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HomeMy WebLinkAbout04- Downtown Parking Garage MEMORANDUM OF AGREEMENT ON DOWNTOWN PARKING GARAGE ,~) THIS MEMORANDlJM OF AGREEMENT is made and entered into this _;II}:> . day of _.~ w~_,_____ 2004, by and between the City of Bozem;n, a Municipal Corporation, hereinafter referred to as "City" and The Garage at City Center, a nonprofit corporation, hereinafter referred to as "TerCC", RECITALS WHEREAS, the City is a municipal corporation organized under the laws of Montana; and WHEREAS, the City will own Lots 16 to 24, Block F, Old Bozeman Subdivision ofthe City of Bozeman, more commonly described as being a portion of that area north of the alley hetween Black and Tracy avenues on the south side of Mendenhall street, City of Bozeman, Gallatin County, Montana; and WIIER_EAS, the Bozeman City Commission finds it is in the hest interest ofthe City to assist in the development of the Bozeman downtown area of the City; and WIIEREAS, The Arts at City Center, a nonprofit entity, bas proposed construction ora new 1600 scat performance hall on the southwest corner of Tracy Avenue and Mendenhall Street~ hereJnafierre{erre.d to as "Perf()rminz.;1rts CeDter "; and WHEREAS, 'rG-CC is a Montana nonprofit corporation, with the purpose of developing a parking garage facility in the downtown area, located on the northerly one~half (1/2) of the block between Black Avenue and Tracy Avenue which is south of Mendenhall Street in the City of Bozeman, Gallatin County, Montana, as more fully deserihed herein (the "Parking Garage l:acility" or "Project"); and WHEREAS, the City and TGCC are desirous of forming a mutually heneficial agreement to design, build, finance, operate, and ultimately transfer to the City the ownership of the Parking Garage Facility; and WHEREAS, the Parking Garage Facility is needed to alleviate existing downtown parking problems and to accommodate the construction of the proposed Performing Arts Center; and WHEREAS, the Bozeman Parking Commission, the Downtown Bozeman Improvement District Board (hereinafter referred to as the "lOB") and the Business Improvement District Board support the proposed concept to build the Parking Garage Facility; and WHEREAS, the City conducted a request for proposal process (RFP) to selcct a design team for the Parking Garage Facility and selected Prugh and Lennon Architects as the design team (hereinafter referred to as "Design Team"); and WI I EREAS, the cost of Phase 1 ofthc Parking Garage Facility, includes the costs of land acquisition, architectural and engineering costs, construction of the facility, site related work, and financing costs, included but not limited to interest during construction, debt service reserves, costs of issuance, and origination fees (collectively, the "Project Costs"), excluding any tenant improvements to the retail ground floor (the "Retail Space"); and WHEREAS, Montana's Congressional delegation and a Washington lobbyist retained by TGCC are working toward obtaining funding for all or a portion of the Parking (Jarage facility; and WHEREAS, it is proposcd and anticipated that the tax increment revenues to be derived in the Downtown Tax Increment District will be used to pay a portion of the costs of the Project; and WHEREAS, it is understood that at this time approximately $3,500,000 of bonds could be supported by the current level of tax increment revenues; and WHERI<:AS, it is anticipated that the City's tax increment revenues will continue to grow and will in the future support an additional series ofhonds; and WHEREAS, TGCC is willing to obtain private financing in the amount of $2,800,000.00, taking into consideration the estimated principal amount of tax increment revenue bonds the City may be able to issue, as hereinafter described; and Wf-lEREAS, it is anticipated that the City will, to the extent possible, issue an additional series of tax increment bonds to refund the private financing; and WIIEREAS, the parties find that it is in their best interest and in the hest interest of the citizens of Bozeman to enter into this Memorandum of Agreement to facilitate the construction of the Parking Garage Facility. NOW, THEREFORE, in consideration of the mutual covenants and conditions herein, the parties agree as follows: Purpose. This Memorandum of Agreement (MOA) establishes the understanding and agreement of the parties for the funding, design, construction, maintenance, operation and eventual transfer of the downtown Parking Garage Facility, more particularly described as follows: A three level parking garage facility, with a design capacity to support six levels of parking and a retail ground level component ofapproximately 12,000 square feet, will be constructed on the property north of the alley betwecn Black and Tracy A venues on the south side of Mendenhall Street, City of Bozeman, Gallatin County, Montana. The Parking Garage facility will be constructed on Lots 13-24, Block f, ()Id Bozeman Subdivision, City of Bozeman, Gallatin County, Montana. The Project will be constructed in two phases. Phase I will consist ofthe land acquisition, design and construction of a three lcveliacility providing as many parking stalls as possihle. Phase II will consist of the construction by the City of 2 such additional parking stalls as may be required to provide a total of400 spaces, in the event the Performing Arts Center is constructed. Structure of Facility. It is anticipated that the Parking Garage Facility will be developed as a condominium with the Retail Space as one unit and the public parking facility as a separate unit. It is anticipated that as soon as practicable, the Retail Space will be developed and sold to a private entity and proceeds received from the sale of the Retail Space will be used as specified herein (the "Sale Proceeds"). Financing. 1. City's Responsibil ities. a) The City agrees to work with the IDB to extend the initial term ofthe Downtown Tax Increment District (TfF) from 10 to 15 years, subject to the provisions of Montana law. b) The City, working with the IDI3, shall take the necessary steps and use its best efforts within the extended initial terms of the District to issue its revenue bond in the amount of $3,500,000 to pay for eligible project costs, payable from tax incremcnt funds from the Downtown Tax Incrcment District over a 25 year period (the "Series 2004 Honds"), subject to the provisions of Montana law. c) The City wi II consent to TGCC arranging and securi ng a pri vate bridge loan financing in the amount of $2,800,000 (the "'fGCC Loan"). This loan will be privately guaranteed by a group of interested citizcns (the "Guarantors"). The City will consent to a leasehold mortgage of the Parking Garage facility. d) When and to the extent there are sufficient tax increment revenues to do so, the City agrees to issue additional series of bonds (collectively, with the Series 2004 Bonds, the "Bonds") to first refund the outstanding TGCC Loan and interest paid thereon to the extent possible and then to build additional floors or stalls on the Parking Garage Facility. e) The City shall transfer appropriated 'fIF design funds of $150,000 to TGCC, which shall be transfetTed within ten (10) working days of execution ofthis Agreement. It is the intent of the parties that said funds be reimbursed to the City's TIf fund 1rom the Series 2004 Hond proceeds. t) When the Performing Arts Center is funded and construction has commenced, and in the event that the Phase J of the Parking Garage Faci I i ty docs not provide 400 parking stalls, the City will be obligated to build an additional level to the Parking Garage Facility or provide additional sufficient parking stalls to provide a total offour hundred (400) parking stalls, at a cost not to exceed $1,250,000. The City's obligation to undertake Phase Jl shall cease if the construction of the Performing Arts Center is not commenced within two (2) years from the ., _1 execution of this Agreement. g) Proceeds of the sale of the Retail Space may be used to prepay the outstanding principal of the TGee Loan, to pay for costs of Phase II of the Project, or to build additional parking spaces, as the City deems appropriate. h) The eity agrees that any Federal funds received from Congress will first be applied to the full payment ofthe TGCC Loan; secondly to the extent the tax increment falls short to cover the repayment ofthe Bonds, to restore any ofthe deficiency in bond payment accounts; to repay the City f()r its costs of constructing Phase II of the Project; and then to build additional 1100rs of parking, subjeet to any limitations in the Congressional appropriation, or to eall Bonds fix redemption. 2. TGCe's Responsibilities: a) 'fGCC shall acquire Lots 13 to 16, BlockF, Old Bozeman Subdivision in order for the complete Parking Garage Facility to be the full length ofNOIiherly 112 B10ek between Black Avenue and Traey Avenue on the South side of Mendenhall Street in the City of Bozeman (the "Powderhorn Property"). b) TGCC shall secure the TGCe Loan prior to or simultaneous with the issuance of the City's tax increment bonds. A copy of the loan documents and the private guarantees will be provided to the City for its review and approval prior to execution. The City hereby acknowledges that the Guarantors of the TGCC Loan have an expectation of privacy in their financial information and the City agrees not to reIcase their names or the financial information unless required by an order issued by a Montana District Court. The City also agrees to notify Guarantors of any request made for information related to them. The loan will be an interest only loan for a term of five (5) to seven (7) years, which term will be coordinated to the second revenue bond buyout. Interest on the loan will be paid by TGCC, which interest is included as a Projeet Cost. c) TGCC represents that the total estimated cost of the Phase I of the Project will not exceed $6.3 million dollars. No funds in excess ofthe lesser of: (i) the actual costs of the Project; or (ii) $6.3 million dollars shall be expended unless agreed to in writing signed by both parties. d) TGCe understands that prior to the City's issuance of bonds for the Parking Garage Facility and the entering into of the Lease and Operating Agreement as hereafter described, it will establish and maintain its status as a nonproJlt corporation organized under the laws ofthe State of Montana and Section 501 (c)(3) ofthe Internal Revenue Code (the "Code") and / or a 63-20 status as may be deemed necessary pursuant to the Code, regulations, and rules of the Internal Revenue Service (IRS). TGCC shal I submit a copy of its form 1023 to be filed with the IRS. TGCC shall also obtain and provide to the City a copy of the IRS determination letter relating to its tax exempt status. TGCC further understands the City will not issue the Bonds until all of the construction bids have been received and a budget for the Project has been prepared and submitted to the City. 4 e) TGCC understands that the City's ability to issue Bonds exempt from federal income tax is dependent on the use of the Bond proceeds and the use of the Parking O-arageFacility, once constructed. TGCC will cooperate and coordinate with the City the overall financing of the Project to achieve the most economical and elTicient llnancing available and to such modification of the Lease as may be necessary to effectuate the issuance of the Bonds. Leasc. 1. City's Responsibilities: a) Upon transfer of the City of Bozeman Parking Commission's interest in Lots 17 to 24, Block F, Old Bozeman Subdivision to the City, the City shall lease said lots to TGCC, pursuant to the terms of a lease, substantially in the form attached hereto as Exhibit A, with such changes as may be required for clarity and consistency with this Agreement and as may be necessary and desirable to enable the City to issue bonds exempt from federal income taxation and as approved by both parties (the "Lease"). The term of the Lease will be ten (10) years, or until the TGCC Loan has heen repaid, whichever occurs first. 2. TGCC's Responsibilities: a) TO-CC shall pay rent and comply with the provisions as provided by the I ,ease. b) Take the necessary steps to cause tenant improvements to be made to the Retail Space to pennit or take such other action as may be required to offer the Retail Space for sale. The disposition of the Retail Space shall be in accordance with the provisions of the Urban Renewal Law (Sections 7-15-4201 through 7-15-4324, Montana Code Annotated), unless otherwise agreed to by the parties. c) Operate the Parking Garage Facility as a public parking facility and not enter into ,my leases or other arrangements that would result in the Bonds becoming taxable. d) TGCC shall pay all costs of operating and maintaining the Parking Garage Facility from the revenues ofthe Parking Garage Facility, including interest on the TGCC loan. To the extent there are revenues in excess of the costs and operation, such revenues shall be used to pay principal and interest of the TGCC loan and to provide additional parking. Parkin!! Gara!!e Facility Dcsi!!n and Construction. 1. City's Responsibilities a) Review ofproject pursuant to applicable code, regulations and permitting. 2. TGCC's Responsibilities: 5 a) Design and construct Phase T o!'the Parking Garage Facility and any additionallcve\s in accordance with the approved design as may be constructed for $6.3 million. In the event that final bids result in a total project cost in excess of $6.3 million, TGCC shall modify the plans and specifications as may be required, including the reduction of the number of parking stalls for Phase I, as may be required to meet the $6.3 million limit, unless the parties hereto agree otherwise. b) The Parking Garage Facility will be designed <md constructed in accordance with the most recent edition of the Montana Public Works Standards and Spec~flcations (MPWSS) as adopted by and modified or amended by the City of Bozeman, the City's modifications to MPWSS (currently 51h Edition), and the Dcsign Standards and Specification Policies (4th Edition) adopted by the City of Bozeman. c) TGCC shall he responsible for the overall design, development, permitting, coordinating of financing and construction of the Parking Garage Facility, provided however, that the City has final approval over the design ofthe Parking Garage Facility. d) TGCC shall utilize the Prugh & Lenon design team and proposal selected through thc City's RFP process. e) TGCC shall follow thc public involvement component and expectations outlined in the design team's RFP and application materials and substantive public participation will be used to generate the design ofthe structure. Any design elements greater than four (4) stories above grade will be carefully considered in the context of the historic nature and scope of Downtown. 1) Unless otherwise agreed to by the parties, TGCC shall utilize the construction manager at risk approach ("CMAR") to the construction of the Parking Garage Facility with Martel Construction serving as CMAR. The CMAR shall provide the TGCC a guaranteed maximum price contract, a copy of which shall be provided to the City Engineer. g) TGCC shall comply with all laws related to public work contracts including, but not limited to, Montana Code Annotatcd, Titlc 7, Chapter 5, Part 43; Title 1 X, Chapters 1,2,4, and 8 and Montana Attorney General's Opinion 37 Mont .Op. Att'y. Gen. No. 175. TGCC will suhmit the bids prior to award to the City Engineer for comment. h) TGCC shall ensure that the appropriate performance bonds and payment bonds have heen acquircd as required by the MPWSS as amended or modified by the City, and that the City is also named an owner in said bonds. i) TGCC shall also obtain and maintain all applicable insurance with the City named as an additional insured in accordance with MPWSS as modified or amendcd by the City of Bozeman. j) TGCC shall provide the City a set of final plans to the Parking Garage 6 Faci lity. k) TGCC will provide the City with a set of revised, reproducible construction plans and micro station files depicting the "as built" conditions. I) TGCC will certify to the City that construction was completed in compliance with the approved plans. m) TGCC will be responsible for letting and administering all contracts for any construction projects and he responsible for acquiring all permits and authorizations, including all environmental clearances necessary. n) TGCC wil I be responsible for the payment of special assessments, fees, charges, and applicable taxes, including beneficial use taxes to be paid with respect to the commercial retail space. 0) Except as provided herein, TGCC shall not encumber the Parking Garage Facility without the written consent of the City. Parkinc: Garac:c Facilitv Opcrations. TGCC shall be responsible for the operation and management of the Parking Garage r:acility during the period of the Lease, subject to the terms of the Lease. TGCC shall coordinate the proposed hours of operation, lease and meter charges and other matters with respect to the Parking Garage Pacility with the Bozeman Parking Commission. TGCC shall, at its own expense, keep the Parking Garage Facility in good and substantial repair. Transfer of Parkinc: Garac:e Facility. 'fGCC shall transfer the Parking Garage Facility, and the Powderhorn Property along with any lease hold interests, when the TGCC Loan has been repaid or at the end of the term of the Lease, whichever occurs first. Notwithstanding, TCiCC agrees that the City has the right to acquire, at any time, subject to approved liens and encumberances the exclusive possession of the Parking Garage Facility. Insurance. Any architect, consultant and any other person, business or entity involved in the design or construction of the Parking Garage Facility that is not required to obtain insurance under the MPWSS as modified or amended by the City of Bozeman, shall secure an occurrence (not claims made) insurance policy and furnish to the City, a certificate of ownership therein, naming the City as an additional insured, to include a forty-five (45) day notice of cancellation or a non-renewal. The insurance be secured and maintained until the transfer of the garage, and the City is additionally insured with the minimum insurance coverages as follows: Type of Coverage I ,;mits Employers' Liability $100,000 per accident General Liability: Bodily Injury and Property 7 Damage Single and Combined $1,000,000 per accident General Aggregate $3,000,000 Excess Liability Coverage (Umbrella) $1,000,000 each occurrence Automobile: Bodily injury covering all $1,000,000 each person automobiles, trucks $1,000,000 each occurrence tractors, trailers, or other automotive equipment whether owned or rented by TGCC or owned by employees of TGCe Property Damage covering $1,000,000 each occurrence all automobiles, trucks, tractors, trailers or other automotive equipment whether owned or rented by TGCC or owned by employees of TGCe OR Bodily Injury & Property $1,000,000 each occurrence Damage Single and Combined TGCe shall bear the risk of loss or damage to the Parking Garage facility by fire or other tragedy. TGCC shall purchase and maintain property insurance upon the Parking Garage Facility to full insurable replacement value during construction, operation, and until conveyance to the City. In the event of damage or destruction of the Parking CTarage Facility, TGCC shall be obligated to build or restore it from the insurance proceeds and other available funds. The City shall be named as an additional insured to inelude a forty-five (45) day notice of cancellation or nonrenewal. TGCC will provide a copy of the certificate of insurance and a copy ofthe policies to the City. Indemnification. TGCC agrees to defend, indemnify and hold the City and its officers and employees harmless of and from any and all liability, damage, expense, cause of action, suits, claims or judgments resulting from injury to persons or property occurring upon the Parking Garage Facility or parking garage premises or arising out of or resulting from or in connection with TGCC's performance of this Agreement. Rccords and Audit. TGCC shall keep, and shall require its contractor to keep, accurate, full, and complete records of all contracts, payment requests and payments made for services and materials relating to the Parking Garage facility. Such records shall be kept and maintained by TGCC for a period of seven (7) years following the completion of the project. During the seven 8 year period, the City shall have the right to examine such records upon reasonable advance written notice to TGCC. Annually, TGCC shall conduct an independent audit and a copy of the audit will be provided to the City. Proprietary Riehts. If a patentable discovery or invention should result from the work performed in constructing the Parking Garage Facility, all rights accruing from such discovery or invention shall be the joint property of TGCC and the City. Provided that the City shall have an irrevocable, non-exclusive, non-transferable and royal free license to use each invention in the manufacture, use and disposition, according to law, of any article or material, and in the use of any method that may be developed as part of this construction or services contemplated herein. Warranties. TGCC further agrees to assign all guarantees and warranties to the City relating to the Parking Garage Facility. If the City desires to assert any rights under such assigned guarantees or warranties, TGCC agrees to assist in asserting such rights without cost. Independent Contractor. TGCC shall perform any work required under this Agreement as an independent contractor, and as such, is responsible to the City only as to the results to be obtained in the work specified by this contract, and to the extent the work shall be done in accordance with any terms, plans, or specifications. TGCC shall have and maintain complete control over all of its employees, subcontractors, agents and operations, being responsible for any required payroll deductions and providing required benefits, such as, but not limited to, worker's compensation with statutory limits and unemployment insurance. Non-Discrimination. The City will require during the performance of any work arising out of this agreement that the agreement, for itself, assignees and successors, comply with all nondiscrimination regulations shown on Exhibit B, which is incorporated herein by reference. Modification and Amendment. This MOA may be modified or amended, only in writing, by the mutual agreement of the parties involved. Assienment. This MOA is assignable by TGCC only upon the written acceptance of the assignee by the City. Supplementation of the Aereement. The parties agree that it may be desirable to provide individual or more specific provisions which may be accomplished through the execution of written supplements to this Agreement as needed. Attornev's Fees. In the event either party incurs legal expenses, including the costs, expenses, salary and fees of the in-hours counsel, to include the City Attorney, to enforce the terms and conditions of this agreement, the prevailing party is entitled to recover reasonable attorney's fees and other costs and expenses, whether the same are incurred with or without suit, including fees on appeal. Waiver. No waiver of any default shall constitute a waiver of any other default nor shall such waiver constitute a continuing waiver. No waiver of any term or condition of this 9 Agreement shall constitute a waiver of any other term or condition, whether or not similar, nor shall such waiver constitute a continuing waiver. Construction and Venue. This agreement will be construed under and governed by the laws of the State of Montana. In the event litigation concerning it, venue is in the Eighteenth Judicial District Court, Gallatin County, Montana. Binder. This Agreement shall be binding upon the heirs, personal representatives, successors and assigns of the parties. Authority. TGCC aHirms that the undersigned has thc authority to enter into this Agreement on behalf of TGCC and to bind TGCC to this Agreement. IN WITNESS WHEREOF, the Parties have hereunto set their hands and seals this ---.?3~ day of June, 2004. TI-JE GARAGE AT CITY CENTER /} >/? ") CDAJQc. ~~,~~ ( m-d-f_- THE CITY OF BOZEMAN By: --..., .- Its: STA TE OF MON'fANA ) ) ss. County of Gallati n ) On this _:?(-ftL--._ day of June,/!004, before me, the undersigned, a Notary Public for thc State "/tontrma pcr~onally appear~d ~\d/c tl C: ~' l~_t 6'1Ll ,t~ known to. he thc __7L.Q<LllLf/I":::-~____ 01 The Garage at CIty Center and the person whose name IS subscribed to the within instrument and acknowledged to me that he/she executed the same for and on behalf of The Garage at City Center. IN WITNESS WIIJ--<:REOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. 10 (SEAq \ \ \ \~: I f I I I /.....-)_ , ..... " r""'. // (l" 'I (i'i , " '- ;.' ',.'.. :~ (., /. ...-.....-,.' /". ......." .,\...,C ~.. ".../ /' ,: ,.'.>. . . '. .'.<_ '",--_ -v{ "- --,--~7'L----l-{.t:~---.--.. ...:- .<". ,"~\ ~T ."~' r: . \ \ \', ~:_ . j. C C. l'~ \ I '\ J:~' l<) ,., . ' . I, . __ . . ..' I -- 1-1 ~--' "'-.. "--- '.. ,'---. --............. \,~,\'~J ',..J ~~' ~,_"" ',' .........,~ _. . __._..-"- (Printed Name of otary Public) '-:. --/t;. ~,.., . A ~~- Residing at . fY'- Pc.--',",-:>. 7/7 .;--- .-'-:- d::-: . '.~' . . ',"r --:.:.~ My Comm i ~ion "i.::x I r~s <:<))LL (~1 I 1- '2.' (.10 ,f /'1/"" . . . -- ',,\,\'1' <' I '. .. '1 ' 1/ I.~' (Ji:: I'^"')'''-- " / / J '.' ,.. \ 'j ///111\\\\ STATE or MONT ANA ) ) ss. County of Gallatin ) On this ../J ~_ day of June, 2004, before mc, the undersigned, a Notary Public for the State of Montana personally appeared Ron Brey known to be the Acting City Manager of the City of Bozeman and the person whose name is subscribed to the within instrumcnt, and acknowledged to me that he executed the same for and on behalf of the City of Bozeman. IN WITNESS WHEREOF, I have hereunto set my hand and aHixed my Notarial Seal the day and year first above written. (SEAL) / Y /~ 4, v/t~-- ~/JdF;~ __' 4.' vI;J e e/;-- .. .,-'- ,- . (Printed Name ,Notary Public) Residing at. . 7t--r'- _' My Commissi n Expires b '/clJ;;?cJtJ7", ] 1 3SVJ1 dO J!\l(JO:l V lIHIHX3. EXHIBIT B A. COMPLIANCE WITH TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 FOR FEDERAL AID CONTRACTS AND OTHER FEDERAL REGULA TrONS. In the event Federal Funds are received, TGCC shall: a) Comply with all regulations relative to applicable nondiscrimination. h) TGCC shall not discriminate on the grounds of sex, race, color or national origin in the selection and retention of subcontractors, including procurement of materials and leases of equipment. 'fGCe shall not participate either directly or indirectly in the discrimination prohibited by applicable Federal regulations. c) In all solicitations, whether by competitivc bidding or negotiation by TGCe f(x work to be performed under a subcontract, including procurement of materials or leascs of equipment, any potential subcontractor or supplier shall be notified by TGeC ofTGCC's obligations under this agreement and the rcgulations relative to nondiscrimination. d) 'fGCC will provide all reports and information rcquired hy the regulations or directives issued pursuant thereto, and permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the City to bc pertincnt to ascertain compliance with rcgulations or directivcs. Where any information required ofTGCC is in the exclusive possession of another who Llils or refuses to furnish this information, TGeC shall so certify to the City as requested, setting forth what efforts it has made to obtain the information. c) In the event ofTGCC's noncompliance with the nondiscrimination provisions of this agreement, the City may cancel, terminate or suspend the agreement, in whole or in part. f) TGCC will includc the provisions of paragraphs (1) through (6) in every subcontract, including procurement of materials and leases of equipment, unless exempt by thc regulations or directivcs issucd pursuant thereto. TGCC will take such action with respect to any subcontract or procurement as the City may direct to enforce such provisions including sanctions for noncompliance: Provided, however, that in the event TGCC is sued or is threatened with litigation by a subcontractor or supplier as a result of such direction, 'fGce may request thc City to enter into the litigation to protect the interests of thc City. B. COMPLIANCE WITH THE MONTANA GOVERNMENT AL CODE OF FAIR PRACTICES. 949-2-207, M.C.A. In accordance with 949-2-207, M.C.A., TGCC agrces that for this Agreement all hiring will he made on the basis of merit and qualifications and that there will he no discrimination on B-1 the hasis of race, color, religion, creed, political ideas, sex, age, marital status, physical or mental disability, or national origin by the persons performing the agreement. C. COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT (ADA). 1 ) TGCe will comply with all regulations relative to implementation of the Americans with Disabilities Act (ADA). 2) TGCC will incorporate or communicate the intent of the following statement in all publications, announcements, video recordings, course 01ferings or other program outputs: "TGCC will provide reasonable accommodations for any known disability that may interfere with a person participatin~ in any service, program or activity offered by TGCC. In the case of documents, recordings, or verbal presentations, alternative accessible formats will be provided. For further information call TGCC." 3) All video recordings produced and/or created under this agreement will be closed captioned. B-2 -- AMENDMENT 1 MEMORANDUM OF AGREEMENT ON nOWNTOWN PARKING GARAGE Whereas the City of Bozeman, a Municipal Corporation, hereinafter referred to as "City" and The Garage at City Center, a nonprofit corporation, hereinafter referred to as "TGCC", have entered into a Memorandum of Agreement concerning the funding, design, construction, maintenance, operation and eventual transfer of the downtown Parking Garage Facility; and Whereas, the Memorandum of Agreement provides for modification or amendment in writing by the mutual agreement of the parties involved; and Whereas, TGCC presented to the Bozeman City Commission on August 16,2004, an option (Option B) for the project which modifies the project by utilizing a portion of the city parking lot west of the Carnegie Building, bridging North Black A venue with the parking structure, providing for an open area adjacent to North Tracy Avenue, increasing thc amount of retail space included in the project to approximately 17,500 square feet, providing for eventual horizontal expansion to the cast, and requiring possible adjustment of the project cost caps with no effect on the City's financial obligations; and Whereas, the Bozeman City Commission, on August 16, 2004 passed a motion to "encourage the applicant to pursue and consider Option B when pursuing design considerations, to determine the feasibility of Option B, and to bring back both Option A and Option B for further Commission consideration."; and Whereas, the Bozeman City Commission, on September 7, 2004, considered the information provided concerning Option B; and Whereas the Bozeman City Commission, on September 7, 2004 directed the staff to prepare for Commission approval an amendment to the Memorandum of Agreement which allows Tei-Ce to pursue either Option B or Option A, provided that TGCC submit the Option B concept to the Design Review board for preliminary review prior to commencing detailed design and provided that TGCC provide the Commission with an estimate of the value of the additional municipal property required for the development of Option B. Now, Therefore, the parties agree to amend the agreement as follows: Once TGCC has provided the Bozeman City Commission with an estimate of the value of the additional municipal property required for the development of Option B, as described above, TGCe is authorized to pursue and consider Option B provided that TGCC submit the Option B concept to the Design Review Board for preliminary review prior to commencing the detailed design of Option B. TGCC continues to be authorized to pursue Option A. IN WITNESS WHEREOF, the Parties have hereunto set their hands and seals this I L{t'h- day of September, 2004. - -- THE GARAGE AI' CITY CENTER ~ c 1 /- i '\ / . /, l' ....... ../ · l---- ~ flU ". -!r 0Ii~L-_ Its: /?,t:. ( ~ "'~-, ,~ THE CITY OF BOZEMAN By:~A i ~)1 (); Its: C ;Lj" ::t1oV'(Uj<2r .... . - STATE OF MON"rANA ) ) ss. County of Gallatin ) On this _IL(-rk_day of September, 2004, before me, the undersigned, a Notary lli~ fqr th~ ~6fMontana personally appeared i) CK..- L . /-c-Lt~(' known to be the t (t2 s I~ rlL.-0{-- of The Gar;ge at City Center and the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same for and on behalf of The Garage at City Center. IN WITNESS WHEREOF, I have hereunto set my hand and afTixed my Notarial Seal the day and year first above written. (SEAL) \i- ~ Gc"li- m~IL~"- I - P (-f vuL (..L'Vl i (~;V (Printed Name of Notary Pu Itc) Residing at J&-o--J/1/1I1U./I-'L-- ~.._,---,_.,',.._----------- My Commission Expires ---_.._211 <;,- ( "ZA) cJ 7 STATE OF MONT ANA ) ) ss. County of Gallatin ) On this iL-{-YvL day of September, 2004, before me, the undersigned, a Notary I Publjc for the State of Montana personally appeared Chris Kukulski known to be the City Manager of the City of Bozeman and the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same for and on behalf of the City of Bozeman. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) \i-~tL LC-VLL -il ) v( e ' , ,) -1 vi ~c( he" C (Printed Name of Notary Public) Residing at ,.ftD?k./l/t/ttL-i,L/ My Co.mmission Expires ._:}-!- l ';' / 2-f.j 0 ?