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HomeMy WebLinkAbout93- Water and Sewer Improvements for Overbrook Condominiums SUPPLEMENTAL IMPROVEMENTS AGREEMENT FOR WATER & SEWER IMPROVEMENTS RECEIVED BY BOZEMAN FOR CITY-COUNTY PLA NINO OFFICE 3 OVERBROOK CONDOMINIUMS DATE CONDITIONAL USE PERMIT, #Z-9230 THIS AGREEMENT is made and entered into this Z-4:—'-day of March, 1993, by and between Overbrook Partnership, hereinafter called the "Developer", and the City of Bozeman, a Municipal Corporation of the State of Montana, hereinafter called the "City" WHEREAS, the City's inspection of the Phase I water mains and sanitary sewer mains at the Property (as defined in Paragraph 5 below) has revealed the following deficiencies: A. Those items described in the letter to Phill Forbes, Bozeman Director of Public Service dated March 17, 1993, from Ray Center of Rocky Mountain Engineers (a copy of which is attached to this Agreement as Exhibit A and incorporated herein) and referencing Overbrook punch list items for (Phase 1) water and sewer mains construction; B. The need to compact sufficient fill over the water and sewer mains to support construction traffic loads over said mains; 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 correction of the above stated deficiencies, and to provide for the issuance of a building permit for one sixplex condominium unit on the property; NOW THEREFORE, in consideration of the mutual covenants and conditions contained herein, it is hereby agreed as follows: 1 . Water Mains The following will be completed prior to the issuance of the building permit for the referenced Unit: Measures will be taken, e.g. barricades and flagging, to prevent construction traffic from driving over existing water mains until sufficient, compacted fill is in-place over said mains to support construction traffic, as determined by the City. Upon completion of this item, a building permit for the sixplex Unit will be issued to the Developer, provided the Developer has satisfied all other requirements for issuance of the building permit. 2. Sanitary Sewer Mains No connections shall be made to the sanitary sewer system prior to the correction of the Sewer Main Punch List Items and their initial acceptance by the City of Bozeman. "New connections" shall include extensions of existing sewer stubs from the property line. 3. Occupancy No occupancy of any Overbrook Condominium unit shall occur prior to the correction of the above stated deficiencies and their initial acceptance by the City of Bozeman. 4. Financial Guarantee Time for Completion of Improvements The correction of the Water and Sewer Punch List Items 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 (1 1/2) times the estimated cost of the correction of all such Items. The estimated cost of correction will be based on a written bid from a contractor capable of performing such work and acceptable to the City of Bozeman (a copy of which is attached to this Agreement as Exhibit C and incorporated herein). In no case will the total security be less than $5,000.00. The parties agree that the issuance of an irrevocable letter of credit to the City in the form attached to this Agreement as Exhibit B and incorporated herein will be deemed acceptable by the City. Said method of security shall be valid for a period of not less than six (6) months. The parties agree that this security will be released at the time the City gives its initial acceptance of the corrections of the Water and Sewer Main Punch List Items. In any event, the Developer shall complete all Water and Sewer Main Punch List Items in order to obtain the City of Bozeman initial acceptance prior to occupancy of any unit or by July 1, 1993, whichever occurs first. 5. Property Description This Agreement pertains to, and includes those properties (herein referred to as the Property) which are designated and identified as Overbrook Condominiums, Phase I, located on Lot 16 and Lots 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30 of Block 9, Amended Plat of Figgins Addition, City of Bozeman, Gallatin County, Montana, and generally located at 517 Westridge and all parcels which front onto Fryslie Street. 6. Improvements Except as specifically set forth herein, this Agreement does not otherwise modify existing requirements concerning the installation, inspection, testing, certification and initial acceptance by the City of Bozeman of water and sewer improvements for said Property. Initial acceptance will be provided upon the satisfactory correction of all Water and Sewer Main Punch List Items. "Initial Acceptance" as used in this Agreement means that the correction of the Water and Sewer Main Punch List Items has been satisfactorily completed and that no deficiencies remain which would adversely affect or compromise the integrity and operation of those systems or the health of any user of them. This Agreement supplements the other improvements agreement on this project, and does not modify any of the provisions of this other improvements agreement. This Agreement does not alter or affect any rights or claims either party may have against any third party concerning or arising out of the performance or failure to perform of any such third party in connection with the Property concerning this project. 7. 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. 8. Default Time is of the essence of 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 3025 Langohr Avenue, Bozeman, Montana, 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: A) The City may, at its option, collect upon the financial guarantee and use those funds to complete the correction and inspection of the Water and Sewer Main Punch List Items. Any funds remaining after the City has secured the completion of correction of the Water and Sewer Main Punch List Items and the inspection of them shall be returned to Developer. 1 . The City's representative, contractors, and engineers shall have the right to enter upon the property and perform such work and inspection, and the Developer 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. 9. Warranty The Developer shall warrant against defects in the corrections of the Water and Sewer Main Punch List Items for a period of one year from the date of their written, initial acceptance by the City. 10. Governing Law This Agreement shall be construed according to the laws of the State of Montana. 1 1 . Attorney Fees and Costs In the event either party incurs legal expenses to enforce the terms and conditions of this agreement, the prevailing party shall be entitled to recover their costs and attorney fees, to include fees, costs and salary of in-house counsel, from the other party. 12. Modifications or Alterations No modifications or amendment of this Agreement shall be valid, unless evidenced in writing signed by the parties hereto. 13. 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. 14. 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 which consent shall not be unreasonably withheld. 15. Successors Except as provided in paragraph 14, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the parties hereto and their respective heirs, successors and assigns. THE-OVERBRO TNERSHIP e Graf, III ,--------Partner STATE OF MONTANA ) :ss County of Gallatin ) On the 18thday of March 19 93 , before me, a Notary Public for the State of Montana, personally appeared Eugene Graf, III, known to me to be the representative of Overbrook Partnership, whose name is subscribed to the within instrument and acknowledged to me that he executed the same for and on behalf of said partnership. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. J ' Notary blic for S at o tana Residin t: Bozeman Commission Expires: August 4 , 1995 (Seal) THE CITY OF BOZEMAN /1 C t�— /, Phillip J. F rb Director of Public Service STATE OF MONTANA ) :ss County of Gallatin ) / On the Z;1 day of G , 191, before me, a Notary Public for the State of Montana, personally appeared Phillip J. Forbes, known to me to be the person described in and who executed the foregoing instrument as Director of Public Service 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. 1N WITNESS WHEREOF, I have hereunto set my hand and affixed my seal on the day and year first written above. Notary lic fw Sat Mo ana Residin t: Commission Expir s: (Seal)