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HomeMy WebLinkAbout06-18-24 City Commission Agenda and Packet Materials - CORRECTEDA. 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 Authorize City Manager to Sign a Professional Service Agreement with High Country Paving for Stiff Professional Building Back Parking Lot Paving(Ziegler) F.3 Authorize City Manager to Sign a Professional Service Agreement with High Country Paving THE CITY COMMISSION OF BOZEMAN, MONTANA REGULAR MEETING AGENDA Tuesday, June 18, 2024 How to Participate: If you are interested in commenting in writing on items on the agenda please send an email to comments@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 for Bozeman Senior Center West Parking Lot Paving(Ziegler) F.4 Authorize the City Manager to Sign a Professional Services Agreement with HDR Engineering, Inc., for the WRF Phase 1 Base Hydraulic Capacity Upgrade Project.(Heaston) F.5 Authorize the City Manager to Sign a Professional Services Agreement with Desman Inc. for Construction Administrative Purposes(Focken) F.6 Authorize the City Manager to Sign a First Amendment to a Professional Services Agreement with Logan Simpson for the Gallatin Valley Sensitive Lands Protection Plan Expanding the Scope of Services to Include Additional GIS Data Consultation Services(Henderson) F.7 Resolution 5568, A Resolution of Intent to Amend the Future Land Use Map of the Bozeman Community Plan 2020, on 7.644 acres for Property Generally Located on the Northeast Corner of South 19th Avenue and Graf Street, Application 23063(Rogers) F.8 Resolution 5601, Authorizing the City Manager to Sign Change Order 1 with Constructive Solutions, Inc. for The Downtown Alley Enhancement Pilot Project(Staley) F.9 Resolution 5602, Authorizing the City Manager to Sign Change Order 2 with Constructive Solutions, Inc. for The Downtown Alley Enhancement Pilot Project(Staley) F.10 Approve Final Ordinance No. 2161 for the Zoning Text Amendment to Table 38.320.040.E to Reduce the Minimum Rear Yard Setback for Lots Abutting Alleys in the Residential Emphasis Mixed Use (REMU) Districts Citywide; Application No. 24055(Montana) G. Public Comment H. Action Items H.1 Application for Harper's Corner Annexation and Zone Map Amendment, Requesting Annexation of 40.12 Acres Including Adjacent Right-of-Way for Hidden Valley Road and Amendment to the City Zoning Map for the Establishment of Two Zoning Designations of R-3 (Residential Medium Density District) on the Western Parcel Containing 20.06 Acres and R-4 (Residential High Density District) on the Eastern Parcel Containing 20.06 Acres, Application 23127.(Cramblet) 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. Having reviewed and considered the staff report, application materials, public comment, recommendation of the Zoning Commission, and all information presented, I hereby adopt the findings presented in the staff report for application 23127 and move to approve the Harper's Corner Zone Map Amendment with contingencies of approval necessary to complete adoption of an implementing ordinance. 2 H.2 Review and Consider Approval of the Jarrett Major Subdivision Preliminary Plat; Application No. 23072(Montana) H.3 1920 West Babcock Zone Map Amendment Requesting an Amendment to the City Zoning Map from R-O (Residential Office) to B-2M (Community Commercial Mixed-Use) on 0.249 Acres Plus the Adjacent Right-of-Way. The Property is Addressed as 1920 West Babcock Street and located on the Southeast Corner of West Babcock Street and South 20th Avenue; Application 24024(Rogers) I. Work Session I.1 Fowler Avenue Connection 30% Design Review (Ross) J. FYI / Discussion K. Adjournment Approve the Jarrett Major Subdivision Preliminary Plat; Application No. 23072 Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 24024 and move to recommend approval of the 1920 West Babcock Zone Map Amendment, with contingencies required to complete the application processing. City Commission meetings are open to all members of the public. If you have a disability that requires assistance, please contact our Acting ADA Coordinator, Max Ziegler, at 406.582.2439 (TDD 406.582.2301). Commission meetings are televised live on cable channel 190 and streamed live on our Meeting Videos Page. 3 Memorandum REPORT TO:City Commission FROM: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:June 18, 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 June 18th, 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:Jon Henderson - Strategic Services Director Max Ziegler, Facilities Project Coordinator SUBJECT:Authorize City Manager to Sign a Professional Service Agreement with High Country Paving for Stiff Professional Building Back Parking Lot Paving MEETING DATE:June 18, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize City Manager to sign professional service agreement with High Country Paving for Stiff Professional Building back parking lot paving. STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:The back parking lot at the Stiff Professional Building has exceeded its life cycle and requires repaving. Potholes, cracks, and standing water have been increasing yearly, requiring repair. These needs were identified in the Capital Improvements Program as project number GF366. This project will involve removing and disposing of the degraded asphalt, grading and compacting the existing road bed, repaving the parking lot to a depth of 3" of asphalt, and painting/striping the parking lot. Selected contractor submitted the lowest cost proposal received in response to a request for quotes directly solicited by the Facilities Dept. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:This project will have a cost of $41,741.20 to be funded from the Facilities Dept. Capital Improvements budget allocated to CIP project GF366. Attachments: Construction Agreement - High Country Paving - Professinal Building Back Lot.pdf Report compiled on: June 5, 2024 5 Construction Agreement for Professional Building Back Parking Lot Paving FY2024-2025 Page 1 of 16 CONSTRUCTION AGREEMENT This Construction Agreement is made and entered into this _____ day of ____________, 2024 (“Effective Date”), by and between the CITY OF BOZEMAN, MONTANA, a self- governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and, High Country Paving, Inc., 5200 Thorpe Rd., Belgrade, MT 59714, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the covenants, agreements, representations, and warranties contained herein, the parties agree as follows: 1. Work to be Performed: a. A description of the work to be performed to the Professional Building Back Parking Lot, 20 E. Olive St., Bozeman, MT 59715 (the “Construction Project”) and Contractor’s duties is set forth in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof, and in the drawings, plans, and specifications provided by the City, which are included in the Scope of Services attached hereto as Exhibit A. 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 and the City approves the related plans, designs, drawings, and specifications. 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. 6 Construction Agreement for Professional Building Back Parking Lot Paving FY2024-2025 Page 2 of 16 2. City-Supplied Materials: The City may supply materials from time to time in furtherance of the Construction Project. Such materials will be noted as an addendum to this Agreement. 3. Time of Performance: Contractor shall begin the Construction Project after receiving a Notice to Proceed from City and shall complete the Construction Project no later than December 1, 2024. Time is of the essence of completion of all work and each phase of the Construction Project. 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 One Hundred Dollars ($100.00) 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. 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 Forty-One Thousand, Seven Hundred and Forty-One Dollars and Twenty Cents. ($41,741.20). 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 7 Construction Agreement for Professional Building Back Parking Lot Paving FY2024-2025 Page 3 of 16 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 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. 8 Construction Agreement for Professional Building Back Parking Lot Paving FY2024-2025 Page 4 of 16 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. 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 9 Construction Agreement for Professional Building Back Parking Lot Paving FY2024-2025 Page 5 of 16 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. 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 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. 10 Construction Agreement for Professional Building Back Parking Lot Paving FY2024-2025 Page 6 of 16 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. 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 11 Construction Agreement for Professional Building Back Parking Lot Paving FY2024-2025 Page 7 of 16 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. 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. 12 Construction Agreement for Professional Building Back Parking Lot Paving FY2024-2025 Page 8 of 16 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 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 Lance Dennis, Facilities Service Worker, 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 Chance Ellis, Project Manager, 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. 13 Construction Agreement for Professional Building Back Parking Lot Paving FY2024-2025 Page 9 of 16 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 Documents; Indemnification: All plans, designs, drawings, specifications, documents, sample results and data, in whatever medium or format, originated or prepared by or for Contractor in contemplation of, or in the course of, or as a result of this Agreement or work on the Construction Project, shall be promptly furnished to the City (“City Documents and Information”). All City Documents and Information shall be the exclusive property of the City and shall be deemed to be works-for-hire. Contractor hereby assigns all right, title, and interest in and to the City Documents and Information, including but not limited to, all copyright and patent rights in and to the City Documents and Information. Neither party grants to the other any express or implied licenses under any patents, copyrights, trademarks, or other intellectual property rights, except to the extent necessary to complete its obligations to the other under this Agreement. 19. 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. 20. 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 14 Construction Agreement for Professional Building Back Parking Lot Paving FY2024-2025 Page 10 of 16 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. 21. 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. 22. Labor Relations: a. 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. 15 Construction Agreement for Professional Building Back Parking Lot Paving FY2024-2025 Page 11 of 16 23. 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 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. 24. 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. 25. 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. 26. 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 16 Construction Agreement for Professional Building Back Parking Lot Paving FY2024-2025 Page 12 of 16 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. 27. Indemnification; Insurance; Bonds: 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; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. 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. 17 Construction Agreement for Professional Building Back Parking Lot Paving FY2024-2025 Page 13 of 16 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 - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Products and Completed Operations – $1,000,000; • Automobile Liability - $1,000,000 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. This insurance must include waivers of subrogation between the City and Contractor to the extent that damage to the Construction Project or City Hall is covered by other insurance; • Owner’s and Contractor’s Protective Liability: one policy designating the City (including its agents, representatives, employees, and officers) as the insured and another independent policy designated the City’s Representative (including its consultants, consultants, agents and employees) as the insured on the declarations with both policies covering: (i) operations performed by the Contractor under this Agreement for the City; and (ii) the City’s and City’s Representatives acts or omissions, including negligent acts, in connection with its general supervision of the work of the Contractor’s and its subcontractors - $1,000,000 per occurrence; $2,000,000 aggregate; • Contractual Liability Insurance (covering the Contractor’s indemnity obligations described in this Agreement) - $1,000,000 per occurrence $2,000,000 aggregate 18 Construction Agreement for Professional Building Back Parking Lot Paving FY2024-2025 Page 14 of 16 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. 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) under this Agreement. 28. 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 Eighty Thousand Dollars ($80,000) or more. This license fee is paid to the Montana Department of Revenue. 29. 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. 30. Survival: Contractor’s indemnification and warranty obligations shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 31. 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. 32. 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. 19 Construction Agreement for Professional Building Back Parking Lot Paving FY2024-2025 Page 15 of 16 33. 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. 34. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 35. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 36. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 37. Amendments: This Agreement may not be modified, amended, or changed in any respect except by a written document signed by all parties. 38. 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. 38. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 39. 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. 40. 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. 41. 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. 42. 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 20 Construction Agreement for Professional Building Back Parking Lot Paving FY2024-2025 Page 16 of 16 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. 43. 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, 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: City Manager Print Name: Title: APPROVED AS TO FORM: By: _______________________________ Greg Sullivan, City Attorney 21 EXHIBIT A 22 This work is covered by a 2 year warranty. Warranty does not cover failure of asphalt or concrete due to base work not installed by High Country Paving, Inc. Application of all warranty provisions is conditional upon full payment of the contract. Page 1 of 1 Estimate: ADDRESS City of Bozeman. City of Bozeman Water and Sewer PO Box 1230 20 East Olive Bozeman, MT 59771-1230 ESTIMATE:1183-GT DATE 05/21/2024 LOCATION 20 East Olive, Bozeman MEMO Bozeman Office Parking Lot ITEM DESCRIPTION QTY UNITS RATE AMOUNT Asphalt Removal Remove and dispose of existing asphalt.8,184 SF 0.55 4,501.20 Grade Existing Material Blade existing road base material to grade. (Includes irrigation and compaction) 8,184 SF 1.00 8,184.00 3" Asphalt Furnish and install 3" compacted type B PG-58-28 hot mix asphalt 8,184 SF 2.75 22,506.00 Line Striping All line striping and handicap insignias in acrylic latex paint.1 LS 1,850.00 1,850.00 Miscellaneous Labor Furnish and install 1-1/2" road mix fill for grading and drainage. (If Required) Price is per cubic yard installed 100 47.00 4,700.00 Notes: 1) Does not include traffic control. 2) Does not include engineering, surveying, or testing. 3) Does not include permits. 4) Does not include site preparation. (Unless specified above.) TOTAL $41,741.20 Accepted By Accepted Date 23 Memorandum REPORT TO:City Commission FROM:Jon Henderson - Strategic Services Director Max Ziegler, Facilities Project Coordinator SUBJECT:Authorize City Manager to Sign a Professional Service Agreement with High Country Paving for Bozeman Senior Center West Parking Lot Paving MEETING DATE:June 18, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize City Manager to sign professional service agreement with High Country Paving for Bozeman Senior Center west parking lot paving. STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:The western portion of the parking lot at the Bozeman Senior Center has exceeded its life cycle and requires repaving. The western third of the parking lot was constructed at a later date than the rest of the lot, and has experienced wear at a higher rate than the rest of the parking lot. Potholes, cracks, and standing water have been increasing yearly, requiring repair. These needs were identified in the Capital Improvements Program as project number GF365. This project will involve removing and disposing of the degraded asphalt, grading and compacting the existing road bed, repaving the parking lot to a depth of 3" of asphalt, and painting/striping the parking lot. Selected contractor submitted the lowest cost proposal received in response to a request for quotes directly solicited by the Facilities Dept. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:This project will have a cost of $45,605.20 to be funded from the Facilities Dept. Capital Improvements budget allocated to CIP project GF365. Attachments: Construction Agreement - High Country Paving - Senior Center West Parking Lot.pdf Report compiled on: June 5, 2024 24 Construction Agreement for Senior Center West Parking Lot Paving FY2024-2025 Page 1 of 16 CONSTRUCTION AGREEMENT This Construction Agreement is made and entered into this _____ day of ____________, 2024 (“Effective Date”), by and between the CITY OF BOZEMAN, MONTANA, a self- governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and, High Country Paving, Inc., 5200 Thorpe Rd., Belgrade, MT 59714, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the covenants, agreements, representations, and warranties contained herein, the parties agree as follows: 1. Work to be Performed: a. A description of the work to be performed to the Western section of the Bozeman Senior Center Parking Lot, 807 N. Tracy Ave., Bozeman, MT 59715 (the “Construction Project”) and Contractor’s duties is set forth in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof, and in the drawings, plans, and specifications provided by the City, which are included in the Scope of Services attached hereto as Exhibit A. 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 and the City approves the related plans, designs, drawings, and specifications. 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. 25 Construction Agreement for Senior Center West Parking Lot Paving FY2024-2025 Page 2 of 16 2. City-Supplied Materials: The City may supply materials from time to time in furtherance of the Construction Project. Such materials will be noted as an addendum to this Agreement. 3. Time of Performance: Contractor shall begin the Construction Project after receiving a Notice to Proceed from City and shall complete the Construction Project no later than December 1, 2024. Time is of the essence of completion of all work and each phase of the Construction Project. 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 One Hundred Dollars ($100.00) 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. 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 Forty-Five Thousand, Six Hundred and Five Dollars and Twenty Cents. ($45,605.20). 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 26 Construction Agreement for Senior Center West Parking Lot Paving FY2024-2025 Page 3 of 16 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 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. 27 Construction Agreement for Senior Center West Parking Lot Paving FY2024-2025 Page 4 of 16 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. 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 28 Construction Agreement for Senior Center West Parking Lot Paving FY2024-2025 Page 5 of 16 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. 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 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. 29 Construction Agreement for Senior Center West Parking Lot Paving FY2024-2025 Page 6 of 16 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. 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 30 Construction Agreement for Senior Center West Parking Lot Paving FY2024-2025 Page 7 of 16 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. 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. 31 Construction Agreement for Senior Center West Parking Lot Paving FY2024-2025 Page 8 of 16 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 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 Lance Dennis, Facilities Service Worker, 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 Chance Ellis, Project Manager, 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. 32 Construction Agreement for Senior Center West Parking Lot Paving FY2024-2025 Page 9 of 16 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 Documents; Indemnification: All plans, designs, drawings, specifications, documents, sample results and data, in whatever medium or format, originated or prepared by or for Contractor in contemplation of, or in the course of, or as a result of this Agreement or work on the Construction Project, shall be promptly furnished to the City (“City Documents and Information”). All City Documents and Information shall be the exclusive property of the City and shall be deemed to be works-for-hire. Contractor hereby assigns all right, title, and interest in and to the City Documents and Information, including but not limited to, all copyright and patent rights in and to the City Documents and Information. Neither party grants to the other any express or implied licenses under any patents, copyrights, trademarks, or other intellectual property rights, except to the extent necessary to complete its obligations to the other under this Agreement. 19. 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. 20. 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 33 Construction Agreement for Senior Center West Parking Lot Paving FY2024-2025 Page 10 of 16 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. 21. 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. 22. Labor Relations: a. 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. 34 Construction Agreement for Senior Center West Parking Lot Paving FY2024-2025 Page 11 of 16 23. 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 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. 24. 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. 25. 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. 26. 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 35 Construction Agreement for Senior Center West Parking Lot Paving FY2024-2025 Page 12 of 16 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. 27. Indemnification; Insurance; Bonds: 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; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. 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. 36 Construction Agreement for Senior Center West Parking Lot Paving FY2024-2025 Page 13 of 16 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 - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Products and Completed Operations – $1,000,000; • Automobile Liability - $1,000,000 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. This insurance must include waivers of subrogation between the City and Contractor to the extent that damage to the Construction Project or City Hall is covered by other insurance; • Owner’s and Contractor’s Protective Liability: one policy designating the City (including its agents, representatives, employees, and officers) as the insured and another independent policy designated the City’s Representative (including its consultants, consultants, agents and employees) as the insured on the declarations with both policies covering: (i) operations performed by the Contractor under this Agreement for the City; and (ii) the City’s and City’s Representatives acts or omissions, including negligent acts, in connection with its general supervision of the work of the Contractor’s and its subcontractors - $1,000,000 per occurrence; $2,000,000 aggregate; • Contractual Liability Insurance (covering the Contractor’s indemnity obligations described in this Agreement) - $1,000,000 per occurrence $2,000,000 aggregate 37 Construction Agreement for Senior Center West Parking Lot Paving FY2024-2025 Page 14 of 16 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. 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) under this Agreement. 28. 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 Eighty Thousand Dollars ($80,000) or more. This license fee is paid to the Montana Department of Revenue. 29. 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. 30. Survival: Contractor’s indemnification and warranty obligations shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 31. 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. 32. 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. 38 Construction Agreement for Senior Center West Parking Lot Paving FY2024-2025 Page 15 of 16 33. 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. 34. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 35. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 36. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 37. Amendments: This Agreement may not be modified, amended, or changed in any respect except by a written document signed by all parties. 38. 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. 38. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 39. 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. 40. 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. 41. 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. 42. 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 39 Construction Agreement for Senior Center West Parking Lot Paving FY2024-2025 Page 16 of 16 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. 43. 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, 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: City Manager Print Name: Title: APPROVED AS TO FORM: By: _______________________________ Greg Sullivan, City Attorney 40 EXHIBIT A 41 This work is covered by a 2 year warranty. Warranty does not cover failure of asphalt or concrete due to base work not installed by High Country Paving, Inc. Application of all warranty provisions is conditional upon full payment of the contract. Page 1 of 1 Estimate: ADDRESS Lance Dennis. City of Bozeman Water and Sewer PO Box 1230 20 East Olive Bozeman, MT 59771-1230 ESTIMATE:1184-CE DATE 05/21/2024 LOCATION 807 N Tracy St MEMO 803 N Tracy St ITEM DESCRIPTION QTY UNITS RATE AMOUNT Asphalt Removal Remove and dispose of existing asphalt. Parking 8,896 SF 0.55 4,892.80 Grade Existing Material Blade existing road base material to grade. Parking Lot (Includes irrigation and compaction) 8,896 SF 1.00 8,896.00 3" Asphalt Furnish and install 3" compacted type B PG-58-28 hot mix asphalt Parking Lot 8,896 SF 2.75 24,464.00 Line Striping All line striping and handicap insignias in acrylic latex paint. Parking Lot 1 LS 1,500.00 1,500.00 Asphalt Removal Remove and dispose of existing asphalt.Ramp to the building 268 SF 0.55 147.40 Grade Existing Material Blade existing road base material to grade. (Includes irrigation and compaction) amp to the building 268 SF 1.00 268.00 3" Asphalt Furnish and install 3" compacted type B PG-58-28 hot mix asphalt amp to the building 268 SF 2.75 737.00 Miscellaneous Labor Furnish and install 1-1/2" road mix fill for grading and drainage. (If Required) Price is per cubic yard installed 100 47.00 4,700.00 Notes: 1) Does not include traffic control. 2) Does not include engineering, surveying, or testing. 3) Does not include permits. 4) Does not include site preparation. (Unless specified above.) TOTAL $45,605.20 Accepted By Accepted Date 42 Memorandum REPORT TO:City Commission FROM:Brian Heaston, Senior Engineer Shawn Kohtz, Director of Utilities SUBJECT:Authorize the City Manager to Sign a Professional Services Agreement with HDR Engineering, Inc., for the WRF Phase 1 Base Hydraulic Capacity Upgrade Project. MEETING DATE:June 18, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign a Professional Services Agreement with HDR Engineering, Inc., for the WRF Phase 1 Base Hydraulic Capacity Upgrade Project. STRATEGIC PLAN:2.2 Infrastructure Investments: Strategically invest in infrastructure as a mechanism to encourage economic development. BACKGROUND:The WRF Phase 1 Base Hydraulic Capacity Upgrade Project implements capital improvements recommended in the 2022 WRF Facility Plan. The facility plan identifies various treatment process improvements and implementation timeframes necessary to meet the City’s projected 20-year wastewater treatment needs. The facility plan recommends a future WRF design capacity of 14.6 MGD. The WRF’s existing design capacity is 8.5 MGD and is presently operating at about 80% of this capacity. The Phase 1 project includes the following major scope elements: 1) Design and construction of anaerobic digester no. 4, providing critical capacity and redundancy upgrades to the WRF’s solids treatment process; 2) Design and construction of UV disinfection process capacity upgrades; 3) Evaluation and installation of hydrocyclone equipment to improve secondary sludge settleability and optimize bioreactor nutrient removal capability; and 4) A tertiary filtration study to evaluate effluent filtration technologies and nutrient removal efficiencies, including wetlands treatment, to inform long- range nutrient discharge compliance conversations with DEQ and ongoing public works shops facility planning. HDR Engineering was selected to provide professional services for this project pursuant to formal procurement action under Sec. 18-8-204 Montana Code Annotated. Due to the technical complexity of this Phase 1 43 project, the attached professional service agreement (PSA) scope of services focuses on the pre-design investigation phase. Future PSA amendments for preliminary and final design and construction administration will be negotiated upon completion of the pre-design investigation and selection of preferred alternatives. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission FISCAL EFFECTS:The negotiated cost of the attached PSA with HDR Engineering, Inc. totals $219,723.00 and is limited to the pre-design investigation phase of the project. Future PSA amendments will occur, at additional cost, for preliminary/final design and construction phase services. Professional engineering services for the Phase 1 project are funded by the FY24 wastewater enterprise fund under CIP Project No. WW129, which contains a total appropriation of $1,000,000. Adequate funding exists to cover the cost of the PSA. Attachments: Long-Form PSA_Ph 1 WRF Base Upgrades_HDR Engineering.pdf Report compiled on: June 6, 2024 44 PROFESSIONAL SERVICES AGREEMENT THIS IS AN AGREEMENT made as of , between THE CITY OF BOZEMAN, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 N. Rouse Ave., Bozeman, Montana, 59771 (OWNER) and HDR Engineering, Inc., Montana, (ENGINEER). Whereas the accomplishment of the work and services described in this Agreement is essential to the OWNER'S public works improvement program. Whereas the OWNER intends to and has selected the ENGINEER to provide necessary and professional engineering services for the project. Whereas the ENGINEER represents that it is willing and qualified to perform the professional engineering services for this project described in this Agreement. Therefore, in consideration of the foregoing recitals and the mutual covenants and conditions contained herein, the parties agree as follows: ARTICLE 1 - ENGINEERING SERVICES 1.1 The detailed description of the specific project components is described as follows: See Attachment A – Scope of Services 1.2 The scope of services under this contract is set forth in this Agreement and the attached EXHIBITS: See Attachment A - Scope of Services ARTICLE 2 - ENGINEER'S RESPONSIBILITIES 2.1 ENGINEER shall perform for OWNER professional engineering services in all phases of the Project to which this Agreement applies as hereinafter provided. These services will include, but not be limited to, serving as OWNER's professional engineering representative for the Project, providing professional engineering consultation and advice and furnishing customary civil and structural engineering services incidental thereto. 2.2 The ENGINEER shall furnish all labor, materials, equipment, supplies, and incidentals necessary to conduct and complete the ENGINEER'S portions of the Project and to prepare and deliver to the OWNER all data, reports, plans, specifications, and recommendations as designated herein. 2.3 The ENGINEER shall ascertain such information as may have a bearing on the work from local units of government, public, and private organizations and shall be authorized to procure information from other authorities as to the extent of these contacts and the results thereof. 2.4 The ENGINEER'S work shall be in accordance with the standards of sound engineering practices. 2.5 The ENGINEER shall name a Principal-In-Charge for the duration of the project. The Principal- In-Charge shall be Tim Erickson. 45 2.6 The ENGINEER shall name a Project Manager who shall be the liaison between the ENGINEER and the OWNER. The Project Manager shall be Coralynn Revis. The OWNER may name a Task Director who would be the liaison between the ENGINEER and the OWNER during the design segment of the Project. 2.7 The ENGINEER shall submit an estimated progress schedule at the beginning of the work, and monthly progress reports thereafter until the project is completed. ARTICLE 3 - OWNER'S RESPONSIBILITIES 3.1 The OWNER shall name a Task Director who shall be the liaison between the ENGINEER and the OWNER during DESIGN segment of the Project. The Task Director designated shall be Brian Heaston. 3.2 The OWNER shall have the right of review and examination of the ENGINEER'S work at all times. 3.3 The OWNER shall make available all records (record drawings, construction records, etc.) indicating the existing configuration of the city utilities. 3.4 The OWNER will be responsible for advertising bid openings. 3.5 The OWNER shall attend the pre-bid conferences, bid openings, pre-construction conferences, construction progress and other job related meetings, substantial completion inspections and final payment inspections. ARTICLE 4 - BASIC ENGINEERING SERVICES The ENGINEER shall render professional Engineering Services as follows: 4.1 PRE-DESIGN INVESTIGATION PHASE After written authorization to proceed, ENGINEER shall: 4.1.1 Consult with OWNER to clarify and define OWNER's requirements for the Project and review available data. 4.1.2 Advise OWNER as to the necessity of OWNER's providing or obtaining from others, data or services and assist OWNER in obtaining such data or services. 4.1.3 Identify and analyze requirements of governmental authorities having jurisdiction to approve the design of the Project and participate in consultations with such authorities. 4.1.4. Provide analyses of OWNER's needs, planning surveys, site evaluations and comparative studies of prospective sites and solutions. 4.1.5 Provide a general economic analysis of OWNER's requirements applicable to various alternatives. 4.1.6 Prepare a Report containing schematic layouts, sketches and conceptual design criteria with appropriate exhibits to indicate clearly the considerations involved (including applicable requirements of governmental authorities having jurisdiction as aforesaid) and the alternative solutions available to OWNER and setting forth ENGINEER's findings and recommendations. 46 This Report will be accompanied by ENGINEER's opinion of probable costs for the Project, including the following which will be separately itemized: Construction Cost, allowance for engineering costs and contingencies, and (on the basis of information furnished by OWNER) allowances for such other items as charges of all other professionals and consultants, for the cost of land and rights-of-way, for compensation for or damages to properties, for interest and financing charges and for other services to be provided by others for Owner. The total of all such costs, allowance, etc. are hereinafter called "Total Project Costs". 4.1.7 Furnish three (3) copies and an electronic copy of the Study and Report documents and review them in person with OWNER. The Pre-design Investigation Phase will be completed and submitted within 150 calendar days following written authorization from OWNER to ENGINEER to proceed with that phase of services. 4.2 PRELIMINARY DESIGN PHASE 4.3 FINAL DESIGN PHASE 4.4 BIDDING OR NEGOTIATING PHASE 4.5 CONSTRUCTION PHASE 4.6. PROJECT DOCUMENTATION 4.7. CONSTRUCTION TESTING ARTICLE 5 - ADDITIONAL SERVICES 5.1 If OWNER wishes ENGINEER to perform any of the following Additional Services, OWNER shall so instruct ENGINEER in writing, and ENGINEER shall perform or obtain from others such services and will be paid therefor as provided in this Agreement: 5.1.1 Legal land surveys performed to obtain data for preparing easements and rights-of-way descriptions. 5.1.2 Preparation of applications and supporting documents for governmental agencies in addition to those required under Basic Services; preparation or review of environmental studies and related services; and assistance in obtaining environmental approvals. 5.1.3 Services resulting from significant changes in the general scope, extent or character of the Project or major changes in documentation previously accepted by OWNER where changes are due to causes beyond ENGINEER's control. 5.1.4 Providing renderings or models. 5.1.5 Preparing documents for alternate bids requested by OWNER for work not executed or for out-of-sequence work. 5.1.6 Providing other services not otherwise provided for in this Agreement, including services normally furnished by the OWNER as elsewhere herein described. 47 5.1.7 Furnishing the services of independent professional associates or consultants for other than Basic Services. 5.2. When required by the Contract Documents in circumstances beyond ENGINEER's control, ENGINEER shall perform or obtain from others any of the following Additional Services as circumstances require during construction and without waiting for specific instructions from OWNER, and ENGINEER will be paid therefor as provided in this Agreement: 5.2.1 Services in connection with work directive changes and change orders to reflect the changes requested by OWNER if the resulting change in compensation for Basic Services is not commensurate with the additional services rendered. 5.2.2 Services in making revisions to Drawings and Specifications occasioned by the OWNER'S acceptance of substitutions proposed by Contractor(s); services after the award of each contract in evaluating and determining the acceptability of an unreasonable or excessive number of substitutions proposed by Contractor; and evaluating an unreasonable or extensive number of claims submitted by Contractor(s) or others in connection with the work. 5.2.3 Services resulting from significant delays, changes or price increases occurring as a direct result of materials, equipment or energy shortages. 5.2.4 Additional or extended services during construction made necessary by (1) work damage by fire or other causes during construction, (2) a significant amount of defective or neglected work of any Contractor, (3) acceleration of the progress schedule involving services beyond normal working hours, (4) default by any Contractor. ARTICLE 6 - COMPENSATION FOR ENGINEERING SERVICE 6.1 LUMP SUM AGREEMENT FOR BASIC SERVICES AND EXPENSES OF ENGINEER 6.1.1 Payment. The OWNER shall for design phase services performed as Basic Engineering Services under sections 4.1 through 4.3 of this Agreement pay a total sum in the amount of $219,723 for such services. 6.1.2 General. Engineer shall submit monthly statements for services rendered. The statements shall be based upon Engineer's estimate of the proportion of the total services actually completed at the time of billing, subject to any limitations on Payments based on completion of tasks or specific retainage requirements pursuant to the payment provisions of this Agreement. 6.1.3 Reimbursable Expenses. Only those expenses specifically identified for payment under section 6.2 of this Agreement are reimbursable. All other design related expenses are included in the Lump Sum Payment for the Basic services (4.1 through 4.3) and are not separately reimbursable. Additional Services specifically identified under the scope of design services for payment under 6.1 are not separately reimbursable. 6.2 DIRECT LABOR COST PAYMENT FOR BASIC SERVICES AND EXPENSES OF ENGINEER ARTICLE 7 - MEANING OF TERMS 48 7.1 AGREEMENT As used herein the term "this Agreement" refers to the contents of this document and its Exhibits attached hereto and referred to as if they were part of one and the same document. 7.2 CONSTRUCTION COSTS The construction cost of the entire Project (herein referred to as "Construction Cost") means the total cost to OWNER of those portions of the entire Project designed and specified by ENGINEER, but it will not include ENGINEER's compensation and expenses, the cost of land, rights-of-way, or compensation for or damages to, properties unless this Agreement so specifies, nor will it include OWNER's legal, accounting, insurance counseling or auditing services, or interest and financing charges incurred in connection with the Project or the cost of other services to be provided by others to OWNER. 7.3 DIRECT LABOR COSTS 7.4 REIMBURSABLE EXPENSES Reimbursable Expenses mean the actual expenses incurred by ENGINEER or ENGINEER's independent professional associates or consultants directly in connection with the Project, such as expenses for: transportation and subsistence incidental thereto; obtaining bids or proposals from Contractor(s); subsistence and transportation of Resident Project Representatives and their assistants; toll telephone calls and telegrams; reproduction of reports, Drawings, Specifications, Bidding Documents and similar Project- related items; and if authorized in advance by OWNER, overtime work requiring higher than regular rates. In addition, when compensation for Basic Services is on the basis of Direct Labor Costs method of payment, Reimbursable Expenses will also include the amount billed to ENGINEER by special consultants employed by ENGINEER and authorized by OWNER (other than as an authorized Additional Services) and will also include expenses incurred for computer time and other specialized equipment, including an appropriate charge for previously established programs and expenses of photographic production techniques. ARTICLE 8 - PAYMENT PROVISIONS 8.1 TIMES OF PAYMENTS. ENGINEER may submit monthly statements for Basic Services and approved Additional Services rendered and for Reimbursable Expenses incurred; however, payments shall not exceed the ceilings provided in 6.1 and 6.2. Final payment shall be made only after acceptance of the project by the OWNER. If OWNER disputes the amount of the billing, OWNER will notify the ENGINEER in writing within ten (10) calendar days of the receipt of bill of the dispute. 8.2 REQUESTS FOR PAYMENT. Each request for payment shall include a documentation summary of the period incremental man hours incurred, direct labor rates and billed rates, detail of reimbursable costs, total period billing, and total cumulative billing. When requested by OWNER services for distinct project segments shall be accounted and billed separately. 8.3 PAYMENT UNDER TERMINATION. In the event of termination by the OWNER upon the completion of any phase of the Basic Services, progress payments due ENGINEER for services rendered through such phase shall constitute total payment for such services. In the event of such termination by OWNER during any phase of the Basic Services, ENGINEER also will be reimbursed for the charges of pre-approved independent professional associates and consultants employed by ENGINEER to render Basic Services, and paid for services rendered during that phase on the basis of the payment provisions of 49 the Agreement. In the event of any such termination, ENGINEER will be paid for unpaid pre-approved Additional Services and unpaid Reimbursable Expenses which are authorized under this agreement. ARTICLE 9 - GENERAL CONSIDERATIONS 9.1 TERMINATION OF AGREEMENT 9.1.1 The sole right is hereby reserved to the OWNER to terminate this Engineering Agreement for any and all causes or for its convenience at any time upon fifteen (15) days written notice to the ENGINEER. 9.1.2 If termination for default is effected by the OWNER, an equitable adjustment in the price provided for in this Agreement shall be made, but (1) no amount shall be allowed for anticipated profit on unperformed services or other work, and (2) any payment due to the ENGINEER at the time of termination may be adjusted to cover any additional costs to the OWNER because of the ENGINEER's default. If termination for convenience is effected by the OWNER, the equitable adjustment shall include a reasonable profit, as determined by owner, for services or other work performed. The equitable adjustment for any termination shall provide for payment to the ENGINEER for services rendered and expenses incurred prior to the termination, in addition to termination settlement costs reasonably incurred by the ENGINEER relating to commitments which had become firm prior to the termination. 9.1.3 Upon receipt of a termination action under paragraph 9.1.2, the ENGINEER shall (1) promptly discontinue all affected work (unless the notice directs otherwise), and (2) deliver or otherwise make available to the OWNER within ten (10) days copies of all data, design drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by the ENGINEER in performing this Agreement, whether completed or in process. 9.1.4 In the event this Contract is terminated prior to completion, the original copies of the ENGINEER'S data, recommendations, plans, specifications, analysis and other related documents prepared by the ENGINEER prior to said termination shall be delivered to and become the property of the OWNER. 9.1.5 Upon termination, the OWNER may take over the work and may award another party an Agreement to complete the work under this Agreement. 9.1.6 OWNER'S right to terminate is in addition to any other remedies OWNER may have under the law. 9.2 INSPECTION AND AUDIT All books, papers, records, payrolls, vouchers and invoices relating to costs and expenditures incurred as to the performance of the services by the ENGINEER hereunder shall be made available to the OWNER, or their authorized representatives for audit and review, at the ENGINEER'S respective offices at all reasonable times during the contract period and for three years from the date of final payment. 9.3 EMPLOYMENT 50 The ENGINEER warrants that he has not employed or retained any company or persons, other than a bona fide employee, working solely for the ENGINEER, to solicit to secure this contract, and that he has not paid or agreed to pay any company or person, other than bona fide employees working solely for the ENGINEER, any fee, commission, percentage, brokerage fee, gifts or any other considerations contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, the OWNER shall have the right to annul the Contract without liability or in its discretion to deduct from the price or consideration or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. All employees of the ENGINEER or other persons while engaged in the performance of work or services required by the ENGINEER shall be considered employees of the ENGINEER only and not of the OWNER. 9.4 NONDISCRIMINATION The ENGINEER agrees that all hiring by ENGINEER of persons performing this Agreement shall be on the basis of merit and qualifications. The ENGINEER will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The ENGINEER 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 ENGINEER 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. ENGINEER 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). ENGINEER 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. ENGINEER shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. The ENGINEER shall require these nondiscrimination terms of its sub-consultants providing services under this agreement. 9.5 SUBLETTING OR ASSIGNING OF WORK The ENGINEER shall not sublet or assign any of the work covered herein without prior written approval of the OWNER. 9.6 STANDARD OF CARE In providing services under this agreement, the ENGINEER will perform in a manner consistent with the degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances. If any service should be found to be not in conformance with this standard, the ENGINEER shall, at the OWNER’s request, re-perform the service at its own expense. Engineer shall also, at its own expense, make such changes, modifications or additions to the project which are made necessary 51 as a result of the initial non-performance or the re-performance of services. The OWNER’s rights herein are in addition to any other remedies the OWNER may have under the law. 9.7 LEGAL RELATIONS 9.7.1 The ENGINEER shall, consistent with the standard care, comply with those Federal, State, and Local laws and ordinances applicable to the work to be done. 9.7.2 For claims, causes of action, losses, or damages (collectively, “Claims”) asserted by third- parties and arising out of the performance of professional services by the ENGINEER, the ENGINEER shall indemnify and hold the Owner and the Owner’s officers, directors, and employees harmless from such Claims, including reasonable attorneys’ fees and expenses recoverable under applicable law, but only to the extent such Claims are caused by the negligence or intentional misconduct of the ENGINEER, its employees and its consultants in the performance of professional services under this Agreement. The ENGINEER’S obligation to indemnify and hold the Owner and the Owner’s officers and employees harmless under this section 9.7.2 does not include a duty to defend. 9.7.3 For Claims asserted by third-parties that do not arise out of the performance of professional services by the ENGINEER, the ENGINEER shall, to the extent covered by the ENGINEER’S insurance, defend, indemnify, and hold the Owner and the Owner’s officers, directors, and employees harmless from such Claims, including reasonable attorneys’ fees and expenses recoverable under applicable law, but only to the extent such Claims are caused by the negligence or intentional misconduct of the ENGINEER, its employees and its consultants. 9.7.4 In the event the OWNER is found proportionately responsible for any damages ultimately awarded to a plaintiff or plaintiffs in any lawsuit, the ENGINEER will be responsible for only those damages, costs, or liabilities as are attributable to the ENGINEER’S percent of fault as compared with 100% of the fault giving rise to the damages. Should the OWNER be found responsible for negligence by its own officers, directors, agents or employees, then in that event the OWNER agrees to reimburse the ENGINEER for the reasonable attorney’s fees and costs incurred in any defense of the OWNER in an amount proportional to the fault attributed to the OWNER. The indemnity required herein shall not be limited by reason of the specification of any particular insurance coverage in this Agreement. 9.7.5 Should either OWNER or ENGINEER be held responsible, for any damages, costs or liabilities resulting from intentional misconduct by any officer, director, agent or employee in connection with the work specified in this Agreement, then in that event, that party shall indemnify and hold harmless the other as to any damages, costs or liabilities that result from or arise out of that intentional misconduct, including reasonable attorney’s fees and costs which shall include costs and salary of the city attorney or other in-house counsel. Further, notwithstanding the obligations set forth in paragraphs 9.7.2 and 9.7.3 above, the ENGINEER agrees to defend OWNER where the OWNER’S alleged liability arises from intentional misconduct by the ENGINEER. Should the OWNER be found responsible for intentional misconduct by its own officer, director, agent or employee, then OWNER agrees to reimburse ENGINEER for the reasonable attorney’s fees and costs incurred in any defense of the OWNER. 9.7.6 The ENGINEER shall perform this agreement as an independent contractor, and as such, is responsible to the OWNER only as to the results to be obtained in the work herein specified, and to the extent that the work shall be done in accordance with the terms, plans and specifications. 52 The ENGINEER shall have and maintain complete control over all of its employees, subcontractors, agents and operations, being responsible for any required payroll deductions and providing required benefits, such as, but not limited to worker’s compensation with statutory limits, and unemployment insurance. 9.8 INSURANCE The ENGINEER shall secure and furnish to the OWNER certificate of insurance, therein, naming the OWNER as an additional insured, to include thirty (30) days notice of cancellation or non-renewal. Without limiting any of ENGINEER's obligations hereunder, ENGINEER shall secure and maintain, until the work is completed and accepted by the OWNER, insurance coverage naming the OWNER as additional insured with minimum insurance coverage as follows: Type of Coverage Limits Employers' Liability: $1,000,000 per accident General Liability: Bodily Injury & Property Damage: $1,000,000 per accident Single and combined General Aggregate: $2,000,000 Excess Liability Coverage (umbrella): $1,000,000 each occurrence Automobile: Bodily Injury: $1,000,000 each person Covering all automobiles, trucks, $1,000,000 each occurrence tractors, trailers or other auto- motive equipment whether owned or rented by Engineer or owned by employees of the Engineer Property Damage: $1,000,000 each occurrence Covering all automobiles, trucks, tractors, trailers or other automotive equipment whether owned or rented by Engineer or owned by employees of Engineer OR Bodily Injury & Property Damage: $1,000,000 each occurrence Single and combined In addition to the above insurance coverage, the ENGINEER shall secure and maintain, until the work is completed and accepted by the OWNER, and without naming OWNER as an additional insured, professional errors and omissions coverage as follows: Professional Errors & Omissions: $1,000,000 per claim and aggregate each occurrence 53 9.9 ENDORSEMENT The ENGINEER shall place his endorsement on all drawings and other data furnished by him. 9.10 OWNERSHIP OF DOCUMENTS The parties admit and agree the documents produced under this agreement are not intended or represented to be suitable for reuse by OWNER or any other individual on any other project. Any reuse without written verification or adaptation by ENGINEER will be at OWNER’s sole risk and without liability or legal exposure to ENGINEER, or to ENGINEER’s independent professional associates or consultants. Files in electronic media format of text, data, graphics, or of other types that are furnished by ENGINEER to OWNER are only for convenience of owner. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. 9.11 PUBLIC INFORMATION The ENGINEER shall not issue any statements, releases or information for public dissemination without prior approval of the OWNER. 9.12 PROPRIETARY RIGHTS If patentable discoveries or inventions should result from work required herein, all rights accruing from such discoveries or inventions shall be joint property of the ENGINEER and the OWNER. Provided that the OWNER, state agencies or political subdivisions and the United States Government shall have the irrevocable, nonexclusive, nontransferable and royalty-free license to use each invention in the manufacture, use and disposition, according to law, of any article or material, and in the use of any method that may be developed as part of the work described and contemplated herein. 9.13 RECORDS The ENGINEER shall maintain accounting records and other evidence pertaining to the cost incurred and to make the records available at all reasonable times during the Contract term and for one (1) year from the date of final payment. Such accounting records and other evidence pertaining to the cost incurred will be made available for inspections by OWNER. 9.14 SUCCESSORS IN INTEREST The covenants, agreements and all statements in this Contract apply to and shall be binding on the heirs, personal representatives, successors and assigns of the respective parties. 9.15 ATTORNEY'S FEES AND COSTS That in the event it becomes necessary for either Party of this Contract to retain an attorney to enforce any of the terms or conditions of this Contract 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. 9.16 MODIFICATIONS AND AMENDMENTS That any amendment or modification of this Contract or any provisions herein shall be made in writing or executed in the same manner as this original document and shall after execution become a part of this Contract. 54 9.17 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. In witness whereof, the Parties hereto do make and execute this Agreement. CITY OF BOZEMAN, MONTANA HDR ENGINEERING, INC. BY:         BY:        (City Manager) (Vice President) DATE: DATE: ATTEST: BY:       (City Clerk) 55 56 1 ATTACHMENT A- SCOPE OF SERVICES BACKGROUND The overall objective of this project is to complete pre-design, final design, bidding and construction administration services for the City of Bozeman (City) Water Reclamation Facility (WRF) Phase 1 Base Hydraulic Upgrade Project. The major project elements include a new anaerobic digester, UV disinfection system capacity expansion, inDENSE® pilot study, and a tertiary filtration study. This scope of services will primarily describe the initial pre-design phase for the project with the goal of establishing a strong foundation for the overall project. Final design and construction phase services shall be developed under an upcoming scope of services. SCOPE OF SERVICES The scope of services is identified in the following tasks and will commence upon written Notice to Proceed (NTP) with the selected tasks. The project schedule will be determined at the time of NTP but is anticipated to be 6 months, with Final Design and Construction Administration as future tasks. Tasks Description 100 Project Management 200 inDENSE Evaluation 300 Effluent Filtration Study 400 UV & Digester PDR Task 100. Project Management Objective and Approach HDR will manage its professional services contract to provide completion of this phase of the project. HDR will prepare and implement a project management plan; provide scope, schedule, and cost control services; negotiate and administer the contract; and initiate and attend project coordination meetings. 101.Project Management Plan A Project Management Plan (PMP) will be prepared which clearly communicates project objectives, scopes, budgets, schedule, communications protocols, constraints, applicable regulations, health and safety requirements for field work, and guidelines to project team members. The PMP will be updated periodically throughout the duration of the project when 57 2 significant events impact the scope and/or schedule of the project, and the updated PMP will be distributed to team members. As part of the PMP, a Quality Management Plan (QMP) will be developed that defines the QA/QC process for the project and identifies the key reviewers. 102. Project Initiation Workshop – Project Kickoff Meeting Conduct a workshop and kickoff meeting between the City and HDR to discuss scope, project schedule, deliverables, and initial data requests. An agenda will be prepared and distributed to the anticipated attendees. Prepare and distribute notes to attendees after workshop. 103. Progress Reports and Invoices Prepare monthly project status reports that compare work accomplished with scheduled activities, compare expenditures with task budgets, and describe changes to the scope that have occurred. Submit progress report combined with invoice for the duration of the project. 104. Monitor Project Progress Monitor project progress using earned value management by evaluating monthly the work completed, work remaining, schedule, budget expended, estimated cost of remaining work, and estimated cost at completion. Communicate scope, schedule, and budget status with the project team and review technical content of work products. Inform City in monthly progress report of any budget or schedule related issues. 105. Project Quality Control Review all work activities and project deliverables for conformance with quality control requirements and project standards. Monitor project activities for potential changes, anticipate changes whenever possible, and with the City’s approval, modify project tasks and approach to keep the overall project within budget and on schedule. 106. Quality Assurance Develop a Quality Management Plan (QMP) prior to commencing work. The QMP will define the specific quality practices, resources, and sequence of activities that will be used to fulfill the requirements for quality relevant to this project. Quality assurance (QA) components will define the systematic activities that will be completed to provide adequate confidence that deliverables will satisfactorily fulfill quality requirements. Quality control (QC) components will define the techniques and activities that will be used to verify an established level of quality has been achieved. The QC components are described for each major deliverable throughout this scope of services. 107. Project Close-Out Consolidate working files into final records folders. Destroy duplicate, draft, and obsolete documents. Verify record documents are included in final records folders. Verify and document that the contract terms and conditions have been met and all service and deliverable obligations completed. Issue a contract completion notice to City. 58 3 Assumptions The fee for this task is based upon the following assumptions: • This task is for the administration and management of HDR’s contract. • City will participate in project initiation workshop, conference calls, and meetings (workshop and meetings via Teams). • Invoice and progress report format will follow HDR standard format. • City will review progress report and approve invoices. • Labor costs and expenses for this contract will be tracked at the task level. • Direct expenses for travel, sustenance, printing, and photocopying will be billed to City. • HDR will proportionately adjust loaded labor rates to actual salary and wage increases for individuals. • Quality control reviews of work activities and project deliverables are included in the corresponding task. • Contract completion notice will be included with final progress report and invoice. Deliverables Deliverable work products consist of the following: • Meeting agendas transmitted to City via e-mail in .pdf format prior to project initiation workshop and meetings. • Meeting agendas delivered to City in hard copy format at project initiation workshop and project meetings, if held in person. • Notes from project initiation workshop, and meetings transmitted to City via e-mail in .pdf format. • Monthly progress report and invoice transmitted to City via hard copies. • Project Management Plan transmitted to City via e-mail in .pdf format, if requested. Task 200. inDENSE Evaluation Objective and Approach inDENSE is a wastewater process technology installed in the aeration basin system’s waste activated sludge (WAS) line which selectively retains well-settling biomass and selectively wastes poor settling biomass. It is anticipated that implementation of this technology may improve clarifier performance, augment secondary treatment capacity, and relieve current pressures on the nitrification system. However, the actual impacts from inDENSE will not be able to be quantified without a definite demonstration period at the WRF, which will require either leasing the equipment or purchasing it outright. There are important cost/benefit considerations that will determine which choice presents the best path forward, and the inDENSE evaluation will consider alternatives pertaining to equipment leasing vs. buying and the manner of installation. The evaluation will provide a recommendation on how to move forward, and will include a recommendation for how to conduct the most effective pilot and in- 59 4 field pilot process, taking into account considerations such as sunk cost and how to proceed if the technology is unsuccessful at the WRF. 201. inDENSE Evaluation Several alternatives will be evaluated during the inDENSE evaluation, including the following principal pathways: • Alternative 1. Pilot inDENSE during 3 – 6 Month Demonstration Period • Alternative 2. Purchase inDENSE without Demonstration Period, Temporary Installation • Alternative 3. Purchase inDENSE without Demonstration Period, Permanent Installation For each of these pathways, opinions of probable construction cost (OPCCs) will be quantified, including any sunk costs that will not be recuperated in the case of unfavorable technology performance at the WRF. To inform a final recommendation as to how to proceed, the process Biowin baseline model will be updated to simulate the implementation of the inDENSE system in the existing WRF process. The model simulation will be used to identify the potential effects of implementing the inDENSE system, and the model will be adjusted to simulate the following process changes: • Increased MLSS in the basins, • Retention of BNR organisms. The modeling results will be weighed against the OPCCs for each alternative pathway, and the consequences of potentially unfavorable real-world performance at the WRF, to provide a recommendation for moving forward. Task 200 Deliverables Deliverable work products consist of the following: • Technical Memorandum summarizing the results and recommendations of the inDENSE evaluation • Meeting agendas transmitted to City via e-mail in .pdf format prior to coordination calls and meetings. Task 300. Effluent Filtration Study Objective and Approach An effluent filtration study will identify an approach and filtration technologies for the WRF, including wetland tertiary treatment. Materials, costs, and treatment outcomes will be identified. Head requirements will also be determined to ascertain if filters can be incorporated into the existing hydraulic profile or whether pumps will be required. The schedule for the Effluent Filtration Study task will be prioritized in order to provide the City with our recommendations as they may impact or affect the City’s planning for the shops complex at the WRF. 60 5 301. Technological Review The Effluent Filtration Study will determine which filter technology is best suited for the needs of the WRF. This evaluation will principally evaluate filter performance and what technologies coincide with the nutrient discharge limits in the Facility Plan Treatment Scenarios but will also include an evaluation of wetland tertiary treatment that considers data from the recent wetland pilot study performed by Montana State University. Tertiary membrane filters (TMF) were presented and recommended in the Facility Plan because they have a proven ability to meet the required phosphorus limit, but TMF technology is also expensive. The Effluent Filtration Study will evaluate other filtration options, like sand filters and cloth media filters, and determine whether they can meet the required phosphorus limit in a more cost-effective manner. It is anticipated that up to four filtration technologies will be evaluated. 302. Process Integration Review The evaluation will consider the physical head requirements of each filter technology and whether they can integrate into the WRF’s existing treatment train or if pumping will be required. A preliminary examination of the WRF’s hydraulic profile shows that there is limited available head between the secondary clarifiers and the UV disinfection system, suggesting that pumping may be required. If this is the case, HDR will evaluate and determine feasible locations where pumping equipment/infrastructure can be installed on site and within the physical constraints of the tertiary treatment train. Task 300 Assumptions The fee for this task is based upon the following assumptions: • Results and data from the wetland pilot study at the WRF will be provided. Task 300 Deliverables Deliverable work products consist of the following: • Effluent Filtration Study delivered electronically, • Meeting agendas transmitted to City via e-mail in .pdf format prior to Effluent Filtration Study review, • Notes from meetings, transmitted to City via e-mail in .pdf format. Task 400. UV & Digester Preliminary Design Report Objective and Approach The development of a preliminary design report (PDR) to encompass the design plan for the new digester (Digester 4) and UV capacity addition. Digester predesign will include an evaluation of heating and biogas utilization, digester sizing, mixing, and siting of the digester on 61 6 the WRF property. Previous reports, studies, and current loading rates will be reviewed and design parameters will be updated, as necessary. 401. Digester Design The PDR will confirm sizing and mixing for Digester 4, which is anticipated to be sized similarly to Digester 3. The Digester 4 sizing will provide redundancy and a minimum 15-day HRT through the planning period outlined in the Wastewater Facilities Plan, consistent with Class B sludge production requirements. The proposed location for Digester 4 will be adjacent to Digester 3, but this siting will be evaluated against the risk of erosion in this area from the East Gallatin River. The existing Digester Control Building was designed to accommodate a future digester with the use of existing piping that is currently available to connect the new digester to the dewatering process. Like Digester 3, Digester 4 will process both the WAS and digested PSL stream from Digesters 1 and 2. Given the role of Digester 3 in processing the WAS stream from the bioreactors, and the accompanying phosphorus load that comes with it, Digester 4 will be designed similarly to Digester 3 to mitigate the effects of struvite accumulation. 402. Digester Heating and Biogas Utilization Providing heat is a fundamental component of successful mesophilic anaerobic digester operation. Digester 4 will require a new heat exchanger and connection to the WRF’s hot water recirculation system to provide heating. There is room for installation of the new heat exchanger in the Digester Control Building basement. The WRF’s boilers will require a capacity evaluation to determine if they can support an additional digester, or if additional boiler capacity will be required. An option of reusing the biogas from Digester 4 will also be evaluated within the PDR. 403. UV Treatment System Design The UV system is currently sized to deliver a dosage of 35,000 ɥWatt-sec/cm2 for a peak hour flow of 16.9 mgd, with expansion capacity in the UV banks to accommodate a peak hour flow of 25.4 mgd. The 2022 Facility Plan Update predicts a 2025 peak hour flow of 17.5 mgd, eclipsing current peak hour capacity. This task will include evaluation of the upgrade and controls of the UV system to meet the future needs and flow. Task 400 Assumptions The fee for this task is based upon the following assumptions: • City will provide required information, as requested. • construction cost will not vary from opinions of probable cost Engineer prepares. Task 400 Deliverables Deliverable work products consist of the following: • Preliminary Design Report, delivered electronically. 62 7 Opinion of Probable Project Costs Assumption Any opinions of probable project cost or probable construction cost provided by Engineer are made on the basis of information available to Engineer and on the basis of Engineer's experience and qualifications and represents its judgment as an experienced and qualified professional engineer. However, since Engineer has no control over the cost of labor, materials, equipment or services furnished by others, or over the contractor(s') methods of determining prices, or over competitive bidding or market conditions, Engineer does not guarantee that proposals, bids or actual project or construction cost will not vary from opinions of probable cost Engineer prepares. Proposed Schedule Based on an anticipated Notice to Proceed date of June, 2024, the projected project schedule is as follows: Task Description Schedule 100 Project Management Project Duration 200 inDENSE Pilot Tech Memo June 2024 – Sept 2024 300 Effluent Filtration Study June 2024 – Aug 2024 400 UV & Digester PDR July 2024 – October 2024 63 1 - Area Business Group Director - Coralyn Revis2 - Project Manager Engineer Sr - Craig Habben3 - Project Manager Engineer Sr - Jeff Zahller4 - Project Manager Engineer Sr - Jarrett Moran6 - Engineer Sanitary-2 - Calvin Zeltner20 - Engineer Sanitary-2 - Zach Maassen5 - Project Manager Engineer Sr - Adam Parmenter8 - Engineer Sanitary-2 - Tyson Schlect9 - Business Class Director - JB Neethling10 - Engineer Sanitary Sr-3 - June Leng25 - Accountant - Paden Kaufman21 - Area Business Group Director - Tom Hamlin15 - Engineer Electrical Sr - Lance Kirmeyer17 - SectionManagerTeamLeader - Trey Morris22 - CADDTechnician Civil 4 - Heather Fancher19 - Engineer Instrumentation Sr - Terry StulcTotal Budget Task Task Description Status MGT62 PJM21 PJM21-1 PJM21-2 ESA20 ESA20-2 PJM21-3 ESA20-1 MGT46 ESA30-1 ACT03 MGT62- 1 EEL30 MGT10 CCI04 EIN30 TOTAL HOURS LABOR INCL. ESCALATION TOTAL COST 101 Project Management Plan .4 5 9 2,000$ -$ 102 Project Inititation Workshop .4 4 2 2 12 3,075$ -$ 103 Progress Reports and Invoices .8 16 24 3,967$ -$ 104 Monitor Project Progress .8 8 2,124$ -$ 105 Project Quality Control .16 8 8 4 4 4 44 12,266$ -$ 106 Quality Assurance .8 8 2,467$ -$ 107 Project Close-Out .4 8 12 1,984$ -$ Subtotal (including optional)28 24 4 10 0 7 8 0 0 0 24 4 0 4 0 4 117 27,883$ 27,883$ 2.1 InDENSE Evaluation .16 40 20 20 80 8 8 8 4 12 4 220 47,300$ -$ Subtotal (including optional)16 0 0 0 40 20 20 80 8 0 0 8 8 4 12 4 220 47,300$ 47,300$ 3.1 Technological Review .16 80 30 16 142 24,709$ -$ 3.2 Process Integration Review .16 60 20 16 112 20,272$ -$ Subtotal (including optional)32 0 0 0 140 50 32 0 0 0 0 0 0 0 0 0 254 44,981$ 44,981$ 4.1 Digester PreDesign .16 30 8 80 20 10 10 8 10 192 39,001$ -$ 4.2 Digester Heating and Biogas Utilization .16 40 8 40 40 8 10 10 8 10 190 42,950$ -$ 4.3 UV Treatment System Evaluation .8 8 24 8 4 2 8 8 10 80 17,608$ -$ Subtotal (including optional)40 0 70 24 144 60 16 0 0 4 0 22 28 0 24 30 462 99,559$ 99,559$ Total (including optional)116 24 74 34 324 137 76 80 8 4 24 34 36 8 36 38 1053 219,723$ 219,723$ Task 1 Project Management Task 2 InDENSE Evaluation Task 4 UV & Digester PDR Task 3 Effluent Filtration Study HDR 64 Memorandum REPORT TO:City Commission FROM:Nic Focken, Interim Parking Manager Ben Bailey, Neighborhood Services and Code Compliance Manger SUBJECT:Authorize the City Manager to Sign a Professional Services Agreement with Desman Inc. for Construction Administrative Purposes MEETING DATE:June 18, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign a Professional Services Agreement with Desman Inc. for Construction Administrative Purposes. STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:To provide the City of Bozeman construction administration services for the repair of the Bridger garage. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the Commission. FISCAL EFFECTS:The total cost will not exceed $250,000 paid out of the CIP Parking fund for the maintenance of the garage. Attachments: PSA_Desman_Construction Administrative Services.pdf Report compiled on: June 4, 2024 65 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of June, 2024 (“Effective Date”), by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and, DESMAN Inc., 7900 E Union Ave, Denver CO 80237, 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 and will expire upon the completion of the project, as outlined in Exhibit A, 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 the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, 66 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. 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 67 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 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 68 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 the Commercial General, Employer’s Liability, and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: 69 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 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 70 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 Nicholas Focken, Lead Parking Enforcement Officer, 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 circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. 71 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. 15. 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. 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. 72 Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 16. 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. 17. 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. 18. 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. 19. 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. 20. 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 73 attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 21. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 22. 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. 23. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 24. 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. 25. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 26. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 27. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 28. 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. 29. Counterparts: This Agreement may be executed in counterparts, which together 74 constitute one instrument. 30. 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. 31. 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 Agreement the day and year first above written or as recorded in an electronic signature. DESMAN, INC. By____________________________________ Steve Rebora, President and CEO CITY OF BOZEMAN, MONTANA By__________________________________ Chuck Winn, City Manager APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 75 7900 E UNION AVE, SUITE 160, DENVER, CO 80237 www.DESMAN.com PHONE 303.740.1700 FAX 303.740.1703 BOSTON CHICAGO CLEVELAND DENVER FT. LAUDERDALE HARTFORD NEW YORK PITTSBURGH WASHINGTON D.C. ARCHITECTS STRUCTURAL ENGINEERS PLANNERS PARKING CONSULTANTS RESTORATION ENGINEERS GREEN PARKING CONSULTING April 12, 2024 Mr. Nic Focken Interim Parking Manager City of Bozeman 26 E Mendenhall St. P.O. Box 1230 Bozeman, MT 59715 RE: Proposal for Construction Administration Services Bridger Garage Bozeman, MT Dear Mr. Focken: In response to your request, DESMAN is pleased to submit the enclosed proposal to the City of Bozeman to provide construction administration services for the repair of the Bridger garage. Following is our scope of services for this phase of the project. Scope of Services 1. Participate in a pre-bid virtual meeting with the city and contractors to clarify questions and issue an addendum for the responses, if required. 2. Participate in a pre-construction meeting virtually between DESMAN, the city, and the selected contractor to clarify lines of communication and procedure for the routing of shop drawings, product submittals, request for information, correspondences, etc. 3. Review shop drawings and product submittals for completeness, appropriateness and compliance with the construction documents. Product submittal review will include product information, certification reports, samples, colors, etc. 4. Respond to Requests for Information (RFI’s), product substitutions and contractor requests for proposed minor modifications from construction documents. 5. Attend meetings with the city and/or contractor by phone as necessary. 6. Conduct a final site observation and a final punch list review of the work once the work is substantially completed. Upon completion of the punch list work, we will verify that all work within the scope of services of this contract is complete. The contractor will forward all warranties, copies of shop drawings, submittals, etc. to the city upon project closeout. Fee Proposal DESMAN will perform the SCOPE OF SERVICES outlined herein for a lump sum fee of $9,200, which excludes reimbursable expenses for travel for the final site observation, printing, reproduction, etc. Expenses will be billed to the City of Bozeman at actual cost with no additional mark up. Other services 76 Page 2 of 4 not specifically described herein will be performed on an hourly basis in accordance with DESMAN’s hourly rate schedule shown below: Personnel Classification Project Manager .................................................................................. $200/hour Architect/Engineer ............................................................................... $185/hour Note: Rates are effective through December 31, 2024. Closure On behalf of DESMAN’s team of professionals, we thank you for this opportunity to submit the enclosed proposal. If you are in agreement with this proposal, please indicate acceptance and return one signed original for our records. This will authorize DESMAN to proceed with the work. Should you have any questions or concerns regarding this submission, please do not hesitate to contact me. Sincerely, DESMAN, Inc. Hoshi Engineer, PE SE Vice President Proposal Accepted By: City of Bozeman (Signature) (Printed Name) (Title) (Date) 77 Page 3 of 4 STANDARD TERMS AND CONDITIONS OF AGREEMENT The engagement of DESMAN, Inc. (“DESMAN”) by the City of Bozeman (“Client”) is under the following terms and conditions, as applicable, and is an integral part of the Agreement between Client and DESMAN. 1. Unless noted or otherwise requested, the fee estimate for the proposed Scope of Services is valid for 60 days from the date of Proposal. 2. All schedules set forth in the attached Scope of Services commence upon receipt of a signed Agreement unless noted otherwise, and if requested, a retainer. All retainer amounts will be applied to the last invoice. A RETAINER OF $ 0 IS REQUIRED BEFORE WORK CAN COMMENCE UNDER THE AGREEMENT. 3. Before DESMAN shall be called upon to provide its services there under, the Client shall provide DESMAN, in writing, with all necessary information to permit its proper performance of the services to be provided. DESMAN shall be under no duty or obligation to verify the completeness or accuracy of the information provided by the Client and shall be entitled to fully rely thereon. 4. Client shall provide the necessary access and right-of-entry for DESMAN to enter the Project site, and to all shops and yards where materials are prepared or stored in order to allow DESMAN to perform their services. 5. The Client shall provide DESMAN with sufficient advance notice of required service so as to allow DESMAN a reasonable period of time to coordinate the assignment of its personnel. If DESMAN is required to delay commencement of its work, or is required to stop or interrupt the progress of its work due to action/inaction of Client, additional charges will be applicable and payable by the Client, which must be documented. 6. DESMAN will not act to enforce the provisions of the contract drawings or specifications. Should DESMAN, in the proposal, accept responsibility for site observations or monitoring, it remains the responsibility of the Client to enforce the contract provisions and to effect corrections of any contractual deficiencies, which are discovered by DESMAN. Desman shall not be liable for the contractor’s failure to perform the work in accordance with the contract documents. 7. Testing results apply only to the material samples actually tested. Test specimens or samples will be disposed immediately upon completion of the test, unless otherwise agreed. 8. Payment is due upon receipt of DESMAN’s invoices. Payment to DESMAN is the sole responsibility of signatory of this Agreement and is not subject to third party agreements. If payment is not received within thirty (30) days of receipt by Client, Client agrees to pay a finance charge on the principal amount of the past due account to one and one half (1 1/2%) percent per month. The Client agrees to pay DESMAN’s cost of collection of all amounts due and unpaid after sixty (60) days, including court costs and reasonable attorney's fees. 9. Invoice payments must be kept current for work to continue. If the Client fails to pay any invoice due to DESMAN within 45 days of the date of the invoice, DESMAN may, without waiving any other claim or right against Client, suspend services under this Agreement until DESMAN has been paid in full all amounts due DESMAN and/or any of its Consultants and Subcontractors. 10. DESMAN agrees to carry the following insurance during the term of this Agreement: Workmen's compensation, General Liability, Professional Liability and Comprehensive Automobile Liability. Certificates of insurance will be furnished upon request. If the Client requires insurance coverage or 78 Page 4 of 4 coverage limits in excess of DESMAN’s normal policy coverage, and if such coverage is available, Client agrees to reimburse DESMAN for cost premiums to carry such additional coverage. 11. DESMAN’s liability for any damage on account of any error, omission, or other professional negligence will be limited to a sum not-to-exceed the fee received under this Agreement. DESMAN, its agents and employees shall not be liable for any lost profits or any claim or demand against Client by any other party unless caused by negligence or wanton act or omission of DESMAN. In no event shall DESMAN be liable for special, consequential or exemplary damages. This provision shall supersede any other provision in this Agreement that may be deemed inconsistent with it. No action, regardless of form, arising out of the service under this Agreement, may be brought by the Client more than one (1) year after the act or omission-giving rise to a cause of action has occurred. 12. The Client shall indemnify, defend, and hold DESMAN, its officers, employees, and agents harmless from any and all claims, suits, losses, costs, and expenses, including but not limited to, court costs and reasonable attorney's fees arising or alleged to have arisen out of or to have resulted from the performance of DESMAN’s work on or about the subject Project, and caused in whole or in part by any negligent, willful, or wanton act or omission of the Client. 13. In the event that either party brings any claim, suit, cause of action, of counterclaim against the other, to the extent that such party prevails upon such action, the non-prevailing party shall pay to the prevailing party the costs expended by the prevailing party to defend against such action including reasonable attorney's fees, witness fees, and other related expenses. 14. DESMAN shall not be responsible for failure to perform or for delays in the performance of work, which arise out of causes beyond the control and without the fault or negligence of DESMAN. 15. In entering into this Agreement, Client has relied only upon the warranties or representations (a) set forth in this Agreement; or (b) implied in law. No oral warranties, representations or statements shall be considered a part of this Agreement or a basis upon which the Client relied in entering into this Agreement. No statements, representations, warranties or understandings, unless contained herein, exist between Client and DESMAN. 16. Either party upon seven (7) days prior written notice may terminate this Agreement. In the event of termination without cause, DESMAN shall be compensated by the Client for (a) all services performed up to and including the termination date, (b) reimbursable expenses and; (c) termination expenses. 17. DESMAN’s review associated with the Report shall be limited to the examination of the condition of the structure/s as defined by the scope of work, for the sole purpose of determining work required. This report shall be limited to an unaided visual examination and does not include destructive or non- destructive testing, non-invasive investigation techniques. 18. DESMAN’s reports and/or documents defined by the scope of work shall not be construed to warrant or guarantee the structure/s and/or any of its components under any circumstances. DESMAN shall not be responsible for latent or hidden defects that may exist, nor shall it be inferred that all defects will have been either observed or recorded. The review and/or report(s) is intended solely to identify the general condition of the structure/s and the necessity for repairs. DESMAN’s review and/or report(s) shall not constitute a detailed specification for repairs. 79 Memorandum REPORT TO:City Commission FROM:Jon Henderson, Strategic Services Director SUBJECT:Authorize the City Manager to Sign a First Amendment to a Professional Services Agreement with Logan Simpson for the Gallatin Valley Sensitive Lands Protection Plan Expanding the Scope of Services to Include Additional GIS Data Consultation Services MEETING DATE:June 18, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign a First Amendment to a Professional Services Agreement with Logan Simpson for the Gallatin Valley Sensitive Lands Protection Plan Expanding the Scope of Services to Include Additional GIS Data Consultation Services STRATEGIC PLAN:6.6 Habitat: Work with partner organizations to identify at-risk, environmentally sensitive parcels contribute to water quality, wildlife corridors, and wildlife habitat. BACKGROUND:On July 12, 2022 the City Commission approved a Professional Services Agreement with Logan Simpson for the Gallatin Valley Sensitive Lands Protection Plan. On December 19, 2023 the City Commission adopted Resolution 5559 accepting the plan. Additional consultant services are needed to maintain important data resources moving forward. This Amendment will provide for an effective transfer of knowledge between Logan Simpson and City of Bozeman GIS staff necessary to update modeling results inhouse on an annual basis. UNRESOLVED ISSUES:None. ALTERNATIVES:As directed by the City Commission. FISCAL EFFECTS:Funds to support the additional scope of services are currently allocated in the Strategic Services Department FY24 budget. Attachments: First Amendment to PSA with Logan Simpson for Gallatin Valley Sensitive Lands Protection Plan.pdf Report compiled on: June 6, 2024 80 81 First Amendment to Professional Services Agreement for the Gallatin Valley Sensitive Lands Protection Plan FY 2023 – FY 2024 Page 1 of 2 FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS FIRST AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR consultant services for the Gallatin Valley Sensitive Lands Protection Plan dated the 12th day of July, 2022 (the “Agreement”) is made and entered into this _________ day of _________ 202_, 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 Logan Simpson, 213 Linden Street, Fort Collins, Colorado, 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. Scope of Services: Section 3 of the Agreement is expanded to include services described in the Scope of Services attached thereto as Exhibit C and by this reference made a part hereof. 2. Payment: City agrees to pay Contractor the amount specified in Exhibit C. 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. 3. Agreement still valid. All remaining terms and provisions of the Agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** 82 First Amendment to Professional Services Agreement for the Gallatin Valley Sensitive Lands Protection Plan 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 [LOGAN SIMPSON DESIGN, INC.] By________________________________ By_____________________________ Chuck Winn, Interim City Manager Print Name: Title: APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney 83 City of Bozeman & Logan Simpson Design Inc. Project No. 225162 Modification No. 1 page 1 MODIFICATION NO. 1 TO AGREEMENT FOR PROFESSIONAL SERVICES This Modification No.1 to the Agreement dated July 12, 2022, by and between the City of Bozeman, Montana, a self-governing municipal corporation (Owner) and Logan Simpson Design Inc., an Arizona corporation, dba Logan Simpson (Consultant) for the Gallatin Valley Sensitive Lands Protection Plan (Project) is made as of June 18, 2024. Scope of Services: The additional Scope of Services includes tasks related to the effective data/modeling handoff to include but not limited to: - Answering questions, attending meetings, and assisting with the knowledge transfer to Bozeman GIS staff - Providing assistance in future data updates and rerunning the models and completing updates to the Hub website Payment for Basic Services: Payment will be based on the billing rates shown below for time incurred and actual reimbursable expenses not to exceed the amount of $15,000. Labor Category Billing Rate Environmental Planner/GIS Analyst $80 GIS Analyst $105 Senior Environmental Planner $150 Principal $195 Terms and Conditions: All other Terms and Conditions of the Agreement remain the same and are incorporated herein. FOR THE OWNER: FOR THE CONSULTANT: City of Bozeman Montana Logan Simpson Design Inc. ___________________________________ __________________________________ Chuck Winn Jeremy Call Interim City Manager Principal Exhibit C 84 Memorandum REPORT TO:City Commission FROM:Tom Rogers, Senior Planner Chris Saunders, Community Development Manager Erin George, Deputy Director of Community Development Anna Bentley, Director of Community Development SUBJECT:Resolution 5568, A Resolution of Intent to Amend the Future Land Use Map of the Bozeman Community Plan 2020, on 7.644 acres for Property Generally Located on the Northeast Corner of South 19th Avenue and Graf Street, Application 23063 MEETING DATE:June 18, 2024 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Adopt Resolution 5568 setting dates for public hearings. STRATEGIC PLAN:4.1 Informed Conversation on Growth: Continue developing an in-depth understanding of how Bozeman is growing and changing and proactively address change in a balanced and coordinated manner. BACKGROUND:An application has been submitted to change the future land use map on 17.485 acres from Urban Neighborhood to Community Commercial Mixed Use. The property is located between Arnold and Graf Streets and east of South 19th Avenue. State law requires the City Commission adopt a resolution of intent as the first formal step in review of an amendment to the growth policy. The resolution of intent advises the public of the upcoming review and generally sets required public hearings before the Community Development Board in their capacity as the planning board and before the City Commission. No final action to amend the growth policy is taken with this resolution. A similar application was reviewed and not approved by the Commission on February 6, 2024, Application 23063. However, this is a significantly revised application by reducing the area to modify the future land use from 17.5 to 7.6 acres. The Bozeman Community Plan 2020 [External PDF Link] (BCP 2020) is a fundamental policy document guiding further growth and community development in Bozeman. It sets forth Bozeman's future growth policy for land-use and development. The purpose of the Plan is to guide the City’s community planning and to evaluate and prioritize the City’s actions moving forward. It reflects the community’s shared values and priorities. The Plan is 85 the City’s long-range growth policy that meets the statutory requirements of Section 76-1-601 of the Mont. Code Ann. Bozeman’s first comprehensive plan (growth policy) was adopted in 1958. The City has replaced the growth policy six times since then to respond to a growing community and most recently in 2020 adopting the BCP 2020. State law requires review every five years after the plan is adopted. In addition to the required review, the City Commission; independently or at the suggestion of the Planning Board or the City Staff; one or more landowner of property that are the subject of the amendment to the future land use map; and interested members of the public may suggest modifications to the text or map. Chapter 5 of the BCP 2020 describes who can request an amendment and how to evaluate the application. The City Commission has considered five (6) Growth Policy Amendments (GPA) from 2020 to 2024 including the repeal and replacement of the current BCP 2020. Individual applications to amend the Future Land Use Map include: Application 20021. Blackwood Groves GPA, hearing date June 8, 2020, Resolution 5176, [External Video Link] time stamp 1:02:30. Application 21309. South 3rd GPA, December 7, 2021, Resolution 5367, [External Video Link] time stamp 0:33:25. Application 21318. Mountains Walking GPA, November 23, 2021, Resolution 5357, [External Video Link] time stamp 0:35:15. Application 22282. Innovation Campus GPA, hearing date February 28, 2023, Resolution 5447, [External Video Link] time stamp 1:52:30. Application 23063. SRX North GPA, February 6, 2024 [External Video Link ]. UNRESOLVED ISSUES:There are no unresolved issues with the Resolution. ALTERNATIVES:As determined by the Commission. FISCAL EFFECTS:No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this Growth Policy Amendment. Future development will incur costs and generate review according to standard City practices. Attachments: 24195 SRX II Resolution of Intent 5598.pdf Report compiled on: June 4, 2024 86 Version April 2020 RESOLUTION 5598 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, STATING THE INTENT OF THE CITY COMMISSION TO CONSIDER AN AMENDMENT TO THE BOZEMAN COMMUNITY PLAN 2020 AND THE FUTURE LAND USE MAP OF THE BOZEMAN COMMUNITY PLAN 2020, THE SRX II GROWTH POLICY AMENDMENT, APPLICATION 24195. WHEREAS, the City of Bozeman has had a comprehensive plan (growth policy) since 1958, and WHEREAS, the City of Bozeman adopted its growth policy known as the Bozeman Community Plan 2020 (BCP) through Resolution 5133 on November 17, 2020, and WHEREAS, the Bozeman Community Plan 2020, Chapter 5, establishes criteria for the amending of the document, and WHEREAS, an application has been received to amend the Future Land Use Map of the growth policy, and WHEREAS, in accordance with 76-1-602, MCA, the City Commission must adopt a resolution of intent and conduct a public hearing prior to taking any action to adopt or revise a growth policy. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, to wit: 87 Version April 2020 Section 1 In accordance with the requirements of Section 76-1-604 MCA, the intent to consider the application for amendment and possible corresponding revisions to the growth policy is hereby stated. Section 2 That a public hearing be set and advertised for the purpose of receiving public testimony on application 24195, SRX II Growth Policy Amendment to the Future Land Use Map of the Bozeman Community Plan. Expected dates are with the Planning Board hearing on July 15, 2024, and the City Commission hearing on August 6, 2024. PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the _____ day of ________, 2024. ___________________________________ TERENCE CUNNINGHAM Mayor ATTEST: ___________________________________ MIKE MASS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 88 Memorandum REPORT TO:City Commission FROM:Ellie Staley, Downtown Bozeman Partnership SUBJECT:Resolution 5601, Authorizing the City Manager to Sign Change Order 1 with Constructive Solutions, Inc. for The Downtown Alley Enhancement Pilot Project MEETING DATE:June 18, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Resolution 5601, Authorizing the City Manager to Sign Change Order 1 with Constructive Solutions, Inc. for The Downtown Alley Enhancement Pilot 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 amendment for Charge Order 1 contains provisions to adjust the completion date to 04/01/24-04/01/2025. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:None. Attachments: Resolution 5601 June 2024 Change Order 1.pdf Alley Change Order 1-V2.pdf _First_Am_Dwtwn_Alley_Enhance_Agmt_final-COMBINED PDF.pdf Report compiled on: May 30, 2024 89 Version February 2023 RESOLUTION 5601 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, WHEREAS, The City Commission did, on February 13, 2024, authorize the First Amendment to Construction Agreement for The Downtown Alley Enhancement Pilot Project with Constructive Solutions, Inc.; and WHEREAS, Section 7-5-4308, Montana Code Annotated, provides that any such alterations for modification of the specifications and/or plans of the contract be made by resolution; and WHEREAS, it has become necessary in the prosecution of the work to make date modifications to the specifications and/or plans of the contract. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, that the proposed modifications to The Downtown Alley Enhancement Pilot Project, as contained in the Change Order #1, attached hereto: be and the same are hereby approved; and the City Manager is hereby authorized and directed to execute the contract change order for and on behalf of the City; and the City Clerk is authorized and directed to attest such signature., to wit: PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 18th day of June, 2024. 90 Version February 2023 ___________________________________ Terence Cunningham Mayor ATTEST: ___________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 91 Page 1 of 1 CHANGE ORDER No. 01 DATE OF ISSUANCE April 28, 2024 EFFECTIVE DATE April 28, 2024 CONTRACTOR Constructive Solutions, Inc OWNER's Contract No. OWNER City of Bozeman Contract: 2023 Alley Improvement Project Project: 2023 Alley Improvement Project ENGINEER City of Bozeman ENGINEER's Contract No. You are directed to make the following changes in the Contract Documents: Description: Timeline change/no cost Reason for Change Order: Supply chain and sub-contractor availability CHANGE IN CONTRACT PRICE: CHANGE IN CONTRACT TIMES: Original Contract Price $ 298,513.28 Original Contract Times: 09/01/23 – 08/31/24 Substantial Completion: Ready for final payment: (days or dates) Net Increase (Decrease) from previous Change Orders No. to : $ 0.00 Net change from previous Change Orders No. to No. : Substantial Completion: Ready for final payment: (days) Contract Price prior to this Change Order: $ 298,513.28 Contract Times prior to this Change Order: Substantial Completion: Ready for final payment (days or dates) Net increase (decrease) of this Change Order: $ 0.00 Net increase (decrease) this Change Order: Substantial Completion: Ready for final payment: (days) Contract Price with all approved Change Orders: $ 298,513.28 Contract Times with all approved Change Orders: Substantial Completion: 04/01/24 – 04/01/2025 Ready for final payment: 05/01/25 (days or dates) Contractor certifies and agrees that there are no additional costs or claims for extra work, additional time, delays or omitted items, of any nature whatsoever, associated with the subject change order items, except as identified and set forth herein and unless expressly stated otherwise in the Change Order. And further, that the price agreed-upon herein represents the full cost and value for the subject work performed and the materials supplied under the terms of the contract and that the work quantities and value were properly determined and are correct. CONTRACTOR (Authorized Signature) Date RECOMMENDED BY: APPROVED BY: (ENGINEER - Signature) Date OWNER (Authorized Signature) Date EJCDC 1910-8-B (1996 Edition Prepared by the Engineers Joint Contract Documents Committee and endorsed by The Associated General Contractors of America and the Construction Specifications Institute. for CSI 04/28/24 92 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697A February 4 13th DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 93470 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 94471 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 95472 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 96473 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 97474 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 98475 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 99476 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 100477 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 101478 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 102479 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 103480 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 104481 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 105482 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 106483 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 107484 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: DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 108485 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 109486 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; DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 110487 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 111488 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 112489 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 113490 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 **** DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 114491 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697A Constructive Solutions Inc. Rob Evans President XXXXXXXXXXXXXXXXXXXXXXXXXXXX Acting City Manager, Chuck Winn DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 115492 -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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 116493 -2- Ex. C: Artwork Scope of Services Agreement City of Bozeman Constructive Solutions Inc. Signature: __________________________ Signature: _________________________ Printed: __________________________ Printed: _________________________ Title: __________________________ Title: _________________________ Date: __________________________ Date: _________________________ DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 117494 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 118495 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 119496 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: ________________ DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 120497 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 121498 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 122499 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 123500 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 124501 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, DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 125502 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 126503 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 127504 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 128505 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 129506 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 130507 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 131508 -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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 132509 -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: DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 133510 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: _______________________________ DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 134511 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 135512 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 136513 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 137514 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 138515 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 139516 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 140517 Dzintars Waiver of Proprietary Rights - Page 4 of 4 - DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 141518 DOWNTOWN BOZEMAN ALLEY ENHANCEMENT PILOT PROJECT Final Artwork Plans and Drawings Date: 1/23/2024 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 142519 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 143520 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 144521 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 145522 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 146523 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 147524 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 148525 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 149526 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 150527 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 151528 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 152529 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” DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 153530 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 154531 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 155532 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 156533 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 157534 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”DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 158535 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 159536 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 160537 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 161538 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 162539 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 163540 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 164541 Memorandum REPORT TO:City Commission FROM:Ellie Staley, Downtown Bozeman Partnership SUBJECT:Resolution 5602, Authorizing the City Manager to Sign Change Order 2 with Constructive Solutions, Inc. for The Downtown Alley Enhancement Pilot Project MEETING DATE:June 18, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Resolution 5602, Authorizing the City Manager to Sign Change Order 2 with Constructive Solutions, Inc. for The Downtown Alley Enhancement Pilot 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 amendment for Charge Order 2 contains provisions to the overall contract price to increase by $10,822.50 for additional administrative work for artist contracts for city transfer of ownership. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:The changes included in this result in an increase of $10,822.50 to the overall contract price. Attachments: Resolution 5602 June 2024 Changer Order 2.pdf Alley Change Order 2-V2.pdf _First_Am_Dwtwn_Alley_Enhance_Agmt_final-COMBINED PDF.pdf Report compiled on: May 30, 2024 165 Version February 2023 RESOLUTION 5602 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, WHEREAS, The City Commission did, on February 13, 2024, authorize the First Amendment to Construction Agreement for The Downtown Alley Enhancement Pilot Project with Constructive Solutions, Inc.; and WHEREAS, Section 7-5-4308, Montana Code Annotated, provides that any such alterations for modification of the specifications and/or plans of the contract be made by resolution; and WHEREAS, it has become necessary in the prosecution of the work to have additional administrative work for artist contracts for city transfer of ownership NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, that the proposed modifications to The Downtown Alley Enhancement Pilot Project, as contained in the Change Order #2, attached hereto: be and the same are hereby approved; and the City Manager is hereby authorized and directed to execute the contract change order for and on behalf of the City; and the City Clerk is authorized and directed to attest such signature., to wit: PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 18th day of June, 2024. 166 Version February 2023 ___________________________________ Terence Cunningham Mayor ATTEST: ___________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 167 Page 1 of 1 CHANGE ORDER No. 01 DATE OF ISSUANCE April 28, 2024 EFFECTIVE DATE April 28, 2024 CONTRACTOR Constructive Solutions, Inc OWNER's Contract No. OWNER City of Bozeman Contract: 2023 Alley Improvement Project Project: 2023 Alley Improvement Project ENGINEER City of Bozeman ENGINEER's Contract No. You are directed to make the following changes in the Contract Documents: Description: Cost change for the project. Reason for Change Order: Additional administrative work for artist contracts for city transfer of ownership. CHANGE IN CONTRACT PRICE: CHANGE IN CONTRACT TIMES: Original Contract Price $ 298,513.28 Original Contract Times: Substantial Completion: Ready for final payment: (days or dates) Net Increase (Decrease) from previous Change Orders No. to : $ 0.00 Net change from previous Change Orders No. to No. : Substantial Completion: Ready for final payment: (days) Contract Price prior to this Change Order: $ 298,513.28 Contract Times prior to this Change Order: Substantial Completion: Ready for final payment (days or dates) Net increase (decrease) of this Change Order: $ 10,822.50 Net increase (decrease) this Change Order: Substantial Completion: Ready for final payment: (days) Contract Price with all approved Change Orders: $ 309,355.78 Contract Times with all approved Change Orders: Substantial Completion: Ready for final payment: (days or dates) Contractor certifies and agrees that there are no additional costs or claims for extra work, additional time, delays or omitted items, of any nature whatsoever, associated with the subject change order items, except as identified and set forth herein and unless expressly stated otherwise in the Change Order. And further, that the price agreed-upon herein represents the full cost and value for the subject work performed and the materials supplied under the terms of the contract and that the work quantities and value were properly determined and are correct. CONTRACTOR (Authorized Signature) Date RECOMMENDED BY: APPROVED BY: (ENGINEER - Signature) Date OWNER (Authorized Signature) Date EJCDC 1910-8-B (1996 Edition Prepared by the Engineers Joint Contract Documents Committee and endorsed by The Associated General Contractors of America and the Construction Specifications Institute. for CSI 04/28/24 168 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697A February 4 13th DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 169398 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 170399 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 171400 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 172401 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 173402 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 174403 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 175404 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 176405 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 177406 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 178407 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 179408 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 180409 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 181410 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 182411 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 183412 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: DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 184413 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 185414 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; DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 186415 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 187416 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 188417 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 189418 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 **** DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 190419 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697A Constructive Solutions Inc. Rob Evans President XXXXXXXXXXXXXXXXXXXXXXXXXXXX Acting City Manager, Chuck Winn DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 191420 -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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 192421 -2- Ex. C: Artwork Scope of Services Agreement City of Bozeman Constructive Solutions Inc. Signature: __________________________ Signature: _________________________ Printed: __________________________ Printed: _________________________ Title: __________________________ Title: _________________________ Date: __________________________ Date: _________________________ DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 193422 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 194423 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 195424 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: ________________ DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 196425 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 197426 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 198427 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 199428 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 200429 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, DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 201430 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 202431 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 203432 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 204433 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 205434 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 206435 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 207436 -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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 208437 -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: DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 209438 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: _______________________________ DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 210439 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 211440 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 212441 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 213442 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 214443 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 215444 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 216445 Dzintars Waiver of Proprietary Rights - Page 4 of 4 - DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 217446 DOWNTOWN BOZEMAN ALLEY ENHANCEMENT PILOT PROJECT Final Artwork Plans and Drawings Date: 1/23/2024 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 218447 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 219448 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 220449 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 221450 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 222451 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 223452 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 224453 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 225454 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 226455 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 227456 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 228457 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” DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 229458 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 230459 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 231460 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 232461 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 233462 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”DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 234463 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 235464 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 236465 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 237466 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 238467 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 239468 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 240469 Memorandum REPORT TO:City Commission FROM: Susana Montana, Senior Planner, Development Review Division Brian Krueger, Manager, Development Review Division Erin George, Interim Director of Community Development SUBJECT: Approve Final Ordinance No. 2161 for the Zoning Text Amendment to Table 38.320.040.E to Reduce the Minimum Rear Yard Setback for Lots Abutting Alleys in the Residential Emphasis Mixed Use (REMU) Districts Citywide; Application No. 24055 MEETING DATE:June 18, 2024 AGENDA ITEM TYPE:Community Development - Legislative RECOMMENDATION: Final approval of Ordinance No. 2161 for a Zoning Text Amendment to Amend Table 38.320.040.E of the Bozeman Municipal Code to Reduce the Minimum Rear Yard Setback for Single-Household, Townhouse/Rowhouse, Townhouse/Rowhouse Clusters, Two to Four Household, Group Living and Apartment Housing Dwelling Types on Lots Abutting Alleys in the Residential Emphasis Mixed Use (REMU) Districts Citywide; Application No. 24055 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: This Zone Text Amendment (ZTA) application was submitted by the Bridger Land Group, developers of the Blackwood Groves subdivision which lies within a Residential Emphasis Mixed Use (REMU) District. This is a request to amend Table 38.320.040.E of the City’s Unified Development Code (UDC) to reduce the rear yard setback for residential lots abutting an alley in REMU Districts. The rear setback would be reduced from ten (10) or fifteen (15) feet to six (6) feet for single-household, townhouse/rowhouse, 241 townhouse/rowhouse clusters, two to four household, group living and apartment type dwellings on lots with alley access within REMU Districts, citywide. On May 6, 2024, the Community Development Board, acting as the Zoning Commission, recommended an amendment to the Applicant’s proposal which would limit the reduced setback to single-household, townhouse/rowhouse and two-to-four dwelling buildings. Apartment buildings and group housing facilities would remain with a 10-foot rear alley setback. On May 21, 2024, the City Commission considered the Applicant’s original proposal and the Zoning Commission’s recommended amendment and voted unanimously to approve the Applicant’s original proposal which is reflected in the provisional Ordinance 2161 and this Final Ordinance 2161. This Final Ordinance No. 2161 amends Table 38.320.040.E to reduce the rear setback for single-household, townhouse/rowhouse, townhouse/rowhouse clusters, two to four household, group living and apartment housing types on lots abutting an alley within REMU Districts, citywide. UNRESOLVED ISSUES:None ALTERNATIVES:None suggested. FISCAL EFFECTS: Fiscal impacts are undetermined at this time but will include increased property tax revenues from assessment of the larger home that can be built on alley-abutting lots due to the reduced rear yard setback. No new costs to deliver municipal services is anticipated because no new housing would result, only a larger building footprint per lot. Attachments: 24055 Final Ordinance 2161 CC Memo.pdf Final Ordinance 24055 REMU rear yard setback 06 06 24.pdf 24055 Final Ordinance 2161 REMU ZTA CC staff rpt.pdf Report compiled on: June 6, 2024 242 Commission Memorandum REPORT TO: Mayor and City Commission FROM: Susana Montana, Senior Planner Brian Krueger, Development Review Manager Erin George, Deputy Director of Community Development Anna Bentley, Director of Community Development SUBJECT: Approve Final Ordinance No. 2161 amending Table 38.320.040.E of the Bozeman Unified Development Code to reduce the rear yard setback to 6 feet for single-household, townhouse/rowhouse, townhouse/rowhouse clusters, two-to-four household, group living and apartment dwellings on lots that abut alleys in the Residential Emphasis Mixed Use (REMU) Districts, citywide; Application No. 24055. 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. MEETING DATE: June 18, 2024 AGENDA ITEM TYPE: Action—Legislative RECOMMENDATION: Final adoption of Ordinance No. 2161 amending Table 38.320.040.E of the Bozeman Unified Development Code to reduce the rear yard setback to 6 feet for single- household, townhouse/rowhouse, townhouse/rowhouse clusters, two-to-four household, group living and apartment type dwellings on lots that abut alleys in the Residential Emphasis Mixed Use (REMU) Districts, citywide; Amended Application No. 24055. BACKGROUND: This Zone Text Amendment (ZTA) application was submitted by the Bridger Land Group, developers of the Blackwood Groves subdivision which lies within a Residential Emphasis Mixed Use (REMU) District. This is a request to amend Table 38.320.040.E of the City’s Unified Development Code (UDC) to reduce the rear yard setback for single-household, townhouse/rowhouse, townhouse/rowhouse clusters, two-to-four household, group living and apartment type residential lots abutting an alley in REMU Districts. The rear setback would be reduced from ten (10) or fifteen (15) feet to six (6) feet. This amendment would apply to all residential lots whose rear yards abut an alley within REMU Districts citywide. On May 6, 2024, the Community Development Board, acting as the Zoning Commission, recommended an 243 amendment to the Applicant’s proposal which would limit the reduced setback to single- household, townhouse/rowhouse, townhouse/rowhouse clusters, and two-to-four dwelling buildings. Apartment buildings and group housing facilities would remain with a 10-foot rear alley setback. On May 21, 2024, the City Commission considered the Applicant’s original proposal and the Zoning Commission’s proposed amendment and voted unanimously to approve the provisional Ordinance No. 2161 which reflects the Applicant’s original ZTA. This Final Ordinance No. 2161 reflects the Applicant’s original ZTA request to amend Table 38.320.040.E. UNRESOLVED ISSUES: None. ALTERNATIVES: None suggested. FISCAL EFFECTS: Fiscal impacts are undetermined at this time but will include increased property tax revenues from assessment of the larger home that can be built on the alley lots due to the reduced rear yard setback. No new costs to deliver municipal services is anticipated because no new housing would result, only a larger building footprint. Report compiled on: June 6, 2024 Links: The full application and file of record can be viewed at the Community Development Department at 20 E. Olive Street, Bozeman, MT 59715 or here or https://weblink.bozeman.net/WebLink/Browse.aspx?id=287867&dbid=0&repo=BOZEMAN. The City Commission meeting recording of May 21, 2024 can be viewed here or https://bozeman.granicus.com/player/clip/2292?view_id=1&redirect=true Attachment: Staff report 244 Version February 2023 Ord. 2161 Page 1 of 7 ORDINANCE 2161 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA AMENDING TABLE 38.320.040 OF CHAPTER 38 OF THE BOZEMAN MUNICIPAL CODE TO REDUCE THE REAR YARD SETBACK FOR SINGLE- HOUSEHOLD, TOWNHOUSE/ROWHOUSE, TWO-TO-FOUR HOUSEHOLD DWELLINGS, GROUP LIVING AND APARTMENT DWELLINGS ON ALLEY- ABUTTING LOTS LYING WITHIN REMU (RESIDENTIAL EMPHASIS MIXED USE) DISTRICTS CITYWIDE. WHEREAS, the City of Bozeman (the “City”) has adopted land development and use standards to protect public health, safety and welfare and otherwise execute the purposes of Montana Code Annotated §§ 76-1-102, 76-2-304, 76-3-102, and 76-3-501; and WHEREAS, pursuant to the Bozeman City Charter, the City of Bozeman has adopted and is hereby relying upon its self-government powers recognizing pursuant to Montana law such self- government powers must be liberally construed in favor of such power; and WHEREAS, pursuant to Chapter 38, Section 38.260.010.A of the Bozeman Municipal Code (BMC), the Bridger Land Group submitted application number 24055 for a specific zoning text amendment for Table 38.320.040 to reduce the rear yard setback for single-household, townhouse/rowhouse, two-to-four household, group living and apartment dwellings on lots that abut alleyways lying within a Residential Emphasis Mixed Use (REMU) District; and WHEREAS, pursuant to BMC Section 38.260.020, upon receipt of such application, the Community Development Department initiated the required investigation of facts bearing on such proposed amendment to ensure that the action is consistent with the intent and purposes of Chapter 38, Section 38.100.040 to protect health, safety and general welfare; and WHEREAS, on May 6, 2024, the Bozeman Community Development Board, acting as the Bozeman Zoning Commission, voted to recommend to the City Commission an amendment to the Applicant’s text amendment proposal. The Board recommended separating the group living and apartment buildings into a new category and maintaining a 10-foot setback for those uses, 245 Ordinance No. 2161, Amend Residential Emphasis Mixed Use Alley Rear Yard Setback Page 2 of 7 instead of the applicant’s initial proposal, which proposed reducing the setback for those uses to a 6-foot rear yard alley setback; and WHEREAS, pursuant to Sections 38.220.420 and 38.260.030, public notice of the May 6, 2024 public hearing on the proposed amendment before the Community Development Board and of the May 21, 2024 public hearing before the Bozeman City Commission was given by publication in a general circulation newspaper on April 21, 2024 and April 28, 2024, which is not less than 15 or more than 45 calendar days prior to the public hearings; and WHEREAS, after proper notice, the City Commission held its public hearing on May 21, 2024, to receive and review all written and oral testimony on the proposed amendments; and WHEREAS, the City Commission has reviewed and considered the applicable amendment criteria established in Montana Code Annotated (MCA) § 76-2-304, considered the Community Development Board recommendation, and all the information presented by staff and the Applicant at the May 21, 2024 public hearing, and found that the proposed amendments to Table 38.320.040 presented by the Applicant was preferred to that recommended by the Community Development Board and found that the Applicant’s zone text amendment is in compliance with the MCA criteria; and NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 Legislative Findings The City Commission hereby makes the following findings in support of adoption of this Ordinance: 1. The City adopted a growth policy, the Bozeman Community Plan 2020, by Resolution 5133 to establish policies for development of the community including zoning; 2. The Bozeman Community Plan 2020, Chapter 5, sets forth the policies by which the City reviews and applies the criteria for amendment of zoning established in 76-2-305, MCA; 3. Zoning, including text amendments, must be in accordance with an adopted growth policy; 4. A staff report analyzing the required criteria for a zone text amendment, including accordance to the Bozeman Community Plan 2020, has found that the required criteria are satisfied; 5. The two required public hearings were advertised as required in state law and municipal code and all persons have had opportunity to review the materials applicable to the application and provide comment prior to a decision; 6. The Bozeman Community Development Board as the Zoning Commission has been established as required in state law and conducted their required public hearing; and after 246 Ordinance No. 2161, Amend Residential Emphasis Mixed Use Alley Rear Yard Setback Page 3 of 7 consideration of application materials, staff analysis and report, and all submitted public comment recommended approval of the application. 7. The City Commission conducted a public hearing to provide all interested parties the opportunity to provide evidence and testimony regarding the proposed amendment prior to the City Commission acting on the application. 8. The City Commission considered the application materials, staff analysis and report, the Community Development Board recommendation, all information presented by staff and the Applicant, and all other relevant information. 9. The City Commission determines that, as set forth in the staff report and incorporating the staff findings, Community Development Board’s amendment and recommendation, and staff and Applicant presentation at the public hearing as part of their decision, the required criteria for approval of the proposed Bozeman Unified Development Code (UDC) Table 38.320.040.E text amendment to reduce the rear yard setback to 6-feet for single- household, townhouse/rowhouse, two-to-four household, group living and apartment dwellings on lots within the REMU District which abut an alley have been satisfied. 247 Ordinance No. 2161, Amend Residential Emphasis Mixed Use Alley Rear Yard Setback Page 4 of 7 Section 2 Table 38.320.040—Form and Intensity Standards of the Residential Emphasis Mixed Use (REMU) Districts—Minimum-Maximum Setbacks (feet)—shall be amended to read as follows with all other elements of the table and footnotes remaining unchanged. Standard Small-lot single- house hold Single- house hold Townhouse/ rowhouse townhouse/ rowhouse cluster1 Two to four household dwellings, group living, apartments Mixed use (residential over commercial) Non- residential Front Setback (minimum and maximum) 10-15 10-15 10-15 10-15 Note7 Note8 Setback to an individual garage oriented to the street 2011 2011 2011 — — — Rear Setback 10 15 10 10 — — Rear Setback Adjacent to an Alley 6 6 6 6 __ __ Side Setback 59 59 510 5 — — Residential garages Note12 Note12 Note12 Note12 Note12 — Special Parking Standards — — — Note13 Note6,13,14 Note6,13,14 Notes: [All notes remain unchanged.] … 248 Ordinance No. 2161, Amend Residential Emphasis Mixed Use Alley Rear Yard Setback Page 5 of 7 Section 3 Repealer. All provisions of the ordinances of the City of Bozeman in conflict with the provisions of this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 4 Savings Provision. This ordinance does not affect the rights and duties that matured, penalties that were incurred or proceedings that were begun before the effective date of this ordinance. All other provisions of the Bozeman Municipal Code not amended by this Ordinance shall remain in full force and effect. Section 5 Severability. That should any sentence, paragraph, subdivision, clause, phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect the validity of this ordinance as a whole, or any part or provision thereof, other than the part so decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman Municipal Code as a whole. Section 6 Codification. The provisions of Section 2 of this Ordinance shall be codified as appropriate in the Bozeman Municipal Code. 249 Ordinance No. 2161, Amend Residential Emphasis Mixed Use Alley Rear Yard Setback Page 6 of 7 Section 7 Effective Date. This ordinance shall be in full force and effect thirty (30) days after final adoption. ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the 21st day of May, 2024. ____________________________________ TERRENCE CUNNINGHAM Mayor ATTEST: ____________________________________ MIKE MAAS City Clerk FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the City of Bozeman, Montana on second reading at a regular session thereof held on the ___ of ____________________, 2024. The effective date of this ordinance is ______________, 2024. _________________________________ TERRENCE CUNNINGHAM Mayor ATTEST: _______________________________ MIKE MAAS City Clerk 250 Ordinance No. 2161, Amend Residential Emphasis Mixed Use Alley Rear Yard Setback Page 7 of 7 APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 251 Alley Rear Yard Setback Reduction in REMU Districts ZTA; 24055 Page 1 of 28 Staff Report for the Final Ordinance No. 2161 for the Reduced Alley Rear Yard Setback in REMU Districts Zone Text Amendment (ZTA), Application No. 24055. Public Hearing Date(s): Community Development Board acting in their capacity as the Zoning Commission held a public hearing on the ZTA proposal on May 6, 2024 at 6:00 P.M. in the City Hall Commission Room. The City Commission public hearing on this ZTA and Provisional Ordinance No. 2161 was held on May 21, 2024 at 6:00 P.M. in the City Hall Commission Room. The City Commission public hearing on this ZTA and Final Ordinance No. 2161 will be held on June 18, 2024 at 6:00 P.M. in the City Hall Commission Room. Project Description: A Zone Text Amendment (ZTA) to modify Table 38.320.040.E of the City’s Unified Development Code (UDC) of the Bozeman Municipal Code (BMC) to reduce the rear yard setback for residential lots abutting an alley within a REMU (Residential Emphasis Mixed Use) District. The rear yard for single household dwellings, townhouses, rowhouses, townhouse/rowhouse clusters, two- to four-household, group living, and apartment dwellings would be reduced from 10- or 15-feet to 6-feet. Project Location: The proposed revision to the UDC Table 38.320.040.E would be applicable to any lot with rear alley access in all REMU Districts, city-wide. Staff Findings: The proposed CDB-amended Table 38.320.040.E as a zoning text amendment meets State Statute Section 76-2-304 Montana Code Annotated (MCA) and Section 38.260.010 of the Bozeman Municipal Code (BMC) ZTA criteria for approval as described below in Section 3. City Commission Recommended Motion: Having reviewed and considered the application materials, staff report, final ordinance, public comment, recommendation from the Zoning Commission, and all the information presented, I hereby adopt the findings presented in the staff report for application 24055 and move to adopt the Final Ordinance No. 2161. Report Date: June 6, 2024 Staff Contact: Susana Montana, Senior Planner Agenda Item Type: Action – Legislative 252 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 2 of 28 EXECUTIVE SUMMARY This report is based on the application materials, Zoning Commission discussions and recommendations of the May 6, 2024 public meeting, staff evaluation and findings, and the City Commission discussions and adoption of the Provisional Ordinance No. 2161 at the May 21, 2024 public hearing. There was no written or oral public comment received to date. The full application and file of record can be viewed at the Community Development Department at 20 E. Olive Street, Bozeman, MT 59715 or here or https://weblink.bozeman.net/WebLink/Browse.aspx?id=287867&dbid=0&repo=BOZEMAN. The City Commission meeting recording of May 21, 2024 can be viewed here or https://bozeman.granicus.com/player/clip/2292?view_id=1&redirect=true The staff evaluation of the State Statute criteria for approval of a zoning regulation amendment presented herein is based on the Applicant’s proposal to reduce the rear yard setback for all types of wholly-residential structures, including apartments and group housing, to 6-feet. Public Meeting The City Commission will hold a public hearing on the Final Ordinance No. 2161 on June ??, 2024. The meeting will begin at 6 P.M. in the Commission Room at City Hall, 121 N. Rouse Ave, Bozeman, Montana. Remote electronic participation may also be available. Instructions for participating remotely will be included on the meeting agenda. The agenda is available in the Events portion of the City’s website at https://www.bozeman.net/home at least 48 hours prior to the meeting. At the City Commission’s public hearing the City Commission may act to approve, modify, or reject the proposal, as Final Ordinance No. 2161, or may continue the public hearing to another date. The City Commission may revise the proposed ZTA during the public hearing process. Alternatives: None Suggested. Unresolved Issues: None Project Summary This Zone Text Amendment (ZTA) application was submitted by the Bridger Land Group, developers of the Blackwood Groves subdivision which lies within a Residential Emphasis Mixed Use (REMU) District. This is a request to amend Table 34.320.040.E of the City’s 253 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 3 of 28 Unified Development Code (UDC) to reduce the rear yard setback for residential lots abutting an alley in REMU Districts citywide. The rear setback would be reduced from 10- or 15- feet to 6- feet for wholly-residential lots that abut an alley in REMU Districts as shown in below in Figure 1. 254 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 4 of 28 Figure 1: Applicant’s original application. Amendments shown in red underlined text. Standard Small-lot single- household Single- household Townhouse/ rowhouse townhouse/ rowhouse cluster1 Two to four household dwellings, group living, apartments Mixed use (residential over commercial) Non- residential Minimum-Maximum Setbacks (feet) (38.320.020.E) (where only one number is shown in the column, there is no "maximum" setback) Front Setback (minimum and maximum) 10-15 10-15 10-15 10-15 Note7 Note8 Setback to an individual garage oriented to the street 2011 2011 2011 — — — Rear Setback 10 15 10 10 — — Rear Setback Adjacent to an Alley 6 6 6 6 __ __ Side Setback 59 59 510 5 — — Garages and Special Parking Standards Residential garages Note12 Note12 Note12 Note12 Note12 — Special Parking Standards — — — Note13 Note6,13,14 Note6,13,1 4 Notes: [Notes 1 through 14 are unchanged.] 255 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 5 of 28 The REMU zoning standards were first created in 2011 by Ordinance 1802. The minimum rear yard setback in the REMU District was established at 10-feet for small, single-household lots [less than 4,000 square feet (sf) in size]; at 15-feet for single-household lots at or greater than 4,000 sf in size; and at 10-feet for all other wholly-residential (not mixed use) housing type lots (townhouse/rowhouse, townhouse/rowhouse clusters, two- to four-household dwellings, group living and apartments). The Applicant seeks to maximize the footprint of buildings on alley-loaded lots in the REMU Districts, particularly for single-household dwellings with detached or attached alley-loaded garages, by reducing the rear setback to from 10- or 15-feet to 6-feet. SECTION 1 –BOARD DISCUSSION AND RECOMMENDATIONS The Community Development Board, acting in their capacity as the Zoning Commission, held a public hearing on this text amendment on May 6, 2024. During the meeting, Community Development staff Susana Montana provided an overview of the Applicant’s proposed ZTA and presented a summary of how the proposal meets applicable MCA and UDC statute criteria for evaluating and approving zoning regulation amendments. This evaluation of the statute criteria are detailed below in Section 3 on page 16 of this report. There was no written or oral public comment on the proposal for the Board to consider at this meeting. The Applicant made a detailed presentation of how the reduced rear yard alley setback would meet the MCA and UDC criteria and would address relevant City Growth Policies. The Applicant stated that he agreed with staff findings and recommendation for approval. Following the staff and Applicant’s presentations, no public comment, Board Member Egnatz made a Motion and Board Member Delmue seconded the Motion to begin the Board discussion process. Questions of staff, comments and discussions from Board Members include the following: Topic: Public health, public safety, and general welfare Public Safety MCA Criteria B, C and F As noted in Section 3 below on page 17, a zoning text amendment (ZTA) must address state adopted criteria. Staff has grouped discussion items of the Community Development Board according to the criteria. Criterion B and C are mandatory criteria for approval of a zoning text amendment. Board Members inquired as to how the reduced building setback along an alley would address Criterion B—securing the community’s safety from fire and other dangers, and Criterion C--promoting the public health, safety and general welfare. Board Member Egnatz stated that he disagreed with the staff finding of Criterion B and C, that the reduced setback “would dissuade motorists from parking within a setback in front of an alley accessed garage, resulting in blocking passage of other 256 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 6 of 28 travelers along the alleyway, including emergency service vehicles. Thus, the proposed ZTA would tend to promote or advance public health, safety and general welfare as noted in the City’s Community Plan and in Section 38.100.040 purpose of the UDC” [page 20 below] and “Neighborhoods with more blocks with alleyways would offer pedestrians and cyclists greater choices for travel throughout the neighborhood with less traffic than through the abutting streets. This would have a marginal effect on motorized transportation systems in REMU neighborhoods to the extent that induces developers to provide more blocks with alleys. Blocks with alleys are expected to facilitate safer pedestrian and bicycle travel off of busier streets” [page 21 below]. Board Members asked for “hard metrics” that demonstrate that blocks with vehicle access to lots from alleys would induce pedestrians and cyclists to travel the alleys rather than along the busier street fronting the lots and, therefore, would have a safer travel experience than traveling along the street frontage. They wanted to know potential negative effects of the reduced setback along the alley regarding dangers from pedestrian/bicycle/vehicle conflicts. During the meeting, staff did not have this pedestrian/vehicle collision data from City records. After the meeting, Community Development staff asked Fire Chief Josh Waldo and Deputy Chief of the Police Department (PD) Andy Knight if they have records of such events. Available data showed City had a citywide average of 9.8 pedestrian/vehicle collisions per year reported over the 2018-2023 period. The collision records for do not detail with or without blocks with alleys. The finding by staff that the ZTA meets Criteria A, B and C is based on staff observations and anecdotal reports given to staff over recent years. Whether or not a reduced setback of 6-feet would positively address Criteria B, securing the community’s safety from pedestrian/vehicle conflict dangers, and Criteria C, securing the public health, safety and general welfare, by reducing pedestrian/vehicle conflicts along the street frontage of blocks with alleys is not verifiable with collision records. Scale and Massing and Light and Air of Criterion E The proposed amendment allows the principal building to be at the 6-foot setback rather than the current allowance for only an accessory building to be at the 6-foot setback. Board Members expressed concern that a reduced setback from 10- or 15-feet to 6-feet along the alley for apartment buildings that are permitted to be five stories in height could have a negative impact or result for the specific block and surrounding neighborhood. Board Members stated that a 6-foot rear setback for 50- or 60-feet tall apartment buildings along a 20-foot wide alley would likely result in a scale and massing that would be dark and overwhelming to the human scale, particularly if both sides of the alley had 5-story buildings built to the 6-foot setback line. This may produce a visual “canyon effect” along the alley which would have a negative impact on providing adequate light and air to the lots along the subject block. Board Members wanted to differentiate the smaller (35 to 44 feet tall) single-household, townhouse, rowhouse or two-to-four dwelling structures along the alley from the up to 5-story multi-family/apartment structures to avoid this canyon effect. 257 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 7 of 28 Since the ZTA Applicant testified that he did not specifically intend to reduce the rear setback for group living or apartment buildings, it was recommended unanimously by Board Members that group living facilities and apartment buildings be removed from the reduced setback Table 38.320.040.E and, instead, the table to be amended to have those housing types retain the 10-feet minimum setback. Table 38.320.040.E would be amended to add a column for the group housing and apartment residential uses and the amended table would establish their setbacks at 10 feet as is shown in Figure 2. With these changes, the Board opined that the ZTA would meet Criterion E—provide for the reasonable provision of adequate light and air to the affected community. Five feet rear alley setback versus a six feet setback Board Members discussed whether this reduced rear alley setback ZTA amendment should be included in the proposed citywide UDC amendment, referred to as the UDC update. The September 7, 2023 Draft ReCode proposal recommends a 5-foot rear setback for all housing types in the REMU Districts. The ZTA Applicant was asked by Board Members why he did not propose a 5-foot rear alley setback instead of the 6-foot rear setback for lots with alley access. The Applicant responded: (1) He did not want to wait for the UDC update process to conclude because they have a block with an alley that is designed with single-household dwellings with an attached garage accessed from the alley with a 6-foot setback that is ready for development now; (2) for this specific ZTA application he wanted to request just minor changes to the UDC to accomplish their development objectives for their REMU block and the Applicant believes the 6- feet rear alley setback would be a minimal change to Table 38.360.040; and (3) the Applicant also intended to amend Table 38.320.040.E to be consistent with other sections of the existing UDC such as the current rear yard setbacks for detached accessory structures found in Section 38.360.030.I which requires a minimum 6-foot rear yard setback except a 20 foot setback is required when parking is provided between the structure and rear property line (“stacked” parking in a driveway). Public Benefits of this ZTA Board Members indicated that all zone text amendments should provide a public benefit in order to qualify for approval. Board Members asked staff to identify the public benefits of the proposed ZTA. Staff responded that the REMU District’s intent and purpose is to provide a variety of housing types, along with a mixture of neighborhood-serving commercial uses. The REMU District seeks to (1) incorporate a wider range of housing types; and (2) provide flexibility in the 258 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 8 of 28 placement and design of new developments and redevelopment to anticipate changes in the marketplace. Blocks with alleys within REMU subdivisions can accommodate smaller lots which could result in more affordable lots and lower priced dwellings with attached garages accessed from the alley. Facilitating smaller lots and homes and a mix of housing types in the REMU Districts citywide would be the principal public benefit of the reduced rear alley setback as amended by the Board. As noted in the staff evaluation of Criterion B and F on pages 20 and 22, the rear setbacks in REMU Districts are allowed to be parking spaces but only if they meet required dimensional standards in 38.540.020. The 15- foot, 10-foot or 6-foot setbacks cannot accommodate a parked vehicle along the standard 20-foot wide alley as vehicles are typically 18- to 24-feet in length. The rear alley setback to access a garage, carport or surface parking of a lot located along an alley can only accommodate a short “pause” for a motorist awaiting the garage door to fully open. Public Comment The Board Chair asked if there was any public comment provided before the meeting or was being offered at the hearing in person or on-line. None was offered Post-Discussion Board Action After considering the Applicant’s proposed ZTA, the staff report, the staff presentation, the Applicant’s presentation, and their own Discussion, the Board voted to amend the proposed ZTA. The maker of the original Motion, Mr. Egnatz, made a Motion to amend the original Motion to amend Table 38.320.040.E separating out the group housing and apartment housing types into a new column and retaining the 10-foot rear setback for those structures in the REMU District. The Board voted 6 to 1 to approve the amended Motion presented in the title block of this report. The Board forwarded its recommendation to the City Commission. The full video of the May 6, 2024, meeting may be found in the Laserfiche Archive or here or https://bozeman.granicus.com/player/clip/2283?view_id=1&redirect=true 259 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 9 of 28 The ZTA amendment to Table 38.320.040.E would apply to all wholly-residential lots whose rear yards abut an alley within REMU Districts citywide. It would apply to all structures abutting the alley whether it be the primary (attached) structure or an accessory (detached) garage. TABLE OF CONTENTS EXECUTIVE SUMMARY ...................................................................................................... 2 Unresolved Issues ..................................................................................................................... 2 Project Summary ....................................................................................................................... 2 Alternatives ............................................................................................................................... 2 SECTION 1 – BOARD DISCUSSION AND RECOMMENDATIONS ................................. 5 SECTION 2 – MAPS, TABLES AND FIGURES ................................................................. 11 SECTION 3 - TEXT AMENDMENT STAFF ANALYSIS AND FINDINGS ..................... 16 SECTION 4 - PROTEST NOTICE FOR ZONING AMENDMENTS .................................. 24 APPENDIX A - BACKGROUND AND APPLICANT’S RATIONALE FOR THE ZONE TEXT AMENDMENT ........................................................................................................... 24 APPENDIX B - NOTICING AND PUBLIC COMMENT .................................................... 28 APPENDIX C - APPLICANT INFORMATION AND REVIEWING STAFF .................... 28 FISCAL EFFECTS ................................................................................................................. 28 . 260 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 10 of 28 SECTION 2 – MAPS, TABLES AND FIGURES Figure 2: City of Bozeman –The proposed amendment would apply to all current REMU Districts (in purple) and future REMU zoning districts citywide. Current REMU Districts can be found in the Community Developer Viewer via this link and by clicking on the zoning map layer found in the left side legend. 261 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 11 of 28 Figure 3: 2024 Cityside Map of REMU Districts in purple color. 262 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 12 of 28 Figure 4: Community Plan Future Land Use Map (FLUM). Tan color 263 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 13 of 28 Figure 5: Blackwood Groves Block 8 example of a lot abutting an alley. 264 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 14 of 28 Figure 6: Blackwood Groves Block 8 lot with rear yard abutting an alley. garage 6’ SETBACK 265 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 15 of 28 Figure 7: Garage with alley access and a 6 foot rear setback. garage 6’ SETBACK 266 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 16 of 28 SECTION 3 - TEXT AMENDMENT STAFF ANALYSIS AND FINDINGS In considering applications for approval under this title, the advisory boards and City Commission must consider the following criteria (letters A-I) found in Section 76-2-304 of the Montana Statutes Annotated (MCA). As an amendment is a legislative action, the Commission has broad latitude to determine a policy direction. The burden of proof that the application should be approved lies with the applicant. A zone text amendment must be in accordance with the growth policy (criteria A) and be designed to secure safety from fire and other dangers (criteria B), promote public health, public safety, and general welfare (criteria C), and facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements (criteria D). Therefore, to approve a text amendment the Commission must find Criteria A-D are met. In addition, the Commission must also consider criteria E-I, and may find the text amendment to be positive, neutral, or negative with regards to these criteria. To approve the zone text amendment, the Commission must find that the positive outcomes of the amendment outweigh negative outcomes for criteria E-I. In determining whether the criteria are met, Staff considers the entire body of regulations for land development. Standards which prevent or mitigate negative impacts are incorporated throughout the entire municipal code but are principally in Chapter 38, Unified Development Code. Where a finding of Neutral is presented, it represents that the criteria is either not applicable to the proposed amendments or that the change does not materially advance or detract from compliance. Therefore, a finding of Neutral is not an indication of a deficiency in the proposed amendments or the existing standards. Having considered the State Statute criteria established for a zoning text amendment, the Staff evaluated the amended ZTA Table 38.320.040.E against the MCA and UDC criteria for approval and finds the criteria for approval of this CDB-recommended amendment have been met. Therefore, staff recommends approval of the application as amended. The Development Review Committee (DRC) considered the original ZTA application and did not identify infrastructure deficiencies associated with the proposed amendment. The following is an evaluation of the Applicant’s original and the City Commission’s approved Ordinance No. 2161 amending Table 38.320.040.E of the Bozeman Municipal Code (BMC). Section 76-2-304, MCA (Zoning) Criteria A. Is the new zoning text in accordance with the City’s growth policy? Yes. Overall, this criterion is met. Staff Evaluation: The Bozeman Community Plan 2020 describes planning principles and “growth policies” listed as Themes, Goals, Objectives and Actions. As described below, the proposed text amendment satisfies the following growth policies of the Community Plan and staff has found no 267 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 17 of 28 such policy that would be violated by the proposed zoning text amendment (ZTA). Therefore, this criterion is met. The proposed text amendment would apply to all lots abutting alleyways that lie within the REMU, Residential Emphasis Mixed Use zoning districts. The REMU District is an implementing district of the Residential Mixed Use future land use map (FLUM) designation of the Community Plan (see Figure 5). The Residential Mixed Use designation promotes: “neighborhoods substantially dominated by housing yet integrated with small-scale. commercial and civic uses. The housing can include single-attached and small single- detached dwellings, apartments, and live-work units. If buildings include ground floor commercial uses, residences should be located on upper floor. Variation in building mass, height, and other design characteristics should contribute to a complete and interesting streetscape”[page 53, Community Plan]. Overall, whether the alley rear yard setback is 10-, 15- or 6-feet in depth has no bearing on the value or utility of a home or its garage along the alley because a vehicle cannot legally park in the setback area of either size setback since those dimensions do not meet the standards for parking in 38.540.020. This setback is not allowed “stacked” parking and not deemed a driveway for parking purposes. A minimum 5-, 6-, 10- or 15-feet setback from the alley property line would provide (1) sufficient visual distance for a passersby motorist, pedestrian or cyclist traveling along the alley to see/notice a vehicle backing out from a garage accessed from the alley; (2) sufficient distance from the alley for snow storage and placement of a trash receptable on trash days; and (3) sufficient distance for a motorist driving into or out of a garage to make one or more turning movements to reach the garage or alley travelway. These are the purposes of a rear setback along an alleyway. How does the proposed reduced rear setback along alleys in REMU districts address the intent of the Residential Mixed Use land use designation? The intent and purpose of the REMU District is to establish areas within Bozeman that are mixed-use in character and to provide options for a variety of housing, employment, retail and neighborhood service opportunities within a new or existing neighborhood [UDC 38.300.110.F]. Alleyways within REMU districts are encouraged and are intended to facilitate the development of a variety of types and sizes and, perhaps, affordability, of housing. Pursuant to UDC Section 38.510.030.M.2(j), if an alley is adjacent to a site, access must be taken from that alley. Access to a street may be considered by the review authority. Per 38.510.010.B this standard does not apply to one to four-household dwellings. With the purpose of an alley rear setback and the purposes of the REMU District in mind, the reduced rear setback for wholly-residential developments on lots with rear alley access positively address the following growth policies of the 2020 Community Plan. 268 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 18 of 28 2020 Community Plan Policies Theme 1 seeks a Resilient City: “Resilient communities rebound, positively adapt to, and thrive amidst changing conditions or challenges and maintain quality of life, healthy growth, durable systems and conservation of resources for present and future generations.” Policy R-1.7: “Be flexible: willingness and ability to adopt alternative strategies in response to changing circumstances.” R-2.6: “Innovation: Advance new approaches and techniques that will encourage continual improvement and advancement of best practices.” Staff Evaluation: A reduced rear yard setback for blocks of housing with garages accessed from an alley would represent the flexibility sought to encourage development of homes which accommodate the “market-tastes” of a variety of households, particularly those who wish to present an attractive urban façade to the house along the street rather than encumber the street frontage with a garage and to those who wish to enter their homes from the rear yard. Theme 2: A City of Unique Neighborhoods. Goal N-1: Support well-planned, walkable neighborhoods. Policy N-1.1: Promote housing diversity, including missing middle housing. Goal N-3: Promote a diverse supply of quality housing units. N-3.1: Establish standards for provisions of diversity of housing types in a given area. N-3.7: Support compact neighborhoods, small lot sizes, and small floor plans, especially through mechanisms such as density bonuses. N-3.8: Promote the development of “Missing Middle” housing (side-by-side or stacked duplex, triplex, live-work, cottage housing, group living, rowhouses/townhouses, etc.) as one of the most critical components of affordable housing. Staff Evaluation: The reduced rear setback for lots abutting an alley would facilitate a mix of housing types and sizes in REMU neighborhoods by allowing larger building “footprints”/greater utilization of the land for the principal house or the principal house and an Accessory Dwelling Unit (ADU) and a garage accessed from the alley. The visual character of residential blocks that have garages accessed by a mid-block alley may appeal to residents who wish to “present” more attractive and personalized house designs, facades and landscaping than can be achieved with street-facing and accessed garages. The proposed reduced rear alley setback may induce and facilitate use of the alley to access the garage. The changed standard will further distinguish the 269 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 19 of 28 built environment in the REMU district from other residentially oriented districts that have different rear setback requirements. Theme 3: A City bolstered by Downtown and Complementary Districts. Goal DCD-1: Support urban development within the City. Goal DCD-3: Ensure multimodal connectivity within the City. DCD-3.6: Evaluate parking requirements and methods of providing parking as part of the overall transportation system for and between districts. Staff Evaluation: The reduced rear setback for blocks with an alley would support compact development in REMU Districts where they lie in the city. Reducing the rear setback for alley- loaded lots would induce and facilitate greater development of such block forms. Blocks with alleys may create more attractive pedestrian and bicycle routes through neighborhoods as there are fewer conflicts with motor vehicles crossing the sidewalks and bike routes/lanes, than through streets with front-facing garages. The remaining Community Plan Themes have policies that do not speak directly to the proposed ZTA and the proposed ZTA is neutral toward and does not negatively affect any of the remaining policies: Theme 4: A City influenced by our Natural environment, parks, and open lands. Theme 5: A City that prioritizes accessibility and mobility choices. Theme 6: A City powered by its creative, innovative and entrepreneurial economy. Theme 7: A City engaged in regional coordination. B. Will the new zoning secure the community’s safety from fire and other dangers? Yes. This criterion is met. Staff Evaluation: The current rear setback for a garage accessed from an alley in the REMU District would have a 10- or 15-foot depth of driveway fronting the alley. No “stacked” parking of a vehicle within the current or proposed 6-foot setback from the alley could occur. Any rear setback of less than 20-feet is not deemed or allowed as a driveway for parking. A typical vehicle length is from 18 to 24 feet and no such vehicle can “park” in a driveway of 10 or 15 feet in length. However, many people try anyway. Experience across the City has shown that vehicle areas should either be standard parking size or very obviously too small to park. A vehicle entering the garage from the alleyway would likely stop the vehicle next to the garage while awaiting the opening of an automatic garage door this would be different with a 10-foot, 15-foot or the ZTA 6-foot rear yard setback along the alley. Other travelers along the alley would wait their “turn” to travel the alleyway while the motorist is navigating into or out of the garage. 270 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 20 of 28 Vehicles are not permitted to parallel park alongside a 20- or 30-foot wide alley in order to assure emergency vehicle access and, perhaps, solid waste disposal trucks to pass through the alleyway. Development of garages lying 6-feet from a 20- to 30-feet wide alley would have sufficient “back up” and turning movement area within the alley for vehicles parked within the rear yard garages to access the alley in a safe manner. Although, a 24-foot long truck parked in a garage with a 6- foot long driveway will likely have to engage in several turning movements in order to safely exit the alley and may have to forego a property line fence in order to provide adequate sight visibility for backing out of the garage. This would be true for a 10-, 15-, 6- or 5-foot setback from the alley. C. Will the new zoning promote the public health, public safety, and general welfare? Yes. This criterion is met with the amended Table 38.320.040.E. Staff Evaluation: As noted above, the ZTA would allow but not require a minimum reduced rear yard setback of 6-feet for lots that abut an alley in the REMU District and that have a garage or carport that is accessed from the alley. This amendment to Table 38.320.040.E would apply to residential developments of single- household dwellings, townhouse/rowhouse or townhouse/rowhouse cluster developments, two-to- four household dwellings, group living and apartment dwelling types. The reduced setback would allow lot owners to utilize the land area of the lot more fully for the house and garage. The 6-foot minimum depth of a rear setback to a garage or carport, rather than the current 10- or 15-foot setback, would dissuade motorists from parking within the setback, resulting in blocking passage of other travelers along the alleyway, including emergency service vehicles. Thus, the proposed ZTA would tend to promote or advance public health, safety and general welfare as noted in the City’s Community Plan and in Section 38.100.040.E purpose of the UDC. D. Will the new zoning facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements? Yes. This criterion is met. Staff Evaluation: The City conducts extensive planning for municipal transportation, water, sewer, parks, and other facilities and services provided by the City. The adopted plans for these services and facilities allow the City to consider existing conditions and identify enhancements needed to provide additional service needed by new development or new or reuse of a property. The subdivision application process assures that these services would be available and provided to any new development lot within the City, including all REMU lots. The proposed text amendment does not alter any requirements or standards associated with the provision of transportation, water, sewerage, schools, parks, and other public requirements. 271 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 21 of 28 E. Will the new zoning provide for the reasonable provision of adequate light and air to the affected community? Yes. This criterion is met with the ZTA. The reduced rear yard setback for alley-loaded garages or carports would maintain light and air to adjacent lots and along the alleyway. The Applicant has designed their Blackwood Groves Subdivision Block 8 homes with a 6-foot rear yard setback from an attached or detached garage and the ZTA would accommodate that design. F. Will the new zoning have an effect on motorized and non-motorized transportation systems? Yes. This criterion is met. Staff Evaluation: The proposed reduced rear yard setback in REMU Districts for lots that about an alley from the current 10- or 15-feet to 6-feet is expected to induce the development of residential blocks with mid-block alleyways due to the possibility to make more efficient use of the land on individual lots for buildings, rear yards and other personal space within the lot. More neighborhoods with blocks with alleyways would offer pedestrians and cyclists greater choices for travel throughout the neighborhood because alleys induce less traffic than the abutting streets. This would have a marginal effect on motorized transportation systems in REMU neighborhoods to the extent that the change induces developers to provide more blocks with alleys. Blocks with alleys are expected to facilitate safer pedestrian and bicycle travel away from the busier fronting streets. Vehicle access through alleys removes pedestrian/vehicle conflict that can occur where vehicles must cross the sidewalk to access a garage facing the street. With the smaller rear setbacks of this ZTA, developers of land in REMU Districts may perceive it advantageous to build smaller lots that are accessed by alleyways, making more efficient use of residential land. It is noted that neither a 10-foot, 15-foot or a 6-foot setback between a garage and the alley will support a “stacked” parking space in the driveway. A vehicle entering or exiting a garage accessed from a 20-foot wide alley may require several turning movements. This may increase congestion in alleys during peak morning and evening periods when both sides of the alley may have resident motorists engaged in multiple turning movements to get out of (in the AM) or into their garage (in the PM). Other residents along the particular alley learn to “share” the alley during these peak AM and PM periods or seek more flexible hours for their vehicle travels. Parking is required for housing in the REMU District at the same rate as for other residential districts: 1 space for 1 bedroom homes and 2 spaces for 2 or more bedroom homes. To the extent that households have to park more vehicles than can be accommodated in the rear yard garage, there will be increased parking congestion on area streets because parking is not permitted along alleys. However, for blocks with alley access to a garage, there would be more street frontage available for parking spaces. It is anticipated that curb-side/on-street parking in front of one’s lot would create fewer pedestrian/vehicle conflicts than lots with a driveway accessed from the street frontage. 272 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 22 of 28 A 10- or 15-foot deep setback from a garage accessed from an alley could not accommodate “stacked” parking in the driveway but it would likely reduce the turning movements required to get into or out of the alley-fronting garage. The reduced 6-foot rear alley setback may result in a few moments of delay while a motorist maneuvers into an alley garage, but it is not expected to have any additional parking congestion on the alley, street frontage, or any additional pedestrian congestion on the street frontage sidewalk. G. Does the new zoning promote compatible urban growth? Yes. This criterion is met. Staff Evaluation: The REMU District’s intent and purpose seeks to create urban, predominantly residential mixed use neighborhoods with parks, trails and neighborhood-serving non-residential uses therein. In particular, the REMU District seeks to (1) incorporate a wider range of housing types; and (2) provide flexibility in the placement and design of new developments and redevelopment to anticipate changes in the marketplace. As shown in Figures 2 and 3 above, most REMU Districts are located at the edges of the City, rather than in the urban core or downtown. However, within each REMU neighborhood, development provides the density, block and lot configurations, open space, streets and trails connectivity that reflects urban development. All REMU Districts must have an approved Master Plan which positively addresses Community Plan growth policies. All REMU Districts create their own neighborhoods, some of which may be lower density or suburban in character and some of which may be high density and quite urban in character. Combined, the REMU neighborhoods must address the intent and purposes of the District and, in particular, to incorporate a wider range of housing types and to provide flexibility in the placement and design of new developments to anticipate changes in the marketplace. The reduced rear setback to 6-feet for the smaller residential buildings on lots abutting alleys is expected to facilitate these objectives. A reduced rear alley setback for the taller apartment and group housing buildings have the potential for creating a block with greater height and building massing that could be marginally out of scale with other abutting housing types such as single- duplex or four-plex homes. Section 38.700.040, Definitions, of the UDC offers the following definition of “compatible development”. “Compatible development. The use of land and the construction and use of structures which is in harmony with adjoining development, existing neighborhoods, and the goals and objectives of the city's adopted growth policy. Elements of compatible development include, but are not limited to, variety of architectural design; rhythm of architectural elements; scale; intensity; materials; building siting; lot and building size; hours of operation; and integration with existing community systems including water and sewer services, natural elements in the area, motorized and non-motorized transportation, and open spaces and parks. Compatible development does not require uniformity or monotony of architectural or site design, density or use.” 273 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 23 of 28 The ZTA to reduce rear yard setbacks along alleyways furthers the REMU objectives of compact, walkable development and compatible urban growth. H. Does the new zoning address the character of the district and its peculiar suitability for particular uses? Yes. This criterion is met with the ZTA. Staff Evaluation: The “peculiar suitability” of residential or mixed use development in REMU Districts is its principle of providing a mix of housing types in the form of compact development, with mixed uses, and “complete streets” that “accommodate pedestrians, bicycles, buses, automobiles and wintertime snow storage and work in concert with internal property accesses and adjacent development to create a connected and vibrant public realm [UDC 38.330.020.B.1].” Alleys in residential blocks provide mid-block access for pedestrian and bicycle travel through neighborhoods, taking these travelers off the busier streets. Providing alleys in residential blocks provide vehicular access to private garages along the alley, resulting in the street-side façade of homes on the block emphasizing pedestrian-scale entries, porches, landscaping and architectural treatments that individualize each home within the typically smaller lots within the compact development block. A reduced rear yard setback by this ZTA application would facilitate the residential compact development peculiarity sought by the REMU District. Having alleys with a reduced rear yard setback of 6-feet or, even, 5-feet would facilitate development of the smaller lots that are currently desired by housing renters and buyers. These smaller lots with alley access have garages with no driveway “stacked” parking and, with only a 20- or 30-foot wide alley, no parking along the alley, forcing the garage to fully contain the vehicles. I. Is the new zoning adopted with a view to conserving the values of buildings and of encouraging the most appropriate use of land throughout the jurisdictional area? Yes. This criterion is met with the ZTA. The ZTA would address new buildings rather than existing buildings within REMU Districts. New residential lots with alley access may have a premium value over lots without an alley due to the convenience of parking in a garage accessed by the alley and the ability to have a more attractive front façade, entries and landscaping over homes with a garage facing the street (“snout homes”). The reduced rear yard setback would allow a larger building footprint on the lot which would be assessed for property tax marginally higher than a lot meeting the larger setback. The reduced rear yard alley setback for wholly-residential dwellings would facilitate compact development of a variety of types and sizes of housing in REMU Districts, citywide. This would positively address the REMU District principles and objectives. The REMU District is largely found in newly annexed areas of the city’s edges. The City Commission carefully reviews annexation applications and accompanying REMU District proposals to determine the REMU 274 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 24 of 28 District’s suitability for the site, area and the City. The Commission carefully determines that the new District, at that location, would positively address relevant policies of the Community Plan and the intent of the REMU District. Any future zone map amendment will likewise be evaluated for all the state zoning criteria and, if adopted, the change in garage setback will be part of that evaluation. Larger REMU areas are required to have a master site plan to consider the distribution of uses that provides a further and more specific level of site design before any lots are designed and constructed. SECTION 4 - PROTEST NOTICE FOR ZONING AMENDMENTS In the case of written protest against the proposed ZTA, protests signed by the owners of 25% or more of the area of the lots or units within any REMU zoned area or those lots or units within 150 feet from a lot included in REMU District, the amendment shall not become effective except by the favorable vote of two-thirds of the present and voting members of the City Commission. The City will accept written protests from property owners against the proposed text amendment referred to in this notice until the close of the public hearing before the City Commission. Pursuant to 76-2-305, MCA, a protest may only be submitted by the owner(s) of real property within the area affected by the proposal or by owner(s) of real property that lie within city limits affected by the proposal. The protest must be in writing and must be signed by all owners of the real property. In addition, a sufficient protest must: (i) contain a description of the action protested sufficient to identify the action against which the protest is lodged (including the application number, 24055); and (ii) contain a statement of the protestor's qualifications (including listing all owners of the property and the physical address), to protest the action against which the protest is lodged, including ownership of property affected by the action. Signers are encouraged to print their names after their signatures. A person may in writing withdraw a previously filed protest at any time prior to final action by the City Commission. Protests must be delivered to the Bozeman City Clerk, 121 North Rouse Ave., PO Box 1230, Bozeman, MT 59771-1230. APPENDIX A - BACKGROUND AND APPLICANT’S RATIONALE FOR THE ZONE TEXT AMENDMENT Background In 2018, the City revised its Unified Development Code to (1) adapt to changing community needs, (2) streamline review processes, (3) create new zoning districts, (4) implement the North 7th Corridor Plan, (5) further implement the Growth Policy Plan, and (6) generally simplify the UDC. The 2009 Bozeman Community Plan (previous plan) and Bozeman Community Plan 2020 (current plan) both encourage mixed use development patterns. 275 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 25 of 28 In 2011, the City Commission established the new REMU (Residential Emphasis Mixed Use) zoning district to encourage development of residential neighborhoods with neighborhood-serving establishments as described below in the UDC Section 38.300.110.F. REMU objectives relevant to this ZTA application are noted in bold text. “Residential emphasis mixed-use zoning district (REMU). The intent and purpose of the REMU district is to establish areas within Bozeman that are mixed-use in character and to provide options for a variety of housing, employment, retail and neighborhood service opportunities within a new or existing neighborhood. These purposes are accomplished by: 1. Emphasizing residential as the primary use, including single household dwellings, two to four household dwellings, townhouses, and apartments. 2. Providing for a diverse array of neighborhood-scaled commercial and civic uses supporting residential. 3. Emphasizing a vertical and horizontal mix of uses in a compact and walkable neighborhood setting. 4. Promoting neighborhoods that: a. Create self-sustaining neighborhoods that will lay the foundation for healthy lifestyles; b. Support compact, walkable developments that promote balanced transportation options; c. Have residential as the majority use with a range of densities; d. Provide for a diverse array of commercial and civic uses supporting residential; e. Have residential and commercial uses mixed vertically and/or horizontally; f. Locate commercial uses within walking distance; g. Incorporate a wider range of housing types; and h. Encourage developments that exhibit the physical design characteristics of vibrant, urban, and pedestrian-oriented complete streets. 5. Providing standards and guidelines that emphasize a sense of place: a. Support or add to an existing neighborhood context; b. Enhance an existing neighborhood's sense of place and strive to make it more self-sustainable; c. Encourage a new neighborhood commercial center(s) with a unique identity and strong sense of place; d. Develop commercial and mixed-use areas that are safe, comfortable, and attractive to pedestrians; and e. Reinforce the principle of streets as public places that encourage pedestrian and bicycle travel, transit, on-street parking and physical elements of complete streets. 6. Providing standards and guidelines that emphasize natural amenities: a. Preserve and integrate the natural amenities into the development; and 276 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 26 of 28 b. Appropriately balance a hierarchy of both parks and public spaces that are within the neighborhood. 7. Providing standards and guidelines that emphasize the development of centers: a. Group uses of property to create vibrant centers; b. Where appropriate create a center within an existing neighborhood; c. Facilitate proven, market driven projects to ensure both long and short-term financial viability; d. Allow an appropriate blend of complementary mixed land uses including, but not limited to, retail, offices, commercial services, restaurants, bars, hotels, recreation and civic uses, and housing, to create economic and social vitality; e. Foster the master plan development into a mix of feasible, market driven uses; f. Emphasize the need to serve the adjacent, local neighborhood and as well as the greater Bozeman area; and g. Maximize land use efficiency by encouraging shared use parking. 8. Promoting the integration of action: a. Support existing infrastructure that is within and adjacent to REMU zones; b. Encourage thoughtfully developed master planned communities; c. Provide flexibility in the placement and design of new developments and redevelopment to anticipate changes in the marketplace; d. Provide flexibility in phasing to help ensure both long and short term financial viability for the project as a whole; 9. Providing standards and guidelines that promote sustainable design. Use of this zone is appropriate for sites at least five acres in size and areas located adjacent to an existing or planned residential area to help sustain commercial uses within walking distance and a wider range of housing types.” Staff Comment: Since 2011, several REMU Districts have been established, mostly along the outer edges of the city (see Figures 2 and 3 above) where the Community Plan’s Future Land Use Designation Map (FLUM) allows the REMU District to locate (see Figure 4). The REMU District is an implementing zone for the Urban Residential, Residential Mixed Use, and Community Commercial Mixed Use land use categories of the FLUM. As shown on the FLUM, the Neighborhood Residential land use designation is the most abundant category. REMU, as a comparatively new zoning district is generally located along the edges of the city. This amendment would also apply to any future zone map amendments to REMU. The Blackwood Groves REMU-zoned subdivision was established in 2022 and, at that time, was at the southwestern edge of the city. Since then, several more properties have been annexed and designated REMU. Within the Blackwood Groves subdivision, a number of residential blocks are under construction or have been completed and are occupied. The Applicant is currently proposing construction of the first block within the subdivision that has a 20-feet wide mid-block alleyway abutting lots 277 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 27 of 28 ranging in size from 5,000 to 6,200 square feet. These lots are proposed for single-household dwellings with garages accessed from the alley. Applicant’s Rationale for the Zone Text Amendment It is noted that the Applicant has prepared a development proposal for one of the Blackwood Groves REMU residential blocks which feature a 20-foot wide mid-block alley. The 5,000 square foot lots along this block feature attached garages accessed from the alley with only a 6-foot rear yard setback. The Applicant states that the 6-foot rear setback allows a more efficient use of land within each lot. The Applicant offers the following rationale for how this reduced setback would better accommodate the design of homes with garages on small lots [note that UDC Table 38.320.040.E defines small lots as between 2,500 and 4,000 square feet in size]: “Most commercial/mixed use districts specially call out alley setbacks, REMU doesn’t, and this leads to confusion throughout the document and in the diagrams. Our application aims to simplify these areas to eliminate any confusion and conflicts between the diagrams for the REMU District.” “Detached structures are allowed to be 6’ off the alley (if 20’ ROW) but primary structures are required to be a minimum of 15’.” “Our proposal is to implement a 6’ alley setback. This creates uniformity for both detached and attached structures.” “Having wider alleys defeats the true purpose of the alley. When alleys are wider, they tend to encourage both higher rates of speed and more primary traffic. These two conditions dramatically decrease the safety of the alley. Alleys are intended to be back-of-house functions and should warrant lower rates of speed. In order to encourage this behavior alleys, need to be tighter. This is one the reason this condition is allowed currently for detached structures. Our intent is to allow this for primary structures as well. The Draft Proposed UDC aims to remedy this as well. The Draft proposes a 5’ alley setback.” • RE: REMU Section 38.300.110.F.4.b – Support compact, walkable developments that promote balanced transportation options. “6’ alley setback is more conducive for smaller lots thus supporting a more compact development.” • REMU Section 38.330.020.B.1.e – on-street parking should be maximized wherever feasible. “6’ alley setback requires parking in the garage or on-street – not wasting rear yard space for hardscape to store vehicles.” • REMU Section 38.330.020.B.4. Alleys. Alleys are encouraged, but not required, in the REMU District. “Having the 6’ alley setback encourages developments to utilize more alleys as it creates more options for lot development to provide for a variety of housing types.” 278 Alley Rear Yard Setback Reduction in REMU Districts ZTA; Application 24055 Page 28 of 28 The Applicant’s full rationale for this zoning text amendment (ZTA) can be in the application Narrative document viewed here or https://weblink.bozeman.net/WebLink/Browse.aspx?id=287867&dbid=0&repo=BOZEMAN The full application and file of record can be viewed at the Community Development Department at 20 E. Olive Street, Bozeman, MT 59715. APPENDIX B - NOTICING AND PUBLIC COMMENT Notice for text amendments must meet the standards of Bozeman Municipal Code 38.420.080 and 38.550.070 which requires legal notice publication twice in a local newspaper. Notice was published in the Bozeman Daily Chronicle as required and contained all required elements. Notice was provided at least 15 working days before the Zoning Commission public hearing, and not more than 45 working days prior to the City Commission public hearing. Notice was published in the legal notice section of the Bozeman Daily Chronicle on Sunday, April 21, 2024 and Sunday, April 28, 2024. The City exceeded the required notice provision. How to comment: The purpose of the public hearings is to consider the proposed amendment as requested by the applicant, Blackwood Land Group, 115 West Kagy Blvd, Suite L, Bozeman, MT 59715. The City invites the public to comment in writing and to attend the public hearings regarding compliance of this application with the required criteria. Comments should identify the specific criteria of concern along with facts in support of the comment. During the notice period the City will continue review for compliance with applicable regulations. Written comments may be directed to by email to comments@bozeman.net or by mail to the City of Bozeman, Department of Community Development, PO Box 1230, Bozeman, MT 59771-1230. Please reference application 24055 in all correspondence. For those who require accommodations for disabilities, please contact Mike Gray, City of Bozeman ADA Coordinator, 582-3232 (voice), 582-3203 (TDD). APPENDIX C - APPLICANT INFORMATION AND REVIEWING STAFF Applicant: Bridger Land Group, c/o Grant Syth, Applicant Representatives: Tyler Steinway, Intrinsik Architecture Report By: Susana Montana, Senior Planner, Community Development Department FISCAL EFFECTS Fiscal impacts are undetermined at this time but will include increased property tax revenues from assessment of the larger home that can be built on the alley lots due to the reduced rear yard setback. No new costs to deliver municipal services is anticipated because no new housing would result, only a larger building footprint. 279 Memorandum REPORT TO:City Commission FROM:Elizabeth Cramblet, Associate Planner Chris Saunders, Community Development Manager Erin George, Deputy Director of Community Development Anna Bentley, Director of Community Development SUBJECT:Application for Harper's Corner Annexation and Zone Map Amendment, Requesting Annexation of 40.12 Acres Including Adjacent Right-of-Way for Hidden Valley Road and Amendment to the City Zoning Map for the Establishment of Two Zoning Designations of R-3 (Residential Medium Density District) on the Western Parcel Containing 20.06 Acres and R-4 (Residential High Density District) on the Eastern Parcel Containing 20.06 Acres, Application 23127. MEETING DATE:June 18, 2024 AGENDA ITEM TYPE:Community Development - Legislative RECOMMENDATION:Having reviewed and considered the staff report, application materials, public comment, recommendation of the Zoning Commission, and all information presented, I hereby adopt the findings presented in the staff report for application 23127 and move to approve the Harper's Corner Zone Map Amendment with contingencies of approval necessary to complete adoption of an implementing ordinance. 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:The proposed application includes annexing two parcel approximately 40.12 acres in size into the City limits plus adjacent right-of-way and establish two initial zone districts including R-3 (Residential Medium Density District) on the western parcel containing 20.06 acres and R-4 (Residential High Density District) on the eastern parcel containing 20.06 acres. The property is currently zoned Agriculture Suburban (AS) within the county. Zoning north, south, and west of the site is also within the county. Nearby municipal zoning to the north about a quarter mile is REMU, east of the site about a half mile is zoned R-4, and south about a half mile is zoned R-1, R-3, R-4, and R-5. The Future Land Use Map in the Bozeman Community Plan 2020 designates the property as Urban Neighborhood which includes R-3 and R-4 as implementing zoning districts. 280 The application was heard by the Community Development Board on September 11, 2023. The applicant originally requested an initial zone district of R-5 (Residential Mixed-Use High Density District). At the hearing, the Community Development Board, acting in their capacity as the Zoning Commission, voted 5-1 to recommend denial of the requested R-5 zoning to the City Commission. In general, the board members were not in favor of the requested R-5 zone district and felt a lower density district would be more appropriate. In response to public comment and comments from the Community Development Board, the applicant changed the requested initial zone district to R-4 in lieu of R-5. The application was heard by the City Commission on January 23, 2024. The neighbors adjacent to the site submitted enough letters of protest to require a super majority vote by the Commission to approve the requested zone district of R-4. Only the annexation received a majority vote. The City Commission voted 4-1 to approve the annexation. The City Commission voted 3-2 to approve the zone map amendment which failed to meet the super majority needed (4 votes) to approve the zone map amendment. In general, some of the Commissioners that voted for the zone map amendment preferred some tapering of density towards the western edge of the subject site to provide a range of housing types. The remaining two Commissioners had concerns with the existing rural character surrounding most of the subject site and the existing rural road network. The Commission directed the applicant to reach out and talk with the neighbors regarding the proposed R-4 zoning district and return for a final City Commission hearing for the zone map amendment at a later date. In response to public comment and comments from the City Commission, the applicant met with the neighbors on several occasions and has change the requested zone district to R-3 on the western parcel containing 20.06 acres and R-4 on the eastern parcel containing 20.06 acres. The applicant has submitted a revised summary outlining this request which is included with this staff report. UNRESOLVED ISSUES:There are no identified conflicts on this application at this time. ALTERNATIVES:1. Approve the zone map amendment application; 2. Approve the application with modifications to the requested zoning; 3. Deny the zone map amendment application based on findings of non- compliance with the applicable criteria contained within the staff report; or 4. Open and continue the public hearing on the zone map amendment application, with specific direction to staff or the applicant to supply additional information or to address specific items. FISCAL EFFECTS:No unusual fiscal effects have been identified. No presently budged funds will be changed by this Annexation or Zone Map Amendment. 281 Attachments: 23127 Harper's Corner Annx-CC SR.pdf Harper's Corner Summary.pdf Report compiled on: June 4, 2024 282 Page 1 of 27 23127 Staff Report for the Harper’s Corner Annexation and ZMA Public Hearing Dates: Zoning Commission – September 11, 2023 City Commission – January 23, 2024, continued City Commission – June 18, 2024 Project Description: Annexation application 23127 requesting annexation of approximately 40.12 acres and adjacent right of way for Hidden Valley Road and amendment to the City Zoning Map for the establishment of two zoning designations of R-3 (Residential Medium Density District) on the western parcel containing 20.06 acres and R-4 (Residential High Density District) on the eastern parcel containing 20.06 acres, Application 23127. Project Location: East and south of Hidden Valley Road about one quarter mile east of Harper Puckett Road and legally described as Tracts 1 and 2 equaling approximately 40.12 acres on COS No. 408A as the SE ¼ of the SW ¼ of Section 27, Township 1 South, Range 5 East, Principal Meridian, Gallatin County, Montana. Recommendation: Meets standards for approval with terms of annexation and contingencies. Zoning Commission Motion: Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 23127 and move to recommend approval of the Harper’s Corner Zone Map Amendment, with contingencies required to complete the application processing. Recommended City Commission Zoning Motion: Having reviewed and considered the staff report, application materials, public comment, recommendation of the Zoning Commission, and all information presented, I hereby adopt the findings presented in the staff report for application 23127 and move to approve the Harper’s Corner Zone Map Amendment with contingencies of approval necessary to complete adoption of an implementing ordinance. Report: June 4, 2024 Staff Contact: Elizabeth Cramblet, Associate Planner Lance Lehigh, City Engineer Agenda Item Type: Action - Legislative 283 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 2 of 27 EXECUTIVE SUMMARY This report is based on the application materials submitted and public comment received to date. This report addresses the zoning amendment for the City Commission. Application materials available at Harper’s Corner, Application 23127. Unresolved Issues There are no identified conflicts on this application at this time. Project Summary The proposed application includes annexing two parcels approximately 40.12 acres in size into the City limits plus adjacent right-of-way and establish two initial zone districts including R-3 (Residential Medium Density District) on the western parcel containing 20.06 acres and R-4 (Residential High Density District) on the eastern parcel containing 20.06 acres. The property is currently zoned “Agriculture Suburban” (AS) within the county. Zoning north, south, and west of the site is within the county. South of the site is zoned Agriculture Suburban (AS), west of the site is unzoned, and north is zoned Residential Manufactured Home (R-MH). On the eastern side of the project site is an 86-acre vacant parcel that just received final approval to annex into the city with an initial zone district of Residential Emphasis Mixed-Use (REMU). Nearby municipal zoning to the north about a quarter mile is REMU (Turnrow MSP & PP), (Residential Emphasis Mixed-Use). East of the site about a half mile is zoned R-4 (Residential High Density) and south about a half mile is R-1, R-3, R-4 and R-5. The Future Land Use Map in the Bozeman Community Plan (BCP) 2020 designates the property as “Urban Neighborhood” which includes R-3 and R-4 as implementing zoning districts. The property is bordered by Hidden Valley Road to the west and north. The proposed annexation would bring in additional right of way to build out Hidden Valley Road to the City’s collector standard adjacent to the subject property as would be required with future development. Additionally, the project will bring in additional right of way to align and eventually connect with Ca tamount Street (classified as a Minor Arterial in the Bozeman Transportation Master Plan -TMP) that will eventually run along the southern border of the project site and additional right of way to align and eventually connect with Ferguson Avenue (classified as a Collector Street in the TMP) that is approximately one half mile south of the subject site. There is currently an existing single household dwelling with associated outbuildings and a septic system on each parcel. Directly north of the subject site is a mobile home park located in the county. Further north and west of the site are rural residential uses, and vacant land directly south and east of the subject site. The vacant 86-acre acre parcel east of the site received final approval on December 6, 2022 to annex into the city with an initial zone district of REMU (Project Eighty-6, Application 22113) [External Link]. 284 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 3 of 27 In determining whether the criteria applicable to this application are met, Staff considers the entire body of plans and regulations for land development. Standards which prevent or mitigate possible negative impacts are incorporated in many locations in the municipal code but are principally in Chapter 38, Unified Development Code. References in the text of this report to Articles, Divisions, or in the form xx.xxx.xxx are to the Bozeman Municipal Code. Community Development Board (Zoning Commission) Summary This application was heard by the Community Development Board on September 11, 2023. The applicant originally requested an initial zone district of R-5 (Residential Mixed-Use High Density District). At the September 11, 2023, public hearing, the Community Development Board, acting in their capacity as the Zoning Commission, voted 5-1 to recommend denial of the requested R-5 zoning to the City Commission. In general, the five members recommending denial of the zoning request were not in favor of establishing an R-5, Residential Mixed-Use High Density district at this location. One member suggested REMU would be a more appropriate district to allow for some neighborhood commercial with residential uses. Several members suggested a lower density district would be more appropriate at this location given the surrounding rural and agricultural character. Below is a video link to the September 11th Community Development Board meeting. The item begins about one hour, seven minutes into the meeting. Video Link for CDB meeting (External Link) Revisions to Application Materials In response to public comment and comments from the Community Development Board members, the applicant has changed the requested initial zone district to R-4 (Residential High Density) in lieu of R-5 (Residential Mixed Use High Density). An additional notice for this change in the application was published in the Bozeman Daily Chronicle on December 23rd and December 30th, 2023. The notice was posted on site and notices mailed by the applicant as required by 38.220 (External Link) and the required confirmation provided to the Planning Office. Notice was provided at least 15 and not more than 45 days prior to any public hearing. City Commission Summary from January 23rd Hearing The application was heard by the City Commission on January 23rd, 2024. The neighbors adjacent to the site submitted enough letters of protest to require a super majority vote by the Commission to approve the requested zone district of R-4. Only the annexation received a majority vote. The City Commission voted 4-1 to approve the annexation. The City Commission voted 3-2 to approve the zone map amendment which failed to meet the super majority needed (4 votes) to approve the zone map amendment. In general, some of the Commissioners that voted for the zone map amendment preferred some tapering of density towards the western edge of the 285 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 4 of 27 subject site to provide a range of housing types. The remaining two Commissioners had concerns with the existing rural character surrounding most of the subject site and the existing rural road network. In addition, it was noted there was no attempt by the applicant to meet with neighbors adjacent to the site regarding the proposed application. The Commission requested the applicant reach out and talk with the neighbors regarding the proposed R-4 zone district and return for a final City Commission hearing for the zone map amendment for a date to be determined. Below is a video link to the January 23rd City Commission meeting. The item begins about one hour, forty-seven minutes into the meeting. Video Link for City Commission meeting (External Link) Applicant Response to City Commission Request for Neighborhood Outreach In response to public comment and comments from the City Commission, the applicant met with the neighbors at a private home on February 8th, 2024. Following this meeting, the applicant met and talked with neighbors on a number of occasions to discuss the proposed zone district. In response to public comment and comments from the City Commission at the January 23rd hearing, the applicant has changed the requested zone district to R-3 on the western parcel containing 20.06 acres and R-4 on the eastern parcel containing 20.06 acres. The applicant has submitted an additional summary outlining this request which is included with this staff report. An additional notice for the application was published in the Bozeman Daily Chronicle on May 25th and June 1st, 2024. The notice was posted on site and notices mailed by the applicant as required by 38.220 (External Link) and the required confirmation provided to the Planning Office. Notice was provided at least 15 and not more than 45 days prior to the public hearing. Alternatives 1. Approve the zone map amendment application; 2. Approve the application with modifications to the requested zoning; 3. Deny the zone map amendment application based on findings of non-compliance with the applicable criteria contained within the staff report; or 4. Open and continue the public hearing on the zone map amendment application, with specific direction to staff or the applicant to supply additional information or to address specific items. 286 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 5 of 27 TABLE OF CONTENTS EXECUTIVE SUMMARY ................................................................................................ 2 Unresolved Issues ........................................................................................................ 2 Project Summary.......................................................................................................... 2 Community Development Board (Zoning Commission) Summary………………………3 City Commission Summary (from January 23rd) Hearing………………………………...3 Alternatives.................................................................................................................. 4 SECTION 1 - MAP SERIES: ............................................................................................. 6 SECTION 2 - RECOMMENDED CONTENGENCIES OF ZONE MAP AMENDMENT . 11 SECTION 3 - RECOMMENDATION AMD FUTURE ACTIONS ................................... 11 Zone Map Amendment ............................................................................................... 11 SECTION 4 - ZONE MAP AMENDMENT STAFF ANALYSIS AND FINDINGS .......... 12 PROTEST NOTICE FOR ZONING AMENDMENTS ..................................................... 24 APPENDIX A - NOTICING AND PUBLIC COMMENT................................................. 24 APPENDIX B - PROJECT GROWTH POLICY AND PROPOSED ZONING .................. 25 APPENDIX C - OWNER INFORMATION AND REVIEWING STAFF .......................... 27 FISCAL EFFECTS .......................................................................................................... 27 ATTACHMENTS ........................................................................................................... 27 287 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 6 of 27 SECTION 1 - MAP SERIES: Map 1: Project Vicinity Map Hidden Valley Rd Community Commercial Mixed Use Public Institutions E Valley Center Rd Project Site Project Eighty-6 Silo Catamount St Silo E Valley Center Rd Hidden Valley Rd Hidden Valley Rd Project Site Project Eighty-6 Turnrow MSP 288 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 7 of 27 Map 2: BCP 2020 Future Land Use Map Project Site Urban Neighborhood Residential Mixed Use Traditional Core Public Institutions Public Institutions Community Commercial Mixed Use 289 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 8 of 27 Map 3: Existing City Zoning Project Site B-P REMU REMU B-2 B-2 R-1 R-S R-O Catamount St Hidden Valley Rd PLI PLI R-1 R-5 R-4 290 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 9 of 27 Map 4: Existing County Zoning (grey and labeled areas are within city) County Agriculture Suburban City Zoning Project Site City Zoning City Zoning (Turnrow) City Zoning Project Eighty-6 City Zoning Unzoned Catamount St City Zoning Project Eighty-6 City Zoning (Turnrow) 291 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 10 of 27 Map 5: Applicant Proposed Zoning REMU B-2 B-2 R-S R-1 R-1 REMU REMU Hidden Valley Rd Catamount St R-3 R-4 292 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 11 of 27 SECTION 2 - RECOMMENDED CONTINGENCIES OF ZONE MAP AMENDMENT Please note that these contingencies are necessary for the City to complete the process of the proposed amendment. These contingencies only apply in the event that the related annexation request has previously been approved. Recommended Contingencies of Approval: 1. That all documents and exhibits necessary to establish initial municipal zoning designations shall be identified as the Harper’s Corner Zone Map Amendment. All required documents must be returned to the City within 60 days of the City Commission action to annex the property or the preliminary approval shall be null and void . 2. The Ordinance for the Zone Map Amendment shall not be finalized until the Annexation Agreement is signed by the applicant and formally approved by the City Commission. If the annexation is not approved, the Zone Map Amendment application shall be null and void. 3. The applicant must submit a zone amendment map, titled “Harper’s Corner Zone Map Amendment.” The map must be supplied as a PDF. This map must be acceptable to the City Engineer’s Office and must be submitted within 60 days of the action to approve the zone map amendment. Said map shall contain a metes and bounds legal description of each requested zone district (R-3 and R-4) of the perimeter of the subject property including adjacent rights-of-way or street easements, and total acreage of the property to be rezoned; unless the property to be rezoned can be entirely described by reference to existing platted properties or certificates of survey . 4. The Ordinance for the Zone Map Amendment shall not be drafted until the applicant provides an editable metes and bounds legal description prepared by a licensed Montana surveyor. SECTION 3 - RECOMMENDATION AND FUTURE ACTIONS Zone Map Amendment Having considered the criteria established for a zone map amendment, the Staff recommends approval as submitted. The Harper’s Corner Zone Map Amendment (ZMA) is in conjunction with an annexation request. Staff’s recommendation and staff responses are predicated on approval of the annexation, application 23127. The Development Review Committee (DRC) considered the amendment. The DRC did not identify any infrastructure or regulatory constraints that would impede the approval of the application. 293 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 12 of 27 The Community Development Board acting in their capacity as the Zoning Commission held a public hearing on this ZMA on September 11, 2023. A brief summary of their recommendation is on page three of this staff report. The City Commission held a public hearing on the zone map amendment on January 23, 2024. A brief summary of their discussion is on page three of this staff report. The City Commission will hold a second and final public hearing on the zone map amendment on June 18, 2024. The meeting will be held at 121 N. Rouse Avenue, Bozeman. The meeting will begin at 6 p.m. SECTION 4 - ZONE MAP AMENDMENT STAFF ANALYSIS AND FINDINGS In considering applications for plan approval under this title, the advisory boards and City Commission must consider the following criteria (letters A-K). As an amendment is a legislative action, the Commission has broad latitude to determine a policy direction. The burden of proof that the application should be approved lies with the applicant. A zone map amendment must be in accordance with the growth policy (criteria A) and be designed to secure safety from fire and other dangers (criteria B), promote public health, public safety, and general welfare (criteria C), and facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements (criteria D). Therefore, to approve a zone map amendment the Commission must find criteria A-D are met. In addition, the Commission must also consider criteria E-K, and may find the zone map amendment to be positive, neutral, or negative with regards to these criteria. To approve the zone map amendment, the Commission must find the positive outcomes of the amendment outweigh negative outcomes for criteria E-K. In determining whether the criteria are met, Staff considers the entire body of plans and regulations for land development. Standards which prevent or mitigated negative impacts are incorporated throughout the entire municipal code but are principally in Chapter 38, Unified Development Code. For information about how the code as a whole applies examples of specific code sections and the timing of future application is provided as part of the analysis below. Section 76-2-304, MCA (Zoning) Criteria A. Be in accordance with a growth policy. Criterion Met. The Bozeman Community Plan (BCP) 2020, Chapter 5, p. 73, in the section titled Review Criteria for Zoning Amendments and Their Application, discusses how the various criteria in 76-2-304 MCA are applied locally. Application of the criteria varies 294 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 13 of 27 depending on whether an amendment is for the zoning map or for the text of Chapter 38, BMC. The first criterion for a zoning amendment is accordance with a growth policy. Future Land Use Map The proposed amendment is a change to the zoning map. Therefore, it is necessary to analyze compliance with the future land use map. Chapter 3 of the BCP 2020 addresses the future land use map. The introduction to that chapter discusses the importance of the chapter. Following are some excerpts. “Future land use is the community’s fundamental building block. It is an illustration of the City’s desired outcome to accommodate the complex and diverse needs of its residents.” “The land use map sets generalized expectations for what goes where in the community. Each category has its own descriptions. Understanding the future land use map is not possible without understanding the category descriptions.” The area of this application is within the anticipated growth area of the City. As shown on the maps in Section 1, on the excerpt of the current future land use map, the property is designated as Urban Neighborhood. The Urban Neighborhood designation description reads: “This category primarily includes urban density homes in a variety of types, shapes, sizes, and intensities. Large areas of any single type of housing are discouraged. In limited instances, an area may develop at a lower gross density due to site constraints and/or natural features such as floodplains or steep slopes. Complementary uses such as parks, home-based occupations, fire stations, churches, schools, and some neighborhood-serving commerce provide activity centers for community gathering and services. The Urban Neighborhood designation indicates that development is expected to occur within municipal boundaries. This may require annexation prior to development. Applying a zoning district to specific parcels sets the required and allowed density. Higher density residential areas are encouraged to be, but are not required or restricted to, proximity to commercial mixed use areas to facilitate the provision of services and employment opportunities without requiring the use of a car.” The correlation between the future land use map of the growth policy and the zoning districts is presented in Table 4 of the Bozeman Community Plan 2020. As shown in the following Correlation with Zoning Table excerpt, the R-3 and R-4 districts are implementing districts of the Urban Neighborhood category. 295 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 14 of 27 Goals and Policies A zoning amendment is also evaluated against the goals and policies of the BCP 2020. Most of the goals and policies are not applicable to this application. Relevant goals and objectives have been identified by staff. Conflict with the text of the growth policy hasn’t been identified. The Short Term Action list on page 63 of the BCP 2020 describes 14 items to implement the growth policy. The first two relate to direct changes to the zoning map in support of listed goals and objectives. These include increasing the intensity of zoning districts in already developed areas. Beginning on page 71 of the BCP 2020 in the section titled Zoning Amendment Review, the document discusses how the City implements zoning for new areas, amendments to areas, and revisions to existing text. This section includes a discussion of when the City may initiate a zoning change to a more intensive district to increase development opportunities. This section demonstrates that the City, as a matter of policy, is supportive of more intensive zoning districts and development. It is inconsistent with this approach to zone at annexation for lower intensities than what infrastructure and planning documents will support. This policy approach does not specify any individual district but does lean towards the more intensive portion of the zoning district spectrum. N-1.1 Promote housing diversity, including missing middle housing. N-1.3 Revise the zoning map to lessen areas exclusively zon ed for single-type housing. Goal N-3: Promote a diverse supply of quality housing units. The requested R-3 and R-4 districts support all three of the above as it authorizes a wide range of housing types, lot sizes, and services to create a mix of housing, including “Missing Middle” housing as one of the critical components of affordable housing. Goal DCD-1: Support urban development within the City. The proposed zoning is occurring in conjunction with an annexation. Any future development will be required to occur at urban densities and will be within the City. DCD-1.11 Pursue annexations consistent with the future land use map and adopted facility plans for development at urban intensity. The proposed zoning is consistent with the future land use map and is within the current facilities plans. 296 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 15 of 27 Goal RC-3: Collaborate with Gallatin County regarding annexation and development patterns adjacent to the City to provide certainty for landowners and taxpayers. Gallatin County has been notified of the proposed annexation. RC-3.3 Prioritize annexations that enable the incremental expansion of the City and its utilities. The property in question is contiguous to the City limits on the east on over 1,320 lineal feet. It adds approximately 40 acres to the City limits that is available for urban development. B. Secure safety from fire and other dangers. Criterion Met. The existing buildings are constructed of unknown quality, fire, and safety measures. Any removal and replacement must meet the development standards of the City. Fire protection water supply will be provided by the City of Bozeman water system. The property is not within any delineated floodplain nor does it have other known natural hazards. Upon annexation the subject property will be provided with City emergency services including police, fire and ambulance. Future development of the property will be required to conform to all City of Bozeman public safety, building, and land use requirements. The City provides emergency services to adjacent properties and no obstacles have been identified in extending service to this parcel. Municipal Code Section and Title Subject Related Documents When standard is applied 18.02 International Fire code Adopt standards for fire prevention and control Fire/EMS master plan, International Fire Code Site plan and building permit 38.400 Transportation Facilities and Access Streets standards for size and construction Transportation Master Plan Subdivision or site plan review 38.400.010 Streets, general Access for emergency services Transportation Master Plan Subdivision or site plan. 38.410.090 Fire protection requirements Development design Fire/EMS master plan, International Fire Code Subdivision, site plan, and building permit C. Promote public health, public safety, and general welfare. Criterion Met. The proposed zoning designation will promote general welfare by implementing the future land use map and identified policies in the BCP 2020. Public health 297 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 16 of 27 and safety will be positively affected by requiring new development to connect to municipal sanitary sewer and water systems, which will prevent groundwater pollution and depletion by wells and septic systems. As noted in Criterion B, further development and redevelopment must be in accordance with modern building, access, stormwater, pedestrian circulation, ingress and egress to the site, and full connection to the greater transportation network for users ensuring the promotion of public health, safety and general welfare. Municipal Code Section and Title Subject Related Documents When standard is applied 18.02 International Fire code Adopt standards for fire prevention and control Fire/EMS master plan, International Fire Code Site plan and building permit 38.400 Transportation Facilities and Access Streets standards for size and construction Transportation Master Plan Subdivision or site plan review 38.410.070 Municipal water, sewer systems Location and requirement to install. Sewer collection facilities plan, Water facilities plan Subdivision or site plan. 38.410.090 Fire protection requirements Development design Fire/EMS master plan, International Fire Code Subdivision, Site plan, and building permit 38.420 Parks Standards for location, type, and development of parks and trails Park, Recreation, and Active Transportation Plan Subdivision or site plan review 38.5 Project Design Site layouts, landscaping, building configuration, signs, lighting Site plan and building permit D. Facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements. Criterion Met. This property is included in future planning areas for transportation, parks, sewer, and water. The City conducts extensive planning for municipal transportation, water, 298 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 17 of 27 sewer, parks, and other facilities and services provided by the City. The adopted plans allow the City to consider existing conditions and identify enhancements needed to provide additional service needed by new development. The City implements these plans through its capital improvements program that identifies individual projects, project construction scheduling, and financing of construction. As stated in 38.300.020.C, the designation of a zoning district does not guarantee approval of new development until the City verifies the availability of needed infrastructure. All zoning districts in Bozeman enable a wide range of uses and intensities. At time of future subdivision or site plan review the need for individual services can be more precisely determined. No subdivision or site plan is approved without demonstration of adequate capacity. 38.300.020.C, “Placement of any given zoning district on an area depicted on the zoning map indicates a judgment on the part of the city that the range of uses allowed within that district are generally acceptable in that location. It is not a guarantee of approval for any given use prior to the completion of the appropriate review procedure and compliance with all of the applicable requirements and development standards of this chapter and other applicable policies, laws and ordinances. It is also not a guarantee of immediate infrastructure availability or a commitment on the part of the city to bear the cost of extending services.” See also comments under Criterion C. The applicant has been advised that the subject property is located within the Baxter Creek Sewer Drainage Basin, which currently does not have any wastewater infrastructure to service the subject site and that prior to any future development, the applicant is advised all wastewater generated by the development must flow into the Hidden Valley Lift Station, which is currently in the early phases of design and is not yet developed. All future construction must extend services in conjunction with subdivision and site development. Those extensions must meet current standards and will advance this standard. Municipal Code Section and Title Subject Related Documents When standard is applied 18.02 International Fire code Adopt standards for fire prevention and control Fire/EMS master plan, International Fire Code Site plan and building permit 38.400 Transportation Facilities and Access Streets standards for size and construction Transportation Master Plan Subdivision or site plan review 299 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 18 of 27 38.410.060 Easements Location and form of easements for utilities Transportation Master Plan, Sewer collection facilities plan, Water facilities plan Annexation for collector and arterial streets. Subdivision or site plan for all others. 38.410.070 Municipal water, sewer systems Location and requirement to install. Sewer collection facilities plan, Water facilities plan Subdivision or site plan. 38.410.090 Fire protection requirements Development design Fire/EMS master plan, International Fire Code Subdivision, site plan, and building permit 38.420 Parks Standards for location, type, and development of parks and trails Park, Recreation, and Active Transportation Plan Subdivision or site plan E. Reasonable provision of adequate light and air. Criterion Met. The R-3 and R-4 zoning designations have requirements for setbacks, height, and lot coverage in Table 38.320.030A [External Link] of the UDC which address the reasonable provision of adequate light and air. Any future development of the property will be required to conform to City standards for setbacks, height, lot coverage, and buffering. Park dedication will also be required with future development as required by state law (76 -3-621 MCA) and city ordinance (38.420.020 BMC). The criterion is not about personal preferences but about protection of public health and safety. The adopted standards address protection of public health and safety. In addition to the zoning standards, adopted building codes contain more detailed requirements for air circulation, window placement, and building separation that further ensure the intent of this criterion is satisfied. Municipal Code Section and Title Subject Related Documents When standard is applied 38.320 Form and Intensity Standards Standards for building placement and maximum size Subdivision, site plan review, building permit 38.420 Parks Standards for location, type, and Park, Recreation, and Active Transportation Plan Subdivision or site plan review 300 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 19 of 27 development of parks and trails 38.520.060 On-site residential and commercial open space Private land open area requirements Site plan F. The effect on motorized and non-motorized transportation systems. Criterion Met. The proposed zoning will allow for a higher density of uses than is currently allowed under Gallatin County zoning. The Gallatin County zoning now in place is an agricultural protection zone which requires 20 acres per home. The site is presently occupied by a single household dwelling with outhouses on each parcel. Any development under Bozeman R-3 and R-4 zoning will generate more traffic, on foot, bicycle, or vehicle, than the existing single family lot. To meet the adopted standards of 38.400, [External Link] when a development is proposed, it will be responsible for f rontage improvements along Hidden Valley Road as well as Catamount Street and Ferguson Avenue when triggered. Improvements to Hidden Valley Road will allow future residents easy access to I-90 that lies just over a half mile from the subject site. Future development will be required to provide these improvements which will enhance the city’s motorized and non-motorized transportation systems. Local streets will be laid out and constructed as development proceeds. Sidewalks and bike facilities are minimum standards and will be constructed as needed. Easements for all the roads mentioned by name are required as part of the Terms of Annexation. Municipal Code Section and Title Subject Related Documents When standard is applied 38.400 Transportation Facilities and Access Streets standards for size and construction Transportation Master Plan Subdivision or site plan review 38.410.060 Easements Location and form of easements for utilities Transportation Master Plan, Annexation for collector and arterial streets. Subdivision or site plan for all others. 38.420.110 Recreation Pathways Location and requirement to install. Park, Recreation, and Active Transportation Plan Annexation for Class 1 Trails easement. 301 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 20 of 27 Subdivision or site plan for all else. G. Promotion of compatible urban growth. Criterion Met. The intent of the R-3 and R-4 zone districts are to provide for medium and high density residential development through a variety of housing types to serve the varying housing needs of the community’s residents. The subject property is adjacent to low-density residential uses to the southwest and west. There is an undeveloped parcel, within the city limits zoned REMU, and a mobile home park directly north of the site. The R-3 and R-4 districts allow for a wide range of residential uses which allows for consideration of existing development to the north and west. In addition, the proposed zoning is in accordance with the Bozeman Community Plan’s future land use designation of Urban Neighborhood. Use of high density residential is appropriate for areas adjacent to a variety of land uses and can stand along to develop its own neighborhood character, as described in residential intent and purpose statement. Surrounding county zoning and unzoned properties to the north, west and south include low to medium residential density, and vacant land. East of project site is now zoned Residential Emphasis Mixed Use (REMU) that will contain a wide mix of housing types. The site is at the intersection of current and f uture arterial and collector streets which will provide physical separation from adjacent existing development to the west and south. Municipal Code Section and Title Subject Related Documents When standard is applied 38.310 Permitted Uses What can be done where in the city. Growth policy Subdivision, site plan, building permit 38.320 Form and Intensity Standards Standards for building placement and maximum size Subdivision, site plan, building permit 38.320.060 Zone Edge Transitions Height adjustments on the edge of some zones Site plan 38.340 Overlay District Standards Historic preservation SOI Standards for Historic Preservation, Design Guidelines for Historic Preservation Site plan and building permit 302 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 21 of 27 38.5 Project Design Site layouts, landscaping, building configuration, signs, lighting Site plan and building permit H. Character of the district. Criterion Met. Section 76-2-302, MCA says “…legislative body may divide the municipality into districts of the number, shape, and area as are considered best suited to carry out the purposes [promoting health, safety, morals, or the general welfare of the community] of this part.” Emphasis added. This proposal amends the zoning map and not the text. Therefore, no element of this amendment modifies the standards of any zoning district. The character of the districts as created by those standards remains intact. As noted above, the City Commission has latitude in considering the geographical extents of a zoning district. Application of any municipal zoning district to the subject property will alter the existing agricultural character of the subject property. It is not expected that zoning freeze the character of an area in perpetuity. Rather, it provides a structured method to consider changes to the character. The intent and purpose of the R-3 and R-4 districts is available in 38.300.100.E [External Link] and in Appendix B of this report. The City has defined compatible development as: “The use of land and the construction and use of structures which is in harmony with adjoining development, existing neighborhoods, and the goals and objectives of the City's adopted growth policy. Elements of compatible development include, but are not limited to, variety of architectural design; rhythm of architectural elements; scale; intensity; materials; building sitin g; lot and building size; hours of operation; and integration with existing community systems including water and sewer services, natural elements in the area, motorized and non-motorized transportation, and open spaces and parks. Compatible development does not require uniformity or monotony of architectural or site design, density or use.” The City has adopted many standards to identify and avoid or mitigate demonstrable negative impacts of development. These will support the ability of future development in R-3 and R-4 to be compatible with adjacent development and uphold the residential character of the area. As noticed in the growth policy under discussion of this criterion a local street is considered an adequate separation between different uses and districts to minimize impacts, see page 77. 303 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 22 of 27 The existing character of the site is a single household large lot. Any change in zoning will modify the essential character of the property. To the east is a vacant lot recently annexed zoned REMU, which will allow a variety of high density housing. To the west is low density housing in the county and north is a mobile home park. Directly south is a vacant lot within the county. Therefore, there is a diversity of character in the specifics but a general character of residential uses which is consistent with the requested R-3 and R-4 zone districts. The zoning amendment is in conjunction with annexation of the property. Annexation and urban zoning will change the character of the application site. However, the requested zoning is consistent with adjacent urban zoning. The urban zoning will be separated by a public street from the low density, unzoned area to the west. It will not be separated from the mobile home park to the north and vacant lot to the south. It is appropriate to zone the annexing area consistent with the current growth policy and other standards of the City. The amendment does not alter the allowed uses or standards within the adjacent unzoned, low density subdivision or the mobile home park to the north. Municipal Code Section and Title Subject Related Documents When standard is applied 38.310 Permitted Uses What can be done where in the city. Growth policy Subdivision, site plan, building permit 38.320 Form and Intensity Standards Standards for building placement and maximum size Subdivision, site plan, building permit 38.320.060 Zone Edge Transitions Height adjustments on the edge of some zones Site plan 38.340 Overlay District Standards Historic preservation SOI Standards for Historic Preservation, Design Guidelines for Historic Preservation Site plan and building permit 38.5 Project Design Site layouts, landscaping, building configuration, signs, lighting Site plan and building permit 304 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 23 of 27 I. Peculiar suitability for particular uses. Criterion Met. The property is within the City’s planning area for land use and utility extensions. There is frontage on Hidden Valley Road, a collector street. Upon future development, Hidden Valley Road will be constructed to municipal Street Standard adjacent to the property. Municipal utilities and emergency services can be extended to the area. The proposed R-3 and R-4 zone districts are suitable for the property’s location and adjacent uses. Municipal Code Section and Title Subject Related Documents When standard is applied 38.310 Permitted Uses What can be done where in the city. Growth policy Subdivision, site plan review, building permit 38.320 Form and Intensity Standards Standards for building placement and maximum size Subdivision, site plan review, building permit 38.600 Natural Resource Protection Protect watercourses and wetlands FEMA Floodplain study Subdivision, site plan review, building permit J. Conserving the value of buildings. Criterion Met. There is one single family dwelling with associated outbuildings on each of the two subject properties. The amendment is for the zoning map and does not alter allowed uses on adjacent properties. K. Encourage the most appropriate use of land throughout the jurisdictional area. Criterion Met. The proposed R-3 and R-4 zone districts will encourage the most appropriate use of land as the property is near residential uses. Upon future development, there will be access to the city’s services, including streets, thus the site is able to support a higher intensity of uses as allowed within the R-3 and R-4 zone districts. Furthermore, the proposed R-3 and R-4 zone districts are consistent with the BCP 2020 future land use map designation of “Urban Neighborhood”. PROTEST NOTICE FOR ZONING AMENDMENTS IN THE CASE OF WRITTEN PROTEST AGAINST SUCH CHANGES SIGNED BY THE OWNERS OF 25% OR MORE OF THE AREA OF THE LOTS WITHIN THE AMENDMENT AREA OR THOSE LOTS OR UNITS WITHIN 150 FEET FROM A LOT INCLUDED IN A PROPOSED CHANGE, THE AMENDMENT SHALL NOT BECOME EFFECTIVE EXCEPT BY THE FAVORABLE VOTE OF TWO-THIRDS OF THE PRESENT AND VOTING MEMBERS OF THE CITY COMMISSION. 305 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 24 of 27 The City will accept written protests from property owners against the proposal described in this report until the close of the public hearing before the City Commission. Pursuant to 76-2-305, MCA, a protest may only be submitted by the owner(s) of real property within the area affected by the proposal or by owner(s) of real property that lie within 150 feet of an area affected by the proposal. The protest must be in writing and must be signed by all owners of the real property. In addition, a sufficient protest must: (i) contain a description of the action protested sufficient to identify the action against which the protest is lodged; and (ii) contain a statement of the protestor's qualifications (including listing all owners of the property and the physical address), to protest the action against which the protest is lodged, including ownership of property affected by the action. Signers are encouraged to print their names after their signatures. A person may in writing withdraw a previously filed protest at any time prior to final action by the City Commission. Protests must be delivered to the Bozeman City Clerk, 121 North Rouse Ave., PO Box 1230, Bozeman, MT 59771 -1230. APPENDIX A - NOTICING AND PUBLIC COMMENT Notice was originally published in the Bozeman Daily Chronicle on August 26th and September 2nd, 2023. The City Commission approved the annexation application at the January 23rd, 2024 hearing. The Zone Map Amendment was continued to the current June 18th hearing date for a final decision on the amended zone map where the applicant is now requesting initial zone districts of R-3 and R-4. The amended zone map amendment was posted on site and notices mailed by the applicant as required by 38.220 [External Link] and the required confirmation provided to the Planning Office. Notice was provided at least 15 and not more than 45 days prior to any public hearing. The amended zone map application was published in the Bozeman Daily Chronicle on May 25th, and June 1st, 2024. As of the writing of this report on June 4, 2024, written comments have been received on this application. Any received comments will be made available through the City’s Laserfiche system. APPENDIX B - PROJECT GROWTH POLICY AND PROPOSED ZONING Adopted Growth Policy Designation: The property is designated as “Urban Neighborhood” in the Bozeman Community Plan 2020. “This category primarily includes urban density homes in a variety of types, shapes, sizes, and intensities. Large areas of any single type of housing are discouraged. In limited instances, an area may develop at a lower gross density due to site constraints and/or natural features such as floodplains or steep slopes. Complementary uses such as parks, home-based occupations, fire stations, churches, schools, and some neighborhood-serving commerce provide activity centers for community gathering and 306 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 25 of 27 services. The Urban Neighborhood designation indicates that development is expected to occur within municipal boundaries. This may require annexation prior to development. Applying a zoning district to specific parcels sets the required and allowed density. Higher density residential areas are encouraged to be, but are not required or restricted to, proximity to commercial mixed-use areas to facilitate the provision of services and employment opportunities without requiring the use of a car.” Proposed Zoning Designation and Land Uses: The applicant has requested zoning of R-3, Residential Medium Density district whose intent is to: Residential Medium Density District (R-3). The intent of the R-3 residential medium density district is to provide for the development of one- to five-household residential structures near service facilities within the city. This purpose is accomplished by: 1. Providing for minimum lot sizes in developed areas consistent with the established development patterns while providing greater flexibility for clustering lots and mixing housing types in newly developed areas. 2. Providing for a variety of housing types, including single household dwellings, two to four household dwellings, and townhouses to serve the varied needs of households of different size, age and character, while reducing the adverse effect of non-residential uses. Use of this zone is appropriate for areas with good access to parks, community services and/or transit. The applicant has requested zoning of R-4, Residential High Density district whose intent is to: Residential High Density District (R-4). The intent of the R-4 residential high density district is to provide for high-density residential development through a variety of housing types within the city with associated service functions. This purpose is accomplished by: 1. Providing for minimum lot sizes in developed areas consistent with the established development patterns while providing greater flexibility for clustering lots and mixing housing types in newly developed areas. 2. Providing for a variety of compatible housing types, including single and multi- household dwellings to serve the varying needs of the community’s residents. 3. Allowing office use as a secondary use, measured by percentage of total building area. Use of this zone is appropriate for areas adjacent to mixed -use districts, commercial districts, and/or served by transit to accommodate a higher density of residents in close proximity to jobs and services. 307 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 26 of 27 The Zoning Correlation Table on Page 58 of the Bozeman Community Plan 2020 correlates zoning districts with the Growth Policy’s land use categories, demonstrating that the proposed zoning designations of R-3 and R-4 correlate with the Growth Policy’s future land use designation of “Urban Neighborhood”. 308 Staff Report for the Harper’s Corner Annexation and ZMA, Application 23127 Page 27 of 27 APPENDIX C - OWNER INFORMATION AND REVIEWING STAFF Owner/Applicant: Russell Hosner LLC, PO Box 10190, Bozeman MT 59719 Representative: WGM Group, 109 E Main St. Suite B, Bozeman MT 59715 Report By: Elizabeth Cramblet, Associate Planner, Community Development Department FISCAL EFFECTS No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this Annexation or Zone Map Amendment. ATTACHMENTS The full application and file of record was electronically submitted and can be viewed at the Community Development Department. Select ‘Project Documents’ and navigate to application 21442 to view the full application. Digital access is also available at the Community Development Department at 20 E. Olive Street, Bozeman, MT 59715. Application materials direct link: Application 23127, Harper’s Corner 309 EXECUTIVE SUMMARY This project is pursuing annexation into the City of Bozeman (City) along with an initial zoning of R-3 and R-4 for two (2) parcels totaling approximately 40.12 acres. The two parcels are hereinafter referred to as Tract 1 and Tract 2, and collectively as the Subject Property. Tract 1 is proposed to be zoned R-3 and Tract 2 is proposed to be zoned R-4. The Subject Property is located on the east side of Hidden Valley Road and west of Davis Lane. The properties currently lie completely within Gallatin County and are zoned AS (Agricultural Suburban). The legal description is Tracts 1 and 2 of Certificate of Survey 408A, Section 27, Township 1 South, Range 5 East. The addresses are 1196 Hidden Valley Road and 1200 Hidden Valley Road. The City of Bozeman has recently been consulted regarding the availability of service (specifically utility and access) to the Subject Property. Based on these discussions and a recent update of the City of Bozeman wastewater master plan, it is understood that services are available. The Subject Property is located within the newly created sewer drainage basin for the Valley Center Lift Station. Access and water are available from the east. PROJECT OVERVIEW The Owner is requesting a zoning designation of R-3 for Tract 1 and R-4 for Tract 2 (Residential High Density). The Subject Property is adjacent to (on the west side of) a recent annexation of Eighty-6 Development with designated zoning of REMU (Residential Emphasis Mixed-Use). Another recent City annexation of 114.69 acres northeast of the Subject Property (called Turnrow) was completed with designated zoning of REMU (see attached Vicinity Map for more detail). The Subject Property has been designated as Urban Neighborhood within the Future Land Use Map incorporated into the City’s Community Plan. RESPONSES TO ANNEXATION & ZONE MAP CRITERIA The applicant understands that the annexation of property is subject to the goals and policies established by Commission Resolution No. 4400. These goals and policies are outlined and addressed individually below. Annexation and Zone Map exhibits are included with the application for reference. SECTION ONE: ANNEXATION GOALS 1. The City of Bozeman encourages annexations of land contiguous to the City. - The proposed project is contiguous to the City of Bozeman, as the current City limits are on the eastern property line of this parcel. The property to the east is Parcel 3 of COS 3035 (Eighty-6 Development) which is zoned REMU. Narrative & Overview Harper’s Corner Annexation WGM Project Number: 211024 05.22.2024 310 2. The City encourages all areas that are totally surrounded by the City to annex. - The property is not completely surrounded by the City. The City of Bozeman is located to the east of the subject property. 3. The City encourages all properties currently contracting with the City for City services such as water, sanitary sewer, and/or fire protection to annex. - This project will connect to City services including water, sanitary sewer, and fire protection. The existing buildings on the property are serviced by on-site water and sewer. A contract for City services will not be necessary since annexation is proposed. 4. The City of Bozeman requires annexation of all land proposed for development lying within the existing and planned service area of the municipal water and sewer systems as depicted in their respective facility plans, and land proposed for development that proposes to utilize municipal water or sewer systems. - This project will utilize the City’s municipal water and sewer systems. City water and sewer is located east of the property and the intent is to connect to these existing utilities to serve a proposed future development. The property is located within the City’s newly updated Baxter Creek Wastewater Drainage Basin which discharges to a newly planned sewer lift station along Valley Center Road. The Subject Property can discharge sewer to this future lift station via several route options, being Hidden Valley Road or private easement along the east side of the property and through the Turnrow development. The property is also within the City’s 2015 water service plan area. This plan indicates that a new 12-inch water main is planned for future growth and development south and east of the Subject Property. It also indicates that a new eight-inch water main is planned east of the Subject Property. 5. The City encourages annexations within the urban area identified on the future land use map in the current Bozeman Growth Policy. - The Subject Property lies within the urban area identified in the City of Bozeman Growth Policy. The future land use map has designated this property as Urban Neighborhood. This project will be consistent with the City of Bozeman Growth Policy and will be compliant with the Urban Neighborhood land use designation. The adjacent properties are being developed as an urban area and the proposed land use for this development will follow the growth pattern designed by the City. 6. The City of Bozeman encourages annexations to make the City boundaries more regular rather than creating irregular extensions which leave unannexed gaps between annexed areas or islands of annexed or unannexed land. - This project will not create an island of annexed land surrounded by unannexed land. City limits will be extended to the west as a result of the annexation of the Subject Property, which falls within the urban area identified on the future land use map. The extension is not irregular as it aligns roughly with the west end of the City boundary to the south. 311 7. The City of Bozeman encourages annexations which will enhance the existing traffic circulation system or provide for circulation systems that do not exist at the present time. - The future project will facilitate and enhance both east to west, and north to south traffic connectivity and circulation. The site will connect Hidden Valley Road to Davis Lane by ultimately extending Catamount Street to the west, such that traffic has a central point of circulation and will not, instead need to drive to Valley Center Road or Baxter Lane to move east and west. The project will also enhance north south traffic via Ferguson Road which is planned for the east side of the project site. This connection enhances access for the existing residents and opens up connectivity options for future developments in the area. 8. The City prefers annexation of parcels of land larger than five (5) acres in size but will allow annexation of smaller parcels if factors such as topographic limitations, sanitary disposal needs, fire access, maintenance of public facilities, etc., justify a smaller annexation. - The proposed project is larger than five acres in size (40.12 acres). 9. The City seeks to obtain water rights adequate for future development of the property with annexation. - Acknowledged, no water rights currently exist with this property other than a stock water right (number 41H 362-00). 10. The City of Bozeman encourages annexations for City provision of clean treated water and sanitary sewer. - Acknowledged, extension of City sewer to this site will ultimately increase the quality of the groundwater in the area by eliminating the need for septic drainfields and enabling nearby properties on septic drainfields (including the trailer park north of the Subject Property) to connect to City sewer. SECTION TWO: POLICIES 1. Annexations must include dedication of all easements for rights-of-way for collector and arterial streets, adjacent local streets, public water, sanitary sewer, or storm or sewer mains, and Class I public trails not within the right of way for arterial or collector streets. Annexations must also include waivers of right to protest the creation of special or improvement districts necessary to provide the essential services for future development of the City. - The annexation will include dedication of all easements, rights-of-way, and waivers of right to protest the creation of improvements. The applicant will work with the City staff to ensure that all of these items are secured in the annexation agreement prior to the City Commission hearing. The annexation will dedicate the west half of the future Ferguson Road (Collector) extension. The annexation will dedicate the north half of the future Catamount Street (Minor Arterial) extension. The annexation will include dedication of right-of-way for the east half of the Hidden Valley Road (Collector) extension. 312 2. Issues pertaining to master planning and zoning must be addressed prior to or in conjunction with the application for annexation. - Preliminary master planning along with evaluation of availability of utilities and City service has been addressed. The Subject Property will be provided access to the City from the east. Direct (existing) access is also available via Hidden Valley Road. Sewer service will be provided via the future Valley Center Lift Station. Water service will be provided via main extension from the east. The Subject Property tentatively includes a variety of residential housing options and transportation options. The future growth patterns that are envisioned by the City will occur and enhance the compatibility of the surrounding areas. 3. The application for annexation must be in conformance with the current Bozeman Growth Policy. If a Growth Policy Amendment is necessary to accommodate anticipated uses, the amendment process must be initiated by the property owner and completed prior to any action for approval of the application for annexation. - The annexation is in conformance with the current City of Bozeman Growth Policy. Comparable zoning districts within the Urban Neighborhood Designation include R-S, R-1, R-2, R-3. R-4, R-5, R-O, REMU, RMH, B-1, and PLI. These zoning districts allow a range of densities, however since Tract 2 is adjacent to REMU zoning, a mid-range density of R-4 would be appropriate for the subject property. The proposed zoning of R-3 on Tract 1 will provide a lower density buffer to the neighbors to the west. 4. Initial zoning classification of the property to be annexed will be determined by the City Commission, in compliance with the Bozeman Growth Policy and upon a recommendation of the City Zoning Commission, simultaneously with review of the annexation petition. - Acknowledged, the application is requesting an R-3 zoning for Tract 1 and a R-4 zoning for Tract 2. 5. The applicant must indicate their preferred zoning classification as part of the annexation petition. - The preferred zoning for this development is R-3 for Tract 1 and R-4 for Tract 2. These zoning designations will match the City land use/growth policy, are said to be supportable by the adjacent neighboring landowners to the west, and will meet the intended development of the property. 6. Fees for annexation processing will be established by the City Commission. - Acknowledged, the Owner is paying the required annexation fees. 7. It is the policy of the City that annexations will not be approved where unpaved county roads will be the most commonly used route to gain access to the property unless the landowner proposes a method to provide for construction of the road to the City’s street standards. - The proposed development will not be accessed by unpaved County roads. The property will be accessed by Hidden Valley Road (existing paved road) and Catamount Street (proposed paved City road extension). 313 8. Prior to annexation of property, the City will require the property owner to acquire adequate and useable water rights, or an appropriate fee in lieu thereof, in accordance with Section 38.410.130 of the municipal code, as amended. - Acknowledged 9. Infrastructure and emergency services for an area proposed for annexation will be reviewed for the health, safety and welfare of the public and conformance with the City’s adopted facility plans. If the City determines adequate services cannot be provided to ensure public health, safety and welfare, the City may require the property owner to provide a written plan for accommodation of these services, or the City may reject the petition for annexation. Additionally, the parcel to be annexed may only be provided sanitary sewer service via the applicable drainage basin defined in the City Wastewater Collection Facilities Plan. - The applicable drainage basin for sanitary sewer was recently updated and approved by the City Commission. This update created a new basin and planned for a new lift station (the Valley Center Lift Station) located north of the Subject Property. This new basin can accommodate development on this parcel. Sewer service to the lift station can be achieved via multiple different routes, all of which have been discussed in detail with the City Engineering Department, in coordination with the adjacent development to the east (Eighty-6 Development). Water and access can be provided from the east (Davis Lane). Emergency services can also be provided to the Subject Property via existing and future road connectivity. 10. The City may require annexation of any contiguous property for which city services are requested or for which city services are currently being provided. In addition, any person, firm, or corporation receiving water or sewer service outside of the City limits is required as a condition of initiating or continuing such service, to consent to annexation of the property serviced by the City. The City Manager may enter into an agreement with a property owner for connection to the City’s sanitary sewer or water system in an emergency conditioned upon the submittal by the property owner of a petition for annexation and filing of a notice of consent to annexation with the Gallatin County Clerk and Recorder’s Office. The contract for connection to city sewer and/or water must require the property owner to annex or consent to disconnection of the services. Connection for purposes of obtaining City sewer services in an emergency requires, when feasible as determined by the City, the connection to City water services. - Acknowledged 11. The annexation application shall be accompanied by mapping to meet the requirements of the Director of Public Works. Where an area to be annexed can be entirely described by reference to a certificate of survey or subdivision plat on file with the Gallatin County Clerk and Recorder. - The annexation is accompanied by a map showing the legal description and legal limits of the property. This annexation can be entirely described by reference to a certificate of survey. 12. The mapping may be waived by the Director of Public Works. - Acknowledged 314 13. The City will assess system development/impact fees in accordance with Montana law and Chapter 2, Article 6, Division 9, Bozeman Municipal Code. - Acknowledged 14. Public notice requirements: Notice for annexation of property must be coordinated with the required notice for the zone map amendment required with all annexation. The zone map amendment notice must contain the materials required by 38.220.410, BMC. - Applicable public notice will be coordinated with City Planning. 15. Annexation agreements must be executed and returned to the City within 60 days of distribution of the annexation agreement by the City, unless another time is specifically identified by the City Commission. - Acknowledged 16. When possible, the use of Part 46 annexations is preferred. - Acknowledged, a Part 46 annexation is being used. 17. Where a road improvement district has been created, the annexation does not repeal the creation of the district. The City will not assume operations of the district until the entirety of the district has been annexed. Any funds held in trust for the district will be used to benefit the district after transfer to the City. Inclusion within a district does not lessen the obligation to participate in general city programs that address the same subject. - Acknowledged, per the City’s GIS website, there are currently no road improvements districts within the vicinity of the Subject Property. 18. The City will notify the Gallatin County Planning Department and Fire District providing service to the area of applications for annexation. - Acknowledged 19. The City will require connection to and use of all City services upon development of annexed properties. The City may establish a fixed time frame for connection to municipal utilities. Upon development, unless otherwise approved by the City, septic systems must be properly abandoned and the development connected to the City sanitary sewer system. Upon development, unless otherwise approved by the City, water wells on the subject property may be used for irrigation, but any potable uses must be supplied from the City water distribution system and any wells disconnected from structures. The property owner must contact the City Water and Sewer Superintendent to verify disconnects of wells and septic systems. - The landowner acknowledges that upon development, City utilities will be utilized and connected to within a reasonable time frame. Two septic systems are located on the properties which will be properly abandoned upon development. 315 The following are responses to the requirements stated in the Zone Map Amendment Checklist: a. Is the new zoning designed in accordance with the growth policy? How? - Yes, the new zoning proposed with this development is in accordance with the growth policy. The growth policy and future land use map have designated the Subject Property as Urban Neighborhood. Per the growth policy/community plan, the Urban Neighborhood designation includes urban density homes in a variety of types, shapes, sizes, and intensities. Large areas of any single type of housing are discouraged. In limited instances, an area may develop at a lower gross density due to site constraints and/or natural features such as floodplains or steep slopes. Additionally, higher density residential areas are encouraged to be, but are not required or restricted to, proximity to commercial mixed-use areas to facilitate the provision of services and employment opportunities without requiring the use of a car. The requested R-4 zoning district planned for Tract 2 is adjacent to REMU zoning district, and the R-3 zoning district planned for Tract 1 is adjacent to the more rural area of which remains in the county at this time. Properties in the surrounding area are similarly zoned and the City of Bozeman has multiple areas throughout the City designated as R-3 and R-4. The proposed zoning will provide for a variety of housing types and land uses and follows the goal of an urban-scale development with a diverse mixture of possible uses. The R-4 designation can help to absorb a portion of the growth that is projected for the City while the R-3 zoning is a less dense zoning district that could be supported by the neighbors to the west. The Subject Property’s anticipated development pattern is in accordance with many objectives of community planning. This includes promoting mixed-use developments and higher density areas. Several goals of the City of Bozeman Growth Policy/Community Plan can be facilitated through the annexation, zoning, and development of this property including: N-1.2 Increase required minimum densities in residential districts. • Currently the property is zoned A-S, Agriculture Suburban in the County. While the intent of this goal may be that the City increase densities in the residential districts, the City can also facilitate this goal by increasing residential densities as they annex properties. The Urban Neighborhood future land use designation covers almost all the areas within the planning boundary that would be annexed in the future. Comparable zoning districts within the Urban Neighborhood Designation include R-S, R-1, R-2, R-3. R-4, R-5, R-O, REMU, RMH, B-1, and PLI. These zoning districts allow a range of densities, however since the Subject Property is adjacent to REMU zoning, a mid-range density of R-3 and R-4 would be appropriate for the subject property. N-1.11 Enable a gradual and predictable increase in density in developed areas over time. • The REMU (Eighty-6 Development) to R-4 to R-3 to County is a gradual and predictable transition from the City outward. • By allowing the requested R-3 and R-4 zoning, increased density can be provided along planned minor arterial roads (Catamount Street) and collector roads (Hidden Valley Road). These roads connect to the greater Bozeman area via other minor arterial roads and principal arterial roads. While these roads are not built to current 316 city standards, future development will trigger the requirement for improvements. Given this, and the fact that 19th Street is just over a mile from the Subject Property, density as described in the R-3 and R-4 zones is appropriate. Less dense zoning designations may be more appropriate farther from the greater Bozeman area. N-2.2 Revise the zoning map to support higher intensity residential districts near schools, services, and transportation. • As mentioned above, existing and planned roads that this property would utilize for access are considered minor arterials and collector roads. Meadowlark Elementary School is located approximately 2.0 miles from the Subject Property. Chief Joseph Middle School is located approximately 0.7 miles from the Subject Property and the Gallatin High School is approximately 1.7 from the Subject Property. N-3.5 Strongly discourage private covenants that restrict housing diversity or are contrary to City land development policies or climate action plan goals. • The R-3 zone is a less intense zone than R-4. This zone is planned adjacent to the neighbors on Watts Lane. The R-4 zone encourages a mix of housing types, including single family, but at a higher intensity. Private covenants restricting various housing types are not planned with this future development and rather, a mix of housing types will be proposed. DCD-1.11 Pursue annexations consistent with the future land use map and adopted facility plans for development at urban intensity. • The annexation proposed is consistent with the future land use map designation of Urban Neighborhood. The facility plans also intend for future growth and development in this area, and more specifically to this property. The property is located within the City’s newly updated wastewater basin which discharges to a newly planned Valley Center Lift Station. The Subject Property can discharge sewer to this new future lift station via several route options, being Hidden Valley Road or private easement along the east side of the property. The Subject Property is also within the City’s 2015 water service plan area. This plan indicates that a new 12-inch water main is planned for future growth and development south and east of the Subject Property. It also indicates that a new eight-inch water main is planned east of the Subject Property. DCD-2.1 Coordinate infrastructure development, land use development, and other City actions and priorities through community planning. • Infrastructure development is being facilitated through the City and adjacent landowners. The City recently expanded their sewer facilities and via the new Valley Center Lift Station. This expansion will support future development of the Subject Property. Land use development will be proposed after this annexation and zoning are approved. The development will be compliant with the Bozeman codes and regulations. DCD-2.2 Support higher density development along main corridors and at high visibility street corners to accommodate population growth and support businesses. • The proposed zoning will facilitate higher density development along Hidden Valley Road, a minor arterial/collector road, and future development along Catamount Lane, a minor arterial. This density will support the future business development to the east and northeast. 317 DCD-2.6 Evaluate and pursue joint mitigation of development impacts across multiple developments. • Coordination for future infrastructure, including sewer, water, and roads will occur with the development to the east and northeast. RC-3.3 Prioritize annexations that enable the incremental expansion of the City and its utilities. • The future development of the Subject Property will facilitate incremental expansion of the City and its utilities. The benefit of approving this property for annexation is that infrastructure improvements and utility expansion will happen at the cost of the developer, rather than the City. RC-3.4 Encourage annexation of land adjacent to the City prior to development and encourage annexation of wholly surrounded areas. • This request will annex land adjacent to the City prior to the full development proposal coming forward. b. Will the new zoning secure safety from fire and other dangers? How? - Yes, the Subject Property will be served by the City of Bozeman Fire and Police Departments and designed accordingly. Future development of the property will be required to conform to all City of Bozeman public safety, building, and land use requirements. This includes fire protection as required by the City, setbacks as required by the zoning for fire separation, and building code requirements. c. Will the new zoning promote public health, safety and welfare? How? - Yes, as stated in Section 38.100.040.A, the zoning is intended to protect the public health, safety, and general welfare. The zoning proposed will recognize and balance the various rights and responsibilities relating to land ownership, use, and development identified in the United States and State of Montana constitutions, and statutory and common law; it implements the City's adopted growth policy; and meets the requirements of state law. Environmental Protection: This project will help facilitate City sewer and water main extensions, which ultimately will help connect additional properties to City utility service and eliminate on-site septic systems and drainfields in the area. The zoning regulations will also protect natural resources such as the wetlands on site. Land Use Regulations: The zoning regulations will regulate how the land can be used, ensuring that incompatible land uses are separated. For example, in this instance, the proposed zoning will allow comparable uses to adjacent planned and existing uses. Traffic Management: The zoning and annexation process will require dedication of road easements, promoting safer traffic flow and reducing congestion. The development process will require a traffic study which will spur any required traffic improvements. 318 Building Standards: The zoning regulations include building standards such as setback requirements, height restrictions, and parking regulations. These standards will help ensure that buildings are constructed safely and in a way that contributes positively to the overall streetscape and urban environment. Social Equity: The proposed R-4 zoning can be used to promote social equity by encouraging a mixed-income neighborhood and attainable housing developments. By providing a range of housing options, the zoning can help prevent segregation and promote diverse, inclusive communities. d. Will the new zoning facilitate the adequate provisions of transportation, water, sewage, schools, parks and other public requirements? How? - Yes, the development will allow the consideration of existing conditions and identification of enhancements warranted to provide additional services needed by the new development. Section 38.350.030.D requires that whenever any property is annexed that prior to the issuance of any building permits, municipal water distribution, municipal sanitary sewer collection and streets must be provided to the site. Each building site must utilize and be connected to both the municipal water distribution and municipal sanitary sewer collection systems. Installation of improvements is subject to Division 38.270 of the Municipal Code. Park area requirements will be reviewed per Section 38.420 and there are schools within the area to accommodate educational needs. e. Will the new zoning provide reasonable provision of adequate light and air? How? - Yes, City regulations include requirements for lighting in Section 38.570.060. Adequate provisions of air are considered when setback, on-site open space, and building design standards are taken into consideration. f. Will the new zoning have an effect on motorized and non-motorized transportation systems? How? - The development will include provisions for non-motorized transportation routes throughout the Subject Property including pedestrian trails. The new development will add traffic to the existing traffic system and these effects will be evaluated with the future development. Per the City of Bozeman Community Plan/Growth Policy, there is not a requirement for a development to be less impactful than the existing conditions, whether it be text or map amendment that is the focus. The City relies upon its long-range transportation plan to evaluate transportation needs over the long term for motorized vehicles as well as bikes and pedestrians. The park and trail plan also considers options for extending the trail network. Additionally, new development contributes to the creation of additional capacity through dedication of right-of-way, construction or reconstruction of streets, payment of impact fees, and other contributions as may be applicable to a specific project. These requirements may mitigate the impacts of additional development. Development that is more intense requires greater transportation capacity. Therefore, it is good, but not required, to have more intensive districts 319 near arterial and collector roads, just as we have planned. g. Does the new zoning promote compatible urban growth? How? - This development is consistent with City master planning and provides options for high-density residential housing within the R-4 zoning district. The proposed R-3 zoning also provides a transitional zone between the existing REMU designation of the Eighty-6 Development to the east, the existing low-density residential County uses to the west, and the existing trailer court to the north. Similar uses are allowed in the planned zoning districts as to the adjacent zoning districts. Existing zoning regulations, building, and site design standards will lessen impacts to adjacent lands/persons. h. Does the new zoning promote the character of the district? How? - Yes, the character of the district will be maintained with this development. It will integrate with many of the developing areas around the subject property including the existing County property and the newly annexed City land that is adjacent. Additionally, the residential character of the area will be maintained as the predominate use within the R-3 and R-4 zone is residential. i. Does the new zoning address the affected area’s peculiar suitability for particular uses? How? - The proposed land uses with this development match the suitability of the affected area. The property is suitable for residential development associated with this zoning designation. There are no significant constraints related to floodplains, human-wildlife conflict, or steep slopes. Prior to issuance of any permits, the property will undergo a wetlands determination and pursue mitigation if necessary. j. Was the new zoning adopted with a view of conserving the values of buildings? How? - The existing homes on-site are not considered to be historic or of historic value. There is no defined development plans to impact these buildings currently. It is not anticipated that the values of surrounding buildings will be lessened since the predominant land use within the proposed zoning districts is residential. k. How does the new zoning encourage the most appropriate use of land throughout the jurisdictional area? How? - The Bozeman Community Plan shows appropriate uses for this area. Zoning this property as R-3 and R-4 is appropriate when considering existing and planned densities. Overall, the development will create living opportunities for the community and for professionals working in this area of the City. The future development of the property to the east will be supported by the residential development planned for the Subject Property and essentially reinforce the uses of the land. 320 Memorandum REPORT TO:City Commission FROM: Susana Montana, Senior Planner, Development Review Division Brian Krueger, Manager, Development Review Division Erin George, Deputy Director of Community Development Anna Bentley, Director of Community Development SUBJECT: Review and Consider Approval of the Jarrett Major Subdivision Preliminary Plat; Application No. 23072 MEETING DATE:June 18, 2024 AGENDA ITEM TYPE:Community Development - Quasi-Judicial RECOMMENDATION: Approve the Jarrett Major Subdivision Preliminary Plat; Application No. 23072 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: A major subdivision preliminary plat of a 45.83 acre property to create 112 residential lots, 3 undevelopable development lots, street rights-of-way, street public easements, and 1 City park lot. Development of the subdivision would take place in three phases. The undevelopable lots, Lot 1, Block 8, Lot 1, Block 9 and Lot 1, Block 10, totaling 18.332 acres require further subdivision review. The subdivision land was recently rezoned from R-1, Low Density Residential to R-2, Moderate Density Residential to allow the smaller lot sizes (Ordinance No. 2159, Project No. 23047). UNRESOLVED ISSUES:None ALTERNATIVES:None suggested 321 FISCAL EFFECTS: Fiscal effects are undetermined at this time but any development occurring as a result of this subdivision would increase property tax revenue to the City, along with increased costs to deliver municipal services to the property. Attachments: 23072 Jarrett PP CC Staff Report.pdf 002 Pre-Plat SHEET 2 PRELIMINARY PLAT.pdf Report compiled on: April 22, 2024 322 Jarrett Major Subdivision Preliminary Plat, Project No. 23072 Page 1 of 36 23072; City Commission Staff Report for the Jarrett Major Subdivision Preliminary Plat Public Hearing Date(s): Community Development Board, acting in their capacity as the Planning Board, held a public hearing on the Jarrett Major Subdivision Preliminary Plat on June 3, 2024 at 6:00 P.M. in the City Hall Commission Room. The City Commission public hearing on this application 23072 will be held on June 18, 2024 at 6:00 P.M. in the City Hall Commission Room. Electronic access to the meeting may be available as outlined on the published agenda of the meeting. Project Summary: The Jarrett Subdivision application is a 45.83 acre Major Subdivision Preliminary Plat providing 110 residential lots, 2 open space lots, one 7.5 acre City Park, 3 undevelopable/restricted development lots totaling 18.3 acres, street rights-of-way, and street public easements. Legal Description: The property is described as a tract of land being Lot 1 and 2 of the Amended Plat of Lot 1, Block 9, Allison Subdivision Phase 4A (Plat ref. J-702) and the SE ¼ of the NW ¼ of Section 24 of C.O.S. 252 and C.O.S. 792 and Lot 3A of the Amended Plat of Lot 2, Block 7, Allison Subdivision Phase 4A (Plat ref. J-702) and Lot 3 of Amended Plat of Lot 1, Block 9, Allison Subdivision Phase 4A (Plat ref. J=702) and the SE ¼ of the NW ¼ pf Section 24 of C.O.S. 252 and C.O.S. 792 (Plat ref. J-702A) located in the NE ¼ of the SE ¼, SW ¼ and NW ¼ of Section 24, T 2 S, R5 E, P.M.M., City of Bozeman, Gallatin County, Montana. Project Location: The above-referenced property (“Site”) is located south of the Montana State University (MSU), south of Arnold Street, west of S. 11th Avenue, and north of W. Graf Street. Staff Finding: The application conforms to standards and is sufficient for approval with conditions and code provisions. Community Development Board Motion: Having reviewed and considered the application materials, public comment, and all the information presented, I hereby adopt the findings presented in the staff report for application 23072 and move for the Community Development Board, in its capacity as the Planning Board, to recommend approval of the Jarrett Major Subdivision Preliminary Plat with conditions and subject to all applicable code provisions. This Motion passed unanimously, 7 to 0, with the additional recommendation that basements be allowed if sanctioned by a licensed geotechnical engineer as described in Section 1 below on page 3. 323 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 2 of 36 Suggested City Commission Motion: Having reviewed and considered the application materials, staff report, the Community Development Board/Planning Board recommendation, public comment, and all the information presented, I hereby adopt the findings presented in the staff report for application 23072 and move to approve the Jarrett Major Subdivision Preliminary Plat with conditions and subject to all applicable code provisions. Report Date: June 6, 2024 Staff Contact: Susana Montana, Senior Planner Simon Lindley, Project Engineer EXECUTIVE SUMMARY This report is based on the revised application materials submitted and public comment received to date. The application materials are available here and https://weblink.bozeman.net/WebLink/Browse.aspx?startid=274018&cr=1 and in the City’s Laserfiche archive and may be accessed through the Community Development viewer as well. No written public comments have been received as of the writing of this report. Should written public comments be received they will be included in the City’s Laserfiche archive and available to the public. Public comment received at the June 3, 2024 Planning Board meeting is summarized in Appendix B on page 31. The video of the meeting can be reached at the following link: https://bozeman.granicus.com/player/clip/2298?view_id=1&redirect=true Unresolved Issues: None Project Description The Department of Community Development received a Preliminary Plat Application on April 4, 2022, requesting to subdivide 45.83 acres to create 110 residential lots which would primarily be suitable for townhome development, one 7.52 acre park, street easements and rights-of-way and 3 undevelopable lots totaling 18.3 acres for future subdivision and future residential development. The site is former farmland and is zoned R-2. The property will have access from Arnold Street to the north, from W. Graf Street to the south, and from South 11th Avenue to the east. Development of the subdivision would take place in three phases as shown below in Exhibits 7 and 8. 324 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 3 of 36 The subdivision land was recently rezoned from R-1, Low Density Residential to R-2, Moderate Density Residential to allow smaller lot sizes (Ordinance No. 2159, Project No. 23047). The undevelopable/restricted development Lot 1, Block 8, Lot 1, Block 9 and Lot 1, Block 10, totaling 18.332 acres, require further subdivision or, if developed as one lot, a site plan review. On May 15, 2024, the Development Review Committee (DRC) found the application sufficient for continued review and recommends the conditions and code provisions identified in this report. The final decision for this preliminary plat must be made by June 28, 2024. Alternatives 1. Approve with the recommended conditions; 2. Approve with modifications to the recommended conditions; 3. Deny the application based on Commission’s findings of non-compliance with the applicable criteria contained within the staff report; or 4. Continue the public hearing on the application, with specific direction to staff or the subdivider to supply additional information or to address specific items. SECTION 1 –PLANNING BOARD DISCUSSION AND RECOMMENDATIONS The Community Development Board, acting in their capacity as the Planning Board, held a public hearing on this major subdivision preliminary plat on June 3, 2024. During the meeting, Community Development staff Susana Montana provided an overview of the Applicant’s proposal and presented a summary of how the proposal meets applicable MCA and UDC statute criteria for evaluating and approving subdivisions. This evaluation of the statute criteria are detailed below in Section 6 on pages 20 to 29 of this report. There was no written public comment presented prior to the meeting and there were two people providing comment on the proposal at the meeting. Their comments are noted below in Appendix B on page 31. The Applicant made a brief presentation of the elements of the proposed subdivision and answered Board Member’s questions about the project. The Applicant stated that he agreed with staff findings and recommendation for approval except for the language of one Code Provision. Code Provision No. 4 prohibits basements and the Applicant requested that basements be permitted if a geotechnical engineer certifies that they would be safe and suitable. This request and the Board discussion about basements are summarized below. 325 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 4 of 36 Following the staff and Applicant’s presentations and public comment, Board Member Murphy made a Motion and Board Member Egnatz seconded the Motion to begin the Board discussion process. Comments and discussions from Board Members include the following: Townhome design Board Members commented that providing townhomes is an important contribution to the mix of housing types and for housing diversity in the City and for this area. They could provide more affordable housing for “missing middle”-income households than single-household, detached homes. However, the Board commented that it is critically important that the townhome designs within the subdivision be high quality. Townhome design can be dignified and beautiful like the “brownstone” townhomes of New York City. If the design of these rows of attached houses are poor and they are built of poor quality, this subdivision could result in a negative image of townhome developments and may result in poor public acceptance of future townhome development elsewhere in the City. The Board recommended that the subdivision CC&Rs include conditions for high quality design of the townhomes. Basements Board Members support the ability to build basements in the homes within this subdivision. The Applicant noted that Code Provision No. 5 in the CDB staff report prohibits basements in homes due to high groundwater levels within this Site. A Board Member requested that the Board amend the Motion to ask the City Commission to revise the Code Provision language to allow basements on lots provided a licensed geotechnical engineer certifies the basement would be safe from flooding and would not cause discharge of water onto the street and into City storm drains. Board Members shared that they like basements in homes that provide additional space for laundry facilities and storage. Basements can provide additional living space for growing families at a nominal cost. Although Board Members supported basements and the amendment to the Code Provision to allow them when certified they are suitable for a home lot by a licensed geotechnical engineer, Board Members did not feel they were qualified to recommend that change to the Commission without concurrence from the City engineer. The Board asked staff to check with the Project Engineer to see if the Applicant’s proposed amendment to Code Provision would be acceptable. If it is, then the amendment could be included in the staff report to the Commission. If it isn’t, then the Applicant’s request should be brought directly to the Commission for their discussion and decision, with staff bringing the Project Engineer’s rationale for the prohibition of basements in this subdivision to the Commission for their consideration. [Staff Comment: The Project Engineer conferred with the Engineering Division Manager and proposed the following substitute Code Provision No. 4 regarding the provision of basements: 326 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 5 of 36 “BMC 38.220.070.7.b - The Conditions of Approval Sheet shall contain the following, "No crawl spaces or basements will be permitted with future development of the site unless a professional engineer registered in the State of Montana certifies that the lowest point of any proposed structure is located above the seasonal high groundwater level and provides supporting groundwater data prior to release of building permit. In addition, sump pumps are not allowed to be connected to the sanitary sewer system. Sump pumps are also not allowed to be connected to the drainage system unless capacity is designed into the drainage system to accept the pumped water. Water from sump pumps may not be discharged onto streets, such as into the curb and gutters where they may create a safety hazard for pedestrians and vehicles." It is noted that, as described on pages 23 and 24 of the staff evaluation section of this report, the groundwater report showed the groundwater level at a December reading was at 15 feet and in the Spring and early Summer months [April to July] readings found groundwater at 8.5 and 9.5 feet. Due to these high spring groundwater levels, basements are not allowed within buildings within this Site except if, on a case-by-case basis, a licensed geotechnical engineer certifies that the basements will be safe from flooding and would be suitable for the specific lot, as noted in Code Provision No. 4. By this Code Provision, the subdivider and his geotechnical engineer assume all risks from damage to structures and contents due to flooding should it occur. In no case will sump pumps be allowed, nor floodwaters from basements, should it occur, be allowed to be discharged to the sidewalk and street which can cause a slip hazard to travelers and/or can overburden the City’s stormwater capacity in the area. The Applicant, as the subdivider, has accepted the revised Code Provision language. BonTon Park Board Members commented that the proposed parkland at the northwest corner of the Site should be maintained by the City Parks Department rather than the subdivision homeowners’ association (HOA). [Staff Comment: The BonTon Park will be dedicated to, and maintained by, the City.] Trail Connectivity It is important that the subdivision provide multi-modal connectivity to the park for all homes and to parkland and trails throughout the area. The Board looks forward to connectivity to the adjacent Gallagator Trail. There was comment about the one-foot-no-vehicle-access easement along S. 11th Avenue and W. Graf Street as a condition of approval for the subdivision. The 10-foot wide sidewalk along those streets would get the bicycle traffic off the street. The no driveways along S. 11th Avenue would provide more on-street parking for alley-accessed abutting homes. 327 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 6 of 36 Water Conservation It was remarked that this is a large subdivision and should be provided with large areas of plantings, trees for shading, and irrigation. The irrigation system should incorporate water conservation measures. After discussion, the Board voted on the Motion which passed unanimously, 7 to 0. 328 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 7 of 36 TABLE OF CONTENTS EXECUTIVE SUMMARY ............................................................................................................ 2 Unresolved Issues. None ..................................................................................................... 2 Project Description.............................................................................................................. 2 Alternatives ......................................................................................................................... 3 SECTION 1 –PLANNING BOARD DISCUSSIONS……………………………………………2 SECTION 2 – MAP SERIES .......................................................................................................... 8 SECTION 3 – REQUESTED VARIANCES ............................................................................... 17 SECTION 4 – RECOMMENDED CONDITIONS OF APPROVAL .......................................... 17 SECTION 5 – CODE REQUIREMENTS .................................................................................... 17 SECTION 6 – RECOMMENDATION AND FUTURE ACTIONS ............................................ 20 SECTION 7 – STAFF ANALYSIS AND FINDINGS ................................................................ 20 Applicable Subdivision Review Criteria, Section 38.240.150.B, BMC. .......................... 20 Documentation of compliance with adopted standards, Section 38.220.060, BMC ........ 23 APPENDIX A – PROJECT SITE ZONING AND GROWTH POLICY .................................... 31 APPENDIX B – NOTICING AND PUBLIC COMMENT ......................................................... 35 APPENDIX C – OWNER INFORMATION AND REVIEWING STAFF ................................. 36 FISCAL EFFECTS ....................................................................................................................... 36 ATTACHMENT LINKS .............................................................................................................. 36 329 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 8 of 36 SECTION 1 – MAP SERIES Exhibit 1: Location Map 330 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 9 of 36 Exhibit 2 – Zoning Map As of June 4, 2024, the Site will be rezoned R-2. 331 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 10 of 36 Exhibit 3: Community Plan 2020 Future Land Use 332 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 11 of 36 Exhibit 4: “Parent” Allison Subdivision. Jarrett Subdivision within the red lines. 2006 Preliminary Plat 100 acres to be built in 24 phases 312 Dwelling Units at build-out 274 Single-Household lots 7 Multi-Household lots 31 Townhouse lots 333 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 12 of 36 Exhibit 5: Allison Subdivision Context. Jarrett Subdivision shown within the yellow lines. GRAF ST WESTRIDGE DR ARNOLD ST S 3RD AVE S 11TH AVE SECOR AVE S 7TH AVE PARK PL ALDER CREEK DR BROOKDALE DR CONCORD DR HILLCREST DR BROOKDALE DR SUMMERSET DR LEXINGTON DR FIELDSTONE DR WFIELDSTONE DR MADRONA LN ALDER CREEK DR STAUDAHER ST ERWIN AVE CUTTING ST RITTER DR OPPORTUNITY WAY MORROW ST OVER BROOK D R TESLOW DR L AN D OE AVE HENDERSON ST S 11TH AVE Legend Ditch Stream 1 inch equals 503 feet ¯Title Revised: This map was created by the City of BozemanDepartment of Planning and Community DevelopmentIntended for Planning purposes only - some layers may not line up properly. Alder Creek Subdivision Figgins Subdivision Morning Star Elementary School Boylan Farmstead Montana State University Mandeville Creek Subdivision CFT Business Park Westfield Subdivision Allision Subdivision Future Phases 334 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 13 of 36 Exhibit 6: Jarrett Subdivision Area Map Jarrett Subdivision is 45.83 acres, providing 110 residential lots; 2 open space lots; and 1 7.5 acre City Park; and 3 undevelopable/restricted development lots totaling 18.3 acres. 335 Jarrett Major Subdivision Preliminary Plat, Project No. 23072 Page 14 of 36 Exhibit 7 – Jarrett Major Subdivision Preliminary Plat Phases of Development 336 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 15 of 36 Exhibit 8 – Phasing Plan 337 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 16 of 36 Exhibit 9: Park Plan; Phase 1 Improvements noted in red. 338 Jarrett Major Subdivision Preliminary Plat, Project No. 23072 Page 17 of 36 SECTION 2 – REQUESTED VARIANCES The subdivider does not request any subdivision variances with this preliminary plat application. SECTION 3 – RECOMMENDED CONDITIONS OF APPROVAL Please note that these conditions are in addition to any required code provisions identified in this report. These conditions are specific to this project. Recommended Conditions of Approval: 1. The subject property is located within the South 11th Street and Graf Street payback district boundaries. If the subject property did not participate in the original cost of construction of improvements the subject property will be accessed a payback charge prior to final plat approval. Reference documents (https://weblink.bozeman.net/WebLink/ElectronicFile.aspx?dbid=0&docid=179320&) and (https://weblink.bozeman.net/WebLink/ElectronicFile.aspx?dbid=0&docid=181722&). 2. A 1 foot "No Access" strip shall be noted and shown on the final plat application along the South 11th Avenue and West Graf Street frontages for the full length of the development. SECTION 4 – CODE REQUIREMENTS 1. Sec. 38.410.060. - Easements. a. All easements indicated below must be provided on city standard easements templates with an easement exhibit certified by a professional land surveyor licensed in the State of Montana. Drafts must be prepared for review and approval by the city. Signed hard copies of the easements must be submitted to the city prior to final plat approval. b. Agricultural Water Facilities. (1) An agricultural water users easement meeting the requirement of 38.410.060.D.1. must be dedicated with the final plat and notice stating that the easements are subject to the requirements of Section 70-17-112, MCA restricting interference with canal or ditch easements and that irrigation works are subject to Section 85-7-2211 and 85-7-2212, MCA regarding duties and liability, per 38.410.060.D.6 or provide sufficient information pursuant to Sec. 38.410.060.D.5 to allow for the removal of the ditch lateral from the subject property. 38.410.060.D.5 to allow for the removal of the ditch lateral from the subject property. 339 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 18 of 36 The notice must include language to assure the duties are binding upon all successors in interest and remain in effect until such time that the agricultural water user facility is abandoned in accordance with the requirements of Montana Law or alternative requirements are agreed to in writing by all applicable parties. (2) The notice must include language to assure the duties are binding upon all successors in interest and remain in effect until such time that the agricultural water user facility is abandoned in accordance with the requirements of Montana Law or alternative requirements are agreed to in writing by all applicable parties. The easements must be prepared as documents separate from a final plat but may be referenced on a final plat. (3) The easements must be prepared as documents separate from a final plat but may be referenced on a final plat. (4) The developers professional engineer must provide a certification with the final plat, that the water entering and exiting the piped ditches are the same quality and amount of water that entered or exited the facility prior to adjustment. (5) The applicant must provide a permission form from the ditch owner to modify any ditches. (30 foot Storm pipeline access easement, 30 foot water and sewer pipeline access easement). c. The temporary drainage easement just northwest of the intersection of South 11th Avenue and Graf Street must be released prior to final plat using the city standard template. d. Prior to final plat approval, the applicant must provide an easement for the existing stormwater pond #2 located in the Allision Phase 4A Subdivision. The easement is required to provide the Jarrett Subdivision legal access to perform shared maintenance on existing stormwater pond #2 in the Allision Phase 4A Subdivision. e. BMC 38.220.070.7.f - List all easements and recorded document numbers on the Conditions of Approval Sheet of the final plat. 2. BMC 38.400.070 - Street Lighting: The required public streetlight(s) must be included in a Special Improvement Lighting District (SILD), in accordance with the City of Bozeman Lighting and Electrical Specifications, prior to final plat approval. 3. BMC 38.220.020.A - Streambed, Streambank, and/or Wetlands Permits The applicant must contact the Gallatin County Conservation District, Montana Department of Environmental Quality, and U.S. Army Corps of Engineers regarding the 340 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 19 of 36 proposed project and any required permits (i.e., 310, 404, Turbidity exemption, etc..). Any required permits must be obtained by the applicant and provided to the Community Development Department prior to construction and/or final plat approval, whichever is sooner. A permission form from the ditch owner and downstream water user must be provided to modify a ditch. Ditches must follow historical drainage. 4. BMC 38.220.070.A.7.b - The Conditions of Approval Sheet shall contain the following text: "No crawl spaces or basements will be permitted with future development of the site unless a professional engineer registered in the State of Montana certifies that the lowest point of any proposed structure is located above the seasonal high groundwater level and provides supporting groundwater data prior to release of building permit. In addition, sump pumps are not allowed to be connected to the sanitary sewer system. Sump pumps are also not allowed to be connected to the drainage system unless capacity is designed into the drainage system to accept the pumped water. Water from sump pumps may not be discharged onto streets, such as into the curb and gutters where they may create a safety hazard for pedestrians and vehicles." 5. BMC 38.400.040.A.2 - Street names must be reviewed and approved by the County's geographic information systems and City Engineering Department prior to final plat approval. The applicant must submit written approval from both entities with the final plat application. 6. BMC 38.240.450.A - Where improvements are to be installed prior to final plat approval, the final plat subdivision must contain a certificate of completion of public improvements. The certificate must list all completed and accepted improvements. 7. BMC 38.220.070.A.7.b - The Conditions of Approval Sheet shall contain the following, "The maintenance of all stormwater retention facilities outside the public right-of-way is the responsibility of the property owners’ association (POA)." 8. BMC 40.04.700.A.4.h and DSSP II.B.5. Prior to final plat approval, the Allision Phase 4A Subdivision HOA documents must be amended to include a shared maintenance responsibility with the Jarrett Subdivision HOA for existing stormwater pond #2, located adjacent to Arnold Street within the Allision Phase 4A Subdivision. The Jarrett Subdivision HOA documents must also describe the shared maintenance responsibility with the Allision Phase 4A Subdivision HOA for existing stormwater pond #2. 9. BMC 38.400.010.A.1, BMC 38.400.050.A & BMC 38.420.060 Arnold Street must be fully constructed, including drainage and lighting, from South 14th Avenue to South 11th Avenue prior to final plat approval of Phase 1 of the Jarrett Subdivision. 10. BMC 38.420.020.D. Parkland. To ensure coordination when parks are being created by a multiphase development, the entire parkland dedication must be accomplished at the time 341 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 20 of 36 of the initial phase of the development. If necessary, this may be accomplished through the grant of public access easements during later phases. 11. BMC 38.420.070.A. – Linear Parks. If consistent with the growth policy or citywide park plan, and if reviewed and approved by the review authority, linear parks must be dedicated to the City to provide corridors for recreation pathways as defined in section 38.420.110. 12. BMC Sec. 38.410.130 - Water Adequacy. a. Subject to subsections B and C, prior to final approval by the review authority of development occurring under this chapter or chapter 10, the Applicant must offset the entire estimated increase in annual municipal water demand attributable to the development pursuant to subsection D. b. Payment-in-lieu of water rights must be made for the townhouse lots prior to final plat approval. c. Sec. 38.410.130.C.2 - Water Adequacy. Compliance with this section is deferred for the development of Blocks 7, 8 and 9 provided the Applicant records a notice of restriction on future development on these lands in a form acceptable to the review authority with the Gallatin County Clerk and Recorder: Individual lots of a subdivision final plat planned for future multiple-household development. d. A note must be included in the conditions of approval sheet indicating lots that will require future payment of cash-in-lieu of water rights upon future development. SECTION 5 – RECOMMENDATION AND FUTURE ACTIONS On May 15, 2024, the Development Review Committee (DRC) determined the application was sufficient for continued review and recommended approval with conditions. On June 3, 2024, the Planning Board recommended approval of the subdivision preliminary plat with conditions and code provisions. The Board also supports the Applicant’s request to allow basements in homes provided a licensed geotechnical engineer certifies it would be safe and suitable. Code Provision No. 4 reflects both the Applicant’s and the Board’s recommendation. SECTION 6 – STAFF ANALYSIS AND FINDINGS Analysis and resulting recommendations are based on the entirety of the application materials, municipal codes, standards, plans, public comment, and all other materials available during the review period. Collectively this information is the record of the review. The analysis in this report is a summary of the completed review. Applicable Subdivision Review Criteria, Section 38.240.150.B, BMC. In considering applications for subdivision approval under this title, the advisory boards and City Commission shall consider the following: 342 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 21 of 36 1) Compliance with the survey requirements of Part 4 of the Montana Subdivision and Platting Act The preliminary plat was prepared in accordance with the surveying and monumentation requirements of the Montana Subdivision and Platting Act by a Professional Engineer registered in the State of Montana. The final plat must comply with State statute, Administrative Rules of Montana, and the Bozeman Municipal Code. 2) Compliance with the local subdivision regulations provided for in Part 5 of the Montana Subdivision and Platting Act The final plat must comply with the standards identified and referenced in the Bozeman Municipal Code. The subdivider is advised that unmet code provisions, or code provisions not specifically listed as a condition of approval, do not, in any way, create a waiver or other relaxation of the lawful requirements of the Bozeman Municipal Code or State law. Sections 3 and 4 of this report identify conditions and code provisions necessary to meet all municipal standards. The listed code requirements address necessary documentation and compliance with standards. Therefore, upon satisfaction of all conditions and code corrections, the subdivision will comply with the subdivision regulations. 3) Compliance with the local subdivision review procedures provided for in Part 6 of the Montana Subdivision and Platting Act Based on the recommendation of the Development Review Committee (DRC), the Planning Board, and other applicable review agencies, as well as any public testimony received on the matter, the City Commission will make the final decision on the conditional approval of the Preliminary Plat. The subdivider requested review of this subdivision under the terms of 76-3-623/MCA as authorized in 38.240.100, seeking expedited review in 35 working days after the application is deemed complete (sufficiency). The Department of Community Development received a preliminary plat application on April 4, 2023. The DRC reviewed the preliminary plat application and determined the submittal did not contain detailed, supporting information that was sufficient to allow for the continued review of the proposed subdivision. In fact, the lot sizes are not permitted in the underlying R-1 zoning district. Subsequently, the Applicant applied for a rezoning of the property to an R-2 designation for the residential lots and to PLI designation for the Block 10 parkland Lot 2A, Project 23047. On April 23, 2024, the rezoning Ordinance No. 2159 was provisionally approved by the City Commission, and on May 7, 2024 the Commission granted final adoption of the rezoning and it became effective on June 7, 2024. Therefore, this subdivision will be in compliance with the R-2 zoning with regard to lot size and densities on June 7, 2024. A revised subdivision application was received on September 1, 2023, November 28, 2023, January 20, 2024, March 20, 2024 and May 15, 2024. The DRC determined the application was 343 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 22 of 36 adequate for continued review on May 15, 2024 and recommended conditions of approval and code corrections for the staff report. Public Notice. The Applicant posted public notice on the subject property on May 10, 2024 and on that date sent the public notice to landowners of record within 200-feet of the subject property via first class mail. No written public comment had been received on this application as of the writing of this report. Two persons commented on the proposal at the June 3, 2024, Planning Board Meeting and their comments are noted in Appendix B of this report, page 31. On June 6, 2024, this major subdivision staff report was completed and forwarded with a DRC and Planning Board recommendation of conditional approval for consideration to the City Commission. 4) Compliance with Chapter 38, BMC and other relevant regulations The DRC reviewed all of the preliminary plat submittals against all applicable regulations of the Bozeman Municipal Code (BMC) and the application complies with the BMC and all other relevant regulations with the conditions and code corrections noted in Sections 3 and 4. This report includes Conditions of Approval and required code provisions as recommended by the DRC for consideration by the City Commission to complete the application processing for final plat approval. All municipal water and sewer facilities will conform to the regulations outlined by the Montana Department of Environmental Quality and the requirements of the Design Standards and Specifications Policy and the City of Bozeman Modifications to Montana Public Works Standard Specifications. 5) The provision of easements to and within the subdivision for the location and installation of any necessary utilities The final plat will provide and depict all necessary utilities and required utility easements as noted in Code Requirement No.1 which requires all easements, existing and proposed, to be accurately depicted and addressed on the final plat and in the final plat application. Public utilities are located within dedicated street right of ways. 6) The provision of legal and physical access to each parcel within the subdivision and the notation of that access on the applicable plat and any instrument transferring the parcel The final plat will provide legal and physical access to each lot within the subdivision. All of the proposed lots will have frontage on public streets constructed to City standards with lot frontage meeting minimum standards shown on the preliminary plat. However, access to lots fronting on South 11th Avenue and West Graf Street will have a 1-foot no access easement noted and shown on the final plat. This is to ensure that driveway access to those alley-loaded lots is provided from the alley and not from the South 11th Avenue or W. Graf Street frontages which are designated as 344 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 23 of 36 collector streets. The existing bike lane on S. 11th Avenue within the street right-of-way (ROW) will be provided by a ten-foot-wide sidewalk along both of those frontages. On-street parking will be permitted on South 11th Avenue with the Applicant removing the bike lane and restriping the street to allow for on-street parking adjacent to the residential lots (see Condition of Approval No. 2). 38.220.060. Documentation of compliance with adopted standards The DRC completed a subdivision pre-application plan review on November 9, 2022 and no variances were requested at that time. The DRC is recommending conditional approval of the current, revised application with the conditions and code provisions noted above in Sections 3 and 4. Staff offers the following summary comments on the documents required with Article 38.220.060, BMC, Compliance with Adopted Standards. 38.220.060.A.1 – Surface water. There is one unnamed irrigation ditch lateral that flows through the subject property. This lateral starts from the Alder Creek Subdivision to the south and flows northward underneath W. Graf St. It then flows north by northwest across the subject property (“Site”) to the existing ditch located in the planned alignment of Arnold St north of the Site. In meeting with the owner of water rights in the area, the Middle Creek Ditch Company, it was stated that water has not flown through this lateral for a few years. The downstream water users obtain their water via another ditch to the west, offsite of the subject property. There are no wetlands on this Site. 38.220.060.A.2 – Floodplains. The Site is located within the FEMA Panel 30031C0818E. The majority of the Site lies within Zone X, which is the designation used for areas where there minimal flood hazards. 38.220.060.A.3 – Groundwater. Groundwater monitoring wells were drilled on site in December of 2022 to monitor the groundwater throughout the 2023 high-water season. In December of 2022 the groundwater depth across the Site was approximately 13.5 feet. According to the Project’s November 2023 Stormwater Report, “Groundwater monitoring was conducted during the highwater season in 2023 [April through July]. Nine monitoring wells were observed, and the depths of the groundwater were recorded. The shallowest groundwater measurement was 8.1ft from the surface at well #7, which is the well nearest the irrigation lateral ditch on the west side of the subject property. Most of the wells were dry at roughly 9.5 ft deep throughout the highwater season with some recording groundwater intermittently between 8.5 ft and 9.5 ft.”. Due to these high spring groundwater levels, basements are not allowed within buildings within this Site except if, on a case-by-case basis, a licensed geotechnical engineer certifies that the basements will be safe from flooding and would be suitable for the specific lot, as noted in Code 345 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 24 of 36 Provision No. 4. By this Code Provision, the subdivider and his geotechnical engineer assume all risks from damage to structures and contents due to flooding should it occur. In no case will sump pumps be allowed, nor floodwaters from basements, should it occur, be allowed to be discharged to the sidewalk and street which can cause a slip hazard to travelers and/or can overburden the City’s stormwater capacity in the area. 38.220.060.A.4 - Geology, Soils and Slopes. a. Geologic hazards. There are no known geologic hazards, areas of instability, or unusual soil, topographic or geologic conditions present on site. The site topography slopes at a 1.5% in a northeasterly direction. b. Protective measures. As aforementioned, there are no known geologic hazards, areas of instability, or unusual soil, topographic or geologic conditions present on site. Therefore, no additional protective measures are proposed to prevent, or material lessen the danger of future property damage or injury due to any of the hazards. c. Unusual features. There are no unusual features on site. There are no unusual soils, topographic or geologic conditions on the property, which will limit the capability for building or excavation using ordinary reasonable construction techniques. There is no known presence of the following on site: shallow bedrock, high water table, unstable or expansive soil conditions, and slope. The site topography slopes at a 1.5% in a northeasterly direction. d. Soils map. The NRCS soils map overlaid with the subdivision shows that the majority of the Allison Subdivision Phase IV contains 350B soils. e. Cuts and fills. Proposed road and lot grades will not exceed 3-percent and slope work will not exceed a 4:1 horizontal to vertical ratio. Cuts/fills required during construction will be minor and will be less than three feet deep. A Storm Water Pollution Prevention Plan (SWPPP) will be required to be approved before any construction begins. The SWPPP will contain Best Management Practices (BMPs) that will be required to be implemented during construction that will manage sediment and minimize erosion during construction. The SWPPP will also require revegetation. 38.220.060.A.5 – Vegetation. The current site is an undeveloped tract historically used for agriculture. Native vegetation is mainly reed grass, tufted hairgrass, prairie cordgrass, sedges and shrubs. The Site is a stubble field and there are no steep areas, unstable slopes, or vegetation on soils highly susceptible to wind or water erosion 38.220.060.A.6 – Wildlife. The Department of Fish, Wildlife & Parks (FWP) has evaluated the site and does not have any fish and wildlife concerns at this time. It is noted that a small herd of “neighborhood” wild but “habituated” deer are frequently observed feeding upon the Site and area throughout the year. 346 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 25 of 36 During construction a stormwater pollution prevention plan (SWPPP) will be required to be issued and implemented to prevent unclean stormwater runoff during construction to enter the waterway. Because this area has historically been used for agriculture, it has not been a vital habitat for wild animals. All land included in streets, avenues, alleys, and public parks will be donated to the City of Bozeman for public use and enjoyment. The subdivision does not interfere with public access to any existing public areas. The Covenants, Conditions and Restrictions (CC&R) document provides for the maintenance of streets, open space lots and the Park lot by the Homeowners’ Association (HOA) as does the Certificate of Dedication signature block on Sheet 1 of the Preliminary Plat which will be carried forward to the final plat. a. Species. Describe species of fish and wildlife which use the area affected by the proposed subdivision. The area has historically been used as agricultural land and therefore is not a significant habitat for wildlife. The occasional deer and birds have been spotted on site. b. Critical areas. Identify on a plat overlay or sketch map of the proposed subdivision any known critical, significant or "key" wildlife areas, such as big game winter range, waterfowl nesting areas, habitat for rare or endangered species or wetlands. As aforementioned, the land has historically been used as agricultural land and is currently a stubble field. No known critical, significant, or “key” wildlife areas are known to exist on site. Therefore, no plat overlay is included here because there are no such wildlife areas on site. c. Pets/human activity. Describe the expected effects of pets and human activity on wildlife. The subdivision will be subject to the City of Bozeman animal control laws that require licensing of pets and leashes on dogs. d. Public access. Describe the effects on public access to public lands, trails, hunting or fishing areas. This site has no public access to public lands or hunting and fishing areas. e. Protective measures. Describe any proposed measures to protect or enhance wildlife habitat or to minimize degradation (e.g., keeping building and streets back from shorelines, setting aside marshland as undeveloped open space). As aforementioned, no significant wildlife areas exist on site. Montana Fish, Wildlife & Parks states that they do not have any fish and wildlife concerns. 38.220.060.A.7 – Agriculture. a. Number of acres in production and type of production. The majority of the property is, and has been, in hay production (approximately 20 acres). b. Agricultural operations in the vicinity, and other uses of land in the general vicinity. 347 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 26 of 36 The surrounding area to the north, east, and south is residential development. The area to the west has been used for hay production in past years. c. The productivity of the land. The land has been productive for hay production. According to the NRCS Soils Map, the majority of the site consists of Blackmore silt loam, which is considered prime for farmland. d. Whether or not the property is part of a viable farm unit, and whether the property was under production during the last regular season. The property is not part of a viable farm unit. The property has been leased for agricultural development, but the owners plan to develop it for residential use now and into the future. The site is surrounded on two sides with residential development. e. What measures will be taken, if any, to control family pets. All pets will be required to be constrained to home lots, or if on shared open space animals must be kept on a leash per the City of Bozeman requirements. The covenants and restrictions address controlling family pets. f. Fencing of agricultural land. No known fence lines around the subdivision boundary exist that protect agricultural lands under an ownership other than that of the developer. 38.220.060.A.8 - Agricultural Water User Facilities. The Site is and was previously used for the production of hay. Other land in the vicinity is used for production of hay and for residential and commercial purposes. An existing irrigation lateral ditch starts from the Alder Creek Subdivision to the south and flows northward through the Site. This lateral starts on the southside of the subject property and extends north by northwest across the west boundary then west on the adjacent property. Peg Easton, who is the president of the Middle Creek Ditch Company and owns the water shares to the ditch lateral, was first contacted via email on 07/25/23 with questions pertaining to the ditch. A notice was sent out on 10/24/23 showing the Applicant’s intent to reroute the ditch on the subject property. Ms. Easton is the lateral ditch person approving the realignment of the north end of this ditch to go around the proposed Jarrett Subdivision parkland area and back into the existing ditch on the north side of the park Block 10, Lot 2A. This new alignment is generally consistent with the existing flow and will not impact any downstream users. The north ditch is currently located in the planned alignment of Arnold St which is being designed by Stahly Engineering. All impacted ditches still in use will be piped to allow for continued conveyance of water rights to downstream users. The alignments of the piped ditches will be generally consistent with the 348 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 27 of 36 existing flow line of the ditch. If any realignment is determined to be necessary, it will comply with all relevant requirements of State law. 38.220.060.A.9 - Water and Sewer. New water and sewer infrastructure will be installed on site to serve the development’s residents. The sewer and water mains will provide service to the residents of Jarrett Subdivision and are designed to tie into and supply future phases. The sewer mains will connect to the existing City of Bozeman system in Arnold Street and S. 11th Avenue. The water mains will be looped and connect to the existing City of Bozeman system in Arnold Street, South 11th Avenue, and Graf Street. a. Water rights. Sec. 38.410.130 - Water Adequacy. Subject to subsections B and C, prior to final approval by the review authority of development occurring under this chapter or chapter 10, the Applicant must offset the entire estimated increase in annual municipal water demand attributable to the development, pursuant to subsection D. Per Code Requirement No. 12, payment-in-lieu of water rights must be made for the lots prior to final plat approval. Per Code Requirement No. 12, cash-in-lieu of water rights (CILWR) are proposed to be paid prior to final plat approval. However, compliance with subsection C.2 is deferred for the Blocks 7, 8 and 9 until the occurrence of future development, provided the Applicant records a notice of restriction on future development in a form acceptable to the review authority with the Gallatin County Clerk and Recorder: Individual lots of a subdivision final plat planned for future multiple- household development. Per Code Provision 12.d, a note must be included in the conditions of approval sheet indicating the Blocks and Lots which will require future payment of cash-in-lieu of water rights upon future development. 38.220.060.A.10 - Stormwater Management. The Site is currently undeveloped. Stormwater management within the subdivision will be accomplished with the combination of surface/gutter flow, pipe conveyance, and detention facilities. Monolithic curb and gutters and valley gutters will be utilized to transfer stormwater to the drain inlets, which will be connected to the closed conveyance piping collection system. The collection system will be designed to convey the 25- year storm event. The location of the curb inlets and piping will be dependent on the final roadway and grading design. The stormwater basins and flow control structures will control and meter the discharge of the increased flow to the 10-year pre-development flows and will help remove solids, silt, oils grease and other pollutants from the stormwater. Stormwater Detention Ponds The detention pond on the corner of Arnold Street and Bon Ton Avenue in Allison Subdivision Phase IV was designed with this subdivision in mind. In general, the runoff from this subdivision 349 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 28 of 36 will drain northeast into the curb inlets on site and be piped across S. 11th Ave to the pond in Allision Subdivision Phase 4A. The stormwater management system was designed and sized per the City of Bozeman Design Standards. Each pond is sized to accommodate more than the required volume, has 4:1 minimum side slope and is 1.5 ft deep maximum with 6" depth of freeboard. The runoff coefficients (C) were determined from Table I-1 of the City of Bozeman Design Standards. Although the property will be both medium and high density residential, the runoff coefficient for high density residential was used for the entire subdivision to be conservative during the early design stage. Detention pond volume calculations are provided in this section. The proposed detention facilities will be maintained by subdivision’s Homeowners Association as noted in the CC&R document as noted in Code Requirement No. 8. Maintenance activities will include periodic inspection, mowing of grasses in the basin and adjacent areas, weed control, removal of trash, and maintenance of the basin flow control structure and outlet piping to ensure the system functions properly. 38.220.060.A.11 - Streets, Roads and Alleys The Site is located within the South 11th Street and Graf Street Payback District boundaries. Per Condition of Approval No. 1, if the subject property did not participate in the original cost of construction of improvements the subject property will be assessed, and must pay, a payback charge prior to final plat approval. Per Condition of Approval No. 2, a 1 foot "No Access" strip shall be placed along the South 11th Avenue and West Graf Street frontages for the full length of the development in order to keep curb cuts and turning movements into driveways off those collector roadways. All lots will meet the minimum lot size and street frontage. Access will be provided to the Subdivision from S 11th Ave, Graf St, and Arnold St. Arnold St will be extended from the existing S 11th Ave at the roundabout to the west. Local streets will extend off these existing roads and loop through the subdivision. S 11th Ave is a collector on the 2017 Bozeman Transportation Plan and Arnold is a hybrid local street with a 70’ ROW, parking and bike lanes. Except Arnold St, all new streets will be constructed as local roadways and will meet at the applicable standards. An alley is proposed in the subdivision to separate the lots in Block 1 and Block 6. The proposed alley is 30’ wide, with a 20’ wide asphaltic concrete drive and 5’ wide shoulders on each side. Attached are typical roadway sections. All construction activities in the area will be required to have adequate dust control and erosion control practices based on City and MDEQ standards. Temporary erosion control will also be provided at the dead ends of streets between phases of construction. All interior local roads will be constructed by the developer and maintained through construction. Upon acceptance of road 350 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 29 of 36 improvements, these roads will be maintained by the City of Bozeman. A Traffic Impact Study was prepared for the subdivision and recommends mitigation measures for the subdivision, some of which have been completed such as installing a traffic signal at S 11th Ave. and Kagy Boulevard and constructing S.11th Ave. and W. Graf St. to two-lane urban collector standards. The City of Bozeman has requested that S. 11th Ave be restriped to replace the existing bike lane with street parking and add a left turn lane into the proposed subdivision. The existing 10’ shared use sidewalk along S. 11th Ave will be used for cyclists. A similar 10’ shared use sidewalk will be provided along the W. Graf Street frontage. Street closures and/or traffic control will be used during the restriping of S. 11th Ave. 38.220.060.A.12 – Non-Municipal Utilities. Northwestern Energy has been notified that electricity and natural gas service will need to be provided to the subdivision and has confirmed that they can provide service, as seen in the attached letter. It has been requested from Northwestern to work concurrently and in cooperation with other utilities and services, including telephone, internet, and cable TV providers to provide for their respective infrastructure in joint utility trenches. Gas, electricity, and information utilities will be phased and will be installed after completion of roads but prior to construction of dwellings. All utilities will be located underground and per the City of Bozeman Standards. 38.220.060.A.13 - Land Use. The Site is currently being used for agriculture—the growing of hay. The property was recently (June 7, 2024) rezoned from R-1, Residential Low-Density District to both R-2, Residential Moderate-density and PLI, Public Lands and Institutions Districts. The developer wishes to subdivide the 45.83 acre Site into 110 residential lots, 3 unbuildable/restricted development lots, 2 open space lots, one 7.521 acre park lot and streets and rights-of-way. The R-2 zoning allows Single-Household, Two-Household and Townhouse/Rowhouse residential dwellings within the subdivision. Most of the 3,000 square foot lots within this subdivision will be built with townhomes. The larger 5 to 7,000 sf lots may be built with single-household, detached homes. The 3 restricted lots will need further subdivision into smaller lots or, if to be developed as one lot, would need site plan review and approval. 38.220.060.A.14 - Parks and Recreation Facilities The 7.521 acre Block 10, Lot 2A has a 6.75-acre “Public Park Easement” that will be used as a park to serve this subdivision as well as future phases of the Allison Subdivision. This public park easement will be called the BonTon Park. A Park Master Plan is included in this application. The maintenance of the park, including weed control, garbage collection, snow removal, leaf removal, and irrigation maintenance will be managed by the City. A detailed park plan will show 351 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 30 of 36 neighborhood amenities such as an elevated viewing platform, a grill, picnic tables, benches, and doggie stations on the trail; these improvements will be paid for by the subdivider. Because the BonTon Master Park Plan is also being used to satisfy parkland requirements in the adjacent Allison Subdivision, the BonTon Master Park Plan must include linear park parcels, compliant with section 38.420.110, to accommodate the Gallagator Trail Connections at the far east of Allison Subdivision as noted in Code Provision Numbers 10 and 11. The master park plan must be revised to include this information: Future development of Allison Subdivision will require the inclusion and construction of the Gallagator Trail through the property. Calculations for improvements-in-lieu value may need to be adjusted based on inclusion of the Gallagator. Please note that parkland credit provided to future phases of Allison Subdivision by Jarrett Subdivision and its associated park master plan, do not preclude the requirement for future phases of Allison Subdivision to include and construct the Gallagator Trail corridor. The Gallagator Trail is considered a joint Transportation/Recreation facility and as a Transportation Facility and major anchor route, and per Sec. 38.220.040.A.14.(a).(13)., will be required to be constructed when future phases of Allison Subdivision propose development, regardless of parkland credits provided by Jarrett Subdivision and associated park master plan. Parks will need a legal agreement with the property owner adjacent to the Gallagator Trail to ensure a proper easement width will be acquired when that section of Allison Subdivision develops. The requirement for the Gallagator Trial easement is in addition to any parkland dedicated with Jarrett Subdivision. The availability of parkland credits at the time of future Allison Subdivision development does not release the requirement for future phases of Allison Subdivision to provide the required trail easement for the Gallagator Trail. Parks will provide the proposed legal agreement. 38.220.060.A.15 - Neighborhood Center Plan The proposed parkland on Block 10 will serve as the Jarrett Subdivision neighborhood center. 38.220.060.A.16 - Lighting Plan. A Lighting Plan for Jarrett Subdivision conducted by Royal Engineering is provided in this submittal. 38.220.060.A.17 – Miscellaneous. There are no public lands within 200’ of the proposed subdivision. There are no known potential hazards such as mining activity, potential subsidence, high pressure gas lines, dilapidated structures, or high voltage power lines located within the proposed subdivision. The Site is not located in the wildlands-urban interface per the Gallatin County Wildlife Urban Interface Areas and Fire District map. 352 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 31 of 36 38.220.060.A.18 - Affordable Housing. There are no subsidized housing units proposed for this development nor are there any BMC affordable housing incentives proposed to be used. 38.220.060.A.19 – Adopted Growth Policy: See Appendix A below. APPENDIX A – PROJECT SITE ZONING AND GROWTH POLICY Zoning Designation and Land Uses: The subject property was recently rezoned from R-1 to R-2, Residential Moderate Density District. The intent of the R-2 residential moderate density district is to provide for the development of one- to two-household or townhome residential structures at urban densities within the City. Urban densities are not specifically defined in the UDC but in 38.300.100, the intent and purpose of all residential and mixed use zones urge this compact development. The Community Plan policies also urge urban densities, compact development and inf-fill development where municipal services are already accessible. Adopted Growth Policy Designation: The subject property is designated “Urban Neighborhood” on the City’s Future Land Use Map. Table 4 of the Bozeman Community Plan 2020 shows the correlation between the Urban Neighborhood future land use map designation and implementing zoning districts. (See below for the Table). The subject property is designated as Urban Neighborhood on the Future Land Use Map (FLUM). This category primarily includes urban density homes in a variety of types, shapes, sizes, and intensities. Large areas of any single type of housing are discouraged. In limited instances, an area may develop at a lower gross density due to site constraints and/or natural features such as floodplains or steep slopes. Complementary uses such as parks, home-based occupations, fire stations, churches, schools, and some neighborhood-serving commerce provide activity centers for community gathering and services. The Urban Neighborhood designation indicates that development is expected to occur within municipal boundaries. This may require annexation prior to development. The FLUM allows the low-density R-1 Districts as well as the moderate-density R-2 Districts. This proposed subdivision would provide one hundred and ten (110) 3,000 to 5,500 square foot (sf) sized lots for townhomes. The Site is flat without habitat encumbrances such as wetlands or floodplains. There is an agricultural irrigation ditch on the Site that will be removed and piped to 353 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 32 of 36 allow for continued conveyance of water rights to downstream users. The alignments of the piped ditches will be generally consistent with the existing flow line of the ditch. If any realignment is determined to be necessary, it will comply with all relevant requirements of State law. As such, the presence of the irrigation ditch will not impair an urban scale and density of the Site. The R-2 zoning only allows single-household, duplex or townhome/rowhouse development on the Site which is similar to adjacent built subdivisions but dissimilar to the more urban apartment complex developments currently under construction in the area. The Urban Neighborhood growth policy encourages development to be walkable, which is defined in the glossary as: Walkable. A walkable area has: • A center, whether it’s a main street or a public space. • People: Enough people for businesses to flourish and for public transit to run frequently. • Parks and public space: Functional and pleasant public places to gather and play. • Pedestrian design: Buildings are close to the street; parking lots are relegated to the back. • Schools and workplaces: Close enough that walking to and from home to these destinations is realistic. • Complete streets: Streets designed for bicyclists, pedestrians, and transit. The Site has a Block Frontage designation of “Landscape” which facilitates homes with entrances facing the street . Block 1 of Phase I and Block 6 of Phase II of the subdivision features lots with alley access. This would facilitate the development of garages facing the alley which decreases the number of curb cuts and driveways facing the street resulting in safer and more convenient pedestrian and bicycle travel on the street. It also facilitates the “pedestrian design” of each of the street-facing townhouses providing a porch, entry door and windows to make an attractive streetscape and a human scale, walkable neighborhood. The subdivision provides a 6.75 acre park at the northwest corner of the Site. This will be designed and built to serve as the neighborhood center for this subdivision. The park will also be designed to connect with open space and parkland on adjacent lands to the north when that land is developed from farmland to housing. The site is surrounded by urban-scale apartment complexes planned or under construction. The residential neighborhoods to the north are interspersed with pockets of personal service commercial establishments. Around 900 new dwelling units are under construction in the vicinity; most at urban densities in R-4, residential high density and REMU, residential emphasis mixed use zoning districts. Transit. Although the closest bus stop lies about one and a half miles north of the Site at College and S. 13th Avenue. It is anticipated that the Streamline bus service will respond to this new 354 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 33 of 36 population and potential transit demand within the next few years. Therefore, it is not surprising that, at this time, the Site has a walk score of zero for transit. All trips are dependent upon a vehicle or a bicycle. The Site is deemed by the private Walk Score algorithm to be somewhat bikeable (outside of snow months). The City conducts extensive planning for municipal transportation, water, sewer, parks, and other facilities and services provided by the City. The adopted plans allow the City to consider existing conditions and identify enhancements needed to provide additional service needed by new development. The City implements these plans through its capital improvements program that identifies individual projects, project construction scheduling, and financing of construction. The subject properties are within the City’s land use, transportation, parks, and utility planning areas. The 2025 to 2049 Capital Improvement Plan shows transportation system expansion projects on Kagy Blvd and Stucky Road that will improve all mode transportation system capacity in the area. Development consistent with City standards will improve connectivity of sidewalks to adjacent residential and commercial districts. About a half-mile north of the Site along S. 11th Avenue is a Deli and Market and another half-mile north along S. 11th is a Town and Country grocery store with some other local shops and restaurants on S. 11th Avenue and College Avenue. All of which are generally walkable and bikeable. There are many college students walking and biking about in the area. Any future development of the property will be required to conform to City standards for setbacks, height, lot coverage, and buffering. The City’s transportation plan is used to evaluate transportation needs over the long term throughout the City and will evaluate impacts of motorized vehicles along with bikes and pedestrians. The parks and trail plans also examine and specify options for extensions of the existing trail network through this site. Development review of individual lots within the subdivision will ensure that development under the new R-2 zoning will comply with the City’s standards for the provision of onsite parking, circulation and open space. The Homeowners Association (HOA) for the subdivision will maintain the two open space lots, landscaping and stormwater manage facilities. The City will maintain the new BonTon Park after the subdivider constructs the park and amenities. Eventually, there will be public streets fronting the park on all sides. Relevant Community Plan Growth Policies Addressed by this Subdivision THEME 2 | A CITY OF UNIQUE NEIGHBORHOODS Our City desires to be diverse, healthy, and inclusive, defined by our vibrant neighborhoods, quality housing, walkability, excellent schools, numerous parks and trails, and thriving areas of commerce. Goal N-1: Support well-planned, walkable neighborhoods. 355 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 34 of 36 N-1.2 Increase required minimum densities in residential districts. Staff Comment: The R-2 zone offers slightly higher densities than the R-1 zone in that a duplex housing type is permitted with minimum lot sizes of 2,500 sf. Townhomes and row houses are permitted in the R-2 zone with minimum densities of 3,000 sf of lot area per attached dwelling. N-1.5 Encourage neighborhood focal point development with functions, activities, and facilities that can be sustained over time. Maintain standards for placement of community focal points and services within new development. N-1.9 Ensure multimodal connections between adjacent developments N-1.10 Increase connectivity between parks and neighborhoods through continued trail and sidewalk development. Prioritize closing gaps within the network. N-4.4 Ensure an adequate supply of off leash facilities to meet the demand of Bozeman dog owners. Staff Comment: The BonTon Park will serve as the neighborhood center for this subdivision as shown above in Exhibit 9 and below in Exhibit 10. The multi-modal connections to adjacent developments are shown in Exhibit 10. The east-west connection to the mixed use development to the west and to S. 19the Avenue will be provided in later phases when Lot 1/Block 7, one of the restricted lots, is developed. Exhibit 10: BonTon Park connection to the future Gallagator Trail Linear Park Staff Comment: The Parks and Recreation Department accepts the subdivision Master Park Plan and views the BonTon Park as part of a community park consisting of this BonTon Park and the South University District public park located on the north side of Arnold Street. However, the BonTon Park does not offer dog off lease facilities. 356 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 35 of 36 N-3.7 Support compact neighborhoods, small lot sizes, and small floor plans, especially through mechanisms such as density bonuses. N-3.8 Promote the development of "Missing Middle" housing (side by side or stacked duplex, triplex, live-work, cottage housing, group living, rowhouses/townhouses, etc.) as one of the most critical components of affordable housing. Staff Comment: The R-2 zoning would allow development of duplex and rowhouse/townhouse style housing. The 3,000+ square foot townhouse lots bordering the alley in Block 1 of Phase I and Block 6 of Phase II of the subdivision are intended to offer lower per-unit costs and intended to accommodate smaller and, therefore, lower cost housing. This may be affordable “by design” for missing middle type housing. APPENDIX B – NOTICING AND PUBLIC COMMENT Notice was provided by the Applicant by posting on the property and by first class mail to landowners of adjacent properties at least 15 and not more than 45 days prior to the close of the public comment period/the June 18, 2024 City Commission public hearing per BMC 38.220.420. The Applicant posted public notice on the Site on May 10, 2024 and mailed by first class mail on that same date to landowners of record within 200-feet of the Site. As of the date of this report, no written or phone call comments have been received. However, at the Planning Board meeting of June 3, 2024, two people commented on the project. Their comments are noted below. Allison Sweeney: • Is pleased to see this application that would provide townhomes. Townhomes provides a mix of housing types for the City and for this area. • Loves her basement and supports basements at this subdivision. • Recommends that residential buildings incorporate eaves in the roofline; this moves water away from basements. Kim Green: • Supports development of townhomes and advises that it would be suitable housing for University students in the area. • The proposed Park should be maintained by the City Parks Department and not the subdivision HOA. HOAs are often cash-strapped and may not maintain the park properly. • Supports a shared use trail along the perimeter of the subdivision which links all the parks in the area to the homes. 357 City Commission Jarrett Major Subdivision Preliminary Plat Staff Report; 23072 Page 36 of 36 If you are interested in commenting in writing on this application, please send email to comments@bozeman.net or visit the Public Comment Page prior to 12.00 P>M> on the day of the Commission meeting. Public comments are also accepted in person and through web conferencing. If you have a disability that requires assistance, please contact our Acting ADA Coordinator, Max Ziegler, at 406-582-2439 (TDD 406-582-2301). Commission meetings are televised live on cable channel 190 and streamed live on our Meeting Videos Page here or at https://www.bozeman.net/departments/city-commission/meeting-videos APPENDIX C – OWNER INFORMATION AND REVIEWING STAFF Owner: Bon Ton Inc, Eugene Graf, President and Yvonne G. Jarrett Applicant: Madison Engineering Representative: Chris Budeski Report By: Susana Montana, Senior Planner FISCAL EFFECTS No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this subdivision. ATTACHMENT LINKS The application materials are available here and https://weblink.bozeman.net/WebLink/Browse.aspx?startid=274018&cr=1 and in the City’s Laserfiche archive and may be accessed through the Community Development viewer as well. 358 359 Memorandum REPORT TO:City Commission FROM:Tom Rogers, Senior Planner Chris Saunders, Community Development Manager Erin George, Deputy Director of Community Development Anna Bentley, Director of Community Development SUBJECT:1920 West Babcock Zone Map Amendment Requesting an Amendment to the City Zoning Map from R-O (Residential Office) to B-2M (Community Commercial Mixed-Use) on 0.249 Acres Plus the Adjacent Right-of-Way. The Property is Addressed as 1920 West Babcock Street and located on the Southeast Corner of West Babcock Street and South 20th Avenue; Application 24024 MEETING DATE:June 18, 2024 AGENDA ITEM TYPE:Community Development - Legislative RECOMMENDATION:Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 24024 and move to recommend approval of the 1920 West Babcock Zone Map Amendment, with contingencies required to complete the application processing. 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:The owner, Maloney Holdings, LLC, 101 South Main Street, Suite 301, Sioux Falls, SD 57104, submitted application to rezone a property totaling 0.249 acres, plus adjacent right-of-way, from R-O to B-2M. The property is currently vacant after the recent tear down of the previous building on the property. No future development plans were submitted with the application. However, the property owners previously submitted a concept review for a proposed 5-unit residential building (Concept 23-209). The applicant owns the three adjacent properties zoned R-O. The property is not within the NCOD, a historic district, or a city recognized neighborhood. The underlying Future Land Use designation is Community Commercial Mixed-Use. Both the existing R-O and proposed B-2M zoning are implementing districts of the Community Commercial Mixed-Use classification. The properties directly to the south are in the Urban Neighborhood designation. See Map Series in Section 1 below. 360 West Babcock Street is a designated Collector and South 20th Avenue is a local street according to the Bozeman Transportation Master Plan, 2017 Update. As illustrated in the map series below, the site is adjacent to a fully built street network. Community Development Board (Zoning Commission) Summary: The Zoning Commission held a public hearing on June 3, 2024. One member of the public commented on the application. The Commission discussed the tension between the desires of the growth policy while acknowledging and respecting the existing neighborhoods. For example, it was noted that when the Baxter Hotel was constructed it’s possible the community felt it was not in context. However, as time has passed the size and bulk of the building is a part of the fabric of the city. Further, there appeared to be consensus that the size of the parcel limits the ability to fulfill the desired intensity of the B-2M on a commercial corridor that, in some scenarios, may be inconsistent with the goals and polices of the growth policy. However, the was further discussion that the context of the site, existing development in the area, and respect of adjacent properties that indicates likely development on the site will be less than permitted in the zone and be more appropriate for the neighborhood. In conclusion, the Zoning Commission voted (7:0) to recommend approval of the zone change request. No written comment has been received as of the production of this report. A video recording of the Zoning Commission review can be viewed at the following web link [External Web Link]. The agenda item begins at time stamp 1:26:30. Board questions for the applicant and discussion begins at 2:02:30. UNRESOLVED ISSUES:There are no identified conflicts on this application. ALTERNATIVES:1. Approve the application with contingencies as presented; 2. Approve the application with modifications to the recommended zoning; 3. Deny the application based on findings of non-compliance with the applicable criteria contained within the staff report; or 4. Open and continue the public hearing, with specific direction to staff or the applicant to supply additional information or to address specific items. FISCAL EFFECTS:No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this Zone Map Amendment. 361 Attachments: 24024 1920 W Babcock ZMA CC SR.pdf Report compiled on: June 4, 2024 362 Page 1 of 31 24024, Staff Report for the 1920 West Babcock Zone Map Amendment Public Hearing Date(s): Community Development Board acting in their capacity as the Zoning Commission will hold a public hearing on June 3, 2024, at 6:00 pm. City Commission meeting is on June 18, 2024, at 6:00 pm. Project Description: The 1920 West Babcock zone map amendment requests amendment of the City Zoning Map on 0.249 acres (10,843 square feet) plus the adjacent right- of way from R-O (Residential Office) to B-2M (Community Business District- Mixed). Project Location: The property is addressed as 1920 West Babcock Street and more thoroughly described as Lot 10, Block 1, Kirk Subdivision (Plat F-1), located in the Southeast One-Quarter (SE ¼) of Section 11 Township Two South (T2S), Range Five East (R5E) of P.M.M., Gallatin County, Montana. Recommendation: Meets standards for approval Community Development Board Motion: Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 24024 and move to recommend approval of the 1920 West Babcock Zone Map Amendment, with contingencies required to complete the application processing. Recommended City Commission Motion: Having reviewed and considered the staff report, application materials, public comment, recommendation of the Zoning Commission, and all information presented, I hereby adopt the findings presented in the staff report for application 24024 and move to approve the 1920 West Babcock Zone Map Amendment, with contingencies required to complete the application processing. Report Date: June 4, 2024 Staff Contact: Tom Rogers, Senior Planner Agenda Item Type: Action – Legislative EXECUTIVE SUMMARY Unresolved Issues None identified at this time. 363 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 2 of 31 Project Summary The owner, Maloney Holdings, LLC, 101 South Main Street, Suite 301, Sioux Falls, SD 57104, submitted application to rezone a property totaling 0.249 acres, plus adjacent right-of-way, from R-O to B-2M. The property is currently vacant after the recent tear down of the previous building on the property. No future development plans were submitted with the application. However, the property owners previously submitted a concept review for a proposed 5-unit residential building (Concept 23-209). The applicant owns the three adjacent properties zoned R-O. The property is not within the NCOD, a historic district, or a city recognized neighborhood. The underlying Future Land Use designation is Community Commercial Mixed-Use. Both the existing R-O and proposed B-2M zoning are implementing districts of the Community Commercial Mixed-Use classification. The properties directly to the south are in the Urban Neighborhood designation. See Map Series in Section 1 below. West Babcock Street is a designated Collector and South 20th Avenue is a local street according to the Bozeman Transportation Master Plan, 2017 Update. As illustrated in the map series below, the site is adjacent to a fully built street network. Application materials can be viewed on the City’s development map at the following link. https://weblink.bozeman.net/WebLink/Browse.aspx?startid=262088&cr=1 Community Development Board (Zoning Commission) Summary The Zoning Commission held a public hearing on June 3, 2024. One member of the public commented on the application. The Commission discussed the tension between the desires of the growth policy while acknowledging and respecting the existing neighborhoods. For example, it was noted that when the Baxter Hotel was constructed it’s possible the community felt it was not in context. However, as time has passed the size and bulk of the building is a part of the fabric of the city. Further, there appeared to be consensus that the size of the parcel limits the ability to fulfill the desired intensity of the B-2M on a commercial corridor that, in some scenarios, may be inconsistent with the goals and polices of the growth policy. However, the was further discussion that the context of the site, existing development in the area, and respect of adjacent properties that indicates likely development on the site will be less than permitted in the zone and be more appropriate for the neighborhood. In conclusion, the Zoning Commission voted (7:0) to recommend approval of the zone change request. 364 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 3 of 31 No written comment has been received as of the production of this report. A video recording of the Zoning Commission review can be viewed at the following web link. The agenda item begins at time stamp 1:26:30. Board questions for the applicant and discussion begins at 2:02:30. https://bozeman.granicus.com/player/clip/2298?view_id=1&redirect=true Alternatives 1. Approve the application with contingencies as presented; 2. Approve the application with modifications to the recommended zoning; 3. Deny the application based on findings of non-compliance with the applicable criteria contained within the staff report; or 4. Open and continue the public hearing, with specific direction to staff or the applicant to supply additional information or to address specific items. 365 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 4 of 31 TABLE OF CONTENTS EXECUTIVE SUMMARY ...................................................................................................... 1 Unresolved Issues ............................................................................................................... 1 Project Summary ................................................................................................................. 2 Community Development Board (Zoning Commission) Summary ................................... 2 Alternatives ......................................................................................................................... 3 SECTION 1 - MAP SERIES .................................................................................................... 5 SECTION 2 - RECOMMENDED CONTINGENCIES OF ZONE MAP AMENDMENT..... 8 SECTION 3 - RECOMMENDATION AND FUTURE ACTIONS ........................................ 8 SECTION 4 - ZONE MAP AMENDMENT STAFF ANALYSIS AND FINDINGS ............. 9 Section 76-2-304, MCA (Zoning) Criteria ......................................................................... 9 PROTEST NOTICE FOR ZONING AMENDMENTS ......................................................... 27 APPENDIX A - DETAILED PROJECT DESCRIPTION AND BACKGROUND .............. 27 APPENDIX B - NOTICING AND PUBLIC COMMENT .................................................... 28 APPENDIX C - PROJECT GROWTH POLICY AND PROPOSED ZONING ................... 28 APPENDIX D - OWNER INFORMATION AND REVIEWING STAFF............................ 30 FISCAL EFFECTS ................................................................................................................. 31 ATTACHMENTS ................................................................................................................... 31 366 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 5 of 31 SECTION 1 - MAP SERIES Figure 1: Location Map 367 Page 6 of 31 Figure 2: Future Land Use Designations Community Commercial Mixed Use Urban Neighborhood 368 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 7 of 31 Figure 3: Current Zoning Map B-2 B-2M Subject property B-2M R-0 R-3 R-3 369 Page 8 of 31 SECTION 2 - RECOMMENDED CONTINGENCIES OF ZONE MAP AMENDMENT Please note that these contingencies are necessary for the City to complete the process of the proposed amendment. Should the application not be approved these contingencies are not required. Recommended Contingencies of Approval: 1. That all documents and exhibits necessary to establish the amended municipal zoning designation of B-2M shall be identified as the “1920 West Babcock Zone Map Amendment”. 2. The applicant must submit a zone amendment map, titled “1920 West Babcock Zone Map Amendment”, acceptable to the Director of Public Works, as a PDF which will be utilized in the preparation of the Ordinance to officially amend the City of Bozeman Zoning Map. Said map shall contain a metes and bounds legal description of the perimeter of the subject property including adjacent rights-of-way, and total acreage of the property. 3. The Ordinance for the Zone Map Amendment shall not be drafted until the applicant provides an editable metes and bounds legal description prepared by a licensed Montana surveyor. SECTION 3 - RECOMMENDATION AND FUTURE ACTIONS Having considered the criteria established for a zone map amendment, the Staff found the application meets standards for approval as submitted. The Development Review Committee (DRC) considered the amendment. The DRC did not identify any infrastructure or regulatory constraints that would impede the approval of the application. The Community Development Board acting in their capacity as the Zoning Commission will hold a public hearing on this zone map amendment on June 3, 2024, and will forward a recommendation to the City Commission on the zone map amendment. The meeting will begin at 6 p.m. in the Commission Room at City Hall, 121 N. Rouse Ave, Bozeman, Montana. The City Commission will hold a public meeting on the zone map amendment on June 18, 2024. The meeting will begin at 6 p.m. in the Commission Room at City Hall, 121 N. Rouse Ave, Bozeman, Montana, the City Commission will conduct a public hearing on the proposed Zone Map Amendment application. 370 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 9 of 31 SECTION 4 - ZONE MAP AMENDMENT STAFF ANALYSIS AND FINDINGS In considering applications for plan approval under this title, the advisory boards and City Commission must consider the following criteria (letters A-K). As an amendment is a legislative action, the Commission has broad latitude to determine a policy direction. The burden of proof that the application should be approved lies with the applicant. A zone map amendment must be in accordance with the growth policy (criteria A) and be designed to secure safety from fire and other dangers (criteria B), promote public health, public safety, and general welfare (criteria C), and facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements (criteria D). Therefore, to approve a zone map amendment the Commission must find Criteria A-D are met. In addition, the Commission must also consider criteria E - K, and may find the zone map amendment to be positive, neutral, or negative with regards to these criteria. To approve the zone map amendment, the Commission must find the positive outcomes of the amendment outweigh negative outcomes for criteria E-K. In determining whether the criteria are met, Staff considers the entire body of regulations for land development. Standards which prevent or mitigated negative impacts are incorporated throughout the entire municipal code but are principally in Chapter 38, Unified Development Code. Zoning review is discretionary. The city balances many priorities and competing outcomes by threading the needle to create the best outcomes to benefit as many diverse goals as possible. The State review criteria is rudimentary and fails to adequately convey the nuance involved in more urban setting such as Bozeman, Missoula, Billings, Kalispell, and Great Falls. It is common for an application to have both favorable and unfavorable influence on a particular criteria. An unreserved finding of compliance is not required but staff may call out competing elements. Therefore, a criteria may be weakly or strongly complied with. Section 76-2-304, MCA (Zoning) Criteria A. Be in accordance with a growth policy. Criterion met. The BCP 2020, Chapter 5, p. 73, in the section titled Review Criteria for Zoning Amendments and Their Application, discusses how the various criteria in 76-2-304 MCA are applied locally. Application of the criteria varies depending on whether an amendment is for the zoning map or for the text of Chapter 38, BMC. The first criterion for a zoning amendment is accordance with a growth policy. 371 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 10 of 31 Future Land Use Map The proposed amendment is a change to the zoning map. Therefore, it is necessary to analyze compliance with the future land use map. Chapter 3 of the BCP 2020 addresses the future land use map. The introduction to that chapter discusses the importance of the chapter. Following are some excerpts. “Future land use is the community’s fundamental building block. It is an illustration of the City’s desired outcome to accommodate the complex and diverse needs of its residents.” “The land use map sets generalized expectations for what goes where in the community. Each category has its own descriptions. Understanding the future land use map is not possible without understanding the category descriptions.” The area of this application is within the annexed area of the City and where there is anticipated redevelopment within the City as discussed below. As shown on the maps in Section 1, on the excerpt of the current future land use map, the property is designated as Community Commercial Mixed-Use. The Community Commercial Mixed-Use designation description reads: “The Community Commercial Mixed-Use category promotes commercial areas necessary for economic health and vibrancy. This includes professional and personal services, retail, education, health services, offices, public administration, and tourism establishments. Density is expected to be higher than it is currently in most commercial areas in Bozeman and should include multi-story buildings. Residences on upper floors, in appropriate circumstances, are encouraged. The urban character expected in this designation includes urban streetscapes, plazas, outdoor seating, public art, and hardscaped open space and park amenities. High density residential areas are expected in close proximity. Developments in this land use area should be located on one or two quadrants of intersections of the arterial and/or collector streets and integrated with transit and non-automotive routes. Due to past development patterns, there are also areas along major streets where this category is organized as a corridor rather than a center. Although a broad range of uses may be appropriate in both types of locations, the size and scale is to be smaller within the local service areas. Building and site designs made to support easy reuse of the building and site over time is important. Mixed use areas should be developed in an integrated, pedestrian friendly manner and should not be overly dominated by any single use. Higher intensity uses are encouraged in the core of the area or adjacent to significant streets and intersections. Building height or other methods of transition may be required for compatibility with adjacent development. 372 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 11 of 31 Smaller neighborhood scale areas are intended to provide local service to an area of approximately one half-mile to one mile radius as well as passersby. These smaller centers support and help give identity to neighborhoods by providing a visible and distinct focal point as well as employment and services. Densities of nearby homes needed to support this scale are an average of 14 to 22 dwellings per net acre.” The correlation between the future land use map of the growth policy and the zoning districts is presented in Table 4 of the Bozeman Community Plan 2020. As shown in the following Correlation with Zoning Table, both R-O and B-2M districts are implementing districts of the Community Commercial Mixed-Use future land use category. Goals and Policies A zoning amendment is also evaluated against the goals and policies of the BCP 2020. Most of the goals and policies are not applicable to this application. Relevant goals and objectives have been identified by staff. Conflict with the text of the growth policy hasn’t been identified. The Short-Term Action list on page 63 of the BCP 2020 describes 14 items to implement the growth policy. The first two relate to direct changes to the zoning map in support of listed goals and objectives. These include increasing the intensity of zoning districts in already developed areas. Beginning on page 71 of the BCP 2020 in the section titled Zoning Amendment Review, the document discusses how the City implements zoning for new areas, amendments to areas, and revisions to existing text. This section includes a discussion of when the City may initiate a zoning change to a more intensive district to increase development opportunities. This section demonstrates that the City, as a matter of policy, is supportive of more intensive zoning districts and development, even within already developed areas. This policy approach does not specify any individual district but does lean towards the more intensive portion of the zoning district spectrum. 373 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 12 of 31 With individual property owner request to modify zoning, the applicant has the burden of proof to show the proposed amendment is in the city’s best interest and furthers more goals and policies of the BCP, 2020 than hinders. The applicant’s argument is that B-2M is an implementing district for the FLU designation and that the draft development code map revisions propose this property and those in the immediate vicinity show a change to B-2M. While these statements are true, no further analysis or discussion is provided with the original application. The city requested analysis to support the application which was provide on April 10, 2024. In addition to analysis, staff suggested the application would be more in compliance with the goals and policies of the BCP 2020 if additional adjacent properties, under the same ownership, were included in the application., No additional properties were added to the request. Section 38.300.110, BMC states that the intent and purposes of the commercial zoning districts are to establish areas within the city that are primarily commercial. Subsection C continues describing that the intent of the B-2M community business district-mixed is to function as a vibrant mixed-use district that accommodates substantial growth and enhances the character of the city. This district provides for a range of commercial uses that serve both the immediate area and the broader trade area and encourages the integration of multi - household residential as a secondary use. Use of this zone is appropriate for arterial corridors, commercial nodes and/or areas served by transit. [Emphasis added.] It is difficult to make positive findings for a single, small, isolated amendment when considering the intent and purpose statements of the future land use and the specific zoning district requested. However, pursuant to table 38.320.050 [External Web Link], form and intensity standards for commercial zones, there is no minimum lot size in the B-2M zone. While the size will limit viability of a mixed-use building there is sufficient size to accommodate commercial building as show the previous use as an insurance office. 374 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 13 of 31 2021 aerial image of subject property (Bozeman GIS) The North 7th corridor has a numerous small lot B-2M zoned properties. For example, the Rue building on the northwest corner of 7th and Durston sits on a 27,974 square foot (0.6422 acre) parcel. The Recompute building is on a 13,503 square foot (0.31 acre) site. If approved, all types of short-term rentals are a permitted. The R-O zone restricts Type 3 short- term rentals. Considering the eclectic character of vicinity, the R-O and B-2M appear to be appropriate zoning designations. The area is a transitional area between 19th Avenue, Main Street, and the University Square Shopping center with a variety for residential structure types and commercial activity with relatively small building size. The subject property lot size of lot will limit bulk and mass of future building(s). There is convenient access to many services. Cosmic Pizza, convenience store, dry cleaners, two large grocery stores, fast food, drug store, and more. The proximity of these services help explains the relatively high Walk Score. There are no public open spaces near the site. Kirk Park is north and across Main Street with the only controlled crossing at 19th and Main. The next closest park is Cooper Park one mile to the east. Staff did not identify goals and objectives the proposed amendment is in direct conflict with. The most likely category for conflict might be under Theme 2, A City of Unique Neighborhoods and neighbor character. However, goals and objectives related to 375 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 14 of 31 neighborhood elements are limited in their scope and do not address small single parcel requests. The applicant provided support for and analysis of, the BCP 2020 found in the Zone Map Amendment Narrative, updated, and are hereby incorporated into this report. The applicant provides justification for the map amendment on page 6 and 7 of the narrative by listing several goals and objectives the request furthers. Staff generally agrees with exceptions. Objective N- 2.2 “Revise the zoning map to support higher intensity residential districts near schools, services, and transportation.” The requested zoning is commercial in a commercially designated area therefore, it is unclear how this objective is supported. Also, DCD-2.3, Review and update minimum development intensity requirements in residential and non-residential zoning districts. The application modifies the map, no changes to the standards are proposed. Applicant Amended 5a Response: “The Bozeman Community Development Plan has developed seven themes that are identified as ‘community derived desired outcomes. Based on information taken from these themes, the proposed B-2M zoning fits into the growth policy in numerous ways. Throughout the seven themes identified, there are various areas where there is an over-arching value for increasing density. These goals taken directly from the 2020 City Grown Development Plan document and support the desire for more density: THEME 2 | GOALS, OBJECTIVES, AND ACTIONS N-2.2 Revise the zoning map to support higher intensity residential districts near schools, services, and transportation. N-3.7 Support compact neighborhoods, small lot sizes, and small floor plans, especially through mechanisms such as density bonuses. THEME 3 | GOALS, OBJECTIVES, AND ACTIONS DCD-2.2 Support higher density development along main corridors and at high visibility street corners to accommodate population growth and support businesses. DCD-1.5 Identify underutilized sites, vacant, and undeveloped sites for possible development or redevelopment, including evaluating possible development incentives. DCD-1.10 Support University efforts to attract development near campus. DCD-2.3 Review and update minimum development intensity requirements in residential and non-residential zoning districts. DCD-2.7 Encourage the location of higher density housing and public transit routes in proximity to one another. 376 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 15 of 31 There are certain characteristics between the two zones that are similar, like building height allowance, that won’t negatively impact the re-zoning. There are however differences between R-O and B-2M that will allow for an increase in density in positive ways. Some of the setbacks are less in the B-2m zoning and there is a higher coverage percentage that is allowed. This ensures a stronger utilization of the site to allow for said increase in density. As it stands now, the R-O zoning holds a larger requirement for parking. Changing to the B-2M zoning will reduce the parking requirements, which will encourage more use for public transportation, walking and biking. This responds well to the Goal M-1.4 listed under Theme 5 which states, “Develop safe, connected, and complementary transportation networks for pedestrians, bicyclists, and users of other personal mobility devices (e-bikes, electric scooter powered wheelchairs, etc.).” It is possible to alleviate parking congestion in these areas by utilizing more pedestrian and alternative modes of transportation. There are two bus stops under a quarter mile away and any future development will supply bike racks and adequate ADA accessibility. There are grocery stores and other business in close proximity that further support a walkable area. While it is understood that the existing zoning of R-O is still active throughout the City of Bozeman, the 2023 Community Development Plan is recommending removing the R-O zoning entirely. This has not taken place yet and might not, however based on this conjecture and lack of direction, re-zoning this site to a B-2M is a move toward communal cohesion and consistency. B-2M will not be removed from zoning, while the fate of R-O is heavily in question. Designing a development of any kind when the guidelines are in question, has potential to have costly negative ramifications. Numerous goals/themes express the importance of long-term impact, resilience, and simplification of the zoning districts and re-zoning to a B-2M will be an appropriate response to that. These goals are identified below: THEME 1 | GOALS, OBJECTIVES, AND ACTIONS R-1.7 Be flexible: willingness and ability to adopt alternative strategies in response to changing circumstances. -R-2: Pursue community decisions in a manner that supports resilience. R-2.1 Co-Benefits: Provide solutions that address problems across multiple sectors, creating maximum benefit. R-2.9 Long-Term and Lasting Impact: Create long-term gains to the community with solutions that are replicable and sustainable, creating benefit for present and future generations. (Best interests of the community to have workforce housing and a diversity of uses) THEME 3 | GOALS, OBJECTIVES, AND ACTIONS 377 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 16 of 31 DCD-2.8 Revise the zoning ordinance, reducing the number of zoning districts to be more consistent with the designated land use classifications, to simplify the development process, and support affordability objectives of the plan. In conclusion, changing from an R-O zoning to a B-2M is in accordance with the City of Bozeman’s Growth Policy Plan. It will allow for a greater level of density, promote pedestrian and alternative forms of travel, create communal stability within long term zoning, and allow for a stronger level of future adaptability.” In conclusion, the B-2M zoning designation is in accordance with the growth policy. B. Secure safety from fire and other dangers. Criterion met. The subject property is currently served by City of Bozeman Fire and Police Departments. Future development of the property will be required to conform to all City of Bozeman public safety, building, transportation, and land use requirements, which will generally ensure this criterion is met. Municipal Code Section and Title Subject Related Documents When standard is applied 18.02 International Fire code Adopt standards for fire prevention and control Fire/EMS master plan, International Fire Code Site plan and building permit 38.400 Transportation Facilities and Access Streets standards for size and construction Transportation Master Plan Subdivision or site plan review 38.400.010 Streets, general Access for emergency services Transportation Master Plan Subdivision or site plan. 38.410.090 Fire protection requirements Development design Fire/EMS master plan, International Fire Code Subdivision, site plan, and building permit C. Promote public health, public safety, and general welfare. Criterion met. City development standards included in Chapter 38, Unified Development Code, building codes, and engineering standards all ensure that this criterion is met. Adequate water and sewer supply and conveyance provide for public health through clean water. Rapid and effective emergency response provides for public safety. The City’s standards ensure that adequate services are provided prior to building construction which advances this criterion. 378 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 17 of 31 General welfare has been evaluated during the adoption of Chapter 38 and found to be advanced by the adopted standards. Provision of parks, control of storm water, and other features of the City’s development standards also advance the general welfare. The subject property is well connected to the City’s transportation system and is served by fully constructed intersections and streets. Sidewalks are constructed in all directions. Development on site will require any improvements not installed to mitigate impacts and meet the city’s complete street policies. Municipal Code Section and Title Subject Related Documents When standard is applied 18.02 International Fire code Adopt standards for fire prevention and control Fire/EMS master plan, International Fire Code Site plan and building permit 38.400 Transportation Facilities and Access Streets standards for size and construction Transportation Master Plan Subdivision or site plan review 38.410.070 Municipal water, sewer systems Location and requirement to install. Sewer collection facilities plan, Water facilities plan Subdivision or site plan. 38.410.090 Fire protection requirements Development design Fire/EMS master plan, International Fire Code Subdivision, Site plan, and building permit 38.420 Parks Standards for location, type, and development of parks and trails Park, Recreation, and Active Transportation Plan Subdivision or site plan review 38.5 Project Design Site layouts, landscaping, building configuration, signs, lighting Site plan and building permit D. Facilitate the provision of transportation, water, sewerage, schools, parks, and other public requirements. Criterion met. The City conducts extensive planning for municipal transportation, water, sewer, parks, sustainability, and other facilities and services provided by the City. The adopted 379 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 18 of 31 plans allow the City to consider existing conditions; and identify enhancements needed to provide service to new development. See page 19 of the BCP 2020 for a listing. The City implements these plans through its capital improvements program (CIP). The CIP identifies individual projects, project construction scheduling, and financing of construction for infrastructure. Private development must demonstrate compliance with standards prior to construction. Dedication of school facilities is not required by municipal zoning standards. However, School District 7 will have opportunity to review and comment on future development. Section 38.300.020.C, BMC, states that the designation of a zoning district does not guarantee approval of new development until the City verifies the availability of needed infrastructure. All zoning districts in Bozeman enable a wide range of uses and intensities. At time of future subdivision or site plan review the need for individual services can be more precisely determined. No subdivision or site plan is approved without demonstration of adequate capacity. 38.300.020.C, “Placement of any given zoning district on an area depicted on the zoning map indicates a judgment on the part of the city that the range of uses allowed within that district are generally acceptable in that location. It is not a guarantee of approval for any given use prior to the completion of the appropriate review procedure and compliance with all the applicable requirements and development standards of this chapter and other applicable policies, laws and ordinances. It is also not a guarantee of immediate infrastructure availability or a commitment on the part of the city to bear the cost of extending services.” Municipal Code Section and Title Subject Related Documents When standard is applied 18.02 International Fire code Adopt standards for fire prevention and control Fire/EMS master plan, International Fire Code Site plan and building permit 38.400 Transportation Facilities and Access Streets standards for size and construction Transportation Master Plan Subdivision or site plan review 38.410.060 Easements Location and form of easements for utilities Transportation Master Plan, Sewer collection facilities plan, Water facilities plan Annexation for collector and arterial streets. Subdivision or site plan for all others. 380 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 19 of 31 38.410.070 Municipal water, sewer systems Location and requirement to install. Sewer collection facilities plan, Water facilities plan Subdivision or site plan. 38.410.090 Fire protection requirements Development design Fire/EMS master plan, International Fire Code Subdivision, site plan, and building permit 38.420 Parks Standards for location, type, and development of parks and trails Park, Recreation, and Active Transportation Plan Subdivision or site plan Water and sewer are available to the site. A 10-inch vitrified clay sewer line on the eastern side of the property. A 10-inch ductile iron water main is in West Babcock Street and a 6-inch carrier water line is under South 20th Avenue. It is likely future development will increase impacts on services, adequate capacity is presently available to meet demand. E. Reasonable provision of adequate light and air. Criterion met. This criterion is not about individual preferences for a given degree of visual openness but about preservation of public health. The B-2M district provides adequate light and air through the Bozeman Unified Development Code’s standards for park and recreation requirements, on-site open space for residential uses, maximum building height, lot coverage, and setback requirements. The form and intensity standards, Division 38.320, provide minimum lot areas, lot widths, lot coverage and maximum floor area ratios, and prescribe require minimum separation from property lines and limits building heights. Section 38.520.030 requires building placement to ensure access to light and air. Division 38.420 and Section 38.520.060 require dedication of parks and on-site open spaces to meet needs of residents. The standards provide a reasonable provision of adequate light and air. Zone edge transitions do not apply to this property if the B-2M is approved pursuant to section 38.320.060, BMC. In addition to the zoning standards, adopted building codes contain more detailed requirements for air circulation, window placement, and building separation that further ensure the intent of this criterion is satisfied. Municipal Code Section and Title Subject Related Documents When standard is applied 381 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 20 of 31 38.320 Form and Intensity Standards Standards for building placement and maximum size Subdivision, site plan review, building permit 38.420 Parks Standards for location, type, and development of parks and trails Park, Recreation, and Active Transportation Plan Subdivision or site plan review 38.520.060 On-site residential and commercial open space Private land open area requirements Site plan F. The effect on motorized and non-motorized transportation systems. Criterion met. Potential future development within a zoning district of B-2M will affect the City’s motorized and non-motorized transportation system with potential increased traffic and vehicle trips along West Babcock Street and 19th Avenue. The subject property is located on a street corner with a constructed Collector Street to the north and a local street to the west. Due to the small size potential impacts will be limited and therefore can be accommodated by the existing street network. The proposed zoning will allow for a higher density of uses than is currently allowed under R- O zoning district. The City’s transportation plan is used to evaluate transportation needs over the long term throughout the City and will evaluate impacts of motorized vehicles along with bikes and pedestrians. The parks and trails plan also examine and specify options for extensions of the existing trail network through this site. Future site development will examine impacts in greater detail on the transportation network, parks, and trails system, and municipal facilities when specific construction has been identified. Furthermore, these future development reviews will ensure that development under the new zoning will comply with the City’s standards for the provision of onsite parking for bicycles and vehicles, as well as the requirements for onsite circulation. Traffic impacts will be studied by the development team to demonstrate compliance with the City’s long-range transportation plans. Future project development will ensure compliance with the acceptable traffic limits identified in the transportation plans, as well as provide for the dedication of rights of way, construction or reconstruction of streets and trails, payment of impact fees, and other contributions as will be applicable to this project. As previously mentioned, the City conducts extensive planning for municipal transportation, water, sewer, parks, sustainability, and other facilities and services provided by the City. The 382 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 21 of 31 adopted plans allow the City to consider existing conditions; and identify enhancements needed to provide service to new development. The subject properties are within the City’s land use, transportation, parks, and utility planning areas. Those plans show this property as developing within the City when development is proposed. The 2025-2049 CIP [External link] shows transportation system expansion projects on Kagy Blvd and Stucky Road that will improve all mode transportation capacity in the area. Development consistent with City standards will add/improve connectivity of sidewalks to SRX South development and the Blackwood Groves development. Future development and redevelopment of the property will be required to comply with transportation-related standards and reviewed for impacts on the surrounding streets, intersections, and sidewalks, and improvements to the transportation network to serve the site, which will improve the overall transportation system. These improvements include provisions for non-motorized transportation systems. The change in zoning district will have a minimal effect on required road improvements, pedestrian or bicycle facilities, or similar compliance with standards. The site is adjacent to one collector (West Babcock) and one local street (20th Avenue), both of which have capacity to carry additional traffic. Municipal Code Section and Title Subject Related Documents When standard is applied 38.400 Transportation Facilities and Access Streets standards for size and construction Transportation Master Plan Subdivision or site plan review 38.410.060 Easements Location and form of easements for utilities Transportation Master Plan, Annexation for collector and arterial streets. Subdivision or site plan for all others. 38.420.110 Recreation Pathways Location and requirement to install. Park, Recreation, and Active Transportation Plan Annexation for Class 1 Trails easement. Subdivision or site plan for all else. The site has a Walk Score of 83, a Transit score of 26, and a Bike Score of 80. According to Walk Score® the walks score measures the walkability of any address based on the distance to nearby places and pedestrian friendliness. 90 – 100 Walker’s Paradise. Daily errands do not require a car. 383 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 22 of 31 70 – 89 Very Walkable. Most errands can be accomplished on foot. 50 – 69 Somewhat walkable. Some errands can be accomplished on foot. 25 – 49 Car-Dependent. Most errands require a car. 0 – 24 Car-Dependent. Almost all errands require a car. The site is reasonably served by the Streamline Bus service. Two routes, Gold and Purple lines, currently make stops at the intersection of Main and Babcock. According to Walk Score, the transit score for the site is 26 out of 100. However, Streamline routes are subject to change without notice. These values are provided by Walk Score, a private organization which presents information on real estate and transportation through walkscore.com. The algorithm which produces these numbers is proprietary. A score is not an indication of safety or continuity of services or routes. Scores are influenced by proximity of housing, transit, and services and expected ability, as determined by the algorithm, to meet basic needs without using a car. Sites located on the edge of the community have lower scores than those in the center of the community as the area is still under development and therefore diversity of uses is less than in fully established areas. There are no adopted development standards relating to the walk score. G. Promotion of compatible urban growth. Criterion met. The Bozeman Community Plan establishes a preferred and compatible development pattern. “The land use map sets generalized expectations for what goes where in the community… The land use categories and descriptions provide a guide for appropriate development and redevelopment locations for civic, residential, commercial, industrial, and other uses. The future land use designations are important because they aim to further the vision and goals of the City through promoting sustainability, citizen and visitor safety, and a high quality of life that will shape Bozeman’s future.” (Community Plan p. 51). The City’s future land use map designates the properties as Community Commercial Mixed- Use. These designations correlate with several zoning districts including the B-2M district proposed by the applicants. The districts were developed by the City to promote appropriate urban growth compatible with the areas of the City as identified on the future land use map. Based on the land use map designations and correlated zoning districts in the plan and proposed by the applicants, the zone map amendment would promote compatible urban growth. Also see the discussion in (H) below. The subject property is bounded by existing B-2 zones on the north and west sides, R-O zone to the east, and R-3 (Moderate Density Residential) to the south. There is no street or alley separation between the proposed B-2M and the existing residential use to the south. The city’s zone edge transition standards, section 38.320.060.B [External Link], would not apply. Single use buildings, residential or commercial, are allowed to build to build to four (4) stories or 50 384 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 23 of 31 feet, whichever is less. Buildings in the R-3 zone have a maximum height of 36 or 46 feet depending on roof pitch. The existing structure is a two-story building. Municipal Code Section and Title Subject Related Documents When standard is applied 38.310 Permitted Uses What can be done where in the city. Growth policy Subdivision, site plan, building permit 38.320 Form and Intensity Standards Standards for building placement and maximum size Subdivision, site plan, building permit 38.320.060 Zone Edge Transitions Height adjustments on the edge of some zones Site plan 38.340 Overlay District Standards Historic preservation SOI Standards for Historic Preservation, Design Guidelines for Historic Preservation Site plan and building permit 38.5 Project Design Site layouts, landscaping, building configuration, signs, lighting Site plan and building permit H. Character of the district. Criterion met. Section 76-2-302, MCA says “…legislative body may divide the municipality into districts of the number, shape, and area as are considered best suited to carry out the purposes [promoting health, safety, morals, or the general welfare of the community] of this part.” Emphasis added. This proposal amends the zoning map and not the text. Therefore, no element of this amendment modifies the standards of any zoning district. The character of the districts as created by those standards remains intact. As noted above, the City Commission has latitude in considering the geographical extents of a zoning district. It is not expected that zoning freeze the character of an area in perpetuity. Rather, it provides a structured method to consider changes to the character. This is especially true when applying zoning to undeveloped areas as any new construction will alter the physical characteristics of the area. The City has defined compatible development as: 385 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 24 of 31 “The use of land and the construction and use of structures which is in harmony with adjoining development, existing neighborhoods, and the goals and objectives of the city's adopted growth policy. Elements of compatible development include, but are not limited to, variety of architectural design; rhythm of architectural elements; scale; intensity; materials; building siting; lot and building size; hours of operation; and integration with existing community systems including water and sewer services, natural elements in the area, motorized and non-motorized transportation, and open spaces and parks. Compatible development does not require uniformity or monotony of architectural or site design, density or use.” The City has adopted many standards to identify and avoid or mitigate demonstrable negative impacts of development. These will support the ability of future development in [B-2M] to be compatible with adjacent development and consistent with the residential and commercial character of the area. Community business district-mixed (B-2M) 1. The intent of the B-2M community business district-mixed is to function as a vibrant mixed-use district that accommodates substantial growth and enhances the character of the city. This district provides for a range of commercial uses that serve both the immediate area and the broader trade area and encourages the integration of multi-household residential as a secondary use. Design standards emphasizing pedestrian- oriented design are important elements of this district. Use of this zone is appropriate for arterial corridors, commercial nodes and/or areas served by transit. The city has adopted many standards to identify and avoid or mitigate demonstrable negative impacts of development. These will support the ability of future development in the proposed B-2M district to be compatible with the proposed adjacent mixed-use district, where both will help serve the expanding residential development within this southern region of the city. The proposed zone district allows the applicant to construct a variety of commercial-sized buildings as well as some secondary residential uses like townhomes and apartment buildings. There is a mix of uses in the immediate vicinity including, fast food restaurants, gas station, multi-unit and single family residential, general retail, and a variety of others uses. The property is not within the Neighborhood Conservation Overlay District, a historic district, or any other designated area. Municipal Code Section and Title Subject Related Documents When standard is applied 38.310 Permitted Uses What can be done where in the city. Growth policy Subdivision, site plan, building permit 386 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 25 of 31 38.320 Form and Intensity Standards Standards for building placement and maximum size Subdivision, site plan, building permit 38.320.060 Zone Edge Transitions Height adjustments on the edge of some zones Site plan 38.340 Overlay District Standards Historic preservation SOI Standards for Historic Preservation, Design Guidelines for Historic Preservation Site plan and building permit 38.5 Project Design Site layouts, landscaping, building configuration, signs, lighting Site plan and building permit I. Peculiar suitability for particular uses. Neutral. Future uses for construction on the site are not finalized at this time, so the suitability of the site for particular uses is not easily evaluated. However, considering the context of the site and previous applications by the applicant for a residential building it seems reasonable assumption residential is the desired use. Historically, the site was used as an office. Adjacent properties to the east and south are residential use and the building to the west is a small commercial use building. The B-2M zone allows a wide variety of use although assumes commercial nature, see criterion A above. The proposed B-2M district can support many types of urban development that are likely to serve the immediate area and region as a result of its location and proximity to major transportation networks. Final determination of suitability will occur during the site development process. On the other hand, the parcel size and single lot undermine the ability of the B-2M zone to achieve its stated outcome to, “… function as a vibrant mixed-use district that accommodates substantial growth and enhances the character of the city. This district provides for a range of commercial uses that serve both the immediate area and the broader trade area and encourages the integration of multi-household residential as a secondary use. Design standards emphasizing pedestrian-oriented design are important elements of this district. Use of this zone is appropriate for arterial corridors, commercial nodes and/or areas served by transit.” The parcel is located on a Collector Street and served by nearby transit required on-site parking, open space, parkland, utilities, stormwater and other necessary components of development will limit its functionality for these outcomes. 387 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 26 of 31 Municipal Code Section and Title Subject Related Documents When standard is applied 38.310 Permitted Uses What can be done where in the city. Growth policy Subdivision, site plan review, building permit 38.320 Form and Intensity Standards Standards for building placement and maximum size Subdivision, site plan review, building permit 38.600 Natural Resource Protection Protect watercourses and wetlands FEMA Floodplain study Subdivision, site plan review, building permit J. Conserving the value of buildings. Criterion met. The site is vacant. B-2M zoning will allow for new and diverse development patterns on the subject parcel that compliment development on adjacent sites as does the existing R-O designation. Future development must comply with the Bozeman Unified Development Code which will ensure an appropriate scale and intensity of uses. As a result, the proposed zone map amendment is not anticipated to negatively impact nearby building values as the development pattern will be appropriate to the surrounding character of the district. The values of some buildings may improve in the future as new and improved amenities are provided to the area as the site is developed according to the proposed B-2M district, while other buildings’ values are unlikely to be impacted largely due to a robust real estate market and lack of unmitigated offensive uses allowed by the proposed zoning district. K. Encourage the most appropriate use of land throughout the jurisdictional area. Criterion met. As stated above, the BCP 2020 illustrates the most appropriate use of the land through the future land use map. This application complies with the BCP 2020 by proposing zone map amendments of districts that continue to implement the future land use map designations. In this case, urban mixed-use development has been identified by the community as the most appropriate types of development for the property. The Unified Development Code contains standards, protections, and review processes to ensure the land is developed in ways that are appropriate to a site’s context and according to the BCP 2020. Similarly, as stated by the applicant, “… The city has a growing need for additional housing and retail/commercial services to the surrounding community. The zoning will provide an increased alignment with the Community Development Plan’s desired increase of density. The proposed B-2M offers a positive opportunity to generate a greater sense of community scale in an established neighborhood while providing an increase in flexibility; i.e. reducing in parking requirements allow for a more optimal land use.” 388 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 27 of 31 PROTEST NOTICE FOR ZONING AMENDMENTS IN THE CASE OF WRITTEN PROTEST AGAINST SUCH CHANGES SIGNED BY THE OWNERS OF 25% OR MORE OF THE AREA OF THE LOTS WITHIN THE AMENDMENT AREA OR THOSE LOTS OR UNITS WITHIN 150 FEET FROM A LOT INCLUDED IN A PROPOSED CHANGE, THE AMENDMENT SHALL NOT BECOME EFFECTIVE EXCEPT BY THE FAVORABLE VOTE OF TWO-THIRDS OF THE PRESENT AND VOTING MEMBERS OF THE CITY COMMISSION. The City will accept written protests from property owners against the proposal described in this report until the close of the public hearing before the City Commission. Pursuant to 76-2-305, MCA, a protest may only be submitted by the owner(s) of real property within the area affected by the proposal or by owner(s) of real property that lie within 150 feet of an area affected by the proposal. The protest must be in writing and must be signed by all owners of the real property. In addition, a sufficient protest must: (i) contain a description of the action protested sufficient to identify the action against which the protest is lodged; and (ii) contain a statement of the protestor's qualifications (including listing all owners of the property and the physical address and legal description of the property), to protest the action against which the protest is lodged, including ownership of property affected by the action. Signers are encouraged to print their names after their signatures. A person may in writing withdraw a previously filed protest at any time prior to final action by the City Commission. Protests must be delivered to the Bozeman City Clerk, 121 North Rouse Ave., PO Box 1230, Bozeman, MT 59771-1230. APPENDIX A - DETAILED PROJECT DESCRIPTION AND BACKGROUND The owner, Maloney Holdings, LLC, 101 South Main Street, Suite 301, Sioux Falls, SD 57104, submitted application to rezone a property totaling 0.249 acres, plus adjacent right-of-way, from R-O to B-2M. The property is currently vacant after the recent tear down of the previous building on the property. No future development plans were submitted with the application. However, the property owners previously submitted a concept review for a proposed 5-unit residential building (Concept 23-209). Exterior elevations of the concept review were included in the report to the Community Development Board. The elevations are not included in this report because they are not germane to the review criteria for the zone map amendment. Other members of the applicant’s family own the three adjacent properties zoned R-O. 389 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 28 of 31 The property is not within the NCOD, a historic district, or a city recognized neighborhood. The underlying Future Land Use designation is Community Commercial Mixed Use. The properties directly to the south are in the Urban Neighborhood designation. See Map Series in Section 1 below. West Babcock Street is a designated Collector and South 20th Avenue is a local street according to the Bozeman Transportation Master Plan, 2017 Update. As illustrated in the map series below, the site is adjacent to a fully built street network. The primary differences between the B-2 and B-2M districts are slight differences in building height, more permissive residential use, and reduction of parking requirements. Building height in the B-2 district is between 50-60 feet, depending on roof pitch. Building height in B- 2M is five (5) stories or 60 feet. Residential use is allowed on the ground floor in without a Conditional Use Permit in the B-2M zone and may be permitted in the B-2 district with an approved CUP. APPENDIX B - NOTICING AND PUBLIC COMMENT Notice was sent via US first class mail to all owners of property located inside the site and within 200 feet of the perimeter of the site. The project site was posted with a copy of the notice. The notice was published in the Legal Ads section of the Bozeman Daily Chronicle on May 11 and 18, 2024. The Community Development Board acting in their capacity as the Zoning Commission hearing is scheduled for June 3, 2024, and the City Commission public hearing is scheduled for June 18, 2024. No comment has been received as of the date of the production of this report. APPENDIX C - PROJECT GROWTH POLICY AND PROPOSED ZONING Adopted Growth Policy Designation: The property is designated as community commercial mixed use in the Bozeman Community Plan 2020 future land use map – see descriptions below. “Community Commercial Mixed Use.” The growth policy states that, “activities within this land use category are the basic employment and services necessary for a vibrant community. Establishments located within these categories draw from the community as a whole for their employee and customer base and are sized accordingly. A broad range of functions including retail, education, professional and personal services, offices, residences, and general service activities typify this designation. In the “center-based” land use pattern, Community Commercial Mixed-Use areas are integrated with significant transportation corridors, including transit and non-automotive routes, to facilitate efficient travel opportunities. The density of development is expected to be higher than currently seen in most commercial areas 390 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 29 of 31 in Bozeman and should include multi-story buildings…High density residential areas are expected in close proximity. Including residential units on sites within this category, typically on upper floors, will facilitate the provision of services and opportunities to persons without requiring the use of an automobile… Mixed use areas should be developed in an integrated, pedestrian friendly manner and should not be overly dominated by any single land use. Higher intensity employment and residential uses are encouraged in the core of the area or adjacent to significant streets and intersections. As needed, building height transitions should be provided to be compatible with adjacent development.” The Zoning Correlation Table on Page 58 of the Bozeman Community Plan, 2020 correlates zoning districts with the Growth Policy’s land use categories, demonstrating that the proposed zoning designation of B-2M correlates with the Growth Policy’s future land use designation of “Community Commercial Mixed Use”. Proposed Zoning Designation and Land Uses: The applicant has requested zoning of B-2M (Community Business District-Mixed). The intent of the B-2M district is “…to function as a vibrant mixed-use district that accommodates substantial growth and enhances the character of the city. This district provides for a range of commercial uses that serve both the immediate area and the broader trade area and encourages the integration of multi-household residential as a secondary use. Design standards emphasizing pedestrian- oriented design are important elements of this district. Use of this zone is appropriate for arterial corridors, commercial nodes and/or areas served by transit”. 391 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 30 of 31 APPENDIX D - OWNER INFORMATION AND REVIEWING STAFF Owner: Maloney Holdings, LLC, 101 South Main Street, Suite 301, Sioux Falls, SD 57104 Applicant: Firm 5, 703 Wyoming Street, Belgrade, MT 59714 Representative: Firm 5, 703 Wyoming Street, Belgrade, MT 59714 Report By: Tom Rogers, Senior Planner 392 24024 Staff Report for the 1920 W Babcock Zone Map Amendment Page 31 of 31 FISCAL EFFECTS No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this zone map amendment. ATTACHMENTS The full application and file of record can be viewed at the Community Development Department at 20 E. Olive Street, Bozeman, MT 59715. In addition, application materials can be viewed on the City’s development map at the following link. https://weblink.bozeman.net/WebLink/Browse.aspx?id=289450&dbid=0&repo=BOZEMAN 393 Memorandum REPORT TO:City Commission FROM:Nicholas Ross - Director of Transportation and Engineering SUBJECT:Fowler Avenue Connection 30% Design Review MEETING DATE:June 18, 2024 AGENDA ITEM TYPE:Plan/Report/Study RECOMMENDATION:Engage with City staff in review of 30% Fowler Avenue Connection plans. STRATEGIC PLAN:1.1 Outreach: Continue to strengthen and innovate in how we deliver information to the community and our partners. BACKGROUND:The Department of Transportation and Engineering has reached the 30% design phase of the Fowler Avenue Connection project. City Commission and public are encouraged to review updated material for this phase of the project found on the EnagageBZN project page: https://engage.bozeman.net/fowler The intent of this Commission Work Session will be to seek policy-level feedback on the proposed design's compliance with the project approach defined through the Pre-Design phase of the project. Special attention is requested on the safety, multimodal, and environmental mitigation portions of the design. Commission has previously advanced the Fowler Avenue Connection project out of the pre-design phase with the following criteria: One travel lane in each direction Left turn lanes as needed Traffic signal intersection control at Babcock Roundabout intersection control at Durston Wide shared-use path on at least one side Utilization of flexible design criteria to preserve existing tree canopy Staff proposes to construct the 1.5 mile project in four phases; Oak to Durston (2026), Durston to Babcock (2027), Babcock to Huffine (2028), and finally the Huffine-Fowler intersection. Design of each segment will be unique in order to align with existing topography, environment, and areas of existing development. 394 The Oak to Durston segment will traverse east of the Section Line Ditch in order to minimize tree removal and allow the ditch to remain open. The proposed typical section of this segment includes one travel lane in each direction, shared use path on both sides of the corridor, a landscaped media with left turn pockets, full connection of Annie St, and roundabout intersection control at Durston. Due to the offset alignment required to minimize tree and ditch disturbance, this segment requires approximately 5 acres of right of way acquisition and has a projected total cost of approximately $11.5m. This alignment also leaves approximately 5 acres of a city-owned parcel located in the southwest quadrant of the Oak-Fowler intersection. The Durston to Babcock segment covers two distinct existing conditions. The north half of this segments consists of an existing portion of Fowler Ave. This portion was originally constructed as a half-street to serve the adjacent subdivision to the east. The south half of this segment traverses a greenfield alignment as no existing portion of Fowler has been constructed through this County inholding. Based on public engagement received at the pre-design phase, staff proposes a two-lane alignment through this segment in order to maintain the existing curb-to-curb width along the existing portion of Fowler and avoid environmental impacts in the south half of the segment. The existing portion of Fowler will not be widened, nor will the existing path along the west side of the corridor be impacted. Impacts to the ditch and tree corridor will be limited to only what is necessary to tie the southern potion of the alignment into the existing intersection at Babcock. Multimodal connectivity is currently proposed in this segment by preserving and improving the shared use path along the west side of the corridor and constructing an on-street bike lane and sidewalk along the east side of the corridor. Shared use path cannot be constructed along the east side of the corridor without impacting the property frontages within right of way along the existing portion of Fowler. The intersection of Fowler and Babcock is proposed to be served by traffic signal control per the terms of the pre- design phase. Due to the offset alignment required to minimize tree and ditch disturbance, this segment requires approximately 3 acres of right of way acquisition and has a projected total cost of approximately $6.6m. The Babcock to Huffine segment will again generally consist of a two-lane alignment in order to utilize the existing street infrastructure and reduce environmental impacts to the ditch corridor. Minor widening will be necessary to construct curb and gutter for stormwater control along the east side of the street. The existing ditch and tree corridor will remain in current condition. Multimodal connectivity will be achieved through this segment by improving and extending the existing shared use path on the east side of the ditch corridor and constructing a new on-street bike lane in the southbound direction coupled with the existing sidewalk along the west side of the corridor. This segment does not require right of way acquisition and has a total projected cost of approximately $1.5m. 395 The Fowler-Huffine intersection portion of the project will align receiving lanes across Huffine and adjust signal phasing to provide time for protected left turns. The city seeks to implement the phasing improvements as an early action project and measure further need for physical improvements before committing to fund this portion of the project. This intersection improvement has a total projected cost of $3.0m. The full corridor project is scheduled to be funded through a combination of Street Impact Fees and Arterial & Collector Assessments, as mandated by State statute. Updated costs and funding splits will be provided in the upcoming FY26-30 Capital Improvement Plan following 30% design review. Staff notes that the environmental investigation performed during the pre- design phase of the project has informed 30% design. The proposed 30% design contains substantially reduced impacts to the ditch and surrounding trees compared to the alternatives studied previously in the pre-design phase. Based on this previous documentation and advancement of a lesser- impact design, no additional formal environmental review through NEPA or MEPA processes (i.e. Categorical Exclusion, Environmental Impact Statement, or Environmental Assessment) is anticipated. Staff anticipates at least 50 trees may be required to be removed primarily for work needed to tie the new Fowler alignment into existing intersection locations. Staff has proposed the addition of more than 200 trees to the corridor as means of offsetting this impact and improving the overall quality of the corridor. Further permitting and mitigation be required as the design advances. Public comment has suggested incorporating the expertise of an Ecologist to assist the design team as we move into the 60% phase and staff intends to explore that possibility. The proposed 30% design meets all but one of the six criteria established for project advancement in the pre-design phase. The proposed 30% design is unable to achieve a continuous shared-use path in at least one direction. In order to accomplish this goal, additional minor impacts would occur to the tree and ditch corridor, the existing street frontage on the west side of Fowler from Huffine to Babcock, or the existing street frontage on east side of Fowler from Durston to its current end point along the southern boundary of the Fowler Place subdivision. The Transportation Advisory Board, in their role recommending policy-level suggestions to the City Commission, strongly encouraged Commission to consider achieving this goal as a priority during their a Work Session held at their May meeting. Public engagement to date for the 30% design phase has come in three forms. A public meeting was held on May 8, 2024 during which an open house format was provided for one on one conversation with participants followed by a staff presentation and Q&A session for all who wished to attend. A special presentation was then made to the Transportation Advisory Board on May 22, 2024 during which public comment was sought 396 and received. Finally, staff hosted a walking tour of the corridor on June 12, 2024 during which participants were able to walk the publicly-accessible portions of the site and discuss the proposed 30% design. Anticipated construction costs for the full Fowler Avenue Connection project have been reduced from approximately $17.5m in the pre-design phase to a current 30% design estimate of $13.9m. However, land costs have increased substantially over that time as have the project's need for right of way in order to avoid substantial impacts to the ditch and tree corridor. The adopted FY25-29 Capital Improvement Plan has estimated approximately $10.0m in anticipated right of way acquisition. Acquisition negotiations are ongoing. During this work session, Commission will be asked to provide policy guidance around three conditions with inherent trade-offs: continuous shared use path in at least one direction connection of local streets additional allocation of right of way UNRESOLVED ISSUES:continuous shared use path in at least one direction connection of local streets additional allocation of right of way ALTERNATIVES:As Suggested by the Commission. FISCAL EFFECTS:Fiscal effects for the project have been identified in the FY25-29 Capital Improvement Plan. Report compiled on: June 3, 2024 397 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697A February 4 13th DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 169398 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 170399 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 171400 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 172401 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 173402 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 174403 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 175404 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 176405 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 177406 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 178407 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 179408 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 180409 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 181410 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 182411 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 183412 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: DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 184413 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 185414 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; DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 186415 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 187416 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 188417 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 189418 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 **** DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 190419 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697A Constructive Solutions Inc. Rob Evans President XXXXXXXXXXXXXXXXXXXXXXXXXXXX Acting City Manager, Chuck Winn DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 191420 -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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 192421 -2- Ex. C: Artwork Scope of Services Agreement City of Bozeman Constructive Solutions Inc. Signature: __________________________ Signature: _________________________ Printed: __________________________ Printed: _________________________ Title: __________________________ Title: _________________________ Date: __________________________ Date: _________________________ DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 193422 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 194423 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 195424 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: ________________ DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 196425 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 197426 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 198427 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 199428 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 200429 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, DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 201430 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 202431 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 203432 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 204433 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 205434 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 206435 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 207436 -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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 208437 -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: DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 209438 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: _______________________________ DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 210439 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 211440 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 212441 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 213442 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 214443 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 215444 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 216445 Dzintars Waiver of Proprietary Rights - Page 4 of 4 - DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 217446 DOWNTOWN BOZEMAN ALLEY ENHANCEMENT PILOT PROJECT Final Artwork Plans and Drawings Date: 1/23/2024 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 218447 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 219448 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 220449 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 221450 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 222451 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 223452 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 224453 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 225454 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 226455 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 227456 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 228457 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” DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 229458 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 230459 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 231460 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 232461 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 233462 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”DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 234463 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 235464 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 236465 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 237466 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 238467 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 239468 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 240469 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697A February 4 13th DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 93470 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 94471 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 95472 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 96473 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 97474 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 98475 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 99476 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 100477 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 101478 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 102479 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 103480 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 104481 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 105482 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 106483 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 107484 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: DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 108485 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 109486 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; DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 110487 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 111488 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 112489 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. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 113490 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 **** DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 114491 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 DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697A Constructive Solutions Inc. Rob Evans President XXXXXXXXXXXXXXXXXXXXXXXXXXXX Acting City Manager, Chuck Winn DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 115492 -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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 116493 -2- Ex. C: Artwork Scope of Services Agreement City of Bozeman Constructive Solutions Inc. Signature: __________________________ Signature: _________________________ Printed: __________________________ Printed: _________________________ Title: __________________________ Title: _________________________ Date: __________________________ Date: _________________________ DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 117494 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 118495 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 119496 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: ________________ DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 120497 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 121498 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 122499 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 123500 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 124501 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, DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 125502 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 126503 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 127504 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 128505 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 129506 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 130507 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 131508 -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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 132509 -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: DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 133510 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: _______________________________ DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 134511 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 135512 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 136513 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 137514 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 138515 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 139516 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 140517 Dzintars Waiver of Proprietary Rights - Page 4 of 4 - DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 141518 DOWNTOWN BOZEMAN ALLEY ENHANCEMENT PILOT PROJECT Final Artwork Plans and Drawings Date: 1/23/2024 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 142519 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 143520 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 144521 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 145522 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 146523 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 147524 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 148525 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 149526 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. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 150527 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 151528 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 152529 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” DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 153530 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 154531 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 155532 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 156533 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 157534 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”DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 158535 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 159536 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 160537 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 161538 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 162539 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 163540 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 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 164541