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HomeMy WebLinkAbout24 - General Services - Bozeman Sports Park Foundation - Management, Operation and Use of the Bozeman Sports ParCity – Bozeman Sports Park Foundation Termination Agreement -1- TERMINATION AGREEMENT BETWEEN THE CITY OF BOZEMAN AND THE BOZEMAN SPORTS PARKS FOUNDSATION, INC. This Termination Agreement (“Termination Agreement”) to terminate the Agreement between the City of Bozeman and the Bozeman Sports Parks Foundation, Inc. for the Management, Operation and Use of the Bozeman Sports Park (“Original Agreement”) is entered into on this ____ day of _______, 2023, between the City of Bozeman, Montana, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and the Bozeman Sports Parks Foundation, Inc. a Montana 501(c)(3) nonprofit corporation, with a mailing address of PO Box 1126, Bozeman, MT 59771, hereinafter referred to as a “Foundation” and together with the City, the “Parties.” RECITALS The following recitals form the basis for the Parties’ intentions and as such are material to this Termination Agreement. WHEREAS, the Foundation was incorporated on October 20, 2014 as a Montana nonprofit corporation for the purposes of securing additional private and philanthropic support for the development of the Bozeman Sports Park and Bronken Field (collectively, the “Sports Parks”) and for the long-term management of the Sports Parks; and WHEREAS, on June 15, 2018, the Parties entered into the Original Agreement for regarding the management, operation, use, and maintenance of the Sports Parks attached hereto as Exhibit A including, but not limited to, scheduling field and facilities use, managing vendor relationships, collecting and managing user fees, and maintenance and repair; and WHEREAS, the Parties represent that each has the power and authority to enter into this Termination Agreement. In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose. The purpose of this Termination Agreement is to terminate the Original Agreement between the Parties that became effective on June 15, 2018, for the management, operation, use, and maintenance of the Sports Park. The Original Agreement is attached as Exhibit A and incorporated into this Termination Agreement. 2. Effective Date. This Termination Agreement is effective on June 15, 2023. 3. Mutual Termination. Unless otherwise specifically established in this Termination Agreement, the Parties mutually agree and consent to the termination of the Original DocuSign Envelope ID: F9666D90-1CD8-4288-A37D-10596F047064 27 June Docusign Envelope ID: C99083C1-63FA-4DB2-B669-575E959EB4B3 City – Bozeman Sports Park Foundation Termination Agreement -2- Agreement, resulting in the discharge of all remaining duties, obligations, and functions set forth in the Agreement. 4. Mutual Termination of Debt Repayment Agreement. As required by Section 3 of the Debt Repayment Agreement, attached as Exhibit B, and as further described in Section 1.2 of the Original Agreement, the Parties mutually agree to terminate the remaining duties, obligations, and functions established by the Debt Repayment Agreement. 5. Indemnity and Release. The Indemnity and Release provision, found in Section 8 of the Original Agreement, survives this Termination Agreement. 5.1 The Foundation agrees to indemnify, defend, and hold the City 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 by the Foundation or its officers, employees, or agents in the performance of the Original Agreement. 5.2 Unless otherwise agreed to in writing, both the City and Foundation shall be solely responsible for any contracts they enter into or other obligations or liabilities incurred by such party in connection with their respective roles under the Original Agreement and the Sports Parks. 5.3 The indemnification requirements of this Section shall survive the termination of this Agreement. 5.4 The Foundation’s indemnification obligations under this Section shall be without regard to and without any right to contribution from any insurance maintained by the City. 6. Transfer of Personal Property, Trade Fixtures, and Warranties. In consideration for the transfer of personal property, trade fixtures, and warranties, the City agrees to pay the Foundation a lump sum of one dollar ($1.00) for the purchase of all personal property and trade fixtures, including the equipment and inventory listed in attached Exhibit C. This Termination Agreement hereby transfers the above personal property to the City. The Foundation further agrees to assign and transfer to the City all of the Foundation’s right, title and interest in, to and under, any express or implied warranties associated with the personal property and trade fixtures. The Foundation agrees to complete any documentation that may be required by the warrantor(s) in order to legally transfer and assign any and all warranties to the City. The Foundation agrees to pay the cost of any fee required to transfer any warranty. DocuSign Envelope ID: F9666D90-1CD8-4288-A37D-10596F047064Docusign Envelope ID: C99083C1-63FA-4DB2-B669-575E959EB4B3 City – Bozeman Sports Park Foundation Termination Agreement -3- 7. Transfer of Funds. In the event the Foundation receives any funds or payments from Sports Park user groups, it agrees to transfer the monies already received by the Foundation to the City on or by June 30, 2023. The Foundation’s duty to transfer user group payments received by the Foundation after the date of this Termination Agreement continues until all such payments have been transferred to the City. 8. Surrender of the Premises. The Foundation agrees to relinquish all keys and key codes to the City no later than the effective date. Upon relinquishing keys and surrendering the Sports Park, the Foundation agrees that all fixtures and improvements must remain on the premises. 9. Miscellaneous. 9.1 Modification and Assignability. This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Foundation may not assign its rights or obligations under this Agreement without the prior written consent of the City Commission. Any assignee will be bound by all of the terms and conditions of this Agreement. 9.2 Severability. If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 9.3 Applicable Law; Venue. The Parties agree that this Agreement is governed in all respects by the laws of the State of Montana. The Parties agree to personal jurisdiction in the courts of Gallatin County, Montana. 9.4 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. 9.5 Binding Effect. This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the Parties. 9.6 Non-Waiver. A waiver by either Party of any default or breach by the other Party of any terms of conditions of this Agreement does not limit the other Party’s right to DocuSign Envelope ID: F9666D90-1CD8-4288-A37D-10596F047064Docusign Envelope ID: C99083C1-63FA-4DB2-B669-575E959EB4B3 City – Bozeman Sports Park Foundation Termination Agreement -4- enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 9.7 Notice. Any notice required or permitted under this Agreement shall be deemed sufficiently given or served if sent by email with read-receipt requested or by United States certified mail, return receipt requested. 9.8 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 City Attorney. 9.9 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. 9.10 Counterparts. This Agreement may be executed in counterparts, which together constitute one instrument. 9.11 Integration. This Agreement and all exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained therein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 9.12 Consent to Electronic Signatures. The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. CITY OF BOZEMAN BOZEMAN SPORTS PARKS FOUNDATION, INC. By: ________________________________ By: _____________________________ Jeff Mihelich, City Manager Print Name: ____________________ DocuSign Envelope ID: F9666D90-1CD8-4288-A37D-10596F047064 Brad Yeomans Docusign Envelope ID: C99083C1-63FA-4DB2-B669-575E959EB4B3 XXXXXXXXXXXXXXXXXXXXXXXXXXX Jon Henderson Assistant City Manager City – Bozeman Sports Park Foundation Termination Agreement -5- APPROVED AS TO FORM: By: ________________________________ Greg Sullivan, City Attorney DocuSign Envelope ID: F9666D90-1CD8-4288-A37D-10596F047064Docusign Envelope ID: C99083C1-63FA-4DB2-B669-575E959EB4B3