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HomeMy WebLinkAbout20- HRDC - Warming Center Improvements GRANT AGREEMENT HRDC—Warming Center Improvements THIS AGREEMENT is made and entered into this '!' day of , 2020 ("Effective Date"), by 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 Human Resources Development Council of District IX, Inc. ("HRDC"), a Montana nonprofit corporation located at 32 South Tracy Ave., Bozeman Montana 59715 as Grantee. Collectively City and HRDC may be referred to herein as the "Parties." WHEREAS, on October 17, 2005 the Bozeman City Commission adopted Resolution No. 3866 establishing policies for the granting of funds from the City of Bozeman to a requesting entity; and WHEREAS, HRDC submitted a proposal to the City Commission for a grant of up to $296,520 for improvements at property leased by HRDC to serve as a warming shelter (the "Leased Property") on land located at 2015 Wheat Drive, Bozeman Montana (the "Land"); and WHEREAS, the City Commission finds there is a compelling public interest in alleviating the need for emergency housing in the community as described in HRDC's proposal and that the project will serve a public purpose. THE PARTIES AGREE: 1. Grant. The City will grant and release to HRDC a sum of up to two hundred ninety-six thousand five hundred twenty dollars ($296,520) from its Workforce Housing Fund (the "Grant") pursuant to the payment terms in Section 3. 2. Use of Grant Funds. Grant funds will be used by HRDC for the sole purpose of improvements to the Property to create a Community Warming Center as described in HRDC's grant request dated November 8, 2019 (the "Project"), attached hereto as Exhibit A and by this reference incorporated herein. 3. Payment of Grant Funds a. The City will reimburse HRDC for the costs of those improvements shown on Exhibit B ("Eligible Expenses") up to the maximum Grant amount subject to the terms of this Agreement. b. Reimbursement by the City for costs of the improvements described in Exhibit B (the "Improvements") must be based on paid invoices for costs incurred by FY 2020 Grant Agreement—HRDC for Community Warming Center HRDC, its contractors and subcontractors or utility companies, which HRDC must supply to the City. All invoices for which HRDC seeks reimbursement must be delivered to the City with a written reimbursement request no later than thirty (30) days after HRDC pays such invoice. The City may reject, in its sole discretion, any invoice related to the Improvements. The City will notify HRDC of any rejected invoice and the reason it was rejected. c. The City will have no obligation to reimburse any of the Eligible Expenses unless at the time of such reimbursement request (i) all of HRDC's representations as set forth in Section 5 are true and correct, and (ii) HRDC is not in breach of any term of this Agreement. If any of the above conditions are not satisfied in the determination of the City, the City shall have no obligation to reimburse any of the Eligible Expenses and the City's determination to refrain from reimbursing, or its inability to reimburse, any of the Eligible Expenses shall not be or result in a default of this Agreement. d. Any funds from the Grant not awarded during the term of this Agreement will remain in the City's Workforce Housing Fund and will be available for other appropriation. 4. Term. The term of this Agreement will commence on the Effective Date and expire one (1) year after the Effective Date unless earlier terminated as provided herein. 5. Repayment of Grant Funds. a. Possession of the Property. HRDC entered into a lease agreement dated November 26, 2019 (Attached hereto as Exhibit C and incorporated by reference into this Grant Agreement and hereinafter referred to as the "Lease") with the third-party owner of the Land and Leased Propertywhich HRDC intends to improve with the Grant funds . The Parties acknowledge and agree that most or all of the Improvements will remain with the Leased Property pursuant to the terms of the Lease upon termination of the Lease. The Parties further acknowledge and agree the grant of public funds to reimburse the cost of Improvements to the Leased Property if the Leased Property is not (i) owned or leased by HRDC and (ii) operated by HRDC as a Community Warming Center as described in Exhibit A violates the intent of Resolution No. 3866. As such, HRDC agrees to repay all Grant funds City has paid to HRDC under this Agreement if, within the ten (10) year period after the effective date of this Agreement, HRDC is no longer in possession of the Leased Property for any reason. Such FY 2020 Grant Agreement— HRDC for Community Warming Center repayment must be made within ninety (90) days of HRDC's loss of possession of the Leased Property. b. Use of Property for a Public Purpose. The City is agrees to grant the Grant funds only for the purposes described in HRDC's grant request attached as Exhibit A. Therefore, if HRDC ceases, in the City's sole determination, to use the Property for the purposes described in Exhibit A at any point within the ten (10) year period after the Effective Date, HRDC agrees to repay to City the Grant funds paid to HRDC under this Agreement, unless City has consented in writing to such change in use or purpose. c. Promissory Note. The repayment obligations in this Section 5 will be set out in a Promissory Note from HRDC with a 10-year term in a form satisfactory to the City Attorney. No Grant funds will be disbursed until such Promissory Note is executed. 6. Grantee Representations a. HRDC has familiarized itself with the nature and extent of this Agreement and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect HRDC's performance under this Agreement. b. HRDC represents and warrants to City that it has the experience and ability to perform its obligations under this Agreement; that it will perform said obligations in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary for HRDC to meet this warranty. c. HRDC represents and warrants to City that the Grant funds are necessary to accomplish the financial requirements of the Project. d. HRDC represents and warrants to the City the Leased Property will be used as a Community Warming Center as described in HRDC's proposal, attached hereto as Exhibit A. FY 2020 Grant Agreement—HRDC for Community Warming Center 7. Construction of the Improvements. HRDC shall acquire, install, construct or otherwise provide the Improvements. HRDC acknowledges and agrees that the City is not responsible for acquiring, installing, constructing or otherwise providing the Improvements. 8. Utilities. HRDC shall not interfere with, or construct any improvements over, any utility easement without the prior written approval of the City. All connections to public utility lines and facilities shall be subject to approval of the City and any private utility company involved. HRDC at its own expense shall replace any public facilities or utilities damaged during the Project by HRDC or its agents or by others acting on behalf of or under their direction or control of HRDC. 9. Permits and Compliance With Laws. HRDC will obtain, in a timely manner, all required permits, licenses and approvals, and will meet all requirements of all local, state and federal laws, rules and regulations which must be obtained or met in connection with construction or installation of the Improvements. Without limiting the foregoing, HRDC will request and seek to obtain from the City or other appropriate governmental authority all necessary land use, zoning, and building permits. HRDC will comply in all material respects with all applicable environmental laws and regulations applicable to the construction, installation, and operation of the Improvements, will obtain any and all necessary environmental reviews, licenses or clearances under, and will comply in all material respects with, environmental laws and regulations. In addition, HRDC shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances related to worker safety including but not limited to the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, Montana Code Annotated (MCA), all applicable City, County, and State building and electrical codes, and the Americans with Disabilities Act. 10. Worker's Compensation Insurance. HRDC shall provide in its construction contracts related to the Project with all of its respective contractors that such contractors are to be covered by a Worker's Compensation insurance program with the State, a private insurance carrier, or an approved self-insurance plan in accordance with State law. 11. Reports/Accountability/Public Information. If Grant funds are paid to HRDC, HRDC will provide to the City a formal written report that includes, at a minimum, the proof of expenses paid. HRDC agrees to develop and/or provide such other documentation as requested by the City demonstrating HRDC's compliance with the requirements of this Agreement. HRDC 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 FY 2020 Grant Agreement—HRDC for Community Warming Center provided to HRDC pursuant to this Agreement were used in compliance with this Agreement and all applicable provisions of federal, state, and local law. HRDC will retain such records for seven years after receipt of final payment under this Agreement unless permission to destroy them is granted by the City. HRDC shall not issue any statements, releases or information for public dissemination without prior approval of the City. 12. Independent Contractor Status. The Parties agree that HRDC, its agents, employees, contractors, or subcontractors, are independent contractors for purposes of this Agreement and are not to be considered employees or agents of the City for any purpose. HRDC and its agents, employees, contractors, or subcontractors, are not subject to the terms and provisions of the City's personnel policies handbook and may not be considered a City employee for workers' compensation or any other purpose. HRDC, its agents, employees, contractors, or subcontractors, are not authorized to represent the City or otherwise bind the City in any way. 13. Default and Termination. If HRDC fails to comply with any condition of this Agreement at the time or in the manner provided for, the City may terminate this Agreement if the default is not cured within fifteen (15) days after written notice is provided to HRDC. The notice will set forth the items to be cured. If this Agreement is terminated pursuant to this Section, HRDC will repay to the City any Grant funds already delivered to HRDC for the Project. In the event of termination under this Section 17, HRDC shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, damages of any nature arising, or claimed to have arisen, as a result of the termination. 14. Limitation on HRDC's Damages; Time for Asserting Claim a. In the event of a claim for damages by HRDC under this Agreement, HRDC's damages shall be limited to contract damages and HRDC 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. b. In the event HRDC wants to assert a claim for damages of any kind or nature, HRDC must first 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 HRDC fails to provide such notice, HRDC shall waive all rights to assert such claim. 15. Representatives FY 2020 Grant Agreement—HRDC for Community Warming Center a. City's Representative. The City's Representative for the purpose of this Agreement shall be the City of Bozeman Finance 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 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, HRDC may direct its communication or submission to other designated City personnel or agents and may receive approvals or authorization from such persons. b. HRDC's Representative. HRDC's Representative for the purpose of this Agreement shall be HRDC's Executive Director or such other individual as HRDC shall designate in writing. Whenever direction to or communication with HRDC is required by this Agreement, such direction or communication shall be directed to HRDC's Representative; provided, however, that in exigent circumstances when HRDC's Representative is not available, City may direct its direction or communication to other designated HRDC personnel or agents. 16. Indemnity/Waiver of Claims/Insurance. To the fullest extent permitted by law, HRDC 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, expenses, action or other proceeding whatsoever including reasonable defense attorney fees, (1) arising or purportedly arising out of, or resulting or purportedly resulting from, the construction or installation of the Improvements, any violation by HRDC of any agreement, condition or covenant of this Agreement, the maintenance and operation of the Project, or the presence on any portion of the Land, of any dangerous, toxic or hazardous pollutants, contaminants, chemicals, waste, materials or substances; or (ii) which is proximately caused by HRDC or its officers, agents, contractors, consultants or employees. 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 indemnitee(s). HRDC's indemnification obligations under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. FY 2020 Grant Agreement—HRDC for Community Warming Center Should any indemnitee described herein be required to bring an action against HRDC to assert its right to defense or indemnification under this Agreement or under HRDC'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 HRDC 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 Agreement, the City may elect to represent itself and incur all costs and expenses of suit. HRDC 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 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 Agreement. In addition to and independent from the above, HRDC shall at HRDC'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 HRDC in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by HRDC in this Section unless and to the extent coverage for such liability is not reasonably available. 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 and which is acceptable to the City and HRDC shall furnish to the City an accompanying certificate of insurance and accompanying endorsements 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 FY 2020 Grant Agreement— HRDC for Community Warming Center 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 Liability 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 delivery of Grant funds to HRDC. HRDC shall notify City within two (2) business days of HRDC's receipt of notice that any required insurance coverage will be terminated or HRDC's decision to terminate any required insurance coverage for any reason. 17. Nondiscrimination. HRDC will not discriminate on the basis of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, or physical or mental disability in providing access, support or assistance pursuant to this Agreement to youth in need of shelter. HRDC will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. HRDC 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. HRDC shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. HRDC shall require these nondiscrimination terms of its sub-Contractors providing services under this agreement. 18. Public Meetings and Access to Public Records a. Meetings of HRDC that pertain to the receipt or expenditure of Grant funds from the City 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. To ensure compliance, HRDC will provide agendas for meetings that pertain to the receipt or expenditure of Grant funds covered by this Agreement 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 HRDC and provided to the City Clerk's office no later than 90 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 2-3-203, MCA. Minutes taken during a closed meeting shall also be provided to the City Clerk's office but shall be handled in accordance FY 2020 Grant Agreement—HRDC for Community Warming Center with the City Clerk's regular- executive session protocol and kept private in a secured cabinet. b. 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, HRDC shall make such records available for inspection and copying by members of the public. HRDC may charge for such copying in accordance with the policies of the City, which HRDC hereby adopts for such purposes. c. To determine whether a meeting or part of a meeting may be closed to the public and to determine whether information contained in HRDC documents is protected by law from disclosure, HRDC may seek a determination of the City Attorney at no cost to HRDC. Such request and determination shall not create an attorney-client relationship between HRDC and the City. 19. 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 counsel to include City Attorney. 20. 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. 21. 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. FY 2020 Grant Agreement—HRDC for Community Warming Center 22. No Assignment. HRDC may not subcontract or assign HRDC's rights, including the right to Grant payments, or any other rights or duties arising hereunder, without the prior written consent of City. 23. Successors Bound By Agreement; No Third Party Beneficiary. Subject to compliance with Section 26, this Agreement will inure to the benefit of and be binding upon the Parties and their respective successors in interest and permitted assignees. 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. 24. 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. 25. 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. 26. Severability. If any portion of this Agreement is held to be void or unenforceable, the balance of the Agreement shall continue in effect. 27. Counterparts. This Agreement may be executed in counterparts, which together constitute one instrument. IN WITNESS WHEREOF, the Parties hereto have executed this instrument the day and year indicated below. CITY OF BOZEMAN Date: , Dennis Taylor, Interim City Manager HRDC / Date: Heather Grenier, Plesident and CEO FY 2020 Grant Agreement—HRDC for Community Warming Center Ap oved asIo form: Date:-5� Greg Sullivan, City Attorney City of Bozeman FY 2020 Grant Agreement—HRDC for Community Warming Center