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Home My WebLink About13- Cellular Plus Improvements Agreement CELLULAR PLUS SP/COA Z IMPROVEMENTS AGREEMENT FOR THE CELLULAR PLUS SP/COA APPLICATION BOZEMAN,MONTANA THIS AGREEMENT is made and entered into this day of 20� by and between Kimmet Properties, 2501 St. John's Avenue, Billings, MT 59102 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 Site Plan and Certificate of Appropriateness to allow the construction of a commercial building on property located at 606 North f Avenue Bozeman, MT 59715 and legally described as Lot 1-2 and IA and Vacated Alley Lot IA Shonkiniler Addition, City of Bozeman,Gallatin County, Montana. WHEREAS, it is the intent of the Developer to obtain occupancy for the building at 606 North 7th 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 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 as 606 North 7th Avenue Bozeman, MT 59715 and legally described_as Lot 1-2 and IA and Vacated Alley Lot IA Shonkiniler Addition, City o� Bozeman, Gallatin County, Montana 2. Improvements Improvements Agreement Page 1 CELLULAR PLUS SP/COA 213056 This Agreement specifically includes landscaping and trash enclosure as provided in the approved Final Site Plan 213056 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 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 between Kim.met Properties, 2501 St. John's Avenue Billings, MT 59102 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 complete construction and inspection of the improvements described herein. The City's Improvements Agreement Page 2 CELLULAR PLUS SP/COA 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 pen-nit. S. 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 enforce any of the terms or conditions of this Agreement, then the prevailing party shall be Improvements Agreement — Pa Lye 3 CELLULAR PLUS SP/COA Z13056 entitled hureasonable attorney's fees and costs, to include the salary and costs o[ in-house counsel including City Attorney. 1 O Modifications orAlterations No modifications 0r amendment o{this /\g,eunoom| oho]} be valid, uoicoo agreed in io writing 6» the parties hereto, lK. Invalid Provision The invalidity nroocoGom:eabilityofany provision of this Agreement shall not affect the other provisions bermof, and this /\grcernsot shall be construed in all ncmVsc1m 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, nriopart, without prior written consent o{the City. 13. Successors Except as provided in paragraph 10, this Agreement shall be binding upon, coaurc to the benefit of, and be enforceable by the parties hereto and their respective heirs, successors and assigns. improvements Agreement —P—ag—e4_1 COPY Bond No. 929583600 LANDSCAPE BOND KNOW ALL MEN BY THESE PRESENTS,that Dick Anderson Construction,Inc. PO Box 31511,Billings MT 59107 , as Principal and Continental Casualty Company,333 S.Wabash Ave.,Chicago,IL 606044 ,as Surety, a corporation organized under the laws of the State of Ilinois and authorized to transact business in the State of MONTANA,as Surety, are held and firmly bound unto City of Bozeman 121 forth Rouse,P.O.Box 200,.Bozeman,MT 59771 as Obligee, in the penal sum of "Thirty-seven Thousand Five Hundred And No/100 Dollars ( $37,500.00 ) lawful money of the United States of America, for the payment of which the Principal and Surety bind themselves,their heirs, executors,administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, said Principal is the Contractor of a project known as Cellular Plus Bozeman located at, x,06 North 7th Ave, BozemgnMT 59715 and said City has required a bond be furnished in an amount sufficient to pay the construction costs of Landscaping such improvements to be completed in One Year or less time. NOW, THEREFORE,if the said Principal shall install the said work according to the requirements of the City of Bozeman then this obligation shall be null &void. PROVIDED FURTHER., HOWEVER,that the obligation of this bond shall be kept in force and effect until November 25,2014 Signed and Sealed this 25th day of November , 2013 Dick Anderson Construction,Inc. By: Countersigned By: Hub International Mountain Stats Limited Continental Casualty Company 1t e C.LeVeaux � John Leaf,Attorn (-In-Fact U P, -C w U E C E pi -0 S -w u 4 < P CA 0- r M104 C4 tu V3 va COMPANY coMPANY U VNWW()V b(N 7v U —S E3 7c C-,OMPAN COMPANY IIN IIH