HomeMy WebLinkAbout06-04-18 City Commission Packet Materials - C6. PSA with BendonAdams for NCOD and Historic Preservation Program1
REPORT TO: Mayor and City Commission
FROM: Phillipe Gonzalez, Historic Preservation Specialist
Chris Saunders, Policy and Planning Manager
Martin Matsen, Director of Community Development
SUBJECT: Approval of professional services agreement in the amount of $66,525 with
BendonAdams for a comprehensive review of the NCOD and Historic
Preservation Program and authorization for the City Manager to sign the
agreement on behalf of the City.
MEETING DATE: June 4, 2018
AGENDA ITEM TYPE: Consent
RECOMMENDATION: That the City Commission approve the professional services agreement with
BendonAdams and authorize the City Manager to sign the agreement on behalf of the City.
BACKGROUND: The City Commission funded an evaluation of the NCOD to search for
recommendations to the NCOD and Historic Preservation Program.
A standard professional services agreement was executed by the contractor. The signed document and
required insurance certificate are provided.
UNRESOLVED ISSUES: None determined at this time.
ALTERNATIVES: As determined by the Commission.
FISCAL EFFECTS: Contract cost of $66,525 is within the amount funded in the 2019 fiscal year
budget.
Attachment: Professional Services Agreement
Report compiled on May 21, 2018
Commission Memorandum
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PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this _____ day of ____________, 201__, by and 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, BendonAdams LLC;
300 So. Springs St. hereinafter referred to as “Contractor.”
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: City agrees to enter this Agreement with Contractor to perform for City services
described in the Scope of Services attached hereto as Attachment “A” and by this reference made a part
hereof.
2. Term/Effective Date: This Agreement is effective upon the date of its execution and will
terminate on the 28th day of February, 2019.
3. Scope of Work: Contractor will perform the work and provide the services in accordance with the
requirements of the Scope of Services, Exhibit A. For conflicts between this Agreement and the Scope of
Services, unless specifically provided otherwise, the Agreement governs.
4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services. Any
alteration or deviation from the described services that involves additional costs above the Agreement
amount will be performed by Contractor after written request by the City, and will become an additional
charge over and above the amount listed in the Scope of Services. The City must agree in writing upon
any additional charges.
5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the
following representations:
a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope
of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and
regulations that in any manner may affect cost, progress or performance of the Scope of Services.
b. Contractor represents and warrants to City that it has the experience and ability to
perform the services required by this Agreement; that it will perform said services in a professional,
competent and timely manner and with diligence and skill; that it has the power to enter into and
perform this Agreement and grant the rights granted in it; and that its performance of this Agreement
shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark,
privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state
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and municipal laws. The City will not determine or exercise control as to general procedures or formats
necessary to have these services meet this warranty.
6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an
independent contractor for purposes of this Agreement and is not to be considered an employee of the
City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies
handbook and may not be considered a City employee for workers’ compensation or any other purpose.
Contractor is not authorized to represent the City or otherwise bind the City in any dealings between
Contractor and any third parties.
Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39,
Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor
shall maintain workers’ compensation coverage for all members and employees of Contractor’s business,
except for those members who are exempted by law.
Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’
compensation coverage by an insurer licensed and authorized to provide workers’ compensation
insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law
for independent contractors.
Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs,
expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor
problems or disputes or any delays or stoppages of work associated with such problems or disputes and
for any claims regarding underpaid prevailing wages.
7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the
fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the
City, its agents, representatives, employees, and officers (collectively referred to for purposes of this
Section as the City) from and against any and all claims, demands, actions, fees and costs (including
attorney’s fees and the costs and fees of and expert witness and consultants), losses, expenses, liabilities
(including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or
nature connected therewith and without limit and without regard to the cause or causes thereof or the
negligence of any party or parties that may be asserted against, recovered from or suffered by the City
occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent,
reckless, or intentional misconduct of the Contractor; (ii) any negligent, reckless, or intentional
misconduct of any of the Contractor’s agents.
For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to
indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses,
including reasonable defense attorney fees, to the extent caused by the negligence or willful misconduct
of the Contractor or Contractor’s agents or employees.
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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).
Contractor’s indemnity 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 the Contractor to assert its
right to defense or indemnification under this Agreement or under the Contractor’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 the Contractor 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 Agreement,
the City may elect to represent itself and incur all costs and expenses of suit.
Contractor 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 Agreement except
“responsibility for his own fraud, for willful 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 Agreement and the services performed hereunder.
In addition to and independent from the above, Contractor shall at Contractor’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 the
Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically
assumed by the Contractor in subsection (a) of 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 and which is acceptable to the City and Contractor shall furnish to the City an
accompanying certificate of insurance and accompanying endorsements 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;
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Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000 annual aggregate;
and
Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate.
The above amounts shall be exclusive of defense costs. 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
both the Commercial General and Automobile Liability policies. The insurance and required
endorsements must be in a form suitable to City and shall include no less than a sixty (60) day notice of
cancellation or non-renewal. The City must approve all insurance coverage and endorsements prior to the
Contractor commencing work. Contractor shall notify City within two (2) business days of Contractor’s
receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to
terminate any required insurance coverage for any reason.
The City must approve all insurance coverage and endorsements prior to the Contractor commencing
work.
8. Termination for Contractor’s Fault:
If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its
obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the
City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or
any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the
work and complete it, either with its own resources or by re-letting the contract to any other third party.
In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for
those services Contractor actually rendered.
Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City
may be entitled under the law or at equity.
In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled 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 arising, or claimed to have
arisen, as a result of the termination.
9. Termination for City’s Convenience:
a. Should conditions arise which, in the sole opinion and discretion of the City, make it
advisable to the City to cease performance under this Agreement City may terminate this Agreement by
written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be
effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without
prejudice to any claims that the City may otherwise have against Contractor.
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b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise
directed in the Notice, the Contractor shall immediately cease performance under this Agreement and
make every reasonable effort to refrain from continuing work, incurring additional expenses or costs
under this Agreement and shall immediately cancel all existing orders or contracts upon terms
satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and
maintain work already completed or immediately in progress.
c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment
only for those services Contractor actually rendered on or before the receipt of the Notice of Termination
for City’s Convenience.
d. The compensation described in Section 9(c) is the sole compensation due to Contractor
for its performance of this Agreement. Contractor shall, under no circumstances, be entitled 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 arising, or claimed to have arisen, as a
result of the termination.
10. Limitation on Contractor’s Damages; Time for Asserting Claim:
a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s
damages shall be limited to contract damages and Contractor 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 Contractor wants to assert a claim for damages of any kind or nature,
Contractor 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 thirty (30) days of
the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice,
Contractor shall waive all rights to assert such claim.
11. Representatives:
a. City’s Representative: The City’s Representative for the purpose of this Agreement shall
be Chris Saunders 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 Chris Saunders 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, Contractor 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.
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b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement
shall be Sara Adams or such other individual as Contractor shall designate in writing. Whenever direction
to or communication with Contractor is required by this Agreement, such direction or communication
shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when
Contractor’s Representative is not available, City may direct its direction or communication to other
designated Contractor personnel or agents.
12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules,
and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and
inspections from applicable governmental authorities, and pay all fees and charges in connection
therewith.
13 Laws and Regulations: Contractor 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.
14. Nondiscrimination: The Contractor agrees that all hiring by Contractor of persons performing this
Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide
equal employment opportunity in accordance with all applicable state and federal anti-discrimination
laws, regulations, and contracts. The Contractor 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 Contractor 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 Contractor
shall require these nondiscrimination terms of its sub-Contractors providing services under this
agreement.
15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit
or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or
agent engaged in services to the City under this Agreement while on City property or in the performance
of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its
responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing
anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request
proof of such compliance and Contractor shall be obligated to furnish such proof.
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The Contractor shall be responsible for instructing and training the Contractor's employees and agents in
proper and specified work methods and procedures. The Contractor shall provide continuous inspection
and supervision of the work performed. The Contractor is responsible for instructing his employees and
agents in safe work practices.
16. Modification and Assignability: This Agreement may not be enlarged, modified or altered except
by written agreement signed by both parties hereto. The Contractor may not subcontract or assign
Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior
written consent of City. Any subcontractor or assignee will be bound by all of the terms and conditions of
this Agreement.
17. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide
documentation as requested by the City demonstrating Contractor’s compliance with the requirements
of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City
to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies
distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all
applicable provisions of federal, state, and local law. The Contractor shall not issue any statements,
releases or information for public dissemination without prior approval of the City.
18. Non-Waiver: A waiver by either party 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.
19. Attorney’s Fees and Costs: That 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.
20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate
employee withholdings.
21. 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.
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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.
22. Survival: Contractor’s indemnification shall survive the termination or expiration of this
Agreement for the maximum period allowed under applicable law.
23. Headings: The headings used in this Agreement are for convenience only and are not be
construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to
which they refer.
24. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance
thereof shall continue in effect.
25. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of
the State of Montana.
26. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal
representatives, successors, and assigns of the parties.
27. 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.
28. Counterparts: This Agreement may be executed in counterparts, which together constitute one
instrument.
29. 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.
30. Extensions: This Agreement may, upon mutual agreement, be extended for a period of one
year by written agreement of the Parties. In no case, however, may this Agreement run longer than March
31, 2019.
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EXHIBIT A – SCOPE OF SERVICES
The purpose of the NCOD Update project is to evaluate the need for alternatives to the current
Neighborhood Conservation Overlay District based on previous studies of the overlay districts as well as
review alternatives to the current Historic Preservation program. These recommendations will be clearly
defined and specific as to be implemented by staff. Additional work will include metrics for defining the
success of the recommendations if they are implemented and will be based on “best practices”.
Tasks
Below is the anticipated list of tasks with detailed descriptions, assumptions, and expected work
products. As the project proceeds, adjustments to the order and/ or details of tasks and products may be
necessary. Such changes shall be agreed upon by both parties in writing.
Over the course of the project, we would schedule project management check-in calls every two weeks
with the City’s project manager. This will help the consultant team and the City stay abreast of any
current issues and facilitate the flow of information.
Task 1 – Project Initiation & Management
1.1: Project Kick-Off Meeting with Staff (June)
To begin the project, BendonAdams and Orion Planning & Design will meet with City of Bozeman
Community Development staff remotely to review and finalize methodology, review and finalize
stakeholder groups, review and finalize all relevant documents concerning the NCOD project and develop
a comprehensive Outreach Plan with tentative scheduling and all relevant information.
1.2: Background Analysis
In addition to providing various contributing documents, GIS data, relevant plans, and previous
community feedback concerning the NCOD, staff will provide approximately 20 infill projects, demolition
and redevelopment and addition projects within the NCOD, illustrating the perceived successes and
failures of the NCOD. Additionally the City of Bozeman will provide surveys of Community Development
staff’s opinions regarding the NCOD and its role as a planning tool.
1.3: Outreach & Community Plan
Working with staff to complete a Community Outreach Plan (COP), specific items within the COP will
include:
Meeting & Event Schedules
Activity Maps
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Staff Expectations
Projected Materials
Survey Page Development
Brand Tool Kit
Deliverables
Feedback Loops
Windshield Survey Development
Survey Page/ Media Release
1.4: Preliminary Schedule of Events and Due Dates:
Event Date/ Time
Project Kick-Off: Meeting with Staff Monday, June 4, 2018
Visit #1 Monday, July 9, 2018
Visit #2 Monday, July 23, 2018
Findings and Draft Report Due Monday, August 20, 2018
Visit # 3 Monday, September 17, 2018
Final Report Due Monday, December 3, 2018
Visit #4, City Commission Presentation Monday, October 15, 2018
Final Report Changes Monday, December 3, 2018
Deliverables Due Monday, January 7, 2019
Close Out of Contract Monday, February 4, 2019
*Exact dates and number of site visits are subject to change as agreed to by both parties.
Task 2 – Public Engagement
The Public Engagement Process will include a total of 3 visits to the City of Bozeman By BendonAdams
and Orion Planning & Design to conduct various public engagement events from small stakeholder
meetings to large venue open to the general public. The first and second visit will be diagnostic based
seeking to inform and receive feedback, completing the initial public engagement process.
Visit #1
The initial visit by consultant staff will include meetings with City of Bozeman Community Development
staff, a tour of the NCOD and all historic districts, small group meetings with stakeholders groups and
neighborhood coordinators. This visit will serve as a pulse check regarding the state of the NCOD and
citizens opinions and beliefs surrounding it.
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Visit #2
The second visit by the consulting staff will include a large scale neighborhood survey comprised of staff
and volunteers and one public open house. This visit will be focus on collecting data regarding the NCOD
and hosting a large event to publicize the project and receive general feedback.
Task 3 – Findings & Draft Report
As a result of public and staff input, a draft will be provided with recommendations regarding alternatives
to the NCOD (if needed), available metrics to measure success of alternatives and recommendations for a
self-sufficient Historic Preservation Program.
Draft report will contain actionable plans that can easily and readily be implemented by staff and city
commission.
Draft report will contain a determination whether design guidelines or additional regulation is
necessary alongside NCOD alternatives.
Draft will be completed with a feedback Loop from previous phases.
Visit #3
Initial draft will be presented to Staff, other stakeholder groups. An additional large meeting will be
provided to showcase consultant findings, and receive public feedback.
Task 4 – Final Report
Visit #4
4.1 Final Report
The final report will reflect input received during Task 1-3 and will be presented at one public meeting
before the city commission. The public will be notified of the meeting and have access to related
documents through the city’s website. Media outlets will be notified well in advance.
4.2 Final Report Changes
Any changes made during the final public hearing will be incorporated into the document, and the final
report will be delivered to the city prior to the closure of the contract.
Deliverables
BendonAdams and Orion Planning & Design acknowledge that two hard copies and a PDF version of all
preliminary and final drafts will be provided to City planning staff, that all documents will be provided at
least 14 working days prior to any public hearing or meeting with the City Commission in an electronic
format, ADA accessible, approved by the City; and that all work submitted will become property of the
City of Bozeman.
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EXHIBIT B – COST
The budget by task is shown below in Table 1. The total project cost is estimated not to exceed $66,525.
Costs include all labor, travel, and additional expenses. BendonAdams invoices monthly with payment
due within 30 days unless negotiated otherwise.
Table 1
Cost and Expenses
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[END OF AGREEMENT EXCEPT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first
above written.
CITY OF BOZEMAN, MONTANA Bendon Adams LLC, a Colorado Limited Liability Co.
By________________________________ By __________________________________
Andrea Surratt, City Manager Sara Adams
Principal
APPROVED AS TO FORM:
By_______________________________
Greg Sullivan, Bozeman City Attorney
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[END OF AGREEMENT EXCEPT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first
above written.
CITY OF BOZEMAN, MONTANA Bendon Adams LLC, a Colorado Limited Liability Co.
By________________________________ By __________________________________
Andrea Surratt, City Manager Sara Adams
Principal
APPROVED AS TO FORM:
By_______________________________
Greg Sullivan, Bozeman City Attorney
5.17.18
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