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.
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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
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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