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HomeMy WebLinkAbout02-13-24 City Commission Meeting 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. Changes to the Agenda D. FYI E. Commission Disclosures F. Consent F.1 Accounts Payable Claims Review and Approval (Armstrong) F.2 Appoint a sub-committee of two commissioners to review pledged securities as of December 31, 2023.(Clark) F.3 Portable Toilet Agreement with TLC (TLC Septic & Excavation Inc.) for portable toilet services THE CITY COMMISSION OF BOZEMAN, MONTANA REGULAR MEETING AGENDA Tuesday, February 13, 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 at select urban camping areas in the City of Bozeman.(Peters ) F.4 Authorize City Manager to Sign Professional Services Agreements for Facilities Contractors Term Contracts - Fall Procurement Addition #1(Ziegler) F.5 Authorize the City Manager to sign approve an Amendment to the Construction Agreement with Constructive Solutions Incorporated for the Downtown Alley Enhancement Project.(Staley) F.6 Authorize the City Manager to Sign a Third Amendment to the Professional Services Agreement with Advantage Spraying Services, Inc. for Landscape Maintenance Services in the Parks and Trails District(Kline) F.7 Authorize the City Manager to Sign a Third Amendment to the Professional Services Agreement with Stay Green Sprinklers Inc. for Irrigation Maintenance Services in the Parks and Trails District(Kline) F.8 Authorize the City Manager to Sign a Third Amendment to the Professional Services Agreement with Hydro Logistics Irrigation LLC. for Irrigation Maintenance Services in the Parks and Trails District(Kline ) F.9 Resolution 5581 Approving, Pursuing, and Negotiating a Lease-Purchase Financing and Associated Documentation; and Making a Related Declaration of Intent to Reimburse for certain costs of furnishing and equipping Fire Station 2, the Bozeman Swim Center, Bogert Pool and the Lindley Center, and purchasing vehicles and/or other equipment for the City’s solid waste operations.(Hodnett) F.10 Resolution 5582, Update to the Fair Market Value of Land for Cash-in-lieu of Parkland Calculations(Jadin) G. Public Comment H. Action Items H.1 Public Hearing and Resolution 5573 Establishment of Priority Projects for HB355 State-Local Infrastructure Partnership Program(Ross) I. FYI / Discussion J. Adjournment 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 2 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. 3 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:February 13, 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 February 14, 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: February 5, 2024 4 Memorandum REPORT TO:City Commission FROM:Clark SUBJECT: Appoint a sub-committee of two commissioners to review pledged securities as of December 31, 2023. MEETING DATE:February 13, 2024 AGENDA ITEM TYPE:Finance RECOMMENDATION: Appoint Commissioner Fischer and Commissioner Coburn to review the depository bonds and pledged securities as of December 31, 2023. 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: 17-6-102. Insurance on deposits. (1) Deposits in excess of the amount insured by the federal deposit insurance corporation or the national credit union administration may not be made unless the bank, building and loan association, savings and loan association, or credit union first delivers to the state treasurer or deposits in trust with some solvent bank, as security therefore, bonds or other obligations of the kinds listed in 17-6-103, having a market value equal to at least 50% of the amount of the deposits in excess of the amount insured. The board of investments may require security of a greater value. When negotiable securities are placed in trust, the trustee's receipt may be accepted instead of the actual securities if the receipt is in favor of the state treasurer, successors in office, and the state of Montana and the form of receipt and the trustee have been approved by the board of investments. (2) Any bank, building and loan association, savings and loan association, or credit union pledging securities as provided in this section may at any time substitute securities for any part of the securities pledged. The substituted collateral must conform to 17-6-103 and have a market value at least sufficient for compliance with subsection (1). If the substituted securities are held in trust, the trustee shall, on the same day the substitution is made, forward by registered or certified mail to the state treasurer and to the depository financial institution a receipt specifically 5 describing and identifying both the securities substituted and those released and returned to the depository financial institution. Section 7-6-207 (2), MCA requires the City Commission to approve pledged securities at least quarterly. The Commission appoints two commissioners quarterly on a rotating basis. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the City Commission FISCAL EFFECTS:The city is sufficiently pledged. Attachments: Depository Bonds & Securities 1223.doc Report compiled on: January 30, 2024 6 DEPOSITORY BONDS AND SECURITIES AS OF December 31, 2023 MATURITY CUSIP NO/LOC NO. TOTAL AMOUNT US BANK All Accounts Federal Deposit Insurance Corporation-Operating Accts $ 250,000.00 LOC-FHLB Cincinnati 1/12/2024 572036 $ 20,000,000.00 TOTAL – US Bank $ 20,250,000.00 This is to certify that we, the Commission of the City of Bozeman, in compliance with the provisions of Section 7-6- 207, M.C.A., have this day certified the receipts of US Bank, for the Depository Bonds held by the Director of Finance as security, for the deposit for the City of Bozeman funds as of December 31, 2023, by the banks of Bozeman and approve and accept the same. _____________________________________________ TERENCE CUNNINGHAM, Mayor ______________________________________________________________________________ JOEY MORRISON, Deputy Mayor CHRISTOPHER COBURN, Commissioner ______________________________________________________________________________ JENNIFER MADGIC, Commissioner DOUGLAS FISCHER, Commissioner 7 PLEDGED SECURITIES AND CASH IN BANK As of December 31, 2023 US BANK Total Cash on Deposit $10,518,439.65 FDIC Coverage $250,000.00 Amount Remaining $10,268,439.65 Pledges Required 104%$10,679,177.24 Actual Pledges $20,000,000.00 Over (Under) Pledged $9,320,822.76 REFERENCE: Section 7-6-207, M.C.A. 8 Memorandum REPORT TO:City Commission FROM:Kira Peters, Assistant City Manager Chuck Winn, Assistant City Manager Ben Bailey, Neighborhood Services & Compliance Manager SUBJECT:Portable Toilet Agreement with TLC (TLC Septic & Excavation Inc.) for portable toilet services at select urban camping areas in the City of Bozeman. MEETING DATE:February 13, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign a Professional Services Agreement with TLC Septic & Excavation Inc to provide portable toilets at select urban camping areas in the City of Bozeman. STRATEGIC PLAN:3.1 Public Safety: Support high quality public safety programs, emergency preparedness, facilities, and leadership. BACKGROUND:The City of Bozeman is committed to keeping the community safe and clean. This work includes a focus on public right of ways where urban camping is occurring. At the direction of City Commission, the city will coordinate with vendor TLC Septic and Excavation Inc, the placement of portable toilets at predetermined urban camping areas within in the city. The goal is to reduce biohazards in these areas by offering access to portable restroom units (portable toilets). This effort is in support of the newly created Neighborhood Services Division, a division that will work on code compliance/enforcement, building community relationships and complimenting the work of the city's social service partners by connecting people in need to resources. Contract Timeline: February 2024 through June 2024 with option to renew for additional year (July 2024 thru June of 2025). Objectives: Objective 1: To place 10 portable toilets at select locations in the City of Bozeman at areas where urban camping is occurring to reduce biohazard 9 waste and keep the entire community safe. Task 1.1: Place portable toilets at select locations identified by the City of Bozeman’s Neighborhood Services team (location information will be shared with vendor and map provided along with city staff meeting vendor on locations to ensure correct placement). At the time of this agreement the following areas have been identified but can change based on need. Max Ave and Rawhide Road area Nelson Meadows Road area Wheat Drive 11th Ave near Patrick St. Baxter Meadows area Equestrian Rd. Galloway St. Kimberwicke St. Veronica Way Implementation: Beginning in February 2024 the vendor will place 10 portable toilets at the above noted locations in the City of Bozeman and maintain the monthly service through June 2024, at which time the contract can be extended for one additional year if desired by contractor and the City. Units will be serviced one time per week. Any additional servicing will cost $85 per unit, per clean. Monthly Budget: The estimated monthly cost of this professional service is $3000 which includes $400 budgeted for unexpected needs/expenses. $210 per portable toilet a month X 10 toilets = $2100 $50 per unit for winter additive to prevent units from freezing. 10 units x $50 = $500 $400 for unexpected or additional monthly costs = $400. Payment: February 2024 – June 2024 : The City will pay TLC upon receipt of monthly invoices for 5 months (February 2024 through June 2024). Expenses shall not exceed $20,000 (including $5000 for unexpected expenses or additional units) for the duration of the 5-month period (February 2024 through June 2024). 10 Extended Year: July 2024-June2025. If both parties agree to extend the contract for an additional year expense shall not exceed $41,000 for the additional year (July 2024 through June 2025 – 12 months x $3000 per month + $5000 for unexpected costs/additional units). UNRESOLVED ISSUES:Due to the unknown impacts on the portable toilet units in urban camping areas, the City and TLC are doing a pilot trial to ensure adequate use of the units. If units are damaged or not used appropriately, TLC will have the option to terminate the agreement after the established trial period of February 2024 through June of 2024. ALTERNATIVES:None. FISCAL EFFECTS:On average the monthly cost of 10 portable toilet units is $3,000. This includes the cost of a winter additive to prevent units from freezing, weekly cleaning and additional funds for unexpected costs (extra toilet paper or additional cleanings as necessary). Attachments: TLC Rental Agreement Portable Toilets.pdf City of Bozeman PSA Portable Toilets Signed TLC.pdf Report compiled on: January 30, 2024 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Memorandum REPORT TO:City Commission FROM:Jon Henderson - Strategic Services Director Mike Gray - Facilities Superintendent Max Ziegler - Facilities Project Coordinator SUBJECT:Authorize City Manager to Sign Professional Services Agreements for Facilities Contractors Term Contracts - Fall Procurement Addition #1 MEETING DATE:February 13, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign Professional Services Agreements for Facilities Contractors Term Contracts - Fall Procurement Addition #1 STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:The Facilities Dept. regularly uses general contractors and specialty trades contractors for projects related to facilities management and maintenance. To attract a wider pool of contractors the Facilities Dept. published an RFQ for contractors of all trades on October 21st, 2023, with the intention of placing qualified respondents on a preferred contractor list and establishing agreements to provide contractor services at pre-negotiated rates. This will help minimize procurement delays in responding to future facilities projects as they arise. When responding to emergency maintenance needs, procurement delays can significantly increase building downtime resulting in impacts to the public and staff. Maintaining term contracts with general and specialty trade contractors positions the City to be able to adequately respond to facilities needs while also building stronger contractor relationships. A recent example of the benefits of having term contracts with general contractors and trade contractors was the 2022 emergency repairs at the Swim Center, where a general contractor under a term contract was able to immediately start work on the repairs without procurement delays. This reduced the duration of the facility closure for repairs by nearly two months, reducing impacts to the public and City operations. The contractors listed below responded to the Request for Qualifications and were evaluated by the review committee to be qualified to provide the services detailed in their statements of qualifications and their proposals. Term Contract proposals were extended to all responding contractors who 25 were evaluated as 'qualified' by the review committee. This agenda item is in addition to the previously submitted Facilities Contractors Term Contracts to correct clerical errors in the previously submitted contract documents. Previously submitted contracts with the following contractors have been voided and resubmitted as corrected. Contracts included in this item: 3B Rehabilitation Services dba No Dig Team - Pipe Inspection and Lining S. Conley Support - HVAC Service UNRESOLVED ISSUES:None at this time. ALTERNATIVES:As suggested by City Commission FISCAL EFFECTS:Services provided under these term contracts will be provided at the pre- negotiated rates as stated in the Scope of Services for each contract. Services are to be provided on an 'as-needed' basis and individual project expenses are to be project specific with projects initiated via task order. Total contracted project costs are to be $79,999 or less per the City of Bozeman Purchasing Policy. Attachments: PSA - Master Task Order - 3B Rehabilitation Services - Compiled.pdf PSA - Master Task Order - S Conley Support - Compiled.pdf Report compiled on: February 1, 2024 26 Professional Services Master Task Order Agreement for [____] Services Page 1 of 15 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, 3B Rehabilitation Services LLC dba No Dig Team, 920 Peosta Ave., Helena, MT 59601, 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 Pipe Inspection and Repair Services 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 January 1, 2029, 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 B, 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 EXHIBIT A. 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 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 EXHIBIT A. The City must agree in writing upon any additional charges. 27 Professional Services Master Task Order Agreement for [____] Services Page 2 of 15 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’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. 28 Professional Services Master Task Order Agreement for [____] Services Page 3 of 15 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 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 29 Professional Services Master Task Order Agreement for [____] Services Page 4 of 15 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). d. Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. 30 Professional Services Master Task Order Agreement for [____] Services Page 5 of 15 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;  Employers’ Liability - $1,000,000 per occurrence and annual aggregate;  Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; 31 Professional Services Master Task Order Agreement for [____] Services Page 6 of 15  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 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 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. l. 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. 32 Professional Services Master Task Order Agreement for [____] Services Page 7 of 15 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 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. 33 Professional Services Master Task Order Agreement for [____] Services Page 8 of 15 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 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. 34 Professional Services Master Task Order Agreement for [____] Services Page 9 of 15 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. 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. 35 Professional Services Master Task Order Agreement for [____] Services Page 10 of 15 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 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 36 Professional Services Master Task Order Agreement for [____] Services Page 11 of 15 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 Max Ziegler, Facilities Project Coordinator, 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 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 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 Edward Kerins, 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. 37 Professional Services Master Task Order Agreement for [____] Services Page 12 of 15 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. 18. 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. 19. 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 38 Professional Services Master Task Order Agreement for [____] Services Page 13 of 15 plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. 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. 20. 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. 21. 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. 22. 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. 23. 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. 24. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 25. Dispute Resolution: 39 Professional Services Master Task Order Agreement for [____] Services Page 14 of 15 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. 26. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 27. 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. 28. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 29. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 30. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 31. 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. 32. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 33. 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 40 Professional Services Master Task Order Agreement for [____] Services Page 15 of 15 prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 34. 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 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 41 EXHIBIT A 42 Member of the Team 3B Rehabilitation Services LLC 920 Peosta Ave. Helena, MT 59601 (406) 594-1040 Nodigteam.com December 18, 2023 Max Zeigler Facilities Project Coordinator City of Bozeman 20 E. Olive Street, Office 0148 Bozeman, MT 59715 Dear Mr. Zeigler, I have attached a preliminary rate sheet to proceed with the negotiations for a term contract with the City of Bozeman for as-needed pipe restoration services. “The rate sheets can be updated at any time to account for changing market conditions.” The projects will include underground or in-structure pipe rehabilitation. We have built evaluation steps in the process since the installation of CIPP may not be the proper solution. Additionally, the site conditions may be favorable such that steps in the outlined process may not be applicable. This rate sheet may be revised and expanded as the application of the solution achieves more significant consideration. We understand this growth process. We appreciate the opportunity provided and look forward to the successful negotiation of a contract and the successful completion of projects. Sincerely, Edward C. Kerins President 3B Rehabilitation Services LLC dba No Dig Team 43 No Dig Team City of Bozeman December 2023 Rate sheet Proposed rate sheet for services offered to the City of Bozeman via Task Order contract Lump Sum/Minimum Unit Price Units Cost CCTV Cln/Dscl CIPP Site Preparation 1 Site Access N/C $100.00 incl 2 Site Assessment N/C incl incl 3 Pipeline access N/C Plumber incl Mobilization 4 Equipment set up $50.00 Extra Piece N/C $100.00 $250.00 CCTV of pipeline 5 Initial inspection 4"$4.00 Foot $350.00 6"$4.00 Foot $350.00 8"$5.00 Foot $350.00 6 Initial report incl 7 Project Evaluation $75.00 Hour $100.00 Cleaning and descaling of pipeline 44 8 Jetter Cleaning $17.50 Foot 9 Mechanical Cleaning and Descaling 4"$30.00 Foot 6"$35.00 Foot 8"$45.00 Foot CCTV of pipeline Minimum 10 Preline inspection 4"$3.00 Foot 6"$4.00 Foot 8"$5.00 Foot 11 PACP/LACP Report $1.50 Foot $150.00 12 Project Evaluation $75.00 Hour $100.00 Installation of CIPP Installation of CIPP Unit Price Units Cost 13 Resin Impregnated Liner 4"$185.00 Foot 6"$205.00 Foot 8"$225.00 Foot 14 Calibration Tube 4"incl 6"incl 8"incl 15 Branch line reinstatements 3"$500.00 ea 45 4"$750.00 ea 6"$100.00 ea 8"$1,250.00 ea Site Cleanup Minimum 16 Demobilization $50.00 Extra Piece $0.00 17 Exit conference $75.00 Hour $100.00 46 EXHIBIT B 47 City of Bozeman Term Contract: Task Order Number # PROJECT: Issued under the authority of City of Bozeman Term Contract Professional Services Agreement With: For: This Task Order is dated between: and The following representatives have been designated for the work performed under this Task Order City: Contractor: SCOPE OF WORK: COMPENSATION IN WITNESS WHEREOF, the parties authorized to commit resources of the parties have executed this Task Order: City of Bozeman 48 Professional Services Master Task Order Agreement for HVAC Sales and Service Page 1 of 15 PROFESSIONAL SERVICES MASTER TASK ORDER AGREEMENT THIS AGREEMENT is made and entered into this _____ of February, 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, S. Conley Support, LLC., 384 Gallatin Park Dr., Suite 201, Bozeman, MT 59715, 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 HVAC Sales, Installation, and Service, 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 January 1, 2029, 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 B, 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 EXHIBIT A. 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 Agreement amount will be performed by Contractor after written request by the City, and will become an 49 Professional Services Master Task Order Agreement for HVAC Sales and Service Page 2 of 15 additional charge over and above the amount listed in EXHIBIT A. 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 50 Professional Services Master Task Order Agreement for HVAC Sales and Service Page 3 of 15 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. 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. 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. e. 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 51 Professional Services Master Task Order Agreement for HVAC Sales and Service Page 4 of 15 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). 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. 52 Professional Services Master Task Order Agreement for HVAC Sales and Service Page 5 of 15 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;  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 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 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. 53 Professional Services Master Task Order Agreement for HVAC Sales and Service Page 6 of 15 l. 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 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 54 Professional Services Master Task Order Agreement for HVAC Sales and Service Page 7 of 15 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 tests required by City to verify that such defective or nonconforming condition has been corrected. Contractor warrants the corrective action taken against defective and 55 Professional Services Master Task Order Agreement for HVAC Sales and Service Page 8 of 15 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. 56 Professional Services Master Task Order Agreement for HVAC Sales and Service Page 9 of 15 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. 57 Professional Services Master Task Order Agreement for HVAC Sales and Service Page 10 of 15 b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement 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: 58 Professional Services Master Task Order Agreement for HVAC Sales and Service Page 11 of 15 a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Max Ziegler, Facilities Project Coordinator, 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 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 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 Ryan DeBruycker 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. 59 Professional Services Master Task Order Agreement for HVAC Sales and Service Page 12 of 15 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. 18. 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. 19. 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 60 Professional Services Master Task Order Agreement for HVAC Sales and Service Page 13 of 15 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. 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. 20. 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. 21. 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. 22. 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. 23. 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. 61 Professional Services Master Task Order Agreement for HVAC Sales and Service Page 14 of 15 24. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 25. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 26. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 27. 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. 28. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 29. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 30. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 31. 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. 32. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 62 Professional Services Master Task Order Agreement for HVAC Sales and Service Page 15 of 15 33. 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. 34. 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 first above written. CITY OF BOZEMAN, MONTANA S. CONLEY SUPPORT, LLC CONTRACTOR By________________________________ By__________________________________ Jeff Mihelich, City Manager Print Name: Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 63 EXHIBIT A 64 S. Conley Support - Service technician rates Labor Rate $179.00 Weekend or Overtime labor rate $268.50 Holiday labor rate $358.00 Truck Charges per trip within 35 mile radius of Bozeman $50/trip 65 EXHIBIT B 66 City of Bozeman Term Contract: Task Order Number # PROJECT: Issued under the authority of City of Bozeman Term Contract Professional Services Agreement With: For: This Task Order is dated between: and The following representatives have been designated for the work performed under this Task Order City: Contractor: SCOPE OF WORK: COMPENSATION IN WITNESS WHEREOF, the parties authorized to commit resources of the parties have executed this Task Order: City of Bozeman 67 Memorandum REPORT TO:City Commission FROM:Ellie Staley, Executive Director Downtown Bozeman Partnership SUBJECT:Authorize the City Manager to sign approve an Amendment to the Construction Agreement with Constructive Solutions Incorporated for the Downtown Alley Enhancement Project. MEETING DATE:February 13, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:I move to Authorize the City Manager to sign an Amendment to the Construction Agreement with Constructive Solutions Incorporated for the Downtown Alley Enhancement Project. STRATEGIC PLAN:4.4 Vibrant Downtown, Districts & Centers: Promote a healthy, vibrant Downtown, Midtown, and other commercial districts and neighborhood centers – including higher densities and intensification of use in these key areas. BACKGROUND: This Alley Enhancement Project is a continuation of a The Downtown Bozeman Improvement Plan (2019) which, like the plans before it, envisions enlivening the downtown alleyways: “Signage, lighting, murals and art, and landscape can all co- exist with the important functional elements of the alleys, like service and loading, while adding vitality and identity to these unique spaces. The alleys are also prime spaces for experimentation, almost “hidden” gems that need to be discovered.” In 2020, the Downtown Business Partnership (DBP) completed a conceptual study to review several existing alleyways in downtown Bozeman and explore ideas to improve the functionality, pedestrian access, aesthetics, and vibrancy of these valuable public spaces. This study was used to produce drawings for this alley to serve as a pilot project. This First Amendment to the Construction Agreement will ensure the completion of the first Alley Enhancement infrastructure pilot project along the alley north of Main Street between North Tracy Avenue and North Black Avenue (behind the parking garage) and will hopefully provide a platform for continued alley enhancements in the future. UNRESOLVED ISSUES:No unresolved issues. ALTERNATIVES:Alternatives as proposed by the Commission. FISCAL EFFECTS:None. Funding for this project is from the DURD '23FY budget. 68 Attachments: First Am. Dwtwn Alley Enhance Agmt_final.pdf Exhibit A - Notice of Award - ALLEY.pdf Ex. C Artwork Scope of Services_alley.pdf Ex. C Final_Artwork_Plans_and_Drawings_1-9-2024.pdf Ex. D Clarke Transfer-Assignmnet Copyright final.pdf Ex. D Dzintars Transfer-Assignmnet Copyright final.pdf Ex. D Nall Transfer-Assignmnet Copyright final.pdf Ex. E Dzintars VARA Waiver of Rights final.pdf Ex. E Nall VARA Waiver of Rights final.pdf Ex. E VARA Clarke Waiver of Rights final.pdf Exhibit B - Scope of Services_revised.pdf Report compiled on: January 29, 2024 69 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 1 of 23 FIRST AMENDMENT TO CONSTRUCTION AGREEMENT This Construction Agreement is made and entered into this _____ day of ____________, 202__ (“Effective Date”), by and between the BOZEMAN DOWNTOWN URBAN RENEWAL DISTRICT, an agency of 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, CONSTRUCTIVE SOLUTIONS, INC., hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” Recitals A. The City issued an Invitation to Bid for the construction project known as Downtown Bozeman Alley Enhancement Pilot Project (“Construction Project”) pursuant to the requirements of all applicable statutes, rules, regulations, and ordinances. B. The City analyzed all responses to the Invitation to Bid received pursuant to its standard practices and the requirements of all applicable statutes, rules, regulations, and ordinances. C. Upon the full execution of this Construction Agreement, the City will issue the Notice of Award, attached as Exhibit A, to Contractor. In consideration of the covenants, agreements, representations, and warranties contained herein, the Parties agree as follows: Agreement 1. Work to be Performed: a. A description of the work to be performed including asphalt coatings, visual enhancements via murals and sculpture installation, lighting improvements, landscape and hardscape improvements, site furnishings, signage, and miscellaneous other items in and around the alley between North Tracy Avenue and North Black Avenue within the City of 70 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 2 of 23 Bozeman (the “Construction Project”) and Contractor’s duties is set forth in the Scope of Services attached hereto as Exhibit B and by this reference made a part hereof. The City’s Notice of Award is attached here as Exhibit A. A part of the Construction Project includes the installation of commissioned murals and sculptures (“Artwork”), which is detailed in Artwork Scope of Services, attached Exhibit C. When the term “Artwork” is specifically used in this Agreement, it explicitly excludes any other work described in paragraph 1(a) of this Construction Agreement. Contractor and the City are jointly responsible for the approval of all selected Artwork that will be installed as part of the Construction Project. The following constitute the Construction Documents and are made a part of this Agreement as if incorporated herein: • This Agreement; • All required insurance; • The Contractor’s Nondiscrimination and Gender Pay Affirmation; • The Scope of Services; • Artwork Scope of Services; • The Notice of Award; • The Drawings, Plans, and Specifications; • Artwork Plans and Drawings; • Transfer and Assignment of Copyright for Public Artwork; and • 1990 Visual Artists’ Rights Act Waiver. Where a provision of any other portion of the Construction Documents conflicts with this Agreement, the terms and conditions of this Agreement shall control. All work under this Agreement that is subject to the Montana Public Works Standard Specifications or the City’s Modifications to the same must comply with such standards. b. Prior to the commencement of any work on the Construction Project, Contractor’s representatives and City’s representatives shall hold a meeting to establish a working understanding among the parties as to the scope of the Construction Project and duties of the Contractor. At this meeting, Contractor and City shall resolve any outstanding issues related to the plans, designs, drawings, and specifications. If the parties are unable to resolve these issues and the City fails, refuses, or is unable to approve the same, no work shall commence on the Construction Project until such issues are resolved. 71 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 3 of 23 c. Except as provided elsewhere in this Agreement, Contractor shall furnish all the labor, materials, equipment, tools, and services necessary to perform and complete the Construction Project. d. During work on the Construction Project, and as part of the final completion of the Construction Project, Contractor shall clean up the Project site, including the removal and satisfactory disposal of all waste, garbage, excess materials, and equipment, and the performance of any other work necessary to restore the site to at least as good order and condition as at the commencement of the Construction Project. 2. City-Supplied Materials: The City may supply materials from time to time in furtherance of the Construction Project. 3. Time of Performance: a. Contractor shall begin the Construction Project after receiving a Notice to Proceed from City and shall complete the Construction Project no later than August 31, 2024. Time is of the essence of completion of all work and each phase of the Construction Project. b. The City’s Representative must develop a Construction Schedule in consultation with the Contractor. Contractor’s construction plan, methods of operation, materials used, and individuals and subcontractors employed (collectively “Contractor’s Resources”) are subject to the City’s approval at all times during the term of this Agreement and must be such as to ensure the completion of the work in compliance with the deadlines set in the Construction Schedule during the term of this Agreement. In the event the City determines the Contractor’s Resources are inadequate to meet the approved Construction Schedule, the City may order the Contractor to accelerate its performance to give reasonable assurances of timely completion and quality results. Acceleration under this section shall not be deemed a Change Order as defined in Section 5b below and the Contractor shall receive no equitable adjustment for such acceleration. Nothing in this section shall be interpreted to relieve the Contractor of its duties and responsibilities to plan for and complete the work in a timely manner according to the Construction Schedule. 4. Liquidated Damages: If the Construction Project is not completed within the time provided by this Agreement, the City may deduct for each day the Construction Project remains uncompleted the sum of Five Hundred Dollars ($500.00) from the compensation hereinafter specified and retain that sum as payment for liquidated damages sustained by reason of the Contractor’s failure to complete the Construction Project on time. 72 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 4 of 23 5. Compensation: a. City shall pay to Contractor, and Contractor shall accept as full payment for the performance of this Agreement and the Construction Project, the amount of Two Hundred Ninety-Eight Thousand Five Hundred Thirteen Dollars and Twenty-Eight Cents ($298,513.28). Monthly progress payments and final payment will be made only in accordance with the terms of a completed Compensation Schedule to be approved by the City’s Representative. All invoices must be submitted to the City’s Representative. b. If work not included within the original Construction Documents is requested by City, such additional work and the related compensation shall be agreed to in writing by both parties prior to commencement of the additional work (“Change Order”). c. City shall retain five percent (5%) of the total amount of compensation to be paid to the Contractor to ensure compliance with the terms and conditions of this Agreement and the timely completion of the Construction Project and any and all “punch list” items (“Retainage Amount”). The Retainage Amount shall be paid to Contractor thirty (30) days after the City’s final acceptance of the portion of work for which a separate price is stated in the specifications for the Construction Project. e. Upon acceptance of final payment and for other good and valuable consideration, Contractor shall and hereby does release and forever discharge City, its officers, agents, and employees of and from any and all claims, demands, actions, causes of action, obligations, and liabilities of every kind and character whatsoever, in law and in equity, whether now known or in the future discovered, arising from or related to this Agreement or the Construction Project that Contractor may have or assert against City, its officers, agents, and employees. 6. Inspection and Testing: a. City has the right to inspect and test any and all work performed by Contractor on the Construction Project. Contractor shall allow City and its agents access to the Construction 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 Construction Project. City’s inspection and 73 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 5 of 23 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. 7. Partial Utilization of Construction Project: City shall have the right to use or occupy any portion of the Construction Project that City and Contractor mutually agree is substantially completed and constitutes a separately functioning and usable part of the Construction Project for its intended purpose without significant interference with Contractor’s performance of the remaining portions of the Construction Project. In the event City takes possession of any portion of the Construction Project, such possession shall not be deemed an acceptance of the Construction Project, in whole or in part. City’s use of any portion of the Construction 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 Construction Project and not from the date the City may take possession of selected portions of the Construction Project. 8. 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 Construction 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 Construction 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 Construction Project with the related work. 9. Contractor’s Warranties: Contractor represents and warrants as follows: a. Unless otherwise specified by the terms of this Agreement, all materials and equipment used by Contractor on the Construction Project shall be new and where not otherwise specified, of the most suitable grade for their intended uses. 74 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 6 of 23 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 Construction 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 Construction Project and ending one (1) year from the final completion and acceptance by the City of the Construction 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 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 Construction 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 Construction 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 Construction Project. Contractor has knowledge of the field conditions to be encountered during the Construction 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. 75 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 7 of 23 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 Construction 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. l. Title to all work, materials, and equipment covered by any payment of Contractor’s compensation by City, whether directly incorporated into the Construction Project or not, passes to City at the time of payment, free and clear of all liens and encumbrances. m. Contractor, at its expense and in consultation with the City, will arrange for the preparation and installation of the Artwork on or before September 30, 2024. As further delineated in paragraph 18, the City retains the right to repair, remove, or un-install the Artwork at any time. Contractor bears the risk of loss for the Artwork up and until the title of the Artwork transfers to the City. n. For one-year from installation, Contractor expressly warrants that its installation of the Artwork will be free from any defects related to installation. If, during the one-year warranty period, any defect occurs, upon receiving written notice from the City, Contractor agrees to repair, replace, or pay the City the reasonable cost of repairing or replacing the Artwork. Contractor acknowledges and agrees that the choice between repairing, replacing, or paying the City is solely within the City’s discretion and authority. 10. Delays and Extensions of Time: If Contractor’s performance of this Agreement is prevented or delayed by any unforeseen cause beyond the control of the Contractor, including acts or omissions of the City, Contractor shall, within ten (10) days of the commencement of any such delay, give the City written notice thereof. Further, Contractor shall, within ten (10) days of 76 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 8 of 23 the termination of such delay, give the City written notice of the total actual duration of the delay. If the City is provided with these required notices and if the City determines that the cause of the delay was not foreseeable, was beyond the control of the Contractor, and was not a result of the fault or negligence of the Contractor, then the City will determine the total duration of the delay and extend the time for performance of the Agreement accordingly. Unless the delay is caused by the intentional interference of the City with the Contractor’s performance, Contractor shall make no claim for damages or any other claim other than for an extension of time as herein provided by reason of any delays. 11. Suspension: a. The City may, by written notice to the Contractor and at its convenience for any reason, suspend the performance of all or any portion of the work to be performed on the Construction Project (“Notice of Suspension”). The Notice of Suspension shall set forth the time of suspension, if then known to the City. During the period of suspension, Contractor shall use its best efforts to minimize costs associated with the suspension. b. Upon Contractor’s receipt of any Notice of Suspension, unless the notice requires otherwise, Contractor shall: (1) immediately discontinue work on the date and to the extent specified in the Notice of Suspension; (2) place no further orders or subcontracts for materials, services, or equipment; (3) promptly make every reasonable effort to obtain suspension upon terms satisfactory to City of all orders, subcontracts, and rental agreements to the extent that they relate to the performance of the work suspended; and (4) continue to protect and maintain the Project, including those portions on which work has been suspended. c. As compensation for the suspended work, Contractor will be reimbursed for the following costs, reasonably incurred, without duplication of any item, and to the extent that such costs directly resulted from the suspension: (1) a standby charge paid during the period of suspension which will be sufficient to compensate Contractor for keeping, to the extent required in the Notice of Suspension, Contractor’s organization and equipment committed to the Project in standby status; (2) all reasonably incurred costs for the demobilization of Contractor’s and subcontractor’s crews and equipment; (3) an equitable amount to reimburse Contractor for the cost to protect and maintain the Project during the period of suspension; and (4) an equitable adjustment in the cost of performing the remaining portion of the work post-suspension if, as a direct result of the suspension, the cost to Contractor of subsequently performing the remaining work on the Construction Project has increased or decreased. 77 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 9 of 23 d. Upon receipt of written notice by the City to resume the suspended work (“Notice to Resume Work”), Contractor shall immediately resume performance of the suspended work as to the extent required in the Notice to Resume Work. Any claim by Contractor for time or compensation described in Section 11(c) shall be made within fifteen (15) days after receipt of the Notice to Resume Work and Contractor shall submit a revised Construction Schedule for the City’s review and approval. Contractor’s failure to timely make such a claim shall result in a waiver of the claim. e. No compensation described in Section 11(c) shall be paid and no extension of time to complete the Construction Project shall be granted if the suspension results from Contractor’s non-compliance with or breach of the terms or requirements of this Agreement. 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 and the Contractor’s right to proceed with all or any part of the Construction Project (“Termination Notice Due to Contractor’s Fault”). The City may then take over the Construction Project and complete it, either with its own resources or by re-letting the contract to any other third party, and may immediately take possession of and use such materials, appliances, tools, and equipment as may be on the site and which may be necessary for the completion of the Construction Project. b. In the event of a termination pursuant to this Section 12, Contractor shall be entitled to payment only for those services Contractor actually rendered. In the case of a lump sum or unit price contract, Contractor shall not be entitled to any further payment until the Construction Project has been completed. Upon completion of the Construction Project, if the unpaid balance of the Contractor’s compensation exceeds the cost to the City of completing the work, including all costs paid to any subcontractors or third parties retained by the City to complete the Construction Project and all administrative costs resulting from the termination (“City’s Cost for Completion”), such excess shall be paid to the Contractor. If the City’s Cost for Completion exceeds the unpaid balance of the Contractor’s compensation, then Contractor and its sureties shall be liable for and shall pay the difference, plus interest at the rate applicable to court judgments, to the City. c. Any termination provided for by this Section 12 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. 78 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 10 of 23 d. In the event of termination under this Section 12, 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 work on the Construction Project, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease work on the Construction Project, discontinue placing orders for materials, supplies, and equipment for the Construction Project, and make every reasonable effort to 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, in progress, or in transit to the construction site. c. In the event of a termination pursuant to this Section 13, Contractor is entitled to payment only for those services Contractor actually rendered and materials actually purchased or which Contractor has made obligations to purchase on or before the receipt of the Notice of Termination for City’s Convenience, and reasonably incurred costs for demobilization of Contractor’s and any subcontractor’s crews. It is agreed that any materials that City is obligated to purchase from Contractor will remain the City’s sole property. d. The compensation described in Section 13(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 79 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 11 of 23 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 ten (10) 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 and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Ellie Staley 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 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 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 Rob Evans 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. 80 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 12 of 23 16. Locating Underground Facilities: Contractor shall be responsible for obtaining and determining the location of any underground facilities, including but not limited to, the location of any pipelines or utility supply, delivery, or service lines in accordance with the provisions of §69-4-501, et seq., Montana Code Annotated (MCA). Contractor shall make every effort to avoid damage to underground facilities and shall be solely responsible for any damage that may occur. If City personnel assume responsibility for locating any underground facilities, this fact shall be noted in writing prior to commencement of such location work. 17. 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, pay all fees and charges in connection therewith, and perform all surveys and locations necessary for the timely completion of the Construction Project. 18. Ownership of Artwork. The City shall be the legal owner of the Artwork once it is installed. Until installation and title transfers, Contractor remains the owner of the Artwork. See paragraph 9 of this Construction Agreement for Artwork-specific warranties which apply only to the Artwork and not to the Construction Project in its entirety. For the Artwork, the Parties agree to sign a Transfer and Assignment of Copyright for Public Artwork, attached as Exhibit D, prior to the City’s acceptance of the Artwork. In addition, as required by the U.S. Copyright Act, and as set forth in paragraph 24(d) of this Agreement, Contractor and its sub-contractors which are providing murals and other artwork related to the Artwork agree to sign, prior to the City’s acceptance of the Artwork, a 1990 Visual Artists’ Rights Act Waiver (“Waiver”), attached as Exhibit E. Contractor and its applicable subcontractors acknowledge that by signing the Waiver, they are agreeing to voluntarily waive all rights to attribution and integrity with respect to the Artwork, and any and all claims that may arise under the Visual Artists Rights Act of 1990 (“VARA”), 17 U.S.C. §§ 106(A) and 113(d) or any other local, state, or federal law that conveys the same or similar “moral rights,” as defined by VARA, with respect to the Artwork. Contractor agrees to provide Exhibit D and Exhibit E to its subcontractors for the Artwork. Contractor must return executed copies to the City at the time title transfers. Once the Transfer of Copyright for Public Artwork is executed, the City will become copyright owner and take title in and to the Artwork, and any and all drawings, sketches, models, and any other documents or materials created by the Contractor in furtherance of the Artwork. The Contractor agrees to deliver to the City all such materials within five (5) working days of title transfer. 19. Maintenance, Repairs, and Alterations of the Artwork. The City recognizes that due to the nature of the Artwork, maintenance is essential. Upon transfer of the title of Artwork and legal ownership passes to the City, as set forth in paragraph 18, the City retains full discretion and responsibility to maintain and protect the Artwork. The City retains the sole right to determine 81 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 13 of 23 whether, when, and to what extent any repairs to the Artwork will occur. The City is not obligated to provide the Contractor or any of its subcontractors for the Artwork notice before undertaking any repairs or modifications to the Artwork. However, the City shall endeavor to notify the Contractor of any proposed alteration of the Artwork. Contractor is responsible for maintaining a current contact person and contact information to receive such notice. If Contractor receives such notice from the City, it is responsible for notifying its subcontractors for the Artwork. The City is under no obligation to provide notice to the Contractor if the Contractor fails to maintain such contact information with the City. Because the Artwork is attached to the City’s property, Contractor agrees to indemnify, defend, and hold harmless the City against any and all liability, damage, loss, or expense, including reasonable attorneys’ fees and expenses of litigation, incurred by the City for any and all claims raised under the Visual Artists Rights Act. Should the City determine that the removal or extraction of the Artwork is necessary, Contractor retains first priority to reclaim physical possession of the Artwork. In such an instance, Contractor is responsible for all associated costs of such removal. 20. 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. 21. Nondiscrimination and Equal Pay: Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. Contractor shall 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. 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. 82 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 14 of 23 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. 22. Intoxicants; DOT Drug and Alcohol Regulations: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, upon the site of the Construction Project. 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. 23. Labor Relations: a. 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 site of the Construction Project and shall be made no later than the first day of work. Such posting shall be removed only upon the final completion of the Construction Project and the termination of this Agreement. b. In performing the terms and conditions of this Agreement and the work on the Construction Project, Contractor shall give preference to the employment of bona fide residents of Montana, as required by §18-2-403, MCA, and 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. c. Pursuant to §18-2-403 and §18-2-422, MCA, Contractor shall pay wages, benefits, and expenses in conformance with the current version of the Prevailing Wage Rates for Highway Construction Services as published by the Montana Department of 83 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 15 of 23 Labor and Industry and which are applicable to Gallatin County. Contractor shall pay all hourly wage employees on a weekly basis. Violation of the requirements to pay applicable prevailing wage rates may subject the Contractor to the penalties set forth in §18-2-407, MCA. Contractor shall maintain payroll records and provide certified copies to the City. Contractor shall maintain such payroll records during the term of this Agreement, the course of the work on the Construction Project, and for a period of three (3) years following the date of final completion of the Construction Project and termination of this Agreement. d. In the event that, during the term of this Agreement and throughout the course of Contractor’s performance of the Construction Project, any labor problems or disputes of any type arise or materialize which in turn cause any work on the Construction Project 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 to resume work on the Construction Project 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 work on the Construction Project to resume and be completed within the time frames set forth in the Construction Schedule at no additional cost to City. b. 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. 24. Subcontractors: a. Contractor may employ subcontractors for any work on the Construction Project. Contractor shall provide City with a list of all subcontractors employed. b. Contractor remains fully responsible for the acts and omissions of any subcontractor, just as Contractor is for its own acts and omissions, and Contractor shall remain fully responsible and liable for the timely completion of the Construction Project. c. Contractor is solely liable for any and all payments to subcontractors. Contractor shall hold all payments received from the City in trust for the benefit of subcontractors, and all such payments shall be used to satisfy obligations of the Construction Project before being used for any other purpose. Contractor shall make any payments due to any subcontractor within seven (7) days of Contractor’s receipt of payment, including a proportional part of the retainage Contractor has received from the 84 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 16 of 23 City. In the event of a dispute regarding any subcontractor’s invoice, Contractor shall promptly pay the undisputed amount to the subcontractor and notify the subcontractor in writing of the amount in dispute and the reasons for the dispute. Any withholding of payment must comply with the requirements of §28-2-2103, MCA. In the event Contractor is unwilling or unable to make timely and proper payment to any subcontractor, City may elect to withhold any payment otherwise due to Contractor and upon seven (7) days’ written notice to Contractor, may pay subcontractor by direct or joint payment. d. Contractor will require any subcontractors hired for the Construction Project to sign a Transfer and Assignment of Copyright for Public Artwork and a 1990 Visual Artists’ Rights Act Waiver. 25. Indebtedness and Liens: Before City may make any final payment to Contractor, Contractor shall furnish City with satisfactory proof that there are no outstanding debts or liens in connection with the Construction Project. If the Contractor allows any indebtedness to accrue to subcontractors or others during the progress of the work, and fails to pay or discharge the same within five (5) days after demand, then City may either withhold any money due to Contractor until such indebtedness is paid or apply the same towards the discharge of the indebtedness. If any lien or claim is filed or made by any subcontractor, material supplier, or any other person, the Contractor shall immediately notify the City and shall cause the same to be discharged of record within thirty (30) days after its filing. 26. Hazard Communication: Contractor shall comply with all hazard communication requirements dictated by the Environmental Protection Agency, the Montana Department of Agriculture, OSHA, Hazard Communications Standard, 29 CFR 1910.1200, and applicable City ordinances. Contractor shall supply a chemical list, the associated material safety data sheets (MSDS), and other pertinent health exposure data for chemicals that the Contractor’s, subcontractor’s or the City’s employees may be exposed to while working on City property during the course of the Construction Project. One copy of this documentation must be delivered to City to the attention of the City’s Representative. This documentation must be delivered before work involving these chemicals may commence. 27. Accounts and Records: During the term of this Agreement and for two (2) years following the City’s final acceptance of the Construction Project, Contractor shall maintain accounts and records related to the Construction 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 Construction Project. 28. Indemnification; Insurance; Bonds: 85 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 17 of 23 a. 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; or (iii) the negligent, reckless or intentional misconduct of any other party. b. 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). c. Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. d. 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. e. 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. f. 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. 86 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 18 of 23 g. These obligations shall survive termination of this Agreement and the services performed hereunder. h. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in subsection (a) of this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as shown below: • Workers’ Compensation – not less than statutory limits; • Employers’ Liability - $1,500,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability (bodily injury and property damage) - $1,500,000 per occurrence; $3,000,000 annual aggregate; • Products and Completed Operations – $3,000,000; • Automobile Liability - $1,500,000 property damage/bodily injury; $2,000,000 annual aggregate (all owned, hired, non-owned vehicles); • 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. • 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; $3,000,000 aggregate; 87 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 19 of 23 • Contractual Liability Insurance (covering the Contractor’s indemnity obligations described in this Agreement) - $1,000,000 per occurrence $3,000,000 aggregate The amounts of insurance provided shall be exclusive of defense costs. The City of Bozeman 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. 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. i. Required Bonds. Contractor shall make, execute, purchase, maintain and deliver to City performance and payment bonds in an amount at least equal to the Contractor’s compensation under this Agreement, conditioned that the Contractor shall faithfully perform of all of Contractor’s obligations under this Agreement and pay all laborers, mechanics, subcontractors, material suppliers and all persons who supply the Contractor or Contractor’s subcontractors with provisions, provender, material, or supplies for performing work on the Construction Project. All bonds must be obtained with a surety company that is duly licensed and authorized to transact business within the state of Montana and to issue bonds for the limits so required. The surety company must have a Best’s Financial Strength Rating of A, as rated by the A. M. Best Co., or an equivalent rating from a similar rating service. All bonds must remain in effect throughout the life of this Agreement and for a minimum of one (1) year following the date of expiration of Contractor’s warranties. A certified copy of the agent’s authority to act must accompany all bonds signed by an agent. If the surety on any bond furnished by Contractor is declared bankrupt or becomes insolvent or its right to do business within the state of Montana is terminated, Contractor shall promptly notify City and shall within twenty (20) days after the event giving rise to such notification, provide another bond with another surety company, both of which shall comply with all requirements set forth herein. Bond Types and Amounts: 1. Performance Bond Equal to Contractor’s compensation amount 2. Labor and Materials Bond Equal to Contractor’s compensation amount 88 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 20 of 23 29. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. Contractor understands that all contractors or subcontractors working on a publicly funded project are required to pay or have withheld from earnings a license fee of one percent (1%) of the gross contract price if the gross contract price is Five Thousand Dollars ($5,000) or more. This license fee is paid to the Montana Department of Revenue. 30. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute shall be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 31. Survival: Contractor’s indemnification and warranty obligations shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 32. 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. 33. Waiver: A waiver by City of any default or breach by Contractor of any covenants, terms, or conditions of this Agreement does not limit City’s right to enforce such covenants, terms, or conditions or to pursue City’s rights in the event of any subsequent default or breach. 35. 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. 36. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 89 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 21 of 23 37. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 38. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 39. Amendments: This Agreement may not be modified, amended, or changed in any respect except by a written document signed by all parties. 40. 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. 41. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 42. Assignment: Contractor may not assign this Agreement in whole or in part without the prior written consent of the City. No assignment will relieve Contractor of its responsibility for the performance of the Agreement and the completion of the Construction Project. Contractor may not assign to any third party other than Contractor’s subcontractors on the Construction Project, the right to receive monies due from City without the prior written consent of City. 43. Authority: Each party represents that it has full power and authority to enter into and perform this Agreement and the person signing this Agreement on behalf of each party has been properly authorized and empowered to sign this Agreement. 44. Independent Contractor: The parties agree and acknowledge that in the performance of this Agreement and the completion of the Construction Project, Contractor shall render services as an independent contractor and not as the agent, representative, subcontractor, or employee of the City. The parties further agree that all individuals and companies retained by Contractor at all times will be considered the agents, employees, or independent contractors of Contractor and at no time will they be the employees, agents, or representatives of the City. 45. 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. 90 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 22 of 23 46. 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 **** 91 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 23 of 23 IN WITNESS WHEREOF, Contractor and City have caused this Agreement to be executed, effective on the date written above, and intend to be legally bound thereby. CITY OF BOZEMAN, MONTANA CONTRACTOR By: _______________________________ By: Jeff Mihelich, City Manager Print Name: Title: APPROVED AS TO FORM: By: _______________________________ Greg Sullivan, City Attorney 92 NOTICE OF AWARD Dated: August 9, 2023 TO: Constructive Solutions Inc. ADDRESS: 111 South Grand Ave. Suite 223, Bozeman, MT 59715 CONTRACT FOR: The Downtown Alley Enhancement Pilot Project You are notified that your Bid opened on July 17th, 2023 for the above Contract has been considered. You are the apparent Successful Bidder and have been awarded a Contract for the: The Contract Price of your Contract is: $298,513.28 Two (2) copies of each of the proposed Contract Documents have been signed and One copy accompanies this Notice of Award for your records. CITY OF BOZEMAN, MONTANA BY: __________________________________ (CITY MANAGER) BY: ___________________________________ (CITY CLERK) DATE: _______________________________ 93 -1- Ex. C: Artwork Scope of Services Agreement EXHIBIT C: ARTWORK SCOPE OF SERVICE AGREEMENT CLIENT CONTACT: CONTRACTOR CONTACT: City of Bozeman 121 N. Rouse Ave. Bozeman, Montana 59715 Constructive Solutions Inc. 111 South Grand Ave. Room 223 Bozeman MT, 59715 Primary Contact: Ellie Staley, 406-581-3827 Primary Contact: Rob Evans, 406-570-5048 Term: February 13, 2024 to September 30, 2024 Project Overview: Downtown Alley Enhancement Pilot Project. Visual enhancements via murals and sculpture installations in and around the alley between North Tracy Avenue and North Black Avenue within the City of Bozeman, as specified in the contract documents. Service Details: Two murals are planned for the south (rear) elevation of the existing parking garage in the locations shown on the attached exhibit. Each brick canvas will be a maximum of 430 square feet (approximately 33 feet in height x 13 feet in width – see appendix). The murals relate to the adventure and exploration theme. Artwork may be figurative or abstract and may be paint, vinyl wrap, or other durable materials designed for outside. An artist fee of $6,000- $12,000/mural will be provided. Three sculptures are planned for the south (rear) elevation of the existing parking garage in the general locations shown on the attached exhibit. Some flexibility is expected for exact size and placement. The sculptures relate to the adventure and exploration theme. Artwork may be figurative or abstract and may be constructed of a variety of materials if said materials are durable and designed to be located outside. An artist fee of $10,000-$15,000/sculpture will be provided. Additional Services: N/A 94 -2- Ex. C: Artwork Scope of Services Agreement City of Bozeman Constructive Solutions Inc. Signature: __________________________ Signature: _________________________ Printed: __________________________ Printed: _________________________ Title: __________________________ Title: _________________________ Date: __________________________ Date: _________________________ 95 DOWNTOWN BOZEMAN ALLEY ENHANCEMENT PILOT PROJECT Final Artwork Plans and Drawings Date: 1/23/2024 96 Final Artwork Plans and Drawings | Date: 1/23/2024 5'5'5'5'5'30'-8"1050 20 N 1 L201 1" = 10'-0" Parking Garage Elevation ENTRY WAYFINDING SIGNAGE NOTVISIBLE IN ELEVATION VIEW. SEE L500, DETAIL 1 FOR CONCEPTUAL SIGN CHARACTER AND PLACEMENT EXISTING TRASH RECEPTACLE ALCOVE EXISTING TREE TO REMAIN. TREE TO BE WRAPPED WITH HOLIDAYLIGHTS. SEE LIGHTING SCHEDULE, SHEET L001. EXISTING TRASH RECEPTACLE ALCOVE HISTORIC PLAQUELOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT APPROXIMATESCULPTURE LOCATION (EXACT LOCATION TO BE COORDINATED W/CITYOF BOZEMAN. VINYL ART WRAP HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUELOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUETO BE MOUNTED AT 5' HEIGHT ALL GREY PANELS TO BE VINYL ART WRAP ALL GREY PANELS TO BE VINYL ART WRAP ALL GREY PANELS TO BE VINYL ART WRAP EXISTING WALL LIGHTEXISTING WALL LIGHT EXISTING WALL LIGHT EXISTING WALL LIGHT EXISTING WALL LIGHT LED WALL WASH LIGHTS. SEE L400 LED WALL MOUNT LIGHT. SEE L400 APPROXIMATE SCULPTURELOCATION. (EXACT LOCATION TO BE COORDINATED W/ CITY OF BOZEMAN LED WALL MOUNT LIGHT. SEE L400 LED WALL MOUNT LIGHT, SEE L400 LED WALL WASH LIGHTS. SEE L400 APPROXIMATE SCULPTURE LOCATION. (EXACT LOCATION TO BE COORDINATED W/ CITY OF BOZEMAN West Mural (1) Artist: Stella Nall West Mural (1) Colors: this fur pattern will be present on the whole being,I just don’t like to render all of it for sketches because it is quite time consuming :-) It is characteristic of mypainting, and was inspired by the back stitching of beadwork. Title: Baáchuuaashe(baáchuu 'berry' + áashi 'river', the Crow name for Bozeman Statement: As an artist I am driven by three primary forces: to process my experiences, to connect with others, and to advocate for change. Through this mural I hope to direct thought towards our relationship with the earth, and to celebrate the plants and animals that we share it with. My work often features imaginary creatures which tell a story. This happy creature’s belly is full of berries which are all edible and native to this area. I included this imagery to give thanks for the abundance of nature which we are so fortunate to live in and around, and the joy and nourishment which it provides us. By naming this Bozeman-being the Apsáalooke (Crow) name for this land, Baáchuuaashe, I hope to honor my ancestors who traveled here before us, to share our language, and to cele-brate the active presence of Indigenous members of the Bozeman community today. Growing up in Bozeman, I didn’t see very much Native American artwork, and it was discouraging to my goals of becoming a professional artist. I am excited to help provide more public Indigenous art for our community, and hope to help encourage future generations to continue working to make Bozeman an inclusive place for everyone. 97 5'5'5'5'5'30'-8"1050 20 N 1 L201 1" = 10'-0" Parking Garage Elevation ENTRY WAYFINDING SIGNAGE NOTVISIBLE IN ELEVATION VIEW. SEE L500, DETAIL 1 FOR CONCEPTUAL SIGN CHARACTER AND PLACEMENT EXISTING TRASH RECEPTACLE ALCOVE EXISTING TREE TO REMAIN. TREE TO BE WRAPPED WITH HOLIDAYLIGHTS. SEE LIGHTING SCHEDULE, SHEET L001. EXISTING TRASH RECEPTACLE ALCOVE HISTORIC PLAQUELOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT APPROXIMATESCULPTURE LOCATION (EXACT LOCATION TO BE COORDINATED W/CITYOF BOZEMAN. VINYL ART WRAP HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUELOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUETO BE MOUNTED AT 5' HEIGHT ALL GREY PANELS TO BE VINYL ART WRAP ALL GREY PANELS TO BE VINYL ART WRAP ALL GREY PANELS TO BE VINYL ART WRAP EXISTING WALL LIGHTEXISTING WALL LIGHT EXISTING WALL LIGHT EXISTING WALL LIGHT EXISTING WALL LIGHT LED WALL WASH LIGHTS. SEE L400 LED WALL MOUNT LIGHT. SEE L400 APPROXIMATE SCULPTURELOCATION. (EXACT LOCATION TO BE COORDINATED W/ CITY OF BOZEMAN LED WALL MOUNT LIGHT. SEE L400 LED WALL MOUNT LIGHT, SEE L400 LED WALL WASH LIGHTS. SEE L400 APPROXIMATE SCULPTURE LOCATION. (EXACT LOCATION TO BE COORDINATED W/ CITY OF BOZEMAN East Mural (2) Artist: Kelsey Dzintars East Mural (2) Final Artwork Plans and Drawings | Date: 1/23/2024 98 Bird sculpture to be shifted up to meet 30' clearance requirement for dumpster pads. Final Artwork Plans and Drawings | Date: 1/23/2024 5'5'5'5'5'30'-8"1050 20 N 1 L201 1" = 10'-0" Parking Garage Elevation ENTRY WAYFINDING SIGNAGE NOTVISIBLE IN ELEVATION VIEW. SEE L500, DETAIL 1 FOR CONCEPTUAL SIGN CHARACTER AND PLACEMENT EXISTING TRASH RECEPTACLE ALCOVE EXISTING TREE TO REMAIN. TREE TO BE WRAPPED WITH HOLIDAYLIGHTS. SEE LIGHTING SCHEDULE, SHEET L001. EXISTING TRASH RECEPTACLE ALCOVE HISTORIC PLAQUELOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT APPROXIMATESCULPTURE LOCATION (EXACT LOCATION TO BE COORDINATED W/CITYOF BOZEMAN. VINYL ART WRAP HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUELOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUETO BE MOUNTED AT 5' HEIGHT ALL GREY PANELS TO BE VINYL ART WRAP ALL GREY PANELS TO BE VINYL ART WRAP ALL GREY PANELS TO BE VINYL ART WRAP EXISTING WALL LIGHTEXISTING WALL LIGHT EXISTING WALL LIGHT EXISTING WALL LIGHT EXISTING WALL LIGHT LED WALL WASH LIGHTS. SEE L400 LED WALL MOUNT LIGHT. SEE L400 APPROXIMATE SCULPTURELOCATION. (EXACT LOCATION TO BE COORDINATED W/ CITY OF BOZEMAN LED WALL MOUNT LIGHT. SEE L400 LED WALL MOUNT LIGHT, SEE L400 LED WALL WASH LIGHTS. SEE L400 APPROXIMATE SCULPTURE LOCATION. (EXACT LOCATION TO BE COORDINATED W/ CITY OF BOZEMAN Sculptures (3 sculptures) Artist: Kelsey Clark Extracted Topography Elements on the full Elevation of the Parking Garage “Fish Eye lens” animates the hyalite Reservoir and surrounding water elements “On the horizon” Animates the Downtown Bozeman street-scape “Birds Eye View” Animates the Bridger mountain range NOTES 1) Sculptures and mounting details will be closely coordinated with the City of Bozeman to ensure required clearances are maintained. 30 feet of vertical clearance to be maintained over dumpster tip pads. 2) Prior to installation, the DBP will provide the City a structural engineer report with mounting details, elevations, and height for review and approval. See the following pages for the preliminary design. 99 Alley Ways are highly underused public corridors that have the potential for unexpected interaction and adventures. The objective of this art-scape is to turn this underutilized space into an interactive journey through the Bozeman Landscape. The Sculptures revitalize THE alley, Leading the public to possible adventures in the area, and inspiring further exploration. Against the backdrop of the tall buildings, limited light and muted tones, the contrasting bright colors of the sculptures enliven the alley and catches the public’s attention. The three sculptures protrude from the wall making them more visible and encouraging the public to explore the corridor. From far away only the shapes of the animals are recognizable, Acting as a prelude to the elements they represent. Each sculpture was designed in a way to look as if it was leaping out of each animal’s corresponding landscape feature. As the public approaches the sculptures, their place in the Bozeman topography becomes recognized and a spark for exploration is ignited. GallatinThe CORRIDOR 100 Each sculpture corresponds to a backdrop displaying a significant and recognizable feature of the Gallatin Valley. If a map was placed over the Elevation of parking garage the backdrops correlate to the exact geographic location in relation to each other. Upon approaching these the sculptures the Backdrops become more recognizable and the connection to the Landscape becomes more realized. This Idea can be strengthened by providing access to a visual graphic of the full map at both ends of the alleyway. This Provides a plan of action to explore the areas experienced in the art-scape. These Backdrops were designed to enhance the Art, but also to incorporate a Barrier to limit access to the sculptures. The openings in the facade of the parking garage Allow access to climb or vandalize the sculptures. The backdrop blends a functional safety element into a Key feature of the art piece. This addition brings depth to the artistic concept and adds another layer of complexity To the experience through the Alley. Functional art! Bozeman’s unique culture would not be the same without its breathtaking mountains, rivers and valleys. This art sculpture strives to empower the public with a better understanding of possibilities of adventure and exploration in this area. This project aims to revitalize the downtown area by creating a visually appealing art-scape that is informative and intrigues the public to activate this unused space. Once immersed in the alley, the public is able to interact with bozeman in a unique and playful way that connects them to this beautiful landscape. -Metallic Weaver 101 Map Placement on the Full Elevation of the Parking Garage Extracted Topography Elements on the full Elevation of the Parking Garage “Fish Eye lens” animates the hyalite Reservoir and surrounding water elements “On the horizon” Animates the Downtown Bozeman street-scape “Birds Eye View” Animates the Bridger mountain range All of the extracted backdrop’s locations correlate directly to a map of the Gallatin Valley giving a scale and reference to the highlighted topography elements. Once the map is removed a perceptual phenomenon occurs called “Filling-in at the blind spot”, where the visual system fills the informational void with surrounding visual attributes. Once the relationship of the landscape to the art sculptures is realized, the public actively uses their imagination to fill in the adventure they desire. Bird sculpture to be shifted up to meet 30' clearance requirement for dumpster pads. 102 14’6’17’ 4”North Alley Elevation Scale reference South Alley Elevation close up Semi truck with maximum height allowed in Montana These Views display the relative size and location of the sculptures to each other, the ground and activity in the alley. 3’10”9’5”30' of clearance required to be maintained over dumpster pads. 103 Front Elevation DIMENSIONS: 92”h x 64”w x 56”d WEIGHT: 600 LBS (generous and rounded up) Material: Mild Steel Finish: Golden yellow Powder coat Description: The “Birds Eye View” is a large Hawk sculpture that brings attention to the possibilities of Mountain adventures in the Bozeman area. This figure brings attention to prominent topography elements, viewing them just like a bird soaring through the air. The Bird is positioned to look as if it was flying out of the Bridger range topography By Sacajawea Peak. The Sculpture is colored to match the topography elements of the wall backdrop, visually emphasizing the possible terrain exploration in this area. The lattice Slate design of the bird is composed of 2-d parts to create The 3-d shape of the sculpture. This method mimics the 2-d graphics of the backdrop and gives the illusion that the graphics are FLYING of the wall and morphing into the shape of the Bird. The Landscape backdrop camouflages a steel metal mesh screen, inhibiting access to the sculpture. By strengthening the connection of the 2-d world to the 3-d world, the possible adventure in the bozeman terrain can be realized through “Birds Eye View”. Steel Mesh Screen Topography backdrop Sculpture Bird sculpture to be shifted up to meet 30' clearance requirement for dumpster pads. 104 Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel topography 1/4” steel plate welded to the sculpture and bolted to the concrete (wing mount) Topography lines cut out of 14 g steel and bolted To the concrete and Steel mesh Screen Black cut vinyl elevation call outs Black powder coated 14 g steel mountain peak call outs bolted to the steel topography Left Lower Corner Orthographic view 105 slat design adds to the rigidity of the structure and allows for wind to pass through Topography lines cut out of 14 g steel and bolted To the concrete and Steel mesh Screen Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel topography Black cut vinyl elevation call outs Black powder coated 14 g steel mountain peak call outs bolted to the steel topography 1/4” steel plate welded to the sculpture and bolted to the concrete (Tail mount) Right Lower Corner Orthographic view 106 Front View Bottom View 22”10.25”56”1/4” steel plate welded to the sculpture and bolted to the concrete. Topography ELEVATION LINES cut out of 14 g steel and bolted to the concrete AND MESH SCREEN Black cut vinyl elevation call outs Black powder coated 14 g steel mountain peak call outs bolted to the steel topography Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel topography 45.75”92”64” 107 West View East View 1/4” steel plate bolted to concrete (Wing Mount) 10 g steel plate welded to the 1/4’ wall plate steel plate (thicker steel plate used for stronger wall connection) 14 G steel plate BOLTED together (thiner steel plate used to reduce weight) 1/4” steel plate bolted to concrete (tail mount) 10 g steel plate welded to the 1/4’ wall plate steel plate (thicker steel plate used for stronger wall connection) 14 G steel plate BOLTED together (thiner steel plate used to reduce weight) 56”45.75”92”Steel screen bolted to the concrete topography backdrop bolted to the concrete and screen 108 DIMENSIONS: 35”W x 112.25”h x 39.75”D WEIGHT: 750 LBS (generous and rounded up) Material: Mild Steel Finish: Rusted Copper colored powder coat Description: “On the Horizon” is a large bobcat sculpture that brings attention to the possibilities of Urban adventure in the Bozeman area. This figure represents the methods of exploring the downtown area on the ground level, just like how a bobcat would explore the wilderness. The Sculpture is positioned to look as if it was Climbing out of the streets of bozeman, reaching for further exploration in this area. Amongst the Downtown background display, the exact location of the alley in relation to all three sculptural elements is highlighted, emphasizing the public’s connection to the landscape and bringing a level of personal relation to the sculpture. THE ROADS ARE THE VEINS OF adventure, SHOWING HOW TO ACCESS areas of exploration. The Sculpture is colored to match the road graphic elements of the Steel wall background, visually emphasizing the possible urban exploration in this area and sparking inspiration to explore. The Copper color connects the man-made roads of the landscape to the industrial copper industry, WHICH has shaped many towns in Montana. The lattice Slate design is composed of 2-d parts to create The 3-d shape of the sculpture. This method mimics the 2-d graphics and gives the illusion that the graphics are CLIMBING of the wall and morphing into the shape of the Bobcat. The Landscape backdrop camouflages a steel metal mesh screen, inhibiting access to the sculpture. By strengthening the connection of the 2-d world to the 3-d world, the urban adventure can be realized through “on the horizon”. Front Elevation Steel Mesh Screen Topography backdrop Sculpture 109 Right Lower Corner Orthographic view Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel topography 11/4” steel plate fabricated to look like a rock, welded to the sculpture and bolted to the concrete (Front feet MOUNT) 1/4” steel plate fabricated to look like a rock, welded to the sculpture and bolted to the concrete (LEFT FOOT MOUNT) Roads cut out of 14 g steel and bolted To the concrete and Steel mesh Screen Black cut vinyl street call outs Black powder coated 14 g steel urban area call outs bolted to the steel topography Slat design adds to the rigidity of the structure and allows for wind to pass through 110 Left Lower Corner Orthographic view Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel BACKGROUND 1/4” steel plate fabricated to look like a rock, welded to the sculpture and bolted to the concrete (Front feet mount) ROAD lines cut out of 14 g steel and bolted To the con- crete and Steel mesh Screen Black cut vinyl road call outs 1/4” steel plate fabricated to look like a rock, welded to the sculpture and bolted to the concrete (left foot mount) Slat design adds to the rigidity of the structure and allows for wind to pass through 111 Front View Bottom View 22”10.25”Roads cut out of 14 g steel and bolted to the concrete AND MESH SCREEN Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel topography Black cut vinyl Road call outs 1/4” steel plate fabricated to look like a rock, welded to the sculpture and bolted to the concrete (Front feet and Left foot mount) 39.75”50”35”112.25”112 1/4” steel plate bolted to concrete (tail mount) 10 g steel plate welded to the 1/4’ wall plate steel plate (thicker steel plate used for stronger wall connection) 10 g steel plate welded to the 1/4’ wall plate steel plate (thicker steel plate used for stronger wall connection) 14 G steel plate BOLTED together (thiner steel plate used to reduce weight) 39.75”50”112.25”Steel screen bolted to the concrete road backdrop bolted to the concrete and screen West View East View 113 DIMENSIONS: 72.5”h x 71“w X 55”d WEIGHT: 500 LBS (generous and rounded up) Material: Mild Steel Finish: Teal Blue Powder coat Description: The “Fish eye Lens” is a large trout fish sculpture that brings attention to the possibilities of water adventure in the Bozeman area. This figure represents the Hyalite area on the water level, just like how a fish would ex- plore the rivers and lakes. The Fish is positioned to look as if it was leaping out of hyalite Reservoir (a prominent and recognizable water element of this area). The Sculpture is colored to match the water graphic elements of the steel wall background, visually emphasizing the possible aquatic exploration in this area. The lattice Slate design is composed of 2-d parts to create The 3-d shape of the sculpture. This method mimics the 2-d graphics and gives the illusion that the graphics are leaping of the wall and morphing into the shape of the fish. The Land- scape back drop camouflages a steel metal mesh screen, inhibiting access to the sculpture. By strengthening the connection of the 2-d world to the 3-d world the water adventure can be realized through the fish eye Lens. Front Elevation Steel Mesh Screen Topography backdrop Sculpture 114 Right Lower Corner Orthographic view Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel RIVERS 1/4” steel plate welded to the sculpture and bolted to the concrete (NOSE AND TAIL MOUNT) RIVERS cut out of 14 g steel and bolted To the concrete and Steel mesh Screen Black cut vinyl RIVER call outs Slat design adds to the rigidity of the structure and allows for wind to pass throughBlack powder coated 14 g steel LAKE call outs bolted to the steel AQUATIC BACKDROP 115 Left Lower Corner Orthographic view Slat design adds to the rigidity of the structure and allows for wind to pass through 1/4” steel plate welded to the sculpture and bolted to the concrete (NOSE AND TAIL MOUNT) Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel RIVERS Black cut vinyl RIVER call outs RIVERS cut out of 14 g steel and bolted To the concrete and Steel mesh Screen 116 22”10.25”Black powder coat- ed 14 g steel lake call outs bolted to the steel aquatic background Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel rivers 1/4” steel plate welded to the sculpture and bolted to the concrete (NOSE AND TAIL MOUNT) Black cut vinyl river call outs RIVERS cut out of 14 g steel and bolted To the concrete and Steel mesh Screen 55”44.75”71”72.5”Front View Bottom View 117 10 g steel plate welded to the 1/4’ wall plate steel plate (thicker steel plate used for stronger wall connection) 14 G steel plate BOLTED together (thiner steel plate used to reduce weight) 14 G steel plate BOLTED together (thiner steel plate used to reduce weight) 1/4” steel plate bolted to concrete (Nose Mount) 1/4” steel plate bolted to concrete (tail Mount) 55”44.75”72.5”Steel screen bolted to the concrete River backdrop bolted to the concrete and screen West View East View 118 Exhibit D: Clarke Transfer and Assignment of Copyright - Page 1 of 4 - EXHIBIT D TRANSFER AND ASSIGNMENT OF COPYRIGHT 1. Parties. This Transfer and Assignment of Copyright (“Assignment”) made this __________ (“Effective Date”) is by and between: Assignor. Kelsey Clarke, with a mailing address of 303 N. 9th Ave., Bozeman, MT 59715 (“Assignor”), and Assignee. Bozeman Downtown Urban Renewal District, an agency of the City of Bozeman, with a mailing address of 121 N. Rouse Ave., Bozeman, MT 59771 (“Assignee”). The Assignor and the Assignee are each referred to herein as a “Party” and collectively as the “Parties.” 2. Transfer and Assignment of Authored Projects. The Assignor, through this Assignment, transfers assigns to the Assignee of all the Assignor’s interest in: a. The following registered copyrighted Artwork (“Artwork”): i. Copyright #1 • Author Name: Kelsey Clarke • Title of Artwork 1: Birds Eye View ii. Copyright #2 • Author Name: Kelsey Clarke • Title of Artwork 2: On the Horizon iii. Copyright #3 • Author Name: Kelsey Clarke • Title of Artwork 3: Fish Eye Lens b. All the usual rights granted to the owner of a copyright under federal law, including but not limited to the right to reproduce, publish, adapt, modify, distribute, create derivative Projects on, display, publicize, and transmit each Project; c. The right to register, as well as applications for registrations of each Project, with the U.S. Copyright Office, including any and all renewals and extensions; d. The income, royalties, and damages due to the Assignor in regards to each Project, including damages for past or future infringements and misappropriations for each Project; e. The right to sue for past, present, and future infringements and misappropriations for each Project. 3. Assignment Purchase. Payment for the Assignment is included in the amount due and as set forth in the Construction Agreement and incorporated Construction Documents. 119 Exhibit D: Clarke Transfer and Assignment of Copyright - Page 2 of 4 - 4. Further Use of Project. This Assignment is exclusive. Unless otherwise specified in the Construction Agreement or its corresponding exhibits, once the effective date has passed, the Assignor may not make any further use of the Project or derivatives without written, authorized consent from the Assignee and further may not challenge the Assignee’s use or ownership of the Artwork or the validity of the Artwork. 5. Authorship. In relation to authorship rights, following the effective date of this Agreement, the Assignor maintains the right to be identified as the rightful author of the Artwork whenever the Artwork are reproduced, published, or otherwise publicly displayed. The authorship rights conferred in this section must be read in conjunction with the Waiver of Proprietary Rights. 6. Warranty. Assignor warrants and represents that: a. the Artwork is an original work of authorship; b. the Assignor is the legal owner of the Artwork; c. the Artwork does not infringe on any existing copyright; d. Assignor has not entered into any other assignments, transfers, licenses, contracts, or mutual understandings in conflict with the terms and obligations of this Construction Agreement; e. There are no claims currently pending or threatened, nor does Assignor have any reason to believe that any claims will be brought or threatened in the future against Assignor’s right, ownership, or interest in the Artwork. 7. Documentation. The Assignor will provide all documentation relating to the Artwork for the Assignee’s record-keeping needs, assertion of rights, or for any other use. They will likewise sign any additional agreements or complete any other lawful action reasonably necessary for a successful filing of the assignment with the United States government. 8. Integration and Modification. This document contains the entire Assignment between the Parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Agreement may be considered valid or binding. This Assignment may not be modified except by written agreement signed by both parties. 9. Dispute Resolution a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. 120 Exhibit D: Clarke Transfer and Assignment of Copyright - Page 3 of 4 - 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 Assignment. 10. No Third-Party Beneficiary. The terms and provisions of this Assignment are intended solely for the benefit of each Party and their respective successors and assigns. It is not the Parties’ intent to confer third party beneficiary rights upon any other person or entity. 11. Choice of Law. This Assignment shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 12. Non-Waiver. A waiver by any Party of any default or breach by the other Party of any terms or conditions of this Assignment 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. 13. Severability. If any portion of this Assignment is held to be void or unenforceable, the balance of the Assignment shall continue in effect. 14. Counterparts. This Assignment may be executed in counterparts, which together constitute one instrument. 15. Assignment and Delegation. Assignor may not subcontract or assign rights to any other individual or corporation not listed in this Assignment. 16. Entire Agreement. This document constitutes the entire Assignment between the Parties. No modification or amendment of this Assignment shall be effective unless in writing and signed by both Parties. 17. Execution. The Assignor and the Assignee each represent and warrant to the other that each person executing this Assignment on behalf of each party is duly authorized to execute and deliver this Assignment on behalf of that party. 18. 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. Assignor’s Signature: _________________________ Date: ________________ 121 Exhibit D: Clarke Transfer and Assignment of Copyright - Page 4 of 4 - Print Name: _________________________ Kelsey Clarke Assignee’s Signature: _________________________ Date: ________________ Print Name: _________________________ Ellie Staley, Downtown Urban Renewal District 122 Exhibit D: Dzintars Transfer and Assignment of Copyright - Page 1 of 3 - EXHIBIT D TRANSFER AND ASSIGNMENT OF COPYRIGHT 1. Parties. This Transfer and Assignment of Copyright (“Assignment”) made this __________ (“Effective Date”) is by and between: Assignor. Kelsey Dzintars, with a mailing address of 1504 Rainbow Road, Bozeman, MT 59715 (“Assignor”), and Assignee. Bozeman Downtown Urban Renewal District, an agency of the City of Bozeman, with a mailing address of 121 N. Rouse Ave., Bozeman, MT 59771 (“Assignee”). The Assignor and the Assignee are each referred to herein as a “Party” and collectively as the “Parties.” 2. Transfer and Assignment of Authored Projects. The Assignor, through this Assignment, transfers assigns to the Assignee of all the Assignor’s interest in: a. The following registered copyrighted Artwork (“Artwork”): i. Copyright #1 • Author Name: Kelsey Dzintars • Title of Artwork 1: “Adventure and Exploration” East Mural, Downtown Bozeman Alley Enhancement Project b. All the usual rights granted to the owner of a copyright under federal law, including but not limited to the right to reproduce, publish, adapt, modify, distribute, create derivative Projects on, display, publicize, and transmit each Project; c. The right to register, as well as applications for registrations of each Project, with the U.S. Copyright Office, including any and all renewals and extensions; d. The income, royalties, and damages due to the Assignor in regards to each Project, including damages for past or future infringements and misappropriations for each Project; e. The right to sue for past, present, and future infringements and misappropriations for each Project. 3. Assignment Purchase. Payment for the Assignment is included in the amount due and as set forth in the Construction Agreement and incorporated Construction Documents. 4. Further Use of Project. This Assignment is exclusive. Unless otherwise specified in the Construction Agreement or its corresponding exhibits, once the effective date has passed, the Assignor may not make any further use of the Project or derivatives without written, authorized consent from the Assignee and further may not challenge the Assignee’s use or ownership of the Artwork or the validity of the Artwork. 123 Exhibit D: Dzintars Transfer and Assignment of Copyright - Page 2 of 3 - 5. Authorship. In relation to authorship rights, following the effective date of this Agreement, the Assignor maintains the right to be identified as the rightful author of the Artwork whenever the Artwork are reproduced, published, or otherwise publicly displayed. The authorship rights conferred in this section must be read in conjunction with the Waiver of Proprietary Rights. 6. Warranty. Assignor warrants and represents that: a. the Artwork is an original work of authorship; b. the Assignor is the legal owner of the Artwork; c. the Artwork does not infringe on any existing copyright; d. Assignor has not entered into any other assignments, transfers, licenses, contracts, or mutual understandings in conflict with the terms and obligations of this Construction Agreement; e. There are no claims currently pending or threatened, nor does Assignor have any reason to believe that any claims will be brought or threatened in the future against Assignor’s right, ownership, or interest in the Artwork. 7. Documentation. The Assignor will provide all documentation relating to the Artwork for the Assignee’s record-keeping needs, assertion of rights, or for any other use. They will likewise sign any additional agreements or complete any other lawful action reasonably necessary for a successful filing of the assignment with the United States government. 8. Integration and Modification. This document contains the entire Assignment between the Parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Agreement may be considered valid or binding. This Assignment may not be modified except by written agreement signed by both parties. 9. Dispute Resolution a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Assignment. 10. No Third-Party Beneficiary. The terms and provisions of this Assignment are intended solely for the benefit of each Party and their respective successors and 124 Exhibit D: Dzintars Transfer and Assignment of Copyright - Page 3 of 3 - assigns. It is not the Parties’ intent to confer third party beneficiary rights upon any other person or entity. 11. Choice of Law. This Assignment shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 12. Non-Waiver. A waiver by any Party of any default or breach by the other Party of any terms or conditions of this Assignment 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. 13. Severability. If any portion of this Assignment is held to be void or unenforceable, the balance of the Assignment shall continue in effect. 14. Counterparts. This Assignment may be executed in counterparts, which together constitute one instrument. 15. Assignment and Delegation. Assignor may not subcontract or assign rights to any other individual or corporation not listed in this Assignment. 16. Entire Agreement. This document constitutes the entire Assignment between the Parties. No modification or amendment of this Assignment shall be effective unless in writing and signed by both Parties. 17. Execution. The Assignor and the Assignee each represent and warrant to the other that each person executing this Assignment on behalf of each party is duly authorized to execute and deliver this Assignment on behalf of that party. 18. 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. Assignor’s Signature: _________________________ Date: ________________ Print Name: _________________________ Kelsey Dzintars Assignee’s Signature: _________________________ Date: ________________ Print Name: _________________________ Ellie Staley, Downtown Urban Renewal District 125 Exhibit D: Nall Transfer and Assignment of Copyright - Page 1 of 3 - EXHIBIT D TRANSFER AND ASSIGNMENT OF COPYRIGHT 1. Parties. This Transfer and Assignment of Copyright (“Assignment”) made this __________ (“Effective Date”) is by and between: Assignor. Stella Nall, with a mailing address of 1752 S. 14th Street W., Missoula, MT 59801 (“Assignor”), and Assignee. Bozeman Downtown Urban Renewal District, an agency of the City of Bozeman, with a mailing address of 121 N. Rouse Ave., Bozeman, MT 59771 (“Assignee”). The Assignor and the Assignee are each referred to herein as a “Party” and collectively as the “Parties.” 2. Transfer and Assignment of Authored Projects. The Assignor, through this Assignment, transfers assigns to the Assignee of all the Assignor’s interest in: a. The following registered copyrighted Artwork (“Artwork”): i. Copyright #1 • Author Name: Stella Nall • Title of Artwork 1: Baáchuuashe b. All the usual rights granted to the owner of a copyright under federal law, including but not limited to the right to reproduce, publish, adapt, modify, distribute, create derivative Projects on, display, publicize, and transmit each Project; c. The right to register, as well as applications for registrations of each Project, with the U.S. Copyright Office, including any and all renewals and extensions; d. The income, royalties, and damages due to the Assignor in regards to each Project, including damages for past or future infringements and misappropriations for each Project; e. The right to sue for past, present, and future infringements and misappropriations for each Project. 3. Assignment Purchase. Payment for the Assignment is included in the amount due and as set forth in the Construction Agreement and incorporated Construction Documents. 4. Further Use of Project. This Assignment is exclusive. Unless otherwise specified in the Construction Agreement or its corresponding exhibits, once the effective date has passed, the Assignor may not make any further use of the Project or derivatives without written, authorized consent from the Assignee and further may not challenge the Assignee’s use or ownership of the Artwork or the validity of the Artwork. 126 Exhibit D: Nall Transfer and Assignment of Copyright - Page 2 of 3 - 5. Authorship. In relation to authorship rights, following the effective date of this Agreement, the Assignor maintains the right to be identified as the rightful author of the Artwork whenever the Artwork are reproduced, published, or otherwise publicly displayed. The authorship rights conferred in this section must be read in conjunction with the Waiver of Proprietary Rights. 6. Warranty. Assignor warrants and represents that: a. the Artwork is an original work of authorship; b. the Assignor is the legal owner of the Artwork; c. the Artwork does not infringe on any existing copyright; d. Assignor has not entered into any other assignments, transfers, licenses, contracts, or mutual understandings in conflict with the terms and obligations of this Construction Agreement; e. There are no claims currently pending or threatened, nor does Assignor have any reason to believe that any claims will be brought or threatened in the future against Assignor’s right, ownership, or interest in the Artwork. 7. Documentation. The Assignor will provide all documentation relating to the Artwork for the Assignee’s record-keeping needs, assertion of rights, or for any other use. They will likewise sign any additional agreements or complete any other lawful action reasonably necessary for a successful filing of the assignment with the United States government. 8. Integration and Modification. This document contains the entire Assignment between the Parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Agreement may be considered valid or binding. This Assignment may not be modified except by written agreement signed by both parties. 9. Dispute Resolution a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Assignment. 10. No Third-Party Beneficiary. The terms and provisions of this Assignment are intended solely for the benefit of each Party and their respective successors and 127 Exhibit D: Nall Transfer and Assignment of Copyright - Page 3 of 3 - assigns. It is not the Parties’ intent to confer third party beneficiary rights upon any other person or entity. 11. Choice of Law. This Assignment shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 12. Non-Waiver. A waiver by any Party of any default or breach by the other Party of any terms or conditions of this Assignment 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. 13. Severability. If any portion of this Assignment is held to be void or unenforceable, the balance of the Assignment shall continue in effect. 14. Counterparts. This Assignment may be executed in counterparts, which together constitute one instrument. 15. Assignment and Delegation. Assignor may not subcontract or assign rights to any other individual or corporation not listed in this Assignment. 16. Entire Agreement. This document constitutes the entire Assignment between the Parties. No modification or amendment of this Assignment shall be effective unless in writing and signed by both Parties. 17. Execution. The Assignor and the Assignee each represent and warrant to the other that each person executing this Assignment on behalf of each party is duly authorized to execute and deliver this Assignment on behalf of that party. 18. 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. Assignor’s Signature: _________________________ Date: ________________ Print Name: _________________________ Stella Nall Assignee’s Signature: _________________________ Date: ________________ Print Name: _________________________ Ellie Staley, Downtown Urban Renewal District 128 Dzintars Waiver of Proprietary Rights - Page 1 of 4 - EXHIBIT E WAIVER OF PROPRIETARY RIGHTS 1. Parties. This Waiver of Proprietary Rights (“Waiver”) made this __________ (“Effective Date”) is by and between: Assignor. Kelsey Dzintars (“Assignor”), with a mailing address of 1504 Rainbow Road, Bozeman, MT 59715; and Assignee. Bozeman Downtown Urban Renewal District, an agency of City of Bozeman, with a mailing address of 121 N. Rouse Ave., Bozeman, MT 59771 (“Assignee”). The Assignor and the Assignee are each referred to herein as a “Party” and collectively as the “Parties.” 2. Description of Assignor’s Authored Projects. The Assignor, through this Assignment, transfers assigns to the Assignee of all the Assignor’s interest in the following Artwork: a. Artwork 1: • Author Name: Kelsey Dzintars • Title of Project: Downtown Bozeman Alley Enhancement Project • Located at: Downtown Bozeman Parking Garage, East Panel (Black St.) 3. Waiver. Assignor voluntarily waives all rights to attribution and integrity with respect to the Artwork, as described in the Construction Agreement and corresponding exhibits, and any and all claims as may arise under the Visual Artists Rights Act of 1990, 17 U.S.C. §§106A and 113(d) (”VARA”), or any other local, state, foreign or international law that conveys the same or similar rights (“moral rights laws” as defined by VARA), with respect to the Artwork, its display, removal from display, exhibition, installation, conservation, storage, study, alteration and any other activities conducted by the Assignee, its officers, employees, agents, contractors, licensees, successors or assigns. If the Artwork is incorporated into a building such that the Artwork cannot be removed from the building or structure, and alternation, distortion, destruction, or other modification (collectively, “modification”) of the Artwork occurs, Assignor-Author waives any and all such claims under any moral rights laws arising out of or against any current or future owners of the Assignee, and its agents, officers and employees, for modification of the Artwork. 4. Assignor’s Right to Accreditation and Promotion. Assignor retains the right to reproduce, publish, or display the Artwork in Assignor’s portfolios, websites, galleries, design periodicals, or any other media or exhibit for the purpose of recognition of creative excellence or professional advancement, and to be credited with Assignor’s Authorship of the Artwork. 129 Dzintars Waiver of Proprietary Rights - Page 2 of 4 - 5. Right to Modify. The Assignee has the absolute right and retrains the sole discretion to distort, mutilate, or other modification including, but not limited to, change, destroy, remove, relocate, move, replace, transport, repair or restore the Artwork, in whole or in part. The Assignee is not required to provide the Assignor with any notice of modification. 6. Third Party Claims. The Assignee has no obligation to pursue claims against third parties for modifications or damage to the Artwork done without the Assignee’s authorization. However, the Assignee may pursue claims against third parties for modifications or damage or to restore the Artwork if the Artwork was modified without the Assignee’s authorization. In the event that the Assignee pursues such a claim, it shall notify the Assignor, who must cooperate with the Assignee’s efforts to pursue such claims. 7. Authorship. If the Assignee modifies the Artwork without the Assignor’s consent in a manner that is prejudicial to Assignor’s reputation, Assignor retains the right to disclaim Authorship of the Artwork in accordance with 17 U.S.C. § 106A(a)(2) and as set forth in section 3 of this Waiver. 8. Notice. As required under the U.S. Copyright Act, the Assignee must provide notice if it wishes to remove the Project from a part of the building and the removal can occur without destruction or modification of the Project. Assignee is required to keep the Assignor informed of its updated mailing address. 9. Integration and Modification. This document contains the entire agreement between the parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Waiver may be considered valid or binding. This Waiver may not be modified except by written agreement signed by both parties. 10. Dispute Resolution a. Any claim, controversy, or dispute between the Parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in Gallatin County, Montana. 11. No Third-Party Beneficiary. The terms and provisions of this Wavier are intended solely for the benefit of each Party and their respective successors and assigns. It is not the Parties’ intent to confer third party beneficiary rights upon any other person or entity. 130 Dzintars Waiver of Proprietary Rights - Page 3 of 4 - 12. Choice of Law. This Waiver shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 13. Non-Waiver. A waiver by either Party of any default or breach by the other Party of any terms or conditions of this Waiver 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. 14. Severability. If any portion of this Waiver is held to be void or unenforceable, the balance of the Assignment shall continue in effect. 15. Counterparts. This Waiver may be executed in counterparts, which together constitute one instrument. 16. Assignment and Delegation. Assignor may not subcontract or assign rights to any other individual or corporation not listed in this Waiver. 17. Entire Agreement. This document constitutes the entire Waiver between the Parties. No modification or amendment of this Waiver shall be effective unless in writing and signed by both Parties. 18. Execution. The Assignor and the Assignee each represent and warrant to the other that each person executing this Waiver on behalf of each party is duly authorized to execute and deliver this Waiver on behalf of that party. 19. 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. Assignor’s Signature: _________________________ Date: ________________ Print Name: _________________________ Kelsey Dzintars Assignee’s Signature: _________________________ Date: ________________ Print Name: _________________________ Ellie Staley, Downtown Urban Renewal District 131 Dzintars Waiver of Proprietary Rights - Page 4 of 4 - 132 Nall Waiver of Proprietary Rights - Page 1 of 3 - EXHIBIT E WAIVER OF PROPRIETARY RIGHTS 1. Parties. This Waiver of Proprietary Rights (“Waiver”) made this __________ (“Effective Date”) is by and between: Assignor. Stella Nall (“Assignor”), with a mailing address of 1752 S. 14th Street W, Missoula, MT 59801; and Assignee. Bozeman Downtown Urban Renewal District, an agency of City of Bozeman, with a mailing address of 121 N. Rouse Ave., Bozeman, MT 59771 (“Assignee”). The Assignor and the Assignee are each referred to herein as a “Party” and collectively as the “Parties.” 2. Description of Assignor’s Authored Projects. The Assignor, through this Assignment, transfers assigns to the Assignee of all the Assignor’s interest in the following Artwork: a. Artwork 1: • Author Name: Stella Nall • Title of Project: Baáchuuashe • Located at: West Mural 1, refer to final plans 3. Waiver. Assignor voluntarily waives all rights to attribution and integrity with respect to the Artwork, as described in the Construction Agreement and corresponding exhibits, and any and all claims as may arise under the Visual Artists Rights Act of 1990, 17 U.S.C. §§106A and 113(d) (”VARA”), or any other local, state, foreign or international law that conveys the same or similar rights (“moral rights laws” as defined by VARA), with respect to the Artwork, its display, removal from display, exhibition, installation, conservation, storage, study, alteration and any other activities conducted by the Assignee, its officers, employees, agents, contractors, licensees, successors or assigns. If the Artwork is incorporated into a building such that the Artwork cannot be removed from the building or structure, and alternation, distortion, destruction, or other modification (collectively, “modification”) of the Artwork occurs, Assignor-Author waives any and all such claims under any moral rights laws arising out of or against any current or future owners of the Assignee, and its agents, officers and employees, for modification of the Artwork. 4. Assignor’s Right to Accreditation and Promotion. Assignor retains the right to reproduce, publish, or display the Artwork in Assignor’s portfolios, websites, galleries, design periodicals, or any other media or exhibit for the purpose of recognition of creative excellence or professional advancement, and to be credited with Assignor’s Authorship of the Artwork. 5. Right to Modify. The Assignee has the absolute right and retrains the sole discretion to distort, mutilate, or other modification including, but not limited to, 133 Nall Waiver of Proprietary Rights - Page 2 of 3 - change, destroy, remove, relocate, move, replace, transport, repair or restore the Artwork, in whole or in part. The Assignee is not required to provide the Assignor with any notice of modification. 6. Third Party Claims. The Assignee has no obligation to pursue claims against third parties for modifications or damage to the Artwork done without the Assignee’s authorization. However, the Assignee may pursue claims against third parties for modifications or damage or to restore the Artwork if the Artwork was modified without the Assignee’s authorization. In the event that the Assignee pursues such a claim, it shall notify the Assignor, who must cooperate with the Assignee’s efforts to pursue such claims. 7. Authorship. If the Assignee modifies the Artwork without the Assignor’s consent in a manner that is prejudicial to Assignor’s reputation, Assignor retains the right to disclaim Authorship of the Artwork in accordance with 17 U.S.C. § 106A(a)(2) and as set forth in section 3 of this Waiver. 8. Notice. As required under the U.S. Copyright Act, the Assignee must provide notice if it wishes to remove the Project from a part of the building and the removal can occur without destruction or modification of the Project. Assignee is required to keep the Assignor informed of its updated mailing address. 9. Integration and Modification. This document contains the entire agreement between the parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Waiver may be considered valid or binding. This Waiver may not be modified except by written agreement signed by both parties. 10. Dispute Resolution a. Any claim, controversy, or dispute between the Parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in Gallatin County, Montana. 11. No Third-Party Beneficiary. The terms and provisions of this Wavier are intended solely for the benefit of each Party and their respective successors and assigns. It is not the Parties’ intent to confer third party beneficiary rights upon any other person or entity. 12. Choice of Law. This Waiver shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The 134 Nall Waiver of Proprietary Rights - Page 3 of 3 - Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 13. Non-Waiver. A waiver by either Party of any default or breach by the other Party of any terms or conditions of this Waiver 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. 14. Severability. If any portion of this Waiver is held to be void or unenforceable, the balance of the Assignment shall continue in effect. 15. Counterparts. This Waiver may be executed in counterparts, which together constitute one instrument. 16. Assignment and Delegation. Assignor may not subcontract or assign rights to any other individual or corporation not listed in this Waiver. 17. Entire Agreement. This document constitutes the entire Waiver between the Parties. No modification or amendment of this Waiver shall be effective unless in writing and signed by both Parties. 18. Execution. The Assignor and the Assignee each represent and warrant to the other that each person executing this Waiver on behalf of each party is duly authorized to execute and deliver this Waiver on behalf of that party. 19. 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. Assignor’s Signature: _________________________ Date: ________________ Print Name: _________________________ Stella Nall Assignee’s Signature: _________________________ Date: ________________ Print Name: _________________________ Ellie Staley, Downtown Urban Renewal District 135 Clarke Waiver of Proprietary Rights - Page 1 of 4 - EXHIBIT E WAIVER OF PROPRIETARY RIGHTS 1. Parties. This Waiver of Proprietary Rights (“Waiver”) made this __________ (“Effective Date”) is by and between: Assignor. Kelsey Clarke (“Assignor”), with a mailing address of 303 N. 9th Ave., Bozeman, MT 59715; and Assignee. Bozeman Downtown Urban Renewal District, an agency of City of Bozeman, with a mailing address of 121 N. Rouse Ave., Bozeman, MT 59771 (“Assignee”). The Assignor and the Assignee are each referred to herein as a “Party” and collectively as the “Parties.” 2. Description of Assignor’s Authored Projects. The Assignor, through this Assignment, transfers assigns to the Assignee of all the Assignor’s interest in the following Artwork: a. Artwork 1: • Author Name: Kelsey Clarke • Title of Project: Birds Eye View • Located at: Parking Garage b. Artwork 2: • Author Name: Kelsey Clarke • Title of Project: On the Horizon • Located at: Parking Garage c. Artwork 3: • Author Name: Kelsey Clarke • Title of Project: Fish Eye Lens • Located at: Parking Garage 3. Waiver. Assignor voluntarily waives all rights to attribution and integrity with respect to the Artwork, as described in the Construction Agreement and corresponding exhibits, and any and all claims as may arise under the Visual Artists Rights Act of 1990, 17 U.S.C. §§106A and 113(d) (”VARA”), or any other local, state, foreign or international law that conveys the same or similar rights (“moral rights laws” as defined by VARA), with respect to the Artwork, its display, removal from display, exhibition, installation, conservation, storage, study, alteration and any other activities conducted by the Assignee, its officers, employees, agents, contractors, licensees, successors or assigns. If the Artwork is incorporated into a building such that the Artwork cannot be removed from the building or structure, and alternation, distortion, destruction, or other modification (collectively, “modification”) of the Artwork occurs, Assignor-Author waives any 136 Clarke Waiver of Proprietary Rights - Page 2 of 4 - and all such claims under any moral rights laws arising out of or against any current or future owners of the Assignee, and its agents, officers and employees, for modification of the Artwork. 4. Assignor’s Right to Accreditation and Promotion. Assignor retains the right to reproduce, publish, or display the Artwork in Assignor’s portfolios, websites, galleries, design periodicals, or any other media or exhibit for the purpose of recognition of creative excellence or professional advancement, and to be credited with Assignor’s Authorship of the Artwork. 5. Right to Modify. The Assignee has the absolute right and retrains the sole discretion to distort, mutilate, or other modification including, but not limited to, change, destroy, remove, relocate, move, replace, transport, repair or restore the Artwork, in whole or in part. The Assignee is not required to provide the Assignor with any notice of modification. 6. Third Party Claims. The Assignee has no obligation to pursue claims against third parties for modifications or damage to the Artwork done without the Assignee’s authorization. However, the Assignee may pursue claims against third parties for modifications or damage or to restore the Artwork if the Artwork was modified without the Assignee’s authorization. In the event that the Assignee pursues such a claim, it shall notify the Assignor, who must cooperate with the Assignee’s efforts to pursue such claims. 7. Authorship. If the Assignee modifies the Artwork without the Assignor’s consent in a manner that is prejudicial to Assignor’s reputation, Assignor retains the right to disclaim Authorship of the Artwork in accordance with 17 U.S.C. § 106A(a)(2) and as set forth in section 3 of this Waiver. 8. Notice. As required under the U.S. Copyright Act, the Assignee must provide notice if it wishes to remove the Project from a part of the building and the removal can occur without destruction or modification of the Project. Assignee is required to keep the Assignor informed of its updated mailing address. 9. Integration and Modification. This document contains the entire agreement between the parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Waiver may be considered valid or binding. This Waiver may not be modified except by written agreement signed by both parties. 10. Dispute Resolution a. Any claim, controversy, or dispute between the Parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties 137 Clarke Waiver of Proprietary Rights - Page 3 of 4 - 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 Gallatin County, Montana. 11. No Third-Party Beneficiary. The terms and provisions of this Wavier are intended solely for the benefit of each Party and their respective successors and assigns. It is not the Parties’ intent to confer third party beneficiary rights upon any other person or entity. 12. Choice of Law. This Waiver shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 13. Non-Waiver. A waiver by either Party of any default or breach by the other Party of any terms or conditions of this Waiver 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. 14. Severability. If any portion of this Waiver is held to be void or unenforceable, the balance of the Assignment shall continue in effect. 15. Counterparts. This Waiver may be executed in counterparts, which together constitute one instrument. 16. Assignment and Delegation. Assignor may not subcontract or assign rights to any other individual or corporation not listed in this Waiver. 17. Entire Agreement. This document constitutes the entire Waiver between the Parties. No modification or amendment of this Waiver shall be effective unless in writing and signed by both Parties. 18. Execution. The Assignor and the Assignee each represent and warrant to the other that each person executing this Waiver on behalf of each party is duly authorized to execute and deliver this Waiver on behalf of that party. 19. 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. 138 Clarke Waiver of Proprietary Rights - Page 4 of 4 - Assignor’s Signature: _________________________ Date: ________________ Print Name: _________________________ Kelsey Clarke Assignee’s Signature: _________________________ Date: ________________ Print Name: _________________________ Ellie Staley, Downtown Urban Renewal District 139 -1- Exhibit B: Scope of Services Agreement EXHIBIT B: SCOPE OF SERVICE AGREEMENT CLIENT CONTACT: CONTRACTOR CONTACT: Downtown Bozeman Partnership 222 East Main Street, Suite 302 Bozeman, Montana 59715 Constructive Solutions Inc. 111 S. Grand Ave. Suite 223 Bozeman, MT 59715 Primary Contact: Ellie Staley, ellie@downtownbozeman.org Primary Contact: Rob Evans, team@constructivesolutionsmt.com Term: August 22, 2023 to September 30, 2024. Project Overview: Downtown Alley Enhancement Pilot Project. Enhancement Asphalt coating, visual enhancements via murals and sculpture installations, lighting improvements, landscape and hardscape improvements, site furnishings, signage, and miscellaneous other items in and around the alley between North Tracy Avenue and North Black Avenue within the City of Bozeman, as specified in the contract documents. Service Details: Notes: 1. Costs for mobilization, insurance, bonding, taxes, traffic control, etc. are incidental. Costs for these items are to be included in the other bid item costs. No separate bid items are provided 2. There is a bid item for miscellaneous work provided below. We have assigned a cost of $15,000 to help cover any extra work that may be needed/required on the project. Extra work items must be pre-approved by the City Engineer. ITE M DESCRIPTION ESTIMATED QUANTITY UNIT UNIT PRICE TOTAL PRICE 1 Asphalt Protective Coating StreetBond Durashield 3,653 SF 2 Rock Bark 300 SF 3 Asphalt Protective Coating - River StreetBond MMA 4,040 SF 4 Curved Bench with Back 2 EA 5 Bench 1 EA 140 -2- Exhibit B: Scope of Services Agreement 6 Concrete Path 44 SF 7 Sculpture & Brackets 3 EA 8 String Light & Frame 249 LF 9 LED Wall Wash Light 4 EA 10 LED Wall Mount Light 7 EA 11 Bike Rack 3 EA 12 Entry Wayfinding Sign & Brackets 2 EA 13 Painted Mural & Anti-Graffiti Coating 800 SF 14 Vinyl Art Wrap 2,795 SF 15 Historic Plaque 5 EA 16 Tree Pruning 2 EA 17 Landscape Planting & Related Irrigation System Repairs/Retrofits Per Plans 18 Clean/Power Wash Trash Receptacle Alcove 2 EA 19 Holiday Lights Per Plans 20 Miscellaneous 1 Unit $15,000 Additional Services: or Name City of Bozeman Contract Signature: Signature : Printed: Printed: Title: Title: Date: Date: 141 Memorandum REPORT TO:City Commission FROM: Luke Kline, Parks and Recreation Contracts Coordinator Mitch Overton, Parks and Recreation Department Director SUBJECT: Authorize the City Manager to Sign a Third Amendment to the Professional Services Agreement with Advantage Spraying Services, Inc. for Landscape Maintenance Services in the Parks and Trails District MEETING DATE:February 13, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION: Authorize the City Manager to Sign a Third Amendment to the Professional Services Agreement with Advantage Spraying Services, Inc. for Landscape Maintenance Services in the Parks and Trails District. STRATEGIC PLAN:6.5 Parks, Trails & Open Space: Support the maintenance and expansion of an interconnected system of parks, trails and open spaces. BACKGROUND: On June 1, 2020, the Bozeman City Commission approved Resolution 5180 creating the Bozeman Parks and Trails Special District (District). To accomplish the District objectives the City has developed a multi-year District implementation plan designed to achieve steady calculated increases in level of service standards and sustainable maintenance practices in all City Parks. Beginning July 1, 2020 City’s Parks and Recreation Department assumed full responsibility for all of the District’s designated park properties including the addition of 235 acres of park land located within subdivision parks previously maintained by home owners/community associations. In February 2021, the Parks and Recreation Department conducted a request for proposals process to acquire professional services required to maintain parks grounds and landscape areas in the District. After careful evaluation and review, Advantage Spraying Services, Inc. was determined to be the most qualified vendor for Parks and Trails District Landscape Maintenance Services Zone 1 Parks. On April 6, 2021, the City entered into the Agreement with Advantage Spraying Services, Inc. The Agreement is effective for one year after the date of execution with the option to extend the agreement an additional year upon mutual agreement. Advantage 142 Spraying Services, Inc. has demonstrated the ability to provide comprehensive landscape maintenance services for the City’s Parks and Trials District and will continue complete services as defined and described in Attachment B: PSA Advantage Spraying Services, Inc. The Attachment A PSA Amendment 3 Advantage Spraying Services, Inc. will extend the Agreement for an additional one (1) year period and shall terminate on April 6, 2025. In no case, however, may this agreement run longer than five (5) years from the original effective date. UNRESOLVED ISSUES: None. ALTERNATIVES: As recommended by City Commission. FISCAL EFFECTS: Funding is currently allocated for this maintenance within the FY24 and FY25 budget in the Parks and Trails District Maintenance Fund account. Attachments: Attachment A PSA Amendment 3 Advantage Spraying Services, Inc..pdf Attachment B PSA Advantage Spraying Services, Inc..pdf Report compiled on: February 6, 2024 143 THIRD AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS THIRD AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR Parks and Trials District Landscape Maintenance Services Zone 1 dated April 6, 2021 (the “Agreement”) is made and entered into this _____ day of ____________, 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 Advantage Spraying Services, Inc., 144 Wildcat Way, Bozeman, MT 59718 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 to amend the Agreement as follows: 1.Extension of Term: Section 31. Extensions: Professional Service Agreement between City and Contractor dated April 6, 2021 is extended for an additional one (1) year period. The Agreement shall terminate on April 6, 2025. 2.Section 4 Payment: The landscape maintenance services specified in Exhibit B of the Professional Services Agreement between the City and the Contractor are clarified to include updated pricing described in Exhibit A: Schedule of Services - Advantage Spraying Services, Inc. 2024 Pricing. 3.Agreement still valid. All remaining terms and provisions of the Agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** Third Amendment to Professional Services Agreement for Landscape Maintenance Services Zone 1 FY 2024 – FY 2025 Page 1 of 2 144 Third Amendment to Professional Services Agreement for Landscape Maintenance Services Zone 1 FY 2024 – FY 2025 Page 2 of 2 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA ADVANTAGE SPRAYING SERVICES, INC. By________________________________ By_____________________________ Jeff Mihelich, City Manager Print Name: Title: APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney 145 Account 2023 Pricing Per Mow/Trim 2024 Pricing Per Mow/Trim Ferguson Meadows $90.00 $90.00 Valley Commons $60.00 $65.00 Loyal Gardens $435.00 $487.50 Valley West $510.00 $585.00 Norton Ranch Parks $690.00 $747.50 Baxter Meadows Master $1,050.00 $1,050.00 Baxter Meadows Phase 1 $300.00 $425.00 Flanders Creek $570.00 $570.00 Traditions $375.00 $375.00 Diamond Estates $60.00 $97.50 Oak Springs $1,050.00 City Staff Is Taking Over Account Diamond Park $1,050.00 $1,050.00 Four Points $645.00 City Staff Is Taking Over Account Westbrook $300.00 $300.00 The Lakes $300.00 $300.00 Sundance $330.00 $330.00 Boulder Creek $360.00 $360.00 Annie St Park $90.00 $90.00 Cottage Park $60.00 $60.00 Flanders Mill $165.00 $195.00 Alder Creek $630.00 $715.00 Gran Cielo $510.00 $510.00 ML Anderson $330.00 $357.50 Additional Items:2022 & 2023 Pricing 2024 Pricing Pre-Emergent & Post Emergent Trails Spraying $575.00 Per Acre $605.00 Per Acre Pruning, Clearing Of Brush & Removal Of Dead Trees $75 Per Hour $80.00 Per Hour Leaf & Seasonal Debris Removal $50.00 Per Hour $55.00 Per Hour Mulching Of Planting Beds or Around Trees $13.55 Per Bag Installed $14.75 Per Bag Installed Lawn Spraying & Fertilization Prices Are Staying The Same As The Last Three Seasons Doggie Pot's & Garbage Dumping Has Beed Taken Over By The City Staff Exhibit A: Schedule of Services - Advantage Spraying Services, Inc. 2024 Pricing 146 Professional Services Agreement for Landscape Maintenance Services Zone 1 FY 2021 Page 1 of 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 6th day of April, 2021, 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, Advantage Spraying Services Inc., 144 Wildcat Way, Bozeman MT 59718,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. Term/Effective Date: This Agreement is effective upon the Effective Date unless earlier terminated in accordance with this Agreement. 3. Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: City agrees to pay Contractor specified in the Appendix C Maintenance Schedule Zone 1 (LANDSCAPE) attached hereto as Exhibit B. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the DocuSign Envelope ID: B54F657F-807D-446A-BFD3-8C31410E996E 147 Professional Services Agreement for Landscape Maintenance Services Zone 1 FY 2021 Page 2 of 11 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. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, 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. 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. DocuSign Envelope ID: B54F657F-807D-446A-BFD3-8C31410E996E 148 Professional Services Agreement for Landscape Maintenance Services Zone 1 FY 2021 Page 3 of 11 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. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of 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; 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 DocuSign Envelope ID: B54F657F-807D-446A-BFD3-8C31410E996E 149 Professional Services Agreement for Landscape Maintenance Services Zone 1 FY 2021 Page 4 of 11 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. 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  Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. 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 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. 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. DocuSign Envelope ID: B54F657F-807D-446A-BFD3-8C31410E996E 150 Professional Services Agreement for Landscape Maintenance Services Zone 1 FY 2021 Page 5 of 11 The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. 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. 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. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately DocuSign Envelope ID: B54F657F-807D-446A-BFD3-8C31410E996E 151 Professional Services Agreement for Landscape Maintenance Services Zone 1 FY 2021 Page 6 of 11 in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Luke Kline, Contracts Coordinator 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 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. DocuSign Envelope ID: B54F657F-807D-446A-BFD3-8C31410E996E 152 Professional Services Agreement for Landscape Maintenance Services Zone 1 FY 2021 Page 7 of 11 b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be Patrick Doran 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. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13 Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Nondiscrimination 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. 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 DocuSign Envelope ID: B54F657F-807D-446A-BFD3-8C31410E996E 153 Professional Services Agreement for Landscape Maintenance Services Zone 1 FY 2021 Page 8 of 11 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. 15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. 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. 16. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 17. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in DocuSign Envelope ID: B54F657F-807D-446A-BFD3-8C31410E996E 154 Professional Services Agreement for Landscape Maintenance Services Zone 1 FY 2021 Page 9 of 11 compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 18. Non-Waiver: A waiver by either party 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. 19. 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. 20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 21. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 22. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 23. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 24. Severability: If any portion of this Agreement is held to be void or unenforceable, the DocuSign Envelope ID: B54F657F-807D-446A-BFD3-8C31410E996E 155 Professional Services Agreement for Landscape Maintenance Services Zone 1 FY 2021 Page 10 of 11 balance thereof shall continue in effect. 25. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 26. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 28. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 29. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained 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. 30. 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. 31. Extensions: this Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than three years. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** DocuSign Envelope ID: B54F657F-807D-446A-BFD3-8C31410E996E 156 Professional Services Agreement for Landscape Maintenance Services Zone 1 FY 2021 Page 11 of 11 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. 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 DocuSign Envelope ID: B54F657F-807D-446A-BFD3-8C31410E996E Patrick Doran Advantage Spraying Services, Inc Vice-President 157 City of Bozeman PO Box 1230 Bozeman, MT 59771-1230 February 2021 REQUEST FOR PROPOSALS (RFP) PARKS & TRAILS DISTRICT LANDSCAPE MAINTENANCE SERVICES ZONE: 1 City of Bozeman Bozeman, MT Exhibit A DocuSign Envelope ID: B54F657F-807D-446A-BFD3-8C31410E996E 158 Page 5 of 25 scheduled services to ensure that City landscapes are effectively and efficiently maintained for the benefit of the city and its residents. The selected contractor will begin work in April of 2021 and continue services through the completion of the summer season at the end of October 2021. The routine services will be conducted for approximately a 30 week period in total or approximately 7 months per year. III.SCOPE OF SERVICES If selected a contractor will provide the City with professional expertise to successfully implement the proposed scope of services. The City has provided a summary of the basic maintenance components and site locations to assist in understanding the tasks and maintenance services desired. Specifications are general in nature and not intended to encompass all the projects complexity. Contractor shall become familiar with the specified locations and the needs of each facility to best determine their ability to complete the described maintenance specifications. Additional tasks and work elements may be inserted into the scope of services during contract negotiations with the selected firm. It is also possible that tasks or elements could be removed during negotiations or not included in an initial contract because of regulatory uncertainty, budget limitations, contracting strategy or any combination thereof. Proposals must clearly identify any elements of the proposed scope of services that would not be provided by the prime contractor. Any sub-contractors which comprise the respondent team must be identified along with a description of past working history between the firms. The scope of services includes: 1.Contractor shall be responsible for completion of site specific landscape maintenance and grounds keeping services identified and described in Appendix D: Park location Maps Zone 1. 2.Contractor proposals shall include cost associated with delivery of tasks described in Appendix C: Maintenance Schedule Zone 1 and Additional Services listed to be considered for proposal award. 3.Contractor shall provide a fixed cost per item for all services at the frequency designated/described in Appendix C: Maintenance Schedule Zone 1. Services requested for Maintenance Schedule Zone 1 include: a.Mowing b.Weedeating / Trimming c.Fertilizer Application d.Spraying Application / Weed Control e.Dog Station Maintenance f.Garbage / Trash Removal Exhibit A DocuSign Envelope ID: B54F657F-807D-446A-BFD3-8C31410E996E 159 Page 6 of 25 4.Contractor shall provide a fixed hourly rate for services described in Appendix C: Maintenance Schedule. Additional Services requested include: g.Mowing h.Weedeating / Trimming i.Dog station maintenance j.Landscaping k.Clearing, brushing, pruning of vegetation l.Maintenance of native grass/naturalized areas m.Trail maintenance n.Removal of seasonal debris, leaves, litter o.Overseeding turf areas p.Garbage trash/removal q.Aerating & Thatching 5.The final scope of services may change and will be contained in a professional services agreement to be executed by the City and the selected Contractor. Contractor proposals shall include additional explanation if items costs are excluded from the scope of services provided. Irrigation services/maintenance are not included in this RFP and will be contracted separately. Exhibit A DocuSign Envelope ID: B54F657F-807D-446A-BFD3-8C31410E996E 160 PARK NAME SITE DISCRIPTION LOCATION: MAP/LOCATION (GREEN AREA ONLY) FERGUSON MEADOWS PARK TURF: YES/FAIR IRRIGATION: YES/SMALL/FAIR Sanders Ave & Cascade St. 1-A 1x/week (price per mow) $ 1x/week (price per trimming) $ On Turf Area 1x/year/as needed (price per application) $ Broad leaf weed control 1x/year/as needed (price per application) $ 1x/week/as needed $1x/week/as needed $ VALLEY COMMONS PARK TURF: YES/UNK IRRIGATION: YES/MEDIUM/FAIR Fallon St. & Ginella Way (vacant land) 1-B 1x/week (price per mow)$1x/week (price per trimming) $ OnTurf Area 1x/year/as needed (price per application) $ Broad leaf weed control 1x/year/as needed (price per application) $ 1x/week/as needed $ 1x/week/as needed $ LOYAL GARDENS SUB PARK TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR S. Cottonwood Rd. to Golden Gate Ave. & South of Loyal Dr. 1-C 1x/week (price per mow)$1x/week (price per trimming) $ On Turf Area 1x/year/as needed (price per application) $ Broad leaf weed control 1x/year/as needed (price per application) $ 1x/week/as needed $ 1x/week/as needed $ VALLEY WEST PARK TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR Durston Rd. to Babcock St. & Kimball Ave. to N. Cottonwood Rd.1-D 1x/week (price per mow)$1x/week (price per trimming) $ On Turf Area 2x/year/as needed (price per application) $ Broad leaf weed control 1x/year/as needed (price per application) $ 1x/week/as needed $ 1x/week/as needed $ NORTON EAST RANCH SUB PARK TURF: YES/FAIR IRRIGATION: YES/SMALL/FAIR Babcock St. to Fallon & S. Eldorado to Waterlily Dr.1-E 1x/week (price per mow)$x/week (price per trimming) $ On Turf Area 2x/year/as needed (price per application) $ Broad leaf weed control 1x/year/as needed (price per application) $ 1x/week/as needed $ 1x/week/as needed $ BAXTER MEADOWS (Master), PH. 1-3 TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR Kimberwicke St. to Baxter &Vaquero Pkwy. to Harper Puckett Rd.1-F 1x/week (price per mow)$1x/week (price per trimming) $ On Turf Area 2x/year/as needed (price per application) $ Broad leaf weed control 1x/year/as needed (price per application) $ 1x/week/as needed $1x/week/as needed $ FLANDERS CREEK SUBDIVISION PARK 1-3 TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR Annie St. to Durston Rd. & Flanders Creek Ave. to Twin Lakes Ave. 1-G 1x/week (price per mow)$1x/week (price per trimming) $ On Lawn Area 2x/year/as needed (price per application) $ Broad leaf weed control 1x/year/as needed (price per application) $ 1x/week/as needed $ 1x/week/as needed $ BAXTER MEDOWS, PH. 1 Park 1-2 TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR Equestrian Ln. to Baxter Ln. & Vaquero Pkwy. to Ferguson Ave. 1-H 1x/week (price per mow)$1x/week (price per trimming) $ On Lawn Area 1x/year/as needed (price per application) $ Broad leaf weed control 1x/year/as needed (price per application) $ 1x/ biweekly/as needed $ 1x/biweekly/as needed $ TRADITIONS SUB PHASE 1 PARK 1-4 & 8 TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR Sherwood Way to Glenwood Dr. & Flanders Creek Ave to Abigail Ln.1-I 1x/week (price per mow)$1x/week (price per trimming) $ On Lawn Area 1x/year/as needed (price per application) $ Broad leaf weed control 1x/year/as needed (price per application) $ 1x/week/as needed $ 1x/week/as needed $ DIAMOND ESTATES PUBLIC PARK TURF: YES/FAIR IRRIGATION: YES/SMALL/FAIR Oak St. & Agate Ave. Road buffer at Oak & detention pond Area. 1-J 1x/week (price per mow)$1x/week (price per trimming) $ On Lawn Area 1x/year/ as needed (price per application) $ Broad leaf weed control 1x/year/as needed (price per application) $ 1x/week/as needed $ 1x/week/as needed $ OAK SPRINGS PARK TURF: YES/FAIR IRRIGATION: YES N. Ferguson Ave. to Yellowstone Ave. & Renova Ln. to Annie St. 1-K 1x/week (price per mow)$1x/week (price per trimming) $ On Lawn Area 1x/year/ as needed (price per application) $ Broad leaf weed control 1x/year/as needed (price per application) $ 1x/week/as needed $ 1x/week/as needed $ DIAMOND PARK TURF: YES/FAIR IRRIGATION: YES/SMALL/FAIR Ferguson Ave. to Flanders Mill Rd. & Oak St. to Tanzanite Dr. 1-L 1x/week (price per mow)$1x/week (price per trimming) $ On Lawn Area 1x/year/as needed (price per application) $ Broad leaf weed control 1x/year/as needed (price per application) $ 1x/week/as needed $ 1x/week/as needed $ FOUR POINTS MINOR SUB 475 PARK TURF: YES/GOOD IRRIGATION: YES/MEDIUM/FAIR Cattail St. to Kimberwicke St. & Milkhouse Ave. to Ferguson Ave 1-M 1x/week (price per mow)$1x/week (price per trimming) $ On Lawn Area 1x/year/as neeeded (price per application) $ Broad leaf weed control 1x/year/as needed (price per application) $ 1x/week/as needed $ 1x/week/as needed $ WESTBROOK SUB PUBLIC PARK 1-2 TURF: YES/FAIR IRRIGATION: YES/MEDIU/FAIR Annie St. to Durston Rd. & Rosa Way to Loxley Dr. 1-N 1x/week (price per mow)$1x/week (price per trimming) $ On Lawn Area 1x/year/ as needed (price per application) $ Broad leaf weed control 1x/year/as needed (price per application) $ 1x/week/as needed $ 1x/week/as needed $ THE LAKES AT VALLEY WEST PARK TURF: UNK IRRIGATION: YES/MEDIUM/FAIR Westmorland Dr. to Vahl Way to N. Laurel Pkwy. Adjcent to Bronken Sports Park. 1-O 1x/week (price per mow)$1x/week (price per trimming) $ On Turf Area 1x/year/ as needed (price per application) $ Broad leaf weed control 1x/year/as needed (price per application) $ 1x/week/as needed $ 1x/week/as needed $ SUNDANCE PUBLIC PARK TURF: UNK IRRIGATION: UNK Caballo Ave. to Davis Ln. & Galloway St. to Baxter Ln. 1-P 1x/week (price per mow)$1x/week (price per trimming) $ On Turf Area 1x/year/as needed (price per application) $ Broad leaf weed control 1x/year/as needed (price per application) $ 1x/week/as needed $ 1x/week/as needed $ BOULDER CREEK PARK 1-2 TURF: YES/FAIR IRRIGATION: YES/MEDIU/FAIR Glenellen Dr. to Annie St. & Laurel Pkwy. To Abigail Ln.1-Q 1x/week (price per mow)$1x/week (price per trimming) $ On Turf Area 1x/year/as needed (price per application) $ Broad leaf weed control 1x/year/as needed (price per application) $ 1x/week/as needed $ 1x/week/as needed $ ANNIE ST & COTTAGE PARK LN TURF: YES/FAIR IRRIGATION: YES/SMALL/FAIR Small L shaped property corner of Annie St. & Cottage Park Ln. 1-R 1x/week (price per mow)$1x/week (price per trimming)$On Turf Area 1x/year/as needed (price per application)$Spraying as needed broad leaf weed control (price per application) $ 1x/month/as needed $ 1x/month/as needed $ COTTAGE PARK LN TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR Small property Cottage Park Ln. and Hanson St. 1-S 1x/week (price per mow)$1x/week (price per trimming) $ On Turf Area 1x/year/as needed (price per application) $ Spraying as needed broad leaf weed control (price per application) $ 1x/month/as needed $1x/month/as needed $ Aerating & Thatching $ Per Hour Rates Maintenance of native grass/naturalized areas Trail maintenance Weedeating / Trimming Landscaping Clearing, brushing, pruning of vegetation Appendix C: Maintenance Schedule Zone 1 (LANDSCAPE) MOWING FREQUENCY: (TURF AREAS)TRIMMING FREQUENCY:FERTILIZER APPLICATION FREQUENCY:SPRAYING PER APPLICATION WEEDS REMOVAL FREQUENCY:DOG STATION MAINTENANCE GARBAGE TRASH REMOVAL Additional Services Zone 1: Fixed Per Hour Rates ADDITIONAL COMMENTS Parks Service/Discription Removal of seasonal debris, leaves, litter Overseeding turf areas Garbage removal $ $ $ $ $ $ $ $ $ $ Mowing Dog station maintenance Exhibit ADocuSign Envelope ID: B54F657F-807D-446A-BFD3-8C31410E996E 161 CITY OF BOZEMAN BOUNDARY/TOPOGRAPHIC MAP Appendix C: Maintenance Schedule Zone 1 MAP/ LOCATION : OVERVIEW LK 1/21 PARKS MAINTENANCE ZONE 1-3 MAP Exhibit A DocuSign Envelope ID: B54F657F-807D-446A-BFD3-8C31410E996E 162 Title Page: R.F.P.: Parks & Trail District Landscape Maintenance Services. -Zone 1 ADVAI\ITAliE LandCare Firm Name: Advantage Spraying Services, Inc -Dba: Advantage Landcare Address: 114 Wildcat Way Bozeman, MT 59718 Contact: Patrick Doran & Steve Lee Phone: (406) 924-1882 Email: advantagelandcare@gmail.com Exhibit BDocuSign Envelope ID: B54F657F-807D-446A-BFD3-8C31410E996E 163 PARK NAME SIT!. DtsCRIPTION FERGUSON TURF: YESIFAlR lRRIGATION: MEADOWS PARK YES/SMALL/FAIR VAU.EY COMMONS TURF: YES/UNK IRRIGATION: PARK YES/MEOIUM/FAIR LOYAL GARDENS TURF: YES/FAIR IRRIGATION: SUB PARK YES/MEDIUM/FAIR TURF:YES/FAIR VALLEY WEST PARK IRRIGATION: YES/MEDIUM/FAIR NORTON EAST TURF: YES/FAIR IRRIGATION: RANCH SUB PARK YES/SMALL/FAIR BAXTER MEAOOWS TURF: YES/FAIR IRRIGATION: (MO!llat),PH,1-3 YES/MEDIUM/FAIR FLANDERS CREEK TURF: YES/FAIR SUBDIVISION PARK IRRIGATION: 1'3 YESIMEOIUM/FAIR BAXTER MEDOWS, TURF:YES/FAIR IRRIGATION: PH.1 Pork1·2 YESIMEOIUM/FAIR TRACHTIONS SUB TURF: YES/FAIR PHASE 1 PARK 1-4 & rflRtGATION: YES/MEDIUM/FAIR DIAMOND ESTATES TURF:YES/FAIR IRRIGATION: PUBLIC PARK YES/SMAl.VFAIR TURF: YES/FAIR OAK SPRINGS PARK IRRIOATION: YES TURF: YES/FAIR DIAMOND PARK IRRIGATION: YES/SMALUFAIR FOUR POINTS TURF: YESIGOOO MINORSU8475 lRRIGATION: PARK YES/MEDIUM/FAIR WESTBROOK sue TURF: YES/FAIR 1RRIGAT10N: PUBLIC PARK 1·2 YESIMEDIUIFAIR TURF: UNK THE LAKES AT IRRIGATION: VALLEY WEST PARK YES/MEOIUM/FAIR SUNDANCE PUBLIC TURF: UNK PARK IRRIGATION: UNK BOULDER CREEK TURF: YES/FAIR PARK1·2 IRRIGATION: YES/MEDIU/FAtR ANNIE ST& TURF: YES/FAIR COTTAGE PARKLN IRRIGATION: YESfSMAI.UFAIR TURF: YESJFAIR COTTAGE PARK LN IRRIGATION: YES/MEDIUM/FAIR IW'II.OCATION LOCATION: {QRE!NAAI!.A Sanden Avo & Co:odo SL FrallonSt.&GlnollaWfll (vDCDnt lal'ld) S.Cottnnwaoc1Rd.to GolclonGotoAvo.&South oll..ayalDr. OuralonRQ.l(la.bcoek$t.& l<lmbollA1'9,ION.COIIOl'IW00d Rd. Bobe:ocicSLtoFcllon & S. Eldorado to Wlllcrtlly o,. KlmbarwlekoSt.toBGXI• &VaqWll'D Pkwy. !ti HIWP« PuckottRd. Anni. SL to Duman Rd. &FlondersCl'MkAva.to Twin Lako1 Av•. Equcatl'1an Ln. to B4IClor Ln.&VoquoroPk\i,y.to Flll'glJ,onAve. Shllrv.oodWrk'(to Glof'MOOdDr,&Flandorl CNlokAvo loAblglllt Ln. 04kSL&AgotoAvo. Rood buffer Ill Oak & datonllon ponc!Aroa. N. Fcrgucon Avo, IC Yollow!ltcnoAvo,& Ro nova t.n. to Annlo SL Ferguwn Ave. lo Flandlr1 MIII Rd.&OokSLto Tanzonllo Dr. Cattnll SL to Klmborwlcko SL & Mlllchouse Ave. to Ferguson Ave Annlo St. to Ouratan Rd. &RoaoWaytolaxle)'Dr. W«Jlmorlond Or. toVohl W:,;y [0 N. Louml Pkwy. Ad}t'onlloBronkonSports P""'-Cab4Do Ave. to Davia Ul. &Galt:iwuySLtoBaxt• Ln. GlonoDon Dr. to Annla SL & Laurel Pkwy, ToAblgQG Lo. Smlllllsluipedproport)' comer d Anni• SL & CcullgoPnLn. Smnll proportyeottag& Pm Ln. ond Honson St. s.r.,ic.rotscrlptlon Mowing °"L"' 1-A 1-B 1-C 1-0 1-E 1-F 1-G 1-H 1-1 1.J 1-K 1-L 1-M 1-N 1-0 1-P 1-Q 1-R 1-S Wecdc�lna/Trlmmlna ooe: sutlon m.ilntan.inca L.ondm1plnI ClcIrlng.brushlna,prunlns0fvqet:1tl0n Mii!lntcn:inco of native sr.iss/n3tur.illzed areas Tr.iUm.ilntcn.incc Rt'mov.11 of �.ison.11 dcbrl1, lc,ivc:, litter Ovcrscedll'\llturlarcas G.1rb.isorcmov.:al Acr.illng & Thatching Appendix C: Maintenance Schedule Zone 1 (LANDSCAPE) IIOWlNG FREQUl!NCY: (TURF AREAS} TRIMUlNO FREQUENCY: FERTlUZER N'PUCAT10H FREQUEHCY: ..... , ...... $ 1'S. =,_ �..k.a OnTutfAl'IIIII c'>) • 1,r/yomiosneedOd(pncct '\�0, (prleapormow) (pncoporlrfnvnlng) \I\ �<>S."-"\ po<-) , ..... , = ,,,_,,-S:"-<-\4ci' OnTur1Areo :,-V •So, b/yoar/as noodDd (?1oo $ \'A.,S. (pricopormow) (prlcoportrimming) -� t""',.l>V-.._f\.., por apptlc:allon) 1 ..... , C."> ,_ -·�--c)..�..., 0nTur1Af'90 (JI;, $ 3U'::>' 1w/yeljr/Unood0d(pr\ce ·��75, (�co por mow) (prtco par b1mmlng) 't'\_ tvlr...t'II"''� POrarr.lk:tl.Uon) 1.,,.Gk 'l\1;6, O'O 1,,._k ?:"'"-'�-On Turf AnMI 2x/yot1rlot •�°\\1,Sb ooodod (prtcepermow) (prieeporlrlmmlng) ' .... t."()l..)'.11\c.. (prtccporappllai!lon) ,,,_,, � -. �\�-OnTurfAr'Oa2x/y$11r{DI $ \�a-."S. "' •-c:,_75. ,_,., (pricepermow) (prlcepertrlmmlng) \t\. -..l.U-.._f\_....,_ (prlcopcroppllc3Uon) ,,,_, 0-.:. 1-.�...),L'a.-' On Turf� 2J,,/yNr/u ·�\.\C/0,Cb ·��().,_,., (pncopormow) (pnceportr1mtru1g) �-�,I\. .... (pricoporapplic:Dllcn) 1 ..... k O't> 1-,".!f-.c.-\�l(' °" L.owoAnoa ex, ·u..1s.'blyearloanaedect '\\i'S, {p(lcopormo.o., IP""''°'�"""""J \� rA.h,j',\..""'-1-po<..,,i,a,""'J ,_ s 'J..-C..O, = 1-k �<>-.�\..✓ Ool.wm-00 1xlyo0rlu nooded s (/X)· (prtco parmo-N) (pricopcrtrlnvnlng) I'\...._ .1'n�'"-"'-(r;dotperappllc:Allon) 1KM'Ook ·?:>\S."" 1-�e&.._-' On L.awnArc• °" (priceperrna.v) (prieeportrlmrnlng) $ 1Xlyoar/unee6od ·��-·--�w· ... .._(prieo P«' np�c::aUcn) 1x,\,vat1IC s :)l), vi) ,_,°A.<01 v-k� Onl.O'MlAreo r;<:> 1�r/ 111 noodOd $ \d-..5. (pricepermow) (pries per t rimming) <'\::i.AN--. (prlcoporappllcatlon) ,....,, �,_,.�,_,.)__a_.., OoL.owoArao � (prlcapermow) •\oso,{prtceptrb1mmlng) 1x/yoerlunood0d $ 'J_(e '-3:) -,� t"'w..>\""" (pr100poroppl!catlon) ,,,_,, , ..... , ,1:N,\ ...}...>.\:°' OnlaM'IArell bl> (pl'tcopcrmow) $ \()l;b. a<> (pricoportrlnvnlnQ) 1,/year/unNdod • �OC--....... _ ..... i:,,\_rv,,,,.. {-po,-""') , ..... , 'Si\t), at, 1 ..... k ,1:"-�� °""""-1x/yellrlclnoeodtld S \ �'St) .CD (prlcoporma,i,) (ptlcepcrtnnvnlng) -,� �" .... �"" (prlceperappllCllllon) 1 ..... , '""""' s�<'l-'s.v.)..c.� Qol.o,mA,u Cl) • a l.\-S. =1� u needed s '\�°';> . (pricepermow) {prlcepertrlr'M'fflg) --'" ........ (pricaper�) .-,,I'-<,,�OnTurfAIGCI 1 ..... k '\�D-()b 1"'-'< 1xfyo4r/mn� ''36�. u:, (pricopcrrmow) (pric:1:1 por ll'lmmlng) r",..)v"-.�°' � per appllaatlon) \" , ..... , 0V , ..... , ��e\ On TurfAroa (pr1copormow) $ d-.75. (pt'!copcrll'lrrmlng) 17/yeat/arw,oclod •7(::e)' �-.. • -1· ...... (pneeperappUca!Jon) 1-., <>'ti 1-.�� OnTurfAro1111ll/yO,Ol'/u 0:, (pricopormow) •�()D, (price par trimming) ,..,., $1C,D, -.- -.,, Ji�f\..60\ {-po,oppllcotloo) , ..... , 1s. Ct> ,,_, �!\.6-.-,.k� ) OnTurfAmot,-Jycor/n c,, (pr1c:opormow) $ (pr'looperll1ffflling) ,_,., $ \�. 1, ""'-1)..i", ... ""' (pric,D p,or oi,pllaatlon) 1-'SD. cro ,_ -z 6-�.,., On Turf Amil txtyeor/u t:fc:, s-"-"'°'" s \r::f). (pr1cttpormow) (ptk:eperll'tmmlng) \" c----,->�-"" (prioa poro;,plcaUon) Addltk>nal Sl�cn Zone 1: Flud Per HoMr Rates P•rHourRalN $ � , <-c "� "-.<>..S-$ '1",, C> f\\.-w....s s -..n /��� 1---�s ,d.-i:,.... $ --?f:.,, o,;, $ \..I\ I>., �""'--..,..· ",'\.. $ t_:·7c;.,) !),...,.� . .., ..I $ °'T'\ 'I \_ --v,s· $ i-)lt-... s µ\� s �\ii'sc lfflAYING l'EJlt N'l'I.ICATlOM WU:011 IWIIOVM. FltfQUENCY: 000 aTATlON llAINnNAMCi! GARMCITRA&HltDIO'IM.. BttllldloafModoontrol °"" 1,r/yaarlasneeded '\�-1�unNde(j $ 1x/WNkle needed • Cprpperappllc:aUon) Brood loaf WIIOd control <lC 1x/yll11r/os needed $ \tp. 1'1/witf,)c/anoodDd $ 1WWffklunoodctd • (prlcopor�an) Broadleof�c:ontt'ol $ �':le()."" 1JJyaar/a nooded 1irlwMk/aa neoded $ 1r/wo(l/,(JunMdad $ {prlceporoppllcation) Brood lsafweod c.ontrol ·-��.(le, 1xlycar/aa nc odod 1lUWCOk/aa noedod $ 1Jl/woek/.m,nooood $ {�caporoppllcallon) Broodloofwaedcontrol u-\> 1x/yollr/os neodod $ f�tD, 1'JJwook/aa needed $ 1�necdod $ (prlcapcroppllc:.ll.lon) Bl'Old loaf wood control •:17�. at, 1ltlycwlanoodod 1'1/wook/unoodod $ 1xtwook/0snoodl-d s {pnoopo,"""'""'°"1 Broad loaf WNd control $ C\L\0, 001x/yeM/uneodod 1J/Wfl/lltlJu neoded $ 1xlwNklao nNC»d s -po<-) Brocldloafweoda,ntral ·t_\�. db 1xly0orlasnoodad 1x/blv.ook)yfnanoodod S 1�/oanoedod S {prloepo,-) Broodloofwr:iedcontrcl <:P 1x/)'ocrlas noodod $ \CJ_(). 1xlwooklu noodod $ 1'1./wodtJu nooded $ (prlcoperap�\/on) Brood lotll' weed control � 1,c,lyearlesnoeded $ \f-i(). 1xh,,oak/unocdcd $ 1Ylwod,,Ju noodod $ (pricoperapp!lctnlon) Broodloofwoodcontrol ·�,\�-Di) 1x/y11arfasnoodod hJWOClklU noodod $ 1x/\l.ook/111 noodod s (prlcoporoppllcation) Broatl leaf weod amtrol $ ® �"' 1x/yofJJ/DlnN<IOd -:,..,,o . 1�otnoedod $ 1JC/Wooklaneodld $ (prlcoporoppllcellon) Sroodlcld'woodcontrcl (.°i) 1x/yolll"/U needed s \ ,oio. ,�runeedocl $ 1xlweoklnsneodod $ {prtcaporappllcatlon) Broad loaf wood control C<> 1x/yaarfunoedcd s, L.\1'\, 1xlwock/asnCIOdtJd $ 1>rJl.t.ook.laa nooded $ (pricoperoppllcatlon) BrcNtdlcat\..oodcontrol 1xf)'Mrlan-.d $ -;)__ l\ '1-.() Cl) 1J!lweekluneeded $ 1x/Mek/csnoeded $ (prlcaporopplk:atlon) Brood lea! 'MJOd control 1Klyoar/a noodOd 'S�D. 1:r/Mok/oa nooclod $ 1wwoak/a, noodod s (prlcaperappllcatlon) Br011d laof wood COf'ltrol $ ( .. {'{\ ' (Jt, 1kfyoar/a neoded 1x/WNkJDI neoded s 1x/weokluneeded $ (prlc&pcrappllcotlon) Spniylngasnocoodbrood ot) lent wood contrcl (prico por S �a, 1 x/month/DI ncodod $ 1x1monw11,noodod $ oppllcGtlon) Sprnylng oo needed broad 91). G'D i.of'Mledcontrol(priceper S 1xlmonthlosMeded $ 1xlmonlh/nMOdod oppflcatloo) ADDmoNAL COMMENTS .)__-. M<t,.""'-,""-C\,;,GQ... � '" c... --��n\. L°'� .,,_6,�·-.• ,� ��-�IL ___ ,'\ --==r...,__'-·-.. \.. � ,,;_ '-', a • • •~ A---� l<\.�r,?,;:V ....... l ..J \ _, ...., � �. -· >..-:,.... �-s.o�.s,....'-. c.,,,,-"' c.. .. s .../ \ �N' � � � Y. -·�'-#:<C° s .... � ..... : ·. ""' I -_) Exhibit BDocuSign Envelope ID: B54F657F-807D-446A-BFD3-8C31410E996E 164 Appendix A NONDISCRIMINATION AND EQUAL PAY AFFIRMATION �\J�b� \ ..-N:'\b.( .o§<L.. (name of entity submitting) hereby affirms it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and acknowledges and understands the eventual contract will contain a provision prohibiting discrimination as described above and this prohibition on discrimination shall apply to the hiring and treatments or proposer's employees and to all subcontracts. In addition, J\�-J�L ��C.0-\-L-(name of entity submitting) hereby affirms it will abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act), and has visited the State of Montana Equal Pay for Equal Work "best practices" website, https://egualpay.mt.gov/BestPractices/Employers, or equivalent "best practices publication and has read the material. y�,� S0��°'--"-"- \) __ q,_ ���� Name and title of person authorized to sign on behalf of submitter Exhibit BDocuSign Envelope ID: B54F657F-807D-446A-BFD3-8C31410E996E 165 166 167 Second Amendment to Professional Services Agreement for Landscape Maintenance Services Zone 1 FY 2023 – FY 2024 Page 1 of 2 SECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS SECOND AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR Parks and Trials District Landscape Maintenance Services Zone 1 dated April 6, 2021 (the “Agreement”) is made and entered into this _____ day of ____________, 2023, 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 Advantage Spraying Services, Inc., 144 Wildcat Way, Bozeman, MT 59718 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 to amend the Agreement as follows: 1.Section 31 of the Agreement is replaced in its entirety with the following: 31.Extensions: This Agreement may, upon mutual agreement, be extended for a period of one (1) year by written agreement of the Parties. In no case, however, may this Agreement run longer than five years. 2.Extension of Term: Section 31. Extensions: Professional Service Agreement between City and Contractor dated April 6, 2021 is extended for an additional one (1) year period. The Agreement shall terminate on April 6, 2024. 3.Section 4 Payment: The landscape maintenance services specified in Exhibit B of the Professional Services Agreement between the City and the Contractor are clarified to include updated pricing described in Exhibit A: Schedule of Services - Advantage Spraying Services, Inc. 2023 Pricing. 4.Agreement still valid. All remaining terms and provisions of the Agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** DocuSign Envelope ID: 2220E337-BD1C-4C86-8E25-F7382447956A February28 168 Second Amendment to Professional Services Agreement for Landscape Maintenance Services Zone 1 FY 2023 – FY 2024 Page 2 of 2 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA ADVANTAGE SPRAYING SERVICES, INC. By________________________________ By_____________________________ Jeff Mihelich, City Manager Print Name: Title: APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney DocuSign Envelope ID: 2220E337-BD1C-4C86-8E25-F7382447956A Vice-President Patrick Doran 169 Schedule of Services - Advantage Spraying Services, Inc. 2023 Pricing City Of Bozeman Parks and Trails District Landscape Maintenance Zone 1 Account 2023 Pricing Per Mow & Trim Ferguson Meadows $90.00 Valley Commons $60.00 Loyal Gardens $435.00 Valley West $510.00 Norton Ranch Parks $690.00 Baxter Meadows Master $1,050.00 Baxter Meadows Phase 1 $300.00 Flanders Creek $570.00 Traditions $375.00 Diamond Estates $60.00 Oak Springs $1,050.00 Diamond Park $1,050.00 Four Points $645.00 Westbrook $300.00 The Lakes $300.00 Sundance $330.00 Boulder Creek $360.00 Annie St Park $90.00 Cottage Park $60.00 Flanders Mill $165.00 Alder Creek $630.00 Gran Cielo $510.00 Lawn Spraying & Fertilization Prices Are Staying The Same As The Last Two Seasons (see Advantage PSA Exhibit B ) Trail Spraying Prices Are Staying The Same As The Last Two Seasons (see Advantage PSA Exhibit B ) Pruning, Spring Cleanup, & Debris Removal Prices Staying The Same As The Last Two Seasons (see Advantage PSA Exhibit B ) Doggie Pot Pricing Staying The Same As Last Season - $50.00 per station per month. Exhibit A:DocuSign Envelope ID: 2220E337-BD1C-4C86-8E25-F7382447956A 170 Memorandum REPORT TO:City Commission FROM: Luke Kline, Parks and Recreation Contracts Coordinator Mitch Overton, Parks and Recreation Department Director SUBJECT:Authorize the City Manager to Sign a Third Amendment to the Professional Services Agreement with Stay Green Sprinklers Inc. for Irrigation Maintenance Services in the Parks and Trails District MEETING DATE:February 13, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION: Authorize the City Manager to sign Third Amendment to the professional services agreement with Stay Green Sprinklers Inc. for irrigation maintenance services in the Parks and Trails District. STRATEGIC PLAN:6.5 Parks, Trails & Open Space: Support the maintenance and expansion of an interconnected system of parks, trails and open spaces. BACKGROUND:On June 1, 2020, the Bozeman City Commission approved Resolution 5180 creating the Bozeman Parks and Trails Special District (District). To accomplish the District objectives the City has developed a multi-year District implementation plan designed to achieve steady calculated increases in level of service standards and sustainable maintenance practices in all City Parks. Beginning July 1, 2020 City’s Parks and Recreation Department assumed full responsibility for all of the District’s designated park properties including the addition of 235 acres of park land located within subdivision parks previously maintained by home owners/community associations. In February 2021, the Parks and Recreation Department conducted a request for proposals process to acquire professional services required to maintain parks grounds and landscape areas in the District. After careful evaluation and review, Stay Green Sprinklers Inc. was determined to be the most qualified vendor for Parks and Trails District Irrigation Maintenance Services Zone 2 Parks. On March 23, 2021, the City entered into the Agreement with Stay Green Sprinklers Inc. The Agreement is effective for one year after the date of execution with the option to extend the agreement an additional year upon mutual agreement. Stay Green Sprinklers Inc. has demonstrated 171 the ability to provide comprehensive irrigation maintenance services for the City’s Parks and Trials District and will continue complete services as defined and described in Attachment B: PSA Stay Green Sprinklers Inc. The Attachment A PSA Amendment 3 Stay Green Sprinklers Inc. will extend the Agreement for an additional one (1) year period and shall terminate on March 23, 2025. In no case, however, may this agreement run longer than five (5) years from the original effective date. UNRESOLVED ISSUES: None. ALTERNATIVES: As recommended by City Commission. FISCAL EFFECTS:Funding is currently allocated for this maintenance within the FY24 and FY25 budget in the Parks and Trails District Maintenance Fund account. Attachments: Attachment A PSA Amendment 3 Stay Green Sprinklers Inc..pdf Attachment B PSA Stay Green Sprinklers Inc..pdf Report compiled on: February 7, 2024 172 Third Amendment to Professional Services Agreement for Irrigation Maintenance Services Zone 2 FY 2024 – FY 2025 Page 1 of 2 THIRD AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS THIRD AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR Parks and Trials District Irrigation Maintenance Services Zone 2 dated March 23, 2021 (the “Agreement”) is made and entered into this _____ day of ____________, 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 Stay Green Sprinklers, Inc., PO Box 10461, Bozeman, MT 59719 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 to amend the Agreement as follows: 1.Extension of Term: Section 31. Extensions: Professional Service Agreement between City and Contractor dated March 23, 2021 is extended for an additional one (1) year period. The Agreement shall terminate on March 23, 2025. 2.Agreement still valid. All remaining terms and provisions of the Agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** 173 Third Amendment to Professional Services Agreement for Irrigation Maintenance Services Zone 2 FY 2024 – FY 2025 Page 2 of 2 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA STAY GREEN SPRINKLERS INC. By________________________________ By_____________________________ Jeff Mihelich, City Manager Print Name: Title: APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney 174 Page 13 of 25 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of March, 2021, 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, Stay Green Sprinklers, Inc., PO Box 10461, Bozeman, MT 59719, 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.Effective Date: This Agreement is effective upon the date of execution. 3.Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4.Payment: City agrees to pay Contractor the amount specified in the Appendix C Maintenance Schedule Zone 2 (IRRIGATION) attached hereto as Exhibit B. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 23rd DocuSign Envelope ID: 3E03AF6B-9824-41CD-9F34-A239091CF260 175 Page 14 of 25 5.Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a.Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b.Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform 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. 6.Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, 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. DocuSign Envelope ID: 3E03AF6B-9824-41CD-9F34-A239091CF260 176 Page 15 of 25 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. 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 DocuSign Envelope ID: 3E03AF6B-9824-41CD-9F34-A239091CF260 177 Page 16 of 25 connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes and for any claims regarding underpaid prevailing wages. 7.Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of 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; 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. DocuSign Envelope ID: 3E03AF6B-9824-41CD-9F34-A239091CF260 178 Page 17 of 25 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. 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: x Workers’ Compensation – statutory; x Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; x Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; x Automobile Liability - $1,000,000 property damage/bodily injury per accident; and x Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. 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 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. 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. DocuSign Envelope ID: 3E03AF6B-9824-41CD-9F34-A239091CF260 179 Page 18 of 25 The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8.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. 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. 9.Termination for City’s Convenience: a.Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b.Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do DocuSign Envelope ID: 3E03AF6B-9824-41CD-9F34-A239091CF260 180 Page 19 of 25 only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c.In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d.The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10.Limitation on Contractor’s Damages; Time for Asserting Claim: a.In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b.In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11.Representatives and Notices: a.City’s Representative: The City’s Representative for the purpose of this Agreement shall be Luke Kline, Contracts Coordinator 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 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 DocuSign Envelope ID: 3E03AF6B-9824-41CD-9F34-A239091CF260 181 Page 20 of 25 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 _____________________ 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. 12.Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13 Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non- discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14.Nondiscrimination 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. 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 DocuSign Envelope ID: 3E03AF6B-9824-41CD-9F34-A239091CF260 182 Page 21 of 25 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. 15.Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. 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. 16.Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. DocuSign Envelope ID: 3E03AF6B-9824-41CD-9F34-A239091CF260 183 Page 22 of 25 17.Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 18.Non-Waiver: A waiver by either party 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. 19.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. 20.Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 21.Dispute Resolution: a.Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b.If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 22.Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. DocuSign Envelope ID: 3E03AF6B-9824-41CD-9F34-A239091CF260 184 Page 23 of 25 23.Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 24.Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 25.Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 26.Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 27.No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 28.Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 29.Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained 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. 30.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. 31. Extensions: This Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than three years. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** DocuSign Envelope ID: 3E03AF6B-9824-41CD-9F34-A239091CF260 185 Page 24 of 25 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. 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 DocuSign Envelope ID: 3E03AF6B-9824-41CD-9F34-A239091CF260 Jason A Wood President/Owner Jason Wood 186 City of Bozeman PO Box 1230 Bozeman, MT 59771-1230 February 2021 REQUEST FOR PROPOSALS (RFP) PARKS & TRAILS DISTRICT IRRIGATION MAINTENANCE SERVICES ZONE: 2 City of Bozeman Bozeman, MT Exhibit A DocuSign Envelope ID: 3E03AF6B-9824-41CD-9F34-A239091CF260 187 Page 5 of 25 III.SCOPE OF SERVICES If selected a contractor will provide the City with professional expertise to successfully implement the proposed scope of services. The City has provided a summary of the basic maintenance components and site locations to assist in understanding the tasks and maintenance services desired. Specifications are general in nature and not intended to encompass all the projects complexity. Contractor shall become familiar with the specified locations and the needs of each facility to best determine their ability to complete the described maintenance specifications. Additional tasks and work elements may be inserted into the scope of services during contract negotiations with the selected firm. It is also possible that tasks or elements could be removed during negotiations or not included in an initial contract because of regulatory uncertainty, budget limitations, contracting strategy or any combination thereof. Proposals must clearly identify any elements of the proposed scope of services that would not be provided by the prime contractor. Any sub-contractors which comprise the respondent team must be identified along with a description of past working history between the firms. The scope of services includes: 1.Contractor shall be responsible for completion of site specific irrigation system and maintenance services identified and described in Appendix D: Park location Maps Zone 2. 2.Contractor proposals shall include cost associated with delivery of all tasks described in Appendix C: Maintenance Schedule Zone 2 Irrigation and Additional Services listed to be considered for proposal award. 3.Contractor shall provide a fixed cost per item for all services at the frequency designated/described in Appendix C: Maintenance Schedule Zone 2 Irrigation. Maintenance services requested include: a.Irrigation System Startup. b.Irrigation System Winterization. 4.Contractor shall provide a fixed hourly rate for labor cost associated with services described in Appendix C: Maintenance Schedule Zone 2 Irrigation Additional Services. Exhibit A DocuSign Envelope ID: 3E03AF6B-9824-41CD-9F34-A239091CF260 188 Page 6 of 25 Contractor proposals shall provide information on additional callout fees applied for service calls or maintenance related emergencies. Maintenance services requested include: a.Irrigation System miscellaneous maintenance (Labor Only). b.System programming for routine sprinkler cycles (Labor Only). c.Repair/Replacement of irrigation system components. (Labor Only). 5.The final scope of services may change and will be contained in a professional services agreement to be executed by the City and the selected Contractor. Contractor proposals shall include additional explanation if items costs are excluded from the scope of services provided. Landscape services/maintenance are not included in this RFP and will be contracted separately. Exhibit A DocuSign Envelope ID: 3E03AF6B-9824-41CD-9F34-A239091CF260 189 PARK NAME SITE DISCRIPTION LOCATION:MAP/LOCATION (GREEN AREA ONLY) CATTAIL CREEK PARKS A & B TURF: YES/UNK IRRIGATION: YES/UNK Park A: Blackbird Dr. to Warbler Way & South fo Cattail St. Park B: Catron St. to Cattail St. & Blackbird Dr. to Warbler Way. 2-B 1x/year $1x/year $ SANDAN PARK TURF: YES/FAIR IRRIGATION:YES/ME DIUM/FAIR Downy Ln. to Savannah St. & Fen Way to Blackbird Dr. 2-C 1x/year $1x/year $ CATTAIL CREEK PARK PHASE 3 TURF: YES/UNK IRRIGATION: YES/MEDIUM/FAIR Catron St. to Catamount & Blackbird Dr. to Warbler Way.2-D 1x/year $1x/year $ HARVEST CREEK PARK 1-4 TURF: YES/FAIR IRRIGATION: YES/SMALL/FAIR W. Oak St. to Durston Rd. & Springbrook Ave. to to N. 27th Ave.2-E 1x/year $1x/year $ WALTON HOMESTEAD PARK TURF: YES/FAIR IRRIGATION: YES/SMALL/FAIR Corner of 15th Ave. and Juniper St. 2-H 1x/year $1x/year $ WESTGLEN PARK TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR Between Drouillard Dr. and Meriweather Ave. at Mendenhall St. 2-I 1x/year $1x/year $ BRIDGER CREEK PARK PHASE 1 TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR Off Boyland Rd. Park with a pond. 2-K 1x/year $1x/year $ DIAMOND ESTATES PUBLIC PARK TURF: YES/FAIR IRRIGATION: YES/SMALL/FAIR Oak St. & Agate Ave. Road buffer at Oak & detention pond Area. 2-J 1x/year $1x/year $ OAK SPRINGS PARK TURF: YES/FAIR IRRIGATION: YES N. Ferguson Ave. to Yellowstone Ave. & Renova Ln. to Annie St. 2-K 1x/year $1x/year $ BRIDGER CREEK PARK PHASE 2-3 TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR PH. 2: Augusta Dr. off Mcilhattan Rd. PH. 3 Trail corrador Story Mill Dr. to Mcillhattan Rd. & North of St Andrews Dr. 2-L 1x/year $1x/year $ VILLAGE DOWNTOWN PARK TURF: UNK IRRIGATION: YES/MEDIUM/FAIR E-W trail corridor N. Broadway Ave. to Village Crossing Way.2-M 1x/year $1x/year $ BAXTER SQUARE PARK TURF: YES/FAIR IRRIGATION: YES/SMALL/FAIR Corner of Sartain St. and Renee Way & Baxter Ln. to Sartain St. 2-N 1x/year $1x/year $ WEST WINDS PARK (ALL PHASES) TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR Oak St. to Baxter Ln. & Davis Ln. to 27th Ave. 2-O 1x/year $1x/year $ LEGENDS AT BRIDGER CREEK PARK 1 TURF: YES/UNK IRRIGATION: YES/UNK North of Pinicle Star St. 2-P 1x/year $1x/year $ LEGENDS AT BRIDGER CREEK PARK 2 TURF: YES/GOOD IRRIGATION: YES/MEDIU/FAIR Boyland Rd. W. of Pinicle Star St. 2-Q 1x/year $1x/year $ CREEKWOOD SUB PARK TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR End of Creekwood Dr. 2-R 1x/year $1x/year $ CATTAIL LAKE PARK TURF: YES/FAIR IRRIGATION: YES East of Davis Ln. on Troutmeadow Rd. & Blackbird Dr. 2-S 1x/year $1x/year $ PINE MEADOW PARK TURF: YES/FAIR IRRIGATION: YES/SMALL/FAIR W. Villard St. between Valley Dr. and Merriwether 2-T 1x/year $ 1x/year $ OAK MEADOWS PARK TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR Crabapple Dr. to Juniper St. & N. 14th Ave to N. 12th Ave. 2-U 1x/year $ 1x/year $ Irrigation System labor for miscellaneous maintenance (Labor Only).$ Repair/Replacement of irrigation system components. (Labor Only).$ system programming for routine sprinkler cycles (Labor Only).$ Repair/Replacement of irrigation system components. (Labor Only).$ Additional Services: Fixed Per Hour Rates Service/Discription Per Hour Rates ADDITIONAL COMMENTS Appendix C: Maintenance Schedule Zone 2 (IRRIGATION) IRRIGATION SYSTEM STARTUP : IRRIGATION SYSTEM WINTERIZATION :ADDITIONAL COMMENTS Parks DocuSign Envelope ID: 3E03AF6B-9824-41CD-9F34-A239091CF260 190 CITY OF BOZEMAN BOUNDARY/TOPOGRAPHIC MAP Appendix C: Maintenance Schedule Zone 2 MAP/ LOCATION : OVERVIEW LK 1/21 PARKS MAINTENANCE ZONE 1-3 MAP Exhibit A DocuSign Envelope ID: 3E03AF6B-9824-41CD-9F34-A239091CF260 191 STAYiBREEN SPRINKLERS INC THE WATER CONSERVATION SPECIALISTS February 19, 2021 Jason Wood, President Stay Green Sprinklers, Inc. 406-570-9223 jason@staygreensprinklers.com POB 10461 Bozeman, MT 59719 www.staygreensprinklers.com Exhibit B DocuSign Envelope ID: 3E03AF6B-9824-41CD-9F34-A239091CF260 192 Appendix C: Maintenance Schedule Zone 2 (IRRIGATION) PARK NAME SITE DISCRIPTION LOCATION: MAP/LOCATION IRRIGATION SYSTEM IRRIGATION SYSTEM ADDITIONAL COMMENTS (GREEN AREA ONLY) STARTUP: WINTERIZATION : Parks Park A: Blackbird Dr. to CATTAIL CREEK TURF: YES/UNK Warbler Way & South fo PARKS A&B IRRIGATION: Cattail St. Park B: Catron St. 2-B 1lc/year $S"-Z.S 1x/year $;-is YES/UNK to Cattail St. & Blackbird Dr. to Warbler Way. TURF: YES/FAIR SANOAN PARK IRRIGATION:YES/ME 2-C 1x/year $ 20<> 1x/year $ 1,oO DIUM/FAIR CATTAIL CREEK TURF: YES/UNK $3So IRRIGATION: 2-0 1x/year $��<) 1x/year PARK PHASE3 YES/MEDIUM/FAIR HARVEST CREEK TURF: YES/FAIR IRRIGATION: 2-E 1x/year $;so 1x/year $7So PARK1-4 YES/SMALUFAIR WALTON TURF: YES/FAIR HOMESTEAD PARK IRRIGATION: 2-H 1x/year $1$ 1x/year $t5 YES/SMALUFAIR TURF: YES/FAIR WESTGLEN PARK IRRIGATION: 2-1 1x/year $7S 1x/year $ ,sYES/MEDIUM/FAIR BRIDGER CREEK TURF: YES/FAIR IRRIGATION: 2-K 1x/year $2,c;o 1x/year $'2�0 PARK PHASE 1 YES/MEDIUM/FAIR BRIDGER CREEK TURF: YES/FAIR $'/<>� PARK PHASE 2-3 IRRIGATION: 2-L 1x/year $'-/OO 1x/year YES/MEDIUM/FAIR VILLAGE TURF:UNK IRRIGATION: 2-M 1x/year $/5 1x/year $,s DOWNTOWN PARK YES/MEDIUM/FAIR BAXTER SQUARE TURF: YES/FAIR IRRIGATION: 2-N 1x/year $3oO 1x/year $joo PARK YES/SMALUFAIR WEST WINDS PARK TURF: YES/FAIR (ALL PHASES) IRRIGATION: 2-0 1x/year $J,soo 1x/year $/,�"'' YES/MEDIUM/FAIR LEGENDS AT TURF: YES/UNK BRIDGER CREEK IRRIGATION: 2-P 1x/year $/10 1x/year $/10 PARK1 YES/UNK LEGENDS AT TURF: YES/GOOD BRIDGER CREEK IRRIGATION: 2-Q 1x/year $'3SO 1x/year $JC,o PARK2 YES/MEDIU/FAIR CREEKWOOD SUB TURF: YES/FAIR IRRIGATION: 2-R 1x/year $1,�0 1x/year $1,.�0 PARK YES/MEDIUM/FAIR TURF: YES/FAIR $C'ZS CATTAIL LAKE PARK IRRIGATION: YES 2-S 1x/year $61S 1x/year TURF: YES/FAIR PINE MEADOW PARK IRRIGATION: 2-T 1x/year $/Ou 1x/year $J<;,a YES/SMALUFAIR OAK MEAOOWS TURF: YES/FAIR fZiS PARK IRRIGATION: 2-U 1x/year 1x/year $-zis YES/MEDIUM/FAIR Downy Ln. to Savannah SL & Fen Way lo Blackbird Dr. Catron St. to Catamount & Black.bin::I Dr. to Warbfer Way. W. Oak St. to Durston Rd. & Springbrook Ave. to to N. 27th Ave. Comer of 15th Ave. and Juniper St. Between Drouillard Dr. and Meriweather Ave. at Mendenhall St. Off Boyland Rd. Par!< with a pond. PH. 2: Augusta Dr. off Mcilhattan Rd. PH. 3 Trail corrador Story Mill Dr. to Mcillhattan Rd. & North of St Andrews Dr. E-W trail comdor N. Broadway Ave. to Village Crossina Wav. Comer of Sartain St. and Renee Way & Baxter Ln. to Sartain St. Oak St. to Baxter Ln. & Davis Ln. to 27th Ave. North of Pinicte Star St. Boyland Rd. W. of Pinkie Star St. End of Creekwood Dr. East of Davis Ln. on Troutmeadow Rd. & Blackbird Dr. W. Villard St. between Valley Dr. and Meniwether Crabapple Dr. to Juniper St. & N.14th Ave to N. 12th Ave. Additional Services: Fixed Per Hour Rates Service/Discription Per Hour Rates ADDITIONAL COMMENTS Irrigation System labor for miscellaneous maintenance (Labor Only). $ ,c;ft..r- system programming for routine sprinkler cycles (labor Only). $(� r-"'c:.L-s�, Repair/Replacement of irrigation system components. (Labor Only). $ 7$ /L..r- Exhibit BDocuSign Envelope ID: 3E03AF6B-9824-41CD-9F34-A239091CF260 193 NONDISCRIMINATION AND EQUAL PAY AFFIRMATION s�'7 b!'r::,eA �r,,..f..la--s I !tvc... (name of entity submitting) hereby affirms it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and acknowledges and understands the eventual contract will contain a provision prohibiting discrimination as described above and this prohibition on discrimination shall apply to the hiring and treatments or proposer's employees and to all subcontracts. In addition, 'S;f-.y 6('C:...,/\. 9,,.,� /e.krs I lrvc ,(name of entity submitting) hereby affirms it will abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act), and has visited the State of Montana Equal Pay for Equal Work "best practices" website, https://equalpay.mt.gov/BestPractices/Employers. or equivalent "best practices publication and has read the material. 4-,d.�,,ores,oh,--+ �d title of person authorized to ;ig� on behalf of submitter Exhibit B DocuSign Envelope ID: 3E03AF6B-9824-41CD-9F34-A239091CF260 194 First Amendment to Professional Services Agreement Irrigation Maintenance Services Zone 2 Page 1 of 2 FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS FIRST AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR Parks and Trails District Irrigation Maintenance Services Zone 2 dated March 23, 2021 (the “Agreement”) is made and entered into this _____ day of ____________, 2022, 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 Stay Green Sprinklers, Inc., PO Box 10461, Bozeman, MT 59719, 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 to amend the Agreement as follows: 1. Extension of Term. Section 31 Professional Services Agreement between the City and Contractor dated March 23, 2021 (the Agreement) is extended for an additional one (1) year period. The Agreement shall terminate on March 23, 2023. 2. Agreement still valid. All remaining terms and provisions of the Agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** March1st DocuSign Envelope ID: E94A39D5-2F0B-4F96-88BE-EEA64C6397BB 195 First Amendment to Professional Services Agreement Irrigation Maintenance Services Zone 2 Page 2 of 2 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA STAY GREEN SPRINKLERS, INC. By________________________________ By_____________________________ Jeff Mihelich, City Manager Print Name: Title: APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney DocuSign Envelope ID: E94A39D5-2F0B-4F96-88BE-EEA64C6397BB Jason Wood President/Owner 196 Second Amendment to Professional Services Agreement for Irrigation Maintenance Services Zone 2 FY 2023 – FY 2024 Page 1 of 2 SECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS SECOND AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR Parks and Trials District Irrigation Maintenance Services Zone 2 dated March 23, 2021 (the “Agreement”) is made and entered into this _____ day of ____________, 2023, 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 Stay Green Sprinklers, Inc., PO Box 10461, Bozeman, MT 59719 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 to amend the Agreement as follows: 1. Section 31 of the Agreement is replaced in its entirety with the following: 31. Extensions: This Agreement may, upon mutual agreement, be extended for a period of one (1) year by written agreement of the Parties. In no case, however, may this Agreement run longer than five years. 2. Extension of Term: Section 31. Extensions: Professional Service Agreement between City and Contractor dated March 23, 2021 is extended for an additional one (1) year period. The Agreement shall terminate on March 23, 2024. 3. Agreement still valid. All remaining terms and provisions of the Agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** DocuSign Envelope ID: 726541CF-D518-4AA4-BC78-9DF1BB28BB54 24 January 197 Second Amendment to Professional Services Agreement for Irrigation Maintenance Services Zone 2 FY 2023 – FY 2024 Page 2 of 2 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA STAY GREEN SPRINKLERS INC. By________________________________ By_____________________________ Jeff Mihelich, City Manager Print Name: Title: APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney DocuSign Envelope ID: 726541CF-D518-4AA4-BC78-9DF1BB28BB54 Jason Wood President/Owner 198 Memorandum REPORT TO:City Commission FROM: Luke Kline, Parks and Recreation Contracts Coordinator Mitch Overton, Parks and Recreation Department SUBJECT: Authorize the City Manager to Sign a Third Amendment to the Professional Services Agreement with Hydro Logistics Irrigation LLC. for Irrigation Maintenance Services in the Parks and Trails District MEETING DATE:February 13, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION: Authorize the City Manager to sign Third Amendment to the professional services agreement with Hydro Logistics Irrigation LLC. for irrigation maintenance services in the Parks and Trails District. STRATEGIC PLAN:6.5 Parks, Trails & Open Space: Support the maintenance and expansion of an interconnected system of parks, trails and open spaces. BACKGROUND:On June 1, 2020, the Bozeman City Commission approved Resolution 5180 creating the Bozeman Parks and Trails Special District (District). To accomplish the District objectives the City has developed a multi-year District implementation plan designed to achieve steady calculated increases in level of service standards and sustainable maintenance practices in all City Parks. Beginning July 1, 2020 City’s Parks and Recreation Department assumed full responsibility for all of the District’s designated park properties including the addition of 235 acres of park land located within subdivision parks previously maintained by home owners/community associations. In February 2021, the Parks and Recreation Department conducted a request for proposals process to acquire professional services required to maintain parks grounds and landscape areas in the District. After careful evaluation and review, Hydro Logistics Irrigation LLC. was determined to be the most qualified vendor for Parks and Trails District Irrigation Maintenance Services Zone 1 Parks. On March 23, 2021, the City entered into the Agreement with Hydro Logistics Irrigation LLC. The Agreement is effective for one year after the date of execution with the option to extend the agreement an additional year upon mutual agreement. Hydro Logistics Irrigation LLC. has demonstrated the ability to provide comprehensive irrigation maintenance 199 services for the City’s Parks and Trials District and will continue complete services as defined and described in Attachment B: PSA Hydro Logistics Irrigation LLC. The Attachment A PSA Amendment 3 Hydro Logistics Irrigation LLC. will extend the Agreement for an additional one (1) year period and shall terminate on March 23, 2025. In no case, however, may this agreement run longer than five (5) years from the original effective date. UNRESOLVED ISSUES: None. ALTERNATIVES: As recommended by City Commission. FISCAL EFFECTS: Funding is currently allocated for this maintenance within the FY24 and FY25 budget in the Parks and Trails District Maintenance Fund account. Attachments: Attachment A PSA Amendment 3 Hydro Logistics Irrigation LLC..pdf Attachment B PSA Hydro Logistics Irrigation LLC..pdf Report compiled on: February 6, 2024 200 Third Amendment to Professional Services Agreement for Irrigation Maintenance Services Zone 1 FY 2024 – FY 2025 Page 1 of 2 THIRD AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS THIRD AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR Parks and Trials District Irrigation Maintenance Services Zone 1 dated March 23, 2021 (the “Agreement”) is made and entered into this _____ day of ____________, 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 Hydro Logistics Irrigation LLC., 499 Hyalite View Dr., Bozeman, MT 59718 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 to amend the Agreement as follows: 1.Extension of Term: Section 31. Extensions: Professional Service Agreement between City and Contractor dated March 23, 2021 is extended for an additional one (1) year period. The Agreement shall terminate on March 23, 2025. 2.Agreement still valid. All remaining terms and provisions of the Agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** 201 Third Amendment to Professional Services Agreement for Irrigation Maintenance Services Zone 1 FY 2024 – FY 2025 Page 2 of 2 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA HYDRO LOGISTICS IRRIGATION LLC. By________________________________ By_____________________________ Jeff Mihelich, City Manager Print Name: Title: APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney 202 Page 13 of 24 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of March, 2021, 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, Hydro Logistics Irrigation LLC., 499 Hylite View Dr., Bozeman MT 59771, 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.Effective Date: This Agreement is effective upon the date of its execution. 3.Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4.Payment: City agrees to pay Contractor the amount specified in the Appendix C Maintenance Schedule Zone 1 (IRRIGATION) attached hereto as Exhibit B. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 23rd DocuSign Envelope ID: 676BE453-4625-4BCE-BA92-E242358AB396 203 Page 14 of 24 5.Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a.Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b.Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform 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. 6.Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, 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 DocuSign Envelope ID: 676BE453-4625-4BCE-BA92-E242358AB396 204 Page 15 of 24 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. 7.Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, DocuSign Envelope ID: 676BE453-4625-4BCE-BA92-E242358AB396 205 Page 16 of 24 fees and costs (including attorney’s fees and the costs and fees of 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; 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. DocuSign Envelope ID: 676BE453-4625-4BCE-BA92-E242358AB396 206 Page 17 of 24 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: x Workers’ Compensation – statutory; x Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; x Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; x Automobile Liability - $1,000,000 property damage/bodily injury per accident; and x Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. 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 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. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8.Termination for Contractor’s Fault: 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 DocuSign Envelope ID: 676BE453-4625-4BCE-BA92-E242358AB396 207 Page 18 of 24 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. 9.Termination for City’s Convenience: a.Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b.Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c.In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d.The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no DocuSign Envelope ID: 676BE453-4625-4BCE-BA92-E242358AB396 208 Page 19 of 24 circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10.Limitation on Contractor’s Damages; Time for Asserting Claim: a.In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b.In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11.Representatives and Notices: a.City’s Representative: The City’s Representative for the purpose of this Agreement shall be Luke Kline, Contracts Coordinator 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 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 _____________________ 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 DocuSign Envelope ID: 676BE453-4625-4BCE-BA92-E242358AB396 209 Page 20 of 24 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. 12.Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13 Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non- discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14.Nondiscrimination 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. 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. DocuSign Envelope ID: 676BE453-4625-4BCE-BA92-E242358AB396 210 Page 21 of 24 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. 15.Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. 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. 16.Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 17.Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. DocuSign Envelope ID: 676BE453-4625-4BCE-BA92-E242358AB396 211 Page 22 of 24 18.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. 19.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. 20.Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 21.Dispute Resolution: a.Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b.If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 22.Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 23.Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 24.Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 25.Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 26.Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 27.No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. DocuSign Envelope ID: 676BE453-4625-4BCE-BA92-E242358AB396 212 Page 23 of 24 28.Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 29.Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained 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. 30.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. 31. Extensions: this Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than three years. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. 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 DocuSign Envelope ID: 676BE453-4625-4BCE-BA92-E242358AB396 Owner Josh Proff Hydro Logistics Irrigation, LLC 213 City of Bozeman PO Box 1230 Bozeman, MT 59771-1230 February 2021 REQUEST FOR PROPOSALS (RFP) PARKS & TRAILS DISTRICT IRRIGATION MAINTENANCE SERVICES ZONE: 1 City of Bozeman Bozeman, MT Exhibit A DocuSign Envelope ID: 676BE453-4625-4BCE-BA92-E242358AB396 214 Page 5 of 24 III.SCOPE OF SERVICES If selected a contractor will provide the City with professional expertise to successfully implement the proposed scope of services. The City has provided a summary of the basic maintenance components and site locations to assist in understanding the tasks and maintenance services desired. Specifications are general in nature and not intended to encompass all the projects complexity. Contractor shall become familiar with the specified locations and the needs of each facility to best determine their ability to complete the described maintenance specifications. Additional tasks and work elements may be inserted into the scope of services during contract negotiations with the selected firm. It is also possible that tasks or elements could be removed during negotiations or not included in an initial contract because of regulatory uncertainty, budget limitations, contracting strategy or any combination thereof. Proposals must clearly identify any elements of the proposed scope of services that would not be provided by the prime contractor. Any sub-contractors which comprise the respondent team must be identified along with a description of past working history between the firms. The scope of services includes: 1.Contractor shall be responsible for completion of site specific irrigation system and maintenance services identified and described in Appendix D: Park location Maps Zone 1. 2.Contractor proposals shall include cost associated with delivery of all tasks described in Appendix C: Maintenance Schedule Zone 1 Irrigation and Additional Services listed to be considered for proposal award. 3.Contractor shall provide a fixed cost per item for all services at the frequency designated/described in Appendix C: Maintenance Schedule Zone 1 Irrigation. Maintenance services requested include: a.Irrigation System Startup. b.Irrigation System Winterization. 4.Contractor shall provide a fixed hourly rate for labor cost associated with services described in Appendix C: Maintenance Schedule Zone 1 Irrigation Additional Services. Contractor proposals shall provide information on additional callout fees applied for service calls or maintenance related emergencies. Exhibit A DocuSign Envelope ID: 676BE453-4625-4BCE-BA92-E242358AB396 215 Page 6 of 24 Maintenance services requested include: a.Irrigation System miscellaneous maintenance (Labor Only). b.System programming for routine sprinkler cycles (Labor Only). c.Repair/Replacement of irrigation system components. (Labor Only). 5.The final scope of services may change and will be contained in a professional services agreement to be executed by the City and the selected Contractor. Contractor proposals shall include additional explanation if items costs are excluded from the scope of services provided. Landscape services/maintenance are not included in this RFP and will be contracted separately. Exhibit A DocuSign Envelope ID: 676BE453-4625-4BCE-BA92-E242358AB396 216 CITY OF BOZEMAN BOUNDARY/TOPOGRAPHIC MAP Appendix C: Maintenance Schedule Zone 1 MAP/ LOCATION : OVERVIEW LK 1/21 PARKS MAINTENANCE ZONE 1-3 MAP Exhibit A DocuSign Envelope ID: 676BE453-4625-4BCE-BA92-E242358AB396 217 PARK NAME SITE DISCRIPTION LOCATION: MAP/LOCATION (GREEN AREA ONLY) FERGUSON MEADOWS PARK TURF: YES/FAIR IRRIGATION: YES/SMALL/FAIR Sanders Ave & Cascade St. 1-A 1x/year $ 1x/year $ VALLEY COMMONS PARK TURF: YES/UNK IRRIGATION: YES/MEDIUM/FAIR Fallon St. & Ginella Way (vacant land) 1-B 1x/year $1x/year $ LOYAL GARDENS SUB PARK TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR S. Cottonwood Rd. to Golden Gate Ave. & South of Loyal Dr. 1-C 1x/year $1x/year $ VALLEY WEST PARK TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR Durston Rd. to Babcock St. & Kimball Ave. to N. Cottonwood Rd.1-D 1x/year $1x/year $ NORTON EAST RANCH SUB PARK TURF: YES/FAIR IRRIGATION: YES/SMALL/FAIR Babcock St. to Fallon & S. Eldorado to Waterlily Dr.1-E 1x/year $1x/year $ BAXTER MEADOWS, PH. 1-3 TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR Kimberwicke St. to Baxter &Vaquero Pkwy. to Harper Puckett Rd.1-F 1x/year $1x/year $ FLANDERS CREEK SUBDIVISION PARK 1- 3 TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR Annie St. to Durston Rd. & Flanders Creek Ave. to Twin Lakes Ave. 1-G 1x/year $1x/year $ BAXTER MEDOWS, PH. 1 Park 1-2 TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR Equestrian Ln. to Baxter Ln. & Vaquero Pkwy. to Ferguson Ave. 1-H 1x/year $1x/year $ TRADITIONS SUB PHASE 1 PARK 1-4 & 8 TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR Sherwood Way to Glenwood Dr. & Flanders Creek Ave to Abigail Ln.1-I 1x/year $1x/year $ DIAMOND ESTATES PUBLIC PARK TURF: YES/FAIR IRRIGATION: YES/SMALL/FAIR Oak St. & Agate Ave. Road buffer at Oak & detention pond Area. 1-J 1x/year $1x/year $ OAK SPRINGS PARK TURF: YES/FAIR IRRIGATION: YES N. Ferguson Ave. to Yellowstone Ave. & Renova Ln. to Annie St. 1-K 1x/year $1x/year $ DIAMOND PARK TURF: YES/FAIR IRRIGATION: YES/SMALL/FAIR Ferguson Ave. to Flanders Mill Rd. & Oak St. to Tanzanite Dr. 1-L 1x/year $1x/year $ FOUR POINTS MINOR SUB 475 PARK TURF: YES/GOOD IRRIGATION: YES/MEDIUM/FAIR Cattail St. to Kimberwicke St. & Milkhouse Ave. to Ferguson Ave 1-M 1x/year $1x/year $ WESTBROOK SUB PUBLIC PARK 1-2 TURF: YES/FAIR IRRIGATION: YES/MEDIU/FAIR Annie St. to Durston Rd. & Rosa Way to Loxley Dr. 1-N 1x/year $1x/year $ THE LAKES AT VALLEY WEST PARK TURF: UNK IRRIGATION: YES/MEDIUM/FAIR Westmorland Dr. to Vahl Way to N. Laurel Pkwy. Adjcent to Bronken Sports Park. 1-O 1x/year $1x/year $ SUNDANCE PUBLIC PARK TURF: UNK IRRIGATION: UNK Caballo Ave. to Davis Ln. & Galloway St. to Baxter Ln. 1-P 1x/year $1x/year $ BOULDER CREEK PARK 1-2 TURF: YES/FAIR IRRIGATION: YES/MEDIU/FAIR Glenellen Dr. to Annie St. & Laurel Pkwy. To Abigail Ln.1-Q 1x/year $1x/year $ ANNIE ST & COTTAGE PARK LN TURF: YES/FAIR IRRIGATION: YES/SMALL/FAIR Small L shaped property corner of Annie St. & Cottage Park Ln.1-R 1x/year $1x/year $ COTTAGE PARK LN TURF: YES/FAIR IRRIGATION: YES/MEDIU/FAIR Small property Cottage Park Ln. and Hanson St. 1-S 1x/year $1x/year $ Repair/Replacement of irrigation system components. (Labor Only).$ Repair/Replacement of irrigation system components. (Labor Only).$ Appendix C: Maintenance Schedule Zone 1 (IRRIGATION) IRRIGATION SYSTEM STARTUP : IRRIGATION SYSTEM WINTERIZATION :ADDITIONAL COMMENTS system programming for routine sprinkler cycles (Labor Only).$ Irrigation System labor for miscellaneous maintenance (Labor Only).$ Parks Additional Services: Fixed Per Hour Rates Service/Discription Per Hour Rates ADDITIONAL COMMENTS Exhibit A DocuSign Envelope ID: 676BE453-4625-4BCE-BA92-E242358AB396 218 Parks & Trails District Irrigation Maintenance Services zone 1 RFP Hydro Logistics Irrigation, LLC Josh Proff 499 Hyalite View Drive Bozeman, MT 59718 406.570.0814 josh@hydroli.com Exhibit B DocuSign Envelope ID: 676BE453-4625-4BCE-BA92-E242358AB396 219 PARK NAME SITE DISCRIPTION LOCATION: MAP/LOCATION (GREEN AREA ONLY) FERGUSON MEADOWS PARK TURF: YES/FAIR IRRIGATION: YES/SMALL/FAIR Sanders Ave & Cascade St. 1-A 1x/year $ 1x/year $ VALLEY COMMONS PARK TURF: YES/UNK IRRIGATION: YES/MEDIUM/FAIR Fallon St. & Ginella Way (vacant land) 1-B 1x/year $1x/year $ LOYAL GARDENS SUB PARK TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR S. Cottonwood Rd. to Golden Gate Ave. & South of Loyal Dr. 1-C 1x/year $1x/year $ VALLEY WEST PARK TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR Durston Rd. to Babcock St. & Kimball Ave. to N. Cottonwood Rd.1-D 1x/year $1x/year $ NORTON EAST RANCH SUB PARK TURF: YES/FAIR IRRIGATION: YES/SMALL/FAIR Babcock St. to Fallon & S. Eldorado to Waterlily Dr.1-E 1x/year $1x/year $ BAXTER MEADOWS, PH. 1-3 TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR Kimberwicke St. to Baxter &Vaquero Pkwy. to Harper Puckett Rd.1-F 1x/year $1x/year $ FLANDERS CREEK SUBDIVISION PARK 1- 3 TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR Annie St. to Durston Rd. & Flanders Creek Ave. to Twin Lakes Ave. 1-G 1x/year $1x/year $ BAXTER MEDOWS, PH. 1 Park 1-2 TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR Equestrian Ln. to Baxter Ln. & Vaquero Pkwy. to Ferguson Ave. 1-H 1x/year $1x/year $ TRADITIONS SUB PHASE 1 PARK 1-4 & 8 TURF: YES/FAIR IRRIGATION: YES/MEDIUM/FAIR Sherwood Way to Glenwood Dr. & Flanders Creek Ave to Abigail Ln.1-I 1x/year $1x/year $ DIAMOND ESTATES PUBLIC PARK TURF: YES/FAIR IRRIGATION: YES/SMALL/FAIR Oak St. & Agate Ave. Road buffer at Oak & detention pond Area. 1-J 1x/year $1x/year $ OAK SPRINGS PARK TURF: YES/FAIR IRRIGATION: YES N. Ferguson Ave. to Yellowstone Ave. & Renova Ln. to Annie St. 1-K 1x/year $1x/year $ DIAMOND PARK TURF: YES/FAIR IRRIGATION: YES/SMALL/FAIR Ferguson Ave. to Flanders Mill Rd. & Oak St. to Tanzanite Dr. 1-L 1x/year $1x/year $ FOUR POINTS MINOR SUB 475 PARK TURF: YES/GOOD IRRIGATION: YES/MEDIUM/FAIR Cattail St. to Kimberwicke St. & Milkhouse Ave. to Ferguson Ave 1-M 1x/year $1x/year $ WESTBROOK SUB PUBLIC PARK 1-2 TURF: YES/FAIR IRRIGATION: YES/MEDIU/FAIR Annie St. to Durston Rd. & Rosa Way to Loxley Dr. 1-N 1x/year $1x/year $ THE LAKES AT VALLEY WEST PARK TURF: UNK IRRIGATION: YES/MEDIUM/FAIR Westmorland Dr. to Vahl Way to N. Laurel Pkwy. Adjcent to Bronken Sports Park. 1-O 1x/year $1x/year $ SUNDANCE PUBLIC PARK TURF: UNK IRRIGATION: UNK Caballo Ave. to Davis Ln. & Galloway St. to Baxter Ln. 1-P 1x/year $1x/year $ BOULDER CREEK PARK 1-2 TURF: YES/FAIR IRRIGATION: YES/MEDIU/FAIR Glenellen Dr. to Annie St. & Laurel Pkwy. To Abigail Ln.1-Q 1x/year $1x/year $ ANNIE ST & COTTAGE PARK LN TURF: YES/FAIR IRRIGATION: YES/SMALL/FAIR Small L shaped property corner of Annie St. & Cottage Park Ln.1-R 1x/year $1x/year $ COTTAGE PARK LN TURF: YES/FAIR IRRIGATION: YES/MEDIU/FAIR Small property Cottage Park Ln. and Hanson St. 1-S 1x/year $1x/year $ Repair/Replacement of irrigation system components. (Labor Only).$ Repair/Replacement of irrigation system components. (Labor Only).$ Appendix C: Maintenance Schedule Zone 1 (IRRIGATION) IRRIGATION SYSTEM STARTUP : IRRIGATION SYSTEM WINTERIZATION :ADDITIONAL COMMENTS system programming for routine sprinkler cycles (Labor Only).$ Irrigation System labor for miscellaneous maintenance (Labor Only).$ Parks Additional Services: Fixed Per Hour Rates Service/Discription Per Hour Rates ADDITIONAL COMMENTS 75 75 7575 75 75 75 75 75 75 500 500 800 800 475 475 375 375 830 830 300 300 500 500 500 500 400 400 300 300 400 400 650 650 350 350 100 100 75 75 75 75 Exhibit B DocuSign Envelope ID: 676BE453-4625-4BCE-BA92-E242358AB396 220 Page 12 of 24 NONDISCRIMINATION AND EQUAL PAY AFFIRMATION ____________________________________(name of entity submitting) hereby affirms it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and acknowledges and understands the eventual contract will contain a provision prohibiting discrimination as described above and this prohibition on discrimination shall apply to the hiring and treatments or proposer’s employees and to all subcontracts. In addition, ____________________________________(name of entity submitting) hereby affirms it will abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act), and has visited the State of Montana Equal Pay for Equal Work “best practices” website, https://equalpay.mt.gov/BestPractices/Employers, or equivalent “best practices publication and has read the material. ______________________________________ Name and title of person authorized to sign on behalf of submitter Hydro Logistics Irrigation LLC Hydro Logistics Irrigation LLC ,Owner Exhibit B DocuSign Envelope ID: 676BE453-4625-4BCE-BA92-E242358AB396 221 First Amendment to Professional Services Agreement Irrigation Maintenance Services Zone 1 Page 1 of 2 FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS FIRST AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR Parks and Trails District Irrigation Maintenance Services Zone 1 dated March 23, 2021 (the “Agreement”) is made and entered into this _____ day of ____________, 2022, 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 Hydro Logistics Irrigation LLC., 499 Hylite View Dr., Bozeman MT 59771, 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 to amend the Agreement as follows: 1. Extension of Term. Section 31 Professional Services Agreement between the City and Contractor dated March 23, 2021 (the Agreement) is extended for an additional one (1) year period. The Agreement shall terminate on March 23, 2023. 2. Agreement still valid. All remaining terms and provisions of the Agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** DocuSign Envelope ID: 6EB0114C-4BA3-47BC-99AB-4EF30B74FA37 8th February 222 First Amendment to Professional Services Agreement Irrigation Maintenance Services Zone 1 Page 2 of 2 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA HYDRO LOGISTICS IRRIGATION LLC. By________________________________ By_____________________________ Jeff Mihelich, City Manager Print Name: Title: APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney DocuSign Envelope ID: 6EB0114C-4BA3-47BC-99AB-4EF30B74FA37 Josh Proff Owner 223 Second Amendment to Professional Services Agreement for Irrigation Maintenance Services Zone 1 FY 2023 – FY 2024 Page 1 of 2 SECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS SECOND AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR Parks and Trials District Irrigation Maintenance Services Zone 1 dated March 23, 2021 (the “Agreement”) is made and entered into this _____ day of ____________, 2023, 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 Hydro Logistics Irrigation LLC., 499 Hyalite View Dr., Bozeman, MT 59718 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 to amend the Agreement as follows: 1. Section 31 of the Agreement is replaced in its entirety with the following: 31. Extensions: This Agreement may, upon mutual agreement, be extended for a period of one (1) year by written agreement of the Parties. In no case, however, may this Agreement run longer than five years. 2. Extension of Term: Section 31. Extensions: Professional Service Agreement between City and Contractor dated March 23, 2021 is extended for an additional one (1) year period. The Agreement shall terminate on March 23, 2024. 3. Agreement still valid. All remaining terms and provisions of the Agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** DocuSign Envelope ID: C2117B5F-919A-436E-A954-D72E9F793E21 January24 224 Second Amendment to Professional Services Agreement for Irrigation Maintenance Services Zone 1 FY 2023 – FY 2024 Page 2 of 2 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA HYDRO LOGISTICS IRRIGATION LLC. By________________________________ By_____________________________ Jeff Mihelich, City Manager Print Name: Title: APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney DocuSign Envelope ID: C2117B5F-919A-436E-A954-D72E9F793E21 Josh Proff Owner 225 Memorandum REPORT TO:City Commission FROM:Melissa Hodnett, Finance Director SUBJECT:Resolution 5581 Approving, Pursuing, and Negotiating a Lease-Purchase Financing and Associated Documentation; and Making a Related Declaration of Intent to Reimburse for certain costs of furnishing and equipping Fire Station 2, the Bozeman Swim Center, Bogert Pool and the Lindley Center, and purchasing vehicles and/or other equipment for the City’s solid waste operations. MEETING DATE:February 13, 2024 AGENDA ITEM TYPE:Finance RECOMMENDATION:Approve Resolution 5581. 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:The City intends to finance and/or reimburse itself for certain costs of equipping Fire Station 2, the Swim Center, Bogert Pool, the Lindley Center, and for certain Solid Waste operating equipment needs. The City Manager and Finance Director plan to work with Baker Tilly Municipal Advisors, LLC to solicit proposals from banks or other lenders, with support from Dorsey & Whitney, LLP as bond counsel. Upon satisfactory negotiation of the material terms and conditions of proposals, another resolution will be presented to the Commission to effectuate the transaction. A portion of the expenditures are expected to be spent prior to the financing. In order for the City to reimburse itself for expenditures with debt proceeds, treasury regulations require a Commission resolution declaring the official intent to reimburse expenditures with bond proceeds. The proposed resolution includes a section for purposes of establishing compliance with treasury regulations. There shall be no binding commitment of the City in connection with the lease-purchase financing without a subsequent resolution or resolutions of this Commission. UNRESOLVED ISSUES:None. 226 ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:Financing for the Project is included in City financial models and initial drafting of the 2024-2026 biennial budget. Alternate funding sources for the Project will need to be identified if the resolution is not approved. Attachments: Resolution Authorizing Lease Purchase Financing.v2.docx Report compiled on: February 2, 2024 227 RESOLUTION NO. 5581 RESOLUTION APPROVING PURSUING AND NEGOTIATING A LEASE- PURCHASE FINANCING AND ASSOCIATED DOCUMENTATION; AND MAKING A RELATED DECLARATION OF INTENT TO REIMBURSE BE IT RESOLVED, by the City Commission (the “Commission”) of the City of Bozeman, Montana (the “City”) as follows: Section 1 Recitals. It is hereby found, determined and declared as follows: 1.01. Authorization. The City is authorized pursuant to Sections 7-1-4124 and 7-8-4101, Montana Code Annotated, to buy, sell, mortgage, rent, lease, hold, manage and dispose of any interest in real or personal property. 1.02. Proposed Financing. The City intends to finance and/or reimburse itself for certain costs of furnishing and equipping Fire Station 2, the Bozeman Swim Center, Bogert Pool and the Lindley Center, and purchasing vehicles and/or other equipment for the City’s solid waste operations (collectively, the “Project”). The Commission has determined that it is in the best interest of the City to enter into a non-appropriation lease-purchase financing to pay costs of the Project specifically relating to the acquisition and installation of certain items of personal property and equipment. Section 2 Solicitation of Lease-Purchase Financing Proposals. To finance costs of the Project or reimburse itself for expenditures related to the Project, the Commission desires to work with Baker Tilly Municipal Advisors, LLC, as municipal advisor (“Baker Tilly”), to solicit proposals from banks or other lenders with respect to a non-appropriation lease-purchase agreement and associated documentation. 228 2 Section 3 Negotiation of Terms and Conditions. The City Manager and other officers of the City, in consultation with Baker Tilly and Dorsey & Whitney LLP, as bond counsel, are authorized and directed to prepare solicitation materials and to negotiate with one or more banks or other lenders to finalize terms and conditions of a non-appropriation lease-purchase agreement and associated documents. Upon satisfactory negotiation of the material terms and conditions of such financing documents, the City Manager and other officers of the City, or any one of them, are authorized to present to this Commission such resolutions and other documentation as are necessary or appropriate to effectuate the non-appropriation lease-purchase transaction for consideration by and, if appropriate, approval of, this Commission. There shall be no binding commitment of the City in connection with the lease-purchase financing without a subsequent resolution or resolutions of this Commission. Section 4 Subsequent Undertakings. A subsequent resolution or resolutions will, among other things, specify the officers of the City authorized to undertake actions pursuant to and execute and deliver any lease-purchase agreement and associated documentation relating to the financing of or reimbursing the costs of the Project. Section 5 Reimbursement Expenditures. (a) The United States Department of Treasury has promulgated final regulations governing the use of proceeds of tax-exempt bonds or other obligations, all or a portion of which are to be used to reimburse the City for project expenditures paid by the City prior to the date of issuance of such bonds or other obligations. Those regulations (Treasury Regulations, Section 1.150-2) (the “Regulations”) require that the City adopt a statement of official intent to reimburse an original expenditure not later than 60 days after payment of the original expenditure. The Regulations also generally require that the bonds or other obligations be issued and the reimbursement allocation made from the proceeds of the bonds or other obligations within 18 months (or three years, if the reimbursement bond issue qualifies for the “small issuer” exception from the arbitrage rebate requirement) after the later of (i) the date the expenditure is paid or (ii) the date the project is placed 229 3 in service or abandoned, but (unless the issue qualifies for the “small issuer” exception from the arbitrage rebate requirement) in no event more than three years after the date the expenditure is paid. The Regulations generally permit reimbursement of capital expenditures and costs of issuance of the bonds or other obligations. (b) Other than (i) expenditures to be paid or reimbursed from sources other than the bonds or other obligations, (ii) expenditures permitted to be reimbursed under the transitional provision contained in Section 1.150-2(j)(2) of the Regulations, (iii) expenditures constituting preliminary expenditures within the meaning of Section 1.150-2(f)(2) of the Regulations, or (iv) expenditures in a “de minimus” amount (as defined in Section 1.150-2(f)(1) of the Regulations), no expenditures for a project within the scope of this resolution have been paid by the City before the date 60 days before the date of adoption of this resolution. (c) The City reasonably expects to reimburse the expenditures made for costs of the Project through the issuance of bonds or a non-appropriation lease-purchase financing in an estimated maximum aggregate principal amount of up to $5,000,000 after the date of payment of all or a portion of the costs of the Project. All reimbursed expenditures shall be capital expenditures, a cost of issuance of the bonds or non-appropriation lease-purchase financing or other expenditures eligible for reimbursement under Section 1.150-2(d)(3) of the Regulations. (d) As of the date hereof, there are no City funds reserved, allocated on a long-term basis or otherwise set aside (or reasonably expected to be reserved, allocated on a long-term basis or otherwise set aside) to provide permanent financing for the expenditures related to the Project, other than pursuant to the issuance of the bonds or a non-appropriation lease-purchase financing. The statement of intent contained in this resolution, therefore, is determined to be consistent with the City’s budgetary and financial circumstances as they exist or are reasonably foreseeable on the date hereof. (e) The City Finance Director shall be responsible for making the “reimbursement allocations” described in the Regulations, being generally the transfer of the appropriate amount of proceeds of the bonds or non-appropriation lease-purchase financing to reimburse the source of temporary financing used by the City to make prior payment of the costs of the Project. Each allocation shall be evidenced by an entry on the official books and records of the City maintained 230 4 for the financing or the Project and shall specifically identify the actual original expenditure being reimbursed. 231 5 PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, this ___ day of ______________, 2024. ____________________________________ TERRY CUNNINGHAM Mayor ATTEST: ___________________________________ MICHAEL MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney (SEAL) 232 CERTIFICATE AS TO RESOLUTION AND ADOPTING VOTE I, the undersigned, being the duly qualified and appointed City Clerk of the City of Bozeman, Montana (the “City”), hereby certify that the attached resolution is a true copy of Resolution No. _____ entitled: “RESOLUTION APPROVING PURSUING AND NEGOTIATING A LEASE-PURCHASE FINANCING AND ASSOCIATED DOCUMENTATION; AND MAKING A RELATED DECLARATION OF INTENT TO REIMBURSE”(the “Resolution”), on file in the original records of the City in my legal custody; that the Resolution was duly adopted by the City Commission at a meeting on February 13, 2024, and that the meeting was duly held by the City Commission and was attended throughout by a quorum, pursuant to call and notice of such meeting given as required by law; and that the Resolution has not as of the date hereof been amended or repealed. I further certify that, upon vote being taken on the Resolution at said meeting, the following Commission Members voted in favor thereof: ________________________________ ______________________________; those Commissioners who voted against the same: _____________________________. WITNESS my hand and seal officially this __ day of February, 2024. (SEAL) MICHAEL MAAS City Clerk 233 Memorandum REPORT TO:City Commission FROM:Addi Jadin, Park Planning and Development Manager Mitch Overton, Director of Parks and Recreation SUBJECT:Resolution 5582, Update to the Fair Market Value of Land for Cash-in-lieu of Parkland Calculations MEETING DATE:February 13, 2024 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Adopt Resolution 5582, Update to the Fair Market Value of Land for Cash-in- lieu of Parkland Calculations the fair market value of land for cash-in-lieu of parkland calculations. STRATEGIC PLAN:4.2 High Quality Urban Approach: Continue to support high-quality planning, ranging from building design to neighborhood layouts, while pursuing urban approaches to issues such as multimodal transportation, infill, density, connected trails and parks, and walkable neighborhoods. BACKGROUND:Section 38.420.030, Bozeman Municipal Code, requires that the city update the market value as deemed necessary to reflect changes in the price of land a minimum of once per year, or as market conditions change significantly. The City Commission last updated the market value for parkland via Resolution 5477 in February of 2023; therefore an update is due. An appraisal report (Exhibit A) has been prepared based on the availability of appropriate market comparisons that meet the requirements of state law and the Bozeman Municipal Code. The recommendation is to increase the market valuation for cash-in-lieu of parkland from $2.60 per square foot to $2.65 per square foot. Proposed Resolution 5582 will replace Resolution 5477. UNRESOLVED ISSUES:None. ALTERNATIVES:Per Commission. FISCAL EFFECTS:The Parks Division pays for appraisal updates a minimum of once per year. Attachments: CILP Resolution 5582 Feb 2024.docx Exhibit A - Appraisal Report.pdf 234 Report compiled on: February 1, 2024 235 Version February 2023 RESOLUTION 5582 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, WHEREAS,Section 38.420.030 of the Bozeman Municipal Code, (“Cash Donation in lieu of Land Dedication”) states that the city commission may adopt procedures to be used by the director of parks and recreation to determine the fair market value for cash in lieu of parkland dedication donations; and WHEREAS,Section 38.420.030 of the Bozeman Municipal Code states that the city must periodically update the market value as deemed necessary to reflect changes in the price of land; and WHEREAS, an updated appraisal report has been obtained from a qualified, licensed appraiser to determine the fair market value of unsubdivided, unimproved land after it has been annexed and given a municipal zoning designation in accordance with Montana Code Annotated Section 76-3-621; and WHEREAS,the appraisal report indicates the fair market value of residential property for the purposes of cash donation in lieu of parkland dedication has increased since the last appraisal (Exhibit A); NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, to wit: that the fair market value of residential property for the purposes of cash donation in lieu of park land dedication is $2.65 per square foot, subject to changes in market conditions that warrant an updated appraisal. 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____. ___________________________________ TERRY CUNNINGHAM Mayor 236 Version February 2023 ATTEST: ___________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 237 AN APPRAISAL REPORT OF: Standard Property Valuation for the City of Bozeman’s Cash in Lieu of Parkland Dedication Process FILE NO.: C01082410 PREPARED FOR: Mr. Mitchell Overton City of Bozeman - Department of Parks and Recreation 600 Bridger Dr Bozeman, MT 59715 PREPARED ON: January 11, 2024 EFFECTIVE DATE OF VALUATION: January 1, 2024 PREPARED BY: Keith O'Reilly, MAI, MT-400 Bridger Appraisals, Inc. P.O. Box 11145 Bozeman, MT 59719 Exhibit A - Appraisal Report 238 2 January 11, 2024 City of Bozeman - Department of Parks and Recreation 600 Bridger Dr Bozeman, MT 59715 Re: Standard Property Valuation for the City of Bozeman's Cash in Lieu of Parkland Dedication Process Dear Mr. Mitchell Overton, Per your request, I have gathered information and completed the following report to establish a standard property valuation on a per square foot basis for all zoning districts within the City of Bozeman. The zoning districts are as follows: Residential Suburban District (R-S), Residential Low Density District (R-1), Residential Moderate Density District (R-2), Residential Medium Density District (R-3), Residential High Density District (R-4), Residential Mixed-Use High Density District (R-5), Residential Office District (R-O), Residential Manufactured Home Community District (RMH), Neighborhood Business District (B-1), Community Business District (B-2), Community Business District-Mixed (B-2M), Downtown Business District (B-3), Urban Mixed-Use District (UMU), Light Manufacturing District (M-1), Manufacturing and Industrial District (M-2), Business Park District (B-P), Northeast Historical Mixed-Use District (NEHMU), Neighborhood Conservation Overlay District (NC), and Residential Emphasis Mixed-Use District (REMU). This report is to be used for the City of Bozeman’s Cash in Lieu of Parkland dedication process. This appraisal is not of one subject property but is rather a compilation of sales of large tracts of land within the City as well as Gallatin County purchased for development purposes. Per city code and state law: Cash donation in-lieu of land dedication shall be equal to the fair market value of the amount of land that would have been dedicated. For the purpose of these regulations, the fair market value is the value of the unsubdivided, unimproved land after it has been annexed and given an urban zoning designation. The city intends to obtain the highest value for cash-in-lieu of park land that is allowable under state law. 239 3 ASSUMPTIONS AND LIMITING CONDITIONS This appraisal report, the letter of transmittal, and certification are subject to the following assumptions and limiting conditions; and also, any special qualifying conditions that may be contained elsewhere in the report are incorporated by reference. Assumptions 1. That the legal description, as furnished, is correct; and that the title to the property is good and marketable. All existing liens and encumbrances, if any, have been disregarded. The property is appraised as though free and clear of other burdens, under responsible ownership and competent management. 2. That the land dimensions taken from available maps, plats, and/or surveys are correct. It has been assumed that those boundaries that are apparent are correct. 3. It is assumed that the use of the land and improvements is confined within the boundaries or property lines of the property described and that there is no encroachment or trespass unless noted in the report. 4. That no adverse water table or soil conditions exist, and no representation regarding such conditions is made in this report unless specifically stated; and, that the value estimated is predicated on the absence of any such conditions occurring. 5. Those opinions, estimates, data and statistics supplied by others in the course of this study, are correct; the assumption has been made that the sources are reliable, but no responsibility has been inferred for their accuracy. 6. This report does not contemplate any court action, nor does it obligate the appraiser to give any testimony or make any appearance in court, before commission, arbitrator or any other individual, body or agency. If court action or appearance later becomes necessary in the interest of the client, the terms of the additional service shall be negotiated at that time. 240 4 7. Unless otherwise stated in this report, the appraiser did not observe the existence of hazardous material, which may or may not be present on the property. I have no knowledge of the existence of such materials on or in the property. I am not qualified to detect such substances. The presence of potentially hazardous materials may affect the value of the property. This extends to any leaks from underground fuel storage tanks, and identification of Asbestos containing materials. The value estimate is predicated on the assumption that there is no such material on or in the property. No responsibility is assumed for any such conditions or for any expertise or engineering knowledge required to discover them. The client is urged to retain an expert in this field, if desired. Any such environmental risk discovered at a later date may require a revised estimate of value that may or may not be simply a reduction of the value by the estimated cost to cure the environmental condition. Properties known to have environmental risk may also carry a stigma in the market place that may or may not affect the value. If future soil tests should reveal the existence of any such soil conditions or hazardous waste, I reserve the right to review and adjust this appraisal accordingly. Limiting Conditions: 1. The appraiser is not responsible for any matter legal in character, nor is any opinion rendered as to title, which is assumed to be marketable. 2. The value reflected in the analysis applies only to the program of utilization considered in this report. The use of the value in conjunction with any other appraisal or under other influences invalidates the conclusions developed. 3. This analysis and estimate of value is made for the exclusive use and benefit of the clients to whom it is addressed; and, possession of this report or a copy, does not carry with it the right of publication, nor may it be used for any purpose other than that intended without the previous consent of the appraisers. In any event, only the entire report may be used and no part shall be taken or used out of context. 4. Included as an integral part of this report are maps and photographs of the appraised property and sales. The maps and photographs were prepared and taken by the appraisers, and although they do not purport to represent survey accuracy, they are substantially correct and adequately serve as visual reference to the property. 241 5 5. Disclosure of the contents of this report is governed by the By-Laws and Regulations of the Appraisal Institute. Neither all nor any part of the contents of this report (especially any conclusions of value, the identity of the appraisers or the firm with which they are connected) shall be disseminated to the public through advertising media, public relations, news media, sales media, or any other public means of communication without the prior written consent and approval of the authors. 6. The forecasts, projections, or operating estimates contained herein are based on current market conditions, anticipated short-term supply and demand factors, and a continued stable economy. These forecasts are, therefore, subject to changes with future conditions. 242 6 SUMMARY OF IMPORTANT FACTS AND CONCLUSIONS Client: Mitchell Overton, City of Bozeman - Department of Parks and Recreation Intended User: City of Bozeman - Department of Parks and Recreation Date of Valuation: January 1, 2024 Date of Preparation: January 11, 2024 Rights Appraised: Fee Simple Highest and Best Use: The highest and best use is not applicable to this appraisal report as the valuation is not of a subject property, but rather a compilation of sales to establish a standard property valuation. 243 7 SCOPE OF THE APPRAISAL The scope of work consists of the amount and type of information researched and analyzed in an assignment. In preparing the appraisal, I have considered pertinent characteristics of the comparable sales in comparison to current market standards. I have gathered information and completed the following report to establish a standard property valuation on a per square foot basis for all zoning districts within the City of Bozeman as previously listed. Heidi Switzer provided significant real property appraisal assistance to the person signing this certification, including market research and input as to the final reconciled value. General and specific data was obtained through personal and telephone interviews with government officials, property managers, developers, and other market participants. I have not considered the highest and best use as it is not applicable to the standard property valuation on a per square foot basis for all zoning districts within the City of Bozeman. I have applied the sales comparison approach valuation method to determine a standard property valuation method on a per square foot basis. This is the only applicable approach to valuing vacant land. The results indicated by this method have been reviewed and reconciled based on the reliability, relevance and reasonableness of the data, and the purpose and intended user of the appraisal. This is an Appraisal Report as defined by Uniform Standards of Professional Appraisal Practice under Standards Rule 2-2. This format provides a summary or description of the appraisal process, subject and market data and valuation analyses. The information contained in this report is specific to the needs of the client and for the intended use as stated in this report. 244 8 PURPOSE AND INTENDED USE AND USER OF THE APPRAISAL The purpose of this appraisal is to estimate a credible opinion of the Current Market Value on a per square foot basis of the Fee Simple Interest for the Residential Suburban District (R-S), Residential Low Density District (R-1), Residential Moderate Density District (R-2), Residential Medium Density District (R-3), Residential High Density District (R-4), Residential Mixed-Use High Density District (R-5), Residential Office District (R-O), Residential Manufactured Home Community District (RMH), Neighborhood Business District (B-1), Community Business District (B-2), Community Business District-Mixed (B-2M), Downtown Business District (B-3), Urban Mixed-Use District (UMU), Light Manufacturing District (M-1), Manufacturing and Industrial District (M-2), Business Park District (B-P), Northeast Historical Mixed-Use District (NEHMU), Neighborhood Conservation Overlay District (NC), and Residential Emphasis Mixed-Use District (REMU) within the City of Bozeman, in accordance with the Uniform Standards of Professional Appraisal Practice (USPAP) and supplemented by the Appraisal Institute. The intended use of the appraisal is to assist the Client and Intended User, City of Bozeman - Department of Parks and Recreation, in establishing a standard property valuation for vacant land on a square foot basis to be used for the City of Bozeman’s Cash in Lieu of Parkland dedication process. There are no other intended users. DEFINITION OF MARKET VALUE Market value is defined as the most probable price, which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently and knowledgeably, and assuming the price is not affected by undue stimulus. Implicit in this definition is consummation of a sale as of a specified date and passing of title from seller to buyer under conditions whereby: 1. Buyer and seller are typically motivated; 2. Both parties are well informed or well advised, and each acting in what they consider their own best interest; 3. A reasonable time is allowed for exposure in the open market; 4. Payment is made in terms of cash in U.S. dollars or in terms of financial arrangements comparable thereto; 5. The price represents the normal consideration for the property sold unaffected by special or creative financing or sales concessions granted by anyone associated with the sale. 1 1[Source: Section 323.2 amended at 57 Fed. Reg. 9049, March 16, 1992; 59 Fed. Reg. 29501, June 7, 1994] 245 9 PROPERTY RIGHTS APPRAISED Property rights are ownership interests in real estate and have value. It is important to know what property right(s) or estate(s) are involved in the appraisal, because the estate identifies the rights being valued. The subject property rights being appraised is the Fee Simple Interest. Fee Simple: Absolute ownership unencumbered by any other interest or estate, subject only to the limitations imposed by the governmental powers of taxation, eminent domain, police power and escheat.2 Leased Fee: A freehold (ownership interest) where the possessory interest has been granted to another party by creation of a contractual landlord-tenant relationship (i.e. a lease). 3 VALUATION DATE The effective date of the appraisal is January 1, 2024. This is the date of valuation. The comparable sales reflected in this report are the most current identifiable sales as of the effective date. 2 The Dictionary of Real Estate Appraisal, 5th ed. (Chicago; Appraisal Institute, 2010), p. 78. 3 The Dictionary of Real Estate Appraisal, 5th ed. (Chicago; Appraisal Institute, 2010), p. 111. 246 10 MONTANA REGIONAL AND CITY MAPS Subject Area 247 11 REGIONAL, CITY, AND NEIGHBORHOOD ANALYSIS Bozeman, Montana is located in Gallatin County, in an area more commonly referred to as the Gallatin Valley. This report is for the Client and Intended User, the City of Bozeman – Department of Parks and Recreation. Information regarding the City of Bozeman has not been included as this information is provided from the City of Bozeman and the client and intended user has access to this information. 248 12 THE APPRAISAL PROCESS Typically, real estate can be valued by applying three approaches. All of these approaches to value, (particularly when the purpose of the appraisal is to establish market value) are market data approaches since the data inputs are presumably market derived. Cost Approach: One of the approaches to value commonly applied in Market Value estimates and many other valuation situations. A comparative approach to the value of property or another asset that considers, as a substitute for the purchase of a given property, the possibility of constructing another property that is an equivalent to the original or one that could furnish equal utility with no undue cost resulting from delay. The Valuer's estimate is based on the reproduction or replacement cost of the subject property or asset, less total (accrued) depreciation. The cost approach establishes the value of a real property by estimating the cost of acquiring land and building a new property with equal utility or adapting an old property to the same use with no undue cost due to delay. An estimate of entrepreneurial incentive or developer's profit/loss is commonly added to land and construction costs. For older properties, the cost approach develops an estimate of depreciation including items of physical deterioration and functional obsolescence.4 Sales Comparison Approach: A comparative approach to value that considers the sales of similar or substitute properties and related market data and establishes a value estimate by processes involving comparison. In general, a property being valued (a subject property) is compared with sales of similar properties that have been transacted in the open market. Listings and offerings may also be considered. A general way of estimating a value indication for personal property or an ownership interest in personal property, using one or more methods that compare the subject to similar properties or to ownership interests in similar properties. This approach to the valuation of personal property is dependent upon the Valuer's market knowledge and experience as well as recorded data on comparable items. 5 Income Approach: A comparative approach to value that considers income and expense data relating to the property being valued and estimates value through a capitalization process. Capitalization relates income (usually net income) and a defined value type by converting an income amount into a value estimate. This process may consider direct relationships (whereby an overall capitalization rate or all risks yield is applied to a single year's income), yield or discount rates (reflecting measures or return on investment) applied to a series of incomes over a projected period, or both. The income approach reflects the principles of substitution and anticipation. 6 5 The Dictionary of Real Estate Appraisal, 5th ed. (Chicago; Appraisal Institute, 2010), p. 250. 5 The Dictionary of Real Estate Appraisal, 5th ed. (Chicago; Appraisal Institute, 2010), p. 244. 7 The Dictionary of Real Estate Appraisal, 5th ed. (Chicago; Appraisal Institute, 2010), p. 256 249 13 Comparable Sales The following sales have been used to estimate a value on a per square footage basis. The compiled data represents the most recent known sales of speculative development land within the City of Bozeman and Gallatin County. 250 14 ID 1749 Sale Verification Source Buyer Address NWC S. 19th Ave & Stucky Rd. Price $10,250,000 City Bozeman Price per Acre $105,249.11 State MT Financing Cash to Seller Tax ID RGG40140 Property Rights Fee Simple County Gallatin Days on Market None Grantor Steven R. Aaker Recording Date 12/14/2021 Grantee West University, LLC Book/Page or Reference 2761479 Legal Description Acres 97.39 Topography Level Land SF 4,242,221 Zoning AS, Agricultural Road Frontage Stucky Rd., S. 19th Ave., W. Kagy Blvd. Flood Zone None Dimensions Irregular Encumbrance or Easement None Utilities NorthWestern Energy Environmental Issues None Access Stucky Rd., S. 19th Ave., W. Kagy Blvd. Price Per Land SF $2.42 Lot 2 of Minor Subdivsion Number 191, located in the SE 1/4 of Section 14, T2S, R5E, P.M.M. Gallatin County, MT. Sale Comments This is a prime speculative development site located at the intersections of Stucky Road and South 19th Avenue and West Kagy Boulevard and South 19th Avenue. The site is adjacent to the Bozeman city limits making it a likely candidate for annexation into the City of Bozeman and connection to the City of Bozeman water and sewer system. The properties to the north, east, and south of the site have already been annexed into the City of Bozeman. The site will likely be developed into a mixed-use project incorporating commercial development that takes advantage of South 19th Avenue with residential development to the west. The property was not openly marketed. Transaction Site Land Comparable 1 251 15 ID 1751 Sale Verification Source Buyer Address TBD Davis Lane Price $8,100,000 City Bozeman Price per Acre $70,009.00 State MT Financing Cash to Seller Tax ID --Property Rights Fee Simple County Gallatin Days on Market -- Grantor The Peter Family Trust Recording Date 6/4/2021 Grantee Virga Venture II LLC Book/Page or Reference 2736653 Legal Description Acres 115.70 Topography Level Land SF 5,039,892 Zoning Ag Road Frontage --Flood Zone None Dimensions Irregular Encumbrance or Easement None Utilities NorthWestern Energy Environmental Issues None Access Davis Lane/Frontage Rd Price Per Land SF $1.61 Lengthy Retained in File Transaction This is the sale of a speculative development site located in the northwest quadrant of Bozeman. The sale price is $70,009 per acre for non-annexed land adjacent to City services. The purchaser plans on developing the site with high density residential improvements. The purchaser is a very seasoned developer in the Bozeman market. Land Comparable 2 Sale Comments Site 252 16 ID 1777 Sale Verification Source Buyer Address TBD West Graf Street Price $7,743,260 City Bozeman Price per Acre $95,000.00 State MT Financing Cash to Seller Tax ID RGG8316 & RGG8318 Property Rights Fee Simple County Gallatin Days on Market None Grantor Diane L. Brawner Recording Date 9/24/2021 Grantee Bozeman Haus Two LLC Book/Page or Reference 2751910 Legal Description Acres 81.51 Topography Level Land SF 3,550,488 Zoning AS, Agricultural Road Frontage W. Graf St. & S. 27th Ave.Flood Zone None Dimensions Rectangular Encumbrance or Easement None Utilities NorthWestern Energy Environmental Issues None Access W. Graf St. & S. 27th Ave.Price Per Land SF $2.18 Tract 1 of Certificate of Survey No. 2074 and Tract A of Certificate of Survey No. 1861, tracts of land being the NW 1/4 SW 1/4 and the NE 1/4 SW 1/4, Section 23, Township 2 South, Range 5 East, Gallatin County, Montana. Transaction Land Comparable 3 This is a closed sale of two adjacent 40+/- acre parcels of vacant land in the southern part of Bozeman from a single seller to a single buyer. The eastern parcel is bordered to the north, west, and south by the Bozeman city limits and it is expected that the buyer will pursue annexation and connection to the City of Bozeman water and sewer system. The buyer reportedly plans to develop the sites with multifamily residential improvements. This is considered to be a very attractive speculative development site given its location in the southern part of Bozeman and its adjacency to the Bozeman city limits. This property was not openly marketed and the transaction was privately negotiated between the buyer and the seller. Site Sale Comments 253 17 ID 1850 Sale Verification Source Broker Cory Vellinga Address SE Corner Gooch Hill Rd Price $4,000,000 City Bozeman Price per Acre $97,454.00 State MT Financing Cash to Seller Tax ID RGG10212 Property Rights Fee Simple County Gallatin Days on Market 0 Grantor Alan D. Fulton Recording Date 7/2/2021 Grantee Ryan Roller Book/Page or Reference 2739945 Legal Description Acres 41.05 Topography Level Land SF 1,787,920 Zoning Agricultural Suburban Road Frontage --Flood Zone None Dimensions Rectangular Encumbrance or Easement None Utilities NorthWestern Energy Environmental Issues None Access Durston Rd and Gooch Price Per Land SF $2.23 Tracts 1 and 2 of COS No. 158 located in the NW1/4 of Section 9 Township 2 South, Range 5 East, P.M.M. Gallatin County, MT Transaction Land Comparable 4 Site Sale Comments There are two approximatle 20 acre parcels totaling 41.045 acres that sold for $4,000,000 cash. The property was not actively listed for sale. The property is at the SE corner of the intersection of Gooch Hill Rd and Durston Rd. The property is not annexed into the City of Bozeman, but is adjacent to the City Limits. This is a prime piece of speculative residential land. The land to the east is already developed residentially. 254 18 ID 3757 Sale Verification Source Buyer Address TBD W Graf St Price $5,000,000 City Bozeman Price per Acre $142,620.80 State MT Financing Conventional Tax ID RGG70606, RGG70607, RGG70608, RGG7308 Property Rights Fee Simple County Gallatin Days on Market Unk Grantor Karen M. Gilhousen, Trustee of the Gilhousen Community Property Trust Recording Date 9/15/2023 Grantee SRX II, LLC Book/Page or Reference 2811191 Legal Description Acres 35.06 Topography Level Land SF 1,527,126 Zoning R-1 Residential Low Road Frontage West Graf St Flood Zone None Dimensions Irregular Encumbrance or Easement None known Utilities NorthWestern Energy Environmental Issues None known Access Good Price Per Land SF $3.27 Lots 1, 2, 3, and 4, Block 1 of Minor Subdivision No. 494, City of Bozeman, Gallatin County, MT. Transaction This is the sale of 35.06 located on the south side of Bozeman. The property contained four parcels and was annexed into the City. At the time of sale, the site was zoned R-1 and R-2; however, the buyer has applied for a zone map amendment changing the zoning to B-2M and REMU, both of which are much higher density zoning designations. The property was not openly marketed and the contract price was privately negotiated between the buyer and seller. The contract amount was originally reported to be negotiated at approximately $115,000 per acre in 2022; however, the seller renegotiated the purchase price to approximately $140,000 per acre. Sale Comments Site Land Comparable 5 255 19 256 20 Address City State Date Price Land SF Land SF Unit Price Property Rights Fee Simple 0.0%Fee Simple 0.0%Fee Simple 0.0%Fee Simple 0.0%Fee Simple 0.0% Financing Cash to Seller 0.0%Cash to Seller 0.0%Cash to Seller 0.0%Cash to Seller 0.0%Conventional 0.0% Conditions of Sale Arm's Length 0.0%Arm's Length 0.0%Arm's Length 0.0%Arm's Length 0.0%Arm's length 0.0% Expend. After Sale Market Trends Through 1/1/2024 5.0% Location % Adjustment $ Adjustment Acres % Adjustment $ Adjustment Topography % Adjustment $ Adjustment Shape % Adjustment $ Adjustment Utilities % Adjustment $ Adjustment Zoning % Adjustment $ Adjustment Net Adjustments Gross Adjustments $3.27 13.0% $1.82 11.7%13.4% 13.4%11.7% 13.0%10.5% $2.67 $2.53Adjusted Land SF Unit Price $2.44 10.5% $2.18 Bozeman MT $2.18 3,550,488.00 Transaction Adjustments 4,242,221.00 Bozeman $2.42 9/24/2021 $0.00 Adjusted Land SF Unit Price $2.42 11.7% Good 0% AS, Agricultural Suburban $0.00 0% AS, Agricultural Suburban $0.00 0% $0.00 Irregular 0% NWC S. 19th Ave & Stucky Rd. TBD Davis Lane Bozeman Comp 2 MT MT 7/2/2021 Comp 3 Bozeman Comp 4 Comp 5 MT Bozeman TBD West Graf Street SE Corner Gooch Hill Rd and Durston Rd $0.00 0% $0.00 Irregular 0% 0% 0% $0.00 Rectangular $4,000,000 $0.00 $0.00 $2.24 1,787,920.00 Level 0% $2.44 0% 0% 13.4% $1.82 $1.61 Good $0.00 0% 0% Level $0.00 0% $3.27 $0.00 MT 0% $0.00 $0.00 Irregular 0.0% $0.00 Level $0.00 0.0% 35.06 Rectangular $0.00 Level 0% $0.00 NorthWestern Energy 0% $0.00 $0.00 Good 0% Level $0.00 $0.00 NorthWestern Energy NorthWestern Energy 0% 81.51 NorthWestern Energy $0.00 $0.00 0% 115.70 $0.00 0% $0.00$0.00 $3.27$2.24 0.0% 97.39 0% Adjusted Land SF Unit Price $2.67 10.5% 0% $3.27 0% $2.53 Good 0% 13.0% 6/4/20211/1/2024 12/14/2021 $8,100,000$10,250,000 $7,743,260 5,039,892.00 $1.61 9/15/2023 $5,000,000 TBD W Graf St Land Analysis Grid Comp 1 NorthWestern Energy0% $0.00 1,527,126.48 $0.00 0% Ag $0.00 0% R-1 Residential Low Density District and R-2 Residential Moderate Density $0.00 0% $0.00 Agricultural Suburban 0% $0.00 $0.00 41.05 Good $0.00 The provided sales give a good indication of the per square foot valuation for vacant land in the City of Bozeman. This valuation is for all zoning districts within the City of Bozeman. All the provided sales fit the criteria and definition for the Cash in Lieu program. Sales 1, 2, and 3 have all since been annexed into the City. Sale 4 is located adjacent to the city limits, but has not yet applied for annexation. Sale 5 was annexed and had been assigned zoning designations at the time of sale. Sales 1 and 2 are expected to be developed with a mix of residential and commercial development while Sale 3 is planned to be developed with high density residential apartments. While Sale 5 had lower density residential zoning designations at the time of purchase, the buyers are going through a zone map amendment, changing the zoning to allow for 257 21 higher density mixed-use. Sale 2 is the largest at 115.7 acres. Sales 1 and 3 are also larger in acreage at 97.39 acres and 81.51 acres, respectively. Sales 4 and 5 are smaller sites. Typically, the larger the site, the lower the value per acre/square foot, and the smaller the site, the higher the value per acre/square foot; however, the adjusted values from Sales 1, 3, and 4 are all very consistent between $2.44 per square foot and $2.67 per square foot. Sale 5 is the smallest site and most recent sale and indicates a per square foot value of $3.27psf. There have been very limited sales of larger development sites located within the city limits in recent years, but four recent sales of development sites located adjacent or near the edge of the city limits were included. Market conditions changed noticeably in the summer to early fall of 2022. Values in 2023 appeared to be fairly stagnant. Some market segments saw slight declines, some saw slight increases, and some appeared stable. Overall, days on the market have been extended and there is much less competition to purchase speculative development land. There are simply not enough sales of this type of property to graph or show how values have changed over the past year and a half. When analyzing sales of single family homesites in the Bozeman market over the past few years, we see significant appreciation from 2020 into 2021. The average sale price of single family homesites in the city limits of Bozeman in 2020 was approximately $135,000. In 2021, that increased to approximately $320,000. The average sale price of single family homesites in 2022 and 2023 were $307,000 and $311,000, respectively. Currently, actively listed single family homesites in the city of Bozeman range in asking price from $178,000 to $389,000. In consideration of the market data, a small market condition adjustment was applied to Sales 1-4. This would account for the increases in the market through mid-2022, and relatively stable conditions in 2023. Based upon the preceding sales and analysis of current market conditions, I would estimate the per square foot value for vacant land in the Residential Suburban District (R-S), Residential Low Density District (R-1), Residential Moderate Density District (R-2), Residential Medium Density District (R-3), Residential High Density District (R-4), Residential Mixed-Use High Density District (R-5), Residential Office District (RO), Residential Manufactured Home Community District (RMH), Neighborhood Business District (B-1), Community Business District (B-2), Community Business District-Mixed (B-2M), Downtown Business District (B-3), Urban Mixed- Use District (UMU), Light Manufacturing District (M-1), Manufacturing and Industrial District (M-2), Business Park District (B-P), Northeast Historical Mixed-Use District (NEHMU), Neighborhood Conservation Overlay District (NC), and Residential Emphasis Mixed-Use District (REMU) within the City of Bozeman to be $2.65psf or $115,000 per acre as of January 1, 2024. While there is a broad range of zoning districts, there is not enough data available to support a different reconciled land value for a low density zoning versus a high density or 258 22 commercial zoning. The overall reconciled value per square foot is supportable across all larger speculative development parcels. If I can be of further assistance, please do not hesitate to contact me. Sincerely, Keith O’Reilly, MAI General Certified Appraiser State of Montana #400 259 23 CERTIFICATION As a result of a request for an appraisal assignment of the property, identified as: Capital Commons I certify: To the best of my knowledge and belief the statements of fact contained in this report are true and correct. The reported analyses, opinions, and conclusions are limited only by the reported assumptions and limiting conditions and are my personal, impartial, and unbiased professional analyses, opinions, and conclusions. I have no present or prospective interest in the property that is the subject of this report and no personal interest with respect to the parties involved. I have no bias with respect to the property that is the subject of this report or to the parties involved with this assignment. My engagement in this assignment was not contingent upon developing or reporting predetermined results. My compensation for completing this assignment is not contingent upon the development or reporting of a predetermined value or direction in value that favors the cause of the client, the amount of the value opinion, the attainment of a stipulated result, or the occurrence of a subsequent event directly related to the intended use of this appraisal. My analyses, opinions, and conclusions were developed, and this report has been prepared, in conformity with the Uniform Standards of Professional Appraisal Practice and the requirements of the Code of Professional Ethics and Standard of the Professional Appraisal Practice of the Appraisal Institute. The use of this report is subject to the requirements of the Appraisal Institute relating to its duly authorized representatives. As of the date of this report, I, Keith O’Reilly, MAI, have completed the continuing education program of the Appraisal Institute. Heidi Switzer provided significant real property appraisal assistance to the person signing this certification, including market research and input as to the final reconciled value. Respectfully Submitted, Keith O’Reilly, MAI General Certified Appraiser #400 State of Montana 260 Bridger Appraisals Inc. © Keith O’Reilly, MAI ADDENDUM 261 Bridger Appraisals Inc. © Keith O’Reilly, MAI 262 Bridger Appraisals Inc. © Keith O’Reilly, MAI 263 Memorandum REPORT TO:City Commission FROM:Nicholas Ross, Director of Transportation and Engineering SUBJECT:Public Hearing and Resolution 5573 Establishment of Priority Projects for HB355 State-Local Infrastructure Partnership Program MEETING DATE:February 13, 2024 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Move to Approve Resolution 5573 Establishment of Priority Projects for HB355 State-Local Infrastructure Partnership Program STRATEGIC PLAN:2.2 Infrastructure Investments: Strategically invest in infrastructure as a mechanism to encourage economic development. BACKGROUND:The 68th Legislature of the State of Montana passed HB 355, an act creating the State-Local Infrastructure Partnership Act of 2023; providing for grants to eligible entities for infrastructure projects; setting up a grant process; requiring a percentage of matching funds; providing for oversight; addressing cost overruns and misappropriation of funds; setting grant limits; providing an appropriation; providing for allocations to cities and towns; and providing an immediate effective date. Funding is specifically intended to support maintenance and repair of existing infrastructure with water/sewer facilities prioritized. The city of Bozeman's maximum allocation is $612,301 and a 25% local match is required. The City must be under contract with a contractor for each selected HB 355 project by December 31, 2024 and projects must be completed by December 31, 2027. The established process for accessing State-Local Partnership funds requires City staff to deliberate and form a list of proposed projects; this meeting was held on December 20, 2023. A public hearing must then be held and resolution approved for recommended projects. Based on the intent of the funding, City infrastructure needs, requirement of matching funds, public process already performed, and speed at which the projects can be executed, Staff recommends W04 Water Pipe Replacement Program, WW08 Wastewater Pipe Replacement Program, and STR71 Street Improvement Mill & Overlay from the FY25-29 Capital improvement Plan as the City's priority projects for HB355. HB355 funding would be utilized in the 264 order given until the City's allocation is exhausted. UNRESOLVED ISSUES:None ALTERNATIVES:As directed by Commission FISCAL EFFECTS:Local match funding to be taken from approved FY25-29 CIP projects. Attachments: Resolution 5573 – Approve Projects for the State-Local Infrastructure Partnership Program - rev.1.docx NOTICE OF PUBLIC HEARING - HB 355 Res 5573.docx Report compiled on: December 21, 2023 265 Version February 2023 RESOLUTION 5573 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, WHEREAS,the 68th Legislature of the State of Montana passed HB 355, an act creating the State-Local Infrastructure Partnership Act of 2023; providing for grants to eligible entities for infrastructure projects; setting up a grant process; requiring a percentage of matching funds; providing for oversight; addressing cost overruns and misappropriation of funds; setting grant limits; providing an appropriation; providing for allocations to cities and towns; and providing an immediate effective date. WHEREAS,HB 355 requires cities of Montana to solicit and accept applications for eligible projects within the city or town on or before December 31, 2023. WHEREAS,on December 12th, 2023 Bozeman City Commission approved Resolution 5558, Adoption of the Fiscal Years (FY) 25-29 Capital Improvement Plan (CIP) outlining anticipated infrastructure projects over the next five years. WHEREAS,the city of Bozeman has an ongoing need to maintain water, wastewater, and transportation infrastructure for the safety and wellbeing of its citizens and visitors as documented in its FY25-29 CIP. WHEREAS,on December 20th, 2023 city of Bozeman Staff convened a meeting to discuss and propose projects from the FY25-29 CIP that are recommended to be prioritized for HB355. WHEREAS,the recommended projects for HB355 include W04 Water Pipe Replacement Program, WW08 Wastewater Pipe Replacement Program, and STR71 Street Improvement Mill & Overlay. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, to wit: the recommended projects for HB355 State-Local Infrastructure Partnership 266 Version February 2023 Program are hereby approved; and the City Manager is hereby authorized and directed to apply for the State-Local Infrastructure Partnership Program for and on behalf of the City; and the City Clerk is authorized and directed to attest such signature. 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____. ___________________________________ Terry Cunningham Mayor ATTEST: ___________________________________ Mike Maas City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 267 NOTICE OF PUBLIC HEARING ON APPLICATIONS TO THE STATE-LOCAL INFRASTRUCTURE PARTNERSHIP ACT HEARING ON THE ADOPTION OF RECOMMENDED PROJECTS FOR THE STATE-LOCAL INFRASTRUCTURE PARTNERSHIP ACT NOTICE IS HEREBY GIVEN, that said Resolution 5573, is now on file in the office of the City Clerk of the City of Bozeman, subject to inspection of all persons interested. On Tuesday, February 13, 2024 at 6:00 p.m. at a regular session of the Commission of the City of Bozeman. This has been designated as the time and place when and where the Commission will hear and pass upon any and all objections that may be made to the final passage and adoption of Resolution 5573 and the city’s recommended projects for the State-Local Infrastructure Partnership Act; and that said Resolution will be finally passed and adopted at said regular session of said Commission, subject to such corrections and amendments that may be made upon objections made and filed with the City Clerk as provided by law. Under Resolution 5573, a list of recommended infrastructure projects to be submitted for State-Local Infrastructure Partnership Act grant funding will be adopted after receiving public input during the hearing. HB 355, known as the State-Local Infrastructure Partnership Act, is a state-funded program to help cities and towns fund the maintenance/repair of local government infrastructure on a partnership basis with local governments supplying a cash match. This program was authorized during the 2023 legislative session. City staff have complied with the law to date by creating and documenting a list of eligible projects from the recently adopted FY25-29 Capital Improvement Plan. Commission must now hold a public hearing to confirm the projects prioritized for HB 355 funding. If you have a disability that requires assistance, please contact our ADA Coordinator, Mike Gray, at 582-3232 (TDD 582-2301). If you have questions about HB 355, please contact Transportation and Engineering Director, Nick Ross, nross@bozeman.net at 406.582.2315. Mike Maas, City Clerk Legal Ad Publish: Tuesday, February 6, 2024 Tuesday, February 13, 2024 268