. Estimates $ 5,000.00 Total = $ 411,884.06 x 1.5 = 617,826.09 Approved by City Engineer's ()Ifmce ''I V bate V — Meadow Creek.Subdivision,Phase One-Bozeman 1,LLC,Improvements Agreement 2012 10