HomeMy WebLinkAbout06- Concurrent Construction in Bozeman Gateway J-449
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Shelley Vance-Gallatin Cc MT M1SC 62.00
AGREEMENT
FOR CONCURRENT CONSTRUCTION IN
THE BOZEMAN GATEWAY SUBDIVISION P.U.D.
THIS AGREEMENT is made and entered into this day of , 2006, by
and between Mitchell Development Group, LLC, a Montana limited liability company, P. 0. Box
738, Great Falls, MT 59403, hereinafter called the "Subdivider", and the City of Bozeman, a
Municipal Corporation and political subdivision of the State of Montana, with offices at 411 East
Main Street, P.O. Box 1230,Bozeman,MT 5977-1230, hereinafter called the"City".
WHEREAS, it is the intent of the Subdivider to obtain building permits for The
Bozeman Gateway Subdivision P.U.D. prior to installation of all required subdivision
improvements in accordance with Section 18.74.030.1)of the Bozeman Unified Development
Ordinance;and
WHEREAS, it is the intent and purpose of both the Subdivider and the City to hereby
enter into an Agreement which will guarantee the full and satisfactory completion of the required
improvements, related with the property hereinafter described; and it is the intent of this
Agreement,and of the parties hereto, to satisfy the improvements guarantee requirements.
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 legally described as Tract 2A, of the
Amended Plat of West College Minor Subdivision#195A,being situated in the NW 1/4 of
Section 14,and the NE1/4 of Section 15,Township 2 South, Range 5 East, P.M.M., City of
Bozeman, Gallatin County, Montana, as proposed by the Preliminary Plat of The Bozeman
Gateway P.U.D., subject to all existing easements of record or of fact.
2. Improvements
This Agreement specifically includes: a) installation of sewer and water main extensions,b)
street improvements, c)and related storm water drainage improvements. The Estimated Cost of
said improvements has been estimated by Morrison &Maierle, Inc. ("M&M"), 901 Technology
Blvd., Bozeman, MT 59771,at Six Hundred Thirty Nine Thousand One Hundred Fifty Six and
07/100 Dollars($639,156.07) and is attached and made a part of this Agreement,as Exhibit A.
3. Financial Guarantee,Time for Completion of Improvements
It is the Subdivider's intent with this Agreement to obtain building permits prior to completion of
all required subdivision improvements. Therefore, this Agreement shall be secured by a financial
guarantee in the form of a Letter of Credit issued by First Interstate Bank of Great Falls, dated as
of the date the Plat of The Bozeman Gateway Subdivision P.U.D. Phase 3 is filed in the official
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Shelley Vance-Gallatin Cc MT MISC 62.00
records of Gallatin County, Montana, in the amount of Nine Hundred Fifty Eight Thousand
Seven Hundred Fifty and 00/100 Dollars ($958,750.00) which is more than one hundred and fifty
(150)percent of the Estimated Cost of said improvements.
The financial guarantee shall be in full force and effective until the work is completed by
the Subdivider and accepted by the City of Bozeman. Said financial security shall be in the form
of surety bond,certificate of deposit, or cash. The Subdivider hereby agrees that the
improvements will be completed within four(4)years of the date of initial Preliminary Plat
approval by the City Commission,December 12, 2005, 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 Subdivider is in compliance with this Agreement,
and the Subdivider 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 Subdivider 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 Subdivider at Mitchell Development Group,
LLC,P. O. Box 738,Great Falls,MT 59403,or such other address as the Subdivider 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,draw on the Letter of Credit to the extent of one hundred
fifty percent (150%) of the amount reasonably estimated by the City to 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 Subdividers shall permit and
secure any additional permission required to enable them to do so. In the event that
any funds remain from those drawn by the City hereunder upon completion of all
improvements, such funds shall be promptly returned to the Subdivider.
b. The City may enforce any other remedy provided by law.
6. Indemnification
The Subdivider shall indemnify,hold harmless,and defend the City of Bozeman against any and all
claims, at Subdivider's own expense, arising out of or resulting from the acts or omissions of
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Shelley Vance-Gallatin Cc MT M15C 62.00
Subdivider or its agents, employees, or contractors, whether negligent or otherwise, in connection
with the performance of work described in this Agreement. The City shall be responsible for any
claims arising from negligence or willful misconduct on the part of the City or its agents or
employees,except the Subdivider shall be responsible for those claims ofnegligence and misconduct
arising from the Subdivider, its agents, or employees not providing to the City, its agents or
employees,information relevant to the subject matter of this Agreement.The parties shall cooperate
in the defense of Claims and shall furnish records, information, and testimony and, attend
proceedings, as may be reasonably necessary.
7. 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 entitled to
reasonable attorney's fees and costs, including fees, salary and costs of in-house counsel including
City Attorney.
8. Warranty
The Subdivider shall warrant against defects of all improvements and that these improvements are
made in a good and workman-like manner for a period of one(I)year from the date of their written
acceptance by the Governing Body.
9. Governing Law
This Agreement shall be construed according to 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.
10. Modifications or Alterations
No modifications or amendment of this Agreement shall be valid,unless evidenced by a 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 Subdivider shall not assign this Agreement in whole,or in part,without
prior written consent of the City.
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13. Successors
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Shelley Vance-Gallatin Co MT MISC 62.00
Except as provided in paragraph 12, 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.
14. Acknowledgment of Increased Risk
The Subdivider acknowledges in accordance with the terms of Section 18.74.030.D.6 of the
Bozeman Unified Development Ordinance,recognizes,acknowledges and assumes the increased risk
if loss because certain public services may not exist at the site.
15. Occupancy of Structures
The Subdivider, in accordance with the terms of Section 18.74.030.D.8 of the Bozeman Unified
Development Ordinance recognizes, acknowledges and agrees that no structures will be occupied
or commencement of any use constructed or proposed within the boundary of the PUD will be
allowed until all conditions of the initial Preliminary Plat approval by the City Commission,
December 12, 2005, have been met, and all required infrastructure improvements have been
completed,inspected and accepted by the City of Bozeman and a Certificate of Occupancy has been
issued.
16. Incremental Issuance of Building Permits
The Subdivider, in accordance with the terms of Section 18.74.030.D.4 of the Bozeman Unified
Development Ordinance recognizes and acknowledges that building permits may be issued
incrementally, dependent on the status of installation of the infrastructure improvements, for The
Bozeman Gateway PUD.
17. Supplemental Fire Hazard and Liability Insurance
The Subdivider, in accordance with the terms of Section 18.74.030.D.5 of the Bozeman Unified
Development Ordinance will provide and maintain fire hazard and liability insurance with the City
named as an additional insured.
PROPERTY OWNER
Mitchell Development Group, LLC, fka Mitchell
Development&Investments, LLC, a Montana
limited liability company
By i
Pli`co-dor-e J. Mitchell, Managing Member
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STATE OF MONTANA) IIIIIIIIIIIIIIIIIIIIII)IIIII IIIIII IIIIIIIIIIIIIIIIIIIII 2248308
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County of Cascade) Shelley Vance-Gallatin Cc MT MISC 62.00
On thisjj �day of_a,,_�,� , 2006, before me, the undersigned, a Notary Public for the
State of Montana, personally appeared Theodore J. Mitchell, known to me to be the Managing
Member,of Mitchell Development Group, LLC, flea Mitchell Development&Investments, LLC,
a Montana limited liability company, the company that executed the within instrument, and
acknowledged to me that he executed the same for and on behalf of said company.
IN WITNESS WHEREOF,I have hereunto set my hand and affixed my Notarial Seal the day
and year first above written.
(Sig ature above)
(Printed Name above)
-" Notary Public for State of Montana
C, - j• l - Residing at: -�;L�,k;+zQ t� VN XV
�` Commission Expires: 4 io
(Use 4 digits for expiration year)
THE¢IT f-OF BOZEMA
Andrew C. Epple, AICP
Planning Director
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STATE OF MONTANA)ss I II�III Illl�II�II Ilflll IIII> 22
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County of Gallatin ) Shelley Vance-Gallatin Co MT MISC 62 00 0
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On this jlt 'day of I,�;CU�N�'�rJC,r, 2006, before me, a Notary Public for the State of Montana,
personally appeared Andrew C. Epple, AICP, known to me to be the person described in and who
executed the foregoing instrument as Planning Director 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.
IN WITNESS WHEREOF,I have hereunto set my hand and affixed my seal on the day and
year first written above.
(Signature above)
(Seal) �uuuirtiri� =Qj1:
`\§ E y �%, (Printed Name above)
Q��• ' ' • . S'),% Notary Public for State of Montana
Residing at: '
Commission h�`xpires: 1�SEAL (Use(Use 4 digits for a piration year)
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