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HomeMy WebLinkAbout24 - Construction Agreements - Bozeman Sports Park Foundation - Financeing and Construction of an Additional Turf Field Agreement with the Bozeman Sports Parks Foundation, Inc. for the Financing and Construction of an Additional Artificial Turf Field at the Bozeman Sports Park Page 1 of 6 Agreement between City of Bozeman and the Bozeman Sports Parks Foundation, Inc. for the Financing and Construction of an Additional Turf Field at the Bozeman Sports Park This Agreement between the City of Bozeman and the Bozeman Sports Parks Foundation, Inc. for the financing and construction of an additional multi-use rectangular synthetic turf field at the Bozeman Sports Parks (the “Agreement”) is entered into this ___ day of _______________, 2024, 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 “Foundation” and together with the City, the “Parties.” The Foundation and the City enter into this Agreement in consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged. As such, the Parties agree as follows: RECITALS The following recitals form the basis for the Parties’ intentions and as such are material to this Agreement. WHEREAS, the Foundation is a non-profit organization committed to enhancing recreational athletic opportunities for the citizens of Bozeman and is focused on continuing its long-standing commitment to the Bozeman Sports Park; and WHEREAS, the Parties have worked cooperatively to enhance the facilities at the Bozeman Sports Park and wish to continue to do so; and WHEREAS, the Parties agree an additional artificial turf field at the Sports Park will enhance recreational opportunities for the residents of the city of Bozeman and desire to enter into this Agreement to provide for each parties duties and responsibilities in the financing and construction of the additional field; and WHEREAS, the Parties represent that each has the power and authority to enter into this Agreement, and the experience and ability to fulfill its obligations under this Agreement. Section 1. – Purpose; term and effective date; termination; extension. 1.1 Purpose. The purpose of this Agreement is to establish the rights and obligations of the Parties to each other regarding the financing and construction of an additional Docusign Envelope ID: BD2F030D-B6B3-4AEC-939D-60F081957F6E 24th September Agreement with the Bozeman Sports Parks Foundation, Inc. for the Financing and Construction of an Additional Artificial Turf Field at the Bozeman Sports Park Page 2 of 6 artificial turf field at the Bozeman Sports Park (the “Field”). The Field is athletic field number 7, which is the third synthetic turf field at The Bozeman Sports Park. 1.2 Term/Effective Date. This Agreement is effective upon the date of its execution and will terminate upon completion of the Parties obligations under this Agreement. 1.3 Construction of the Field. The City shall be responsible for all aspects of designing and constructing the Field, including bidding and contracting. The City may retain an owner’s representative to assist it in its responsibilities. 1.4 In-Kind Contributions by the Foundation. The Foundation may offer the City in- kind contributions or donations of services or materials to be provided by the Foundation or by persons or entities for construction of the Field. Any such services or materials must be determined prior to the City bidding the construction of the Field and must be in sufficient detail on the type of service or material and the manner in which the same shall be made so as to allow the City and the City’s owner’s representative to include such in-kind contributions or donations in the City’s request for bids. Any such contribution or donation must be approved by the City. 1.5 Financing of the Field. (a) The Foundation agrees to pay for all costs and expenses associated with the construction of the Field. Before the City enters into contracts for Field construction, the Foundation must transfer $500,000.00 (five hundred thousand dollars and zero cents) to the City. The City shall use all such transferred funds solely for the purpose of constructing the Field. (b) The City shall initially pay for all costs of constructing the Field beyond the amount the Foundation transferred to the City in section 1.4(a), and which are necessary to complete the construction of the Field. In its sole discretion, the City will fund these additional costs out of its own funds or may seek financing. (c) The Foundation shall, within five (5) years of the execution of this Agreement, pay the City the total amount the City paid to complete construction of the Field. The Foundation must pay the City semi-annually, installment payments due on December 31st and June 30th, in 10 installments in an amount determined by the City to be the difference between the amount the Foundation provided the City under section 1.4(a), above, and the final cost of constructing the Field. The costs of construction shall include the following: (i) the costs of the City’s owner’s representative as provided below; (ii) all costs related to designing and bidding the construction of the Field; (iii) all costs of construction; (iv) and costs related to land use and building permitting. (d) The difference between the amount the Foundation provided the City under section 1.4(a), above, and the final cost of constructing the Field will be determined by the Docusign Envelope ID: BD2F030D-B6B3-4AEC-939D-60F081957F6E Agreement with the Bozeman Sports Parks Foundation, Inc. for the Financing and Construction of an Additional Artificial Turf Field at the Bozeman Sports Park Page 3 of 6 City at the time the City has received bids for construction of the Field and prior to the City entering into a contract for construction of the Field. The City will provide written notice to the Foundation’s Representative of this amount and the Foundation must provide the City a Promissory Note promising to pay this amount pursuant to the terms of subsection (c), above. The Foundation may pay this amount early without any penalty. Any such amounts outstanding are subject to an interest rate of 3.36% per annum. The Foundation specifically agrees failure of the Foundation to sign a promissory note in a form acceptable to the City is cause for the City to not enter into a construction agreement for the Field. Section 2. – Relationship of Parties; Representatives. 2.1 No Partnership or Agency. Neither Party shall be considered a partner or agent of the other Party, and this Agreement 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 cooperative effort between the City and Foundation does not create a separate legal entity and neither the Foundation nor the City shall have the right to bind the other Party vis a vis any third party. 2.2 Representatives. (a) City: The City’s Representative for the purpose of this Agreement shall be Mitch Overton (Parks and Recreation 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 Mitch Overton as 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, the Foundation may direct its communication or submission to other designated City personnel or agents as listed above and may receive approvals or authorization from such persons. (b) Foundation: The Foundation’s Representative for the purpose of this Agreement shall be Brad Yeomans (Board Chair) or such other individual as the Foundation shall designate in writing. Whenever direction to or communication with the Foundation is required by this Agreement, such direction or communication shall be directed to Foundation’s Representative; provided, however, that in exigent circumstances when Foundation’s Representative is not available, City may direct its direction or communication to other designated Foundation’s personnel or agents. Docusign Envelope ID: BD2F030D-B6B3-4AEC-939D-60F081957F6E Agreement with the Bozeman Sports Parks Foundation, Inc. for the Financing and Construction of an Additional Artificial Turf Field at the Bozeman Sports Park Page 4 of 6 (c) Notices. All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. Section 3. – Ownership; Improvements. 3.1 Ownership; Prohibition on Liens. The improvements related to construction of the Field shall become the property of the City. Section 4. – Miscellaneous. 4.1 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. 4.2 Limitation on Damages. Neither Party shall be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost revenues damages of any nature arising, or claimed to have arisen, as a result of the termination. If events occurring resulting in a delay of the City’s construction of the Field, the Foundation specifically agrees it will not seek any remedy against the City under law or equity for such delay. 4.3 Severability. If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 4.4 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. 4.5 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.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 Docusign Envelope ID: BD2F030D-B6B3-4AEC-939D-60F081957F6E Agreement with the Bozeman Sports Parks Foundation, Inc. for the Financing and Construction of an Additional Artificial Turf Field at the Bozeman Sports Park Page 5 of 6 of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 4.6 Binding Effect. This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the Parties. 4.7 Nondiscrimination and Equal Pay. The Foundation agrees that the hiring by Foundation of persons performing this Agreement shall be on the basis of merit and qualifications. The Foundation will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Foundation 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 Foundation 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. Foundation 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). Foundation must report to the City any violations of the Montana Equal Pay Act that Foundation has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Foundation shall require these nondiscrimination terms of any of its subcontractors providing services under this Agreement. 4.8 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 enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 4.9 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. 4.10 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. Docusign Envelope ID: BD2F030D-B6B3-4AEC-939D-60F081957F6E Agreement with the Bozeman Sports Parks Foundation, Inc. for the Financing and Construction of an Additional Artificial Turf Field at the Bozeman Sports Park Page 6 of 6 4.11 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. 4.12 Counterparts. This Agreement may be executed in counterparts, which together constitute one instrument. 4.13 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. 4.14 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: _____________________________ Chuck Winn, Interim City Manager Print Name: ____________________ Title: __________________________ APPROVED AS TO FORM: By: ________________________________ Greg Sullivan, City Attorney Docusign Envelope ID: BD2F030D-B6B3-4AEC-939D-60F081957F6E Brad Yeomans Board ChairJon Henderson Assistant City Manager XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Docusign Envelope ID: BD2F030D-B6B3-4AEC-939D-60F081957F6E