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HomeMy WebLinkAbout15- Ferguson Farm Subdivision Water, Sewer, Stormwater, Street, Landscaping and Open Space Improvements Agreement J-563 Send Original to: City of Bozeman Department of Community Development P.O.Box 1230 Bozeman,XfT 59771 PLATTED 2 :514925 harrlotteiMiills -�Galllattin Countty47MT Fee: $63Mp0 IMPROVEMENTS AGREEMENT FOR FERGUSON FARM SUBDIVISION (WATER, SEWER, STORMWATER, STREET, LANDSCAPE,AND OPEN SPACE IMPROVEMENTS) This AGREEMENT is made and entered into this Z- day of 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 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 Ferguson Farm—Infrastructure Improvements Agreement I WHEREAS, a separate improvements agreement with financial security was provided for performance of improvements related to Condition 11 of approval for Ferguson Farm and that improvements agreement had a longer 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: westerly 269°54'29" azimuth, 14.31 feet; westerly 283°56'37" 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 269°55'05" azimuth, 157.62 feet; thence northerly 000°26'06" 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. Ferguson Farm—Infrastructure Improvements Agreement 2 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 Cashman Nursery and Sime Construction at Two Hundred Sixty-Seven Thousand Seven Hundred Three Dollars and Fifteen Cents ($267,703.15). 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 $401,554.73 from First Security 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 one (1) 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. 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. Ferguson Farm—Infrastructure Improvements Agreement 3 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 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 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 Ferguson Farm—Infrastructure Improvements Agreement 4 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 No modifications or amendment of this Agreement shall be valid, unless evidenced by a writing signed by the parties hereto. 11. Invalid Provision Ferguson Farm—Infrastructure Improvements Agreement 5 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 Z�K 'z A BY: MICHAELYW. DELANEY TITLE: STATE OF _ ) :ss County of ) On this day of , 2015, before me a Notary Public of the State of personally appeared N ' hael W. Delaney, known to me to be the person that executed the foregoing Improveme Agreement, and acknowledged to me that he executed the is foregoing instrument as 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. (SEAL) KATHERINE MAINES [,,,OF gti* Notary Public�� t°r tf,° �tat�of Montana inted Name Here) u Public for the State of Residing at:S©19rde, Montanaf 4= ResidingMy Commissi 2016pires:Mo?,; July 22, My Commission ices: (Use 4 digits for expiratio ar) i Ferguson Farm—Infrastructure Improvements Agreement 7 THE CITY OF BOZEMAN BY: WENDY THOMAS, COMMUNITY DEVELOPMENT DIRECTOR CITY OF BOZEMAN STATE OF MONTANA ) :ss County of Gallatin ) On the day of ( s , 2015, before me, a Notary Public for the State of Montana, personally appeared 'Wendy 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. (SEAL) 1, KATHER��N N]NE ° +`���paN Mq;��/ Notary Pub (Pr Printed Name Here) F' tARlq N for the State of_�,�,o . �eS;d;ng Nota blic for the State of Montana Belgrade, MRedding at Ps FA = Commission��FOF ? My July 22,2My Commission Exp "' (Use 4 digits for expirati�ye Ferguson Farm—Infrastructure Improvements Agreement 8 EXHIBIT "A" ESTIMATED COST FOR IMPROVEMENTS --------------------------------------------------------------------------------------------------------------------- Date: Z Project: Ferguson Farm - Major Subdivision Developer: :cI - --------------------------------------------------------------------------------------------------------------------- Improvement Sq. Ft./Ln. Ft Estimated Landscaping Per Cashman Nursery lump sum $265,203.15 Sidewalk lump sum $2,500.00 Sub Total $ 267,703.15 150% $ 401,554.73 Approved by City Engineer's Of ce ;�- Date /2 <� -- Ferguson Farm—Infrastructure Improvements Agreement 9