Loading...
HomeMy WebLinkAboutCOB-SPF agreement FINAL 1-27-15 Agreement between City of Bozeman and the Bozeman Sports Parks Foundation, Inc. for the Bozeman Sports Park This Agreement between the City of Bozeman and the Bozeman Sports Park Foundation, Inc. for the development of the Bozeman Sports Park (the “Agreement”) is entered into this ___ day of _______________, 2015, 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, a Montana 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. 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, open spaces, and multi-use recreation fields and facilities (the “TOP Bond Fund”). The Sports Park Committee applied for funding from the TOP Bond Fund for the acquisition and development of the Bozeman Sports Park (the “Sports Park”). The Bozeman City Commission approved the conceptual plan and authorized up to $7,500,000 (seven million five hundred thousand dollars) of funding from the TOP Bond Fund to develop the Sports Park with Resolution No. 4521 (attached as Exhibit A) on April 7, 2014. The Foundation was incorporated on October 20, 2014 as a Montana nonprofit corporation. The Foundation desires to accept responsibility for compliance with the financial contribution obligations offered to the City by the Sports Park Committee and required of the Sports Park Committee by the Bozeman City Commission at a hearing on the application held on April 7, 2014 and the Parties recognize such offering of financial contribution was inducement for the City to approve Resolution 4521 and authorize the levels of funding from the TOP Bond Fund contained therein. The Foundation represents it has the power and authority to enter into this Agreement, and the experience and ability to fulfill its obligations under this Agreement. Commission Resolution No. 4521 states that City funding is contingent on the City and the Foundation entering into a binding agreement describing the financial and in-kind contributions proposed in the Sports Park Committee’s funding application and as addressed in the Commission’s motion on April 7, 2014, to be approved by the City Commission prior to the expenditure of any funds as stated in section one of Resolution No. 4521. The City and the Foundation envision a public-private collaboration in which the Parties work together to achieve the project goals described in Resolution No. 4521. The City has acquired the +/- 80 acre parcel of land described in Resolution No. 4521, which has been designated as open space land for purposes of compliance with the Open Space Land and Voluntary Conservation Easement Act (Title 76, Chpt. 6, MCA). Purpose: The Parties intend to work together in a collaborative manner on the planning and development of the Park Project, which will allow the Park Project to benefit from the Parties’ respective expertise and skills. The purposes of this Agreement are to (a) fulfill the requirements of Commission Resolution No. 4521, (b) establish the rights and obligations of the Parties to each other regarding the financing, design, development and construction of Phase 1 of the Bozeman Sports Park (the “Park Project”), and (c) to provide the framework for the City and Foundation to cooperate as the City plans and develops the Park Project. The Parties contemplate continued cooperation between them as the City plans for and develops future phases of the Sports Park beyond the scope of what has been currently funded by the TOP Bond Fund and what has been pledged by the Foundation as its contribution to the Park Project as described in Section 6. Such future cooperation will be memorialized in separate agreement(s). Nothing herein provides or guarantees the Foundation any right, title, or interest to the Sports Park Property or provides the Foundation any right of decision making regarding planning, development, or future use of the Sports Park. To facilitate collaboration between the Parties, each Party will endeavor to give the other Party a reasonable opportunity to attend and participate in, and the Parties will endeavor to attend, the organizations’ meetings at which the Park Project is to be discussed. General Description of Sports Park Project: The general goals of the Park Project are to create a public recreational and athletic complex on the Sports Park as described in Resolution 4521. Term/Effective Date: This Agreement is effective upon the date of its execution and will terminate once the Parties’ obligations under this Agreement are fulfilled, unless earlier terminated as provided herein. 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. The purpose of the collaboration is to work together to complete the Sports Park and achieve the Parties’ common goals as stated in the Recitals above. Foundation Contribution: For the Park Project, the Foundation must contribute to the City as the City develops the Park Project, the equivalent of $976,100 (nine hundred seventy six thousand, one hundred dollars) through either direct cash contributions, in-kind contributions, or a combination thereof (hereinafter referred to as the “Foundation Contribution”). The Foundation Contribution will be applied to the physical development of athletic fields and associated Sports Park amenities. If any portion of the Foundation Contribution is subject to a donor-imposed restriction regarding use, the Foundation will promptly inform City’s Representative of the restriction. If such donor-restricted donation pertains to a feature or amenity that is not included in the approved Master Plan, the Foundation will obtain the City’s consent to the restriction prior to acceptance of the donation, such consent not to be unreasonably withheld. As the Park Project progresses, this Agreement may be amended from time to time to reflect in greater detail the form, manner and timing of the Foundation’s contributions to the Park Project. For in-kind contributions: at a time and in a manner determined by the City but no later than the awarding of construction bids for any portion of the Park Project, the Foundation shall provide the City detailed information regarding in-kind (non-cash) contributions it will seek to include as part of the Foundation Contribution, be it the provision of services, improvements, appurtenances, discounts on goods or equipment, or the transfer to the City of personal property. Whether and to what extent in-kind contributions will count toward the Foundation Contribution will be finally determined by the City. At any time, the City may require the Foundation provide the City invoices and such other documentation sufficient to evidence to the City’s satisfaction the value of the in-kind contribution. Where the value of the in-kind contribution is not readily ascertainable, the Foundation’s contribution will be at the rates established in the then-current Bureau of Labor Statistics Schedule of Occupational and Employment Wage Estimates for the State of Montana (available at http://www.bls.gov/oes/current/oes_mt.htm#47-0000) or as otherwise mutually agreed by the Parties. The Foundation must provide insurance, including worker’s compensation coverage, for any volunteer the Foundation seeks to count toward its in-kind contribution. Any professional service providers, vendors or contractors who have agreed to provide a lower price as part of the Foundation match will be required to comply with all applicable City and State procurement regulations. For cash contributions: at a time and in a manner determined by the City but no later than the award of construction bids for the Park Project, the Foundation shall: 1) transfer such cash to the City; 2) provide documentation to the City as to the manner and timing of transferring such cash to City; or 3) pay invoices directly, or a combination thereof. Cash donations received by the Foundation as part of its fundraising campaign will be held by the Foundation prior to disbursement of such funds on an as-needed basis for design and construction of the Park Project pursuant to the terms of this Agreement. The Parties expect that at least 50% of the Foundation Contribution will be available for disbursement to the City no later than June 30, 2015, with the remainder of the Foundation Contribution available no later than June 30, 2016. The City may proceed with awarding the construction contract based on the amount of funds available at the time of award. If the Foundation has not raised the full Foundation Contribution by or before June 30, 2016, the City Commission may grant an extension by amendment to this Agreement. The Foundation will use reasonable, good faith efforts to raise private funds in an amount sufficient to at least equal the Foundation Contribution, and will provide regular updates on the progress of the fundraising efforts to the City. The Foundation recognizes the City Commission may, in its sole discretion, adjust the funding authorized in Resolution 4521. Ownership/Warranties/Administration: The City will own all improvements and appurtenances made to or upon the Sports Park from the Foundation Contribution and all personal property approved by the City to be counted toward the Financial Contribution. The City may require the Foundation to provide bills of sale evidencing such transfer. Warranties on any equipment contributed to or installed upon the Sports Park as part of the Foundation Contribution must be assigned to the City. Upon completion of the Park Project, the Sports Park will be open to the general public for use pursuant to City policies. The Sports Park will be managed and maintained by the City. The City may, in its sole discretion, enter into a separate agreement with the Foundation for the management of field allocation, facility scheduling and user group coordination. Sports Park Master Plan: The City will work cooperatively with the Foundation as the City develops and performs the process to develop a Master Plan for the Sports Park to ensure that the Foundation’s input into the design features of the Park Project is sought and considered by the City. This planning process will follow the guidelines established by the City. The initial conceptual Sports Park plan that will form the basis for the master planning process will incorporate the preliminary design as provided for in the Sports Park Committee’s application and as further refined by the Sports Park Committee and will be modified by the City to reflect the various rights of way that will be required for off-site infrastructure, utility connections, and the provision of water for irrigation. Following review by the City’s Development Review Committee, the City Commission shall have sole discretion in approving the final Sports Park Master Plan. The Foundation understands and agrees certain features of the preliminary design as approved with Resolution 4521 may not be included in the final approved Sports Park Master Plan depending on factors including but not limited to the planning process and whether the Foundation’s Contribution is sufficient to cover the costs of including such features. The City will continue to coordinate with the Foundation and its associated sub-committees throughout the planning process. Additional Documentation: The Foundation agrees to provide documentation as the City may reasonably request demonstrating the Foundation’s compliance with this Agreement and with applicable provisions of federal, state, and local law. Design and Construction: To facilitate collaboration between the Parties, the Parties agree to hold and attend regular status meetings during design and construction of the Park Project. The Parties anticipate the Foundation will participate in the design, construction bidding, and award process as appropriate. Upon approval by the Bozeman City Commission of the Sports Park Master Plan, the City shall in a time and manner as determined by the City, contract for design and engineering of various aspects of the Park Project and shall be the contracting entity for all construction activities of the Sports Park except as may be approved in writing by the City’s Representative, and subject to applicable City regulations and requirements. If the City authorizes the Foundation to contract for or provide as part of the Foundation Contribution design, engineering, construction, or other work pursuant to the Sports Park Master Plan, the Foundation shall comply with the City’s required procurement processes for the bidding and awarding of public works contracts and the City’s customary risk management requirements (such as indemnification and the provision of insurance naming the City as an additional insured). In any work on the Sports Park under this section, the Foundation will be authorized to proceed with such work only through addendum to this Agreement and approval of a separate License Agreement with the City allowing the Foundation to perform work on City property. Naming Rights; Sponsorship; Recognition of Donors: The Parties will work together to formulate standards and criteria for naming rights, sponsorship, and other recognition of donors to the Foundation’s fundraising campaign, subject to approval of such standards and criteria by the Bozeman City Commission. Representatives: 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. The Foundation’s Representative for the purpose of this Agreement shall be ________________ 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. Indemnity and Release: 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 its work on the Sports Park. 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 this Agreement and the Sports Park. The indemnification requirements of this Section shall survive the Term of this Agreement. 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. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. Applicable Law: The Parties agree that this Agreement is governed in all respects by the laws of the State of Montana. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the Parties. Press Releases; Publicity; Events: The Foundation agrees to provide the City a reasonable opportunity to participate in any significant public outreach or publicity events relating to the Park Project, including in the advertising materials for such events, in order to reflect the cooperative nature of the Park Project. 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. The Foundation shall make clear at such events and in its written materials advertising such events that it represents the interests of the Foundation only, and not that of the City or the Parks Department. Nondiscrimination: 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 Parties 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. The Foundation shall require these nondiscrimination terms of its contractors, agents, or sub-contractors providing services under this Agreement. 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. 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 City Attorney. 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. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 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. Extensions: This Agreement may, upon mutual agreement of the Parties in writing, be extended to include future phases of development beyond Phase I. IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN By________________________________ (signature) Print name: __________________ _______ Title: ______________________________ BOZEMAN SPORTS PARKS FOUNDATION, INC. By________________________________ (signature) Print name: ___________________ ______ Title: ______________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney EXHIBIT A Bozeman City Commission Resolution No. 4521