HomeMy WebLinkAbout15- Ferguson Farm Minor Subdivision 295 Sidewalk Improvements Agreement J-563
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City of Bozeman
Department of Community Development
P.O.Box 1230
Bozeman,MT 59771
pLP�3ED 1�_'
2514924
page: 1 of 9 06/19/2015 11:18:47 AM Fee: $9I00
Charlotte Mills - Gallatin County, MT
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IMPROVEMENTS AGREEMENT
FOR
FERGUSON FARM RELATED IMPROVEMENTS TO MINOR SUBDIVISION 295
( SIDEWALK IMPROVEMENTS)
This AGREEMENT is made and entered into this O Z ' - day of
p , 2015, by and between BOARDWALK PROPERTIES, INC,
hereinafter called the "Subdivider", and the CITY OF BOZEMAN, a municipal corporation and
political subdivision of the State of Montana, with offices at City Hall, 121 North Rouse Avenue,
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
preliminary plat approval, Planning Application No. P-13021, for the Final Plat application of
Ferguson Farm Subdivision (#PI5009), to subdivide 19.962 acres together and create eighteen
(18) commercial lots, two (2) common open space lots, and the remaining area as streets, and
WHEREAS, it is the intent and purpose of the Subdivider to obtain Final Plat approval
for Ferguson Farm; and
WHEREAS, the Preliminary Plat approval for the Ferguson Farm, included Condition
11 which required completion of or financial guarantee of all remaining sidewalks related to
Minor Subdivision 295 which was the parent parcel for Ferguson Farm subdivision; and
Ferguson Farm—Infrastructure Improvements Agreement 1
WHEREAS, the Final Plat for the Ferguson Farm, was filed prior to the installation of
all required subdivision improvements and an improvements agreement with financial security
was provided; and
WHEREAS, a separate improvements agreement with financial security was provided for
performance of improvements related to the corresponding Ferguson Farm and that
improvements agreement had a shorter time limit for performance of work and it is therefore
appropriate to limit the subject of this improvements agreement; 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 for the
Final Plat approval of Ferguson Farm.
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:
Legal Description for Improvements Agreement
Lot 4, Minor Subdivision No. 295A, according to the plat thereof, on file and of record in the
office of the Clerk and Recorder, Gallatin County, Montana, located in the Southwest Quarter of
Section 10, Township 2 South, Range 5 East of P.M.M., City of Bozeman, Gallatin County,
Montana, and further described as follows:
Metes and Bounds Description
Beginning at the northwest corner of said Lot 4; thence easterly 090°26'06", assumed azimuth
from north, 708.79 feet along the north line of said Lot 4; thence southerly 180'00'00"azimuth,
926.89 feet along the east line of said Lot 4; thence westerly 270°00'00" azimuth, 6.00 feet
along said east line; thence southerly 180'00'00" azimuth, 298.11 feet along said east line;
thence on the following courses along the north right-of-way line of U.S. Highway No. 191:
Ferguson Farm—Infrastructure Improvements Agreement 2
westerly 269°54'29" azimuth, 14.31 feet; westerly 283056'37" azimuth, 41.25 feet; westerly
269°54'29" azimuth, 324.72 feet; westerly 269°52'58" azimuth, 135.46 feet; westerly
255°52'55" azimuth, 41.23 feet; westerly 269055'05"azimuth, 157.62 feet; thence northerly
000026'06" azimuth, 1231.59 feet along the west line of said Lot 4 to the point of beginning.
Area= 859,530 square feet, 19.7321 acres or 79,852.9 square meters. Subject to existing
easements.
2. Improvements
This Agreement specifically includes the following improvements for Ferguson Farm: Public
landscaping and sidewalks. The Estimated Cost of said improvements for improvements has
been estimated by C&HEngineering at One Hundred Tivelve Thousand One Hundred Eighty-
One Dollars and Tiventy-Five Cents ($112,181.25). The estimate is attached and made a part
of this Agreement, as Exhibit "A".
3. Financial Guarantee, Time for Completion of Improvements, Additional
restrictions
It is the Subdivider's intent with this Agreement to file the Final Plat prior to completion
of all required subdivision improvements. Therefore, this Agreement shall be secured by a letter
of credit for $168,271.88 from Big Sky Western Bank acceptable to the City of Bozeman, which is
one hundred and fifty (150)percent of the Estimated Cost of said improvements.
The Subdivider hereby agrees that the subdivision related improvements shall be
installed and completed not later than three (3) years of the filing of the final subdivision
plat for Ferguson Farm in order to avoid default on the method of security.
The Subdivider agrees that no delegation of performance required by this agreement shall
relieve the Subdivider of any duty to perform or any liability for the breach of that duty to
complete said subdivision improvements required for the Ferguson Farm.
Ferguson Farm—Infrastructure Improvements Agreement 3
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.
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 of 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
Boardwalk Properties, Inc. 101 E. Main Street, Suite D, 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
Developer shall permit and secure any additional permission required to enable
them to do so. In the event that any funds remain fiom 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.
Ferguson Farm—Infrastructure Improvements Agreement 4
6. Indemnification
The Subdivider 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. Subdivider 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
Subdivider. The Subdivider is not an agent or employee of the City.
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 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.
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
Ferguson Farm—Infrastructure Improvements Agreement 5
No modifications or amendment of this Agreement shall be 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.
12. No Assignment
It is expressly agreed that the Subdivider shall not assign this Agreement in whole, or in
part, without prior written consent to City.
13. Successors
Except as provided in paragraph twelve (12), this Agreement shall be binding upon,
ensure 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 within 10 business days of the signature of the Community Development
Director.
Ferguson Farm—Infrastructure Improvements Agreement 6
SUBDIVIDERS
s
BY: MICHAEL W. DELANEY
TITLE: ¢
STATE OF )
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County of&NaQ )
On this LP day of , 2015, before me a Notary Public of the State of
personally appeared Michael W. Delaney, known to me to be the person that
executed the foregoing Im rovements Agreement, and acknowledged to me that he executed the
foregoing instrument as It of Boardwalk Properties LLC and
acknowledged to me that he executed the same for and on behalf of Boardwalk Properties LLC.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day
and year first above written.
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Ferguson Farm—Infrastructure Improvements Agreement 7
THE CITY OF BOZEMAN
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BY: WENDY THOMAS,
COMMUNITY DEVELOPMENT DIRECTOR
CITY OF BOZEMAN
STATE OF MONTANA )
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County of Gallatin )
On the day of , 2015, before me, a Notary Public for the
State of Montana, personally appeared` endy Thomas, known to me to be the person described
in and who executed the foregoing instrument as Community Development Director of the City
of Bozeman, whose name is subscribed to the within instrument and acknowledged to me that
she 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.
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Ferguson Farm—Infrastructure Improvements Agreement 8
EXHIBIT "A"
ESTIMATED COST FOR IMPROVEMENTS
---------------------------------------------------------------------------------------------------------------------
��
Date• !�2% Z---Z ,
Project: Ferguson Farm - Major Subdivision
Developer: Boardwalk Properties
---------------------------------------------------------------------------------------------------------------------
Improvement Sq. Ft./Ln. Ft Estimated
Concrete Sidewalk 5 feet wide and 4 inches thick 24,125 sq ft $112,181.25
Sub Total $112,181.25
150% $168,271.88
Approved by City Engineer's Offlce -` Date
Ferguson Farm—Infrastructure Improvements Agreement 9