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HomeMy WebLinkAbout13- Smith's Fueling Center Improvements Agreement SMITH'S FUELING CENTER CUP/COA 213057 IMPROVEMENTS AGREEMENT FOR THE SMITH'S FUELING CENTER CUP/COA APPLICATION BOZEMAN, MONTANA THIS AGREEMENT is made and entered into this day ofka 2013, by and between CNC Construction, 3677 N Highway 126, Ste N, Farr West Utah 84404 hereinafter called the "Developer," and the City of Bozeman, a Municipal Corporation of the State of Montana, hereinafter called the "City." WHEREAS, it is the intent and purpose of the Developer to meet the conditions of approval of a Conditional Use Permit and Certificate of Appropriateness to allow the construction of a commercial building on property located at 1735 W. Oak Street, Bozeman, MT 59715 and legally described as Lot 1A-2 Bridger Peaks Town Center Subdivision, City of Bozeman, Gallatin County, Montana. WHEREAS, it is the intent of the Developer to obtain occupancy for the building at 1735 W Oak Street; and WHEREAS, it is the intent and purpose of both the Developer and the City to hereby enter into an Agreement which will guarantee the full and satisfactory completion of the required improvements on the property hereinafter described; and it is the intent of this Agreement, and of the parties hereto, to satisfy the improvements and guarantee requirements for the conditional approval of said Site Plan Application. NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, it is hereby agreed as follows: 1. Property Description This Agreement pertains to and includes those properties which are designated as B-2-on the City of Bozeman Zoning Map, and identified 1735 W. Oak Street, Bozeman, MT 59715-and legally described as Lot IA-2 Bridger Peaks Town Center Subdivision, City of Bozeman, Gallatin County, Montana. 2. Improvements Improvements Agreement 'Page 1 SMITH'S FUELING CENTER CUP/COA 213057 ] This Agreement specifically includes landscaping as provided in the approved Final Site Plan 213057 and the provided estimate. The estimated cost of these improvements is attached as Exhibit A. 3. Financial Guarantee, Time for Completion of Improvements If the use of the structure is to occur prior to completion of all required on-site improvements, this Improvements Agreement must be secured by a financial guarantee, as may be deemed acceptable by the City, payable to the City of Bozeman, in an amount equal to one and one-half times the estimated cost of the installation of any required improvements not completed at the time occupancy of structures is requested. Improvements may be financially guaranteed with a letter of credit or other acceptable form of security. Said method of security shall be valid for a period of not less than twelve (12) months. In any everit, all required improvements shall be completed within nine (9) months of occupancy in order to avoid default on the method of security. 4. Inspection Representatives of the City shall have the -right to enter upon the property at any reasonable time in order to inspect it and to determine if the Developer is in compliance with this Agreement, and the Developer shall permit the City and its representatives to enter upon and inspect the property at any reasonable time. 5. Default Time is of the essence for this Agreement. If the Developer shall default in or fail to fully perform any of its obligations in conformance with the time schedule under this Agreement, and such default or failure shall continue for a period of thirty (30) days after written notice specifying the default is deposited in the United States mail addressed to the developer at between cric Construction 3677 N 1jigYhwqy 126, Suite N, Farr West UT 84404 or such other address as the Developer shall provide to the City from time to time, without being completely remedied, satisfied, and discharged, the City may elect to enforce any of the following specified remedies: A) The City may, at its option, declare the financial guarantee to be forfeited and secure the Improvements regiment I'�jge 2 I SMITH'S FUELING CENTER CUP/COA 213057 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 Developers shall permit and secure any additional permission required to enable them to do so. B) 'The City may enforce any other remedy provided by law., 6. Indemnification The Developer 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 Agreement. The Developer 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 Developer. 'The Developer is not an agent or employee of the City. 7. Warranty The Developer shall warrant against defects in these improvements for a period of one year from the date of their written acceptance by the Governing Body. The Developer acknowledges that the required landscaping must be maintained in a healthy, growing condition at all times. 'The Developer is responsible for regular weeding, mowing of grass, irrigating, fertilizing, pruning, and other maintenance of all plantings as needed. Any plant that dies must be replaced with another living plant that complies with the approved landscape plan. The Developer hereby acknowledges that failure to maintain required landscaping in a healthy growing condition at all times may result in revocation of the conditional use permit. 8. Governing Law and Venue This Agreement shall be construed under and governed by 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. 9. Attorney's Fees In the event it becomes necessary for either party to this Agreement to retain an attorney to Improvements Agreement -—Pa g—e-3� SMITH'S FUELING CENTER CUP/COA enforce any of the terms or conditions of this Agreement, then the prevailing party shall be entitled to reasonable attorney's fees and costs, to include the salary and costs of in-house counsel including City Attorney. 10. Modifications or Alterations No modifications or amendment of this Agreement shall be valid, unless agreed to in writing by the parties hereto. 11. Invalid Provision The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 12. No Assignment It is expressly agreed that the Developer shall not assign this Agreement in whole, or in part, without prior written consent of the City. 13. Successors Except as provided in paragraph 10, 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, Improvements Agreement �ae 4 SMITH'S FUELING CENTER CUP/COA 213057 CORPORA:`I ON Can behalf of CNC Construction, STATE, OF MONTANA ) )ss. County of Gallatin } On this day of ' ^m��� ,Cv��`' :�� , 2013. before me, the ridersigned;a Notary Public for the State of personally appeared �. I ~ O known to nee to be the _4 of CNC Construction, the corporation that executed tlic within instr unaert, 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 any Notarial Seal the day and year first above written. _(SLAT ) m w� `�. T/0A L HAS-FIE Notary Public for the State of Montana N `"" ' 'j"'�i( Residing at 3ozeman. tmOV✓a1{i - fC7Y"'thcc S! 11[C, C,6 Vorr'k.�-artt�. . F-4 sichnq, t: My Commission Expires ( rvy Corso i ssion E,xpiros: . — — "April app. 2017 improvements ALreement Pa e 5 ISMITHIS FUELING CENTER CUP/COA Z13057 THE CITY OF BOZEMAN Director Of COMMUnity Development STATE OF MONTANA )ss. County of GALLATII� On this day of 2013, before me, a Notary Public for the State of Montana, personally appeared Wendy Thomas, known to me to be the person described in and who executed the foregoing instrument as Director of Community Development of the City of Bozeman, whose name is subscribed to the within instrument and acknowledged to one that she executed the same for and on behalf of said City. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) Notary Public for the State of Montana' Residing at TARA J. My Commissi(;n Expires: N�ut�)ry r��hlic T 11erO;AQIA, fol- tjroe ,Stato of (Use four digits for expiration\year)' T Montana My Cornrniss ci7 [,xpires� improvements reement SSVIITH'S FUELING CENTER C:UP/COA ZY3057 EXIIIBIT A Improvements reement 1iFG:09_ INSCO INSURANCE SERVICES, INC. 1ff1SC%1 C3 Underwriting Manager for: C Developers Surety and Indemnity Company CE�M�D Indemnity Company of California 17780 Filch,Suite 200-Irvine,California 92614•(949)263-3300 BOND NO, 538427S INITIAL PREMIUM: $s e-L.o o SUBJECT TO RENEWAL. SUBDIVISION IMPROVEMENTS PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: That we,CNC CONSTRUCTION, INC. , 3677 North Highway 126, Suite N, Farr West,Utah 84404 as Principal, and DEVELOPERS SURETY AND INDEMNITY COMPANY --,a corporation organized and doing business under and by virtue of the laws of the State of Iowa and duly licensed to conduct a general surety business in the State of Montana as Surety,are held and firmly bound unto CITY OF BOZEMAN, MCNTANA as Obligee, in the surn of TWENTY THREE THOUSAND TWO HUNDRED F I FTY AND NOI 10 0------------------------ - ------------------------------------------------(S23,250-00-------------) Dollars,for which payment, well and truly to be made,we bind ourselves,our heirs,executors and successors,jointly and severally firmly by these presents. THE CONDITION OF THE OBLIGATION IS SUCH THAT: WHEREAS,the above named Principal entered into an agreement or agreements with said Obligee to: Complete Landscaping at Smith's Fuel, 1400 North 19th Avenue, Bozeman, Montana NOW THEREFORE,the condition of this obligation is such,that if the above Principal shall well and truly perform said agreement or agreements during the original terin thereof or of any extension of said term that may be granted by the Obligee with or without notice to the Surety,this obligation shall be void,otherwise it shall remain in full force and effect. IN WITNESS WHEREOF,the seal and signature of said Principal is hereto affixed and the corporate seal and the name of the said Surety is hereto affixed and attested by its duly aulborizedAttorney-in-Fact at Littleton -Colorado this 13th day of December 2013 "PRINCIPAL"' "SURETY" CNC CONSTRUCTION, INC. DEVELOPERS SURETX AND INDEMNITY COMPANY N J-1 y BY: A� Dougka) J, they, Attorney-in-Fact ID-1277(RFVL:3/01) POWER OF ATTORNEY FOR DEVELOPERS SURETY AND woEMmnrCOMPANY pu Box jo72s.|mv|ms.cASz»a3 (9*9)2e+330 KNOW ALL BY THESE PRESENTS that excepi.as exp rass;y bmi ted.DEVE LOPERS SURETY AND fNOEMN IT Y CC i diDu hereby mak,um,wvo and appoint: *** Douglas J. Rnthey, Cynthia M. Burnett, Alexander D. Rntbey, jointly orsevena!iy*** as its no and lawful�o mey(s)4n-Facl,to maR e,execu to,delI and acknowledge,for and on behalf of saiid Corp oraillon,as sure ibonds.undertakings and con iof suretyship givtng and gir anung unto saio Adomey(s)-in-Fai;it full power and authority to do and to peft m evary act necessary,;equisil e or proper 10 be done in Coin egbon i erewith as each of said own*raxun could do,lbuil reserving m each o/said co*om"on full Dwerw substitution and m*»ca Don,and all o(meacts o I said^oi in-Fact,pursuant m these nm,m`w.are hereby="o*u and confirmed. 7moPmxei ol AtIomey is granted and is signed by facsimile under and by authority cif tne folloMrig resolution adopted by ffie Board OJ Dxaclors Ott DEVEtOPERS;SURETY AND INDEK u/n COMPANY,eiaav/January`s!,2mN RESOLVED,(hat armmWmvnoof any two o|the CxaimnmOfm*Boa/^.the p/esidem.any rmco/m»wc+p'Momi,Senior VI)m-w°s/de=|mwm+pmsiomxo/the wxp+ 'ammuv,aid that each Q1m^m de'oh/is,aumizedwexecute this Power o/A«ome»vuaftlyiny the oti named mm*pm^ev/Attorney mex=:ma.vnuvoaK^/mvmrvwaUw. nundx undertakings and ecniira;Nv/=v"smn;and that the g*cm,arfman/xam`Lam'swmury 0memrpmatiom be,and each o|mnmwereti'is,v"mwzm/m attest I.Ina execution o/ any swx Power ofAli RESOLVED.FURTHER,that the signatures a such officers may m,affixed m any such Power of Attorney mm any=mwca/^relating mm,mur facsimile,and any slich Power u/Attorney n,Cemficeiw*nanngsuch facsimile signatures sh-al|bo'amand binding upon the corporation when so afftxed and in the future mLh(espect to any bond,unclerta!tfng o'oOIuOuo/mwtyouwm which x/satacheo. w WITNESS WHEREOF,nsvo-opcxsaVnsnmvo|xncwmn,coMp*w'mwcauoedmeS6 presents mum signed by Its oemn and mmmmw*y its Secretary or*ssi,�moaue mry this January I sr,7OU8. By AND 4 153 6 BY ��� v Stero"n T Pate,Senior Vice-President o tete of c umomm ` Count/o/Orange O«___ before me, n*o Here mvm Name and rm"m the Om"m pamooatl/upi Daniel Young and Stephen T.Pate Namy0VmSip*% Who Proved 10 me On M basis Of s8i evidence to,be the porsOR(s)whose riarrie�s�isiare subscribed to COMM # 1n1640 NOMPY PUBLIC CALFOM i certty unti PENALTY OF PERJURY under the(aws of the State of Cawomia ihat ne loregoing is M,D WITNESS my hand andolffildal scaL F7 Ja TT Ng n, tary Public CERTIRCATE nmun*orsignau.aoSecretary or Assistant Secretary of DEVELOPERS SURETY AND INDEMNITY COMPANY does hereby wify that the foregoing Power of Attorney remains liik*n force and has noI been revoked and,furthermore,that the provisions of the resolution of the Board o,'Direcors of said corporation set forth In the Poi Attorney are in force as ofme date"/this cmotiou, This Cert�caoe is executed In the City of Irvine,California,(his zatbuayu/ oeoembez, 20 13 By )X" isl.ni Secretary _ CT CONgrRUCnON ENE. December 17, 2013 City of Bozeman Attn: Planning Re: Smith's Fuel Center#170 Bozeman, Montana To Whom It May Concern.- At this time, the following landscape items are still to be completed on the above referenced project: Trees Shrubs Bark The estimated cost of the items to be completed listed above is $15,500,00. If you need any further information, please contact Mark Castro at(801) 726-3933. Sincerely, CNC CONSTRUCTION Mark Castro President 801-732-9425 3677 N Hwy 126 Ste N., Farr,West, UT 84404 801-731-2977 Fax