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HomeMy WebLinkAbout13- Dave's Sushi Addition Improvements Agreement DAVE'S SUSHI ADDITION CUP/COA Zoning File 1`do.Z13I25 IMPROVEMENTS AGREEMENT FOR THE DAVE'S SUSHI ADDITION CUP/COA APPLICATION (ZONING PILE NO. Z13125), BOZEMAN, MONTANA THIS AGREEMENT is made and entered into this � day of 20A by and between Dave Weiss., 115 N. Bozeman Ave. Bozeman NIT 59715 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 expansion of serving area for on-premise alcohol consumption to the building addition and an exterior patio and a Certificate of Appropriateness to allow the addition to an existing restaurant at 115 North Bozeman Avenue and legally described as Lots 12 and 13 and the East 5.5 feet of I,ot 14, Block. H, Original Townsite, City of Bozeman, Gallatin County, Montana. WHEREAS, it is the intent of the Developer to obtain occupancy for the building at 115 North Bozeman Avenue., 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 Conditional Use Permit 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-3 on the City of Bozeman Zoning Map, and identified as 115 North Bozeman Avenue and legally described as lots 12 and 13 and the East 5.5 feet of Lot 14 Block H Original Townsite Cit of Bozeman, Gallatin County, Montana. Irn re�vements Agreement Page 1 JSHI ADDITION CUP/COA ZoniM File No.213125 2. Improvements This Agreement specifically includes landscaping _ bike racks, parking striping, and pedestrian handicap improvements at an intersection as provided in the approved Final Site Plan Zoning File No. Z13125 and the provided estimate. The estimated cost of these improvements is attached as Attachment 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 tune 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 event, 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 Dave Weiss. 115 N. Bozeman Ave., Bozeman, MT 59715 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: Improvements Agreeme nt Pa e2 JDAVE'S SUSHI ADDITION CUP/COA Zoning File 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 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, snowing 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 Improvements Agreement Page 3 PAVE'S SUSHI ADDITION CUP/COA Zoning File No--2-13-12-51 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, 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. It. 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, enure to the benefit of, and be enforceable by the parties hereto and their respective heirs, successors and assigns. Improvements Agreement —P—a—ge 4] [DAVE'S SUSHI ADDITION CUP/COA —Zoning File Ncs. 213125 THE CITY OF BOZEMAN Wendy Thomas Director of Community Developinent STATE OF MONTANA )ss. County of GALLATIN On this day I• 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 me that she executed the same for and on behalf of said City. IN WITNESS WHEREOF, I have hereunto set any hand and affixed my Notarial Seal the day and year first above written. o f cj' (SEAL) Notary Public-for the State of Montana Residing at cz, \ QLL, ]ARA L HASTIF-- My Commission Expires: i A' ' fc�r C. Cj ""4 C) (Use four digits f©r expiration'year)tPad My CO"P-ss�()n April 04. 2017 Improvements Agreement Page 61 DAVE'S SUSHI ADDITION CUP/COA Zoning File No.213125 OWNER Dave Weiss STATE OF MONTANA )ss' County of Gallatin On this day of C e 2015,), before me, the undersigned, a Notary Public for the State of personally appeared Dave Weiss known to me to be the property oV 0 115 N. Bozeman Avenue, that executed the within instrument, and acknowledged to me that he executed the same for and on behalf of said corporation. IN WITNESS WHEREOF, I have hereunto set my .h.and and affixed my Notarial Seal the day and year first above written. Z L7 AT TARA L HAS-nE No wary Pu Notary Public for the State of Montana blic 'A r3fi = for ;iie State, of Montana I�csid ng at: Residing at Bozeman �.-",n.,-orn an, Montana My Commission Expires f�iy comr-russion Expires: O�"v( Aprji 04, 2'017 Improvements Leement Page 51 REMAINING IMPROVEMENTS FOR DAVE'S SUSHI ADDITION ATTACHMENT A Concrete Patio and Perimeter Fence for outdoor seating area $4,000 Sidewalk repair and ADA installation on sidewalk corners $2,000 Parking Lot Striping (including ADA spot) $300 Landscaping $1,000 Total $7,300 X 1.5 $10,950 Western December 26, 2013 IRREVOCABLE LETTER OF CREDIT (DA##4101138) Beneficiary: City of Bozeman Bozeinar KT50,715- To City of Bozeman: For the account of David Weiss, we hereby authorize you to draw on us at sight up to an aggregate amount of Ten Thousand Nine Hundred Fifty Dollars ($10,950). Drafts drawn under this Letter of Credit.must specify the date and the number of the Letter of Credit and must be presented at the identified office below not later than October 1, 201.4. Drafts under this letter must be accompanied by your certified statement that the client did not complete the required work and further supported by proper documentation and costs that you have had the work completed. This Letter of Credit sets forth in full the terms of our obligations to you, and such undertaking shall not in any way be modified or amplified by any agreement in which this Letter of Credit relates, and any such reference shall not be deemed to incorporate herein by reference of any agreement. This Letter of Credit is irrevocable, unconditional and non-assignable. We hereby agree with you that sight drafts drawn under and in compliance with the terms of this Letter of Credit will be duly honored at: Big Sky Western Bank 106 E. Babcock PO Box 662 Bozeman, MT 59771 Unless otherwise expressly stated, this Letter of Credit is subject to the International Chamber of Commerce, Uniform Customs and Practice for Commercial Documentary Credits; 1993 Revision —International Chamber of Commerce Publication No, 500. Stn/G//�/}3rely;` f rt Mike Money — — Vice President/Branch Mana r