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HomeMy WebLinkAbout08- West Winds PUD Phase 4 Inter-office Orieinal to: City of Bozeman Planning Department P.O. Box 1230 Bozeman,MT 59771-1230 IMPROVEMENTS AGREEMENT WEST WINDS PUD PHASE 4 SUBDIVISION THIS AGREEMENT is made and entered into this q,1 day of Se�Okm�b4�, 2008, by and between Cascade Development, Inc. John M. Dunlap President 1627 West Main Street #223, Bozeman, MT 59715, 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 59771-1230, hereinafter called the "City". WHEREAS,it is the intent and purpose of the Subdivider to meet the conditions of approval of a major subdivision preliminary plat application West Winds PUD Phase 4Subdivision to subdivide — 19 acres into 5 single household lots and 4 multi household lots, 1 lot for further subdivision,park, and streets on property located north of the intersection of Windward Avenue and Oak Street, and legally described a portion of the NW 1/4 Section 2 T2S R5E PMM City of Bozeman, Gallatin County Montana; and WHEREAS, it is the intent of the Subdivider to obtain Final Plat approval; 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 on the property hereinafter described; and it is the intent of this Agreement,and of the parties hereto,to satisfy the requirements and guarantee improvements for the conditional approval of said subdivision application. NOW,THEREFORE, in consideration of the mutual covenants and conditions contained herein, it is hereby agreed as follows: West Winds PUD Phase 4 Subdivision(P-08006) Improvements Agreement: Page lof 7 IIIIIIIIIII 2311613 11111OF of 16 P► N 111111111111111111111111111 09/ Charlotte Mills-Gal 1a1:., r.. Mr....._ 30/2008 02:37P 1. Property Description This Agreement pertains to and includes those properties which are designated and identified as a portion of the NW 1/4 Section 2 T2S R5E PMM City of Bozeman Gallatin County Montana. 2. Improvements and Time for Completion of Improvements This Agreement includes all on-site and off-site subdivision improvements as shown in the Preliminary Plat Application, as conditioned in the Preliminary Plat approval,and as required bythe Bozeman Municipal Code. Improvements include those below and listed in the attached Exhibit A, which is made part of this agreement.The list and cost of said improvements has been estimated by HKM Engineering, 920 Technology Blvd Ste A Bozeman MT 59718. The Subdivider hereby agrees that the following improvements must be installed within one (1) year of the City Commission final plat approval: water, sewer, storm.water facilities transportation facilities (streets street lights trails sidewalks adjacent to public lands etc) parks and common open space facilities and landscaping The Subdivider hereby agrees that sidewalks adjacent to individual lots must be installed within three(3)years of the City Commission final plat approval, or with Building Permits for individual lots, whichever occurs first. In any event, all required improvements shall be completed within the time frame provided herein for the completion of the improvements in order to avoid default on the method of security 3. Financial Guarantee It is the Subdivider's intent to file the final subdivision plat prior to the completion of subdivision improvements. Therefore, this Agreement shall be secured by a financial guarantee valid for at least eighteen (18) months which is one hundred and fifty (150) percent of the estimated cost of said improvements.The financial guarantee is in the form of an irrevocable letter of credit issued by First Security Bank, in the amount of$1,385,145.00,No. 010800662 dated Aug 29, 2008; with an expiration date of March 1, 2010. It is the Subdivider's intent to file the final subdivision plat prior to the completion of sidewalks adjacent to individual lots. Therefore, this Agreement shall be secured by a financial guarantee valid for at least forty-two(42) months which is one hundred and fifty(150)percent of the estimated cost of said sidewalks adiacent to individual Iots. The financial guarantee is in West Winds PUD Phase 4 Subdivision(P-08006) Improvements Agreement: Page 2 of 7 1111111111111111111 II IIIII(IIIII IIIII III IIIII IIII IIII Z311f 16 the form of a irrevocable letter of credit issued by First Security Bank, in the amount of$ 107,244.00 No. 010800663=dated Aug 29, 2008• with an expiration date of March 1, 2012 . 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 Cascade Development Inc.,John M. Dunlap President 1627 West Main Street #223 Bozeman MT 59715, 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, 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 Subdividers 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 Subdividers. 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 Subdivider or his/her 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 of negligence and misconduct arising from the Subdivider, his/her agents, or employees not providing to the Municipality, its West Winds PUD Phase 4 Subdivision(P-08006) Improvements Agreement: Page 3 of 7 IIIIII IIIII(IIII IIIIII IIIII IIIIII II page: 3 of 2311613 6 III III IIII IIII IIII 09/30/2008 02:2 37P 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. 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 two (2)years from the date of their written acceptance by the Governing Body. 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 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. 10. Modifications or Alterations No modifications or amendment of this Agreement shall be valid,unless agreed to in 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 The responsibilities and benefits of this Agreement to the Subdividers may not be assigned 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 Subdividers from their liability under this agreement if it accepts and approves a proper assignment from any developer or lender who obtains the property. West Winds PUD Phase 4 Subdivision(P-08006)Improvements Agreement: Page 4 of 7 IIIIIIIIIIIIIIIII Page:2311613 16 IIIII IIIII IIIIII II illllllllill(IIIIII 0 /30/2©0 8 02:37P 13. Successors 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. Filing The Subdivider shall have this Agreement recorded in the Office of the Gallatin County Clerk and Recorder at the same time the Final Plat is filed. CORPORATIO C sc e Development c. John . Dunlap, Presi ent STATE OF Mph 4 ) :ss County of \ ) On this N 411 day of 6—r , 2008, before me, the undersigned, a Notary Public for the State of Montana, personally appeared John M. Dunlap, known to me to be the President of Cascade Development Inc., the corporation 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 hand and affixed my Notarial Seal the day and year first above written. pTARJq (Signature above) r� = �' _ w; am (Sear �. SFAS, :* (Printed Name above) �(P , �Q-`� Notary Public for State of Montana oF•Mo\A,�P�o`� Residing at: SO Commission Expires: (Use 4 digits for expiration year) West Winds PUD Phase 4 Subdivision (P-08006)Improvements Agreement: Page S of 7 IIIIII IIIII IIIII IIIIII IIIII IIIII 2311613 f16 0913 II�IIIIIIIIilllllll5 III 9/30/200 028 02.37P THE CITY OF BOZEMAN 'V L ' Andrew C. Epple, AICP Planning Director STATE OF MONTANA ) :ss County of Gallatin } On this day of t;2008, 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. ��QP• ' ' •��'.� Si aure above) \\ ` 1A (Seal) (Punted Name above) NOTAR/q�•;m Notary Public or State of Montana *: FA N Residing at: _ 2.E?nCnap •• S1L ,��\ Commission Expires: %,,�9T� • . , , . •l"P����`� (Use 4 digits for expiration year) West Winds PUD Phase 4 Subdivision(P-08006)Improvements Agreement: Page 6 of 7 (IIIIII 1111111111 Ell 11111111111 III 1111111111111 Page:3116 613 (`k-l-F! - MI 11.-r-11-f- P.. MTMTCI - - Exhibit A: Cost Estimate West Winds PUD Phase 4 Subdivision(P-08006)Improvements Agreement: Page 7 of 7 11111111111111II IIIIII IIIII IIIIII IIIII III IIIII IIII IIII Page:311 f 16