HomeMy WebLinkAbout12- Meadow Creek Subdivision, Phase 1 City of Bozeman
Department of Planning and Community Development
P.O. Box 1230
Bozeman, MT 59771-1230
IMPROVEMENTS AGREEMENT
FOR
MEADOW CREEK SUBDIVISION, PHASE ONE
BOZEMAN 1, L.L.C.
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This AGREEMENT is made and entered into this day of Mt4l�
2012,by and between DANNY T. SKARDA, Managing Member of BOZEMAN 1, LLC, Rocky
Mountain Bank, 2901 W. Main Street, Bozeman, MT 59718, hereinafter called the"Landowner",
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 59771-1230,
hereinafter called the "City".
WHEREAS, it is the intent and purpose of the Landowner to meet the conditions of
preliminary plat approval, Planning Application No. P-05053 and the Final Plat application,
Planning Application No. P-06058 of Meadow Creek Subdivision, Phase One, to subdivide
118.4709-+ acres and create 155 residential Iots; and
WHEREAS, the Landowner recognizes the need to satisfy the improvements
guarantee requirements for the Final Plat approval of Meadow Creek Subdivision, Phase One and
to guarantee the full and satisfactory completion of the required improvements related with the
property hereinafter described; and
Meadow Creek Subdivision,Phase One—Bozeman 1,LLC,Improvements Agreement 2012 1
WHEREAS, the Landowner has requested an extension to complete the required subdivision
improvements for Meadow Creek Subdivision, Phase One; and
WHEREAS, it is the intent and purpose of both the Landowner and the City to hereby enter
into an new 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 for the Final Plat
approval of Meadow Creek Subdivision,Phase One.
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 and
identified as being:
A tract of land situated in portions of the SW1/4NEI/4, SEl/4SWI/4, and W1/2SE1/4 of
Section 23, T. 2. S., R. 5 E., P.M.M., Gallatin County, Montana, more particularly described
as follows,to-wit:
Beginning at a point which is the southeast corner of Lot 27 of Genesis Business Park
subdivision; thence from said point of beginning S 01°02'41" W, 337.74 feet along the west
line of Minor Subdivision 235; thence
S 01°02'09" W, 923.12 feet; thence S 00°4524" W, 77.29 feet; thence S 01°03'32" W, 669.17
feet to the southerly right-of-way limit of Enterprise Boulevard; thence N 88053'05" W, 39.44
feet along said right-of-way limit to a point of curve; thence clockwise along a curve with a
radius of 380.00 feet an are distance of 317.94 feet (chord bearing N 64°54'55" W, chord
length 308,75 feet) to the southerly right-of-way limit of Parkway Avenue; thence
S 52019'53" W, 90.04 feet to a point of curve, thence counterclockwise along a curve with a
radius of 770.00 feet an are distance of 688.94 feet (chord bearing S 26041,57" W, chord
length 666.19 feet); thence
S 01"04'01" W, 101.49 feet to the northerly right-of-way limit of Ainsworth Drive; thence S
88°57'47 E, 161.31 feet; thence S 01°04'O1 W, 181.83 feet to a point of curve; thence
counterclockwise along a curve with a radius of 485.00 feet an arc distance of 106.36 feet
(chord bearing S 05°12'56" E, chord length 106.15 feet); thence S 11°29'53" E, 33.91 feet;
thence clockwise along a curve with a radius of 515.00 feet an arc distance of 116.47 feet
(chord bearing S 05°01110" E, chord length 116.22 feet); thence
Meadow Creek Subdivision,Phase One—Bozeman 1,LLC,Improvements Agreement 2012 2
S 01°27'34" W, 306.42 feet;thence clockwise along a curve with a radius of 315.00 feet an arc
distance of 54.79 feet (chord bearing S 06026'32" W, chord length 54.72 feet); thence S
11°25'31" W, 101.63 feet; thence counterclockwise along a curve with a radius of 285.00 feet
an arc distance of 42.75 feet (chord bearing S 070741" W, chord length 42.71 feet); thence S
02049'51" W, 103.12 feet to the northerly right-of-way limit of Last Loop Drive; thence S
21°31'34" W, 64.64 feet to the southerly right-of-way limit of Last Loop Drive; thence S
01-01'54" W, 258.86 feet to the south line of Section 23; thence N 88°58'06" W, 786.91 feet
along said line to the south 1/4 corner of Section 23; thence N 88°49'22" W, 1328.27 feet to
the west 1/16th corner common to Sections 23 and 26; thence N 01°19'12" E, 1331.29 feet
along the west 1/1 6th line of Section 23 to the southwest 1/16th corner of said section; thence
S 88050'58" E, 1331.58 feet along the south 1/16th line to the center-south 1/16th corner;
thence N 01°27'44" E, 1378.08 feet to the northerly right-of-way limit of Graf Street; thence S
88°53'38" E, 562.85 feet to the westerly line of the Certificate of Survey on file in the clerk &
recorders office of Gallatin county on Film 9, Page 1156; thence N 04°25'12" E, 23.20 feet;
thence
N 26-11-10" E, 78.28 feet; thence N 00°33'44" W, 1203.91 feet to the south line of Genesis
Park subdivision; thence S 88°34'05" E a distance of 738.75 feet to the Point of Beginning,
containing 118.4709 acres, more or less, subject to any easements and or rights of way of
record or apparent on the ground.
2. Improvements
This Agreement specifically includes the following subdivision improvements for Meadow
Creek Subdivision, Phase One; a) boulevard sidewalks, b) trails, c) boulevard landscape and
landscape irrigation improvements, d) parkland and storm water facility improvements, e) January
9, 2009 warranty list, and f) South 19"' Avenue improvements. The Estimated Cost of said
improvements has been updated and revised by Morrison Maierle, Inc., 2800 Technology
Boulevard West, PO Box 1113, Bozeman, MT 59771-1113 at Four Hundred and Eleven
Thousand, Eight Hundred Eighty Four Dollars and Six Cents ($411,884.06) and is attached and
made a part of this Agreement, as Exhibit"A".
3. Financial Guarantee,Time for Completion of Improvements
It is the Landowner's intent with this Agreement to complete all required subdivision
improvements related to the subject property. Therefore, this Agreement shall be secured by a
Meadow Creek Subdivision,Phase One—Bozeman 1,LLC,Improvements Agreement 2012 3
financial guarantee in the form of a Letter of Credit, which is one hundred and fifty(150)percent of
the Estimated Cost of said improvements.
The financial guarantee shall be in full force and effective for a minimum of two (2) years,
or until the work is completed by the Subdivider and accepted by the City of Bozeman. The
Subdivider hereby agrees that the remaining subdivision improvements will be completed and
accepted by City of Bozeman based on the following time line as established by the current
expiration date of Irrevocable Standby Letter of Credit No. 119 on December 4, 2011 as
follows: 1) all January 9, 2009 warranty list improvements and South 19t" Avenue
improvements to be completed prior to August 4, 2012, 2) all parkland and open space areas,
trails, storm water facilities, and all other related landscape improvements will be completed
prior to August 4, 2012, 3) schedule one for boulevard sidewalks identified in Exhibit "B"
prior to August 4, 2012, and 4) all remaining boulevard sidewalks shall be completed prior to
December 4,2013,in order to avoid default on the method of security.
Upon submission of fully documented invoices for the work performed, said work to be
inspected and certified for payment by Subdivider's professional engineers and the City of
Bozeman and or its agents as necessary, the City of Bozeman may release a portion of the letter of
credit for the work completed by the referenced invoices. Said financial guarantee shall be
automatically renewed or extended within thirty (30) days of the expiration date if all required
subdivision improvements are not installed at that time.
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.
Meadow Creek Subdivision,Phase One—Bozeman 1,LLC,Improvements Agreement 2012 4
5. Default
Time is of the essence of this Agreement. If the Landowner 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 Landowner at 2901 W. Main
Street, Bozeman,MT 59718, or such other address as the Landowner 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 representative, contractors, and engineers shall have the right to enter upon the
property and perform such work and inspection, and the Landowner shall permit and
secure any additional permission required to enable them to do so. In the event that
any funds remain from the financial guarantee 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 Landowner hereby expressly agrees to indemnify and hold the City hannless 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. Landowner 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
Landowner. The Landowner is not an agent or employee of the City.
Meadow Creek Subdivision,Phase Otte—Bozeman 1,LLC,improvements Agreement 2012 5
7. Attorney 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 Landowner 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 (1) year from the
date of their written acceptance by the governing body. All landscaped areas required by this
Agreement shall be permanently maintained by the Landowner pursuant to section 18.48.100 of the
City of Bozeman Unified Development Ordinance.
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. Modification or Alterations
No modifications or amendment of this Agreement shall valid, unless evidenced by a
writing signed 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.
Meadow Creek Subdivision,Phase One—Bozeman 1,LLC,Improvements Agreement 2012 6
12. No Assignment
The responsibilities and benefits of this Agreement to the Landowner may not be assigned in
whole, or in part, without the express written approval of the City. Such approval may not be
withheld unreasonably,but any unapproved assignment is void. There is no prohibition on the right
of the City to assign its rights under this Agreement. The City shall release the original Landowner
from their liability under this agreement if it accepts and approves a proper assignment from any
developer or lender who obtains the property. Transfer of said lands shall not release any developer
or lender who obtains the property from the responsibility of completing said required subdivision
improvements, unless otherwise approved by the City.
13. Successors
Except as provided in paragraph twelve (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. Filing
The Landowner shall have this Agreement recorded in the Office of the Gallatin County
Clerk and Recorder within ten (10) workings days of being executed by the Landowner and City.
L NDOWNER
BY: Dann T. S , anaging Partner
Bozeman 1, LL
STATE OF MONTANA )
:ss
County of
meadow Creek Subdivision,Phase One—Bozeman 1,LLC,Improvements Agreement 2012 7
On this day of _ af& 2012, before me a Notary Public of the State of
Montana, personally appeared Danny T. Skarda, Managing Partner, Bozeman 1, LLC, known to me
to be the representative that executed the foregoing Improvements Agreement, and acknowledged to
me that lie executed the same for and on behalf of said Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal the day and year
first above written.
(SEAL)
(Printed Name ere)
CEMPUR Notary Public for the State of Montana
a NQURY PUBLIC 1tW
the Residing at_P)M inAS
SEAL Slate d tvlorrk= My Commission Expires:Qxkbw 19,M3
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October 19,2013
Meadow Creek Subdivision,Phase One—Bozeman 1,LLC,Improvements Agreement 2012 g
CITY OF BOZEMAN
BY: Ti nning Director
City of z n '
STATE OF MONTANA )
:ss
County of Gallatin }
On the /3t'` day of �'� 11cl- ,2012,before me, a Notary Public for the State of
Montana, personally appeared Tim McHarg, 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.
(SEAL)
„ (Printed Name Here)
. e���RFNi". H�l�r��:Greninger
!Votary Public Notary Public for the State of Montana
HOTAR/q[;y:for the i>;;:te of Montana
*: -- = Residing at By urplet.y"
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9.SEAL.2� Borta-lan,Montana My Commission Expires: h'Ma.rcf,, -Z 7-LiS
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Meadow Creek Subdivision,Phase One—Bozeman 1,LLC,Improvements Agreement 2012 9
EXHIBIT "A"
ESTIMATED COST FOR IMPROVEMENTS
------------------------------------------------------------------------------------------------------------------------
Date: 120o,
Project: Meadow Creek Subdivisi*Bozeman
Landowner: Danny Skarda �N
Managing Member,
------------------------------------------------------------------------------------------------------------------------
Improvement Sq. Ft./Ln. Ft Estimated Cost
Street Boulevard/Trail Per Cashman Nursery/
Parkland, Storm Water Improvements Madison Engineering Estimates $ 47,496.56
Boulevard Sidewalks Per Morrison Maierle Estimates $ 352,792.50
Schedule One Boulevard Sidewalks Per Morrison Maierle Estimates $ 5,695.00
Installed by August 4,2012
South 191h Avenue Striping Per Engineering, Inc. Estimates $ 900.00
January 9,2009 Punch List Per Engineering, Inc. Estimates $ 5,000.00
Total= $ 411,884.06
x 1.5= $ 617,826.09
Approved by City Engineer's Office Datefu—
!
Meadow Creek Subdivision,Phase One—Bozeman 1,LLC,Improvements Agreement 2012 10
-nLRocky
Mountain
,Bank "Where Great Things Happen"
www.rmbank.com
IRREVOCABLE STANDBY LETTER OF CREDIT
March 8,2012
Beneficiary: Letter of credit No. 119
City of Bozeman
PO Box 1230
Bozeman,MT 59771-1230
Applicant:
Bozeman I,LLC
2901 West Main Street
Bozeman, MT 59718
Issuing Bank:
Rocky Mountain Bank
2901 W Main Street
Bozeman, MT 59718
Ladies and Gentlemen:
Rocky Mountain Bank(the"Issuing Bank")hereby issues this irrevocable standby letter of credit
(the"Letter of Credit")for the benefit of the Beneficiary and available for your draft or drafts on sight,
subject to the requirements of this Letter of Credit, in an aggregate amount not to exceed Six Hundred
Seventeen Thousand Eight Hundred Twenty Six Dollars and Nine Cents($617,826.09)(as the same may
be reduced from time to time by the written instructions of Beneficiary,the"Stated Amount").This Letter
expires at 3:00 p.m. (Mountain Standard Time)on December 4,2013 (the"Expiration Time").
Original drafts on the Letter of Credit shall be manually signed by a duly authorized agent of the
Beneficiary, presented to the Issuing Bank at its office state above, in a single mailing, by courier or
personal delivery,and to the Attention of the President and shall state the following:
"This draft,in the amount of[DRAW AMOUNT] (the"Draw
Amount"),is drawn upon Letter of Credit No. 119 issued by Rocky
Mountain Bank.The undersigned, on behalf of the Beneficiary,certifies
that(1)the undersigned is duly authorized to execute and deliver this
draft and(2)the Draw Amount is due and owing to the Beneficiary by
reason of a default by Applicant under the Improvements Agreement
dated as of March 7,2012,between Beneficiary and Applicant."
LOCATIONS: BIGFORK• BILLINGS • BOZEMAN• KALISPELL• PLAINS•PLENTYWOOD-STEVENSVILLE•WHITEHALL
® Rocky
��M�ta1 n "Where Great Things Happen"
www.rmbank.com
All drafts drawn under and in compliance with the terms of this Letter of Credit will be duly
honored on receipt of the specified documents by the Issuing Bank if actually received on a Business Day
and before the Expiration Time.Partial drawings are pennitted provided the aggregate of all draws does
not exceed the Stated Amount."Business Day"means any calendar day other than Saturday, Sunday or
legal holiday and on which the Issuing Bank is open for business at the office.
This Letter of Credit sets forth in full the Issuing Bank's undertakings and the undertaking shall
not be in any way modified,amended or limited by reference to any other document, instrument or
agreement,excepting only the sight drafts and required drawing statement and drawing documents
identified above.This Agreement will be governed by federal law applicable to Issuing Bank and,to the
extent not preempted by provisions,and except to the extent such laws are inconsistent with the 2006
Revision of the Uniform Customs and Practice for Documentary Credits of the International Chamber of
Commerce, ICC Publication No.600.This Agreement has been accepted by Issuing Bank in the State of
Montana.
Communications with respect to the Letter of Credit shall be in writing and shall be addressed to
the Issuing Bank at the address set forth above.All communications must make reference to the Letter of
Credit number.
This letter is non-assignable and non-transferable
ROC O ANK
By:
Its:Authorized Officer
,`. LOCATIONS: BIGFORK• BILLINGS•BOZEMAN• KALISPELL• PLAINS•PLENTVWOOD•STEVENSVILLE o WHITEHALL