Loading...
HomeMy WebLinkAbout22- MOU - Gallatin Alliance for Pathways - Frontage Pathway TOP Bond ProjectResolution 5373 Attachment A Memorandum of Understanding Between the City of Bozeman and Gallatin Alliance for Pathways for Frontage Pathway This Memorandum of Understanding (the “MOU”) is entered into by and between Gallatin Alliance for Pathways, a Montana non-profit public benefit corporation, with a mailing address of 2411 Kid Curry Drive, Bozeman MT 59718 (“GAP”) and the City of Bozeman, a municipal corporation organized and existing under its Charter and the laws of the State of Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771 (the “City” and together with GAP the “Parties”) and sets forth the mutual understanding of GAP and the City with respect to the funding, design, and construction of a non-motorized multi-user route/pathway as shown in Exhibit A (the “Frontage Pathway” or the “Project”). GAP and the City are working together with the common goal of creating the Frontage Pathway as part of the City of Bozeman’s trail network. RECITALS A. GAP is a Montana non-profit public benefit corporation working, in this specific context, to develop a safe and scenic route/pathway for people to bicycle or walk between the Nelson Meadows Subdivision and the Cherry River Fishing Access Site near North 7th Avenue on the north side of Frontage Road. B. 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 and open spaces in the City of Bozeman (the “TOP Bond Fund”). C. On October 13, 2020, the City Commission of the City of Bozeman adopted Commission Resolution No. 5209 which authorized the contribution of up to $90,000.00 from the TOP Bond Fund toward completion of the Project, on the terms and conditions set forth in Commission Resolution No. 5209. D. Resolution No. 5209 states that $90,000 is allocated from the TOP Bond Fund toward the project costs, with the remainder to be provided by GAP fundraising, grants, and other City of Bozeman capital funding as it becomes available. The initial Frontage Pathway Application proposed that the TOP fund would provide $300,000 (48%) of the project costs, with GAP raising the remaining projected costs with direct funding; private, federal and state grants; and in-kind contributions of $325,902 (52%), an approximate 1:1 match. E. The Resolution also contemplates that feasibility and design first need to take place to inform the actual project costs and funding needed. Additionally, since the time of the application, the City has confirmed that future developments on City parcels would be required to design and complete the associated segments of pathway at the time of their development (Segment One). These DocuSign Envelope ID: 1427862D-7F34-4DF9-8951-5653CC21E390 pathway segments may obviate the need for Segment One under the TOP proposal. The City has therefore agreed to pay for a feasibility study focusing on Segment Two, but assessing feasibility of the entire project. The cost of the feasibility study is estimated to be approximately $50,000. F. In order to maintain the 1:1 match between the Trails, Open Space and Parks Bond funding and GAP, after the feasibility study has been completed and paid for, and the Parties have agreed about the subsequent steps to complete the Project and the estimated costs thereof, GAP will next match the $50,000, as set forth in Section D. The remaining $80,000 (of the $180,000 total) will be spent upon mutual agreement by the City and GAP at a 1:1 ratio of GAP match to TOP funding. Additional funding sources beyond this $180,000 are unknown and will be raised collaboratively between the Parties as set forth herein. G. Resolution No. 5209 contemplates that GAP’s commitment to make the GAP Contribution be memorialized in a binding Memorandum of Understanding to be approved by the City Commission prior to expenditure of any funds under the Resolution. H. The City and GAP intend to complete the Project through a collaborative public- private partnership. The purpose of this MOU is to fulfill the requirements of Commission Resolution No. 5209 and to describe and formalize the goals, guidelines, rights and obligations of GAP and the City in creating the Project, and to guide the parties in their collaborative efforts to successfully complete the Project. NOW, THEREFORE, in order to define the goals, guidelines, rights and obligations of the Parties toward each other and toward third parties in carrying out the creation of the Frontage Pathway Project as contemplated by Commission Resolution No. 5209, GAP and the City agree as follows: AGREEMENT 1. General Description of Project. The general goal of the Project is to construct trail segments and pedestrian crossings as needed to establish a non-motorized multi-user route/path north of the Frontage Road between Nelson Meadows Subdivision and the Cherry River Fishing Access Site near North 7th Avenue. The goal of the Parties is to include the following components in the Project: A. Establish the feasibility of the Frontage Pathway as defined in the TOP application including exploration of alternate routes; B. Obtain approvals and easements, as needed, for the route of the Frontage Pathway; C. Design and complete the associated segments of pathway at the time of future development on City parcels (Segment One); DocuSign Envelope ID: 1427862D-7F34-4DF9-8951-5653CC21E390 D. If right of way or easements are approved by property owners, pursue additional funding in collaboration with the City and application partners for design and construction of Segment Two east of Springhill Road; E. Improve active transportation features along the entire pathway including but not limited to improved street crossings, trail markers or wayfinding, benches, and shaded areas. 2. Specific Project Tasks to be Completed. The Parties acknowledge that the foregoing Section 1 reflects the general goals of the Project as approved by the City Commission, and that the general goals will be incorporated into a design and construction plan following the City’s planning process and that of other relevant jurisdictions. Therefore the list of specific project tasks to be completed, and the Party responsible for completing the tasks, will need to be informed by the results of the feasibility study, and this MOU may be amended accordingly from time to time as mutually agreed by the Parties as the planning documents are completed. Identified Specific Project Tasks. Notwithstanding the foregoing, GAP and the City have identified a number of specific tasks that will be completed in any event. Those tasks consist of the following: 3. Private Fundraising Campaign. Upon completion of a feasibility study and if approvals are obtained, GAP will develop and implement a private fundraising campaign for GAP’s Contribution to the Project (in an amount to be determined after the design phase) (the “Campaign”). The goal of the Campaign will be to raise sufficient private funds, in-kind contributions, and grants to complete the project, as well to raise sufficient funds to cover the costs of conducting the Campaign itself. GAP will use reasonable, good faith efforts to raise private funds, in-kind contributions, and grants in an amount sufficient to complete the Project. All cash donations or grants received by GAP as part of the Campaign will be held by GAP or, as appropriate, the City prior to disbursement of such funds for construction of the Project pursuant to the terms of this MOU. GAP will be responsible for (i) collecting all gifts, (ii) acknowledging each gift, (iii) providing regular updates on the progress of the fundraising efforts to the City, and (iv) disbursing such funds to cover agreed-upon Project-related costs. The City acknowledges and agrees that, while GAP shall use reasonable and good faith efforts to achieve its fundraising target, GAP is not a guarantor of such funds. GAP agrees to keep the City informed of its progress on the Campaign as part of the Parties’ regular communication during the life of the Project. 4. Grants and Misc. City Funding. The City will make all reasonable efforts to support the project, including being the applicant for grants that require a governmental applicant and supporting grant applications submitted by GAP, as deemed appropriate by the City Manager. The City will also contribute reasonable Staff resources and identify other City funds as they become available and are prioritized for this project. GAP will prepare grant applications with collaboration from the City and provide matching funds as described in Section 3. DocuSign Envelope ID: 1427862D-7F34-4DF9-8951-5653CC21E390 5. Feasibility Study and Concept Design. The City will engage and pay out of TOP funds the services of a professional engineering firm to complete the feasibility study. In the event that neither right-of-way nor easements can be acquired for the construction of Segment Two, remaining TOP funds and partner match may be used for smaller aspects of the project (see Section 1.E). 6. Project Management. The Parties intend to work together in a collaborative manner for the development of the route/pathway, allowing the Project to benefit from each Party’s particular expertise and skills. In consultation with GAP, the City will manage the overall design, development and construction through completion of the Project. The Directors of Parks and Recreation and/or Public Works are the ultimate review authorities for City of Bozeman infrastructure design, as applicable. 7. Construction Management. The parties intend that the City, through a selected engineering firm, will manage and contract for all phases of Project development and construction, in accordance with the approved plans. 8. Project Budget. GAP developed a preliminary budget for the Project, a copy of which is attached to this MOU as Exhibit B and hereby incorporated by this reference (the “Project Budget”). The Project Budget was preliminary in nature, based on the information known to the Parties as of the date of submittal of GAP’s application to the TOP Committee. The Project Budget will be updated, amended, and refined over time as a result of the planning process and the results of construction bidding. 8.a Once the design process has been completed and the estimated costs of the various components of the Project have been better identified, the Project Budget will be revised to identify specific costs related to on-site improvements, as well as which party will be responsible for the cost of which tasks and how the cost of those tasks will be funded. The Revised Project Budget will, to the extent possible, identify which budget items GAP will pay for using in-kind services, which will be paid for with funds contributed by GAP, and which will be paid for using funding from the TOP Bond Fund or other grants and/or City funds. GAP and the City will at all times manage the Project in such a manner as to ensure that the Project is constructed consistent with the approved designs and budget as approved by the City Commission. A revised or new MOU may be established, if deemed necessary by either party, to document the revised project budget and terms upon completion of the feasibility phase. 9. Signage. Following completion of the Project, in addition to any signage installed by the City and in accordance with the City of Bozeman’s Naming Policy, a permanent sign acknowledging GAP and/or other donating entities may be installed at GAP’s expense in a location mutually acceptable to the City and GAP. GAP and the City may create a mutually acceptable donor recognition plan to guide acknowledgement of donors to the Project. All signs erected or posted along the Route shall conform to City sign permit requirements. 10. Press Releases; Publicity; Events. GAP shall provide the City with advance notice of significant publicity events relating to the Project and the Campaign, and an opportunity for DocuSign Envelope ID: 1427862D-7F34-4DF9-8951-5653CC21E390 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 of such events. To facilitate its fundraising efforts in connection with the Project, GAP may issue press releases, hold promotional events and/or take other steps to raise public awareness regarding the Project. 11. Miscellaneous. a. Notices. Notices to the Parties shall be directed as follows: If to the City: The City of Bozeman City Hall 121 North Rouse Bozeman, Montana 59771-1230 Attention: Addi Jadin E-mail: ajadin@bozeman.net If to GAP: Gallatin Alliance for Pathways 2411 Kid Curry Drive Bozeman, Montana 59718 Attention: Marilee Brown Email: saferbozeman@gmail.com Any notice sent to a Party under this MOU shall be in writing and shall be effective when received by the recipient. Each Party may change the address at which it is to receive notices by providing written notice of its new address for notices to the other Party. b. Governing Law; Venue. This MOU shall be governed by the laws of the State of Montana. The Parties expressly agree to the exclusive jurisdiction of the courts of Gallatin County, Montana c. Liberal Construction. This MOU shall be liberally construed to achieve the successful completion of the Project. If any provision in this MOU is found to be ambiguous, an interpretation consistent with the spirit of collaboration and the mutual goals and objectives of the Parties shall be favored over any interpretation that would be inconsistent with such purposes and goals. d. Severability. If any provision of this MOU is found to be invalid, the remainder of the provisions of this MOU shall not be adversely affected. DocuSign Envelope ID: 1427862D-7F34-4DF9-8951-5653CC21E390 e. Entire Agreement; Amendment; Assignment. This instrument sets forth the entire understanding of the Parties with respect to the Project and supersedes all prior discussions, negotiations, understandings, or agreements relating to the MOU, all of which agreements or understandings are merged into this MOU. No alteration, amendment or modification of this MOU shall be valid or binding unless contained in a written amendment signed by both Parties. It is contemplated that from time to time this MOU can be modified, if agreed by both Parties, to address developments in the Project and/or the Campaign. GAP may not assign its rights or obligations under this Agreement without the prior written consent of the City. f. Successors. The terms, conditions, commitments, restrictions and understandings set forth in this MOU shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. g. Captions. The captions in this MOU have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon construction or interpretation. h. No Partnership or Agency. Neither Party shall be considered a partner or agent of the other Party, and this MOU 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 Project is a public-private collaboration between two separate and independent entities, each of which has a common interest in creating the Frontage Pathway Project, but each of which also has objectives and activities outside the scope of the Project and this MOU. The joint effort being formed by the City and GAP is not a separate legal entity and neither GAP nor the City shall have the right to bind the other Party vis-à-vis any third party. The purpose of the collaboration is to work together to complete the Project and achieve the Parties’ common goals as stated in the Recitals above. While GAP and the City may cooperate in the creation of other pathways or other projects in the future, the parties acknowledge and agree that this Project is unique and the terms of this MOU shall not create a binding precedent with respect to any future projects. i. Indemnity and Release. GAP and the City mutually agree to indemnify, defend and hold the other Party 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 in the performance of work on the Project. Each of the City or GAP shall be solely responsible for any contracts it enters into or other obligations or liabilities incurred by such party in connection with its respective role under this MOU and the Project. j. Nondiscrimination. The Parties agree that all hiring by the Parties of persons performing this Agreement shall be on the basis of merit and qualifications. The Parties will have a DocuSign Envelope ID: 1427862D-7F34-4DF9-8951-5653CC21E390 policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Parties 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 Parties shall be subject to and comply with Title VII of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. The Parties shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. k. Compliance with Laws. The Parties 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 non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. l. Nonwaiver. 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 condition or to pursue any available legal or equitable rights in the event of any subsequent default or breach. m. 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 Office of the City Attorney. n. 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. o. Counterparts. This Agreement may be executed in counterparts, which together constitute one instrument. By signing below, each Party agrees and acknowledges that this Memorandum of Understanding accurately reflects their mutual understanding, and that each of them agrees to be bound by the terms and conditions of this Memorandum of Understanding. DocuSign Envelope ID: 1427862D-7F34-4DF9-8951-5653CC21E390 THE CITY OF BOZEMAN GALLATIN ALLIANCE FOR PATHWAYS BY: __________________________ BY: _________________________ TITLE: _______________________ TITLE: ______________________ DATE:________________________ DATE: _______________________ Approved as to form: By: ________________________ City of Bozeman, City Attorney DocuSign Envelope ID: 1427862D-7F34-4DF9-8951-5653CC21E390 2/28/2022 Chair 2/28/2022 City Manager EXHIBIT A Conceptual Project Plan from Frontage Pathway TOP Application DocuSign Envelope ID: 1427862D-7F34-4DF9-8951-5653CC21E390 EXHIBIT B Estimated Project Costs from TOP Application DocuSign Envelope ID: 1427862D-7F34-4DF9-8951-5653CC21E390