Loading...
HomeMy WebLinkAbout01-09-24 City Commission Agenda and Packet MaterialsA. Call to Order - 6:00 PM - Commission Room, City Hall, 121 North Rouse B. Pledge of Allegiance and a Moment of Silence C. Swearing in of Newly Elected Officials D. Changes to the Agenda E. FYI F. Commission Disclosures G. Consent G.1 Accounts Payable Claims Review and Approval (Waters) G.2 Authorize the City Manager to Sign a Professional Services Agreement with Otis Elevator Company for Stiff Professional Building Elevator(Ziegler) THE CITY COMMISSION OF BOZEMAN, MONTANA REGULAR MEETING AGENDA Tuesday, January 9, 2024 How to Participate: If you are interested in commenting in writing on items on the agenda please send an email to agenda@bozeman.net or visit the Public Comment Page prior to 12:00 p.m. on the day of the meeting. Public comments will also be accepted in-person and through video conference during the appropriate agenda items but you may only comment once per item. As always, the meeting will be recorded and streamed through the Commission's video page and available in the City on cable channel 190. For more information please contact the City Clerks' Office at 406.582.2320. This meeting will be held both in-person and also using an online video conferencing system. You can join this meeting: Via Video Conference: Click the Register link, enter the required information, and click submit. Click Join Now to enter the meeting. Via Phone: This is for listening only if you cannot watch the stream, channel 190, or attend in- person United States Toll +1 669 900 9128 Access code: 933 7244 1920 1 G.3 Authorize the City Manager to sign a Professional Services Master Task Order Agreement with Third Element Inc. to provide on-call electrical contracting services for the City of Bozeman Utilities Department.(Nielsen) G.4 Adoption of Resolution 5564 to vacate and abandon City rights-of-way in Tract 1, Lots 1-3 of the Gardner-Simmental Plaza Subdivision(Gamradt) G.5 Resolution 5568, A Resolution of Intent to Amend the Future Land Use Map of the Bozeman Community Plan 2020, Application 23063( Rogers) G.6 Resolution 5570 Authorizing the Use of an Alternative Project Delivery Contract for a Design - Build Firm for Design, Preconstruction, and Construction Services for the Lindley Center Renovation(Ziegler) H. Public Comment I. FYI / Discussion J. Adjourn to Reception in City Hall Lobby This is the time to comment on any matter falling within the scope of the Bozeman City Commission. There will also be time in conjunction with each agenda item for public comment relating to that item but you may only speak once per topic. Please note, the City Commission cannot take action on any item which does not appear on the agenda. All persons addressing the City Commission shall speak in a civil and courteous manner and members of the audience shall be respectful of others. Please state your name and address in an audible tone of voice for the record and limit your comments to three minutes. Written comments can be located in the Public Comment Repository. City Commission meetings are open to all members of the public. If you have a disability that requires assistance, please contact our ADA Coordinator, Mike Gray, at 582-3232 (TDD 582-2301). Commission meetings are televised live on cable channel 190 and streamed live on our Meeting Videos Page. 2 Memorandum REPORT TO:City Commission FROM:Nadine Waters, Accounts Payable Clerk Nicole Armstrong, Accounts Payable Clerk Rhonda Edwards, Accounts Payable Clerk Aaron Funk, City Controller Melissa Hodnett, Finance Director SUBJECT:Accounts Payable Claims Review and Approval MEETING DATE:January 9, 2024 AGENDA ITEM TYPE:Finance RECOMMENDATION:The City Commission is recommended to make a motion and approve payment of claims as presented. STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable sources of funding for appropriate City services, and deliver them in a lean and efficient manner. BACKGROUND:Montana Code Annotated, Section 7-6-4301 requires claims to be presented to the City Commission within one year of the date the claims accrued. Claims presented to the City Commission under this item have been reviewed and validated by the Finance Department. The Department has ensured that all goods and services have been received along with necessary authorizations and supporting documentation. Please provide approval for checks dated December 27, 2023 and January 3, 2024 , as there was no commission meeting on December 26, 2023 and January 2, 2024. UNRESOLVED ISSUES:None ALTERNATIVES:The City Commission could decide not to approve these claims or a portion of the claims presented. This alternative is not recommended as it may result in unbudgeted late fees assessed against the City. FISCAL EFFECTS:The total amount of the claims to be paid is presented at the bottom of the Expenditure Approval List posted on the City’s website at https://www.bozeman.net/departments/finance/purchasing. Report compiled on: December 20, 2023 3 Memorandum SUBJECT: MEETING DATE: January 9, 2024 AGENDA ITEM TYPE: 4 Page 1 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of January, 2024 (“Effective Date”), 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, Otis Elevator Company, E 510 North Foothills Dr., Spokane WA, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” 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 Exhibit A and by this reference made a part hereof. 2. Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services, attached as Exhibit A. This contract also incorporates Contractor’s Acknowledgment, attached as Exhibit B. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 3. Payment: City agrees to pay Contractor one hundred one thousand four hundred forty-five dollars ($101,445.00). 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. City agrees to pay Contractor 50% at the execution of this Contract and the remaining 50% upon completion of the project and acceptance of work by the City. Should the City fail to pay when due, the City agrees to pay interest in the amount of 1.5% per month or the maximum permitted by law, whichever is less, plus reasonable attys fees and collection costs. Contractor agrees to provide lien waivers on Contractor’s standard forms with respect to work or material for which Trade contractor has been paid for in full. 5 Page 2 Title to elevator equipment shall pass to the City when final payment for such equipment is received. 4.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 the 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 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. 5.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, Montana Code Annotated (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 post a legible statement of all wages and fringe benefits to be paid to the Contractor’s employees and the frequency of such payments (i.e., hourly wage employees shall be paid weekly). Such posting shall be made in a prominent and accessible location at the Contractor’s normal place of business and shall be made no later than the first day of services 6 Page 3 provided under this Agreement. Such posting shall be removed only upon expiration or termination of this Agreement. In performing the services under this Agreement, Contractor shall give preference to the employment of bona fide residents of Montana, as required by §18-2-403, MCA, as such term is defined by §18-2-401(1), MCA. When making assignments of work, Contractor shall use workers both skilled in their trade and specialized in their field of work for all work to which they are assigned. Pursuant to §§18-2-403 and 18-2-422, MCA, Contractor shall pay wages, fringe benefits, and expenses, including travel allowances as set forth in the current Montana Prevailing Wage Rate for Non Construction Services in effect and applicable to Gallatin County, Montana, which schedule is incorporated herein. Contractor shall pay all hourly wage employees on a weekly basis. Violation of the requirements set forth in the above State of Montana schedule of prevailing wage rates may subject the Contractor to the penalties set forth in §18-2-407, MCA. Contractor shall maintain payroll records during the term of this Agreement and for a period of three (3) years following termination of this Agreement. The Contractor shall ensure that any person, firm or entity performing any portion of the services under this Agreement for which the contractor, subcontractor or employer is responsible, is paid the applicable standard prevailing rate of wages. In the event that, during the term of this Agreement, any labor problems or disputes of any type arise or materialize which in turn cause any services to cease for any period of time, Contractor specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. 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. 6.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 expert witness and 7 Page 4 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; or (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 intentional misconduct of the Contractor or Contractor’s agents or employees. 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 City as 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 the City 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 City 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 City for a claim(s) or any portion(s) thereof. In the event of an action filed against the 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, 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 [City’s] 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. 8 Page 5 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 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. 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; •Automobile Liability - $1,000,000 property damage/bodily injury per accident; and The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, and Automobile Liability policies. 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. 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. 7.Termination for Contractor’s Fault: a.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. 9 Page 6 b.Should the City terminate for Contractor’s fault, the City will provide the Contractor with a written notice of such termination and allow Contractor ten (10) days to commence to cure the deficiency. c.In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. d.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. e.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. f.Neither party shall be liable for any loss, damage or delay nor be found to be in default or breach due to any cause beyond it’s reasonable control, including but not limited to acts of God or nature. The parties shall be allowed a reasonable amount of additional time for performance should such a cause occur. 8.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. 9.Representatives and Notices: a.City’s Representative: The City’s Representative for the purpose of this Agreement shall be Mike Gray, Facilities Superintendent, 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 10 Page 7 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, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b.Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be Gregory Norris, 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. 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. 10.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. Contractor agrees to pay for one inspection after completion of the Work. Should additional inspections be necessary for causes not attributable to Contractor, City agrees to pay for said inspections. 11.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. 12.Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. 11 Page 8 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. Contractor 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). Contractor 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. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 13.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. 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 its employees and agents in safe work practices. The City agrees to provide Contractor with ready and safe access to areas of the building which any work is to per performed and to keep all work areas free of excessive debris, waste or hazardous materials. Additionally, the City will construct and maintain barricades at all elevator hoistway locations throughout the job site, as governed by the Occupational Safety Health Act. The City will prohibit any City employee from interfering with the Contractor’s performance. The City agrees to provide suitable storage areas for material and equipment during the course of the work. 12 Page 9 Should the City become aware of any asbestos or other hazardous material in any elevator hoistway, machine room, hallway or any other place in the building where Contractor is working, the City agrees to notify Contractor in a timely manner. The Contractor may delay work until the hazardous material is abated. The City understands Contractor has entered into a collective bargaining agreement with employees and is not requiring Contractor to violate terms of it’s collective bargaining agreement. 14.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 the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 15.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. 16.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. 17.Attorney’s Fees and Costs: In the event it becomes necessary for either Party 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 including the City Attorney’s Office staff. 18. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 19.Dispute Resolution: 13 Page 10 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. 20. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 21.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. 22.Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 23.Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 24.Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 25.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. 26.Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 27. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein 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. 14 Page 11 28.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. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year indicated below. _______________________ Date: _____________ Jeff Mihelich, City Manager City of Bozeman _______________________ Date: _____________ Gavin Burns Otis Elevator Company Approved as to form: _______________________ Date: _____________ Greg Sullivan, City Attorney City of Bozeman 15 Page 12 EXHIBIT A: SCOPE OF SERVICES 16 © OTIS ELEVATOR COMPANY, 2011 All Rights Reserved Proposal# QTE-001666948 Page 1 of 8 OTIS MODERNIZATIONDATE: August 15, 2023 TO: FROM: Mike Gray 20 E Olive Bozeman, MT 59715 PROJECT LOCATION: Bozeman Professional Buildin 20 E Olive Bozeman, MT 59715 PROPOSAL NUMBER: QTE-001666948 Otis Elevator Company E. 510 North Foothills Dr.Spokane, WA 99207 Gregory Norris Phone: (406) 890-9054 Fax: (509) 545-2919 MACHINE NUMBER(S): 812469 Otis Hydro Accel We propose to furnish labor and material to provide a hydraulic microprocessor-based control system. It is specifically designed to meet the particular needs of modernizing hydraulic elevators. The system is integrated by communications over serial links and discrete wiring. The "Relative System Response Plus" software dispatches elevators based upon real-time response to actual demands on the elevator(s). Duty / Travel 2000# / 125 fpm Stops / Openings 3 / 3 Power Unit (Tank, Motor, Pump, Muffler and Valve) New Control Systems New – Microprocessor Start Configuration New Solid State Starter Emergency Operation Upgraded to Current Code Pit Stop Switch New 17 © OTIS ELEVATOR COMPANY, 2011 All Rights Reserved Proposal# QTE-001666948 Page 2 of 8 OTIS MODERNIZATION Hoistway Access Switches or Lunar Key Access New, as prescribed by code Top of Car Inspection Station New Car Operating Panel New Fixtures Communications New ADA Phone Integral with COP Car Position Indicator (car) New Digital Car Position Indicator in COP Braille New on COP and Entrances Floor Passing Chime New, ADA compliant Emergency Lighting New 6 volt system Hall Station Buttons New Fixtures In-Car Lantern New In Car Lanterns to Indicate Direction of Travel Car Guides Retain Car Frame Retain Door Operator New Closed Loop Door Operator Interlocks Refurbish Door Restrictors New Code Compliant Restrictors Door Protection New Door Detector Car Door Tracks, Hangers Retain Car Door Retain Hoistway Door Tracks, Hangers Retain Hoistway Doors Retain 18 © OTIS ELEVATOR COMPANY, 2011 All Rights Reserved Proposal# QTE-001666948 Page 3 of 8 OTIS MODERNIZATION Hoistway Door Closers Retain Hoistway Limit Switches Retain Traveling Cables New Hoistway Wire New Signage New New Car Door Relation Included Toe Guards New Code Compliant as Needed Seismic Rupture Valve New Maintenance Per Existing Maintenance Agreement (alt. to be supplied separately) Emergency power (ERU) Alternate 1 Cab Interior Finishes Alternate 2 Cab Air Purifier (new fan included) Alternate 3 19 © OTIS ELEVATOR COMPANY, 2011 All Rights Reserved Proposal# QTE-001666948 Page 4 of 8 OTIS MODERNIZATION MODERNIZATION DEFINITIONS PAGE Retain Equipment will be retained in the same working order currently found when the project was accepted. Any problems with this equipment while completing the modernization will require a change order to repair Refurbish “As New” Equipment will be cleaned, adjusted and repaired as necessary during the Modernization process Refurbish “As Needed” Same as Refurbish “As New”, but at the elevator Contractor’s discretion. New Completely new units to replace the existing will be installed as part of the modernization. These units may be identical to the existing or replacements from different manufactures unless listed. By Others This work is to be completed by contractors other than the Elevator contractor. The work must be completed, scheduled, and paid for by the building management. This work must be scheduled with the elevator contractor and must be completed before inspections on the modernized elevators can be completed. WORK BY OTHERS (NOT INCLUDED IN CONTRACT PRICE) Main Line Power Feeders The current main line piping and wiring from the disconnect to the new controller location May need to be relocated to accommodate the new controllers. A ground wire must be added if it does not already exist. Cab Lighting A single 110 circuit must be run to each controller. This circuit must be run through a disconnect or switch that is lockable in the on or off position. The location of this switch must be coordinated with the elevator mechanic on site. GFI Outlets All Outlets in the machine room and/or the pits must be retrofitted with GFI outlets per code. Light Guards All lighting in the machine room and/or the pit must be retrofitted with code compliant guards made of either grounded metal, plastic or comparable. Phone Code requires a single phone line per elevator to be run in conduit to each controller. This line must be a normal dial tone outside line. Unless otherwise agreed upon by the elevator contractor. Disconnects The main power elevator disconnects must be code compliant, fused or breakers, and must be lockable in the off positions. The disconnects must be located within clear site of each elevator motor. Fire Recall Combined with the modernization main floor and Alternate floor fire recall will be required. Smoke detectors must be installed if not currently operating, at every lobby, the machine room, and the hoistway (if sprinklers are present). Smoke detectors in the hoistway must be mounted on an access panel that is serviceable from the outside of the hoistway. This panel must be no greater than 2’ x 2’. 20 © OTIS ELEVATOR COMPANY, 2011 All Rights Reserved Proposal# QTE-001666948 Page 5 of 8 OTIS MODERNIZATION Shunt trip Disconnect If sprinklers are altered or installed in the machine room and or the hoistway as part of the modernization, a heat detector must be installed within 18” of every sprinkler head in the machine room and the hoistway overhead. These heat detectors must activate a shunt trip disconnect located outside the elevator machine room, to remove all of the three phase elevator power prior to the power entering the machine room. Cutting and Patching Any cutting and patching required for the installation of this equipment, including but not limited to cutting walls for installation of new fixtures. Pit Ladder If not included in proposal. Add $750/ladder to contract price if Otis is to provide. Modifications to Machine Room Including but not limited to the following: • Machine room door must be self closing and self locking • Adequate lighting and proper location in machine room. • GFI outlets • Light Guards • Disconnects • Phone lines • 110 v cab lighting circuits and disconnects • Pit ladder • Pit Lighting and GFI • Sprinklers • Smoke detectors, heat detectors • Shunt Trip Disconnects • Ledges in hoistway • Windows in Hoistway • Vents in hoistway • Temperature control in machine room 21 © OTIS ELEVATOR COMPANY, 2011 All Rights Reserved Proposal# QTE-001666948 Page 6 of 8 OTIS MODERNIZATION CLARIFICATIONS 1. The attached “Work By Others” (Not by Otis) is not part of this proposal. 2. Our proposal is based on mutually agreeable terms and conditions, with neither party liable for special, indirect, consequential, or liquidated damages. 3. Cab interior can be purchased for an extra cost from Otis Elevator Company but is not included in this scope of work. 4. Building must modify machine room for applicable code requirements. 5. Proposal price is valid for 60 days. 6. Cab lighting circuits and disconnects by others. (wiring to be run to new controllers) 7. Otis can accept a 10% variation of mainline from the norm. 5% above to 5% below the specified mainline voltage. 8. Storage and parking for Otis personnel to be provided at no charge to Otis. 9. We have included the cost of an Owners and Contractors Protection Policy, in lieu of naming others as additional insured. 10. Schedule of Payments: i. Contract Award 50% Engineering/Procurement of Materials ii. Completion 50% @ Job Completion 22 © OTIS ELEVATOR COMPANY, 2011 All Rights Reserved Proposal# QTE-001666948 Page 7 of 8 OTIS MODERNIZATION ALTERNATE NO. 1 - AUT-O-SAFE® (Battery Back-Up Device) We will furnish and install an Emergency Return Unit (ERU) providing auxiliary power to your hydraulic elevator(s). In the event of a primary power failure or a single phase condition, the ERU is designed to automatically return the elevator to its lowest landing at normal speed and allow all passengers to exit safely. If all elevator controls are in normal position, the elevator will be able to resume normal operation when building power is restored. Once main power has returned, it takes from six to 24 hours for the batteries to become fully charged, depending on the amount of power consumed in performing an ERU operation. WORK BY OTHERS Others are to provide an auxiliary contact on the main line disconnect switch and run two #18 wires from this auxiliary contact to the elevator controller such that when the main line disconnect switch is in the ON position, the auxiliary contact is closed and opens mechanically when the main line disconnect switch is placed in the OFF position. CONTRACT PRICE…………………………………………………….ADD $3,950 INITIAL TO ACCEPT:________________ ALTERNATE NO. 2 – CAB INTERIOR AND CEILING Otis agrees to supply and install the below cab interior and ceiling Cab Interior Otis agrees to supply and install a new cab interior for the above elevator. Customer may choose from the following designs: Delridge, Fremont, Highlands, Montlake, Eastlake, and Newcastle (Customer to choose laminate color from wilson art brochure) . The interior will consist of two side walls and the rear wall. Ceiling Otis agrees to supply a brushed aluminum framed suspended ceiling for the above elevator. The final number of sections will be determined during the shop drawings by the existing hatch location. Ceiling will have two (2) twin tube LED light fixtures for installation on the car dome. CONTRACT PRICE…………………………………………………….ADD $22,900 INITIAL TO ACCEPT:________________ The extent of the work to be performed is either described above or in the attached specification which is incorporated into and made a part of this document. ALTERNATE NO. 3 – Cab Air Purifier Otis will furnish and install the Otis Cab Air Purifier along with a new elevator fan. The Otis Cab Air Purifier uses proactive air purification technologies to minimize airborne viruses safely by using bipolar ionization, which creates millions of positive and negative ions, a proven method of virus reduction. CONTRACT PRICE…………………………………………………….ADD $3,800 INITIAL TO ACCEPT:________________ The extent of the work to be performed is either described above or in the attached specification which is incorporated into and made a part of this document. 23 © OTIS ELEVATOR COMPANY, 2011 All Rights Reserved Proposal# QTE-001666948 Page 8 of 8 OTIS MODERNIZATION PRICE: $ 101,445.00 One hundred one thousand four hundred forty-five dollars 00/100 This proposal, including the provisions printed on the pages following, shall be a binding contract between you, or the party identified below for whom you are authorized to contract (collectively referred to herein as you), and us when accepted by you through execution of this proposal by you and approved by our authorized representative; or by your authorizing us to perform work for the project and our commencing such work. Accepted in Duplicate Submitted by: Gregory Norris CUSTOMER OTIS ELEVATOR COMPANY Approved by Authorized Representative Approved by Authorized Representative Date: ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯ Date: ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯ Signed: ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯ Print Name: ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯ Title: ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯ Signed: ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯ Print Name: ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯ Title: ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯ Name of Company: ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯ 24 Page 13 EXHIBIT B: CONTRACTOR’S ACKNOWLEDGMENT 25 Thank you for allowing Otis the opportunity to do business with you. Otis’ agreement to provide labor, services, and materials (collectively “Work”) is conditioned by the following terms in this document (hereinafter called “Acknowledgment”) and the Otis’ proposal (“Proposal”), both of which are incorporated herein by reference and made a part of the contract between Otis and Customer (collectively, the Acknowledgment, Proposal, and any other contract document agreed to between Otis and Customer for the Work is hereinafter referred to as the “Contract”). In the event of a conflict between the Acknowledgment, Proposal, or any other document, the terms in the Acknowledgment control (the only exception to this is limited to if the terms of the Proposal give Otis greater rights or protections, then in such limited instances, the Proposal controls). The references to section numbers are for convenience only and are not intended to restrict or otherwise affect the provisions stated below. Item 1, 3 It is understood and agreed that our proposal is hereby incorporated and made part of this Agreement. Item 4 a) A down payment of 50% is required at the execution of the Contract. The balance shall be paid upon completion. b) Otis does not agree to paid-when-paid, paid-if-paid, or greater than net 30 payment terms. c) Any payment not made when due shall be subject to interest at the rate of one and one-half percent (1.5%) per month or the maximum permitted by law, whichever is less, plus reasonable attorney’s fees and collection costs. d) Otis agrees to provide lien waivers on Otis’ standard forms with respect to work or material for which Trade Contractor has been paid for in full. Item 6 Otis shall provide a certificate of insurance showing our workers compensation coverage. Item 7, 20 Notwithstanding any other provision to the contrary, we agree to indemnify you only for losses due to personal injury, or property damage to the extent that a court of competent jurisdiction ultimately finds that such losses were caused by our negligent acts or omissions, or the negligent acts or omissions of our employees, agents and subcontractors during the performance of this contract, but not to the extent caused by others. Each party shall defend itself in the event of a lawsuit. Otis’s duty to indemnify does not include a duty to defend from the time of tender or during the pendency of any claim or action as both parties shall defend themselves during the pendency of any claim or action. Notwithstanding any other provision to the contrary, Otis will supply an insurance certificate evidencing the insurance carried by Otis conditioned on the understanding that it represents full compliance with all insurance requirements applying to Otis under the Contract and for the Work. Otis does not provide copies of its insurance policies, certified or otherwise, does not waive subrogation and does not add others as additional insured. All limits and values related to OTIS ACKNOWLEDGMENT Thank you for your order Please refer to our contract number in all correspondence. Address all inquiries to: Otis Elevator Company E 510 North Foothills Dr. Spokane, WA 99207 Greg Norris Contract Number Your Subcontract Number Date Acknowledged August 17, 2023 Sold To City of Bozeman 121 North Rouse St. Bozeman, MT Job Location Bozeman Professional Building 20 E Olive Bozeman, MT 26 coverage if any is provided to Customer shall be actual values without qualifying language such as “at least”, “not less than”, “no less than”, “minimum” or the like. Coverage, if any, will be on an occurrence basis. Coverage Limits may be achieved through a combination of underlying and excess policies. Umbrella limits, if any, will be on a stand-alone, not follow-form basis. Renewal certificates will be provided during the term of the Contract. In lieu of naming parties as an additional insured, such parties shall be named on a separate Owner’s and Contractor’s Protective Liability Policy (OCP) with limits of $2,000,000. Policies, Declaration Pages, and any rating information related to Otis’ liability insurance has been deemed proprietary and will not be shared with third parties. Otis does not allow credits, deducts, deductibles or the reduction of its goods and services in exchange for participation. Otis does not provide professional liability coverage. If the project is covered by an Owner/Contractor Controlled Insurance Program (“CIP”), Otis may agree to participate provided it is at no cost to Otis and subject to Otis’ review and express acceptance of the proposed program. Any CIP requirement which violates or is counter to the intent of any condition found in any of Otis’ labor agreement(s) is immediately void and unenforceable. In the event Otis enrolls in any CIP program, the OCP is waived and Otis will add (not name) others as Additional Insured for off-site operations only. Otis does not waive its right to immunity under workers compensation, disability benefit or other employee federal and/or state benefit acts or laws. Otis shall not be required to comply with requirements from third party compliance vendors nor shall Otis be responsible for any costs associated with same. Item 8, 9 Otis does not agree to termination for convenience. The Contract may be terminated for default only and provided that Otis is first allowed ten (10) days to commence to cure the deficiency upon receipt by Otis of written notice specifying in detail the deficiency. In the event the Contract is terminated through no fault of Trade Contractor, Customer agrees to pay for all material furnished, or manufactured, and labor performed up to the date of termination, including a reasonable margin. Customer shall not have the right to take possession of Otis’ tools, machinery, or equipment. Customer’s right to take possession of materials is limited to materials that Customer has paid in full for which Otis has expressly agreed to the sale of such materials in writing. Item 8.d, 9.d, 10 Neither party shall be liable for any loss, damage or delay nor be found to be in default or breach due to any cause beyond it’s reasonable control including, but not limited to, acts of God or nature; fire; explosion; theft; floods; water; weather; traffic conditions; transportation, material or labor disruptions; epidemic, pandemic, quarantine or other local, state, or federal government action in response thereto; sabotage; cyber-security; national emergency; act of terrorism; earthquake; riot; civil commotion; war; vandalism; national or local labor strikes, lockouts, other labor disputes; misuse, abuse, neglect, mischief, or work by others (collectively “Causes Beyond Reasonable Control”). Otis shall be allowed a reasonable amount of additional time for the performance of the Work due to Causes Beyond Otis’ Reasonable Control. Otis’ ability to maintain scheduled job progress is further conditioned upon the timely furnishing to Otis by Customer of completed and code compliant hoistway(s) (wellways) and machine rooms, necessary approvals, and power of proper characteristics for Otis’ uninterrupted use. Under no conditions shall either party be liable for special, indirect, liquidated, or consequential damages in contract, tort, including negligence, warranty or otherwise, notwithstanding any indemnity provisions to the contrary. Notwithstanding any provision in any contract document to the contrary, our acceptance is conditioned on being allowed additional time for the performance of the Work due to delays beyond our reasonable control. Otis will provide union labor and will make reasonable efforts to ensure that they will work in harmony with others. To effect this, Otis agrees to provide sufficient workers, equipment, and materials for prompt and diligent prosecution of the work. Notwithstanding any language to the contrary contained in the contract documents, a work stoppage, whether caused by strikes, lockouts, or other labor disputes, shall not constitute a breach of contract or an event of default. 27 Item 13 Otis agrees to abide by Customer’s safety policy as long as said policy is not in conflict with Otis’ safety policy(ies) or Otis’ agreement with the International Union of Elevator Constructors (IUEC). Customer agrees to provide Otis with unrestricted ready and safe access to all areas of the building in which any Work is performed and to keep all Work areas free of excessive debris, waste, or hazardous materials. Further, Customer shall prohibit others from interfering with the Work. Otis agrees to accept liability for the cost of penalties incurred by you pursuant to governing Occupational Health & Safety acts that result from our acts or omissions on the condition that the cost of any similar penalties imposed on Otis because of your acts or omissions, or anyone employed by you shall be borne by you. Item 16 Otis supports Customer’s efforts to maintain a safe and productive work environment; however, Otis’ collective bargaining agreement with the IUEC prohibits Otis from completing background checks, searches, or tests on Otis employees in the IUEC bargaining unit. Therefore, Otis cannot agree to authorize any party to complete criminal background checks, searches, or tests on any Otis employees. Otis will request IUEC represented employees furnishing Work for Customer to agree to voluntarily submit to a criminal background check and agrees not to staff with employees who do not consent to same to the extent that Customer requires background checks. Customer agrees to pay any and all costs associated with obtaining criminal background checks conducted. Subject to the forgoing, Otis will take appropriate action in the event that you advise us of any action by any of our employees that is contrary to the maintenance of a safe, healthy and productive workplace. Item 18 Otis does not agree to any inspection, audit, or copy of any of Otis’ confidential, proprietary, or trade secret information, data, or documents including, without limitation, financials. Delivery Date Otis’s proposal is based on a delivery date of 12/31/2023. If the delivery date is delayed ninety (90) calendar days or greater, Customer agrees to pay applicable factory material price increases. A fully executed change order and full payment of the price increase, in addition to full payment of the required down payment by Customer is required prior to the factory material being ordered and released. Additionally, if your project schedule changes and extends installation or completion of labor into a future year or year(s), Customer agrees to pay applicable labor escalation price increases. A fully executed change order regarding the labor escalation price increase must be executed prior to mobilization and the start of any Work. In General CHANGE ORDER If Otis Elevator Company (“Otis”) is directed by you to furnish any labor, service, or material that is outside of the mutually agreed upon scope of work of this agreement (“Out of Scope Work”), Otis may agree to perform such Out of Scope Work (1) subject to receipt of a written notice to proceed prior to commencement of any such Out of Scope Work; and (2) contingent upon receipt of a mutually agreed upon and executed change order within thirty (30) calendar days of such written notice to proceed. If the parties are unable to agree to terms that lead to the issuance of a mutually agreed upon and executed change order within such thirty (30) day period, Otis may suspend the Out of Scope Work. Notwithstanding any other provision, language, term or condition of this agreement to the contrary, Otis shall not be liable for any project delays and/or damages, including but not limited to liquidated damages, associated with a delay in the issuance of a mutually agreed upon and executed change order. And shall not be deemed a breach of contract. WARRANTY Otis’ warranty only covers defective material and workmanship for a period that shall not extend longer than one (1) year from the date of completion of each elevator or escalator equipment or acceptance thereof by beneficial use, whichever is the earlier, of each elevator or escalator equipment. Otis’ duty and Customer’s remedy under this warranty are limited to Otis correcting a covered defect that Customer reports to Otis within the warranty period which, at Otis’ option, Otis will 28 repair or replace, provided all payments due under the terms of the Contract have been made in full. This warranty excludes ordinary wear and tear and any damage due to Causes Beyond Otis’ Reasonable Control. Warranty work will be completed during the local Otis office’s regular business hours and excludes local area Union holidays. Should any warranty work be performed outside of these regular business hours, the Customer will be responsible for the premium portion of labor at Otis’s standard service billing rates. THIS EXPRESS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SURETY Otis will provide surety bond(s) in the form provided by Otis’ Surety at no cost to Otis. This is in lieu of participation in any type of surety wrap-up or Subguard program. SOFTWARE Otis shall exclusively own all intellectual property rights, title, and interest in (i) all Otis’ goods, services, and software, as well as any and all intellectual property conceived and/or developed by Otis in the course of its Work for customer. The Customer agrees to keep any Otis software resident in the Otis’ goods or services in confidence as a trade secret for Otis and will not permit others to examine, copy, disclose, disassemble, modify, or reverse engineer Otis’ equipment, services or software for any purpose whatsoever. Otis hereby grants to Customer a limited, non-exclusive right and license to use Otis’ intellectual property as embodied in Otis’ goods, services, and software exclusively in connection with and at the physical location where such goods, services, or software are delivered under the Contract. Use of such software for any other purpose is prohibited. Work for Hire provision(s), if any, shall apply only to the extent the information, services, goods, or other items referenced in such provision(s) are specifically developed by Otis solely for Customer’s exclusive use only (and no other Customer of the Service Provider) and Customer was expressly contemplated to be the exclusive owner of such information under a separate written agreement. Any counters, meters, tools, remote monitoring devices, communication devices, resident software or other service equipment (“Otis Peripherals”) which Otis may use or install to deliver service under this Contract remains Otis’ property, solely for the use of Otis’ employees. Otis Peripherals are not considered as part of the equipment. If this Contract is terminated for any reason, Otis shall be given access to the premises to remove the Otis Peripherals at Otis’ expense. Otis shall only be required to follow its own cyber security policies and procedures. TITLE AND RESERVATION OF RIGHTS Title to each elevator or escalator equipment as applicable shall pass to Customer when final payment for such equipment is received. Otis shall retain a security interest in all material furnished hereunder and not paid for in full. Customer agrees that a copy of the Contract may be used as a financing statement for the purpose of placing upon public record Otis’ interest hereunder in the material and Customer agrees to execute a UCC-1 form or any other document reasonably requested by Otis for that purpose. Otis reserves the right to discontinue the Work at any time or to withhold the release of completed elevator or escalator equipment until all overdue payments, with interest, shall have been made as agreed herein. Nothing shall serve to void or reduce Otis’ entitlement to payment for Work properly performed or material suitably stored. BARRICADES Customer shall be responsible to erect/maintain all barricades at all of Trade Contractor’s’ elevator hoistway locations throughout the job site in strict conformance with good safety practices, the Code of Federal Regulations as governed by the Occupational Safety Health Act, and any other applicable regulations. STORAGE Customer will provide suitable storage areas, adjacent to the elevator shafts or escalator areas, for material and equipment during the course of the Work. Added costs to Otis resulting from off-site storage or relocation of the storage facilities at Customer’s request shall be reimbursed by Customer. 29 HAZARDOUS MATERIALS You agree to notify Otis if you are aware or become aware prior to the completion of the work of the existence of asbestos or other hazardous material in any elevator hoistway, machine room, hallway or other place in the building where Otis’ personnel are or may be required to perform their work. In the event it should become necessary to abate, encapsulate or remove asbestos or other hazardous material from the building, you agree to be responsible for such abatement, encapsulation or removal, and any governmental reporting, and in such event Otis shall be entitled to (i) delay its work until it is determined to Otis’ satisfaction that no hazard exists and (ii) compensation for delays encountered. CONFIDENTIALITY To the extent that a party receives (“Receiving Party”) any non-public data, information and other materials from the other party (“Disclosing Party”) that is disclosed pursuant to this Contract (hereinafter “Confidential Information”), the Receiving Party shall not with respect to such Confidential Information (1) disclose the Confidential Information to any third party, (2) use the Confidential Information for its own benefit, or (3) use the Confidential Information for the benefit of others. Each party shall safeguard any Confidential Information received pursuant to the Contract using at least the level of care that it uses to protect its own confidential information, but in no case shall it use less than reasonable care. Neither party shall have an obligation of confidentiality with respect to any Confidential Information which: (i) was already known to the Receiving Party prior to acquisition from, or disclosure by the Disclosing Party; (ii) is received without restriction as to disclosure by Receiving Party from a third party having the right to disclose it; (iii) is approved for release by written authorization from the Disclosing Party; or (iv) is or becomes publicly known without fault of the Receiving Party. The Disclosing Party may at its sole discretion request the return and/or deletion of any Confidential Information provided to the Receiving Party, and the Receiving Party shall immediately delete and/or return such Confidential Information and certify in writing its compliance with the request. The Receiving Party shall not reverse engineer, reverse assemble, or decompile Confidential Information. Confidential Information may be disclosed to (i) contract workers, consultants and agents of the Receiving Party or (ii) the owner of the subject equipment at the subject premises who have a need to know for the benefit of Otis and who have executed agreements with the Receiving Party obligating them to treat such information in a manner consistent with the terms of this Contract. RESTRICTED PARTIES LAW If the event the transactions contemplated hereunder are restricted by U.S. Government or other applicable laws and regulations, including but not limited to those designating certain parties as “denied”, “restricted” or similarly ineligible to do business with U.S. entities, this agreement will be deemed void and Customer shall pay Otis all sums owed for the goods and services that may have been provide up to such time according to the rates contained in this agreement. You are responsible for complying with all regulations, including but not limited to those related to seismic activity and floodplains, regarding the geologic conditions of the site where the equipment will be installed. COVID VACCINE MANDATES Otis will not accept any Covid vaccine mandates unless Otis is given the opportunity to review the requirements and can assure Otis can fully comply. Non acceptance of any Covid vaccine mandates by Otis will not be cause for breach of contract or any other cause of action (damages, penalties or otherwise). We want to take this opportunity to thank you for this order. OTIS ELEVATOR COMPANY 30 Memorandum REPORT TO:City Commission FROM:Griffin Nielsen, Project Engineer Brian Heaston, Interim Director of Utilities SUBJECT:Authorize the City Manager to sign a Professional Services Master Task Order Agreement with Third Element Inc. to provide on-call electrical contracting services for the City of Bozeman Utilities Department. MEETING DATE:January 9, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign a Professional Services Master Task Order Agreement with Third Element Inc. to provide on-call electrical contracting services for the City of Bozeman Utilities Department STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:The Utility Department operates and maintains a wide variety of complex electrical and controls systems at the City’s water reclamation facility, water treatment plants, and within the water distribution and wastewater collection systems. The Utilities Department does not employ a staff electrician. Projects and maintenance activities occasionally arise for electrical and controls systems that require a qualified electrical contractor. Having an electrical contractor available through an on-call agreement better positions the Utility Department to quickly respond to electrical and controls systems issues. A request for qualifications for on-call electrical services was advertised on August 22nd, 2023. One statement of qualification was received, that from Third Element Inc. Upon review of the submission, City staff determined that Third Element is qualified to provide the range of electrical services necessary for the Utilities Department. The attached Professional Services Master Task Order Agreement (on-call agreement) has been negotiated with Third Element. As work arises, the on- call agreement requires negotiation of individual task orders. Labor and expense rates for the on-call services are provided as Exhibit A to the on-call agreement. The initial term of the on-call agreement expires December 31, 2024 but may be extended upon mutual agreement of the parties for an additional year. 31 UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the Commission FISCAL EFFECTS:As work arises, individual task orders will be negotiated prior to proceeding with work. Task order costs are subject to the labor and expense rates provided as Exhibit A to the on-call agreement and will be funded by Utilities Department operating budgets Attachments: Utility Dept Oncall Electrical Contractor_MPSA.pdf Report compiled on: December 18, 2023 32 Professional Services Master Task Order Agreement for Electrical On-Call Services Page 1 of 16 PROFESSIONAL SERVICES MASTER TASK ORDER AGREEMENT THIS AGREEMENT is made and entered into this _____ of January, 2024, 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, [INSERT CONTRACTOR LEGAL NAME and MAILING ADDRESS], 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 into this agreement with Contractor to provide a range of electrical technical services related to operations and maintenance of the City of Bozeman Utility Department’s infrastructure, including but not necessarily limited to construction, maintenance, optimization, and repair for various improvement projects, as requested by the City through issuance of individual, consecutively numbered Task Orders on an as needed and requested basis. 2. Term/Effective Date: This Agreement is effective upon the date of its execution and will expire on the 31st of December, 2024 unless extended or terminated as specifically provided for within the agreement. 3. Scope of Work: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. The Contractor will perform the specific services and schedule as mutually agreed upon by City and Contractor and included in each individual Task Order executed under the authority of this Agreement. Task Orders shall be in a format similar to EXHIBIT A, attached and made part of this Agreement. For conflicts between this Agreement and the Scope of Services the Agreement governs. 4. Payment: The terms of compensation to Contractor shall be agreed upon and included in each Task Order. The task order amount shall be based on the rates specified in the Scope of Services. City agrees to pay Contractor the amount specified in the individual Task Orders. Any alteration or deviation from the described services that involves additional costs above the 33 Professional Services Master Task Order Agreement for Electrical On-Call Services Page 2 of 16 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. For each individual Task Order, Contractor will familiarize itself with the nature and extent of the assignment, 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 and will provide a mutually agreeable Scope of Services for each Task Order. c. Contractor represents 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 ordinarily used by member in the same profession practicing at the same time and in the same locality; 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 and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this standard of care. 6. Independent Contractor Status/Labor Relations: a. 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. b. 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’ 34 Professional Services Master Task Order Agreement for Electrical On-Call Services Page 3 of 16 compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. c. 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. d. Contractor shall post a legible statement of all wages and fringe benefits to be paid to the Contractor’s employees and the frequency of such payments (i.e., hourly wage employees shall be paid weekly). Such posting shall be made in a prominent and accessible location at the Contractor’s normal place of business and shall be made no later than the first day of services provided under this Agreement. Such posting shall be removed only upon expiration or termination of this Agreement. e. In performing the services under this Agreement, Contractor shall give preference to the employment of bona fide residents of Montana, as required by §18-2-403, MCA, as such term is defined by §18-2-401(1), MCA. When making assignments of work, Contractor shall use workers both skilled in their trade and specialized in their field of work for all work to which they are assigned. f. Pursuant to §§18-2-403 and 18-2-422, MCA, Contractor shall pay wages, fringe benefits, and expenses, including travel allowances as set forth in the current Montana Prevailing Wage Rate for Non Construction Services in effect and applicable to Gallatin County, Montana, which schedule is incorporated herein. Contractor shall pay all hourly wage employees on a weekly basis. Violation of the requirements set forth in the above State of Montana schedule of prevailing wage rates may subject the Contractor to the penalties set forth in §18-2-407, MCA. Contractor shall maintain payroll records during the term of this Agreement and for a period of three (3) years following termination of this Agreement. g. The Contractor shall ensure that any person, firm or entity performing any portion of the services under this Agreement for which the contractor, subcontractor or employer is responsible, is paid the applicable standard prevailing rate of wages. h. In the event that, during the term of this Agreement, any labor problems or disputes of any type arise or materialize which in turn cause any services to cease for any period of time, Contractor specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor 35 Professional Services Master Task Order Agreement for Electrical On-Call Services Page 4 of 16 problems or disputes. The specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. i. Contractor shall indemnify, 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: a. 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; b. For the 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 intentional misconduct of the Contractor or Contractor’s agents or employees. c. 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). 36 Professional Services Master Task Order Agreement for Electrical On-Call Services Page 5 of 16 d. Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. e. Should the City 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 City 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 City for a claim(s) or any portion(s) thereof. f. 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. g. 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. h. These obligations shall survive termination of this Agreement and the services performed hereunder. i. 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. j. 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; 37 Professional Services Master Task Order Agreement for Electrical On-Call Services Page 6 of 16 • Employers’ Liability - $1,000,000 per occurrence and annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury; $1,000,000 annual aggregate; and • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate • Builder’s Risk/Property Insurance at least as broad as that provided by the ISO special causes of loss form (CP10 30) naming at a minimum the City in an amount equal to greater of Contractor’s compensation or full replacement value of the work (covering at a minimum all work, buildings, materials and equipment, whether on site or in transit, loss due to fire, lightening, theft, vandalism, malicious mischief, earthquake, collapse, debris removal, demolition occasioned by enforcement of laws, water damage, flood if site within a flood plain, repair or replacement costs, testing and start-up costs) on an all risk coverage basis. This insurance must include waivers of subrogation between the City and Contractor to the extent that damage to the Project or City Hall is covered by other insurance; • Owner’s and Contractor’s Protective Liability: one policy designating the City (including its agents, representatives, employees, and officers) as the insured and another independent policy designated the City’s Representative (including its consultants, consultants, agents and employees) as the insured on the declarations with both policies covering: (i) operations performed by the Contractor under this Agreement for the City; and (ii) the City’s and City’s Representatives acts or omissions, including negligent acts, in connection with its general supervision of the work of the Contractor’s and its subcontractors - $1,000,000 per occurrence; $2,000,000 aggregate; • Contractual Liability Insurance (covering the Contractor’s indemnity obligations described in this Agreement) - $1,000,000 per occurrence $2,000,000 aggregate k. 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 thirty (30) 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 38 Professional Services Master Task Order Agreement for Electrical On-Call Services Page 7 of 16 terminated or Contractor’s decision to terminate any required insurance coverage for any reason. l. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. m. Pursuant to the City’s authority provided for in 18-2-201(4), the Contractor shall not be required to provide bonds as required by 18-2-201(1) for individual task orders under this Agreement. Bonds may be waived as allowed under 18-2-201(4) for individual task orders. 8. Inspection and Testing: a. City has the right to inspect and test any and all work performed by Contractor under a task order’s scope of services, referred to as the “Project”, executed under the authority of this Agreement. Contractor shall allow City and its agents access to the Project at all times and shall provide every reasonable facility for the purpose of such inspection and testing, including temporarily discontinuing portions of the work or uncovering or taking down portions of the finished work. Any inspection and testing performed by the City and its agents is for the sole benefit of the City and shall not relieve the Contractor of its duty, responsibility, and obligation to ensure that the work strictly complies with the Agreement terms and conditions and all applicable laws and building and safety codes. City’s inspection and testing shall not be deemed or considered acceptance by the City of any portion of the Project. City’s inspection and testing shall not serve to nullify, amend, or waive any warranties provided by the Contractor under this Agreement. b. Contractor shall, without charge, replace any material or correct any work found by the City or its agents to be defective or otherwise not in compliance with the terms and conditions of this Agreement. In the event Contractor fails to replace or correct any defective work or materials after reasonable written notice by the City to do so, the City may take such corrective action, either with its own materials and employees or by retaining any third party to do so, and deduct the cost and expense of such corrective action from the Contractor’s compensation. 9. Partial Utilization of the Project: City shall have the right to use or occupy any portion of the Project that City and Contractor mutually agree is substantially completed and constitutes a separately functioning and usable part of the Project for its intended purpose without 39 Professional Services Master Task Order Agreement for Electrical On-Call Services Page 8 of 16 significant interference with Contractor’s performance of the remaining portions of the Project. In the event City takes possession of any portion of the Project, such possession shall not be deemed an acceptance of the Project, in whole or in part. City’s use of any portion of the Project shall not be grounds for extensions of any construction deadlines or a change in the Contractor’s compensation. Contractor’s warranties shall run from the completion of the total Project and not from the date the City may take possession of selected portions of the Project. 10. Related Work at the Site: Nothing in this Agreement shall prevent or preclude City, through its own employees or by contract with any third party, from performing other work related to the Project at the construction site; provided such related work is not otherwise addressed in this Agreement and provided such related work does not otherwise interfere with Contractor’s performance of this Agreement or the completion of the Project. Contractor shall afford any City employee, agent or representative, or any third party under contract with the City to perform the related work, proper and safe access to the construction site, a reasonable opportunity for the introduction and storage of materials and equipment, the opportunity to perform the related work, and shall properly coordinate the Contractor’s work on the Project with the related work. 11. Contractor’s Warranties: Contractor represents and warrants as follows: a. Unless otherwise specified by the terms of the Task Order, all materials and equipment used by Contractor on the Project shall be new and where not otherwise specified, of the most suitable grade for their intended uses. b. All workmanship and materials shall be of a kind and nature acceptable to the City. c. All equipment, materials, and labor provided to, on, or for the Project must be free of defects and nonconformities in design, materials, and workmanship for a minimum period beginning with the commencement of the work on the Project and ending one (1) year from the final completion and acceptance by the City of the Project, regardless of whether such equipment, materials, or labor were supplied directly by Contractor or indirectly by Contractor’s subcontractors or suppliers. Other express warranties on materials that provide for a warranty period longer than one year apply for the period of that express warranty and are not reduced by this provision. Upon receipt of City’s written notice of a defective or nonconforming condition during the warranty period, Contractor shall take all actions, including redesign and replacement, to correct the defective or nonconforming condition within a time frame acceptable to the City and at no additional cost to the City. Contractor shall also, at its sole cost, perform any 40 Professional Services Master Task Order Agreement for Electrical On-Call Services Page 9 of 16 tests required by City to verify that such defective or nonconforming condition has been corrected. Contractor warrants the corrective action taken against defective and nonconforming conditions for a period of an additional one (1) year from the date of City’s acceptance of the corrective action. d. Contractor and its sureties are liable for the satisfaction and full performance of all warranties. e. Contractor shall give its personal attention to the faithful prosecution of the completion of the Project and Contractor, or its duly authorized representative assigned to serve as the Construction Project Manager, shall be personally present at the site of the Construction Project during working hours for the term of this Agreement until the completion of the Project. f. Contractor shall have a complete, accurate, and up-to-date set of construction plans, drawings, and specifications on site at all times. g. Contractor has examined all available records and made field examinations of the site of the Project. Contractor has knowledge of the field conditions to be encountered during the Project. Contractor has knowledge of the types and character of equipment necessary for the work, the types of materials needed and the sources of such materials, and the condition of the local labor market. h. Contractor is responsible for the safety of the work and shall maintain all lights, guards, signs, temporary passages, or other protections necessary for that purpose at all times. i. All work must be performed at Contractor’s risk, and Contractor shall promptly repair or replace all damage and loss at its sole cost and expense regardless of the reason or cause of the damage or loss; provided, however, should the damage or loss be caused by an intentional or negligent act of the City, the risk of such loss shall be placed on the City. j. Contractor is responsible for any loss or damage to materials, tools, or other articles used or held for use in the completion of performance of the Project. k. Contractor’s performance must be without damage or disruption to any other work or property of the City or of others and without interference with the operation of existing machinery or equipment. 41 Professional Services Master Task Order Agreement for Electrical On-Call Services Page 10 of 16 l. Title to all work, materials, and equipment covered by any payment of Contractor’s compensation by City, whether directly incorporated into the Project or not, passes to City at the time of payment, free and clear of all liens and encumbrances. 12. Termination for Contractor’s Fault: a. 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 or any individual Task Order under 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. b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. 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. d. 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. 13. 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; the City may terminate this Agreement or any Task Order under 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. 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 42 Professional Services Master Task Order Agreement for Electrical On-Call Services Page 11 of 16 Agreement or any Task Order under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement or any Task Order 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. 14. 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. 15. Representatives: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Griffin Nielsen, PE 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 43 Professional Services Master Task Order Agreement for Electrical On-Call Services Page 12 of 16 Griffin Nielsen 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. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be Jim Wedel 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. 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. 16. 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. 17. 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. 44 Professional Services Master Task Order Agreement for Electrical On-Call Services Page 13 of 16 18. Accounts and Records: During the term of this Agreement and for three (3) years following the City’s final acceptance of the Project, Contractor shall maintain accounts and records related to the Project. Upon reasonable notice, City shall have the right to inspect all such accounts and records, including but not limited to, Contractor’s records, books, correspondence, instructions, drawings, specifications, field and site notes, receipts, invoices, bills, contracts, or other documents relating to the Project. 19. Nondiscrimination and Equal Pay: a. 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. b. Contractor 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). Contractor 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. c. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 20. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: a. 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. 45 Professional Services Master Task Order Agreement for Electrical On-Call Services Page 14 of 16 b. 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. 21. 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. 22. 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. 23. 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. 24. 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. 25. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 26. Dispute Resolution: 46 Professional Services Master Task Order Agreement for Electrical On-Call Services Page 15 of 16 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. 27. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 28. 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. 29. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 30. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 31. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 32. 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. 33. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 34. 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. 47 Professional Services Master Task Order Agreement for Electrical On-Call Services Page 16 of 16 35. 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. 36. Extensions: This Agreement may, upon mutual agreement, be extended for a period of one fiscal year by written agreement of the Parties. In no case, however, may this Agreement run longer than 31st of December, 2025. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA ____________________________________ CONTRACTOR (Type Name Above) By________________________________ By__________________________________ Jeff Mihelich, City Manager Print Name: Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 48 EXHIBIT A: THIRD ELEMENT RATE SHEET 49 Date:12/6/23 Griffin, In response to the City of Bozeman Construction Services Contracts follow up request for proposal, The Third Element has the following service rates: Rates through May 31, 2024: Reg Hours Overtime Double Time Project Manager 120.00 180.00 240.00 Foreman 107.00 160.50 214.00 Electrician 95.00 142.50 190.00 Helper 70.00 105.000 140.00 Rates from June 1, 2024 – May 31, 2025: Reg Hours Overtime Double Time Project Manager 130.00 195.00 260.00 Foreman 118.00 177.00 236.00 Electrician 105.00 157.50 210.00 Helper 75.00 112.50 150.00 All rates listed above are all-in rates inclusive of salary/wages, taxes and benefits. 20% markup for material will be applied and 10% markup for special equipment will be applied when necessary. Mileage will be billed at $0.80 per mile outside of a 10 mile radius of 28 Intrepid Drive Bozeman, MT 59718. Jim Wedel The Third Element, Inc. 28 Intrepid Drive Bozeman, MT 59718 1-406-410-1012 jimw@3econtractors.com 50 Memorandum REPORT TO:City Commission FROM:Kellen Gamradt, Engineer II Shawn Kohtz, City Engineer SUBJECT:Adoption of Resolution 5564 to vacate and abandon City rights-of-way in Tract 1, Lots 1-3 of the Gardner-Simmental Plaza Subdivision MEETING DATE:January 9, 2024 AGENDA ITEM TYPE:Resolution RECOMMENDATION:After incorporating the information in Amended Plat No. J-5-E, the vacated right-of-way as shown in Resolution No. 5226 within Tract 1 of the Gardner- Simmental Plaza Subdivision, I hereby move to adopt Resolution No. 5564 to vacate and abandon City rights-of-way in said Subdivision STRATEGIC PLAN:2.1 Business Growth: Support retention and growth of both the traded and local business sectors while welcoming and encouraging new and existing businesses, in coordination with the Economic Development Plan. BACKGROUND:A petition was received from the Montana Department of Transportation to vacate all street rights-of-way within the confines of their property on Tract 1, Lots 1-3 of the Gardner-Simmental Plaza Subdivision. On December 15, 2020 the City Commission held a public hearing on this petition and adopted Resolution No. 5226 , declaring it to be the intention of the Commission to discontinue, abandon, and vacate street rights-of-way in Tract 1, Lots 1-3 of Gardner-Simmental Plaza Subdivision. The Commission also directed a plat depicting the changes approved by this resolution, be brought back to the Commission for review and decision on final adoption. The Montana Department of Transportation has prepared an amended plat as instructed. Approving this resolution will formally approve the amended plat and vacate and abandon City rights-of-way as described above. UNRESOLVED ISSUES:None Identified ALTERNATIVES:As Suggested by the Commission FISCAL EFFECTS:None identified Attachments: Plat J-5-E.pdf res 5564.docx 51 Report compiled on: December 13, 2023 52 53 Resolution 5564 COMMISSION RESOLUTION NO. 5564 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, TO DISCONTINUE, ABANDON AND VACATE STREET RIGHTS-OF-WAY IN TRACT 1, LOTS 1-3 OF GARDNER- SIMMENTAL PLAZA SUBDIVISION, LOCATED IN SECTION 35, TOWNSHIP 1 SOUTH, RANGE 5 EAST, PRINICIPAL MERIDIAN MONTANA, GALLATIN COUNTY, MONTANA. WHEREAS,on the 15TH day of December, 2020, the City Commission (the "Commission") of The City of Bozeman, Montana (the "City") adopted Commission Resolution No. 5226 (the "Resolution of Intention"), stating its intent to discontinue, abandon, and vacate street rights-of-way in Tract 1, Lots 1-3 of Gardner-Simmental Plaza Subdivision; and WHEREAS, City Commission Resolution 3628 requires certain procedures be followed to review a petition to discontinue a street or alley including: (i) requiring the petition contain specific information; (ii) a report from the City’s Engineering Division; (iii) a public hearing on whether to approve the petition; (iv) notice both mailed to affected property owners and published in the Bozeman Daily Chronicle; and (v) adoption of this Resolution; and WHEREAS, notice was mailed in conformance with Resolution 3628 and a public hearing was held on December 15, 2020 at which time reasonable opportunity was provided to the public and those that have an interest in property abutting said right-of-ways to make objections to the discontinuance of these right-of-ways; and 54 Resolution 5564 WHEREAS, the subject street rights-of-way can be discontinued without detriment to the public interests; and WHEREAS, it is in the best interests of the City of Bozeman and the inhabitants therein that said right-of-ways be discontinued, provided, however, that said discontinuance does not affect the right of any public utility to continue to maintain its plant and equipment in said right-of-way. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, to wit: Section 1 Declaration of Abandonment and Vacation It is hereby declared by the City Commission of the City of Bozeman, Montana, to vacate all of the right-of-ways in Tract 1, Lots 1-3 of the Gardner-Simmental Plaza Subdivision as described as follows: All of Bannock Stage Court as described in the Gardner-Simmental Plaza Final Plat (J-5). Bannock Stage Court begins at Simmental Way and terminates at and including the cul-de-sac. All of Simmental Way from the south boundary of of Lot 3, Tract 1, of the Gardner- Simmental Plaza Final Plat (J-5) to the termination of the street right-of-way at the north boundary of Lot 2, Tract 1, of the Gardner-Simmental Plaza Final Plat (J-5). All as shown on the attached Amended Plat J-5-E The discontinuances shall not affect the right of any public or private utility facility to continue to maintain currently established plant and equipment in the street or alley right-of-ways. Section 2 Fee Title to Revert to Montana Department of Transportation 55 Resolution 5564 The fee title to the land where the right-of-ways will be discontinued will be declared, upon adoption of this resolution discontinuing the street, to revert to the Montana Department of Transportation, for their benefit. PASSED AND ADOPTED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 9th day of January, 2024. ________________________________________ ATTEST: Terry Cunningham, Mayor ____________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 56 Memorandum REPORT TO:City Commission FROM:Tom Rogers, Senior Planner Chris Saunders, Community Development Manager Erin George, Deputy Director of Community Development Anna Bentley, Director of Community Development SUBJECT:Resolution 5568, A Resolution of Intent to Amend the Future Land Use Map of the Bozeman Community Plan 2020, Application 23063 MEETING DATE:January 9, 2024 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Adopt Resolution 5568 setting dates for public hearings. STRATEGIC PLAN:4.1 Informed Conversation on Growth: Continue developing an in-depth understanding of how Bozeman is growing and changing and proactively address change in a balanced and coordinated manner. BACKGROUND:An application has been submitted to change the future land use map on 17.485 acres from Urban Neighborhood to Community Commercial Mixed Use. The property is located between Arnold and Graf Streets and east of South 19th Avenue. State law requires the City Commission adopt a resolution of intent as the first formal step in review of an amendment to the growth policy. The resolution of intent advises the public of the upcoming review and generally sets required public hearings before the Community Development Board in their capacity as the planning board and before the City Commission. No final action to amend the growth policy is taken with this resolution. The Bozeman Community Plan 2020 [External PDF Link] (BCP 2020) is a fundamental policy document guiding further growth and community development in Bozeman. It sets forth Bozeman's future growth policy for land-use and development. The purpose of the Plan is to guide the City’s community planning and to evaluate and prioritize the City’s actions moving forward. It reflects the community’s shared values and priorities. The Plan is the City’s long-range growth policy that meets the statutory requirements of Section 76-1-601 of the Mont. Code Ann. Bozeman’s first comprehensive plan (growth policy) was adopted in 1958. The City has replaced the growth policy six times since then to respond to a growing community and most recently in 2020 adopting the BCP 2020. State law requires review of the plan every five years after the plan is adopted. In 57 addition to the required review, the City Commission; independently or at the suggestion of the Planning Board or the City Staff; one or more landowner of property that are the subject of the amendment to the future land use map; and interested members of the public may suggest modifications to the text or map. Chapter 5 of the BCP 2020 describes who can request an amendment and how to evaluate the application. The City Commission has considered five (5) Growth Policy Amendments (GPA) from 2020 to 2024 including the repeal and replacement of the current BCP 2020. Individual applications to amend the Future Land Use Map include: Application 20021. Blackwood Groves GPA, hearing date June 8, 2020, Resolution 5176, [External Video Link] time stamp 1:02:30. Application 21309. South 3rd GPA, December 7, 2021, Resolution 5367, [External Video Link] time stamp 0:33:25. Application 21318. Mountains Walking GPA, November 23, 2021, Resolution 5357, [External Video Link] time stamp 0:35:15. Application 22282. Innovation Campus GPA, hearing date February 28, 2023, Resolution 5447, [External Video Link] time stamp 1:52:30. UNRESOLVED ISSUES:None. ALTERNATIVES:As determined by the Commission. FISCAL EFFECTS:No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this Growth Policy Amendment. Future development will incur costs and generate review according to standard City practices. Attachments: 23063 SRX North GPA Application.pdf 23063 SRX North GPA Boundary.pdf 23063 SRX North Resolution of Intent 5567.pdf Report compiled on: December 26, 2023 58 BOZEMANMT Community Development DEVELOPMENT REVIEW APPLICATION Remember to obtain owner signature on this form prior to uploading with the rest of your submittal PROJECT INFORMATION Project Name:SRX North GPA Project Type(s):Growth Policy Amendment GPA Street Address:NE corner of 19th and Graf, approximately 35.058 acres Legal Description: Minor Subdivision No 494 Block 1: Lot 1, 2, 3, 4 Description of Project: Growth Policy Amendment to update future land use designation from Urban Neighborhood to Community Commercial Mixed Use to support ZMA request of B2-M and REMU zoning. Current Zoning:R-1 Residential Low Density District, R-2 Residential Moderate Density DistrictExisting Use:Undeveloped Proposed Use:Commercial, Residential Gross Lot Area:1527126 Number of Buildings:0 Type and Number of Dwellings:0 Building Size (SF):0 Non-Residential Building Size (SF):0 Building Height (ft):0 Affordable Housing (Y/N):No Departure/Deviation Request (Y/N):No Zoning Verification Expedited (Y/N):No PROPERTY OWNER Company Name:Gilhousen Community Property TR DTD 3/30 Name:Karen Gilhousen Full Address:PO Box 11462, Bozeman, MT 59719 Email:karen@gilhousen.net Phone:(406) 551-7937 APPLICANT Company Name:Providence Developement Name:Parker Lange Full Address:Post Office Box 4082 , Bozeman, Montana 59715 Email:plange@providencedevco.com Phone:(406) 551-7939 59 REPRESENTATIVE Company Name:Providence Developement Name:Parker Lange Full Address:Post Office Box 4082 , Bozeman, Montana 59715 Email:plange@providencedevco.com Phone:(406) 551-7939 CERTIFICATIONS AND SIGNATURES Applicant signature is captured electronically at time of application submittal. This application PDF must also be signed by the property owner(s) for all application types before the submittal will be accepted. The only exception to this is an informal review application that may be signed by the applicant(s) only. The applicant(s) and property owner(s) submit this application for review under the terms and provisions of the Bozeman Municipal Code. It is further indicated that any work undertaken to complete a development approved by the City of Bozeman shall be in conformance with the requirements of the Bozeman Municipal Code and any special conditions established by the approval authority. I acknowledge that the City has an Impact Fee Program and impact fees may be assessed for my project. Further, I agree to grant City personnel and other review agency representative's access to the subject site during the course of the review process (Section 38.200.050, BMC). I (We) hereby certify that the above information is true and correct to the best of my (our) knowledge. Certification of Completion and Compliance - I understand that conditions of approval may be applied to the application and that I will comply with any conditions of approval or make necessary corrections to the application materials in order to comply with municipal code provisions. Statement of Intent to Construct According to the Final Plan - I acknowledge that construction not in compliance with the approved final plan may result in delays of pccupancy or costs to correct noncompliance. Property Owner Signature: Printed Name:Karen Gilhousen CONTACT US Alfred M. Stiff Professional Building phone 406-582-2260 20 East Olive Street fax 406-582-2263 Bozemn, MT 59715 planning@bozeman.net www.bozeman.net/planning 60 18S18S18S18S18S18S18S18S18S18S18S18S18S24W24W24W24W24W24W24W24W24W24W24W24W12W 12W 12W SD SD SD SD SD SD SD 18S18S10W 10W 10W 10W 10W 10W 10W 10W 10W 10W 10W 10W 10W 10S 10S 10S 10S 10S 10S 10S 18SD18SDS SS S S S 30SD30SDR=300.00' L=136.99' Δ=26°09'45" CB=S76°00'20"W CH=135.80' R=300.00' L=141.03' Δ=26°56'07" CB=S76°23'31"W CH=139.74' S89°05'06"W 1050.03'S0°09'06"E 1225.02'N0°42'18"W 1293.56'N89°23'18"E 1360.23' S89°05'06"W 30.00'N0°36'42"W1290.44'588.47'461.56' 590.57'769.66' ©COPYRIGHT MORRISON-MAIERLE, INC., SHEET NUMBER PROJECT NO.DRAWN BY: FLD WK. BY: CHK. BY: DATE: 2023 Plotted by matt e. ekstrom on May/3/2023N:\5659\018 Providence - ZMA Blk 1 MS 494\ACAD\Exhibits\5659018-GROWTH POLICY - SRX North 042423.dwgGROWTH POLICY AMENDMENT BOZEMAN MONTANA 5659.018 EX-1 JCW JCW MEE 05/2023engineers surveyors planners scientists MorrisonMaierle 2880 Technology Blvd West Bozeman, MT 59718 Phone: 406.587.0721 www.m-m.net 200SOUTH 19TH AVENUE2023 NE CORNER SOUTH 19th AVENUE & GRAF STREET GROWTH POLICY MAP AMENDMENT GROWTH POLICY AMENDMENT SUMMARY TOTAL ZONE AREA: LEGAL DESCRIPTION 39.86 acres GRAF STREET YELL O W S T O N E T H E O L O G I C A L INSTI T U T E M I N O R S U B 4 9 4 LOT 1, B L O C K 1 - 1 5. 0 6 9 A C LOT 2MINORSUB 235ALLI S O N S U B PHASE 4 A, L O T 1PLAT J-702ABOZE M A N COMM U NI T Y P L A N FUTU R E L A N D U S E: RESID E N T I A L MIXED U S E BOZEM A N C O M M U NI T Y PLAN F U T U R E L A N D USE: U R B A N NEIGH B O R H O O D COMMUNITY COMMERCIAL MIXED USE A Tract of land in the SW1/4 NW1/4 of Section 24, Township 2 South, Range 5 East, P.M.M, City of Bozeman, Gallatin County, Montana, being more fully described as follows: Beginning at the N 1/16th corner of section 24 and being the Point of Beginning; thence N.89°23'18" E. for a distance of 590.57 feet; thence S.0°36'42" E. for a distance of 1290.44 feet; thence S.89°05'06"W. for a distance of 588.47 feet to the section line common to sections 23 and 24; thence N.0°42'18" W. along said section line for a distance of 1293.56 feet to the Point of Beginning.SOUTH 15TH AVEREMU ZONING:22.378 acres POINT OF BEGINNING EXITI N G Z O NI N G: R- 1 & R - 2 LOT 3, B L O C K 1 7.644 A C LOT 4, B L O C K 1 10.51 9 A C LOT 2, B L O C K 1.826 A C COMM O N O P E N SPAC E ALLIS O N S U B PHAS E 4 A, L OT 2PLAT J-702ALOT 1MIN OR SUB 235BLOT 1, BLOCK 3SOUTHUNI V E RSI T Y DISTRICT PH 3PLAT J-695CITY PARK 3SOUT H UNIVERSITYDISTRICT PH-3PLAT J-695 ARNOLD STREET 14TH AVENUEYELL O W S T O N E T H E O L O GI C A L INSTIT U T E MI N O R S U B 4 9 4 LOT 1, B L O C K 2 TRACT AMINORSUB 235ALOT 3MIN O R SUB 235ABOZE M A N C O M M U NI T Y PLAN F U T U R E L A N D USE: U R B A N NEIGH B O R H O O D BOZE M A N C O M M U N I T Y PLAN F U T U R E L A N D USE: U R B A N NEIGH B O R H O O D BOZE M A N C O M M U N I T Y PLAN F U T U R E L A N D USE: U R B A N NEIG H B O R H O O D BOZEM A N C O M M U N I T Y PLAN F U T U R E L A N D USE: U R B A N NEIGH B O R H O O D ALLISON SUBPHASE 4A, LOT 1PLAT J-702 A B2-M:17.485 acresPROPOSE D G R O WT H P O LI C Y COM M U NIT Y C O M M E R CI AL MIXE D US E GPA BOUNDARY 61 Version April 2020 RESOLUTION 5567 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, STATING THE INTENT OF THE CITY COMMISSION TO CONSIDER AN AMENDMENT TO THE FUTURE LAND USE MAP OF THE BOZEMAN COMMUNITY PLAN 2020. WHEREAS, the City of Bozeman has had a comprehensive plan (growth policy) since 1958, and WHEREAS, the City of Bozeman adopted its growth policy known as the Bozeman Community Plan 2020 (BCP) through Resolution 5133 on November 17, 2020, and WHEREAS, the Bozeman Community Plan 2020, Chapter 5, establishes criteria for the amending of the document, and WHEREAS, an application has been received to amend the Future Land Use Map of the growth policy, and WHEREAS, in accordance with 76-1-602, MCA, the City Commission must adopt a resolution of intent and conduct a public hearing prior to taking any action to adopt or revise a growth policy, Section 1 In accordance with the requirements of Section 76-1-604 MCA, the intent to consider the application for amendment and possible corresponding revisions to the growth policy is hereby stated. Section 2 That a public hearing be set and advertised for the purpose of receiving public testimony on application 23063, SRX North growth policy amendment to the Future Land Use Map of the Bozeman Community Plan. Expected dates are with the Planning Board hearing on January 22, 2024 and the City Commission hearing on February, 2024. 62 Version April 2020 NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, to wit: PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the _____ day of ________, 2024. ___________________________________ TERENCE CUNNINGHAM Mayor ATTEST: ___________________________________ ALEX NEWBY Deputy City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 63 Memorandum REPORT TO:City Commission FROM:Max Ziegler - Facilities Project Coordinator Mike Gray - Facilities Superintendent Jon Henderson - Strategic Services Director SUBJECT:Resolution 5570 Authorizing the Use of an Alternative Project Delivery Contract for a Design - Build Firm for Design, Preconstruction, and Construction Services for the Lindley Center Renovation MEETING DATE:January 9, 2024 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Adopt Resolution 5570 Authorizing the Use of an Alternative Project Delivery Contract for a Design - Build firm for Design, Preconstruction, and Construction Services for the Lindley Center Renovation. STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:The Lindley Center Renovation project was approved for funding through a bond measure passed by the voters of the City of Bozeman on November 2, 2021. This project is intended to address a number of long term deficiencies in the facility's structure and building systems, and return the facility to public use after two years of closure required by the building's poor condition. The Lindley Center is a community and recreation center available for rent to the general public and frequently used for weddings, meetings and presentations, and outdoor activity groups. The original structure was a log building on a rubblestone foundation built in the early 1900's, however numerous additions and reconfigurations have been included over the decades to meet the buildings changing uses. This has left the Lindley Center aging and deteriorating structurally, presenting safety risks, as well as with a collection of outdated and poorly integrated mechanical, electrical and plumbing systems. In order to preserve the building structurally and ensure its future use as a community events center, it is essential that the Lindley Center undergo a full ground up renovation. The recreation facility improvement bond that is funding this renovation stated that this work was to include "Upgrading restrooms to meet current Americans with Disabilities Act requirements, replacing windows and log siding, upgrading the kitchen, insulating the east roof, installing floor and 64 roof supports, improving the parking lot and related site improvements." To ensure that this project is adequately addressing the current structural deficiencies, a structural engineer was contracted to inspect the building and document the items to be addressed. Given the age of the structure, lack of documentation, and apparent deficiencies, this renovation poses a number of challenges often encountered in construction projects on 100 year old buildings. It is very likely that concealed structural conditions will not be fully understood until demolition has begun, and the selected construction contractor will need to be able to exercise agility and creativity in developing buildable solutions. On a traditional construction project, construction drawings and plans are developed well before construction begins and the construction contractor submits pricing based on those construction drawings. With a project containing a number of unknowns, the traditional design-bid-build delivery method is often disadvantageous as the project bids and budget are based on incomplete information. Then, when unexpected conditions are encountered the project experiences delays and cost overruns as the architect creates new drawings and the contractor prices out the work as drawn. This frequently leads to exceeding budgets, project delivery delay, and reduced quality of outcomes. An alternative to the Design-Bid-Build method is the Design-Build method. In this contract delivery method the General Contractor and the Architect are a single entity and work together to develop cost effective and buildable designs. When plans need to be revised to account for unknown conditions, the Design-Build team is able to work quickly and collaboratively to identify the best solutions and implement them without delay. In a Design-Build Contract the Owner defines the budget and criteria for the project, and then a proposing Design-Build contractor creates a design to best meet the Owners needs and deliver the highest possible value achievable within the budget. The contract is then awarded to the firm which is most qualified and presented the best project outcome. This allows the contractor a wide degree of creativity in meeting the project goals, and benefits from a highly collaborative approach with the General Contractor and Architect working as a team. In 2005, the Montana Legislature created an alternative project delivery process for certain construction projects of the state and local government. MCA 18-2-502 establishes requirements that must be met in order to use an alternative project delivery contract, including a written justification. City staff recommends using the Design-Build process in the Lindley Center Renovation. In the past the City has successfully used alternative project delivery processes in the construction of several municipal projects including the Public Library, Bridger Parking Garage, Fire Station 3, the Anderson Pavilion at Bogert Park, and the Public Safety Center. While the City of Bozeman has not yet utilized the Design-Build Process, the City has successfully used the General Contractor / Construction Manager format in the past. Based on the 65 prior successes of employing alternative project delivery methods on City construction projects, there is confidence that the Design-Build method will similarly result in improved project outcomes when applied to appropriate projects. As the Lindley Center renovation is a relatively small project with a clearly defined scope, but significant structural unknowns, it is Staff's opinion that this project presents an appropriate opportunity to utilize a Design- Build contractor. All sub-elements of construction will be bid in accordance with the Montana Procurement Act MCA 18-4-300 to ensure competitive prices are received by the City. UNRESOLVED ISSUES:None at this time. ALTERNATIVES:As directed by City Commission. FISCAL EFFECTS:The Lindley Center renovation will be funded through bonds approved by public vote on November 2, 2021 supplemented by General Fund allocations in the Capital Improvements Plan. Attachments: Resolution 5570 - Alternative Delivery Method Lindley Center Renovation.docx Report compiled on: December 27, 2023 66 Version April 2020 RESOLUTION 5570 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, WHEREAS,the City of Bozeman is proceeding with the Lindley Center renovation and is in need of a Design-Build Contractor to provide preconstruction and construction services; and WHEREAS,Sec. 18-2-502, MCA, authorizes a local governing body, upon adoption of a resolution to use an alternative project delivery contract upon showing specific statutory criteria have been met; and WHEREAS,the City Commission determines the use of a Design-Build Contractor for preconstruction and construction services is in the best interest of the City. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana: Section 1 The Bozeman City Commission hereby authorizes the use of an alternative delivery project contract for a Design-Build Contractor for services related to the Lindley Center renovation project. Section 2 The City Commission determines: 1. The City has knowledgeable staff including the Strategic Services Director as Project Manager, City Attorney, Facilities Superintendent, Facilities Project Coordinator, and its Architectural and Engineering consultants, who have the capacity to manage an alternative project delivery contract. 2. The contract will be awarded in a manner consistent with state law and City policies through publication of a request for qualifications and a request for proposals submitted to qualified applicants with a final selection to be made upon merit and qualifications. The process will be conducted in a manner that will not encourage favoritism or bias nor substantially diminish competition, by conducting the process in 67 Version April 2020 such a manner that only qualified contractors will be eligible, and that the award of the contract will be based on experience and expertise of the applicants. 3.The contract between the City and the Design-Build Contractor will require all subcontractors to be selected through a competitive bidding process in compliance with applicable state and local law. Section 3 The City Commission determines that by using a Design-Build Contractor, the involvement of such a professional will contribute to significant cost savings for the Lindley Center renovation. Significant cost savings that justify an alternative project delivery contract in this case derive from but are not limited to value engineering, life cycle analysis, and construction planning. In addition, the City Commission determines the project presents significant complexities related to the phasing of construction that necessitate the use of a Design-Build Contractor. PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the _____ day of ________, 20____. ___________________________________ TERENCE CUNNINGHAM Mayor ATTEST: ___________________________________ ALEX NEWBY Deputy City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 68