HomeMy WebLinkAbout22- Grant Agreement - El Mercadito - Reimbursement for Infrastructure UpgradesEl Mercadito, 511 W. Mendenhall, Midtown TIF Assistance Grant Agreement, 2022
MIDTOWN TIF ASSISTANCE PROGRAM
GRANT AGREEMENT
THIS GRANT AGREEMENT is made and entered into this ____ day of __________, 202__ 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 El Mercadito located at 7710
Shedhorn Drive Unit D, 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 December 16, 2019, the Bozeman City Commission adopted Resolution No. 5087
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 tenant of the former Charter Communications building, which is being
remodeled as the future home of El Mercadito and connected to upgraded electrical
infrastructure (the “Project”) to be located at 511 W. Mendenhall St, Bozeman, MT; and
WHEREAS, Grantee presented a request to the Board for a grant of up to $50,000 to be used as
reimbursement toward the actual cost electrical service lines to the property; and
WHEREAS, on September 3, 2020 the Bozeman Midtown Urban Renewal Board approved the
grant request in the amount of up to $50,000 (“grant award”) documented in the minutes of
the September 3, 2020 meeting; and
WHEREAS, El Mercadito completed the electrical infrastructure upgrade on in February 2021
for $26,704.
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213September
El Mercadito, 511 W. Mendenhall, Midtown TIF Assistance Grant Agreement, 2022
THE PARTIES AGREE:
1. The Grant. The City, through the Board, will grant and release to Grantee a sum of
twenty six thousand seven hundred four dollars ($26,704) (the “Grant”) pursuant to the
payment terms in Section 3.
2. Use of Grant Funds/Reimbursement.
a. Grant funds will be used by Grantee for the purposes as identified in the
Grantee’s grant application, which is incorporated by reference herein, and only
for the purposes of reimbursing the grantee for the costs of designing,
engineering, and constructing an upgraded electrical service connection.
b. Grant funds must be used prior to June 30, 2023. Any funds not disbursed to the
Grantee within that time will remain in the District fund.
c. Use of TIF assistance funds must be in compliance with the terms of this Grant
Agreement.
3. Payment of Grant Funds
The Grant payment will be applied toward reimbursing the cost of improving
utility lines, unless the Board reasonably determines, in its sole discretion,
Grantee has failed to meet its obligations pursuant to sections 2, 4, 5, 9, or 10 of
this Agreement.
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 5087 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
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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.
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, Urban Renewal Program Manager, 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
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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 Nora Jauregui, Owner, 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
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
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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
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. Nondiscrimination and Equal Pay. 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
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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 represents it is, and for the term of this Agreement will be, in compliance with
the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana
Equal Pay Act). Grantee must report to the City any violations of the Montana Equal Pay
Act that Contractor has been found guilty of within 60 days of such finding for violations
occurring during the term of this Agreement.
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.
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.
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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.
20. Consent to Electronic Signatures. The Parties have consented to execute this
instrument electronically in conformance with the Montana Uniform Electronic
Transactions Act, Title 30, Chapter 18, Part 1, MCA.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written or as recorded in an electronic signature.
CITY OF BOZEMAN, MONTANA El Mercadito
By By
Jeff Mihelich, City Manager
Print Name:
Print Title:
APPROVED AS TO FORM:
By:
Greg Sullivan, Bozeman City Attorney
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Nora Jauregui
Owner
El Mercadito, 511 W. Mendenhall, Midtown TIF Assistance Grant Agreement, 2022
EXHIBIT A
CITY OF BOZEMAN RESOLUTION 5087
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