HomeMy WebLinkAbout18- Grant Agreement - Peach Street Property, LLC - Midtown TIF Assistance Program for The Monarch MIDTOWN TIF ASSISTANCE PROGRAM
GRANT AGREEMENT
THIS GRANT AGREEMENT is made and entered into this_�Q�day of r 2019by and
between the City of Bozeman, Montana, a self-governing municipal corporation located at 121
N. Rouse Ave., Bozeman MT 59771 ("City") as "Grantor" and Peach Street Property, LLC, a
Limited Liability Corporation located at 321 East Mendenhall, Bozeman, MT 59715 as
"Grantee."
WHEREAS, on December 16, 2015, the Bozeman City Commission adopted Ordinance 1925, the
Bozeman Midtown Urban Renewal District Plan ("Plan"), defining the boundaries of the
Bozeman Midtown Urban Renewal District ("District") and delineating goals and strategies for
eliminating blight, and authorizing the Bozeman Midtown Urban Renewal Board ("Board") to
act as the agency to exercise urban renewal powers; and
WHEREAS, the Plan encourages commercial and residential development or redevelopment
through the use of incentives, such as, but not limited to, public infrastructure support; and
WHEREAS, the Board developed the Midtown Urban Renewal district Tax Increment Financing
Assistance Program ("Midtown TIF Assistance Program") to grant monies appropriated by the
City Commission for grant assistance in the Board's Annual Work Plan and Budget; and
WHEREAS, on January 23, 2017 the Bozeman City Commission adopted Resolution No. 4770
establishing policies for the granting of funds by the Board to a requesting entity through the
Midtown TIF Assistance Program; and
WHEREAS, the intent of these funds is to offset the cost of redevelopment of substandard or
"blighted" properties within the District; and
WHEREAS, Grantee is the developer of The Monarch mixed-use development (the "Project") to
be located at 605 West Peach, Bozeman MT; and
WHEREAS, Grantee presented a request to the Board for a grant of up to $149,346 to be used
for demolition of existing structures, impact fees, and cash-in-lieu of parkland; and
WHEREAS, on August 2, 2018 the Bozeman Midtown Urban Renewal Board approved the grant
request in the amount of$149,346 ("grant award") documented in the minutes of the August 2,
2018 meeting; and
WHEREAS, on September 10, 2018, the City Commission approved the grant award.
Midtown TIF Assistance Grant Agreement with Peach Street Property,
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THE PARTIES AGREE:
1. The Grant. The City, through the Board, will grant and release to Grantee a sum of up to
one hundred forty-nine thousand, three hundred forty-six dollars ($149,346) (the
"Grant") pursuant to the payment terms in Section 3.
2. Use of Grant Funds.
a. Grant funds will be used by Grantee for the sole purpose of reimbursing
demolition costs, impact fees, cash-in-lieu of parkland, cash-in-lieu of water
rights, the provision of electricity and gas service to the site, and the connection
to and the provision of public infrastructure as described in the approved grant
application.
b. Grant funds must be used within two years of the date of the execution date of
this Agreement. Any funds not disbursed to the Grantee within that time will
remain in the District fund. The Board, in its sole discretion, may provide an
extension of up to one year to the original two year timeframe.
c. Use of TIF assistance funds must be in compliance with the terms of this Grant
Agreement.
3. Payment of Grant Funds
a. The Grant payment will be applied toward reimbursement of demolition costs,
impact fees, cash-in-lieu of parkland, cash-in-lieu of water rights the provision of
electricity and gas service to the site, and the connection to and the provision of
public infrastructure as described in the approved grant application, following
the issuance of the certificate of occupancy for the Project, unless the Board
reasonably determines, in its sole discretion, Grantee has failed to meet its
obligations pursuant to sections 2, 3(b), 4, 5, 9, or 10 of this Agreement.
b. Should Grantee receive additional funding for the Project from other funding
sources, or if for any other reason Grantee requires less than $149,346 to fully
fund the Project, it will notify the Board of such reduction in need as soon as
reasonably possible and the Board may reduce the amount of the Grant and the
payment(s) of Grant funds.
Midtown TIF Assistance Grant Agreement with Peach Street Property,
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4. Grantee Representations. Grantee represents and warrants to City:
a. Grantee has familiarized itself with the nature and extent of this Grant
Agreement,the contents of Resolution 4770 (attached hereto as Exhibit A) and
with all local conditions and federal, state and local laws, ordinances, rules, and
regulations that in any manner may affect Grantee's obligations under this Grant
Agreement.
b. Grantee has familiarized itself with applicable City of Bozeman procurement
regulations related to bidding, hiring, and prevailing wages and agrees to comply
with such regulations if applicable.
c. Grantee has the power to enter into and perform this Grant Agreement.
d. The Grant funds are necessary to accomplish the financing requirements of the
Project.
5. Reports/Accountability/Public Information. Grantee agrees to develop and/or provide
such documentation as requested by the Board demonstrating Grantee's compliance
with the requirements of this Grant Agreement. Grantee shall allow the Board or the
City, its auditors, and other persons authorized by the Board to inspect and copy its
books and records for the purpose of verifying that monies provided to Grantee
pursuant to this Grant Agreement were used in compliance with this Grant Agreement
and all applicable provisions of federal, state, and local law. Grantee will retain such
records for fifteen years after receipt of final payment under this Agreement unless
permission to destroy them is granted by the Board.
6. Default and Termination. If Grantee fails to comply with any condition of this Grant
Agreement at the time or in the manner provided for,the City may terminate this
Agreement if the default is not cured within thirty (30) days after written notice is
provided to Grantee. The notice will set forth the items to be cured. If this Grant
Agreement is terminated pursuant to this Section, Grantee will repay to the City any
Grant funds already disbursed to Grantee or applied toward impact fees or cash-in-lieu
owed by Grantee for the Project.
7. Limitation on Grantee's Damages;Time for Asserting Claim
a. In the event of a claim for damages by Grantee under this Grant Agreement,
Grantee hereby expressly waives any right to claim or recover consequential,
special, punitive, lost business opportunity, lost productivity, field office
overhead, general conditions costs, or lost profits damages of any nature or kind.
Midtown TIF Assistance Grant Agreement with Peach Street Property,
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b. In the event Grantee wants to assert a claim for damages of any kind or nature,
Grantee shall provide City with written notice of its claim,the facts and
circumstances surrounding and giving rise to the claim, and the total amount of
damages sought by the claim, within ninety (90) days of the facts and
circumstances giving rise to the claim. In the event Grantee fails to provide such
notice, Grantee shall waive all rights to assert such claim.
8. Representatives
a. City's Representative. The City's Representative for the purpose of this
Agreement shall be David Fine 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 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,
Grantee may direct its communication or submission to other designated City
personnel or agents and may receive approvals or authorization from such
persons.
b. Grantee's Representative. Grantee's Representative for the purpose of this
Grant Agreement shall be Julien Morice, or such other individual as Grantee shall
designate in writing. Whenever direction to or communication with Grantee is
required by this Agreement, such direction or communication shall be directed
to Grantee's Representative; provided, however,that in exigent circumstances
when Grantee's Representative is not available, City may direct its direction or
communication to other designated Grantee personnel or agents.
9. Indemnity/Waiver of Claims/Insurance. To the fullest extent permitted by law,
Grantee agrees to defend, indemnify and hold the City and its agents, representatives,
employees, and officers (collectively referred to for purposes of this Section as the City)
harmless against all third party claims, demands, suits, damages, losses, and expenses,
including reasonable defense attorney fees, which arise out of, relate to or result from
Grantee's (i) negligence or (ii) willful or reckless misconduct.
Such obligations shall not be construed to negate, abridge, or reduce other rights or
obligations of indemnity that would otherwise exist. The indemnification obligations of
this Section must not be construed to negate, abridge, or reduce any common-law or
statutory rights of the indemnitee(s) which would otherwise exist as to such
Midtown TIF Assistance Grant Agreement with Peach Street Property,
LLC Page 4
indemnitee(s). Grantee's indemnification obligations under this Section shall be without
regard to and without any right to contribution from any insurance maintained by City.
Should any indemnitee described herein be required to bring an action against Grantee
to assert its right to defense or indemnification under this Grant Agreement or under
Grantee's applicable insurance policies required below the indemnitee shall be entitled
to recover reasonable costs and attorney fees incurred in asserting its right to
indemnification or defense but only if a court of competent jurisdiction determines
Grantee was obligated to defend the claim(s) or was obligated to indemnify the
indemnitee for a claim(s) or any portion(s) thereof.
In the event of an action filed against City resulting from the City's performance under
this Grant Agreement, the City may elect to represent itself and incur all costs and
expenses of suit.
Grantee also waives any and all claims and recourse against the City or its officers,
agents or employees, including the right of contribution for loss or damage to person or
property arising from, growing out of, or in any way connected with or incident to the
performance of this Grant Agreement except "responsibility for his own fraud,for willful
injury to the person or property of another, or for violation of law, whether willful or
negligent" as per 28-2-702, MCA.
These obligations shall survive termination of this Grant Agreement.
In addition to and independent from the above, Grantee shall at Grantee's expense
secure insurance coverage 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 Grantee in this Section. The insurance coverage
shall not contain any exclusion for liabilities specifically assumed by Grantee in this
Section.
The insurance shall cover and apply to all claims, demands, suits, damages, losses, and
expenses that may be asserted or claimed against, recovered from, or suffered by the
City without limit and without regard to the cause therefore in amounts not less than as
follows:
• Workers' Compensation—statutory;
• Employers' Liability- $1,000,000 per occurrence; $2,000,000 annual aggregate;
• Commercial General Liability-$1,000,000 per occurrence; $2,000,000 annual
aggregate
Midtown TIF Assistance Grant Agreement with Peach Street Property,
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The City of Bozeman, its officers, agents, and employees, shall be endorsed as an
additional or named insured on a primary non-contributory basis on the Commercial
General policy. The insurance and required endorsements must be in a form suitable 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
disbursement of Grant funds. Grantee shall notify City within two (2) business days of
Grantee's receipt of notice that any required insurance coverage will be terminated or
Grantee's decision to terminate any required insurance coverage for any reason.
10. Nondiscrimination. Grantee agrees that all hiring by Grantee of persons performing this
Grant Agreement shall be on the basis of merit and qualifications. Grantee will have a
policy to provide equal employment opportunity in accordance with all applicable state
and federal anti-discrimination laws, regulations, and contracts. Grantee 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. Grantee shall require these
nondiscrimination terms of its subcontractors providing services under this Grant
Agreement.
11. Attorney's Fees and Costs. In the event it becomes necessary for a party to 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 shall be
entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-
house counsel to include City Attorney.
12. Integration and Modification. This document contains the entire agreement between
the parties and no statements, promises or inducements made by either party or agents
of either party not contained in this written Agreement may be considered valid or
binding. This Agreement may not be modified except by written agreement signed by
both parties.
Midtown TIF Assistance Grant Agreement with Peach Street Property,
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13. 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.
14. No Assignment. Grantee may not subcontract or assign Grantee's rights, including the
right to Grant payments, or any other rights or duties arising hereunder, without the
prior written consent of City.
15. No Third Party Beneficiary. The terms and provisions of this Agreement are intended
solely for the benefit of each party and their respective successors and assigns. It is not
the parties' intent to confer third party beneficiary rights upon any other person or
entity.
16. Choice of Law. This Agreement shall be governed and construed in accordance with the
laws of the State of Montana without regard to conflict of law provisions. The Parties
agree to submit to the personal and exclusive jurisdiction of the courts located within
Gallatin County, Montana.
17. Non-Waiver. A waiver by either party of any default or breach by the other party of any
terms or 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.
18. Severability. If any portion of this Agreement is held to be void or unenforceable, the
balance of the Agreement shall continue in effect.
19. Counterparts. This Agreement may be executed in counterparts, which together
constitute one instrument.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
Midtown TIF Assistance Grant Agreement with Peach Street Property,
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Midtown TIF Assistance Grant Agreement with Peach Street Property,
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IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year
indicated belo
Date: a
�hrL'l1�ca.Sit rf , City M�aager
City of Bozeman
STATE OF MONTANA )
ss.
County of Gallatin )
On this l{,i ti day of �ep�eyh�e� , 201,�, this instrument was acknowledged
before me by �L _as City Manager of the City of Bozeman, aself-governing
municipal government.
BRENDA SWEENEY
S
Notary Public n
NptAglq,!"L=for the State of Montana Notary Public for the State of ontana
Residing at: Printed Name: e e
Boraman, Montana
My Commission Expires: Residing at: ,l T Montana
,•,� ®eeamber02,2019 My commission expires:
f Date:
[print name]
[title]
[Grantee name]
STATE OF MONTANA )
ss.
County of Gallatin )
On this lt y of , 203this instrument was acknowledged
before me by as [title] of Peach Street
Property, LLC, a limited liability corpo ion. �(V
F` HEAT ERBNotary P bi VENUE otary Public fort e State of Montana
NOTAgiq�?m= ic
for the State of Montana Printed Name:
SEAL. * Residing n Residin at: , Montana
P
9•• •�� Bozeman, Montana g
>° Expires:My Commission Ex
a• My commission expires:
January 26,2022
Midtown TIF Assistance Grant Agreement with Peach Street Property,
LLC Page 9
EXHIBIT A
CITY OF BOZEMAN RESOLUTION 4770