HomeMy WebLinkAbout18- Agreement - Bozeman Sports Parks Foundation, Inc. - Management, Operation, and Use of the Bozeman Sports Parks Agreement between City of Bozeman and the Bozeman Sports Parks Foundation, Inc.
for Management, Operation, and Use of the Bozeman Sports Parks
This Agreement between the City of Bozeman and the Bozeman Sports Parks Foundation, Inc. for
the management,operation and use of the Bozeman Sports Parks(the"Agreement")is entered into
this `day of )u,v� ,2018,between the City of Bozeman,Montana,a self-governing
municipal corporation organized and existing under its Charter and the laws of the State of
Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230,
Bozeman,MT 59771,hereinafter referred to as"City",and the Bozeman Sports Parks Foundation,
Inc., a Montana 501(c)(3) nonprofit corporation, with a mailing address of PO Box 1126,
Bozeman, MT 59771, hereinafter referred to as "Foundation" and together with the City, the
"Parties."
The Foundation and the City enter into this Agreement in consideration of the mutual covenants
and agreements herein contained,the receipt and sufficiency whereof being hereby acknowledged.
As such,the Parties agree as follows:
RECITALS
The following recitals form the basis for the Parties' intentions and as such are material to this
Agreement.
WHEREAS, on November 6, 2012 the voters of the City approved the creation of a bond fund for
the acquisition, construction and maintenance of new parks, trails, open spaces, and multi-use
recreation fields and facilities (the"TOP Bond Fund"); and
WHEREAS, the Bozeman City Commission approved the conceptual plan and authorized up to
$7,500,000 (seven million five hundred thousand dollars) of funding from the TOP Bond Fund to
develop the Bozeman Sports Park with Resolution No. 4521 on April 7, 2014, which also
authorized the City to enter into contracts with other persons or entities for development or
management of any aspect of developing the Sports Park Project; and
WHEREAS, the Foundation was incorporated on October 20, 2014 as a Montana nonprofit
corporation for the purposes of securing additional private and philanthropic support for the
development of the Bozeman Sports Park and for the long-term management of the Sports Parks;
and
WHEREAS, the City and the Foundation entered into an agreement dated February 23, 2015
("Development Agreement") to establish the rights and responsibilities of the Parties related to
funding, design, development, and construction of Phase 1 of the Bozeman Sports Park and to
provide a framework for the Parties to collaborate on planning and developing future phases of the
Bozeman Sports Park; and
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WHEREAS, the City desires to permit the Foundation to manage, operate and use the Bozeman
Sports Park and Bronken Field (collectively, the "Sports Parks") pursuant to the terms of this
Agreement, and the Foundation desires to accept responsibility for such management and
operation and to use the Sports Parks for the purposes described herein; and
WHEREAS, on February 12,2018 the Bozeman City Commission adopted a motion to direct the
City Manager to continue to work with the Foundation to develop agreement(s)that authorize the
Foundation to collect user fees and operate the Sports Parks through a user group or management
agreement for Commission approval at a future date, and to require the Foundation to pay an
amount equal to the City's debt payments on a loan of up to $1,700,000 to construct sports fields
and related infrastructure, including purchase of two turf fields; and
WHEREAS, the Parties represent that each has the power and authority to enter into this
Agreement, and the experience and ability to fulfill its obligations under this Agreement.
Section 1. —Purpose; term and effective date; termination; extension.
1.1 Purpose. The purpose of this Agreement is to establish the rights and obligations of
the Parties to each other regarding the management, operation, use, and maintenance
of the Sports Parks with legal descriptions attached hereto as Exhibit A including, but
not limited to, scheduling field and facilities use, managing vendor relationships,
collecting and managing user fees, and maintenance and repair.
1.2 Incorporation of Debt Repayment Agreement. The terms of the Debt Repayment
Agreement, attached hereto as Exhibit B,are hereby incorporated by this reference and
made a part of this Agreement.
1.3 Term/Effective Date/Renewal. This Agreement is effective upon the date of its
execution("Effective Date") and will terminate five (5) years after the Effective Date,
unless earlier terminated as provided herein. This Agreement may be renewed for an
additional five (5) year term by written agreement of the Parties, subject to
renegotiation of the terms and conditions herein. Notice of nonrenewal shall be
provided to the other party no less than 180 days prior to the termination of this
Agreement.
1.4 Termination.
(a) For Convenience. The City may terminate this Agreement for any reason on
180 days' written notice to the Foundation. After receipt of notice of
termination for the City's convenience, the Foundation will make every
reasonable effort to refrain from incurring additional expenses or costs under
this Agreement, and will not enter into any additional orders or contracts
without the express written approval of the City.
(b) For Fault. If either Party fails to perform any of its obligations under this
Agreement, or otherwise breaches any terms or conditions of this Agreement,
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and has not cured such breach within thirty (30) days of written notice of the
breach, the non-breaching Party may, by written notice, terminate this
Agreement effective immediately.
(c) Termination of this Agreement for any reason will also serve to terminate the
Debt Repayment Agreement attached hereto as Exhibit B as of the effective
date of termination of this Agreement.
(d) In the event of a termination pursuant to this Section 1.4, the Foundation will
be entitled to a refund of any pre-paid use fees,prorated to the effective date of
termination.
(e) The Foundation will pay to the City any revenues or other fees received by the
Foundation pursuant to this Agreement after the effective date of termination
within fifteen(15) days of receipt of such revenues or fees.
(f) Any termination provided for by this section shall be in addition to any other
remedies to which the non-breaching Party may be entitled under the law or at
equity.
(g) Neither Party shall be entitled to claim or recover consequential, special,
punitive, lost business opportunity, lost productivity, field office overhead,
general conditions costs, or lost revenues damages of any nature arising, or
claimed to have arisen, as a result of the termination.
1.5 Surrender of Possession; Removal of Personal Property. The Foundation agrees
that upon termination of this Agreement it will surrender possession of all Sports Parks
facilities and permanent fixtures installed by the Foundation in good, clean condition
except for ordinary wear and tear, and will, within thirty (30) days after termination,
remove any personal property, trade fixtures, equipment or other temporary
installations.
1.6 Extensions. This Agreement may,upon mutual agreement of the Parties in writing,be
extended to include operation of future phases of development beyond Phase I.
Section 2.—Relationship of Parties; Representatives.
2.1 No Partnership or Agency. Neither Party shall be considered a partner or agent of
the other Party, and this Agreement does not create a partnership or principal-agent
relationship between the Parties. Neither Party shall have any right,power or authority
to create any obligation, expressed or implied, on behalf of the other Party. The
cooperative effort between the City and Foundation does not create a separate legal
entity and neither the Foundation nor the City shall have the right to bind the other
Party vis a vis any third party.
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2.2 Representatives.
(a) City: The City's Representative for the purpose of this Agreement shall be
Mitch Overton(Parks and Recreation Director) or such other individual as City
shall designate in writing. Whenever approval or authorization from or
communication or submission to City is required by this Agreement, such
communication or submission shall be directed to Mitch Overton as the City's
Representative and approvals or authorizations shall be issued only by such
Representative; provided, however, that in exigent circumstances when City's
Representative is not available, the Foundation may direct its communication
or submission to other designated City personnel or agents as listed above and
may receive approvals or authorization from such persons.
(b) Foundation: The Foundation's Representative for the purpose of this
Agreement shall be Tony Rich (Board Chair) or such other individual as the
Foundation shall designate in writing. Whenever direction to or
communication with the Foundation is required by this Agreement, such
direction or communication shall be directed to Foundation's Representative;
provided, however, that in exigent circumstances when Foundation's
Representative is not available, City may direct its direction or communication
to other designated Foundation's personnel or agents.
Section 3.— Ownership; Improvements.
3.1 Ownership; Prohibition on Liens. The Sports Parks and all interests appurtenant
thereto including water rights are owned by the City for the benefit of the public. The
Foundation hereby acknowledges this Agreement grants a privilege and not an interest
in the Sports Parks and the title of the City to the Sports Parks, and the Foundation
agrees never to deny such title or claim, at any time, or claim any interest or estate of
any kind or extent whatsoever in the Sports Parks by virtue of this Agreement or
Foundation's use hereunder. The City may enter the Sports Parks at any time to assert
its real property interest or for other purposes which do not unreasonably interfere with
the activities of the Foundation authorized by this Agreement. Neither Foundation nor
any contractor or subcontractor hired by or doing work on behalf of the Foundation
shall have the right to file or place liens of any type or character upon the Sports Parks.
3.2 Improvements and Fixtures.
(a) Foundation shall not place or install personal property, trade fixtures,
equipment or other temporary installations in the Sports Parks without prior
written consent from the City. Any such improvements and equipment installed
or placed by the Foundation in the Sports Parks that can be removed without
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damage to the Sports Parks facilities shall remain the property of the
Foundation.
(b) The Foundation will not make permanent improvements to or install permanent
fixtures in the Sports Parks without prior written consent from the City. Any
such permanent improvements must be constructed and/or installed to City
standards and comply with all laws applicable to public projects, including
procurement requirements, and the City must review and approve all contracts
for permanent improvements. All such permanent improvements and fixtures
are deemed to be part of the Sports Parks after completion of their construction
and/or installation and will be the property of the City.
Section 4.—Management, Operation, Scheduling and Use of Sports Parks.
4.1 Foundation's Responsibilities. The Foundation shall:
(a) Have sole responsibility, in accordance with this Section 4, for scheduling use
of any portion of the Sports Parks including,but not limited to, all full or partial
athletic fields and concessions facilities.
(b) Have the right, in accordance with Section 7 of this Agreement, to select,
contract with, and coordinate vendors in support of events, games, practices,
tournaments, and other activities at the Sports Parks.
(c) Prepare playing surfaces for practices, games, and tournaments. On all turf
areas, approved athletic field water based paint will be applied instead of chalk.
4.2 Scheduling User Groups. The Foundation will establish non-discriminatory criteria
for scheduling use of the Sports Parks. Prior to scheduling user groups, such criteria
must be approved in writing by the City. In scheduling the sports fields and other
facilities at the Sports Parks, the Foundation will apply the standards for issuance of
reservation permits described in § 26.02.060,BMC.
4.3 User Agreements. The Foundation will require user groups reserving fields or other
Sports Parks facilities to enter into a written agreement with the Foundation that
includes, at a minimum, the following requirements:
(a) The general standards outlined in § 26.02.040.A, BMC.
(b) A security deposit in an amount agreeable to the City. Any security deposit
collected by the Foundation will not be returned to the user group until it has
been verified that no material violations of the user group agreement or any City
regulations have occurred. The City may apply the security deposit received by
the Foundation from the user group to repair and/or replace turf, irrigation
heads, fencing, or other Sports Parks amenities damaged through the user
group's misuse.
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(c) The user group agrees to maintain and leave all facilities in a sanitary and safe
condition. Failure to do so will result in the user group paying all costs incurred
by the City to return the premises to its original condition at a rate of$30 per
hour. The City may apply the security deposit received by the Foundation from
the user group toward such costs.
(d) Tournaments, games and other events must be postponed in the event of wet,
saturated turf. Excessive wear to the Sports Parks fields due to play on wet
fields will be the responsibility of the user group.
(e) Public drinking and open alcoholic beverages are prohibited in public parks and
recreational facilities per § 4.04.030, BMC, unless a waiver has been granted
pursuant to § 4.04.050, BMC.
(f) The agreement must be assignable by the Foundation to the City upon
termination of this Agreement.
(g) Prospective liability waiver and release of the Foundation and City pursuant to
§ 27-1-753, MCA that states the known inherent risks of the sport or
recreational opportunity, and contains the following statement in bold typeface:
By signing this document you may be waiving your legal right to a jury
trial to hold the provider legally responsible for any injuries or damages
resulting from risks inherent in the sport or recreational opportunity or
for any injuries or damages you may suffer due to the provider's ordinary
negligence that are the result of the provider's failure to exercise
reasonable care.
(h) The user group will defend, indemnify, and hold harmless the Foundation and
the City of Bozeman, its officers, agents, and employees against and from any
and all actions, suits,judgments, claims, demands, costs, expenses (including
attorney's fees) and liabilities of any character whatsoever, brought or asserted
for property damage or for injuries to, or death of any person or persons or
damages arising out of,resulting from or occurring in connection with the user
agreement or the user group's occupancy or use of the Sports Parks.
4.4 Employee(s). The Foundation may hire one (1) or more employees if reasonably
necessary to fulfill the Foundation's obligations under this Agreement, using revenues
from the Sports Parks. No employee, agent, contractor, or subcontractor of the
Foundation shall be deemed a City employee for any purpose, and the Foundation is
solely responsible for the hiring, management, and firing of such employee. The
Foundation shall pay all employment taxes of any kind or nature and make all
appropriate employee withholdings for any employees hired by the Foundation to
perform under this Agreement.
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4.5 Compliance with City's Drought Management Plan. The Foundation acknowledges
and understands the City is authorized to restrict or wholly prohibit the outdoor use of
the water supply of the water service utility pursuant to § 40.02.1270, BMC and the
City's adopted 2017 Drought Management Plan, and that the provisions of Chapter 40,
Article 2, Division 4 are applicable to the Foundation. The Foundation warrants and
represents it has familiarized itself with the water use restrictions of the BMC and
agrees to comply with these restrictions.
4.6 Compliance with Alcohol Regulations. In accordance with § 4.04.030, BMC,public
drinking and open alcoholic beverages are prohibited in public parks and recreational
facilities. User groups seeking a waiver of this prohibition must apply directly to the
City by paying the applicable fee and following the application procedure described in
§ 4.04.050, BMC.
4.7 Foundation Equipment Storage. The Foundation may store and maintain sports
and/or maintenance equipment on site at the Sports Parks with the City's prior written
consent. The Foundation will provide the City with a schedule of such equipment it
intends to store on the Sports Parks property. Foundation equipment provided by the
Foundation for use at the Sports Parks shall remain the property of the Foundation
unless otherwise agreed in writing by the Parties. The Foundation is solely responsible
for loss or damage of Foundation equipment stored at the Sports Parks,and shall release
and hold harmless the City for any and all claims of loss of or damage to Foundation
equipment. The Foundation shall maintain sufficient property insurance coverage to
insure against such loss or damage in accordance with Section 8 of this Agreement.
4.8 Coordination with the City on Scheduling and Events. At least quarterly, the
Foundation will provide to the City a comprehensive report showing the anticipated
use of the Sports Parks for the upcoming quarter. The Foundation shall further provide
the City with advance notice of any significant public outreach or publicity relating to
the Sports Parks and provide the City an opportunity for participation. It is not
anticipated that the City will be involved in the planning or execution of such events,
nor is it anticipated that a representative of the City need attend any or all such events.
4.9 City's Use of Sports Parks. The City may reserve sports fields and facilities on an
equal basis as other users of the fields and facilities. The City shall be subject to the
same user fees set by the Foundation for use of the fields and facilities.
Notwithstanding the foregoing,the City may, at its option,reserve the Sports Parks for
up to five (5) days per calendar year on dates to be agreed in advance by both Parties.
Section 5.—Repair and Maintenance; Utilities.
5.1 City's Responsibilities. The City shall, in accordance with Parks Department
procedures for all City-owned parks:
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(a) Maintain and plow all public parking lots and parking spaces adjacent to the
Sports Parks, as well as public access to the Sports Parks.
(b) Maintain and plow all pedestrian pathways in the Sports Parks.
(c) Set and execute a regular maintenance schedule for all Sports Parks athletic
fields, whether synthetic or natural, including but not limited to mowing,
seeding, sodding and repairing all athletic field surfaces and sub-surfaces.
(d) Perform all routine maintenance of the Sports Parks and park facilities,
including painting, electrical, plumbing HVAC, and electrical and other
necessary repairs.
(e) Maintain and repair all Sports Parks structures,including public restrooms, and
shall keep public restrooms stocked and cleaned.
5.2 Utilities. The City shall pay all charges for water, sewer, gas, and electricity used by
the Foundation at the Sports Parks during the term of this Agreement unless otherwise
expressly agreed in writing by the Parties.
5.3 Irrigation. The City shall be solely responsible for irrigation of the Sports Parks. City
shall retain all decision-making authority for irrigation, including but not limited to
coordination with other water users,water commissioners, and ditch riders.
Section 6.—Use Fee; Financial Auditing; Reporting
6.1 Annual Use Fee Payment to the City. For the term of this Agreement,the Foundation
shall make the following annual payments per full-size athletic field in the Sports Parks
to the City to provide for long-term maintenance and repair of the Sports Parks:
Years 1-5: $7,000 (sod); $3,000 (synthetic turf)
For purposes of this Agreement, "full-size athletic field" is defined as a field that
measures a minimum of 100 feet by 130 feet and is of the quality necessary to support
safe play as of June 1st of each year during the term of this Agreement. The first
payment under this Agreement will be due on or before July 1, 2019 and subsequent
annual payments will be due on every anniversary of this date. The City will deposit
the annual payment in a special fund for repairs and maintenance of the Sports Parks
as outlined in Section 5.1 of this Agreement.
6.2 Financial Auditing. The Foundation will maintain financial records and must allow
the City, its auditors, and other persons authorized by the City to inspect and copy its
books and records for the purpose of verifying that monies collected and expended by
the Foundation pursuant to this Agreement were used in compliance with this
Agreement and all applicable provisions of federal, state, and local law. Foundation
agrees to develop and/or provide documentation as requested by the City demonstrating
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Foundation's compliance with the requirements of this.Agreement. The Foundation
will retain such records for the time specified in the most recent Local Government
Record Retention Schedule as adopted by the Montana Secretary of State, or
permission to destroy them is granted by the City.
6.3 Annual Financial Reports. The Foundation will provide to the City Manager, by
September 30th of each year this Agreement is effective, a report showing all monies
collected and expended by the Foundation in the prior fiscal year (July 1-June 30),
showing the source and amount of revenues and describing such expenditures to the
satisfaction of the City.
6.4 Public Meetings and Access to Public Records
(a) Meetings of the Foundation that pertain to Sports Parks revenues or
expenditures pursuant to this Agreement are subject to the open meeting
requirements of Montana law, including those set forth in Title 7, Chapter 1,
Part 41, MCA and Title 2, Chapter 3, MCA.
(b) The Foundation will provide agendas for meetings that pertain the receipt or
expenditure of public funds to the City Clerk's office no later than 72 working
hours prior to meeting for notice on the City's official posting board and any
other sites deemed reasonable by the Clerk's office. In addition, meeting
minutes will be kept by the Foundation and provided to the City Clerk's office
no later than 45 days after the meeting. These minutes shall be posted and
made available to the public by the City Clerk's office except for those
minutes taken during a closed meeting in accordance with § 7-1-4144, MCA.
Minutes taken during a closed meeting shall also be provided to the City
Clerk's office but shall be handled in accordance with the City Clerk's regular
executive session protocol and kept private in a secured cabinet. Meetings
subject to the open meeting requirements of Montana law shall be held in the
City Commission room at City Hall, 121 N. Rouse. Room scheduling for
open meetings shall be coordinated with the City Clerk.
(c) In accordance with § 7-1-4144, MCA and subject to any applicable legal
obligation to protect and preserve individual confidential or private
information, upon reasonable request and at reasonable times during normal
business hours,the Foundation shall make such documents and records
available for inspection and copying by members of the public. The
Foundation may charge for such copying in accordance with the policies of
the City, which the Foundation hereby adopts for such purposes.
(d) To determine whether a meeting or part of a meeting may be closed to the
public and to determine whether information contained in the Foundation
documents is protected by law from disclosure,the Foundation may seek a
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determination of the City Attorney at no cost to the Foundation. Such request
and determination shall not create an attorney-client relationship between the
Foundation and the City.
Section 7.—Concessions; Revenue; Vendors; Advertising.
7.1 Management of concessions. The Foundation has the right to manage concessions
sales at the Sports Parks.
7.2 Vendor Selection. The Foundation has the right to contract with third parties for
concession and vending services at Sports Parks events. In selecting vendors, as of the
date of this Agreement the Foundation agrees to comply with all applicable state laws
and City policies for procurement, including advertising for proposals and
nondiscrimination. Nothing herein prohibits the Foundation from entering into non-
exclusive agreements with concession vendors donating gifts in exchange for providing
vending services if such agreements are made pursuant to the Foundation's donor
recognition policy. In addition, nothing herein prohibits the City from entering into
contracts for vending services at the Sports Parks. In such a case, revenue from City
vending contracts will be used at the Sports Parks.
7.3 Collection of Fees. The Foundation shall collect and manage all user fees, vending
proceeds, and any other revenue related to the use of the Sports Parks athletic fields,
facilities, or other amenities ("Revenues").
7.4 Use of Revenues. All Revenues will be first applied toward the Foundation's payment
obligations pursuant to the Debt Repayment Agreement attached hereto as Exhibit B,
and then to the annual payments described in Section 6.1. Remaining Revenues must
be used solely for the operation, maintenance or development of the Sports Parks as
described in this Agreement. The Foundation agrees to establish a turf replacement
account to be funded with a sufficient portion of revenues collected so that turf fields
installed at the Sports Parks may be replaced at the end of their 10-year life.
7.5 Concession Operations. The Foundation will conduct or cause to be conducted all
concessions activities in a clean, professional, and businesslike manner and agrees to
comply with all applicable local, state, and federal laws and regulations.
7.6 Mobile Vendors. The Foundation may enter into agreements with mobile vendors to
operate on Sports Parks property during tournaments and other events. The Foundation
may not prohibit a mobile vendor from locating on public rights of way if such location
is permitted pursuant to the mobile vendor's City license and by Chapter 28, Article 3
of the BMC.
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Section 8.—Indemnity; Insurance.
8.1 Indemnity and Release.
(a) The Foundation agrees to indemnify, defend and hold the City harmless from
and against any and all liability to any third party for or from loss, damage or
injury to persons or property in any manner arising out of, or incident to,
negligent acts, errors, omissions, or willful misconduct by the Foundation or its
officers, employees, vendors, subcontractors, or agents in the performance of
this Agreement.
(b) Unless otherwise agreed to in writing, both the City and Foundation shall be
solely responsible for any contracts they enter into or other obligations or
liabilities incurred by such party in connection with their respective roles under
this Agreement and the Sports Parks.
(c) The indemnification requirements of this Section shall survive the termination
of this Agreement.
(d) The Foundation's indemnification obligations under this Section shall be
without regard to and without any right to contribution from any insurance
maintained by the City.
8.2 Insurance. In addition to and independent from the Foundation's indemnification
obligations, the Foundation will secure and maintain insurance coverage as described
in this Section 8.2 through an insurance company or companies duly licensed and
authorized to conduct insurance business in Montana which insures the liabilities and
obligations specifically assumed by the Foundation in Section 8.1. The insurance
coverage shall not contain any exclusion for liabilities specifically assumed by the
Foundation under this Agreement. The insurance and required endorsements must be
in a form acceptable to City and shall include no less than a thirty (30) day notice of
cancellation or non-renewal. The City must approve all insurance coverage and
endorsements prior to the Foundation's performance under this Agreement. The
Foundation shall notify City within two (2) business days of the Foundation's receipt
of notice that any required insurance coverage will be terminated or the Foundation's
decision to terminate any required insurance coverage for any reason.
(a) Commercial General Liability. The Foundation, each vendor providing
services and any other organization using the Sports Parks facilities must carry
Commercial General Liability Insurance naming the City as an Additional
Insured on a primary and non-contributory basis in the amount of$1,000,000
per claim, $2,000,000 per occurrence. The Foundation, each vendor providing
services and any other organization using the Sports Parks facilities must also
obtain a separate liquor liability policy or endorsement in the amount of
$1,000,000 per claim, $2,000,000 per occurrence naming the city as an
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Additional Insured on a primary, non-contributory basis when any alcoholic
beverages are to be sold or consumed during any event.
(b) Property Insurance. The City will insure all real and business personal
property owned by the City of Bozeman located at the Sports Parks on a
replacement cost basis. The Foundation will secure and continuously maintain
commercial property insurance on a replacement cost basis for all business
personal property, contents, and any non-permanent improvements made to the
Sports Parks by the Foundation. The Foundation will require that all vendors,
contractors and subcontractors carry appropriate property insurance for their
own business personal property and contents to be located at the Sports Parks
during events.
Section 9.—Miscellaneous.
9.1 Compliance with Laws and Regulations. The Foundation shall comply fully with all
applicable state and federal laws, regulations, and municipal ordinances including, but
not limited to, all workers' compensation laws, all environmental laws including, but
not limited to,the generation and disposal of hazardous waste,the Occupational Safety
and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety
Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and
electrical codes, the Americans with Disabilities Act, and all nondiscrimination,
affirmative action, and utilization of minority and small business statutes and
regulations. The Foundation shall provide all notices, comply with all applicable laws,
ordinances, rules, and regulations, obtain all necessary permits, licenses, and
inspections from applicable governmental authorities, and pay all fees and charges in
connection therewith.
9.2 Modification and Assignability. This Agreement may not be enlarged, modified or
altered except by written agreement signed by both parties hereto. The Foundation may
not assign its rights or obligations under this Agreement without the prior written
consent of the City Commission. Any assignee will be bound by all of the terms and
conditions of this Agreement.
9.3 Severability. If any portion of this Agreement is held to be void or unenforceable,the
balance thereof shall continue in effect.
9.4 Applicable Law; Venue. The Parties agree that this Agreement is governed in all
respects by the laws of the State of Montana. The Parties agree to personal jurisdiction
in the courts of Gallatin County, Montana.
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9.5 Dispute Resolution.
(a) Any claim,controversy,or dispute between the parties,their agents,employees,
or representatives shall be resolved first by negotiation between senior-level
personnel from each party duly authorized to execute settlement agreements.
Upon mutual agreement of the parties, the parties may invite an independent,
disinterested mediator to assist in the negotiated settlement discussions.
(b) If the Parties are unable to resolve the dispute within thirty (30) days from the
date the dispute was first raised, then such dispute may only be resolved in a
court of competent jurisdiction in compliance with the Applicable Law
provisions of this Agreement.
9.6 Binding Effect. This Agreement is binding upon and inures to the benefit of the heirs,
legal representatives, successors, and assigns of the Parties.
9.7 Nondiscrimination. The Foundation will have a policy to provide equal employment
opportunity in accordance with all applicable state and federal anti-discrimination laws,
regulations, and contracts. The Foundation will not refuse employment to a person,
bar a person from employment, or discriminate against a person in compensation or in
a term, condition, or privilege of employment because of race, color, religion, creed,
political ideas, sex, age, marital status, national origin, actual or perceived sexual
orientation, gender identity, physical or mental disability, except when the reasonable
demands of the position require an age, physical or mental disability, marital status or
sex distinction. The Foundation shall require these nondiscrimination terms of its
contractors, agents, or subcontractors providing services under this Agreement.
9.8 Non-Waiver. A waiver by either Party of any default or breach by the other Party of
any terms of conditions of this Agreement does not limit the other Party's right to
enforce such term or conditions or to pursue any available legal or equitable rights in
the event of any subsequent default or breach.
9.9 Notice. Any notice required or permitted under this Agreement shall be deemed
sufficiently given or served if sent by email with read-receipt requested or by United
States certified mail, return receipt requested.
9.10 Attorney's Fees and Costs. In the event it becomes necessary for either Party of this
Agreement to retain an attorney to enforce any of the terms or conditions of this
Agreement or to give any notice required herein,then the prevailing Party or the Party
giving notice shall be entitled to reasonable attorney's fees and costs, including fees,
salary, and costs of in-house counsel to include the City Attorney.
9.11 No Third-Party Beneficiary. This Agreement is for the exclusive benefit of the
Parties, does not constitute a third-party beneficiary agreement, and may not be relied
upon or enforced by a third party.
Operating Agreement with the Bozeman Sports Parks Foundation,Inc. for the Bozeman Sports Parks
Page 13 of 15
9.12 Counterparts. This Agreement may be executed in counterparts, which together
constitute one instrument.
9.13 Integration. This Agreement and all exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained therein or made
a part thereof by reference, are not binding upon the parties. There are no
understandings between the parties other than as set forth in this Agreement. All
communications, either verbal or written,made prior to the date of this Agreement are
hereby abrogated and withdrawn unless specifically made a part of this Agreement by
reference.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES
Operating Agreement with the Bozeman Sports Parks Foundation,Inc.for the Bozeman Sports Parks
Page 14 of 15
CITY OF BOZEMAN BOZEMAN SPORTS PARKS
FOUNDATION,INC.
By: By: i
Andrea Surratt, City 3ianager Print Name:
Title:
APPROVE O FORM:
By:
Greg Sullivan, City Attorney
Operating Agreement with the Bozeman Sports Parks Foundation,Inc.for the Bozeman Sports Parks
Page 15 of 15
EXHIBIT A
Sports Parks Legal Descriptions
1. Bozeman Sports Parlc: 503, T02 S, R05 E, C.O.S. 2554B, ACRES 79.869, TRACT
1Al.
2. Bronlcen Park: VALLEY WEST SUB, 509, T02 S, R05 E, Lot PARK, ACRES 39.06,
PLAT J-320.
EXHIBIT B
Debt Repayment Agreement