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08-20-2024- City Commission Agendas & Packet Materials
A. Call to Order - 6:00 PM - Commission Room, City Hall, 121 North Rouse B. Pledge of Allegiance and a Moment of Silence or Mindfulness C. Changes to the Agenda D. Authorize Absence D.1 Authorize the Absence of Deputy Mayor Morrison (Maas) E. FYI F. Commission Disclosures G. Consent G.1 Accounts Payable Claims Review and Approval (Armstrong) THE CITY COMMISSION OF BOZEMAN, MONTANA REGULAR MEETING AGENDA Tuesday, August 20, 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 Consider the Motion: I move to authorize the absence of Deputy Mayor Morrison. 1 G.2 Authorize the City Manager to Sign the Building Code Enforcement Program Agreed Upon Procedures Engagement Letter for Fiscal Year 2024(Hodnett) G.3 Authorize the City Manager to Sign an Audit Engagement Letter for Fiscal Year 2024(Hodnett) G.4 Authorize the City Manager to Sign a Task Order with Tetra Tech for Fiscal Year 2025 Operations, Maintenance, and Monitoring at the Story Mill Landfill(Flammond) G.5 Authorize the City Manager to Sign an Amendment 2 to the PSA with Dust Bunnies Cleaning Services for Janitorial Services Citywide(Ziegler) G.6 Resolution 5543, Creation of Special Improvement Lighting District 781 South 21st Sub 235 B and C(Hodnett) G.7 Resolution 5629, Authorizing the City Manager to Sign Change Order 3 with Constructive Solutions, Inc. for The Downtown Alley Enhancement Pilot Project(Staley) G.8 Resolution 5630, Authorizing the City Manager to Sign Change Order 4 with Constructive Solutions, Inc. for The Downtown Alley Enhancement Pilot Project(Staley) H. Consent II: Items Acted Upon Without Prior Unanimous Approval H.1 Ordinance 2148, Final Adoption, Establishing a Zoning Designation of R-5, Residential High Density Mixed District and R-4, Residential High-Density District, in Association with the Annexation of 81.619 Acres, the Baxter 80 Annexation, Generally Located at the Northwest Corner of West Oak Street and Laurel Parkway, Application 23208(Rogers) I. Public Comment on Non-agenda Items Falling Within the Purview and Jurisdiction of the Commission J. Action Items J.1 Continue Resolution 5608, Establishing Tree Maintenance District Assessments for Fiscal Year 2024-2025 (FY25) to August 27, 2024(Hodnett) J.2 The Bozeman Health Services Subarea Plan Growth Policy Amendment Application to Amend the Bozeman Community Plan 2020 and the Future Land Use Map, on Approximately 560 acres, and Integrate as a “Neighborhood Plan†of the BCP2020, 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 state whether you are a resident of the city or a property owner within the city 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. Consider the Motion: Continue Resolution 5608 Establishing Tree Maintenance District Assessments for FY25 to August 27, 2024. 2 Application 24118(Rogers) K. Work Session K.1 Affordable Housing Ordinance (AHO) Work Session(Fine) L. Appointments L.1 Appointment to the Sustainability Board(Maas) M. FYI / Discussion N. Adjournment Consider the Motion (Plan): Having reviewed and considered the application materials, public comment, Community Development Board recommendation, and all the information presented, I hereby adopt the findings presented in the staff report and move to approve Application 24118, the Bozeman Health Sub-Area Plan Growth Policy Amendment. AND Consider the Motion (Future Land Use Map): Having reviewed and considered the application materials, public comment, Community Development Board recommendation, and all the information presented, I hereby adopt the findings presented in the staff report and move to approve Application 24118, the Bozeman Health Sub-Area Plan Future Land Use Map Growth Policy Amendment. Provide provide policy direction to guide drafting an ordinance to amend the Affordable Housing Ordinance. Consider the Motion: I move to appoint one member to the Sustainability Board to a term ending December 31, 2024. AND I move to appoint Rebecca Kurnick as Chair and Brooke Lahneman as Vice-chair. 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. Commission meetings are televised live on cable channel 190 and streamed live on our Meeting Videos Page. 3 Memorandum REPORT TO:City Commission FROM:Mike Maas, City Clerk SUBJECT:Authorize the Absence of Deputy Mayor Morrison MEETING DATE:August 20, 2024 AGENDA ITEM TYPE:Administration RECOMMENDATION:Consider the Motion: I move to authorize the absence of Deputy Mayor Morrison. STRATEGIC PLAN:1.1 Outreach: Continue to strengthen and innovate in how we deliver information to the community and our partners. BACKGROUND:Deputy Mayor Morrison announced his intended absence. UNRESOLVED ISSUES:None ALTERNATIVES:None FISCAL EFFECTS:None Report compiled on: August 14, 2024 4 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:August 20, 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 August 21st, 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: August 21, 2024 5 Memorandum REPORT TO:City Commission FROM:Melissa Hodnett, Finance Director SUBJECT:Authorize the City Manager to Sign the Building Code Enforcement Program Agreed Upon Procedures Engagement Letter for Fiscal Year 2024 MEETING DATE:August 20, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Approve the authorization of the City Manager to sign the Building Inspection Agreed Upon Procedures Engagement Letter for Fiscal Year 2024. 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:Administrative Rule (ARM) 24.301.208 requires an independent auditor to perform and Agreed-Upon Procedures (AUP) engagement for compliance over the building code enforcement program. The AUP engagement letter for fiscal year 2024 is with the audit firm Eide Bailly, LLP. UNRESOLVED ISSUES:None. ALTERNATIVES:None. FISCAL EFFECTS:None, this agreement is included in the annual audit budget. Attachments: City_of_Bozeman_2024_Building_AUP_Engagement_Letter.pdf Report compiled on: August 1, 2024 6 What inspires you, inspires us. | eidebailly.com 401 N. 31st St., Ste. 1120 | P.O. Box 7112 | Billings, MT 59103-7112 | TF 800.824.9797 | T 406.896.2400 | F 406.252.8600 | EOE 1 August 1, 2024 Honorable Mayor and Members of City Commission City of Bozeman 121 N Rouse Ave Bozeman, MT 59715 This letter sets forth our understanding for applying agreed-upon procedures to the City of Bozeman’s adherence to Administrative Rule (ARM) 24.301.208 building code of for the period ended June 30, 2024. The City of Bozeman is responsible for adherence to Administrative Rule (ARM) 24.301.208. This engagement is solely for the purpose of reporting our findings regarding the adherence to Administrative Rule (ARM) 24.301.208 (see Attachment A to this agreement for specific details). This report is intended for use by: City of Bozeman and the Montana State Department of Labor and Industry and is expected to be restricted to the use of these specified parties. Prior to the completion of the engagement, you agree to provide us with written agreement and acknowledgment that the procedures performed are appropriate for the intended purpose of the engagement as noted above. As part of our engagement, we will request from management, written confirmation concerning representations made to us in connection with the agreed upon procedures. This will include confirmation that we have obtained from all necessary other parties’ agreement to the procedures and acknowledgement that the procedures performed are appropriate for their purposes. You agree to provide such confirmation. Our Responsibilities The objective of our engagement is to: a) Apply specific procedures to the Building Code Enforcement Program (the “subject matter”). b) Issue a written report that describes the procedures applied and our findings without providing an opinion or conclusion on the subject matter. c) Communicate further as required by professional standards applicable to an agreed-upon procedures engagement. 7 2 We will apply the following procedures: See Attachment A We will conduct our engagement in accordance with the attestation standards for agreed-upon procedures engagements established by the American Institute of Certified Public Accountants. We are responsible for carrying out the procedures and reporting findings in accordance with these standards. We are not engaged to, and will not, conduct an examination or review engagement, the objective of which would be the expression of an opinion or conclusion, respectively, on the subject matter. Accordingly, we will not express an opinion or conclusion. We have no responsibility to determine the differences between the procedures to be performed and the procedures that we would have determined to be necessary had we been engaged to perform another form of attestation engagement. The procedures that we perform pursuant to the agreed-upon procedures engagement may be more or less extensive than the procedures that we would determine to be necessary had we been engaged to perform another form of engagement. Your Responsibilities The engagement to be performed will be conducted on the basis that you acknowledge and understand that our role is to perform an agreed-upon procedures engagement in accordance with attestation standards established by the AICPA and that you acknowledge and understand that you have responsibility: a) for the subject matter; b) to agree to and acknowledge that the procedures described in the attachment to this letter are appropriate for adherence to Administrative Rule of Montana (ARM) 24.301.208 c) to provide us, prior to the completion of the engagement, with a letter that confirms certain representations made to us during the course of the engagement. If any modifications, including any additions or subtractions, are made to the procedures described in the attachment to this letter, you will agree to the procedures performed and acknowledge that such procedures are appropriate for the intended purpose of the engagement. Our Report Upon completion of our engagement, we will issue a written report. Our report will list the procedures performed and our findings. Our report will be addressed to the City of Bozeman and will be intended for use by and restricted to the use of the specified parties as identified above. Our report will contain such restricted-use language. Our report will state the intended purpose of the engagement and will include a statement that you agreed to and acknowledged that the procedures are appropriate to meet the intended purpose of the engagement. The report will state that it may not be suitable for any other purpose. Our report will include a statement that the procedures performed may not address all items of interest to the users of the report and may not meet the needs of all users of the report and, as such, users are responsible for determining whether the procedures performed are appropriate for their purposes. Should we have any reservations with respect to the subject matter, we will discuss them with you before the report is issued. 8 3 We have no responsibility to update our report for events and circumstances occurring after the date of our report. Other Matters During the course of the engagement, we will only provide confidential engagement documentation to you via Eide Bailly’s secure portal or other secure methods, and request that you use the same or similar tools in providing information to us. Should you choose not to utilize secure communication applications, you acknowledge that such communication contains a risk of the information being made available to unintended third parties. Similarly, we may communicate with you or your personnel via e-mail or other electronic methods, and you acknowledge that communication in those mediums contains a risk of misdirected or intercepted communications. Should you provide us with remote access to your information technology environment, including but not limited to your financial reporting system, you agree to (1) assign unique usernames and passwords for use by our personnel in accessing the system and to provide this information in a secure manner; (2) limit access to “read only” to prevent any unintentional deletion or alteration of your data; (3) limit access to the areas of your technology environment necessary to perform the procedures agreed upon; and (4) disable all usernames and passwords provided to us upon the completion of procedures for which access was provided. We agree to only access your technology environment to the extent necessary to perform the identified procedures. Professional standards prohibit us from being the sole host and/or the sole storage for your financial and non- financial data. As such, it is your responsibility to maintain your original data and records and we cannot be responsible to maintain such original information. By signing this engagement letter, you affirm that you have all the data and records required to make your books and records complete. Janeen Hathcock is the engagement partner for the services specified in this letter. The engagement partner’s responsibilities include supervising services performed as part of this engagement and signing or authorizing another qualified firm representative to sign the agreed-upon procedures report. Nonattest Services With respect to any nonattest services we perform, we agree to perform the following: • Complete the auditee’s portion of the Data Collection Form, if requested. We will not assume management responsibilities on behalf of the City of Bozeman. The City of Bozeman’s management understands and agrees that any advice or recommendation we may provide in connection with our engagement are solely to assist management in performing its responsibilities. The City’s management is responsible for (a) making all management decisions and performing all management functions; (b) assigning a competent individual to oversee the services; (c) evaluating the adequacy of the services performed; (d) evaluating and accepting responsibility for the results of the services performed; and (e) establishing and maintaining internal controls, including monitoring ongoing activities. Our responsibilities and limitations of the nonattest engagement are as follows: • We will perform the services in accordance with applicable professional standards, including attestation standards for agreed-upon procedures engagements established by the American Institute of Certified Public Accountants. 9 4 • This engagement is limited to the agreed upon procedures previously outlined. Our firm, in its sole professional judgment, reserves the right to refuse to do any procedure or take any action that could be construed as making management decisions or assuming management responsibilities. Our fees are based on the amount of time required at various levels of responsibility, plus actual out-of-pocket expenses, administrative charges and a technology fee. Invoices are payable upon presentation. We estimate that our fee for the engagement will be $7,000. The ability to perform and complete our engagement consistent with the estimated fee included above depends upon the quality of your underlying accounting records and the timeliness of your personnel in providing information and responding to our requests. To assist with this process, we will provide you with an itemized request list that identifies the information you will need to prepare and provide in preparation for our engagement, as well as the requested delivery date for those items. A lack of preparation, including not providing this information in an accurate and timely manner, unanticipated adjustments, and/or untimely assistance by your personnel may result in an increase in our fees and/or a delay in the completion of our engagement. We may be requested to make certain engagement documentation available to outside parties, including regulators, pursuant to authority provided by law or regulation or applicable professional standards. If requested, access to such engagement documentation will be provided under the supervision of Eide Bailly LLP’s personnel. Furthermore, upon request, we may provide copies of selected engagement documentation to the outside party, who may intend, or decide, to distribute the copies of information contained therein to others, including other governmental agencies. We will be compensated for any time and expenses, including time and expenses of legal counsel, we may incur in making such engagement documentation available or in conducting or responding to discovery requests or participating as a witness or otherwise in any legal, regulatory, or other proceedings as a result of our Firm’s performance of these services. You and your attorney will receive, if lawful, a copy of every subpoena we are asked to respond to on your behalf and will have the ability to control the extent of the discovery process to control the costs you may incur. Should our relationship terminate before our agreed upon procedures are completed and a report issued, you will be billed for services to the date of termination. All bills are payable upon receipt. A service charge of 1% per month, which is an annual rate of 12%, will be added to all accounts unpaid 30 days after billing date. If collection action is necessary, expenses and reasonable attorney’s fees will be added to the amount due. We will maintain the confidentiality of your personal information and will apply procedures to protect against any unauthorized release of your personal information to third parties. We agree to retain our attest documentation or workpapers for a period of at least eight years from the date of our report. We may use third party service providers and/or affiliated entities (including Eide Bailly Shared Services Private Limited), whether located within or outside the United States, (collectively, “service providers”) in order to facilitate delivering our services to you. Our use of service providers may require access to client information by the service provider. We will take reasonable precautions to determine that they have the appropriate procedures in place to prevent the unauthorized release of confidential information to others. We will remain responsible for the confidentiality of client information accessed by such service provider and any work performed by such service provider. You acknowledge that your information may be disclosed to such service providers, including those outside the United States. 10 5 Neither of us may use or disclose the other’s confidential information for any purpose except as permitted under this engagement letter or as otherwise necessary for Eide Bailly to provide the services. Your confidential information is defined as any information you provide to us that is not available to the public. Eide Bailly’s confidential information includes our documentation for this engagement. Our documentation shall at all times remain the property of Eide Bailly LLP. The confidentiality obligations described in this paragraph shall supersede and replace any and all prior confidentiality and/or nondisclosure agreements (NDAs) between us. Eide Bailly LLP is a member of HLB International, a worldwide organization of accounting firms and business advisors, (HLB). Each member firm of HLB, including Eide Bailly LLP is a separate and independent legal entity and is not owned or controlled by any other member of HLB. Each member firm of HLB is solely responsible for its own acts and omissions and no other member assumes any liability for such acts or omissions. Neither Eide Bailly LLP, nor any of its affiliates, are responsible or liable for any acts or omission of HLB or any other member firm of HLB and hereby specifically disclaim any and all responsibility, even if Eide Bailly LLP, or any of its affiliates are aware of such acts or omissions of another member of HLB. Eide Bailly LLP formed The Eide Bailly Alliance, a network for small to mid-sized CPA firms across the nation. Each member firm of The Eide Bailly Alliance, including Eide Bailly LLP, is a separate and independent legal entity and is not owned or controlled by any other member of The Eide Bailly Alliance. Each member firm of The Eide Bailly Alliance is solely responsible for its own acts and omissions and no other member assumes any liability for such acts or omissions. Neither Eide Bailly LLP, nor any of its affiliates, are responsible or liable for any acts or omission of The Eide Bailly Alliance or any other member firm of The Eide Bailly Alliance and hereby specifically disclaim any and all responsibility, even if Eide Bailly LLP, or any of its affiliates are aware of such acts or omissions of another member of The Eide Bailly Alliance. MEDIATION Any disagreement, controversy or claim arising out of or related to any aspect of our services or relationship with you (hereafter a “Dispute”) shall, as a precondition to litigation in court, first be submitted to mediation. In mediation, the parties attempt to reach an amicable resolution of the Dispute with the aid of an impartial mediator. Mediation shall begin by service of a written demand. The mediator will be selected by mutual agreement. If we cannot agree on a mediator, one shall be designated by the Montana Eighteenth Judicial District Court, Gallatin County, Montana. Mediation shall be conducted with the parties in person in Bozeman, Montana. Each party will bear its own costs in the mediation. The fees and expenses of the mediator will be shared equally by the parties. Neither party may commence a lawsuit until the mediator declares an impasse. LIMITATION OF LIABILITY Eide Bailly LLP and its partners, affiliates, officers and employees (collectively “Eide Bailly”) shall not be responsible for any misstatements in the information provided to us to complete our engagement that we may fail to detect as a result of misrepresentations or concealment of information by any of your owners, directors, officers or employees. The exclusive remedy available to you for any alleged loss or damages arising from or related to Eide Bailly’s services or relationship with you shall be the right to pursue claims for actual damages that are directly caused by Eide Bailly’s breach of this agreement or Eide Bailly’s violation of applicable professional standards. In no event shall Eide Bailly’s aggregate liability to you exceed ten times fees paid under this agreement, nor shall Eide Bailly ever be liable to you for incidental, consequential, punitive or exemplary damages. 11 6 Please sign and return the attached copy of this letter to indicate your acknowledgment of, and agreement with, the arrangements for our engagement including our respective responsibilities. We appreciate the opportunity to be your certified public accountants and look forward to working with you and your staff. Respectfully, __________________________ Janeen Hathcock, CPA Assurance Partner *************************************************************** RESPONSE: This letter correctly sets forth our understanding. Acknowledged and agreed on behalf of the City of Bozeman by: Name: _______________________________________________________________ Title: ________________________________________________________________ Date: ________________________________________________________________ 12 7 ATTACHMENT A Agreed Upon Procedures: 1) We will determine if the City’s accounting records fully document the collection and expenditure of all fees and charges related to the Building Code Enforcement Program during the 2024 fiscal year. 2) We will compare the financial information included in the 2024 “Annual Report” submitted to the State Building Codes Bureau to corresponding information in the City’s accounting records and verify the information was the same. 3) From selected fiscal year 2024 building permit application, we will compare permit fees charged to the permit fee schedule established by the City and approved by the State Building Codes Bureau, and we will verify that the fees were the same. 4) From the selected fiscal year 2024 building permit applications, we will compare the total building permit fee paid to the amount credited to the Building Code Enforcement Program, and we will verify that the amounts agree and that no portion of the fee was diverted to other functions of the government. 5) We will examine selected fiscal year 2024 expenditures and other charges made from Building Code Enforcement Program-related fees to determine that all were necessary and reasonable costs directly and specifically identifiable to the enforcement of building codes, (with the exception of indirect costs charged to the Building Code Enforcement Program- see procedures 7 and 8 below). 6) We will examine selected fiscal year 2024 expenditures from the Building Code Enforcement Program to determine if any portion of permit fees collected were used to support fire departments, planning, zoning, or other activities, except to the extent that employees of those programs provided direct plan review, inspection or other building code enforcement services for the Building Code Enforcement Program. If so, we will obtain documentation from the government that supports the performance of these direct services and that documents that these costs were apportioned to the Building Code Enforcement Program on a basis supported by time sheets. 7) For indirect costs allocated to the Building Code Enforcement Program in fiscal year 2024, we will verify that the basis used to allocate costs to the Building Code Enforcement Program was the same basis used to allocate indirect costs to other proprietary funds of the City, and we will verify that indirect costs waived for any other proprietary fund of the City were also waived for the Building Code Enforcement Program. 8) For indirect costs charged to the Building Code Enforcement Program in fiscal year 2024, we will verify that they were limited to those costs allowed under 2CFR200. 9) For transfers out of the Building Code Enforcement Program Fund in fiscal year 2024, we will obtain detailed documentation from the City that describes the purposes and eventual uses of these transfers, and we will verify that these purposes and uses were in accordance with allowable expenditures as addressed in the procedures performed above. 13 8 10) We will verify that 0.5% of fiscal year 2024 revenues from plan reviews and building permits (not including revenues from electrical, mechanical or plumbing permits) collected during the year were remitted to the State Department of Labor and Industry for the building codes education program. 11) We will determine whether the reserve account (fund balance) exceeds the amount needed to support the Building Code Enforcement program for thirty six months. If so, we will verify that the City has taken steps to reduce permit fees. 14 Memorandum REPORT TO:City Commission FROM:Melissa Hodnett, Finance Director SUBJECT:Authorize the City Manager to Sign an Audit Engagement Letter for Fiscal Year 2024 MEETING DATE:August 20, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Approve the authorization of the City Manager to sign an audit engagement letter for fiscal year 2024. 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:MCA Section 2-7-503 requires that a financial report be prepared every year. This statute also requires a biannual audit of the financial report - including the accounts, financial records, and transactions of all administrative departments of the City - by independent certified public accountants selected by the City Commission. The City Commission and City Administration have historically believed that an annual audit provides a higher level of financial assurance and fiscal integrity than a biannual audit, and this intension is expressed in Section 5.09 of the City Charter. The Association of International Certified Public Account (AICPA) through AU-C 210 requires the terms of an audit engagement to be documented in an audit engagement letter. The audit engagement letter for fiscal year 2024 is with the audit firm Eide Bailly, LLP. UNRESOLVED ISSUES:None. ALTERNATIVES:None. FISCAL EFFECTS:None, this agreement is budgeted for each year. Attachments: City_of_Bozeman_2024_SA_Engagement_Letter.pdf 15 Report compiled on: July 15, 2024 16 1 July 15, 2024 Honorable Mayor and Members of City Commission City of Bozeman 121 N. Rouse Ave. City of Bozeman, MT 59715 You have requested that we audit the financial statements of the governmental activities, the business-type activities, each major fund, and the aggregate remaining fund information of City of Bozeman, Montana (the City) as of June 30, 2024, and for the year then ended, and the related notes to the financial statements, which collectively comprise the City’s basic financial statements. In addition, we will audit the City’s compliance over major federal award programs for the period ended June 30, 2024. We are pleased to confirm our acceptance and our understanding of this audit engagement by means of this letter. Our audits will be conducted with the objectives of our expressing an opinion on each opinion unit and an opinion on compliance regarding the City’s major federal award programs. The objectives of our audit of the financial statements are to obtain reasonable assurance about whether the financial statements as a whole are free from material misstatement, whether due to fraud or error, and to issue an auditor’s report that includes our opinion. Reasonable assurance is a high level of assurance but is not absolute assurance and therefore is not a guarantee that an audit conducted in accordance with auditing standards generally accepted in the United States of America (GAAS) and in accordance with Government Auditing Standards, and/or any state or regulatory audit requirements will always detect a material misstatement when it exists. Misstatements, including omissions, can arise from fraud or error and are considered material if there is a substantial likelihood that, individually or in the aggregate, they would influence the judgment made by a reasonable user based on the financial statements. The objectives of our compliance audit are to obtain sufficient appropriate audit evidence to form an opinion and report at the level specified in the governmental audit requirement about whether the City complied in all material respects with the applicable compliance requirements and identify audit and reporting requirements specified in the governmental audit requirement that are supplementary to GAAS and Government Auditing Standards , if any, and perform procedures to address those requirements. What inspires you, inspires us. | eidebailly.com 401 N. 31st St., Ste. 1120 | P.O. Box 7112 | Billings, MT 59103-7112 | TF 800.824.9797 | T 406.896.2400 | F 406.252.8600 | EOE 17 2 Accounting principles generally accepted in the United States of America (U.S. GAAP), as promulgated by the Governmental Accounting Standards Board (GASB), require management’s discussion and analysis and budgetary comparison information be presented to supplement the basic financial statements. Such information, although not a part of the basic financial statements, is required by the Governmental Accounting Standards Board, who considers it to be an essential part of financial reporting for placing the basic financial statements in an appropriate operational, economic, or historical context. As part of our engagement, we will apply certain limited procedures to the required supplementary information (RSI) in accordance with auditing standards generally accepted in the United States of America. These limited procedures will consist primarily of inquiries of management regarding their methods of measurement and presentation and comparing the information for consistency with management’s responses to our inquiries. We will not express an opinion or provide any form of assurance on the RSI. The following RSI is required by accounting principles generally accepted in the United States of America. This RSI will be subjected to certain limited procedures but will not be audited: • Management’s Discussion and Analysis • Schedule of Changes in Total OPEB Liability & Related Ratios • Schedule of Proportionate Share of Net Pension Liability and Schedule of Contributions • Budgetary Comparison Schedules • Note to RSI Supplementary information other than RSI will accompany the City’s basic financial statements. We will subject the following supplementary information to the auditing procedures applied in our audit of the basic financial statements and certain additional procedures, including comparing and reconciling the supplementary information to the underlying accounting and other records used to prepare the financial statements or to the financial statements themselves, and additional procedures in accordance with auditing standards generally accepted in the United States of America. We intend to provide an opinion on the following supplementary information in relation to the financial statements as a whole: • Combining and Individual Fund Financial Statements and Schedules - Government Funds • Combining Nonmajor Proprietary Fund Statements • Combining Internal Service Funds Statements • Combining Fiduciary Funds • Nonmajor Governmental Funds Budgetary Comparison Schedules Schedule of Expenditures of Federal Awards We will subject the schedule of expenditures of federal awards to the auditing procedures applied in our audit of the basic financial statements and certain additional procedures, including comparing and reconciling the schedule to the underlying accounting and other records used to prepare the financial statements or to the financial statements themselves, and additional procedures in accordance with auditing standards generally accepted in the United States of America. We intend to provide an opinion on whether the schedule of expenditures of federal awards is presented fairly in all material respects in relation to the financial statements as a whole. Also, the document we submit to you will include the following other additional information that will not be subjected to the auditing procedures applied in our audit of the financial statements: • Introductory Section • Statistical Section 18 3 Data Collection Form Prior to the completion of our engagement, we will complete the sections of the Data Collection Form that are our responsibility. The form will summarize our audit findings, amounts and conclusions. It is management’s responsibility to submit a reporting package including financial statements, schedule of expenditure of federal awards, summary schedule of prior audit findings and corrective action plan along with the Data Collection Form to the federal audit clearinghouse. The financial reporting package must be text searchable, unencrypted, and unlocked. Otherwise, the reporting package will not be accepted by the federal audit clearinghouse. We will assist you in the electronic submission and certification. You may request from us copies of our report for you to include with the reporting package submitted to pass-through entities. The Data Collection Form is required to be submitted within the earlier of 30 days after receipt of our auditors’ reports or nine months after the end of the audit period, unless specifically waived by a federal cognizant or oversight agency for audits. Data Collection Forms submitted untimely are one of the factors in assessing programs at a higher risk. Audit of the Financial Statements We will conduct our audits in accordance with GAAS, the standards applicable to financial audits contained in Government Auditing Standards, issued by the Comptroller General of the United States of America, the audit requirements of Title 2 U.S. Code of Federal Regulations (CFR) Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (Uniform Guidance). As part of an audit of financial statements in accordance with GAAS and in accordance with Government Auditing Standards, Uniform Guidance and/or any state or regulatory audit requirements we exercise professional judgment and maintain professional skepticism throughout the audit. We also: • Identify and assess the risks of material misstatement of the financial statements, whether due to fraud or error, design and perform audit procedures responsive to those risks, and obtain audit evidence that is sufficient and appropriate to provide a basis for our opinion. The risk of not detecting a material misstatement resulting from fraud is higher than for one resulting from error, as fraud may involve collusion, forgery, intentional omissions, misrepresentations, or the override of control. • Obtain an understanding of the system of internal control in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the City’s internal control. However, we will communicate to you in writing concerning any significant deficiencies or material weaknesses in internal control relevant to the audit of the financial statements that we have identified during the audit. • Evaluate the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by management, as well as evaluate the overall presentation of the financial statements, including the disclosures, and whether the financial statements represent the underlying transactions and events in a manner that achieves fair presentation. • Conclude, based on the audit evidence obtained, whether there are conditions or events, considered in the aggregate, that raise substantial doubt about the City’s ability to continue as a going concern for a reasonable period of time. Because of the inherent limitations of an audit, together with the inherent limitations of internal control, an unavoidable risk that some material misstatements or noncompliance may not be detected exists, even though the audit is properly planned and performed in accordance with GAAS and Government Auditing Standards of the Comptroller General of the United States of America. Please note that the determination of abuse is subjective and Government Auditing Standards does not require auditors to detect abuse. 19 4 Our responsibility as auditors is limited to the period covered by our audit and does not extend to any other periods. We will issue a written report upon completion of our audit of the City’s basic financial statements. Our report will be addressed to the governing body of the City. Circumstances may arise in which our report may differ from its expected form and content based on the results of our audit. Depending on the nature of these circumstances, it may be necessary for us to modify our opinions, add an emphasis-of-matter or other-matter paragraph(s) to our auditor’s report, or if necessary, withdraw from the engagement. If our opinions on the basic financial statements are other than unmodified, we will discuss the reasons with you in advance. If, for any reason, we are unable to complete the audit or are unable to form or have not formed opinions, we may decline to express opinions or to issue a report as a result of this engagement. In accordance with the requirements of Government Auditing Standards, we will also issue a written report describing the scope of our testing over internal control over financial reporting and over compliance with laws, regulations, and provisions of grants and contracts, including the results of that testing. However, providing an opinion on internal control and compliance over financial reporting will not be an objective of the audit and, therefore, no such opinion will be expressed. Audit of Major Program Compliance Our audit of the City’s major federal award program(s) compliance will be conducted in accordance with the requirements of the Single Audit Act, as amended; and the Uniform Guidance and will include tests of accounting records, a determination of major programs in accordance with the Uniform Guidance, and other procedures we consider necessary to enable us to express such an opinion on major federal award program compliance and to render the required reports. We cannot provide assurance that an unmodified opinion on compliance will be expressed. Circumstances may arise in which it is necessary for us to modify our opinion or withdraw from the engagement. The Uniform Guidance requires that we also plan and perform the audit to obtain reasonable assurance about whether the material noncompliance with applicable laws and regulations, the provisions of contracts and grant agreements applicable to major federal award programs, and the applicable compliance requirements occurred, whether due to fraud or error, and express an opinion on the City’s compliance based on the audit. Reasonable assurance is a high level of assurance but is not absolute assurance and therefore is not a guarantee that an audit conducted in accordance with GAAS, Government Auditing Standards, and the Uniform Guidance will always detect material noncompliance when it exists. The risk of not detecting material noncompliance resulting from fraud is higher than for that resulting from error, as fraud may involve collusion, forgery, intentional omissions, misrepresentations, or the override of internal control. Noncompliance with the compliance requirements is considered material if there is a substantial likelihood that, individually or in the aggregate, it would influence the judgment made by a reasonable user of the report on compliance about the City’s compliance with the requirements of the federal programs as a whole. As part of a compliance audit in accordance with GAAS and in accordance with Government Auditing Standards, we exercise professional judgment and maintain professional skepticism throughout the audit. We also identify and assess the risks of material noncompliance, whether due to fraud or error, and design and perform audit procedures responsive to those risks. 20 5 Our procedures will consist of determining major federal programs and performing the applicable procedures described in the U.S. Office of Management and Budget OMB Compliance Supplement for the types of compliance requirements that could have a direct and material effect on each of the City’s major programs, and performing such other procedures as we considers necessary in the circumstances The purpose of those procedures will be to express an opinion on the City’s compliance with requirements applicable to each of its major programs in our report on compliance issued pursuant to the Uniform Guidance. Also, as required by the Uniform Guidance, we will obtain an understanding of the entity’s internal control over compliance relevant to the audit in order to design and perform tests of controls to evaluate the effectiveness of the design and operation of controls that we consider relevant to preventing or detecting material noncompliance with compliance requirements applicable to each of the City’s major federal award programs. Our tests will be less in scope than would be necessary to render an opinion on these controls and, accordingly, no opinion will be expressed in our report. However, we will communicate to you, regarding, among other matters, the planned scope and timing of the audit and any significant deficiencies and material weaknesses in internal control over compliance that we have identified during the audit. We will issue a report on compliance that will include an opinion or disclaimer of opinion regarding the City’s major federal award programs, and a report on internal controls over compliance that will report any significant deficiencies and material weaknesses identified; however, such report will not express an opinion on internal control. Management Responsibilities Our audit will be conducted on the basis that management and, when appropriate, those charged with governance, acknowledge and understand that they have responsibility: 1. For the preparation and fair presentation of the financial statements in accordance with accounting principles generally accepted in the United States of America; 2. For the design, implementation, and maintenance of the system of internal control relevant to the preparation and fair presentation of financial statements that are free from material misstatement, whether due to fraud or error; 3. For identifying, in its accounts, all federal awards received and expended during the period and the federal programs under which they were received; 4. For maintaining records that adequately identify the source and application of funds for federally funded activities; 5. For preparing the schedule of expenditures of federal awards (including notes and noncash assistance received) in accordance with the Uniform Guidance; 6. For designing, implementing, and maintaining effective internal control over federal awards that provides reasonable assurance that the City is managing federal awards in compliance with federal statutes, regulations, and the terms and conditions of the federal awards; 7. For identifying and ensuring that the City complies with federal laws, statutes, regulations, rules, provisions of contracts or grant agreements, and the terms and conditions of federal award programs and implementing systems designed to achieve compliance with applicable federal statutes, regulations, and the terms and conditions of federal award programs; 8. For disclosing accurately, currently, and completely, the financial results of each federal award in accordance with the requirements of the award; 9. For identifying and providing report copies of previous audits, attestation engagements, or other studies that directly relate to the objectives of the audit, including whether related recommendations have been implemented; 10. For taking prompt action when instances of noncompliance are identified; 21 6 11. For addressing the findings and recommendations of auditors, for establishing and maintaining a process to track the status of such findings and recommendations and taking corrective action on reported audit findings from prior periods and preparing a summary schedule of prior audit findings; 12. For following up and taking corrective action on current year audit findings and preparing a corrective action plan for such findings; 13. For submitting the reporting package and data collection form to the appropriate parties; 14. For making the auditor aware of any significant contractor relationships where the contractor is responsible for program compliance; 15. To provide us with: a. Access to all information of which management is aware that is relevant to the preparation and fair presentation of the financial statements including disclosures, and relevant to federal award programs, such as records, documentation, and other matters; b. Additional information that we may request from management for the purpose of the audit; and c. Unrestricted access to persons within the City and others from whom we determine it necessary to obtain audit evidence. 16. For adjusting the financial statements to correct material misstatements and confirming to us in the management representation letter that the effects of any uncorrected misstatements aggregated by us during the current engagement and pertaining to the current year period(s) under audit are immaterial, both individually and in the aggregate, to the financial statements as a whole; 17. For acceptance of nonattest services, including identifying the proper party to oversee nonattest work; 18. For maintaining adequate records, selecting and applying accounting principles, and safeguarding assets; 19. For informing us of any known or suspected fraud affecting the City involving management, employees with significant role in the system of internal control and others where fraud could have a material effect on compliance; 20. For the accuracy and completeness of all information provided; 21. For taking reasonable measures to safeguard protected personally identifiable and other sensitive information; and 22. For confirming your understanding of your responsibilities as defined in this letter to us in your management representation letter. With regard to the schedule of expenditures of federal awards referred to above, you acknowledge and understand your responsibility (a) for the preparation of the schedule of expenditures of federal awards in accordance with the Uniform Guidance, (b) to provide us with the appropriate written representations regarding the schedule of expenditures of federal awards, (c) to include our report on the schedule of expenditures of federal awards in any document that contains the schedule of expenditures of federal awards and that indicates that we have reported on such schedule, and (d) to present the schedule of expenditures of federal awards with the audited financial statements, or if the schedule will not be presented with the audited financial statements, to make the audited financial statements readily available to the intended users of the schedule of expenditures of federal awards no later than the date of issuance by you of the schedule and our report thereon. With regard to the supplementary information referred to above, you acknowledge and understand your responsibility (a) for the preparation of the supplementary information in accordance with the applicable criteria, (b) to provide us with the appropriate written representations regarding supplementary information, (c) to include our report on the supplementary information in any document that contains the supplementary information and that indicates that we have reported on such supplementary information, and (d) to present the supplementary information with the audited financial statements, or if the supplementary information will not be presented with the audited financial statements, to make the audited financial statements readily available to the intended users of the supplementary information no later than the date of issuance by you of the supplementary information and our report thereon. 22 7 As part of our audit process, we will request from management and, when appropriate, those charged with governance, written confirmation concerning representations made to us in connection with the audit. We understand that your employees will prepare all confirmations we request and will locate any documents or invoices selected by us for testing. If you intend to publish or otherwise reproduce the financial statements and make reference to our firm, you agree to provide us with printers’ proofs or masters for our review and approval before printing. You also agree to provide us with a copy of the final reproduced material for our approval before it is distributed. Nonattest Services With respect to any nonattest services we perform, we agree to perform the following: • Complete the auditee’s portion of the Data Collection Form, if requested. We will not assume management responsibilities on behalf of the City. The City’s management understands and agrees that any advice or recommendation we may provide in connection with our audit engagement are solely to assist management in performing its responsibilities. The City’s management is responsible for (a) making all management decisions and performing all management functions; (b) assigning a competent individual to oversee the services; (c) evaluating the adequacy of the services performed; (d) evaluating and accepting responsibility for the results of the services performed; and (e) designing, implementing, and maintaining the system of internal control, including the process used to monitor the system of internal control. Our responsibilities and limitations of the nonattest services are as follows: • We will perform the services in accordance with applicable professional standards. • The nonattest services are limited to the services previously outlined above. Our firm, in its sole professional judgment, reserves the right to refuse to do any procedure or take any action that could be construed as making management decisions or assuming management responsibilities. Fees and Timing Janeen Hathcock is the engagement partner for the audit services specified in this letter. The engagement partner’s responsibilities include supervising services performed as part of this engagement and signing or authorizing another qualified firm representative to sign the audit report. Our fees are based on the amount of time required at various levels of responsibility, plus actual out-of-pocket expenses, administrative charges and a technology fee. Invoices are payable upon presentation. We estimate that our fee for the audit will be as follows: Audit of the financial statements and Single Audit (including technology fee) $ 95,000 Maximum travel costs 5,000 Total $100,000 23 8 The ability to perform and complete our engagement consistent with the estimated fee included above depends upon the quality of your underlying accounting records and the timeliness of your personnel in providing information and responding to our requests. To assist with this process, we will provide you with an itemized request list that identifies the information you will need to prepare and provide in preparation for our engagement, as well as the requested delivery date for those items. A lack of preparation, including not providing this information in an accurate and timely manner, unanticipated audit adjustments, and/or untimely assistance by your personnel may result in an increase in our fees and/or a delay in the completion of our engagement. We may be requested to make certain audit documentation available to outside parties, including regulators, pursuant to authority provided by law or regulation or applicable professional standards. If requested, access to such audit documentation will be provided under the supervision of Eide Bailly LLP’s personnel. Furthermore, upon request, we may provide copies of selected audit documentation to the outside party, who may intend, or decide, to distribute the copies of information contained therein to others, including other governmental agencies. We will be compensated for any time and expenses, including time and expenses of legal counsel, we may incur in making such audit documentation available or in conducting or responding to discovery requests or participating as a witness or otherwise in any legal, regulatory, or other proceedings as a result of our Firm’s performance of these services. You and your attorney will receive, if lawful, a copy of every subpoena we are asked to respond to on your behalf and will have the ability to control the extent of the discovery process to control the costs you may incur. Should our relationship terminate before our audit procedures are completed and a report issued, you will be billed for services to the date of termination. All bills are payable upon receipt. A service charge of 1% per month, which is an annual rate of 12%, will be added to all accounts unpaid 30 days after billing date. If collection action is necessary, expenses and reasonable attorney’s fees will be added to the amount due. Other Matters During the course of the engagement, we will only provide confidential engagement documentation to you via Eide Bailly’s secure portal or other secure methods, and request that you use the same or similar tools in providing information to us. Should you choose not to utilize secure communication applications, you acknowledge that such communication contains a risk of the information being made available to unintended third parties. Similarly, we may communicate with you or your personnel via e-mail or other electronic methods, and you acknowledge that communication in those mediums contains a risk of misdirected or intercepted communications. Should you provide us with remote access to your information technology environment, including but not limited to your financial reporting system, you agree to (1) assign unique usernames and passwords for use by our personnel in accessing the system and to provide this information in a secure manner; (2) limit access to “read only” to prevent any unintentional deletion or alteration of your data; (3) limit access to the areas of your technology environment necessary to perform the procedures agreed upon; and (4) disable all usernames and passwords provided to us upon the completion of procedures for which access was provided. We agree to only access your technology environment to the extent necessary to perform the identified procedures. Regarding the electronic dissemination of audited financial statements, including financial statements published electronically on your website or elsewhere, you understand that electronic sites are a means to distribute information and, therefore, we are not required to read the information contained in these sites or to consider the consistency of other information in the electronic site with the original document. 24 9 Professional standards prohibit us from being the sole host and/or the sole storage for your financial and non- financial data. As such, it is your responsibility to maintain your original data and records and we cannot be responsible to maintain such original information. By signing this engagement letter, you affirm that you have all the data and records required to make your books and records complete. We may use third party service providers and/or affiliated entities (including Eide Bailly Shared Services Private Limited) (collectively, “service providers”) in order to facilitate delivering our services to you. Our use of service providers may require access to client information by the service provider. We will take reasonable precautions to determine that they have the appropriate procedures in place to prevent the unauthorized release of confidential information to others. We will remain responsible for the confidentiality of client information accessed by such service provider and any work performed by such service provider. You acknowledge that your information may be disclosed to such service providers, including those outside the United States. Neither of us may use or disclose the other’s confidential information for any purpose except as permitted under this engagement letter or as otherwise necessary for Eide Bailly to provide the services. Your confidential information is defined as any information you provide to us that is not available to the public. Eide Bailly’s confidential information includes our audit documentation for this engagement. Our audit documentation shall at all times remain the property of Eide Bailly LLP. The confidentiality obligations described in this paragraph shall supersede and replace any and all prior confidentiality and/or nondisclosure agreements (NDAs) between us. We agree to retain our audit documentation or work papers for a period of at least eight years from the date of our report. Further, we will be available during the year to consult with you on financial management and accounting matters of a routine nature. You agree to share all facts that may affect your financial statements, even if you first become aware of those facts after the date of the auditor’s report but before the date your financial statements are issued. At the conclusion of our audit engagement, we will communicate to management and the City Commission the following significant findings from the audit: •Our view about the qualitative aspects of the City’s significant accounting practices; •Significant difficulties, if any, encountered during the audit; •Uncorrected misstatements, other than those we believe are trivial, if any; •Disagreements with management, if any; •Other findings or issues, if any, arising from the audit that are, in our professional judgment, significant and relevant to those charged with governance regarding their oversight of the financial reporting process; •Material, corrected misstatements that were brought to the attention of management as a result of our audit procedures; •Representations we requested from management; •Management’s consultations with other accountants, if any; and •Significant issues, if any, arising from the audit that were discussed, or the subject of correspondence, with management. Government Auditing Standards require that we provide, upon request, a copy of our most recent external peer review report and any subsequent review reports to the party contracting for the audit. Accordingly, we will provide a copy of our most recent peer review report at your request. 25 10 Eide Bailly LLP is a member of HLB International, a worldwide organization of accounting firms and business advisors, ("HLB"). Each member firm of HLB, including Eide Bailly LLP is a separate and independent legal entity and is not owned or controlled by any other member of HLB. Each member firm of HLB is solely responsible for its own acts and omissions and no other member assumes any liability for such acts or omissions. Neither Eide Bailly LLP, nor any of its affiliates, are responsible or liable for any acts or omission of HLB or any other member firm of HLB and hereby specifically disclaim any and all responsibility, even if Eide Bailly LLP, or any of its affiliates are aware of such acts or omissions of another member of HLB. Eide Bailly LLP formed The Eide Bailly Alliance Network, a network for small to mid-sized CPA firms across the nation. Each member firm of The Eide Bailly Alliance, including Eide Bailly LLP, is a separate and independent legal entity and is not owned or controlled by any other member of The Eide Bailly Alliance. Each member firm of The Eide Bailly Alliance is solely responsible for its own acts and omissions and no other member assumes any liability for such acts or omissions. Neither Eide Bailly LLP, nor any of its affiliates, are responsible or liable for any acts or omission of The Eide Bailly Alliance or any other member firm of The Eide Bailly Alliance and hereby specifically disclaim any and all responsibility, even if Eide Bailly LLP, or any of its affiliates are aware of such acts or omissions of another member of The Eide Bailly Alliance. MEDIATION Any disagreement, controversy or claim arising out of or related to any aspect of our services or relationship with you (hereafter a “Dispute”) shall, as a precondition to litigation in court, first be submitted to mediation. In mediation, the parties attempt to reach an amicable resolution of the Dispute with the aid of an impartial mediator. Mediation shall begin by service of a written demand. The mediator will be selected by mutual agreement. If we cannot agree on a mediator, one shall be designated by the Montana Eighteenth Judicial District Court, Gallatin County, Montana. Mediation shall be conducted with the parties in person in Bozeman, Montana. Each party will bear its own costs in the mediation. The fees and expenses of the mediator will be shared equally by the parties. Neither party may commence a lawsuit until the mediator declares an impasse. LIMITATION OF LIABILITY Eide Bailly LLP and its partners, affiliates, officers and employees (collectively “Eide Bailly”) shall not be responsible for any misstatements in your financial statements that we may fail to detect as a result of misrepresentations or concealment of information by any of your owners, directors, officers or employees. The exclusive remedy available to you for any alleged loss or damages arising from or related to Eide Bailly’s services or relationship with you shall be the right to pursue claims for actual damages that are directly caused by Eide Bailly’s breach of this agreement or Eide Bailly’s violation of applicable professional standards. In no event shall Eide Bailly’s aggregate liability to you exceed ten times fees paid under this agreement, nor shall Eide Bailly ever be liable to you for incidental, consequential, punitive or exemplary damages. Please sign and return the attached copy of this letter to indicate your acknowledgment of, and agreement with, the arrangements for our audit of the financial statements including our respective responsibilities. 26 11 We appreciate the opportunity to be your certified public accountants and look forward to working with you and your staff. Respectfully, __________________________ Janeen Hathcock, CPA Partner *************************************************************** RESPONSE: This letter correctly sets forth our understanding. Acknowledged and agreed on behalf of City of Bozeman, Montana by: Name: _______________________________________________________________ Title: ________________________________________________________________ Date: ________________________________________________________________ 27 Memorandum REPORT TO:City Commission FROM:Cody Flammond, Engineer II Nick Ross, Director of Transportation and Engineering SUBJECT:Authorize the City Manager to Sign a Task Order with Tetra Tech for Fiscal Year 2025 Operations, Maintenance, and Monitoring at the Story Mill Landfill MEETING DATE:August 20, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign a Task Order with Tetra Tech for Fiscal Year 2025 Operations, Maintenance, and Monitoring at the Story Mill Landfill. STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:The purpose of this task order is to allow Tetra Tech to continue operation, maintenance, and monitoring at the Story Mill Landfill site through June 2025. This work includes of operation, monitoring, and maintenance of the remediation systems, semi-annual groundwater monitoring, quarterly perimeter methane monitoring, and performance evaluation of the remediation systems and their effect on adjacent groundwater quality. Continuing this work allows the City to maintain regulatory compliance and ensure that the installed remediation systems continue to effectively mitigate known risks to public and environmental health and safety. This task order also includes oversight for the installation of additional soil vapor extraction wells along the southern and eastern site boundaries which were identified as a need in the 2019-2021 Remediation System Evaluation Report. This task order will be implemented under the 2024 professional services agreement authorized by the City Commission on August 13, 2024. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:The cost of this work will be $218,000.00. This work will be paid for using funds in the Solid Waste Landfill Post-Closure budget for Consultants and 28 Professional Services (641-5910-448.50-10). Attachments: BLF_2024-2025_Bzn_Landfill_O_M_Task_Order_- _Revised_Aug_2024.pdf Report compiled on: August 8, 2024 29 Tetra Tech 895 Technology Boulevard, Suite 101; Bozeman, MT 59718 Tel 406.582.8780 Fax 406.582.8790 tetratech.com TASK ORDER 2024 - 2025 OPERATIONS, MAINTENANCE, AND MONITORING BOZEMAN LANDFILL August 7, 2024 CLIENT: CONSULTANT: The City of Bozeman Tetra Tech, Inc. P.O. Box 1230 895 Technology Blvd, Ste 101 Bozeman, Montana 59711-1230 Bozeman, MT 59718 Attention: Mr. Cody Flammond Attention: Mr. Shane Matolyak INTRODUCTION The purpose of this task order is to conduct tasks related to operations and maintenance of the Landfill Gas (LFG) handling system, Soil Vapor Extraction (SVE) system, and Air Injection (AI) system, and environmental monitoring of groundwater, methane, and leachate/condensate at the Bozeman Landfill (a.k.a. Story Mill Landfill). These activities will be conducted between July 1, 2024 and June 30, 2025 and are directed at meeting Montana Department of Environmental Quality (DEQ) Solid Waste rules and the requirements of DEQ’s June 6, 2014 letter requiring the City of Bozeman (COB) to conduct a Corrective Measures Assessment and implement remedial measures. This task order also covers expansion of the SVE system to include seven new SVE wells in the southeast portion of the landfill. SCOPE OF SERVICES This task order includes the following work activities: • Task 100 – LFG/SVE/AI Systems Operations and Maintenance • Task 200 – Summer Groundwater Monitoring • Task 300 – Winter Groundwater Monitoring • Task 400 – Summer and Winter Groundwater Reporting • Task 500 – SVE System Expansion • Task 600 – Project Management and Administrative Support The scope of work for these tasks is outlined below. 30 Task Order – 2024 to 2025 Groundwater and Methane Monitoring and Assessment Bozeman Landfill, Bozeman, Montana July 30, 2024 Page 2 of 4 TETRA TECH Task 100: LFG/SVE/AI Systems Operations and Maintenance This task is to provide operations, maintenance, and monitoring of the LFG/SVE/AI systems. This work includes regular monitoring of the system’s Supervisory Control and Data Acquisition (SCADA) system to ensure proper functioning and to identify and predict potential issues requiring preventative maintenance. Periodic site visits will also occur to replace consumable items (i.e., air filters, bearing grease), adjust ventilation and heaters in response to changing weather conditions, observe well heads to identify and replace degraded components, and other similar operations and minor maintenance activities. Qualified subcontractors will complete major routine and unplanned maintenance as needed. Other monitoring included in this task consists of quarterly measurements of gas concentrations and flow rates at individual LFG and SVE wells, AI well flow rates, and perimeter methane monitoring with subsequent reporting to COB and DEQ. Semi-annual monitoring and reporting of the leachate/condensate discharge to the municipal wastewater treatment facility will also be completed. Task 200: Summer (June and August) Compliance Groundwater Monitoring This task is to complete groundwater monitoring in accordance with the DEQ-approved Groundwater Sampling and Analysis Plan (SAP), Bozeman Landfill, Gallatin County, Montana prepared by Tetra Tech on July 14, 2023. This plan specifies monitoring of up to 24 locations (i.e., monitoring wells, a seep, and two water supply wells) for volatile organic compounds (VOCs), chloride, sulfate, nitrogen, and metals. The actual number of monitored locations varies by year as specified in the SAP. Additional samples are collected to assess quality control and quality assurance. This work generally consists of procuring disposable sampling equipment, rental of water quality meters, sample collection, and analytical laboratory analysis. Due to sample volume and equilibration constraints introduced by the DEQ-approved use of passive sampling devices, this work is split between two different events: one occurring in June and the other in August. Task 300: Winter Compliance Groundwater Monitoring This task is to complete groundwater monitoring in accordance with the 2023 SAP during the month of November or December. This work includes monitoring of 11 locations (i.e., monitoring wells and a seep) for VOCs, chloride, sulfate, and nitrogen. Additional samples are collected to assess quality control and quality assurance. As for Task 200, this work generally consists of procuring disposable sampling equipment, rental of water quality meters, sample collection, and analytical laboratory analysis. 31 Task Order – 2024 to 2025 Groundwater and Methane Monitoring and Assessment Bozeman Landfill, Bozeman, Montana July 30, 2024 Page 3 of 4 TETRA TECH Task 400: Summer and Winter Groundwater Monitoring Reports This task includes completion of two annual reports, one for each of the monitoring events completed under Tasks 200 and 300. Each report will include descriptions of the work completed and any deviation from the methods described in the 2023 SAP. The reports will also include analytical laboratory reports and tabular and graphical depictions of pertinent data, comparison of water quality data to regulatory standards, statistical analysis of constituent detections and trends in conformance with the U.S. Environmental Protection Agency’s 2009 Statistical Analysis of Groundwater Monitoring Data at Resource Conservation and Recovery Act (RCRA) Facilities – Unified Guidance, data validation and interpretation, and recommendations for future work if warranted. Each report will be submitted COB in draft form for review and editing prior to submittal to DEQ’s Solid Waste Division. Task 500: SVE System Expansion This task will include construction oversight and reporting for the installation of four new SVE wells along the eastern boundary and three new SVE wells along the southern boundary. The new eastern boundary wells were previously designed and bid during March of 2022 but the bid was excessive, so the bidding documents were updated to include three additional SVE wells along the southern boundary in order to attract additional bidders. A successful bidder was selected in spring 2024 and construction is scheduled to begin on August 12, 2024 and extend into mid- or late-September 2024. Task 600: Project Management, Statistical Analysis, and Reporting Project management will include monthly administration / invoicing and progress reporting; semiannual budget forecasting and project summaries, scheduling of personnel, supplies procurement, and other related activities; communication with COB and DEQ; data management; and task order preparation for 2025-2026 monitoring activities. PERIOD OF PERFORMANCE Tetra Tech’s anticipated schedule to complete deliverables associated with the above-described tasks will be the following: Deliverable Completion Date Quarterly Methane Perimeter Monitoring and Report July 1, 2024 through June 30, 2025 Summer Groundwater Monitoring August 30, 2024 and June 30, 2025 Winter Groundwater Monitoring December 31, 2024 Summer 2024 Groundwater Monitoring Report November 30, 2024 Winter 2024 Groundwater Monitoring Report March 31, 2025 SVE Well Installation and Completion Report June 30, 2024 Monthly Invoices and Progress Reports July 1, 2024 through June 30, 2025 Semiannual Budget Forecasting and Project Summaries Dec. 15, 2024 and June 30, 2025 32 Task Order – 2024 to 2025 Groundwater and Methane Monitoring and Assessment Bozeman Landfill, Bozeman, Montana July 30, 2024 Page 4 of 4 TETRA TECH COSTS Estimated costs to complete the foregoing scope of services are shown below: Task Description Estimated Cost Task 100: LFG/SVE/AI Systems Operations and Maintenance $96,400.00 Task 200: Summer (June and August) Compliance Groundwater Monitoring $13,000.00 Task 300: Winter Compliance Groundwater Monitoring $10,000.00 Task 400: Summer and Winter Groundwater Monitoring Reports $34,600.00 Task 500: SVE System Expansion $34,000.00 Task 600: Project Management, Statistical Analysis, and Reporting $30,000.00 Total $218,000.00 Our costs will be on a time and materials basis. A detailed cost estimate can be provided upon request. SPECIAL CONDITIONS: Execution of this Task Order constitutes acceptance of all terms and conditions contained in Tetra Tech’s Professional Services Agreement with the City of Bozeman, dated July 31, 2024. CLIENT: CONSULTANT: City of Bozeman Tetra Tech By: By: Printed Name: Printed Name: Michael Hatten Title: Title: Date: Date: NOTICE OF CONFIDENTIALITY This Task Order (including attachments) contains information confidential to Tetra Tech, Inc., its subsidiaries, and subcontractors. It is intended only for City of Bozeman to consider Tetra Tech providing professional services at the Bozeman Landfill. Any other use is prohibited, without the prior written consent of Tetra Tech. Geosystems Operations Manager 08/07/2024 33 Memorandum REPORT TO:City Commission FROM:Max Ziegler - Facilities Assistant Superintendent SUBJECT:Authorize the City Manager to Sign an Amendment 2 to the PSA with Dust Bunnies Cleaning Services for Janitorial Services Citywide MEETING DATE:August 20, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign a Second Amendment to PSA with Dust Bunnies Cleaning Services for Janitorial Services Citywide STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:The City of Bozeman Facilities Department contracts with external providers for after hours janitorial services at a number of City buildings. The janitorial contracts are awarded based upon an extensive evaluation of qualifications and capabilities, and are for a 5 year term. Currently, Dust Bunnies Cleaning Services is our janitorial contractor for 2019-2024 and the contract will expire at the end of 2024. As the City grows and adds new buildings to its facilities portfolio requiring janitorial services, we request that the contracted janitorial services provider adds the new building to their scope of services to maintain continuity and level of service. Bozeman's new Fire Station 2 is scheduled to open in September of 2024, and will require limited janitorial services in public facing areas. Dust Bunnies was asked to submit a proposal for janitorial services at Fire Station 2 through the end of their contract term, which is the basis of this amendment. Janitorial services to be provided include cleaning of the front public lobby and restroom, as well as a police satellite office located within the fire station. UNRESOLVED ISSUES:None at this time. ALTERNATIVES:As suggested by City Commission FISCAL EFFECTS:This amendment will incur an annual cost of $5,200 to be billed in monthly intervals for the remainder of the contract, to be paid from Facilities Operating Budget. Attachments: 34 Dust_Bunnies_PSA_Second_Amendment.pdf Dust_Bunnies_PSA_Second_Amend_-_Exhibits_A_and_B.pdf Report compiled on: August 6, 2024 35 Second Amendment to Professional Services Agreement for Citywide Janitorial Services FY 2019 – FY 2025 Page 1 of 2 SECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS SECOND AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR JANITORIAL SERVICES CITYWIDE dated December 17, 2018 (the “Agreement”) is made and entered into this _____ day of ____________, 2024, by and between the CITY OF BOZEMAN, MONTANA, a self governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and Dust Bunnies Cleaning Services, 264 Coral Drive, Belgrade, MT 59714, 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 Work. Section 3 of the Agreement is amended to additionally include the scope of work for the new Fire Station 2 as detailed in Exhibit A. 2. Payment. Section 4 of the Agreement is amended to additionally include the fee for services at the new Fire Station 2 as detailed in Exhibit B. 3. Agreement still valid. All remaining terms and provisions of the Agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** 36 Second Amendment to Professional Services Agreement for Citywide Janitorial Services FY 2019 – FY 2025 Page 2 of 2 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA DUST BUNNIES CLEANING SERVICES By________________________________ By_____________________________ Chuck Winn, City Manager Print Name: Title: APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney 37 EXHIBIT A 38 Dust Bunnies Inc. Work Scope Fire Station Sanitize Restrooms: ▪ Clean and disinfect toilets and urinals. Clean interior and exterior of units. ▪ Clean and disinfect counters, sinks and soap dispensers. ▪ Clean and polish mirrors, dispensers and chrome fixtures. ▪ Sweep, damp mop, scrub and disinfect all restroom floors. ▪ Dust and wipe surfaces within reach including partitions and vents. ▪ Fill all toilet paper, paper towel, seat covers and soap dispensers. ▪ Pick up trash, empty all waste, reline waste receptacles with plastic liners. Common Areas: ▪ Pick up trash, empty all waste and recycling receptacles, reline waste with plastic liners. ▪ Dust/wipe horizontal surfaces ▪ Clean entry door glass. ▪ Spot clean marks next to light switches, doors, door frames, and glass. ▪ Sanitize and polish drinking fountains. ▪ Mop hard floors with cleaner. ▪ Vacuum carpeted areas & mats. Other Items: ▪ Turn off all lights. ▪ Ensure all doors are locked. 39 EXHIBIT B 40 8/6/2024 City Of Bozeman Bid Proposal Item Description Rate Weekly Cleaning MSU Fire Station- Once weekly Janitorial Service (Annual Rate) 5,200.00 41 Memorandum REPORT TO:City Commission FROM:Bernie Massey, Assistant Treasurer Laurae Clark, Treasurer Melissa Hodnett, Finance Director SUBJECT:Resolution 5543, Creation of Special Improvement Lighting District 781 South 21st Sub 235 B and C MEETING DATE:August 20, 2024 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Adopt Commission Resolution No. 5543 Creation of Special Improvement Lighting District 781, South 21st Sub 235 B & C STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable sources of funding for appropriate City services, and deliver them in a lean and efficient manner. BACKGROUND:The Commission did on July 23, 2024 adopt Commission Resolution No. 5542 Intent to Create Special Improvement Lighting District 781, South 21st Sub 235 B & C SILD as per MCA 7-12-4301. The property owner has been noticed of the public hearing on this date. Creating a lighting district is a requirement of final plat approval. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:schedule system maintenance. We will recover these costs by billing property owners each year on their City Assessment bill. It is estimated to cost $15.03 per acre within the district or $548.86 annually for the entire district. Attachments: Resolution 5543-Creation of SILD 781.doc Report compiled on: July 11, 2024 42 Page 1 of 4 RESOLUTION 5543 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, RELATING TO LIGHTING DISTRICT NO. 781SOUTH 21ST SUB 235 B & C SILD CREATINGTHE DISTRICT FOR THE PURPOSE OF MAINTAINING LIGHTING IMPROVEMENTS AND ASSESSING THE COSTS OF MAINTENANCE AND ENERGY THEREFOR TO BENEFITTED PROPERTY BY THE LEVY OF SPECIALASSESSMENT. BE IT RESOLVED by the City Commission (the “Commission”) of the City of Bozeman, Montana (the “City”), as follows: Section 1 Passage of Resolution of Intention. This Commission, on July 23, 2024, adopted Resolution No. 5542 (the “Resolution of Intention”), pursuant to which this Commission declared its intention to create a special lighting district, designated as Special Lighting District No. 781 (South 21stSub 235 B & C SILD)of the City (the “District”), under Montana Code Annotated, Title 7, Chapter 12, Part 43, as amended (the “Act”), for the purpose of financing costs of certain local improvements described generally therein (the “Improvements”) and paying costs incidental thereto, including costs associated with the creation and administration of the District. Section 2 Notice and Public Hearing. Notice of passage of the Resolution of Intention was duly published, posted and mailed in all respects in accordancewith law, and on August 20, 2024, thisCommission approved the creation of the District and the making of the Improvements. The meeting of this 43 Resolution 5543, Creation of SILD 781 – SOUTH 21ST SUB 235 B & C SILD Page 2 of 4 Commission at which this resolution was adopted is the first regular meeting of the Commission following the expiration of the period ended 15 days after the first date of publication of the notice of passage of the Resolution of Intention (the “Protest Period”). Section 3 Protests. Within the Protest Period, no protests were filed with the City Clerk. Section 4 Creation of the District; Insufficiency of Protests. The District is hereby created on the terms and conditions set forth in and otherwise in accordance with, the Resolution of Intention. The findings and determinations made in the Resolution of Intention are hereby ratified and confirmed. Section 5 Preparation and Levying of Assessments. It shall be the duty of the City Clerk to prepare all necessary schedules and resolutions for the levying of assessments in the District necessary to finance the Improvements and present such resolution to this Commission for adoption in conformance with Section 7-12-4328, M.C.A., on or before the first Monday in October. The City Clerk is authorized to provide notice of the resolution of assessment and schedule a public hearing therefore in conformance with Sections 7-12-4329 and 7-12-4330, M.C.A., and upon final passage of such resolution deliver it to the City Treasurer. Section 6 Lighting District Fund Established. There is hereby created a fund to be known as the Special Lighting District No. 781 Fund (the “Fund”). All money derived from the collection of the assessments as provided in Section 5 herein and the Act shall be deposited in the Fund and used to 44 Resolution 5543, Creation of SILD 781 – SOUTH 21ST SUB 235 B & C SILD Page 3 of 4 pay costs of the Improvements. PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 20 th day of August 2024. ___________________________________ TERENCE CUNNINGHAM Mayor ATTEST: ________________________________________ ALEX NEWBY Deputy City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 45 Resolution 5543, Creation of SILD 781 – SOUTH 21ST SUB 235 B & C SILD Page 4 of 4 CERTIFICATE AS TO RESOLUTION AND ADOPTING VOTE I, the undersigned, being the duly qualified and acting recording officer of the City of Bozeman, Montana (the “City”), hereby certify that the attached resolution is a true copy of Resolution No. 5543 entitled: ARESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, RELATING TO LIGHTING DISTRICT 781 (SOUTH 21ST SUB 235 B & C SILD ); CREATING THE DISTRICT FOR THE PURPOSE OF MAINTAINING LIGHTING IMPROVEMENTS AND ASSESSING THE COSTS FOR MAINTENANCE AND ENERGY THEREFOR TO BENEFITTED PROPERTY BY THE LEVY OF SPECIAL ASSESSMENT,(the “Resolution”), on file in the original records of the City in my legal custody; that the Resolution was duly adopted by the City Commission of the City at a meeting on August 20, 2024 and that the meeting was duly held by the City Commission and was attended throughout by a quorum, pursuant to call and notice of such meeting given as required by law; and that the Resolution has not as of the date hereof been amended or repealed. I further certify that, upon vote being taken on the Resolution at said meeting, the following Commissioners voted in favor thereof:______________________________________ _______________________________ ; voted against the same: _________________________; abstained from voting thereon: ________________ ; or were absent:__________________. WITNESS my hand officially this 20th day of August 2024. ___________________________________ ALEX NEWBY Deputy City Clerk 46 Memorandum REPORT TO:City Commission FROM:Ellie Staley, Downtown Bozeman Partnership SUBJECT:Resolution 5629, Authorizing the City Manager to Sign Change Order 3 with Constructive Solutions, Inc. for The Downtown Alley Enhancement Pilot Project MEETING DATE:August 20, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Approve Resolution 5629, Authorizing the City Manager to Sign Change Order 3 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 3 contains provisions to the overall contract price to increase by $1,235.00 for work and materials for ramp curbing on the west end of the project site to control drainage. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:The changes included in this result in an increase of $1,235.00 to the overall contract price. Attachments: _First_Am_Dwtwn_Alley_Enhance_Agmt_final- COMBINED_PDF.pdf CSI_CO no.3.pdf Resolution 5629_Aug 2024 Change Order 3.pdf Report compiled on: August 7, 2024 47 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 48337 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 49338 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 50339 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 51340 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 52341 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 53342 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 54343 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 55344 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 56345 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 57346 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 58347 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 59348 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 60349 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 61350 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 62351 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 63352 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 64353 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 65354 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 66355 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 67356 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 68357 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 69358 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 70359 -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 71360 -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 72361 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 73362 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 74363 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 75364 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 76365 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 77366 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 78367 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 79368 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 80369 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 81370 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 82371 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 83372 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 84373 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 85374 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 86375 -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 87376 -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 88377 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 89378 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 90379 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 91380 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 92381 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 93382 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 94383 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 95384 Dzintars Waiver of Proprietary Rights - Page 4 of 4 - DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 96385 DOWNTOWN BOZEMAN ALLEY ENHANCEMENT PILOT PROJECT Final Artwork Plans and Drawings Date: 1/23/2024 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 97386 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 98387 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 99388 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 100389 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 101390 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 102391 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 103392 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 104393 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 105394 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 106395 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 107396 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 108397 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 109398 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 110399 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 111400 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 112401 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 113402 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 114403 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 115404 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 116405 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 117406 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 118407 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 119408 Page 1 of CHANGE ORDER No. 0 DATE OF ISSUANCE EFFECTIVE DATE CONTRACTOR Constructive Solutions, Inc OWNER's Contract No. OWNER City of Bozeman Contract: 2023 Project Project: 2023 Project ENGINEER City of Bozeman ENGINEER's Contract No. You are directed to make the following changes in the Contract Documents: Description: Reason for Change Order: 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 : $ Net change from previous Change Orders No. to No. : Substantial Completion: Ready for final payment:(days) Contract Price prior to this Change Order: $ Contract Times prior to this Change Order: Substantial Completion: Ready for final payment (days or dates) Net increase (decrease) of this Change Order: $ Net increase (decrease) this Change Order: Substantial Completion: Ready for final payment: (days) Contract Price with all approved Change Orders: $ Contract Times with all approved Change Orders:Substantial Completion: Read y for fin al paym ent: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 EditionPrepared by the Engineers Joint Contract Documents Committee and endorsed by The Associated General Contractors of America and the Construction Specifications Institute. 120 Version February 2023 RESOLUTION 5629 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 3, 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 20th Day of August, 2024. 121 Version February 2023 ___________________________________ Terence Cunningham Mayor ATTEST: ___________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 122 Memorandum REPORT TO:City Commission FROM:Ellie Staley, Downtown Bozeman Partnership SUBJECT:Resolution 5630, Authorizing the City Manager to Sign Change Order 4 with Constructive Solutions, Inc. for The Downtown Alley Enhancement Pilot Project MEETING DATE:August 20, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Approve Resolution 5630, Authorizing the City Manager to Sign Change Order 4 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 4 contains provisions to the overall contract price to increase by $14,330.00 for river design layout and material adjustments. These adjustments will result in a reduced annual maintenance, easier installation and much faster curing time. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:The changes included in this result in an increase of $14,330.00 to the overall contract price. Attachments: _First_Am_Dwtwn_Alley_Enhance_Agmt_final- COMBINED_PDF.pdf CSI_CO no.4.pdf Resolution 5630_Aug 2024 Change Order 4.pdf Report compiled on: August 7, 2024 123 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 124265 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 125266 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 126267 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 127268 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 128269 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 129270 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 130271 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 131272 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 132273 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 133274 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 134275 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 135276 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 136277 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 137278 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 138279 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 139280 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 140281 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 141282 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 142283 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 143284 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 144285 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 145286 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 146287 -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 147288 -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 148289 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 149290 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 150291 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 151292 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 152293 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 153294 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 154295 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 155296 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 156297 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 157298 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 158299 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 159300 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 160301 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 161302 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 162303 -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 163304 -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 164305 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 165306 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 166307 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 167308 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 168309 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 169310 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 170311 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 171312 Dzintars Waiver of Proprietary Rights - Page 4 of 4 - DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 172313 DOWNTOWN BOZEMAN ALLEY ENHANCEMENT PILOT PROJECT Final Artwork Plans and Drawings Date: 1/23/2024 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 173314 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 174315 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 175316 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 176317 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 177318 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 178319 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 179320 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 180321 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 181322 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 182323 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 183324 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 184325 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 185326 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 186327 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 187328 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 188329 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 189330 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 190331 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 191332 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 192333 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 193334 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 194335 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 195336 Page 1 of CHANGE ORDER No. 0 DATE OF ISSUANCE EFFECTIVE DATE CONTRACTOR Constructive Solutions, Inc OWNER's Contract No. OWNER City of Bozeman Contract: 2023 Project Project: 2023 Project ENGINEER City of Bozeman ENGINEER's Contract No. You are directed to make the following changes in the Contract Documents: Description: Reason for Change Order: 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 : $ Net change from previous Change Orders No. to No. : Substantial Completion: Ready for final payment:(days) Contract Price prior to this Change Order: $ Contract Times prior to this Change Order: Substantial Completion: Ready for final payment (days or dates) Net increase (decrease) of this Change Order: $ Net increase (decrease) this Change Order: Substantial Completion: Ready for final payment: (days) Contract Price with all approved Change Orders: $ Contract Times with all approved Change Orders:Substantial Completion: Read y for fin al paym ent: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 EditionPrepared by the Engineers Joint Contract Documents Committee and endorsed by The Associated General Contractors of America and the Construction Specifications Institute. 196 Version February 2023 RESOLUTION 5630 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 4, 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 20th Day of August, 2024. 197 Version February 2023 ___________________________________ Terence Cunningham Mayor ATTEST: ___________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 198 Memorandum REPORT TO:City Commission FROM:Tom Rogers, Senior Planner Chris Saunders, Community Development Manager Erin George, Interim Director of Community Development SUBJECT:Ordinance 2148, Final Adoption, Establishing a Zoning Designation of R-5, Residential High Density Mixed District and R-4, Residential High-Density District, in Association with the Annexation of 81.619 Acres, the Baxter 80 Annexation, Generally Located at the Northwest Corner of West Oak Street and Laurel Parkway, Application 23208 MEETING DATE:August 20, 2024 AGENDA ITEM TYPE:Ordinance RECOMMENDATION:Finally adopt Ordinance 2165. 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 Commission approved Application 23208 on March 26, 2024, to annex 82.42.042 acres and establish an initial zoning designation of R-5 (Residential High Density Mixed District) on 49.129 acres and R-4 (Residential High- Density District) on 32.490 acres, subject to terms of annexation and contingencies for zoning. The property is located is located on the northwest corner of West Oak Street and Laurel Parkway. Final documents and easements were received by the Applicant on May 14, 2024. A signed annexation agreement was received on May 14, 2024, and metes and bounds property description was received on June 18, 2024. The Commission voted (4:0) to approve the annexation. The Commission voted (3:1) to approve the zone map amendment for the property, Commissioner Madgic dissenting. The proposed annexation would bring in additional right of way to build sections of Wet Oak, Laurel Parkway, and Baxter Lanes, and upon future development additional internal local street network. The property is currently vacant with no existing development or city services on the parcel. Nearby municipal zoning includes REMU, R-4, R-3, and 199 B-2M. The remaining area is bordered by un-annexed property zoned A-S in the Gallatin County Bozeman Area Zoning District. The subject properties are within the urban planning and municipal service area for the City. The Commission adopted Resolution No. 5599 annexing the property and Provisionally adopted Ordinance No. 2165 on August 6, 2024. UNRESOLVED ISSUES:There are no unresolved issues with this Ordinance. ALTERNATIVES:As determined by the Commission FISCAL EFFECTS:No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this Annexation or Zone Map Amendment. Future development will incur costs and generate review according to standard City practices. Attachments: 002_Baxter_80-ZMA.pdf 23208_Baxter_80_Ordinance_2165.pdf Report compiled on: August 7, 2024 200 WWWWWSS89°18'29"W 1332.34'N0°45'29"E 2646.92' N0°26'09"E 2689.22' S0°39'55"W 50.00' N0°45'29"E 50.00' ©COPYRIGHT MORRISON-MAIERLE, SHEET NUMBER PROJECT NO.DRAWN BY: FLD WK. BY: CHK. BY: DATE: 2023 Plotted by dom goble on Dec/11/2023U:\6893 True North Partners\002_Baxter 80 Minor Subdivision\ACAD\Exhibits\Annexation Exhibits.dwgBAXTER 80 MINOR SUBDIVISION ZONE MAP AMENDMENT BOZEMAN MONTANA 6893.002 SHT. 2 DDG HYALITE GG 10/2023engineers surveyors planners scientists MorrisonMaierle 172 Timberwolf Parkway Kalispell, MT 59901 Phone: 406.752.2216 www.m-m.net 150 3000 SCALE IN FEET BAXTER 80 ZONE MAP AMENDMENT MAP PROP O S E D Z O NI N G: R- 4 ZONING AREA SUMMARY TOTAL ZONING AREA: LEGAL DESCRIPTION OF LAND TO BE ANNEXED 100' BAXTER LANE RIGHT-OF-WAY 90' LAUREL PARKWAY RIGHT-OF-WAY 125' WEST OAK STREET RIGHT-OF-WAY NORT H W E S T C R O S SI N G SUBDI VI SI O N (REMU Z OI NI N G) TRAC T 2 C O S 2 5 5 2 (AS ZO NI N G) TRAC T 3 C O S 2 5 5 2 (AS ZO NI N G ) TRAC T 7 C O S 2 7 6 2 A (RR/A Z O NI N G) TRAC T 4 C O S 2 6 7 2 A (AS Z O NI N G) TRAC T 1 C O S 2 5 5 3 A (AS Z O NI N G ) LAUR E L G L E N SUBDI VI SI O N P H A S E 2 (R-3 Z O NI N G) P.O.B. EXISTING STRUCTURE EDGE OF WATER R-5 ZONING: R-4 ZONING: PROP O S E D Z O NI N G: R- 5 TRACT 4 C.O.S. 2552 WETLAND BOUNDARY DELINEATED BY WOODARD AND CURRAN IN 2021 LAUR E L G L E N SUBDI VI SI O N P H A S E 2 (R-3 Z O NI N G) Tract 4 of Certificate of Survey 2552, located in the northwest quarter of Section 4, Township 2 South, Range 5 East, and the south 50 feet of Tract 4 of Certificate of Survey 2672A, being the north 50 feet of the Baxter Lane right-of-way, located in the southwest quarter of Section 33, Township 1 South, Range 5 East, Principal Meridian, Montana, Gallatin County, Montana, more particularly described as follows: Beginning at the quarter corner of Sections 4, Township 2 South, Range 5 East, and Section 33, Township 1 South, Range 5 East, monumented with an aluminum cap on a 5/8-inch rebar in the centerline of the 100-foot right-of-way of Baxter Lane; thence S0°39'55”W 2640.33 feet along the east line of Tract 4 of Certificate of Survey 2552 and the centerline of the 90-foot wide right-of-way of Laurel Parkway to the southeast corner of said Tract 4 in the centerline of the 125-foot right-of-way of West Oak Street; thence S89°18'29”W 1332.34 feet along the north line of Laurel Glen Subdivision Phase 2 and the centerline of West Oak Street to the southeast corner of Tract 3 of said Certificate of Survey 2552; thence N0°45'29"E 2646.92 feet along the east lines of Tract 2 and Tract 3 of said Certificate of Survey 2552 to the northeast corner of said Tract 2; thence N0°45'29"E 50.00 feet along the west line of Tract 4 of Certificate of Survey 2672A to the north right-of-way line of Baxter Lane; thence N89°35'15"E 1327.92 feet along said north right-of-way line to the east line of said Tract 4 of Certificate of Survey 2672A; thence S0°39'55"W 50.00 feet along said east line to the Point of Beginning, containing 82.042 acres. S0°39'55"W 2640.33 TRACT 4 OF CERTIFICATE OF SURVEY 2552, LOCATED IN THE NORTHWEST QUARTER OF SECTION 4, TOWNSHIP 2 SOUTH, RANGE 5 EAST, AND THE SOUTH 50 FEET OF TRACT 4 OF CERTIFICATE OF SURVEY 2672A, LOCATED IN THE SOUTHWEST QUARTER OF SECTION 33, TOWNSHIP 1 SOUTH, RANGE 5 EAST, PRINCIPAL MERIDIAN, MONTANA, GALLATIN COUNTY ZONING R-4 AND R-5(PREVIOUSLY AS)N89°35'15"E 1327.92'49.34 acres (2,149,245 Sq. Ft.) 82.04 acres (3,573,748) Sq. Ft. 32.70 acres (1,424,503 Sq. Ft.) REVISED:12/2023 201 Ord 2165 Page 1 of 6 ORDINANCE 2165 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA AMENDING THE CITY OF BOZEMAN ZONING MAP TO INITIALLY DESIGNATE 32.49 ACRES AS R-4, RESIDENTIAL HIGH-DENSITY DISTRICT AND 49.129 ACRES AS R-5, RESIDENTIAL HIGH-DENSITY MIXED DISTRICT, KNOWN AS THE BAXTER 80 ZONE MAP AMENDMENT, APPLICATION 23208. WHEREAS, the City of Bozeman has adopted zoning regulations and a zoning map pursuant to Sections 76-2-301 and 76-2-302, M.C.A.; and WHEREAS, Section 76-2-305, M.C.A. allows local governments to amend zoning maps if a public hearing is held and official notice is provided; and WHEREAS, Section 76-2-307, M.C.A. states that the Zoning Commission must conduct a public hearing and submit a report to the City Commission for all zoning map amendment requests; and WHEREAS, the City of Bozeman Zoning Commission has been created by Section 2.05.2700, BMC as provided for in Section 76-2-307, M.C.A.; and WHEREAS, Chapter 38, Article 2 of the Bozeman Unified Development Code sets forth the procedures and review criteria for zoning map amendments; and WHEREAS, the proposed zone map amendment application to amend the City of Bozeman Zoning Map to establish a zoning classification of R-4 (Residential High Density) and R-5 (Residential High-Density Mixed District) for approximately 32.49 acres and 49.129 acres respectively has been properly submitted, reviewed, and advertised; and 202 Ordinance No. 2165, Baxter 80 Zone Map Amendment Page 2 of 6 WHEREAS, after proper notice, the Bozeman Community Development Board acting in their capacity as the Zoning Commission held a public hearing on February 5, 2024, to receive and review all written and oral testimony on the request for a zone map amendment; and WHEREAS, the Bozeman Zoning Commission recommended the Bozeman City Commission that application No. 23208 the Baxter 80 Zone Map Amendment, be approved as requested by the applicant; and WHEREAS, after proper notice, the City Commission held its public hearing on March 26, 2024, to receive and review all written and oral testimony on the request for the zone map amendment; and WHEREAS, the City Commission has reviewed and considered the zone map amendment criteria established in Section 76-2-304, M.C.A., and found that the proposed zone map amendment would be in compliance with the criteria. 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 76-3-304, MCA; 3. Zoning, including amendments to the zoning map, must be in accordance with an adopted growth policy; 4. A staff report analyzing the required criteria for a zone map 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 203 Ordinance No. 2165, Baxter 80 Zone Map Amendment Page 3 of 6 application and provide comment prior to a decision; 6. The Bozeman Zoning Commission has been established as required in state law and conducted their required public hearing; and after 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, Zoning Commission recommendation, all submitted public comment, and all other relevant information. 9. The City Commission determines that, as set forth in the staff report and incorporating the staff findings as part of their decision, the required criteria for approval of the Baxter 80 Zone Map Amendment have been satisfied. Section 2 That the zoning district designation of the following-described property is hereby designated as R-4, Residential High-Density District: An area of land comprised described as follows: That portion of Tract 4 of Certificate of Survey 2552, located in the northwest quarter of Section 4, Township 2 South, Range 5 East, and that portion of the south 30 feet of Tract 4 of Certificate of Survey 2672A, being the north 30 feet of the Baxter Lane right-of-way, located in the southwest quarter of Section 33, Township 1 South, Range 5 East, Principal Meridian, Montana, Gallatin County, Montana, more particularly described as follows: Commencing at the quarter corner of Section 4, Township 2 South, Range 5 East, and Section 33, Township 1 South, Range 5 East, monumented with an aluminum cap on a 5/8- inch rebar; thence S89°35'15"W 806.24 feet along the north line of said Section 4, also being the south line of Tract 4 of Certificate of Survey 2672A; thence S0°39'55”W 2640.33 feet to the north line of Phase 2 of Laurel Glen Subdivision; thence S89°18'29”W 536.66 feet along the north line of Phase 2 of Laurel Glen Subdivision to the southeast corner of Tract 3 of Certificate of Survey 2552; thence N0°45'29"E 2646.91 feet along the east lines of Tract 2 and Tract 3 of said Certificate of Survey 2552 to the southwest corner of Tract 4 of Certificate of Survey 2672A; thence N0°45'29"E 30 feet to the north line of the Baxter Lane right-of-way; thence N89°35'15”E 521.51 feet along the north limit of the Baxter 204 Ordinance No. 2165, Baxter 80 Zone Map Amendment Page 4 of 6 Lane right-of-way; thence S0°39'55”W 30.00 feet to the Point of Beginning, containing 32.490 acres and all as shown on said Certificate of Survey 2552. containing 32.490 acres, more or less. SUBJECT to all easements of record or apparent from visual inspection of the property. That the zoning district designation of the following-described property is hereby designated as R-5, Residential High-Density Mixed District: An area of land comprised described as follows: That portion of Tract 4 of Certificate of Survey 2552, located in the northwest quarter of Section 4, Township 2 South, Range 5 East, and that portion of the south 30 feet of Tract 4 of Certificate of Survey 2672A, being the north 30 feet of the Baxter Lane right-of-way, located in the southwest quarter of Section 33, Township 1 South, Range 5 East, Principal Meridian, Montana, Gallatin County, Montana, more particularly described as follows: Beginning at the quarter corner of Section 4, Township 2 South, Range 5 East, and Section 33, Township 1 South, Range 5 East, monumented with an aluminum cap on a 5/8-inch rebar; thence S0°39'55”W 2640.33 feet along the west line of Phase 1 of Northwest Crossing Subdivision; thence S89°18'29”W 795.68 feet along the north line of Phase 2 of Laurel Glen Subdivision ; thence N0°39'55"E 2640.33 feet to the north line of said Section 4, also being the south line of Tract 4 of Certificate of Survey 2672A; thence N0°39'55"E 30.00 feet to the north line of the Baxter Lane right-of-way; thence N89°35'15”E 806.36 feet along said north line of the Baxter Lane right-of-way to the east line of Tract 5 of Certificate of Survey 2672A; thence S0°39'55”W 30.00 feet to the Point of Beginning containing 49.129 acres and all as shown on said Certificates of Survey 2552 and 2672A. containing 49.129 acres, more or less. SUBJECT to all easements of record or apparent from visual inspection of the property. 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. 205 Ordinance No. 2165, Baxter 80 Zone Map Amendment Page 5 of 6 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. This Ordinance shall not be codified but shall be kept by the City Clerk and entered into a disposition list in numerical order with all other ordinances of the City and shall be organized in a category entitled “Zone Map Amendments.” Section 7 Effective Date. This ordinance shall be in full force and effect thirty (30) days after final adoption. 206 Ordinance No. 2165, Baxter 80 Zone Map Amendment Page 6 of 6 PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the ___th day of _______________, 2024. ____________________________________ TERENCE 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. _________________________________ TERENCE CUNNINGHAM Mayor ATTEST: _______________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 207 Memorandum REPORT TO:City Commission FROM:Bernie Massey, Assistant Treasurer Laurae Clark, Treasurer Melissa Hodnett, Finance Director SUBJECT:Continue Resolution 5608, Establishing Tree Maintenance District Assessments for Fiscal Year 2024-2025 (FY25) to August 27, 2024 MEETING DATE:August 20, 2024 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Consider the Motion: Continue Resolution 5608 Establishing Tree Maintenance District Assessments for FY25 to August 27, 2024. 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:On July 16, 1990, the City Commission passed Commission Resolution No. 2804 creating a city-wide tree maintenance district for the purpose of planting and maintaining trees in all public places, rights-of-ways and parks. On June 25, 2024, the City Commission adopted Resolution No. 5600 adopting the FY25 Budget, which included a 3% increase in Tree Maintenance District Assessments to support eligible district expenditures. UNRESOLVED ISSUES:None ALTERNATIVES:Changes to the rate approved in the FY25 Budget may require budget amendments to ensure a balanced budget. FISCAL EFFECTS:The assessment rate proposed is consistent with the FY25 Budget. The estimated annual increase to the median homeowner, on a 7,500 sq ft lot, is approximately $0.92. The total annual assessment estimated for the median homeowner is $31.46. Report compiled on: July 11, 2024 208 Memorandum REPORT TO:City Commission FROM:Tom Rogers, Senior Planner Chris Saunders, Community Development Manager Erin George, Interim Director of Community Development SUBJECT:The Bozeman Health Services Subarea Plan Growth Policy Amendment Application to Amend the Bozeman Community Plan 2020 and the Future Land Use Map, on Approximately 560 acres, and Integrate as a “Neighborhood Plan” of the BCP2020, Application 24118 MEETING DATE:August 20, 2024 AGENDA ITEM TYPE:Community Development - Legislative RECOMMENDATION:Consider the Motion (Plan): Having reviewed and considered the application materials, public comment, Community Development Board recommendation, and all the information presented, I hereby adopt the findings presented in the staff report and move to approve Application 24118, the Bozeman Health Sub-Area Plan Growth Policy Amendment. AND Consider the Motion (Future Land Use Map): Having reviewed and considered the application materials, public comment, Community Development Board recommendation, and all the information presented, I hereby adopt the findings presented in the staff report and move to approve Application 24118, the Bozeman Health Sub-Area Plan Future Land Use Map Growth Policy Amendment. 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:The City received an application to replace and update the existing Bozeman Deaconess Health Services Subarea Plan with the Bozeman Health Subarea Plan. The application amends the Bozeman Community Plan 2020 by adopting the subarea plan as a “neighborhood plan” and modifies the Future Land Use Map. The City has revised and replaced the 2001 growth policy twice since the adoption of the Bozeman Deaconess Subarea Plan; in 2009 and again with the current Bozeman Community Plan 2020 adopted through Resolution 5133 on November 17, 2020. The new growth policy necessitated evaluation 209 of all neighborhood plans and related planning documents. As noted in the Resolution of Intent for this application, the Planning Board identified the Bozeman Deaconess Subarea plan as out of step with the current growth policy and sent a letter to the Board of Directors articulating the need to revise and update the plan. Bozeman Health prepared a revised plan and submitted application to amend the BCP2020 and adopt the Bozeman Health Subarea Plan as a neighborhood plan of the BCP2020. Public outreach and consultation with partners informed the revised plan. The Subarea Plan will guide additional land planning and any future private development in ways that honor the vision of Bozeman Health and the Gallatin Valley community. Please refer to the Bozeman Health Subarea Plan for a full list of public outreach, partners, and desired outcome [External PDF Link]. The draft Bozeman Health Services Subarea Plan brings the existing plan further into compliance with the current Bozeman Community Plan 2020 and better responds to the conditions and the environment. As with most human activity, there are both positive and negative impacts on community to varying degrees. The plan details the goals and objectives Bozeman Health hopes to achieve and how it plans to mitigate impacts. Significant changes from the current plan to the new plan are as follows: 1. Changes to the FLUM are limited to areas east of Highland Boulevard 2. Sensitive lands and The Glen area are designated as Open Lands and Parks 3. Shifting the commercial area on Kagy Boulevard west to a more developable location 4. Better coordination with adopted city plans, i.e., Transportation Plan, Comprehensive Parks, Recreation, and, Active Transportation Plan, Climate Action Plan, Gallatin Valley Sensitive Lands Protection plan, Water Conservation Plan, and others Much of the planning area is zoned R-S zoned to allow continued farming activities. The adoption of the plan does not change the zoning, that will occur upon future development activity. Finally, this is only an amendment to the growth policy, no development plans are proposed. The process to amend the growth policy is initiated by a Resolution of Intent. The Commission adopted Resolution 5597 on July 9, 2024, indicating its intention to consider the application, and set the public hearing schedule with the Planning Board and the City Commission. The review process and criteria are no different than an individual plan or map amendment, only more comprehensive in nature. The most recent sub area plan update was the Downtown Bozeman Plan update reviewed and approved on April 15, 2019, see application 18197. Application materials are available through the City’s website. Public 210 comment has been received and can be viewed at the following web link. https://weblink.bozeman.net/WebLink/Browse.aspx? id=291772&dbid=0&repo=BOZEMAN The Community Development Board, acting in their capacity as the Planning Board, held a public hearing on August 5, 2024. Five members of public commented on the application. The comments were generally supportive and focused on preserving the Glen, encouraging a variety of housing types, water availability, and infrastructure needs for future development. Board discussion addressed a wide variety of subject matter relating to the proposal. Primary focus areas included the collaborative approach to develop of plan, protection of the Glen by applying the Parks and Open Lands future land use designation to the area and creates a foundation to allow expansion of Bozeman Health facilities and supporting community health in general. In conclusion the Board voted 8:0 to recommend approval of the text of the plan and 8:0 to recommend approve of the future land use amendments to the City Commission. A video recording of the deliberations can be viewed at the following web link. https://bozeman.granicus.com/player/clip/2330?view_id=1&redirect=true UNRESOLVED ISSUES:No unresolved issues have been identified. ALTERNATIVES:1. Approve with the recommended contingencies; 2. Approve with modifications; 3. Deny based on non-compliance with the applicable criteria contained within the staff report; or 4. Conduct 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 growth policy amendment. Attachments: 211 24118 BZN Health GPA CC SR.pdf Report compiled on: August 7, 2024 212 Page 1 of 26 24118, Staff Report for the Bozeman Health Sub-Area Plan, Adopted as a Neighborhood Plan, Growth Policy Amendment (GPA) Public Hearing Dates: Community Development Board August 5, 2024. City Commission August 20, 2024. Project Description: A growth policy amendment to amend the Bozeman Community Plan 2020 and the future land use map for a variety of land use designations on approximately 559.374 acres. The application and adopting Resolution will repeal and replace the existing Bozeman Deaconess Sub-Area plan with the revised plan. The sub-area plan will be a “neighborhood plan” of the Bozeman Community Plan 2020, Application 24118. Project Location: The property includes approximately 559 acres. The subject property includes the hospital campus and the Knolls at Hillcrest development west of Highland Boulevard, the open areas generally bounded by Highland Boulevard to the west, Kagy Boulevard on the south, Haggarty Lane and Bozeman Trail to the east, and Ellis Street to the north. The request includes a variety of Future Land Use designations including adjacent roadway and utility easements. The property is more particularly described as portions of Tract 1 and 2 of COS 2047, The Knolls at Hillcrest Subdivision, and Minor Subdivision No. 162C, all situated in Sections 17 and 18, Township Two-South (T2S), Range Six East (R6E), P.M.M., City of Bozeman, Gallatin County, Montana. Recommendation: Meets standards for approval with contingencies Community Development Board Motion (Plan): Having reviewed and considered the application materials, public comment, and all information presented, I hereby move to adopt the findings presented in the staff report and recommend the City Commission approve the Bozeman Health Sub-Area Plan Growth Policy Amendment, application 24118. Community Development Board Motion (Future Land Use Map): Having reviewed and considered the application materials, public comment, and all information presented, I hereby move to adopt the findings presented in the staff report and recommend the City Commission approve the Bozeman Health Sub-Area Plan Future Land Use Map Growth Policy Amendment, application 24118. City Commission Recommended Motion (Plan): Having reviewed and considered the application materials, public comment, Community Development Board recommendation, and all the information presented, I hereby adopt the findings 213 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 2 of 26 presented in the staff report and move to approve Application 24118, the Bozeman Health Sub-Area Plan Growth Policy Amendment. City Commission Recommended Map Motion (Future Land Use Map): Having reviewed and considered the application materials, public comment, Community Development Board recommendation, and all the information presented, I hereby adopt the findings presented in the staff report and move to approve Application 24118, the Bozeman Health Sub-Area Plan Future Land Use Map Growth Policy Amendment. Report: July 24, 2024 Staff Contact: Tom Rogers, Senior Planner Agenda Item Type: Action – Legislative EXECUTIVE SUMMARY Unresolved Issues No unresolved issues have been identified. Project Summary The City received an application to replace and update the existing Bozeman Deaconess Health Services Subarea Plan with the Bozeman Health Subarea Plan. The application amends the Bozeman Community Plan 2020 by adopting the subarea plan as a “neighborhood plan” and modifies the Future Land Use Map. The Bozeman Health property was annexed into the city in December 2000 and included waivers of right-to-protest the creation of special improvement districts for streets, intersections, and park maintenance district. See Document Number 2027254 recorded with the Gallatin County Clerk and Recorder’s Office. Subsequently, and based on the Bozeman 2020 Community Plan adopted on October 22, 2001, Bozeman Health commissioned services to prepare a master plan land use plan for the property. The objective of the Subarea Plan is to help BDHS create a plan which is credible, achievable, and based on solid background and economic logic to produce the highest and best use of the property, and to further the mission statement of BDHS. The Bozeman Deaconess Health Services Subarea Plan was established with Resolution No. 3950 on August 28, 2006. The Plan is hosted on the City of Bozeman’s web site [External PDF Link]. 214 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 3 of 26 The City has revised and replaced the 2001 growth policy twice since the adoption of the Bozeman Deaconess Subarea Plan; in 2009 and again with the current Bozeman Community Plan 2020 adopted through Resolution 5133 on November 17, 2020. The new growth policy necessitated evaluation of all neighborhood plans and related planning documents. As noted in the Resolution of Intent for this application, the Planning Board identified the Bozeman Deaconess Subarea plan as out of step with the current growth policy and sent a letter to the Board of Directors articulating the need to revise and update the plan. Bozeman Health prepared a revised plan and submitted application to amend the BCP2020 and adopt the Bozeman Health Subarea Plan as a neighborhood plan of the BCP2020. Public outreach and consultation with partners informed the revied plan. The Subarea Plan will guide additional land planning and any future private development in ways that honor the vision of Bozeman Health and the Gallatin Valley community. Please refer to the Bozeman Health Subarea Plan for a full list of public outreach, partners, and desired outcome [External PDF Link]. The draft Bozeman Health Services Subarea Plan brings the existing plan further into compliance with the current Bozeman Community Plan 2020 and better responds to the conditions and the environment. As with most human activity, there are both positive and negative impacts on community to varying degrees. The plan details the goals and objectives Bozeman Health hopes to achieve and how it plans to mitigate impacts. Significant changes from the current plan to the new plan are as follows: ▪ Changes to the FLUM are limited to areas east of Highland Boulevard. ▪ Sensitive lands and The Glen area are designated as Open Lands and Parks ▪ Shifting the commercial area on Kagy Boulevard west to a more developable location ▪ Better coordination with adopted city plans, i.e., Transportation Plan, Comprehensive Parks, Recreation, and, Active Transportation Plan, Climate Action Plan, Gallatin Valley Sensitive Lands Protection plan, Water Conservation Plan, and others Much of the planning area is zoned R-S zoned to allow continued farming activities. The adoption of the plan does not change the zoning, that will occur upon future development activity. Finally, this is only an amendment to the growth policy, no development plans are proposed. The process to amend the growth policy is initiated by a Resolution of Intent. The Commission adopted Resolution 5597 on July 9, 2024, indicating its intention to consider the application, and set the public hearing schedule with the Planning Board and the City Commission. The review process and criteria are no different than an individual plan or map amendment, only more comprehensive in nature. The most recent sub area plan 215 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 4 of 26 update was the Downtown Bozeman Plan update reviewed and approved on April 15, 2019, see application 18197. Application materials are available through the City’s website. Public comment has been received and be viewed at the following link [External Web Link]. Community Development Board Summary The Community Development Board, acting in their capacity as the Planning Board, held a public hearing on August 5, 2024. Five members of public commented on the application. The comments were generally supportive and focused on preserving the Glen, encouraging a variety of housing types, water availability, and infrastructure needs for future development. Board discussion addressed a wide variety of subject matter relating to the proposal. Primary focus areas included the collaborative approach to develop of plan, protection of the Glen by applying the Parks and Open Lands future land use designation to the area and creates a foundation to allow expansion of Bozeman Health facilities and supporting community health in general. In conclusion the Board voted 8:0 to recommend approval of the text of the plan and 8:0 to recommend approve of the future land use amendments to the City Commission. A video recording of the deliberations can be viewed at the following web link. https://bozeman.granicus.com/player/clip/2330?view_id=1&redirect=true Alternatives 1. Approve with the recommended contingencies; 2. Approve with modifications; 3. Deny based on non-compliance with the applicable criteria contained within the staff report; or 4. Conduct and continue the public hearing, with specific direction to staff or the applicant to supply additional information or to address specific items. 216 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 5 of 26 TABLE OF CONTENTS EXECUTIVE SUMMARY ........................................................................................................... 2 Unresolved Issues ............................................................................................................. 2 Project Summary ............................................................................................................... 2 Community Development Board Summary .................................................................... 4 Alternatives ........................................................................................................................ 4 SECTION 1 - MAP SERIES........................................................................................................ 6 SECTION 2 - CONTINGENCIES OF APPROVAL .................................................................... 12 SECTION 3 - RECOMMENDATIONS AND FUTURE ACTIONS ............................................. 12 SECTION 4 - STAFF ANALYSIS AND FINDINGS .................................................................. 13 APPENDIX A - PROJECT SITE ZONING AND GROWTH POLICY ......................................... 22 APPENDIX B - NOTICING AND PUBLIC COMMENT ............................................................ 25 APPENDIX D - OWNER INFORMATION AND REVIEWING STAFF .................................... 26 217 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 6 of 26 SECTION 1 - MAP SERIES Map 1: Location Map 218 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 7 of 26 Map 2: View of existing area Future Land Use Map designations 219 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 8 of 26 Map 3: Current Zoning 220 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 9 of 26 Figure 1: Relationship of Bozeman Health Plan to other City Plans, Codes and Standards Bozeman Health Subarea Plan 221 Page 10 of 26 Map 4: Current Future Land Use Map 222 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 11 of 26 Map 4: Proposed Future Land Use Map 223 Page 12 of 26 SECTION 2 - CONTINGENCIES OF APPROVAL If the City Commission approves the application, the following contingencies are recommended. Please note that these contingencies are necessary for the City to complete the processing of the proposed amendment. Recommended Contingencies: 1) To encourage a compliant and applicable plan, the Bozeman Health Services Subarea Plan must be evaluated and revised as necessary pursuant to State Law, major revisions to the Bozeman Community Plan or as needed. The determination for a revision shall be made in cooperation with the City and Bozeman Health. If no action to update and revise as needed after a determination that the Plan is stale, the Plan shall become null and void 90 days after determination. 2) If the City Commission directs changes to the Plan or proposed Future Land Use map, the Applicant must revise and resubmit prior to preparing the Resolution(s) to adopt the Plan and/or Future Land Use Map. SECTION 3 - RECOMMENDATIONS AND FUTURE ACTIONS Having considered the criteria established for a growth policy map amendment, Staff finds the application meets standards for approval as submitted, with detailed analysis provided in Section 4 below. The Development Review Committee (DRC) considered the amendment on March 17, 2024, and finds no limitations on approval. This determination means the city’s utility and infrastructure plan anticipated capacities can adequately accommodate any proposed use for either the Urban Neighborhood or Community Commercial Mixed Use future land use designation. The Community Development Board in their capacity as the Planning Board will hold a public hearing on August 5, 2024, to make a recommendation to the City Commission for the growth policy and map amendments. After consideration of all materials and matters they recommended approval or disapproval of the amendment. The hearing begins at 6:00 p.m. Meetings will be held in the location and manner identified on the meeting agenda. The City Commission will hold a public hearing on the growth policy map amendment on August 20, 2024. The hearing begins at 6:00 p.m. Meetings will be held in the location and manner identified on the meeting agenda. 224 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 13 of 26 SECTION 4 - 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. In considering applications for approval under this title, the advisory boards and City Commission must consider the following criteria. 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. See the application materials for the applicant’s response to criteria and arguments in favor of approval. To reach a favorable decision on the proposed application the City Commission must find that the application meets all of criteria 1-4 of Chapter 5| Plan Amendments, Review Triggers Amendments, and Amendment Criteria, page 67, Bozeman Community Plan 2020. In making these findings, they may identify that there are some negative elements within the specific criteria with the final balance being a positive outcome for approval. When an amendment to either the text of the Plan or the future land use map is requested, it must be reviewed against the criteria cited herein and listed below: 1. The proposed amendment must cure a deficiency in the growth policy or improve the growth policy to better respond to the needs of the general community; 2. The proposed amendment does not create inconsistencies within the growth policy, either between the goals and the maps or between different goals and objectives; 3. The proposed amendment must be consistent with the overall intent of the growth policy; and 4. The proposed amendment must not adversely affect the community as a whole or any significant portion thereof by: a. Significantly altering land use patterns and principles in a manner contrary to those established by this Plan, b. Requiring unmitigated improvements to streets, water, sewer, or other public facilities or services, thereby impacting development of other lands, c. Adversely impacting existing uses because of inadequately mitigated impacts on facilities or services, or d. Negatively affecting the health and safety of the residents. 225 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 14 of 26 1. The proposed amendment must cure a deficiency in the growth policy or improve the growth policy to better respond to the needs of the general community; Criterion met. This criterion contains two alternate parts. A favorable finding for either part supports a positive finding. The time horizon for the BCP2020 is 20 years and the future land use map and other elements such as the city’s facility plans extend further into the future. The plan is the city’s fundamental land-use planning document that helps the Commission determine how and where to apply limited resources in the most impactful and financially sustainable manner. The Bozeman Deaconess Subarea Plan and future land use map has been in place for 20 years and while the subject property has not been developed, fundamental changes in the plan and community have evolved. The revised plan and map are created and analyzed following the BCP2020. The BCP2020 lists seven themes that describe the vision of the city with numerous goals and objectives designed to achieve the outcome. There is often tension between some of the goals and objectives and importance of a given goal may change over time. And, perhaps most important, these goals and objectives are dependent on one another. A key responsibility of the City Commission in implementing the BCP2020 is balancing the competing priorities that the plan must address. That balance may be adjusted over time as one issue takes greater importance. The Future Land Use Map (FLUM) for the Planning Area is an indispensable part of this Plan. It utilizes ten land use categories to illustrate and guide the intent, type of use, density, and intensity of future development. The map does not always represent existing uses but does reflect the uses that are desired. The subarea plan refines the FLU Map by responding to the environmental constraints, makes minor improvements to the location of commercial nodes that are more viable for development, and refine the boundaries for future residential development. The Bozeman Health Services Subarea plan GPA is in the unique position to touch on a variety of Themes of the BCP2020 by covering a large geographical area and multiple future land use designations. Bozeman’s community plan draws on best land use practices, community input, Bozeman’s land use planning experience, and the ideas discussed in the Themes. The City used the following themes to prepare the policies, goals, objectives, land use designations, and future land use map in this Plan. The Bozeman Health Subarea Plan provides detailed discussion and analysis in support of the amendment, see Bozeman Health Services Subarea Plan, Appendix C: Community Plan Amendment. That analysis is hereby incorporated into this report in support of the application. In addition to the findings provided by the applicant, staff provides an overarching finding of compliance below. 226 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 15 of 26 THEME 1 | A RESILIENT CITY Our City desires to be forward thinking, collaborative, and deliberate in planning and execution of plans and policies to enable our community to successfully ride the waves of change. Comment: The plan furthers this theme by proactively creating a collaboratively developed plan that meets a wide variety of needs of the city; housing, open space for recreation, commercial nodes, and acknowledgement of future transportation needs for a variety of users. Further, the intent and purpose of the plan according to the application is to creates a visionary framework for the future of this land. The plan focuses on the relationships between the various components of great neighborhoods—natural areas, parks, trails, active transportation network, community nodes, and a basic street grid, all supporting a variety of housing. These overarching components of the plan will mitigate future disruptive shocks and change. See page 13 Bozeman Health Subarea Plan intent statements: 1. Uphold our mission to improve community health and quality of life 2. Partner with our community in regional growth challenges and opportunities by supporting the Bozeman Community Plan 3. Ensure access for all to an #OutdoorHealthyLife by preserving and enhancing Highland Glen 4. Engage the community to identify common values and outcomes to be reflected in the Subarea Plan 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. Comment: The geographic context of the plan area encompasses this theme. Proximity to existing services and transportation network, i.e., general services such as Town and Country Foods, gas stations, hotels, health care, and recreation areas, uniquely qualify the plan to lay the groundwork for a diverse, healthy, and inclusive area of town, and to expand vibrant neighborhoods, quality housing, walkability, excellent schools, numerous parks and trails, and thriving areas of commerce. Adopted city engineering, planning, building, parks and open space, sustainability, water conservation, transportation, and other standards ensure these outcomes even without specific development plans in place. 227 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 16 of 26 THEME 3 | A CITY BOLSTERED BY DOWNTOWN AND COMPLEMENTARY DISTRICTS Our City is bolstered by our Downtown, Midtown, University and other commercial districts and neighborhood centers that are characterized by higher densities and intensities of use. Comment: The geographic context of the plan area encompasses this theme. Proximity to existing goods and services, transportation network, proximity to other districts, healthcare, and recreational opportunities create the foundation for an emerging district. The proposed plan and associated amendment to the future land use map indicates higher densities than previously contemplated and preservation of environmentally sensitive lands, The Glen, will add to the unique character of the area upon development. Specific goals and policies furthered by this amendment include DCD-1, Support urban development within the city and Goal DCD-2: Encourage growth throughout the City, while enhancing the pattern of community development oriented on centers of employment and activity. Support an increase in development intensity within developed areas. Collaboration with community stakeholders including Gallatin Valley Land Trust, Bridger Ski Foundation, Marwyn-Lindley Neighborhood Association, New Hyalite View Neighborhood Association, The Knolls Neighborhood, and city Departments will support the development of the emerging Bozeman Health district. 228 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 17 of 26 Illustration: Page 32, BCP2020, Complementary Districts 229 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 18 of 26 THEME 4 | A CITY INFLUENCED BY OUR NATURAL ENVIRONMENT, PARKS, AND OPEN LANDS Our City is home to an outdoor-conscious population that honors and protects our natural environment and our well-managed open space and parks system. Comment: The Plan explicitly addresses the unusual natural environment context of the property. This area includes the only large ravine area in the City. Through coordination with community partners large swaths of these areas are preserved for the community in perpetuity. As stated on page 16 of the Bozeman Health Plan, “All recreational lands, including parks, are included within this category, as well as certain private lands. These areas are generally open in character and may or may not be developed for active recreational purposes. This category includes conservation easements or other private property which may not be open for public use.” To memorize this statement the open lands and parks anticipated in the plan are being converted to the Parks and Open Lands future land category and reflected on the future land use map. Additional park areas may be created during the subdivision process and such would not be in conflict with the proposed future land use map. Illustration: Bozeman Health Proposed Future Land Use Diagram 230 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 19 of 26 THEME 5 | A CITY THAT PRIORITIZES ACCESSIBILITY AND MOBILITY CHOICES Our City fosters the close proximity of housing, services, and job, and desires to provide safe, efficient mobility for pedestrians, cyclists, transit users, and drivers. Comment: Numerous goals and objectives of the Bozeman Community Plan foster a comprehensive approach to transportation and the Bozeman Health Subarea plan spends considerable effort addressing mobility. The mix of uses on the future land use map provides origins and destinations for work, housing, recreations, and services. Transportation and mobility are further supported by other city plans such as the City’s Transportation Plan, Comprehensive Parks, Recreation, and, Active Transportation Plan, Climate Action Plan, Gallatin Valley Sensitive Lands Protection plan, and the Water Conservation Plan to name a few. The Bozeman Health Subarea Plan addresses mobility and transportation in Chapter 3: The Farmwork and in Chapter 4: The Plan. Subsection 4 - Linear Parks, 5 – Active Transportation Network and section 6 – Potential Street Alignment of Chapter 3 speak to linear parks, active transport system, and the potential street network. Chapter 4: The Plan provides greater direction on the connected parks and trails and a district that prioritizes accessibility and mobility. Perhaps more importantly is the discussion to integrate complete streets, integrated transit, and safe crossings. See Figure 9. Framework Elements Map, Bozeman Health Subarea Plan, page 33 – 34. 2. The proposed amendment does not create inconsistencies within the growth policy, either between the goals and the maps or between different goals and objectives. Criterion met. Staff reviewed the growth policy goals and objective and future land use map. The proposed amendment does not create any identified significant inconsistencies within the growth policy goals or between goals and maps. See discussion for Criterion 1. In fact, the draft Bozeman Health Services Subarea Plan brings the existing plan further into compliance with the current Bozeman Community Plan 2020 and better responds to the conditions and the environment as described above. All future development must demonstrate compliance with all regulatory standards addressing transportation, parks, building design, and all other standards. The standards have been crafted and adopted to implement the goals and objectives of 231 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 20 of 26 the growth policy. Therefore, compliance with the standards will ensure this criterion is met. Properties to the east, west, and south are designated residential in nature while areas to the north continue the commercial node to the north. The original plan for the development included a small commercial are to serve the residents in the area, which is moved to better respond to environmental constraints. The city desires a mix of use in close proximity to meet employment, educational, housing, and other needs. Staff did not identify conflicts between map elements or goals and objectives from the proposed amendment. 3. The proposed amendment must be consistent with the overall intent of the growth policy. The overall intent of the growth policy is to address issues of development and change while protecting public health, safety, and welfare (page 20) proactively and creatively. If approved, the proposed amendment to the future land use map will allow the site to be considered for future applications that, if approved, would allow development or further development of the site. The growth policy discusses the primary issue of “Does the City Have to Grow” and the subsequent equation, if so how, see pages 12 – 15 Bozeman Community Plan 2020. This discussion illustrates, in part, why this application is both consistent and not consistent with the overall intent of the plan. Specific goals and objectives found in Chapter 2 further this statement. The City supports development within its boundaries where municipal services can be effectively and efficiently provided. The property has been annexed and the Development Review Committee considered the application and did not find infrastructure constraints that cannot be addressed through further development review. The BCP2020 in several themes encourages infill and densification of area already served with utilities. Utilities and transportation are available to parts of the subarea plan and are planned for further extension into the site. The change, if approved, will facilitate placement of substantial residential near existing commercial activity, health care, parks and open space, and the greater transportation system. The priorities found in the BCP2020 must be balanced by evolving community needs and market forces. Bozeman Health Services Subarea Plan, Appendix D: Montana Land Use Planning Act analysis is hereby incorporated into this report in support of the application. 232 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 21 of 26 4. The proposed amendment will not adversely affect the community as a whole or significant portion thereof by: a) Significantly altering land use patterns and principles in a manner contrary to those established by this Plan, Criterion Met. The proposed plan and map amendment improves on the adopted community plan and refines the expectations for the property while bringing the neighborhood plan further into compliance with the BCP2020. As noted in the Executive Summary, the revisions continue the foundation built with the existing plan and refine, based on a variety of influences, the land use classifications to better respond. As shown in the maps section, the property is surrounded by other Urban Residential and Community Commercial Mixed-Use areas. It is not uncommon to have islands of different categories in this scale of mapping. Although there is a change in designation for some areas, Staff finds the change will not significantly alter the land use pattern contrary to the Bozeman Community Plan. As discussed in Criterion 1, the proposed amendment advances many goals and principles and is not contrary to the growth policy. b) Requiring unmitigated improvements to streets, water, sewer, or other public facilities or services, thereby impacting development of other lands, No negative impacts to other lands or the community are anticipated as a result of the proposed growth policy amendment. The site is located within the service boundary for municipal infrastructure and all city services are constructed and directly adjacent to the subject property. Future extension of large-scale services are depicted in the various facility plans. Although there are substantial infrastructure improvements needed prior to development of portions of the site, they are a known quantity and will be coordinated as needed. Prior to development, additional review is required. Adopted city standards will ensure essential transportation, water, sewer, and communication utilities within the site. The proposed change in future land use designation does not alter the essential layout of municipal services. The property is adjacent to arterial and collector streets. No unusual impacts on infrastructure are expected. c) Adversely impact existing uses because of inadequately mitigated impacts on facilities and services, 233 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 22 of 26 No adverse impacts have been identified at this time. The DRC considered impacts of both outcomes and found no limitations that cannot be addressed with further review. Additional review will occur during site development and mitigation of any potentially adverse impacts will be addressed at that time, as required by municipal code. This approach enables mitigation to be proportionate to the proposed development as required by law. The applicant provided discussion of the proposed development in the Narrative submitted in the application which indicate that municipal services are not materially impacted by the potential change. d) Negatively affecting the health and safety of the residents. Staff finds that the 2024 Bozeman Health Services Subarea Plan will not negatively affect the livability of the area or the health and safety of the residents. On the contrary, the goals and strategies within the plan are intended to ensure organized development of the site, preservation of community resources and sensitive lands, and provide for neighborhood scale commercial area to serve the general area. Similar uses and scale of development surround the property and, in general, will serve to connect disconnected properties to the community and provide a full transportation system reducing impacts on existing substandard intersections and streets. Minor changes are proposed with one exception, the addition of classifying known sensitive lands to Parks and Open Lands Future Land Use designation. This change memorializes preservation of undevelopable lands. APPENDIX A - PROJECT SITE ZONING AND GROWTH POLICY Zoning Designation and Land Uses: The property is inside Bozeman city limits and is zoned R-S, Residential Suburban, R-O, Residential Office, and B-2, Community Business District. A Master Site Plan has been approved for the developed hospital campus to the west of Highland Boulevard. Adopted Growth Policy Designations: The following designations are applicable to this application. Existing designations: URBAN NEIGHBORHOOD. The 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 234 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 23 of 26 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. COMMUNITY COMMERCIAL MIXED USE 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. 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. 235 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 24 of 26 Proposed Designation: COMMUNITY COMMERCIAL MIXED USE See above for designation description. URBAN NEIGHBORHOOD. See above for designation description. PARKS AND OPEN SPACE All recreational lands, including parks, are included within this category, as well as certain private lands. These areas are generally open in character and may or may not be developed for active recreational purposes. This category includes conservation easements or other private property which may not be open for public use. Zoning Correlation with Land Use Categories 236 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 25 of 26 APPENDIX B - NOTICING AND PUBLIC COMMENT Notice was sent via US first class mail to the owners of the subject property and all owners of property located within 200 feet of the perimeter of the site. The project site was posted with a copy of the notice on site in three locations as depicted in the image below. The notice was published in the Legal Ads section of the Bozeman Daily Chronicle on July 20 and 27, 2024. The Planning Board public hearing is scheduled for Monday, August 5, 2024. The City Commission is scheduled and advertised to conduct a public hearing on the application on Tuesday, August 20, 2024. No written public comments have been received regarding this project at this time. Illustration 2: Post Notice Locations - Green dots 237 24118, Staff Report for the Bozeman Health Subarea Plan GPA Page 26 of 26 Bozeman Health Services Subarea Plan, Appendix E: Community Engagement process and content is hereby incorporated into this report in support of the application in support of the noticing and public comment. APPENDIX D - OWNER INFORMATION AND REVIEWING STAFF Owner: Bozeman Health, Atten: Steve Klein, 915 Highland Blvd., Bozeman MT 59715 Applicant: Sanderson Stewart, 106 E Babcock Street, Suite L1, Bozeman, MT 59715 Report By: Tom Rogers, AICP, Senior Planner FISCAL EFFECTS No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this growth policy 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. Application materials are available through the City’s website. 238 Memorandum REPORT TO:City Commission FROM:David Fine, Economic Development Manager Brit Fontenot, Economic Development Director SUBJECT:Affordable Housing Ordinance (AHO) Work Session MEETING DATE:August 20, 2024 AGENDA ITEM TYPE:Policy Discussion RECOMMENDATION:Provide provide policy direction to guide drafting an ordinance to amend the Affordable Housing Ordinance. STRATEGIC PLAN:4.5 Housing and Transportation Choices: Vigorously encourage, through a wide variety of actions, the development of sustainable and lasting housing options for underserved individuals and families and improve mobility options that accommodate all travel modes. BACKGROUND:Please see attached Commission Memorandum. UNRESOLVED ISSUES:None at this time. ALTERNATIVES:As suggested by the Commission. FISCAL EFFECTS:None at this time. Attachments: AHO_Feasibility_Analysis_2024.docx CC Memo AHO 20240820.pdf Report compiled on: July 31, 2024 239 MEMORANDUM To:City of Bozeman From:Root Policy Research Re:Bozeman AHO Analysis for Shallow Incentives—Market Conditions Update Date:August 12, 2024 In 2021, Root Policy Research provided a feasibility analysis to evaluate the viability of certain development incentives in exchange for affordable units in Bozeman. The results of that analysis, in part, helped form the shallow incentives of the City’s current Affordable Housing Ordinance (AHO). In response to recent market shifts—including increases in the HUD AMI, which drives income qualifications for affordable housing—the City contracted Root Policy to update the feasibility analysis on shallow incentives to evaluate whether changes to the AHO may be merited. Market Trends HUD Area Median Income.Housing programs rely on income limits published by the U.S. Department of Housing and Urban Development (HUD) that are represented as percentages of the area median family income (commonly abbreviated as “HUD AMI” or simply “AMI”). HUD publishes current-year income limits based on an internal calculation that estimates AMIs by household size and region—in Bozeman’s case the region is defined as Gallatin County. HUD programs typically use the following AMI brackets and terminology: Households earning 30%AMI are considered “extremely-low income”("ELI”)and below the federal poverty level; Households earning between 31% and 50% AMI are “very low income”; Households earning between 51% and 80% AMI are “low income”;and Households with incomes between 80% and 120% are considered “moderate income”. However, 60% AMI is another common threshold for housing programs because the Low Income Housing Tax Credit (LIHTC) program requires affordable rental units to average to 60% AMI affordability. Over the last 3 years (since 2021), HUD AMI in Bozeman (and Gallatin County) rose 23%; the current AMI for a 4-person household is $109,000 (see Figure 1). 240 Page 2 Figure 1.HUD AMI, Gallatin County, 2000 -2024 Source:HUD Income Limits and Root Policy Research. The previous (2021)AHO Feasibility analysis targeted affordability for renter households with incomes below 80% AMI and owner households with incomes below 100% AMI for condos and below 120% AMI for detached homes. At the time, those AMI thresholds were consistent with recommendations in the City’s Community Housing Action Plan. However, recent data on housing needs (outlined in the City’s CDBG Consolidated Plan) shows that rental needs are now concentrated below 60% AMI rather than 80% AMI. Rental Market.According to data from CoStar, a data aggregator for the multifamily rental market, the median asking rent for a typical apartment in Bozeman is $2,138. Asking rents for newly constructed rentals are even higher—around $2,750 for a 2-bedroom. As shown in Figure 2, current rents (Q2 2024) reflect a slight drop from the pervious year, though forecasts show rents are expected to rise in the near term. Figure 2.Asking Rent by Bedroom, Bozeman Market Area, 2000-2029 Source:CoStar and Root Policy Research. 241 Page 3 Figure 3 compares the median asking rent to affordable rents at 80% AMI and 60% AMI from 2000 to 2024. As illustrated, the gap between 80% rents and market-rate asking rents has narrowed, particularly over the past five years. In other words—80% AMI is not as much of a “discount” from market rents as it was in the mid 2010s, when the last Housing Needs Assessment was conducted. Figure 3.Market Rents vs Affordable Rents, 2000 -2024 Note:Affordable rents are shown for a 3-person household size. Source:CoStar, HUD AMI, and Root Policy Research.. For-Sale Market.Price increases have been steeper in the for-sale market than the rental market. The median market value of the typical home in Bozeman is currently $738,000—18% higher than the 2021 median. Over that same period, affordability (or purchasing power) dropped 22% as the impact of rising interest rates far outweighed the impact of rising incomes.Figure 4 compares trends in the market value of homes to affordable purchase prices for households at 80% AMI, 100% AMI and 120% AMI. Figure 4.Median Value and Affordable Purchase Price by AMI, 2000 -2024 Note:Affordable purchase formula matches original AHO analysis: 30-year fixed rate mortgage at prevailing rates by year, 5% down, 10% of payment for taxes, insurance, HOA, etc. with monthly housing costs equal to 30% of income for 3-person household. Source:Zillow, HUD AMI, and Root Policy Research. 242 Page 4 at Target AMIs at Higher AMIs 3-Story Rental Residential 1-3 Story height bonus (4-6 story building) and parking reduction to 1.0 spaces per unit 5% of units at 80% AMI 8% of units at 100% AMI 3-Story Condo (Owner Residential) 1-3 Story height bonus (4-6 story building) and parking reduction to 1.0 spaces per unit 2%-3% of units at 100% AMI 4% of units at 120% AMI Lot size reduction to 2,200 SF lot 5% of units at 100% AMI 9% of units at 120% AMI Lot size reduction to 1,800 SF lot 7% of units at 100% AMI 13% of units at 120% AMI Single-Household Unit on 4,000 SF lot Lot size reduction to 3,000 SF lot 1.5% of units at 120% AMI 2% of units at 150% AMI Townhome on 3,000 SF lot Incentive PackageBaseline prototype Feasible Affordability Requirement AHO Feasibility Model Financial feasibility models are based on development proformas typically used in the real estate industry to determine whether a project is financially feasible. A proforma is comprised of a development budget (construction and other costs associated with building development); an estimate of income as units are sold or rented; and an estimate of project value based on project income at stabilization and the estimated value of the entire development at sale. The feasibility model starts with base case scenarios that reflect development conditions under Bozeman’s existing zoning code. This updated analysis (2024) maintains the same prototypes as were used in the 2021 Feasibility Analysis: 3-story rental residential with standard parking requirements (2.0 spaces for a 2- bedroom unit); 3-story multifamily condo development with standard parking requirements (2.0 spaces for a 2-bedroom unit); For-Sale townhomes with a 3,000 square foot lot size; and Single-household units with a 4,000 square foot lot size. Root then adjusts the base case scenarios by allowing incentives (e.g., smaller lot sizes, increased building heights, and/or parking reductions) in exchange for the inclusion of income-restricted units in the development. The crux of the feasibility analysis is then comparing the returns to developers/investors on the base case to returns on incentive case developments.Improved returns suggest the incentive package is favorable to developers and a viable option to incentivize creation of affordable units. 2021 Feasibility Results.The feasibility analysis conducted in 2021 showed the following incentive packages and affordability requirements to be viable on paper, meaning they improve developer returns. Figure 5.2021 Incentive Viability Source: Root Policy Research. 243 Page 5 Despite the viability of the above incentives “on paper,” some developers (in 2021) were skeptical that there would be market demand for higher buildings and smaller lot sizes. In other words, developers seem relatively content with existing entitlements. As such, incentive adoption may be low among existing market-rate developers in Bozeman. It was also noted that the City likely hoped incentive packages would yield a greater proportion of affordable units than is modeled in the feasibility analysis. In response to these feasibility findings and in consideration of the City’s affordable housing goals and priorities, the City adopted an Affordable Housing Ordinance in August 2022 that offered “shallow incentives” in exchange for 5% of homes at 80% AMI for renal units or 120% AMI for sale units. Proforma Updates in 2024. For the sake of comparison, Root maintained the same prototypes, general proforma structure, and incentives as were modeled in 2021. Key data updates in the 2024 model were: Updated AMIs and associated rental/purchase affordability, consistent with 2024 HUD Income Limits (note: both the 2021 and 2024 models assume a 3-person household size and a 2-bedroom rental unit); Updated market rents and home prices based on Costar and Zillow data (discussed on the previous pages of this memo) with an upward adjustment for new construction (new construction premiums are roughly 16% on for-sale products and 23% on rental products); Updated construction costs (roughly a 14% increase over 2021 costs) and operating expenses (applies to multifamily rental only); Updated interest rates for construction and development financing (up from 4.0% and 4.5% in 2021 to 7.85% and 6.75% in 2024); and Updated capitalization rate for valuation calculations (5.75% in 2024 vs 5.0% in 2021). It is important to note that levered returns—accounting for debt service—show that rental development in 2024 is extremely challenging (very low margin) under current conditions, primarily due to high financing costs. Even so, a feasibility model can still provide useful information on the relationship between base-case development scenarios and inventive scenarios. The key objective is not to measure nominal profitability, but to measure the change in profitability between base case and incentive options.That relationship remains intact regardless of debt service. 2024 Feasibility results.Feasibility results are illustrated in proforma outcomes on the following pages. Key findings are summarized below: Rising interest rates, which impact debt service on multifamily projects, have had a chilling effect on the multifamily development market—a typical project that was viable 244 Page 6 in 2021 no longer meets a standard threshold for return expectations—typically 100 to 150 basis points above prevailing cap rates. (Even so, many developers are adjusting to new market standards and finding ways to move deals forward). However, the relationship between base case returns and incentive-case returns remains intact for rental residential projects. As interest rates come down and/or developers adjust to the current market conditions, the existing AHO remains viable. Further, the differing trajectories of rents and incomes create an opportunity to lower AMI targets in the AHO on multifamily rental projects without compromising the benefit of the incentives. The return differential (difference between incentive and baseline returns) with 60% AMI units in 2024 is greater (i.e., more favorable) than at 80% AMI in 2021 (with 5% set-asides). Conversely, the gap between incomes and affordable sale prices has widened, which makes the current incentives on for-sale products less powerful. It is, therefore, less likely that developers will utilize the for-sale incentives under today’s market conditions (relative to 2021). Multi-unit rental residential.Figure 6 shows the feasibility model proforma for the baseline 3-story prototype along with prototypes of increasing height paired with parking reductions and affordability requirements. In the figure, green shading highlights the incentive package; red shading highlights the affordability requirement, and incentive viability is indicated by an increase in return on cost and project valuation. Some metrics from the 2021 proforma analysis are included below the 2024 proforma for the sake of comparison. Note that net cash flow is relatively low across all prototypes in 2024—particularly the baseline—due to the high cost of debt service under current lending conditions. Even so, the relationship between baseline and the bonus variations shows higher potential return metrics under an incentive program.This indicates that the AHO incentive remains viable, even under adverse market conditions. 245 Page 7 Figure 6.Feasibility of Incentives for Multi-Unit Rental Prototype: 5% set aside at 80% AMI Source: Root Policy Research. Baseline 3-Story 4-Story 5-Story 6-Story 12-Story Multi-Unit Multi-Unit Multi-Unit Multi-Unit Multi-Unit Prototype/Incentive Description Bldg Height or Density 3 stories 4 stories 5 stories 6 stories 12 stories Lot size per unit 1,452 990 495 403 272 Affordable unit requirement 0%5%5%5%5% AMI target n/a 80% AMI 80% AMI 80% AMI 80% AMI Site and Prototype Characteristics Parcel Size (acres)1.00 1.25 1.25 1.25 1.25 Density (DU/acre)30.00 42.00 88.00 108.00 160.00 Building SF (excl. parking for M-U)28,000 51,944 103,889 127,500 177,778 Efficiency 95%90%90%90%90% Parking Ratio 2.0/unit 1.0/unit 1.0/unit 1.0/unit 0.5/unit Parking Type 100% surface 100% surface50% sur / 50% str50% sur / 50% str25% ug/ 75% str Total Units 30 55 110 135 200 Income Restricted Units 0 3 6 7 10 Avg SF per unit (2 Bedroom)850 850 850 850 800 Development Costs Land Costs 1,661,814$ 2,077,268$ 2,077,268$ 2,077,268$ 2,077,268$ Infrastructure and Site Cost 1,588,800$ 2,953,537$ 4,820,915$ 5,960,183$ 6,392,875.63$ Construction Cost 7,944,000$ 14,767,683$ 32,139,433$ 39,734,550$ 63,928,756$ Soft Costs 1,588,800$ 2,953,537$ 6,427,887$ 7,946,910$ 12,785,751$ Contingency (5% of hard+soft costs)556,080$ 1,033,738$ 2,169,412$ 2,682,082$ 4,155,369$ Construction financing cost 581,938$ 1,081,807$ 2,270,289$ 2,806,799$ 4,348,594$ Total Development Cost 13,921,432$ 24,867,569$ 49,905,204$ 61,207,791$ 93,688,614$ Total Development Cost per Unit 464,048$ 452,138$ 453,684$ 453,391$ 468,443$ Revenues and Operating Expenses Rental/Sales Revenue Market-Rate Rent (per unit /mo)2,747$ 2,747$ 2,747$ 2,747$ 2,884$ Income Restricted Rent (per unit /mo)-$ 1,963$ 1,963$ 1,963$ 1,963$ Vacancy Rate 5%5%5%5%5% Net Operating Income 762,334$ 1,439,636$ 2,879,271$ 3,533,651$ 5,493,495$ Valuation Detail Project Value (NOI/Cap Rate)13,257,979$ 25,037,143$ 50,074,286$ 61,454,805$ 95,539,037$ Annual debt service on long-term financing 758,471$ 1,354,841$ 2,718,947$ 3,334,738$ 5,104,366$ Annual Net Cash Flow (after debt service)3,863$ 84,795$ 160,324$ 198,914$ 389,129$ Return on Cost 5.5%5.8%5.8%5.8%5.9% 2021 Results for Comparison Baseline Bonus Variations with 5% of units at 80% AMI Development Costs Total Development Cost 12,265,655$ 21,885,329$ 43,748,078$ 53,637,173$ 82,078,024$ Total Development Cost per Unit 408,855$ 397,915$ 397,710$ 397,312$ 410,390$ Revenues and Operating Expenses Net Operating Income / Sales Revenue 838,028$ 1,501,897$ 3,003,794$ 3,686,475$ 5,733,115$ Valuation Detail Annual Net Cash Flow (after debt service)337,189$ 608,260$ 1,217,443$ 1,496,325$ 2,381,649$ Return on Cost 6.8%6.9%6.9%6.9%7.0% MULTI-UNIT RENTAL Bonus Variations 246 Page 8 Figure 7 shows the same baseline condition and incentive package but adjusts the affordability requirement to target 60% AMI units rather than 80% AMI units (still with a 5% set-aside). As illustrated by the increase in project valuation and return on cost, the incentive remains beneficial, even at the deeper AMI targets. Figure 7.Feasibility of Incentives for Multi-Unit Rental Prototype: 5% set aside at 60% AMI Source: Root Policy Research. Baseline 3-Story 4-Story 5-Story 6-Story 12-Story Multi-Unit Multi-Unit Multi-Unit Multi-Unit Multi-Unit Prototype/Incentive Description Bldg Height or Density 3 stories 4 stories 5 stories 6 stories 12 stories Lot size per unit 1,452 990 495 403 272 Affordable unit requirement 0%5%5%5%5% AMI target n/a 60% AMI 60% AMI 60% AMI 60% AMI Site and Prototype Characteristics Parcel Size (acres)1.00 1.25 1.25 1.25 1.25 Density (DU/acre)30.00 42.00 88.00 108.00 160.00 Building SF (excl. parking for M-U)28,000 51,944 103,889 127,500 177,778 Efficiency 95%90%90%90%90% Parking Ratio 2.0/unit 1.0/unit 1.0/unit 1.0/unit 0.5/unit Parking Type 100% surface 100% surface50% sur / 50% str50% sur / 50% str25% ug/ 75% str Total Units 30 55 110 135 200 Income Restricted Units 0 3 6 7 10 Avg SF per unit (2 Bedroom)850 850 850 850 800 Development Costs Land Costs 1,661,814$ 2,077,268$ 2,077,268$ 2,077,268$ 2,077,268$ Infrastructure and Site Cost 1,588,800$ 2,953,537$ 4,820,915$ 5,960,183$ 6,392,875.63$ Construction Cost 7,944,000$ 14,767,683$ 32,139,433$ 39,734,550$ 63,928,756$ Soft Costs 1,588,800$ 2,953,537$ 6,427,887$ 7,946,910$ 12,785,751$ Contingency (5% of hard+soft costs)556,080$ 1,033,738$ 2,169,412$ 2,682,082$ 4,155,369$ Construction financing cost 581,938$ 1,081,807$ 2,270,289$ 2,806,799$ 4,348,594$ Total Development Cost 13,921,432$ 24,867,569$ 49,905,204$ 61,207,791$ 93,688,614$ Total Development Cost per Unit 464,048$ 452,138$ 453,684$ 453,391$ 468,443$ Revenues and Operating Expenses Rental/Sales Revenue Market-Rate Rent (per unit /mo)2,747$ 2,747$ 2,747$ 2,747$ 2,884$ Income Restricted Rent (per unit /mo)-$ 1,472$ 1,472$ 1,472$ 1,472$ Vacancy Rate 5%5%5%5%5% Net Operating Income 762,334$ 1,424,243$ 2,848,486$ 3,495,869$ 5,437,521$ Valuation Detail Project Value (NOI/Cap Rate)13,257,979$ 24,769,441$ 49,538,882$ 60,797,719$ 94,565,576$ Annual debt service on long-term financing 758,471$ 1,354,841$ 2,718,947$ 3,334,738$ 5,104,366$ Annual Net Cash Flow (after debt service)3,863$ 69,402$ 129,538$ 161,131$ 333,155$ Return on Cost 5.5%5.7%5.7%5.7%5.8% MULTI-UNIT RENTAL Bonus Variations 247 Page 9 Figure 8 shows the same baseline condition and incentive package but adjusts the affordability requirement to a higher set-aside: 8% of units rather than 5%, with an income target of 80% AMI units. The proforma impacts of 8% at 80% AMI are roughly equivalent to an affordability requirement of 5% at 60% AMI. Figure 8.Feasibility of Incentives for Multi-Unit Rental Prototype: 8% set aside at 80% AMI Source: Root Policy Research. Multi-unit owner residential (condos).Root also modeled multifamily structures developed for owner-occupied units (i.e., condos). Note that although the heights are the same as the rental residential model, condos typically have higher development costs due to differing insurance requirements, size of unit, and finish level. The feasibility results below shows affordability incentives with 5% of units at 120% AMI, in line with the current shallow Baseline 3-Story 4-Story 5-Story 6-Story 12-Story Multi-Unit Multi-Unit Multi-Unit Multi-Unit Multi-Unit Prototype/Incentive Description Bldg Height or Density 3 stories 4 stories 5 stories 6 stories 12 stories Lot size per unit 1,452 990 495 403 272 Affordable unit requirement 0%8%8%8%8% AMI target n/a 80% AMI 80% AMI 80% AMI 80% AMI Site and Prototype Characteristics Parcel Size (acres)1.00 1.25 1.25 1.25 1.25 Density (DU/acre)30.00 42.00 88.00 108.00 160.00 Building SF (excl. parking for M-U)28,000 51,944 103,889 127,500 177,778 Efficiency 95%90%90%90%90% Parking Ratio 2.0/unit 1.0/unit 1.0/unit 1.0/unit 0.5/unit Parking Type 100% surface 100% surface50% sur / 50% str50% sur / 50% str25% ug/ 75% str Total Units 30 55 110 135 200 Income Restricted Units 0 4 9 11 16 Avg SF per unit (2 Bedroom)850 850 850 850 800 Development Costs Land Costs 1,661,814$ 2,077,268$ 2,077,268$ 2,077,268$ 2,077,268$ Infrastructure and Site Cost 1,588,800$ 2,953,537$ 4,820,915$ 5,960,183$ 6,392,875.63$ Construction Cost 7,944,000$ 14,767,683$ 32,139,433$ 39,734,550$ 63,928,756$ Soft Costs 1,588,800$ 2,953,537$ 6,427,887$ 7,946,910$ 12,785,751$ Contingency (5% of hard+soft costs)556,080$ 1,033,738$ 2,169,412$ 2,682,082$ 4,155,369$ Construction financing cost 581,938$ 1,081,807$ 2,270,289$ 2,806,799$ 4,348,594$ Total Development Cost 13,921,432$ 24,867,569$ 49,905,204$ 61,207,791$ 93,688,614$ Total Development Cost per Unit 464,048$ 452,138$ 453,684$ 453,391$ 468,443$ Revenues and Operating Expenses Rental/Sales Revenue Market-Rate Rent (per unit /mo)2,747$ 2,747$ 2,747$ 2,747$ 2,884$ Income Restricted Rent (per unit /mo)-$ 1,963$ 1,963$ 1,963$ 1,963$ Vacancy Rate 5%5%5%5%5% Net Operating Income 762,334$ 1,424,887$ 2,849,774$ 3,497,450$ 5,430,470$ Valuation Detail Project Value (NOI/Cap Rate)13,257,979$ 24,780,643$ 49,561,286$ 60,825,215$ 94,442,949$ Annual debt service on long-term financing 758,471$ 1,354,841$ 2,718,947$ 3,334,738$ 5,104,366$ Annual Net Cash Flow (after debt service)3,863$ 70,046$ 130,827$ 162,712$ 326,104$ Return on Cost 5.5%5.7%5.7%5.7%5.8% MULTI-UNIT RENTAL Bonus Variations 248 Page 10 incentives of the AHO. However, it should be noted that the 2021 feasibility model showed incentives with 4% of units at 120% AMI to be feasible, but with 5% of units (at 120% AMI), the results were not as favorable. Figure 9.Feasibility of Incentives for Multi-Unit For-Sale (Condo) Prototype: 5% Set Aside at 120% AMI Source: Root Policy Research. In 2021, incentive packages with a 5% affordability requirement at 120% AMI resulted in a modest drop in returns (-0.6%) for the 4-story option and flat returns with the 5-story option. Baseline 3 Story 4-Story 5-Story Condos Condo Condo Prototype/Incentive Description Bldg Height or Density 3 stories 4 stories 5 stories Lot size per unit 1,556 1,047 514 Affordable unit requirement 0%5%5% AMI target n/a 120% AMI 120% AMI Site and Prototype Characteristics Parcel Size (acres)1.00 1.25 1.25 Density (DU/acre)28.0 42.0 84.8 Building SF (excl. parking for M-U)28,000 53,444 108,944 Efficiency 95%90%90% Parking Ratio 2.0/unit 1.0/unit 1.0/unit Parking Type 100% surface 100% surface50% sur / 50% str Total Units 28 52 106 Income Restricted Units 0 3 5 Avg SF per unit (2 Bedroom)925 925 925 Development Costs Land Costs 1,661,814$ 2,077,268$ 2,077,268$ Infrastructure and Site Cost 1,768,883$ 3,392,743$ 5,582,119$ Construction Cost 8,844,416$ 16,963,717$ 37,214,127$ Soft Costs 1,768,883$ 3,392,743$ 7,442,825$ Contingency (5% of hard+soft costs)619,109$ 1,187,460$ 2,511,954$ Construction financing cost 647,898$ 1,242,677$ 2,628,759$ Total Development Cost 15,311,003$ 28,256,609$ 57,457,051$ Total Development Cost per Unit 546,822$ 543,396$ 542,048$ Revenues and Operating Expenses Sales Revenue Sale Price Market Rate (per unit)595,000$ 595,000$ 595,000$ Income Restricted Sale Price (per unit)-$ 423,569$ 423,569$ Sales Revenue 16,660,000$ 30,494,281$ 62,161,418$ Valuation Detail Cost of sale/marketing (2% of rev)166,600$ 304,943$ 621,614$ Project Margin 1,182,397$ 1,932,729$ 4,082,753$ Return on Cost 7.7%6.8%7.1% 2021 Results for Comparison Bonus Variations with 5% of units at 120% AMI Development Costs Total Development Cost 13,485,444$ 24,858,822$ 50,376,579$ Total Development Cost per Unit 481,623$ 478,054$ 475,251$ Revenues and Operating Expenses Sales Revenue 15,400,000$ 28,225,210$ 57,536,005$ Valuation Detail Project Margin 1,606,556$ 2,801,884$ 6,008,706$ Return on Cost 11.9%11.3%11.9% Condos Bonus Variations 249 Page 11 In 2024 the return on cost declines by nearly a full percentage point with the one-story incentive package and half a percentage point with the 2-story incentive package (though project margin still increases nominally with both packages). In other words, the incentive packages perform worse in 2024 than they did in 2021.This is because purchasing power at 120% AMI declined as mortgage interest rates rose such the market rate units are now subsidizing a deeper discount to affordable units. Townhome and single unit for-sale residential.A similar analysis was conducted for lower-density for-sale products in which the incentive was a reduction in lot size. Figure 10 shows the feasibility results of the specified lot size reductions paired with affordability requirements of 5% of units at 120% AMI. Root also explored an alternative affordability requirement for single household units that raises the AMI target to 140% AMI (to match the state definition of “workforce” housing). Results from the 2021 Feasibility Study are included below the figure for comparison. Note that in 2021, incentives were feasible for townhome products with affordability requirements at 5% at 120% AMI but were not feasible for single-unit detached prototypes with the same affordability requirements. In 2021, the maximum feasible affordability requirements were 1.5% at 120% AMI and 2% at 150% AMI. 2024 results for townhomes show that returns do improve with the incentive packages; however, the gains are not as large as they were in 2021. Feasibility results for single-unit detached are also less favorable now than in 2021. 250 Page 12 Figure 10.Feasibility of Incentives for Single-Unit For-Sale Prototypes: 5% Set Aside at 120% AMI Source: Root Policy Research. Baseline Baseline Townhome Townhome Townhome Single-HH Single-HH Single-HH 17 du/a 20 du/a 24 du/a 11 du/a 15 du/a 22 du/a Prototype/Incentive Description Dwelling Units per Acre 15 du/a 20 du/a 24 du/a 11 du/a 15 du/a 22 du/a Lot size per unit 3,000 2,200 1,800 4,000 3,000 2,000 Affordable unit requirement 0%5%5%0%5.0%5.0% AMI target n/a 120% AMI 120% AMI n/a 120% AMI 120% AMI Site and Prototype Characteristics Parcel Size (acres)6.89 5.05 4.13 9.18 6.89 4.59 Total Units 100 100 100 100 100 100 Income Restricted Units 0 5 5 0 5 5 Avg SF per unit 1,000 1,000 1,000 1,500 1,500 1,500 Development Costs Land Costs 8,175,000$ 5,995,000$ 4,905,000$ 10,028,000$ 7,521,000$ 5,014,000$ Infrastructure and Site Cost 9,576,000$ 9,576,000$ 9,576,000$ 17,057,250$ 17,057,250$ 17,057,250$ Construction Cost 27,360,000$ 27,360,000$ 27,360,000$ 48,735,000$ 48,735,000$ 48,735,000$ Soft Costs 4,104,000$ 4,104,000$ 4,104,000$ 8,284,950$ 8,284,950$ 8,284,950$ Contingency (5% of hard+soft costs)2,052,000$ 2,052,000$ 2,052,000$ 3,703,860$ 3,703,860$ 3,703,860$ Construction financing cost 1,213,758$ 1,213,758$ 1,213,758$ 2,190,833$ 2,190,833$ 2,190,833$ Total Development Cost 52,480,758$50,300,758$49,210,758$89,999,893$ 87,492,893$ 84,985,893$ Total Development Cost per Unit 524,808$ 503,008$ 492,108$ 899,999$ 874,929$ 849,859$ Revenues and Operating Expenses Rental/Sales Revenue Sale Price Market Rate (per unit)571,886$ 556,635$ 546,515$ 959,512$ 923,531$ 877,354$ Income Restricted Sale Price (per unit)-$ 423,569$ 423,569$ -$ 423,569$ 423,569$ Sales Revenue 57,188,566$54,998,208$54,036,747$95,951,243$ 89,853,265$ 85,466,495$ Valuation Detail Cost of sale/marketing (2% of rev)571,886$ 549,982$ 540,367$ 959,512$ 898,533$ 854,665$ Project Margin 4,135,922$ 4,147,468$ 4,285,621$ 4,991,838$ 1,461,840$ (374,064)$ Return on Cost 7.9%8.2%8.7%5.5%1.7%-0.4% 2021 Results for Comparison Baseline Baseline Development Costs Total Development Cost 43,125,975$41,125,975$40,125,975$64,582,198$ 62,282,198$ 59,982,198$ Total Development Cost per Unit 431,260$ 411,260$ 401,260$ 645,822$ 622,822$ 599,822$ Revenues and Operating Expenses Sales Revenue 51,000,000$49,187,250$48,329,832$78,524,837$ 73,830,397$ 70,240,340$ Valuation Detail Project Margin 6,854,025$ 7,077,530$ 7,237,260$ 12,372,142$ 10,071,592$ 8,853,336$ Return on Cost 15.9%17.2%18.0%19.2%16.2%14.8% TOW NHOME SINGLE-UNIT Bonus Variations Bonus Variations 5% of units at 120% AMI 5% of units at 120% AMI 251 Page 13 Figure 11. Feasibility of Incentives for Single-Unit Detached For-Sale Prototypes: 5% Set Aside at 140% AMI Note: xxx. Source: Root Policy Research. Baseline Single-HH Home Single-HH Home Single-HH Home 11 du/a 15 du/a 22 du/a Prototype/Incentive Description Dwelling Units per Acre 11 du/a 15 du/a 22 du/a Lot size per unit 4,000 3,000 2,000 Affordable unit requirement 0%5.0%5.0% AMI target n/a 140% AMI 140% AMI Site and Prototype Characteristics Parcel Size (acres)9.18 6.89 4.59 Total Units 100 100 100 Income Restricted Units 0 5 5 Avg SF per unit 1,500 1,500 1,500 Development Costs Land Costs 10,028,000$ 7,521,000$ 5,014,000$ Infrastructure and Site Cost 17,057,250$ 17,057,250$ 17,057,250$ Construction Cost 48,735,000$ 48,735,000$ 48,735,000$ Soft Costs 8,284,950$ 8,284,950$ 8,284,950$ Contingency (5% of hard+soft costs)3,703,860$ 3,703,860$ 3,703,860$ Construction financing cost 2,190,833$ 2,190,833$ 2,190,833$ Total Development Cost 89,999,893$ 87,492,893$ 84,985,893$ Total Development Cost per Unit 899,999$ 874,929$ 849,859$ Revenues and Operating Expenses Rental/Sales Revenue Sale Price Market Rate (per unit)959,512$ 923,531$ 877,354$ Income Restricted Sale Price (per unit)-$ 494,164$ 494,164$ Sales Revenue 95,951,243$ 90,206,240$ 85,819,469$ Valuation Detail Cost of sale/marketing (2% of rev)959,512$ 902,062$ 858,195$ Project Margin 4,991,838$ 1,811,284$ (24,619)$ Return on Cost 5.5%2.1%0.0% SINGLE-UNIT Bonus Variations 252 Page 14 Summary of return differentials. Figure 12 summarizes return on cost, highlighting the differences between base case returns and incentive package returns in both 2021 and 2024 across prototypes. Figure 12.Return on Cost and Return Differential by Prototype and Year Source:Root Policy Research. 253 Page 15 Fee in Lieu Option The preceding feasibility analysis evaluates the financial impact on development when constructing income restricted units under shallow incentives. However, some cities offer a “fee-in-lieu” compliance option, which allows developers to pay a specified fee instead of constructing the affordable units. Fees can be structured on a per square foot or per unit basis and range from nominal fee amounts up to the full cost of developing the affordable unit, depending on the policy priorities of the program. Cities typically calculate potential fee options according to established methodologies based on market information and then may choose to “discount” those fees according to policy priorities. The two most common methodologies used to calculate potential fee-in-lieu options for inclusionary programs are: The Affordability Gap Method—a fee based on the difference in price between market- rate units and affordable units; and The Development Cost Method—a fee based on the actual cost (or subset of costs) to develop affordable units. A fee in lieu has the benefit of creating flexibility for developers, generating revenue for affordable housing for the City, and minimizing the administrative burden of the AHO on the City (fees are easier to administer than units). In considering modifications to the current AHO, the City may want to evaluate adding a fee in lieu option to compliance alternatives. Conclusions and Recommendations Market trends in Bozeman show AMIs rising faster than market rents, effectively narrowing the gap between the current AHO target of 80% AMI rents and market-rate asking rents. However, in the for-sale market rising mortgage interest rates overpowered the rise in AMIs resulting in a substantive decline in purchasing power for prospective buyers, widening the gap between the AHO affordability target (120% AMI) and market rate home prices. Rising interest rates also impact debt service on multifamily projects and have had a chilling effect on the multifamily development market—a typical project that was viable in 2021 no longer meets a standard threshold for return expectations (without adjustments to fundamental project characteristics). The feasibility anlaysis incorporates updated market trends into project proformas that are otherwise the same as were modeled in 2021 when the AHO was developed. The key objective of the feasibility analysis is not to measure nominal profitability, but to measure the change in profitability between base case and incentive options. That relationship—a comparison of the return differentials from base case to incentive—highlights the following: Despite the overall market challenges, the multifamily rental incentive package still provides a net gain over base case returns. As interest rates moderate and/or developers adjust to the current market conditions, the existing AHO remains viable. 254 Page 16 Further, the differing trajectories of rents and incomes create an opportunity to lower AMI targets in the AHO on multifamily rental projects wihtout compromising the benefit of the incentives. The return differential (difference between incentive and baseline returns) at 60% AMI units in 2024 is bigger than at 80% AMI in 2021. An income target of 60% AMI on rental units is more aligned with current housing needs than 80% AMI. Conversely, the gap between incomes and affordable sale prices has widened, making the current AHO incentives on for-sale products less powerful. It is less likely that developers will utilize the for-sale incentives under today’s market conditions (relative to 2021). A higher AMI target (140%) on single unit detached proformas does improve returns but the impact is not sufficient to make the incentive option attractive on a typical project. A more impactful lever to improve performance of the for-sale incentives is to bolster the incentives (rather than tweak the AMI target). Based on the current housing needs in the city and the updated feasibility Root offers the following recommendations to the City regarding shallow incentives in the AHO: Root recommends the City modify the AHO by lowering the AMI target from 80% AMI to 60% AMI on rental developments.This adjustment reflects an effort to balance feasibility, housing needs, and policy goals and ensure that the AHO is providing sufficient public benefit through the creation of affordable housing that meets the needs of residents. Root recommends maintaining the existing AHO AMI target of 120% AMI on attached for-sale developments (condos and townhomes) but raising the target to 140% AMI on single-unit detached developments. Despite poor performance of incentives under current market conditions, current AMI targets on attached for-sale projects are still aligned with current needs and maintain a reasonable spread between market prices and affordable targets. Allowing a higher AMI (140%) on detached helps diversify the AHO while still targeting housing needs and aligning the policy with statewide workforce definition. In order to improve the market viability of the AHO on for-sale prototypes, the City should evaluate options for stronger incentives that could encourage AHO participation. Additionally, the City should explore alternative policies/programs to foster affordable ownership, not relying on the AHO to address needs. Finally, the City should consider incorporating a fee-in-lieu option as part of the AHO compliance structure. 255 1 REPORT TO : City Commission FROM: David Fine, Economic Development Manager for Housing and Urban Renewal Brit Fontenot, Economic Development Director SUBJECT: Affordable Housing Ordinance Work Session MEETING DATE: August 20, 2024 AGENDA ITEM TYPE: Policy Discussion STRATEGIC PLAN: 4.5 Housing and Transportation Choices: Vigorously encourage, through a wide variety of actions, the development of sustainable and lasting housing options for underserved individuals and families and improve mobility options that accommodate all travel modes. Summary The City Commission completed adoption of the current Affordable Housing Ordinance (AHO), codified in Division 38.380 [external link] of the municipal code, on September 27, 2022 in response to State legislative action. The 2021 Montana Legislature passed House Bill 259, which barred the City from requiring affordable housing in new development. As most of the other commonly used tools for creating affordable housing are also prohibited in Montana, the City could only turn to voluntary incentives to encourage affordable housing. The current AHO is a response to this policy context. In creating the current AHO, the City conducted an extensive public review of the existing code, identified alternatives, and chose those considered most likely to incentivize construction of new affordable housing. The current AHO has been effective. There are 387 units of affordable housing that utilized the AHO currently under construction and 1079 affordable units in the project pipeline across 15 projects. In July 2024, the City Commission requested that city staff suggest proposed revisions to the AHO. These revisions take the form of incremental policy adjustments. The policies contemplated by these revisions fall in three categories: 1. Administrative changes to the ordinance to provide necessary clarity in its application. 2. Staff recommendations to enhance the ordinance and its policy objective of incentivizing the voluntary creation of new affordable housing units. 3. Recommendations to remove or amend the deep incentives of the affordable housing ordinance in response to current market conditions and significant public comment. Housing and economic development staff will present on affordable housing market conditions. Staff will also propose recommended revisions to the AHO. Based on direction from the City Commission 256 2 during the work session, staff will draft an Ordinance incorporating the revisions requested by the City Commission, which will have additional opportunities for engagement with the relevant advisory boards and the public on specific revisions. Formal presentations and public hearings will occur before any revision is adopted by the City Commission. Public Engagement Staff extensively engaged advisory boards in preparation for this work session and provided multiple opportunities for public comment: • Community Development Board, August 5, 2024 • Economic Vitality Board, August 7, 2024 • Inter-neighborhood Council, August 8, 2024 • Community Development Board Special Meeting, August 12, 2024 Staff will provide an overview of feedback from these meetings in their presentation. Proposed Administrative Revisions Definition of Efficiency (Studio) Staff recommends aligning the AHO with definitions already in the Unified Development Code (UDC). The UDC has a definition of efficiency. Staff is recommending changing references to “studio” in the AHO to “Efficiency Unit,” which is defined as, “A dwelling unit containing only one habitable room as defined and regulated by the most recently adopted International Building Code.” Definition of Bedroom The UDC currently does not have a definition of a bedroom. Staff recommends codifying the definition of bedroom from the latest edition of The Illustrated Book of Development Definitions. Moskowitz and Lindblom. 2015. • A private room planned and intended for sleeping, separated from other rooms by a door, and accessible to a bathroom without crossing another bedroom. Since the definition of bedroom in the AHO serves two purposes, describing dwelling space and establishing the monthly rent allowed for a two-person household, staff also recommends placing a minimum square footage on the definition of bedroom. Clarify Definition of Affordability Staff recommends clarifying our definition of affordability to reference U.S. Department of Housing and Urban Development’s (HUD) annual publication of a median family income (MFI) and corresponding income limits at various percentages of the area median income (AMI), a term that is often used interchangeably with MFI. Allow Income Averaging Staff recommends codifying a process where a project can offer units to renters at various qualifying income levels and rent limits, so long as the underlying standard is met through an income averaging process. 257 3 Update and Clarify Income Verification Sections • Clarify provisions for income verification for affordable rentals and affordable homeownership , respectively. • Clarify income verification to allow a qualification range to prevent cost burdening. o Allow qualification up to 20% above the income limit. o Stipulate that income verification procedures authorized by HUD or the Montana Board of Housing for low-income housing tax credit projects are acceptable alternatives to the City’s requirements. Clarify Third Party Monitoring Language Staff recommends clarifying when, and under what circumstances, third party monitoring is allowed or required and how monitoring may take place in the absence of a third-party monitor. Depending on the type of affordable unit, these duties may be most efficiently managed by the leasing agent, a third party, or the City. Separate the Rental and Ownership Sections Affordability stewardship for rental units and ownership units is quite different. Staff recommends having separate sections of the AHO for affordable rentals vs. affordable for-sale units. Proposed Cash-in-Lieu Alternative The previous AHO with inclusionary zoning included an option to provide cash instead of affordable units. The previous AHO did not create many for-sale affordable units, but it did create a significant and replenishing funding source for leveraging other sources of funding, like low-income housing tax credits, to maximize the number of affordable units created in Bozeman. The existing AHO contains a section allowing a developer to donate land instead of providing affordable units in a project. Staff recommends resurrecting cash-in-lieu of units in this revision to the AHO. The cash could fund land acquisition, gap financing on LIHTC, or other forms of support for long-term affordable housing. The option could also allow commercial and mixed-use buildings to contribute to the affordable housing fund even if they did not contain housing units in exchange for utilizing the building height incentive. Shallow Incentive Alternatives Data-Based Approach to Feasible Housing Affordability The City of Bozeman engaged Clarion Associates and their sub-consultant, Root Policy Research, a firm specializing in housing economics, to propose changes to the unified development code (UDC) to incentivize the construction of affordable housing units. A key way to evaluate any incentive is to apply a “but for” test: The incentive must enhance the feasibility of providing affordable housing units that would not be financially feasible “but for” the application of the incentive. The team developed prototype proformas of rental and for-sale housing types from multi-household units to single household detached housing units based on regional housing prototypes and costs, market data and interviews. These proformas create base case scenarios for evaluating the financial feasibility of affordable housing production within existing code. The consultants modeled the following base case scenarios: • 3-story rental residential with standard parking requirements (2.0 spaces for a 2-bedroom unit); 258 4 • 3-story multifamily condo development with standard parking requirements (2.0 spaces for a 2- bedroom unit) • For-Sale townhomes with a 3,000 square foot lot size • Single-household units with a 4,000 square foot lot size The UDC currently allows for these base case scenarios in applicable zoning districts, where townhomes and multifamily are currently allowed. The consultants applied code-based incentives to these base case scenarios to see how the incentives change the feasibility of providing affordable housing units. These incentives constitute a bonus on what is currently allowed by the code. The proposed code changes include the following incentives: • Reduced lot size requirements • Reduced parking requirements • Height bonuses The consultants adjusted the base case scenarios by allowing smaller lot sizes, increased building heights, and/or parking reductions in exchange for the inclusion of income-restricted, affordable, units in the development. They evaluated the impact of these bonuses on project feasibility and projected the percentage of affordable housing units these incentives would facilitate that would likely not exist “but for” the incentive. Root Policy Research modeled the impact of these incentives in 2021 and updated their analysis in 2024. That analysis is included in the City Commission packet. Shallow Incentive Market Adjustment Due to significant increases in AMI, staff recommends adjusting the criteria for the shallow incentives to require either 60% AMI for 5% of units or 80% AMI for 8% of units. These changes are supported by recent financial modeling conducted by Root Policy Research. Staff also recommends maintaining an option at 80% AMI. 80% AMI units allow a greater number of households to qualify for a monthly rent that is still below market and is likely to be significantly below market as current rental inventory is absorbed. Shallow Incentive Policy Additions 1 Staff recommends adding some modest additional incentives to encourage additional affordability in the Shallow Incentives. These incentives allow for the more efficient use of land and for phasing and financing efficiency. A. 100% of private open space can be provided on private balconies. B. Shared roof deck support structures are exempt from maximum building height restrictions. C. Allow off-site parking 1000 ft from entrance. D. Allow concurrent construction of infrastructure. Shallow Incentive Policy Addition 2: 4 Plex, Townhome, Rowhome Incentive Financial modeling conducted by Root Policy Research suggested that townhomes and rowhomes should provide the most opportunity for affordability, yet the market has not provided small, attached units during the past two years. This additional shallow incentive attempts to remove any potential regulatory barriers to single household attached housing construction. While this incentive does propose the 259 5 elimination of minimum parking requirements for any 4 plex, this gentle form of density is less-likely to overwhelm the parking supply of an established neighborhood. Shallow Incentive Policy Addition 3: Allow more height with the shallow incentives. The economic model which was recently updated by Root Policy Research shows that the fundamental relationship between the allowed incentives and the ability to provide affordable units continues with added building height. Consistent with the overall shallow incentive program, a one space per unit parking requirement would continue with added height, which would likely require the provision of structured parking to utilize the incentive. A potential modification to this option would be to only allow the application of this additional height in certain higher density zoning districts such as B-3, B-2, B-2M, UMU, or REMU. Deep Incentive Alternatives Staff Recommended Deletions Yield Street Incentive Staff recommends deleting yield streets as a deep incentive option. Since deep incentive projects are likely to be denser and provide fewer on-site parking spaces than projects that do not use deep incentives, staff conclude that reducing overall street right-of-way and street parking is likely not viable. This incentive has not been used by any projects and, as currently written, requires private maintenance of non-standard roadways, which could increase the long-term cost of ownership for residents of affordable homes. Building Detail Standards Incentive Staff recommends deleting this deep incentive option due to the fact that it may encourage buildings that look substantially different than surrounding buildings. Building Material Standards Incentive Staff recommends deleting this deep incentive option due to its potential impact on the long-term aesthetic quality of buildings that use the AHO. Deep Incentive Options The deep incentives were originally proposed as a way to add additional value to projects providing a high level of affordability. Economic modeling suggests that these projects are unlikely feasible without some other form of financial incentive or deep philanthropy. In order to better align AHO incentives with this housing affordability policy goal, current market conditions, and public feedback, staff propose three options for evolving the deep incentives of the AHO. Gold Option The Gold Option is a response to public comment that as AMI has risen, deep incentive affordable rents may be approaching current market rents. While this market condition is likely transitory, as currently vacant units are absorbed, the Gold Option lowers AMI to align with the low-income housing tax credit (LIHTC) income limit of 60% AMI for rentals, while leaving the for-sale threshold at 120% AMI. The Gold Option keeps the current structure of the deep incentives, while lowering the AMI income limit. • 50% of units must be affordable at 60% AMI. 260 6 • No minimum parking requirement. • Allows existing deep incentive height bonuses. Silver Option The Silver Option is proposed in response to public comment concerning mass and scale of potential deep incentive projects. In addition to reducing the income limit to 60% AMI, this option allows the construction of buildings up to 4 stories, but maintains the elimination of minimum parking requirements, which is the most powerful incentive tool. Due to the requirements of the building code, buildings of greater than four stories have different building code requirements that have a significant impact on cost, so this option maximizes a powerful incentive at the while controlling for building height, and thus cost. • 50% of units must be affordable at 60% AMI. • No minimum parking requirement. • Height is limited to allowance for the base zoning district or 4 stories, whichever is less. Bronze Option The bronze option is a response to public concern that the complete elimination of parking requirements could create an unacceptable level of parking spillover into the surrounding areas. The option allows for the height increases allowed by the current deep incentives, while requiring more parking overall. • 20% of units must be affordable at 60% AMI. • Required parking is 80% of the number of units. • Allows existing deep incentive height bonuses. Repeal Option Repeal the deep incentives. Background on Affordable Housing Efforts The current project is a continuation of a long series of efforts in support of affordable housing. The City works hard to leverage opportunities and partnerships that can help carry forward housing production and especially housing for the least advantaged. These efforts include but are not limited to: • Regular analysis of housing needs and creation of housing action plans to identify tools and options for housing, most recently the 2020 Community Housing Action Plan. • Direct financial support from the City’s General Fund for multiple affordable housing projects. • Financial support for education and down payment assistance. • Welcoming new annexations and infill development to provide land for housing • Flexible zoning districts that allow for a wide range of housing combinations • Of-right reviews of most development to provide certainty to the public and development communities • Many code revisions over the past 20 years, including in 2021, including but not limited to, capping maximum park dedication requirements, removing minimum home sizes from zoning, allowing accessory dwellings in all residential zoning districts, substantially reduced land area per home requirements, reduced and flexible parking requirements, administrative review of most 261 7 development types, increased building heights, and expedited review processing for affordable housing projects. • Infrastructure (e.g. streets, water, and sewer) planning and construction support to avoid delays in being able to bring homes to production and be cost effective in installation and operation of essential services. 262 8 Challenges Beyond the City’s Control Although the City has pursued and will continue to pursue many methods to support housing availability and affordability there are substantial challenges. While Staff is hopeful City policy can make a difference, it is prudent to recognize those factors beyond the City’s control, so that the hard work of the community can be focused where it can have the greatest impact. The following factors are beyond the City’s control and likely have a greater impact on affordability than many of these proposed code changes. Nothing in the proposed amendments will: • Lower the price at which someone will sell land • Cause more people to be willing to bring land to market and annex • Require people to use development capacity authorized to create more housing • Address labor force availability or supply chain delays and costs • Raise wages so that people have greater capacity to pursue housing • Address personal lending qualifications or terms offered by lenders such as interest rates • Lessen Federal and State requirements for land development which are substantial cost factors, such as standards for water quality permitting and treatment • Change personal preferences for housing • Increase water availability in our arid climate • Alter private covenants which add restrictions to development that add cost or otherwise limit the development capacity of annexed property Linked Documents from 2021-2022 AHO Policy Formation: Policy Discussion - Community Housing Unified Development Code Incentives for Affordability March 1, 2022 Ordinance 2105 Provisional Adoption, Repeal Division 38.380, Affordable Housing, and Amend Associated Standards and Replace With a New Division 38.380 Affordable Housing Text Amendment, Application 22133 – August 23, 2022 Unified Development Code Affordable Housing Assessment, Clarion Associates, December 2021 263 Memorandum REPORT TO:City Commission FROM:Alex Newby, Deputy City Clerk Mike Maas, City Clerk Chuck Winn, Interim City Manager SUBJECT:Appointment to the Sustainability Board MEETING DATE:August 20, 2024 AGENDA ITEM TYPE:Citizen Advisory Board/Commission RECOMMENDATION:Consider the Motion: I move to appoint one member to the Sustainability Board to a term ending December 31, 2024. AND I move to appoint Rebecca Kurnick as Chair and Brooke Lahneman as Vice- chair. STRATEGIC PLAN:1.2 Community Engagement: Broaden and deepen engagement of the community in city government, innovating methods for inviting input from the community and stakeholders. BACKGROUND:The Sustainability Board currently has an open seat due to resignation with a term ending December 21, 2024. The Board also has a vacancy at Chair due to Emma Bode being appointed to the City Commission. Mayor Cunningham has spoken with the current Vice- chair who has agreed to assume the new role of Chair. This leaves the role of Vice-chair open for appointment. UNRESOLVED ISSUES:none ALTERNATIVES:As per Commission FISCAL EFFECTS:None Report compiled on: August 12, 2024 264 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 124265 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 125266 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 126267 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 127268 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 128269 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 129270 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 130271 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 131272 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 132273 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 133274 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 134275 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 135276 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 136277 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 137278 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 138279 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 139280 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 140281 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 141282 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 142283 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 143284 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 144285 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 145286 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 146287 -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 147288 -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 148289 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 149290 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 150291 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 151292 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 152293 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 153294 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 154295 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 155296 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 156297 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 157298 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 158299 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 159300 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 160301 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 161302 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 162303 -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 163304 -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 164305 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 165306 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 166307 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 167308 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 168309 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 169310 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 170311 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 171312 Dzintars Waiver of Proprietary Rights - Page 4 of 4 - DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 172313 DOWNTOWN BOZEMAN ALLEY ENHANCEMENT PILOT PROJECT Final Artwork Plans and Drawings Date: 1/23/2024 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 173314 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 174315 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 175316 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 176317 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 177318 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 178319 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 179320 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 180321 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 181322 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 182323 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 183324 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 184325 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 185326 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 186327 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 187328 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 188329 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 189330 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 190331 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 191332 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 192333 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 193334 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 194335 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 195336 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 48337 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 49338 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 50339 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 51340 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 52341 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 53342 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 54343 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 55344 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 56345 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 57346 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 58347 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 59348 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 60349 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 61350 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 62351 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 63352 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 64353 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 65354 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 66355 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 67356 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 68357 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 69358 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 70359 -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 71360 -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 72361 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 73362 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 74363 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 75364 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 76365 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 77366 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 78367 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 79368 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 80369 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 81370 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 82371 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 83372 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 84373 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 85374 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 86375 -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 87376 -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 88377 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 89378 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 90379 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 91380 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 92381 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 93382 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 94383 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 95384 Dzintars Waiver of Proprietary Rights - Page 4 of 4 - DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 96385 DOWNTOWN BOZEMAN ALLEY ENHANCEMENT PILOT PROJECT Final Artwork Plans and Drawings Date: 1/23/2024 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 97386 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 98387 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 99388 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 100389 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 101390 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 102391 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 103392 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 104393 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 105394 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 106395 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 107396 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 108397 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 109398 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 110399 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 111400 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 112401 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 113402 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 114403 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 115404 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 116405 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 117406 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 118407 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 119408