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HomeMy WebLinkAbout12-03-24 City Commission Agenda and Packet MaterialsA. Call to Order - 6:00 PM - Commission Room, City Hall, 121 North Rouse B. Pledge of Allegiance and a Moment of Silence or Mindfulness C. Changes to the Agenda D. FYI E. Commission Disclosures F. Consent F.1 Accounts Payable Claims Review and Approval (Armstrong) F.2 Authorize the Finance Director to Sign a Sourcewell Fleet Application with US Bank for Fuel Card Services(Hodnett) THE CITY COMMISSION OF BOZEMAN, MONTANA REGULAR MEETING AGENDA Tuesday, December 3, 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. At the direction of the City Commission, anonymous public comments are not distributed to the City Commission or staff. Public comments will also be accepted in-person and through video conference during the appropriate agenda items but you may only comment once per item. As always, the meeting will be recorded and streamed through the Commission's video page and available in the City on cable channel 190. For more information please contact the City Clerks' Office at 406.582.2320. This meeting will be held both in-person and also using an online video conferencing system. You can join this meeting: Via Video Conference: Click the Register link, enter the required information, and click submit. Click Join Now to enter the meeting. Via Phone: This is for listening only if you cannot watch the stream, channel 190, or attend in- person United States Toll +1 669 900 9128 Access code: 933 7244 1920 1 F.3 Reject All Bids for Bridger Garage Repair and Rebid the Project at a Later Date (Focken) F.4 Authorize the City Manager to Sign a Software as a Service Agreement (SaaS) with SkiData(Focken) F.5 Authorize the City Manager to Sign an Amendment 1 with Sanbell for the Extension of the Transportation Engineering Term Contract(Ross) F.6 Authorize the City Manager to Sign Amendment 4 to the Professional Services Agreement for the Field Survey Term Contract with Sanbell, to Facilitate Design of Upcoming Capital Improvements Projects(Gamradt) F.7 Authorize the City Manager to Sign Task Order 2023TETC-007-Gallatin High Mid-Block Crossing with Sanbell for the design of a Mid-Block Crossing on Oak Street at Gallatin High School(Lonsdale) F.8 Ordinance 2174, Final Adoption of the Rest Stop Zone Map Amendment Amending Zoning on 10.05 Acres from M-1 Light Manufacturing District to B-2 Community Business District Located East of the Intersection of N. 19th And Valley Center, And Providing An Effective Date, Application 24185(Saunders) G. Public Comment on Non-agenda Items Falling Within the Purview and Jurisdiction of the Commission H. Special Presentation H.1 Cattail Creek Park and Anchor Route Master Plan Presentation (Jadin) I. Action Items I.1 Fiscal Years (FY) 26-30 Capital Improvements Plan (CIP) Work Session (Hodnett) I.2 Appointment of Ex Officio Nonvoting Member for the Bozeman Study Commission and Scheduling the First Meeting of the Bozeman Study Commission(Winn) J. FYI / Discussion K. Adjournment This is the time to comment on any matter falling within the scope of the Bozeman City Commission. There will also be time in conjunction with each agenda item for public comment relating to that item but you may only speak once per topic. Please note, the City Commission cannot take action on any item which does not appear on the agenda. All persons addressing the City Commission shall speak in a civil and courteous manner and members of the audience shall be respectful of others. Please state your name, and 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. Listen, ask questions, and discuss the proposed Capital Improvement Program. Consider the Motion: I move to appoint City Clerk, Mike Maas, as the Ex Officio Nonvoting Member for the Bozeman Study Commission 2 City Commission meetings are open to all members of the public. If you have a disability that requires assistance, please contact our ADA Coordinator, David Arnado, at 406.582.3232. Study Commission meetings are televised live on cable channel 190 and streamed live on our Meeting Videos Page. 3 Memorandum REPORT TO:City Commission FROM:Nicole Armstrong, Accounts Payable Clerk Rhonda Edwards, Accounts Payable Clerk Aaron Funk, City Controller Melissa Hodnett, Finance Director SUBJECT:Accounts Payable Claims Review and Approval MEETING DATE:December 3, 2024 AGENDA ITEM TYPE:Finance RECOMMENDATION:The City Commission is recommended to make a motion and approve payment of claims as presented. STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable sources of funding for appropriate City services, and deliver them in a lean and efficient manner. BACKGROUND:Montana Code Annotated, Section 7-6-4301 requires claims to be presented to the City Commission within one year of the date the claims accrued. Claims presented to the City Commission under this item have been reviewed and validated by the Finance Department. The Department has ensured that all goods and services have been received along with necessary authorizations and supporting documentation. Please provide approval for checks dated December 4, 2024. UNRESOLVED ISSUES:None ALTERNATIVES:The City Commission could decide not to approve these claims or a portion of the claims presented. This alternative is not recommended as it may result in unbudgeted late fees assessed against the City. FISCAL EFFECTS:The total amount of the claims to be paid is presented at the bottom of the Expenditure Approval List posted on the City’s website at https://www.bozeman.net/departments/finance/purchasing. Report compiled on: February 5, 2024 4 Memorandum REPORT TO:City Commission FROM:Nicole Armstrong, Accounts Payable Melissa Hodnett, Finance Director SUBJECT:Authorize the Finance Director to Sign a Sourcewell Fleet Application with US Bank for Fuel Card Services MEETING DATE:December 3, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the Finance Director to sign a Sourcewell Fleet Application with US Bank for fuel card services STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable sources of funding for appropriate City services, and deliver them in a lean and efficient manner. BACKGROUND: The City of Bozeman has been utilizing WEX Inc fleet fuel cards for over a decade. At that time, WEX was the only available option that was able to handle the volume of fleet cards needed for each City vehicle. Since then, other options have become available. US Bank Voyager is Sourcewell approved and provides an equivalent option with better control options and customer service. Due to repeated issues with WEX, the City would like to switch service providers. The City entered into a PSA with US Bank on 08/13/2018 for banking and city-wide credit cards. This would simply be an extension of their services. Their system would allow Accounts Payable to be the primary accounts manager but also assign each department their own contact that will be able to handle all fuel card needs. Currently WEX will only allow two managing people to represent all accounts across the entire City. This transition would free up the current managers from having to deal with other departments fuel card needs. US Bank and State of Montana Purchasing Entity Addendum [EXTERNAL LINK PDF] UNRESOLVED ISSUES:None Identified ALTERNATIVES:As per commission 5 FISCAL EFFECTS:No additional fiscal effects Attachments: Sourcewell Fleet Cobrand Application 2023.docx U.S KYC ICF.pdf Implementation_Form Sourcewell.doc Report compiled on: November 15, 2024 6 Confidential Page 1 of 16 R 01.2023 U.S. Bank Voyager Fleet Cobrand Card Program Application Checklist Thank you for your interest in the Sourcewell Fleet Card Program by U.S. Bank Voyager. (Sourcewell Contract Number 080620-USB). Please complete all items outlined in this checklist before submitting your application. Customer Information, page 2: Complete all sections. Note that the LEGAL organization name is required in this section; brand or abbreviated names cannot be accepted. Charge Volume of $25,000.00 OR LESS: Complete and sign Section 2 (Personal Guaranty) ONLY if you are not a governmental organization and you anticipate monthly charge volume of $25,000.00 OR LESS on the U.S. Bank Voyager Fleet Cobrand Card(s) or accounts. Financial statements are not required in such a situation. Charge Volume of MORE THAN $25,000.00. If you anticipate monthly charge volume of GREATER than $25,000.00 on the U.S. Bank Voyager Fleet Cobrand Card(s), do not complete Section 2. Instead, please submit financial statements according to the following table. ANTICIPATED MONTHLY CHARGE VOLUME YEARS $25,000.01 - $250,000.00 2 ≥ $250,000.01 3 The financial statements must be Customer’s most recent financial statements. If the most recent annual financial statements are more than five months old, please provide the most recent interim financial statements as well. Financial statements must contain a Balance Sheet and an Income Statement/Profit and Loss and, if available, Statement of Cash Flows and Auditor’s Opinion. Billing Cycle Selection, page 3: Select your preferred Billing Cycle from the choices provided. The U.S. Bank Voyager Fleet Cobrand Card Terms and Conditions (the “Agreement”) (pages 4-14): Read carefully and retain a copy for your records. Authorization and Execution, page 13: Read carefully; ALL applicants must sign this section. Customer Identification Questionnaire.Before U.S. Bank can open an Account for any entity, U.S. Bank is required to obtain information to ensure that we know who our customers are and the identity of the entities with whom we are conducting business. Accordingly, please complete the Customer Identification Questionnaire in its entirety and submit the completed, signed, scanned document with your application submission. Submit the Application Package: Send completed applications, financial statements and other required material to your U.S. Bank Representative. If you do not have a U.S. Bank Representative, send completed applications, financial statements and other required material by email to: cpsnewapplications@usbank.com, or mail to U.S. Bank Attn: Contract Services, 901 Marquette Avenue, EP-MN-A17S, Minneapolis, MN 55402. U.S. Bank may contact Customer to verify information or complete additional documentation. If you have any questions about the U.S. Bank Voyager Fleet Cobrand Card Program, please call your U.S. Bank Sales Representative or if you do not have a Sales Representative, please call 1-800-987-6591. © 2021 U.S. Bank. All other trademarks are the property of their respective owner. 7 Confidential Page 2 of 16 R 01.2023 U.S. Bank Voyager Fleet Cobrand Card Program Application The issuer of the U.S. Bank Fleet Cobrand Card is U.S. Bank National Association (“U.S. Bank”) Section 1 – Customer (“CUSTOMER”) Information Customer’s Legal Name State of Incorporation or Operation Customer Name to be embossed on card(s) (Limit to 21 letters and spaces.)Federal Tax ID Doing Business As (“DBA”), if any. Please list all DBAs of the entity applying. Customer Physical Street Address (PO Box not acceptable) City State Postal Code Contact Name Contact Title Contact Phone Number Email Address (To contact Customer regarding processing of this Application)Website Address Billing Address (If Different From Customer Address) City State Zip Code $$$ Net Annual Sales (if a non-governmental org)Total Assets (if a non-governmental org)Anticipated Monthly Charge Volume __________________________________________ North American Industry Classification System (NAICS) Number__________ Official Start Date of Org (if non-governmental): ______________________ If the NAICS number is not available, please provide the industry category_____________________________________ Type of Organization:Corporation (Public) Corporation (Private) Partnership LLC LLP Other ______________________ Non-Profit:Yes No Does Customer have a line of credit with U.S. Bank or any other financial institution?Yes No If yes, please provide the following information: Name of Financial Institution Providing Line of Credit Limit Amount Currently Outstanding Is Customer rated by Dun and Bradstreet (D&B)? Yes No If yes, D&B Number: Does Customer conduct business in a foreign country?: Yes No If yes, list countries and nature of business conducted: 8 Confidential Page 3 of 16 R 01.2023 Section 2 – Personal Guaranty. If you anticipate Monthly Charge Volume of $25,000.00 or less on the Fleet Cobrand Card(s), please complete the section below and sign. Printed Name of Authorized Officer Printed Title of Authorized Officer Home Phone Number Date of Birth Social Security Number Home Physical Address (PO Box Not Acceptable), including City, State and Zip Code I, as the above named Authorized Officer, (a) request that U.S. Bank issue Fleet Cobrand Cards (“Card(s)”) and Accounts (“Account(s)”) as requested by Customer or its Participants in the future; (b) authorize U.S. Bank to verify my employment and income history and all other information I have provided, and to obtain information about me from other creditors, credit bureaus, third parties, and federal or state records for use in assessing my personal credit worthiness in connection with U.S. Bank extension(s) of credit to Customer under the Agreement; (c) acknowledge that U.S. Bank will review this Application and may, at its sole discretion, grant such request, but U.S. Bank is under no obligation to do so; (d) agree to be jointly and severally liable with Customer to pay for all transactions charged to any and all Accounts, plus fees and/or other charges, according to the terms of the Agreement;(e) authorize U.S. Bank to share information about its experiences with me with U.S. Bank affiliates and credit bureaus; and (f) agree that Accounts will be used for business purposes only and not personal, family, or household purposes. In witness whereof, Authorized Officer has executed this Application and agrees to this Section 2. DATED THIS ________ DAY OF ____________ , 20 ________ : Signature of Authorized Officer Section 3 – Billing Cycle Selection Select your preferred Billing Cycle from the following: Weekly – Customer is billed weekly and may choose Wednesday, Thursday, Friday or Saturday for billing. Biweekly – Customer is billed every other week and may choose the day on which they are billed, Sunday through Saturday, every other week. Semi-monthly – Customer is billed twice a month and may choose the 1 st and 15th or the 15th and last day of each month for billing. Monthly – Customer is billed once a month and may choose any day of the month for billing, from the 1 st day through the last day of the month. If Weekly Billing Cycle is selected: Customer is hereby notified, and hereby acknowledges that (1) Automated Clearing House (“ACH”) payment and (2) enrollment in The Voyager portal are both required with Weekly Billing Cycles. Additionally, by checking the Weekly Billing Cycle box above, Customer agrees to, on an appropriate form provided by U.S. Bank, authorize U.S. Bank to draw funds from Customer’s business bank account by means of ACH, Electronic Funds Transfer (“EFT”) or other electronic means agreed to by the parties for payment of Customer’s Statements. FOR U.S. BANK USE ONLY Agent, if any TOA LOC RC 9 Confidential Page 4 of 16 R 01.2023 U.S. Bank Voyager Fleet Cobrand Card Program Terms and Conditions This U.S. Bank Voyager Fleet Cobrand Card Program Agreement (“Agreement”) is between the entity signing this Application as “Customer” and U.S. Bank National Association (“U.S. Bank”) and is the Participation Agreement that allows Customer to participate in the Sourcewell Contract No. 080620-USB. Customer desires to retain U.S. Bank as its provider for commercial charge card and account services (the “Program”) and the Voyager Maintenance Solution (“VMS Services” defined below). If U.S. Bank approves Customer’s creditworthiness and this Application, the “Effective Date” of this Agreement will be the first day of the month following the date the Application is signed by Customer. Now, therefore, for and in consideration of the mutual promises contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, Customer and U.S. Bank agree to the following: 1.DEFINITIONS.“Account” means an account under this Agreement consisting of one or more Cards. “Billing Cycle” means the period of time from the date a Statement is generated until the date when the next Statement is generated. “Card” means a U.S. Bank Voyager Mastercard Fleet Card or a commercial account number, regardless of the medium, issued pursuant to this Agreement. “Card Network”means Mastercard International Incorporated whose marks are contained on the Cards issued under this Agreement or any other such national card network with respect to which U.S. Bank becomes an issuer during the term of this Agreement. “Charge” means either a Mastercard Charge or a Voyager Charge. “Identification Information” means legal names, physical street addresses, taxpayer identification or business numbers, dates of birth, or other information or documentation required by U.S. Bank to confirm the identity of any entity or person. “Intellectual Property” or “Intellectual Property Rights” means any patent rights, inventions, design rights, copyrights, database rights, trade secrets, trade names, trademarks, service marks, moral rights, know- how, and any other similar rights or intangible assets recognized under any laws or international conventions, and in any country or jurisdiction in the world, as intellectual creations to which rights of ownership accrue, and all registrations, applications, disclosures, renewals, extensions, continuations or reissues of the foregoing now or hereafter in force. “Mastercard Charge” means a monetary transaction with a debit value to an Account processed on the Mastercard Card Network. “Obligations” means all Charges, fees, and other activity posted to an Account. “Private Site” means a private fueling site that is owned or operated by a fleet owner or a fuel distributor and limited to use by commercial or public sector fleets for vehicle fueling. “Participant” means any entity that Customer authorizes and U.S. Bank approves for participation in the Program that is wholly or majority owned or controlled (which is at least 51% or more of voting rights) by Customer. “Statement” means, with respect to one or more Accounts, a periodic listing of all Obligations. “VMS Services” means the maintenance service program developed by U.S. Bank and certain third parties accessible on U.S. Bank’s Voyager platform that integrates an approval process, spend controls and reporting concerning a fleet’s maintenance transactions conducted with participating merchants (“VMS Merchants”) without the use of a physical Voyager card but invoiced as part of the Voyager Program. For the avoidance of doubt, maintenance services paid for using a physical Voyager card shall not be considered part of the VMS Services. “Voyager Charge” means a monetary transaction with a debit value to an Account processed on the Voyager Network.“Voyager Network” the payment network owned and operated by U.S. Bank under which transactions on Cards and Accounts bearing U.S. Bank’s Voyager logo are processed and reported. “Voyager portal” means U.S. Bank’s propriety online management software for the Program. 2.PRODUCTS AND SERVICES 2.1 PROVISION OF SERVICES; AGREEMENT OF PAYMENT.U.S. Bank operates the Program pursuant to which it issues Cards and Accounts at the direction of Customer which can be used at merchants to purchase certain categories of products. U.S. Bank, on and after a date provided to Customer, will also offer Customer the opportunity to use the VMS Services. Customer desires to participate in the Program and to have the opportunity to use the VMS Services and U.S. Bank agrees to allow Customer to participate in the Program and VMS Services, all in accordance with the terms contained herein. In connection with the Program and the VMS Services, U.S. Bank agrees to provide Customer access to its Voyager platform – an online portal that allows Customer to, among other things, review and pay Statements, establish and modify spend controls, and obtain various reports. Subject to the terms contained herein, Customer agrees that it is responsible for all of its Obligations or those incurred at a Participant’s direction. Customer acknowledges that there is no guaranty as to whether a particular merchant is a VMS Merchant and changes of VMS Merchants may occur without notice to Customer. Customer agrees to pay the fees set forth on Schedule 1 in connection with the Program and the VMS Services. 2.2 BILLING AND PAYMENT.Customer will receive an electronic Statement at the end of each Billing Cycle itemizing all Obligations and payments for that Billing Cycle. The balance shown on the Statement is due to U.S. Bank before the end of the next Billing Cycle. Customer shall pay U.S. Bank using a payment method approved by U.S. Bank. If the amount owing under an Account has not been paid in full when due, the Account is 10 Confidential Page 5 of 16 R 01.2023 delinquent, and U.S. Bank may suspend such Account. U.S. Bank may close an Account if the Account remains delinquent as of the completion of the second Billing Cycle after the Statement date.Customer shall communicate disputes or alleged errors on Statements within 60 days after the date on the Statement on which a disputed entry first appeared. Such communication of a dispute must contain the specific items in dispute and the basis for such dispute in accordance with Card Network operating rules and regulations. Depending on the type of Charge, failure to provide this notification within the stated time frame may result in Customer being liable for all and any losses incurred. U.S. Bank may recover any reasonable legal fees and other expenses incurred in collecting any delinquent amounts on a closed Account. If an Account or Card is used for Mastercard Charges in a currency other than the billing currency, the amount shown on the Statement for that Charge will be shown as a single amount that is the aggregate of (i) the amount of the Mastercard Charge converted, in each case at the applicable exchange rate to the billing currency from the currency in which the Mastercard Charge was made and (ii) the “Foreign Transaction Fee” on such amount as set forth in the Fee Schedule included in this Agreement. Due to fluctuations in foreign exchange rates, a credit may not be the same amount as the original Mastercard Charge. 2.3 CARD ISSUANCE. On and after a date provided to Customer, Cards will be issued as cobranded Mastercard and Voyager Cards on which Voyager Charges (or Mastercard Charges if enabled) may be made. Prior to such date, all Card will be issued as Voyager Cards. No Mastercard Charges may be made on a Card until (i) the appropriate changes to merchant category codes for Mastercard Charges are made through The Voyager portal and (ii) the Mastercard number on the applicable Card has been activated. The terms contained herein regarding Mastercard Charges shall apply to Cards or Accounts only after Customer elects to enable the Mastercard features on such Cards or Accounts. At any time after the Mastercard Charge functionality is enabled, Customer may elect to disable such functionality through The Voyager portal. Customer shall only be permitted to request the issuance of Cards in the name of the following parties: (i) in the name of a vehicle owned or leased by Customer or Participant; (ii) in the name of any Customer or Participant employee, (iii) in the name of any individual that is acting directly or indirectly as an independent contractor of Customer or Participant and, (iv) in the name of any other individual provided on a temporary basis and so long as such individual has a bona fide connection to Customer or Participant. Customer shall not request the issuance of Cards for its subsidiaries (or employees of such subsidiaries) that are not Participants. U.S. Bank may refuse to issue a Card to any party that cannot satisfy U.S. Bank’s regulatory requirements referenced in section 14 (Compliance with Applicable Statutes Regulations and Other Agreements) herein. 2.4 APPLICABLE NETWORK. All transactions are intended to be processed as Voyager Charges and pursuant to the Voyager Network unless the Voyager Network is unavailable for a particular transaction. In the event the Voyager Network is unavailable for a particular transaction, such transaction may be processed as a Mastercard Charge pursuant to the Mastercard Card Network (provided that the Mastercard functionality has not been disabled for such Card by Customer). U.S. Bank has directed each Voyager Network merchant to process all transactions as Voyager Charges, but U.S. Bank shall have no liability if a Voyager Network merchant fails to follow such direction and conducts a transaction as a Mastercard Charge. 2.5 LIABILITY. Customer, and if applicable, Authorized Officer as guarantor, is solely liable to U.S. Bank for all Obligations, even if Customer has implemented any of the loss-minimization tools described in section 2.6 (Minimizing Loss). U.S. Bank is not liable for: (i) misuse of an Account or Card or any related expenses by the cardholder; (ii) transactions that occur at Private Sites; (iii) any unauthorized or fraudulent Voyager Charges that were not immediately reported as lost, stolen or compromised, unless notified as described in 2.7 (Mandatory Notification) or (iv) Voyager Charges declined or approved, as a result of inaccurate merchant category codes used by a merchant. Customer agrees to have at least 10 Cards issued under the Program and expressly waives any rights it may have under Section 15 U.S.C. §1643 related to fraudulent Charges. Customer’s liability for unauthorized Mastercard Charges is subject to the terms of the Card Network operating rules and regulations. Customer’s liability for unauthorized Mastercard Charges may vary depending upon whether Customer complied with the notification requirements set forth in Section 2.7 below. 2.6 MINIMIZING LOSS (a) Point-of-Sale Prompts. Customer must set point-of-sale prompts for (i) driver identification number, (ii) vehicle identification number, or (iii) a customizable numeric ID, for all applicable Cards. The customizable numeric ID cannot be any sequence of numbers that appear on the front of the Card. If Customer does not establish these point-of-sale prompts for each applicable Card and require proper use of the prompts by employees, agents, and authorized users of the Card, U.S. Bank may in its sole discretion decline the transaction; and Customer shall be liable for any fraudulent activity on the Card. (b) Account Controls. Customer shall protect Cards and Accounts at all times and set controls described in this Section on each Card and Account, as applicable. At a minimum, the controls will include a daily number of transactions limit, a daily dollar spend limit and a monthly dollar spend limit. Customer must (i) set each limit to all Cards or Accounts (provided different limit amounts can be set to different Cards/Accounts), and (ii) for cobranded Cards, create a sublimit within each such established limit on a Card or Account for fuel 11 Confidential Page 6 of 16 R 01.2023 transactions conducted as Voyager Charges (for example a daily dollar spend limit of $500 for all charges on the Card, with a fuel sublimit of $200). Customer must also set geographic controls if operating in fewer than 50 states, day-of-week controls if operating fewer than 7 days per week, and time-of-day controls if operating fewer than 24 hours per day. If Customer fails to set the minimum controls described in this Section or changes or releases any controls set by U.S. Bank, Customer or Authorized Officer, as applicable, will be liable for all fraudulent transactions on the Cards or Accounts. In its sole discretion and without prior notice to Customer, U.S. Bank may set or adjust controls on Cards and Accounts based on similar accounts of other U.S. Bank customers and Customer’s prior spend patterns. (c) Safekeeping and Security. Customer must ensure that all Cards, Accounts, and any other access devices are carefully safeguarded and stored separately from customizable numeric IDs and codes and will take all reasonable precautions to ensure that only persons with appropriate authorization have been given access to Cards and Accounts. U.S. Bank may close, without notice, any Card or Account that has not been used for six months or more. 2.7 MANDATORY NOTIFICATION. Customer shall immediately notify U.S. Bank, in writing to U.S. Bank’s email address for fraud notices: of (i) termination of employment of any employee or removal of an agent or authorized user or Participant from the Program; (ii) lost, stolen, or compromised Cards, Accounts, and any other access device; (iii) suspected or actual breach, or misuse of a Card or Account or information regarding Cards, Accounts, or other sensitive information; and (iv) termination or closure of a Card or Account. Customer shall take all necessary action through the available on-line tools under the Program to terminate the Accounts of any party that would not qualify for the issuance of a Card as set forth in section 2.3 (Card Issuance). Customer is liable for all fraudulent Voyager Charges, incurred prior to the time that Customer provides the required mandatory notification and terminates access as stated herein. 2.8 TRAILING TRANSACTIONS.Upon cancellation or suspension of an Account, Card, or termination of this Agreement, Customer shall cancel the billing of all reoccurring transactions to an Account. U.S. Bank is not liable for any reoccurring transactions Customer has failed to cancel. 2.9 MERCHANT CATEGORY CODES. All Mastercard Charges will be limited to select, fleet-related merchant category codes; provided, however, that Customer may elect to allow additional Mastercard Charges within a select, preapproved set of merchant category codes determined by U.S. Bank in its sole discretion. Such additional merchant category codes include, but are not limited to, hotels, car rentals, and restaurants. In the event Customer elects to allow Mastercard Charges for such additional merchant category codes, Customer may not block particular merchants or codes within the selected, preapproved set of merchant category codes. Customer may elect to allow or disallow these additional merchant category codes at any time within The Voyager portal. 3.CREDIT 3.1 FINANCIAL INFORMATION.Customer shall provide its fiscal year-end financial statements as soon as available, but not later than 120 days following the end of Customer’s fiscal year. Customer shall provide additional information, upon request by U.S. Bank, regarding the business, operations, affairs, and financial condition of Customer, including reviews or audits of fiscal year-end financials performed by certified public accountants and Customer prepared quarterly financial statements. 3.2 CREDIT CONTROLS.U.S. Bank, at its sole discretion, may revise any credit limits or controls associated with the Program. Customer shall, within ten days of receiving notice of a downward revision of its credit limit, make a payment to U.S. Bank sufficient to reduce the amount outstanding to an amount equal to or less than any revised credit limit. 4.SECURITY AND CONFIDENTIALITY 4.1 SECURITY. “Secured Information”means information regarding Cards, Accounts, passwords, personal identification numbers and other sensitive information or Confidential Information of either party. (a)Either party may receive or otherwise have access to Secured Information and must implement or maintain an information security program designed to: (i) ensure the security, integrity, and confidentiality of Secured Information; (ii) protect against any anticipated threats or hazards to the security or integrity of such Secured Information; (iii) protect against unauthorized access to or use of such Secured Information that could reasonably result in harm to the person or entity that is the owner, user or subject of the Secured Information; and (iv) ensure the proper disposal of such Secured Information. (b)U.S. Bank will maintain physical, electronic, and procedural safeguards designed to: (i) maintain the security and confidentiality of Identification Information; (ii) protect Identification Information against anticipated threats or hazards to the security or integrity of Identification Information; and (iii) prevent unauthorized access to or use of such Identification Information that could result in harm or inconvenience to Customer. (c)Customer will safeguard Secured Information provided by U.S. Bank in a manner that is no less stringent than those applicable to Customer’s own proprietary information. 12 Confidential Page 7 of 16 R 01.2023 (d)At a minimum, Customer will install and maintain commercially reasonable cybersecurity defenses against any feature, routine, or device that: (i) is intended or designed to disrupt the operation of any software or system, including any timeout functionality; (ii) causes any U.S. Bank owned or licensed materials, software, or system to be destroyed, altered, erased, damaged or otherwise made inoperable; or (iii) permits any person or entity to destroy, alter, erase, damage or otherwise render inoperable any U.S. Bank owned or licensed materials, software, or system, including, but not limited to, any cyber-attacks such as any computer virus, trap door, back door, time bomb, or malicious program. Furthermore, Customer will perform routine hygiene on its systems to ensure appropriate use of software locks, routine password checking and central processing unit serial number checking. 4.2 CONFIDENTIALITY (a) Confidential Information.Each party may have access to and each party may provide to the other party information that the owner of such information regards as confidential or proprietary. “Confidential Information” includes information of a commercial, proprietary or technical nature whether now in existence or hereafter created. Confidential Information includes, but is not limited to, the following: (i) information marked as "confidential" or similarly marked, or information that a party should, in the exercise of reasonable judgment, recognize as confidential; (ii) Intellectual Property of each party; (iii) Identification Information (iv) the business, financial or technical information of each party and its respective affiliates; (v) each party’s objectives, materials, financial results, technological developments, and other similar proprietary information and materials; and (vi) notes, memoranda, analyses, compilations, studies, and other documents, whether prepared by either party or for either party, which contain or otherwise reflect Confidential Information. (b) Exceptions (i) General Exceptions. Confidential Information does not include information that: (i) is already rightfully known to the receiving party at the time it obtains Confidential Information from the disclosing party; (ii) is or becomes generally available to the public other than as a result of disclosure in breach of this Agreement or any other confidentiality obligations; (iii) is received on a non-confidential basis from a third party reasonably believed to be authorized to disclose such information without restriction and without breach of this Agreement; (iv) is contained in, or is capable of being discovered through examination of, publicly available records or materials; or (v) is developed by U.S. Bank or Customer without the use of any proprietary, non-public information provided by the other party. (ii) U.S. Bank Exceptions. U.S Bank may: (i) use and disclose Customer’s Confidential Information to the extent necessary to maintain compliance with network rules established by U.S. Bank related to the Program; (ii) use and disclose Customer’s Confidential Information to the extent necessary to maintain compliance with Card Network operating rules and regulations; or (iii) use and disclose non-identifying data to any entity or third party to the extent that such data is aggregated, summarized, or otherwise presented in a manner that does not directly or indirectly identify such data as attributable to U.S. Bank or its affiliates or Customer, its affiliates, employees, agents or authorized users. (iii) Third Parties.Portions of Customer’s Cards, Accounts, and transaction data are captured by third parties, including, but not limited to, the Card Network, third-party service providers, merchants, and merchant processors during the course of normal business operations and the confidentiality provisions of this Agreement shall not be deemed breached based upon such activities. All such third parties shall not be considered an agent of U.S. Bank for purposes of this section 4. (c) Restriction and Care.Each party must hold Confidential Information in confidence and disclose Confidential Information only to those employees, agents, or authorized users whose duties reasonably require access to such Confidential Information. Each party must protect Confidential Information using at least the same degree of care it uses to protect its own Confidential Information, but in no event, less than a reasonable degree of care to prevent unauthorized disclosure or duplication (except as required for backup systems) of such Confidential Information. Each party must cause its affiliates, employees, agents, authorized users, independent contractors, and parents to hold and maintain Confidential Information in confidence, and must only use and disclose such Confidential Information for the purpose of performing its obligations, exercising its rights, or enforcing its rights under this Agreement, or as otherwise expressly permitted by this Agreement. (d) Disposition of Confidential Information.Upon termination of this Agreement, each party must immediately, upon election by the disclosing party, return or destroy all Confidential Information in its direct or indirect possession or control that is the sole property of the disclosing party; provided, that U.S. Bank may retain particular transaction data with respect to the Cards and Accounts as is necessary to perform its billing functions and to maintain compliance with Card Network operating rules and regulations and its agreements with merchants under the Program. Upon written request, the recipient will provide the disclosing party written certification of destruction of any Confidential Information. Notwithstanding, U.S. Bank may retain one copy of Confidential Information for archival purposes in accordance with applicable 13 Confidential Page 8 of 16 R 01.2023 law, rule or regulation. The receiving party must return any Confidential Information maintained in an electronic format to the disclosing party in an industry standard format or, at the option of the owner, deleted and removed from all computers, electronic databases, and any other media. (e) Compelled Disclosure.Each party must promptly provide to the disclosing party notice of any order by a court or governmental agency having proper jurisdiction to disclose any Confidential Information, so the disclosing party may seek an appropriate protective order. U.S. Bank may be prohibited by a governmental agency from disclosing the governmental agency’s request for Confidential Information and under such circumstances U.S. Bank is excused from notifying Customer of any disclosure of Confidential Information thereunder. Each party must disclose Confidential Information only to the extent required by applicable law. (f) Non-Publicity. Customer shall not make any case study, testimonial, press release, or other public announcement regarding this Agreement or any activities performed hereunder. Customer and its affiliates shall obtain the prior written approval of U.S. Bank’s Media Relations department for any press release that Customer seeks to release that contains U.S. Bank’s identity. U.S. Bank shall have at least 15 business days to review and respond to any such request for approval. 5.DEFAULT. 5.1 CUSTOMER DEFAULTS. Customer will be in default upon the occurrence of any of the following events (each a “Customer Default”): (i) any violation of its obligations set forth in section 4 (Security and Confidentiality) or section 7 (Intellectual Property); (ii) any failure to make a payment on any Account when due; (iii) any default of any other agreement between U.S. Bank and any of Customer, a Participant, or Customer’s affiliates that has not been cured in the time specified in the applicable agreement; (iv) any of its representations or warranties made in this Agreement fail to be true and correct at any time during this Agreement; (v) the violation of any of its other covenants, conditions, or provisions set forth in this Agreement; (vi) the filing of a bankruptcy or insolvency proceeding, the appointment of a receiver or trustee for benefit of creditors, or the entry into an arrangement with its creditors by Customer, a Participant or any guarantor of Customer’s obligations hereunder (a ”Guarantor”); (vii) a Guarantor, if any, dies or revokes its guaranty of Customer’s obligations; or (viii) Customer’s merger, amalgamation, sale, or transfer of all or substantially all of its assets that causes a material change to Customer’s business or financial condition. 5.2 U.S. BANK DEFAULTS. U.S. Bank will be in default upon the occurrence of any of the following events (each a “U.S. Bank Default”): (i) any of U.S. Bank’s representations or warranties made in this Agreement fail to be true and correct at any time during this Agreement; (ii) U.S. Bank materially violates of any covenants, conditions, or provisions set forth in this Agreement; or (iii) the filing of a bankruptcy or insolvency proceeding, the appointment of a receiver or trustee for benefit of creditors, or the entry into an arrangement with its creditors by U.S. Bank. 5.3 CURE. Customer must cure any Customer Default under section 5.1(i)-(iv) within five days of notice of such Customer Default. Customer must cure any Customer Default under section 5.1(v) within 30 days of notice of the Customer Default. Notwithstanding the foregoing, a Customer Default under section 14 and a Customer Default arising under sections 5.1(vi)-(viii) shall not be entitled to notice or the right to cure and U.S. Bank may immediately terminate this Agreement as a result of any such default. U.S. Bank shall cure any U.S. Bank Default arising under section 5.2(i) or (ii) within 30 days after notice of a U.S. Bank Default. U.S. Bank shall not be entitled to cure a U.S. Bank Default under section 5.2(iii). 5.4 U.S. BANK REMEDIES. Upon the occurrence of a Customer Default, after the notice and cure period have run, if any, without cure, in addition to any other remedies at equity or law, U.S. Bank may: (i) immediately terminate this Agreement or suspend or cancel any Cards and Accounts; (ii) retain and will not be required to pay Customer any payables pursuant to this Agreement (other than a return of prefunded amounts not applied to outstanding Obligations); and (iii) collect on demand, and Customer must promptly comply with such demand, any amount directly or indirectly related to any Customer Default, including any fees or losses sustained by U.S. Bank, and any reasonable court and legal costs incurred by U.S. Bank to exercise its rights or remedies under this section 5. If Customer violates its obligations under section 4 (Security and Confidentiality) or section 7 (Intellectual Property), in addition to the foregoing, U.S. Bank shall be entitled to injunctive relief in its favor and to specific performance without proof of actual damages and without the requirement of the posting of any bond or similar security, because U.S. Bank’s remedies at law may be inadequate to protect U.S. Bank against immediate and irreparable harm caused by any anticipated or actual breach of Customer’s obligations as set forth in section 4 (Security and Confidentiality) or section 7 (Intellectual Property) and because damages resulting from such a breach may be difficult to ascertain. Any delay or failure on the part of U.S. Bank to take action upon the occurrence of a Customer Default shall not constitute a course of dealing on the part of U.S. Bank, shall not constitute a waiver of such Customer Default or prevent U.S. Bank from taking action on such Customer Default or any other Customer Default in the future. For the avoidance of doubt, the adjustment of the credit limits or controls described in Section 3.2 (including requiring security or prefunding) are independent rights and are not dependent upon the existence of a Customer Default. 14 Confidential Page 9 of 16 R 01.2023 5.5 CUSTOMER REMEDIES.Upon the occurrence of a U.S. Bank Default, after the notice and cure period have run, if any, without cure, in addition to any other remedies at equity or law, Customer may: (i) immediately terminate this Agreement; and (ii) demand and recover payment of any damage amount directly related to any U.S. Bank Default. Any delay or failure on the part of Customer to take action upon the occurrence of a U.S. Bank Default shall not constitute a course of dealing on the part of Customer, shall not constitute a waiver of such U.S. Bank Default or prevent Customer from taking action on such U.S. Bank Default or any other U.S. Bank Default in the future. 6.TERM, TERMINATION AND SUSPENSION. 6.1 AGREEMENT TERM. This Agreement will remain in effect for five years from the Effective Date (the “Term”). This Agreement will automatically extend at the end of the Term for successive one-year periods unless either party provides at least 60 days prior written notice of termination prior to expiration of the current period. During the Term or any successive term thereafter neither Customer nor U.S. Bank may terminate this Agreement, in whole or in part, except by mutual consent or as otherwise provided under this Agreement. 6.2 U.S. BANK TERMINATION RIGHTS. U.S. Bank may terminate this Agreement if there has been no activity on Accounts within 12 months of the Effective Date of this Agreement or for any consecutive 12-month period after the Effective Date of this Agreement. 6.3 REGULATORTY SUSPENSION OR TERMINATION. U.S. Bank may immediately suspend or terminate: (i) any Card or Account if U.S. Bank is unable to verify the identity of an authorized employee, agent, user of the Card or Account or a Participant based on the Identification Information submitted to U.S. Bank or if U.S. Bank is unable to verify that providing services to an authorized employee, agent, user of the Card or Account, or a Participant does not pose a risk to U.S. Bank of violating any applicable law, statute or regulation; or (ii) this Agreement if U.S. Bank, in its sole discretion, determines provision of services under this Agreement is counter to any existing, new or amended law, regulation, regulatory interpretation, anticipated regulatory interpretation, or any enforcement of existing, new, or amended law, regulation, regulatory interpretation, or anticipated regulatory interpretation. 6.4 SURVIVAL.The following provisions shall survive termination of this Agreement: Schedule 1 (Fees); section 4 (Security and Confidentiality); section 5 (Default); section 7 (Intellectual Property); section 9 (Indemnification); section 10 (Limitation of Liability); section 11 (Notices); section 13 (Governing Law); section 24 (Set-Off); section 25 (Cumulative Remedies); and section 27 (Jury Trial Waiver). Without limiting or affecting the foregoing, any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall survive termination and shall remain in full force and effect. 7.INTELLECTUAL PROPERTY 7.1 GENERALLY.U.S. Bank or its affiliates, are the owner or licensee of any and all Intellectual Property or other proprietary right associated with U.S. Bank products and services including, but not limited to, the Program, related materials, and derivatives. Except as expressly stated in this Agreement, Customer is not authorized or allowed to use, copy, redistribute, publish, or retransmit any portion of U.S. Bank products or Intellectual Property without the express written consent of U.S. Bank. Customer is not permitted to change or delete any proprietary notices. Nothing in this provision grants any ownership right to Customer, U.S. Bank remains the sole owner of any and all its Intellectual Property. 7.2 USE OF NAME AND MARKS.U.S Bank may use Customer’s name or marks in presentations, press releases business cases, product brochures, and financial reports to announce the business relationship between the parties. 7.3 SOFTWARE LICENSE (a) License Grant. Subject to Customer’s compliance with this section 7, U.S. Bank grants Customer and Participants a non-exclusive, non-transferrable license to use and access Accounts on U.S. Bank’s or U.S. Bank’s third party licensor’s software accessible under the Program. (b) Ownership.U.S. Bank or U.S. Bank’s third party licensor retains all rights, title, and ownership of the Accounts (but not data generated through the use of an Account) and software, any documentation provided with the Accounts or software, and any works derived from the Accounts or software that contain all or part of the Accounts, software, or U.S. Bank’s or U.S. Bank’s third party licensor’s Intellectual Property. U.S. Bank asserts that the Accounts and software are protected by copyright and may be protected by patent, trademark, or other proprietary rights and laws of the United States, Canada, or other jurisdictions. Any rights not granted in this section 7 are reserved by U.S. Bank or its third party licensors. (c) Updates.U.S. Bank or U.S. Bank’s third party licensor may, from time to time, provide updates of the software. The updates replace the software initially licensed to Customer, and do not constitute an additional license to use the software. (d) Restrictions.Customer and Participant may not: (i) reverse engineer, decompile, disassemble the software or bypass or disable any copy protection or encryption; (ii) reformat or make derivative works from the software; (iii) transmit all or any part of the software by any means, media, or manner that would present the risk of unauthorized access; (iv) disclose part or all of the software to any third parties except as explicitly authorized by U.S. Bank; (v) use all or part of the software to advise, consult, or otherwise assist any third 15 Confidential Page 10 of 16 R 01.2023 parties; or (vi) otherwise use the software in any manner that would compete in any way with U.S. Bank’s business. (e) Audit.Customer agrees to permit U.S. Bank reasonable access to any records, systems, or operations to ensure that Customer is in compliance with the license granted in this section 7. 7.4 END USER AGREEMENTS.Customer and its employees, agents or authorized users may receive or have access to, and must agree to, any and all applicable end user license or other agreements that govern the use of any U.S. Bank software, services, or Accounts. U.S. Bank may amend such agreements from time to time without notice to Customer. 7.5 THIRD PARTY SOFTWARE LICENSE.As a prerequisite for use of VMS Services to pay for maintenance expenses, Customer will need to (i) obtain at its own expense, a license from the third party provider identified by U.S. Bank, and (ii) agree to the third party’s then-current terms of use and privacy policy on the portal login page of the third party’s website. Customer, its Participants, employees, agents, and authorized users must not submit any Identification Information through the third party’s portal. Customer consents to U.S. Bank’s release of Customer transaction data and information to such third parties. U.S. Bank is not liable for the third party’s use or further release or dissemination of Customer transaction data or information. 8.WARRANTIES. Each party respectively represents and warrants, at all times during this Agreement, that: (i) this Agreement is valid, binding and enforceable; (ii) execution of this Agreement and the performance of the obligations hereunder (A) are within such party’s powers, (B) have been authorized by all necessary organizational action, and (C) do not require action by or approval of any governmental or regulatory body, agency or official; (iv) the execution of this Agreement and the performance of the obligations hereunder do not constitute a breach of any material agreement of such party or of applicable law or regulation; (v) such party possesses the financial capacity to perform all of its obligations under this Agreement. Customer represents and warrants, at all times during this Agreement, that: (i) the material information provided by Customer to U.S. Bank is true, complete and accurate; (ii) Customer will use all Cards and Accounts for business purposes only; (iii) Customer will obtain consent from any authorized user or agent to release any authorized user or agent Identification Information to be used for any purpose under this Agreement including for purposes of obtaining credit reporting agency records; and (iv) Customer will not, in connection with the services contemplated by this Agreement or in connection with any other business transactions involving U.S. Bank, receive compensation, make, offer or promise to make any payment or transfer anything of value, directly or indirectly if such compensation, payment or transfer would have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business, in breach of any applicable laws, statutes, regulations and codes relating to anti-kickback, anti-bribery and anti-corruption. This paragraph shall not, however, prohibit normal and customary business entertainment of nominal value or the giving of business mementos of nominal value. Except as expressly provided herein, U.S. Bank makes no warranties, express or implied, in law or in fact, including, without limitation, the implied warranties of fitness for a particular purpose and of merchantability, either to Customer or to any other party, in connection with this Agreement or with respect to software products provided or made available to Customer for its use by U.S. Bank in connection with this Agreement. 9.INDEMNIFICATION.Customer agrees to indemnify and hold harmless U.S. Bank and its agents, officers, directors, employees, contractors and subcontractors from any third party claims, actions, demands, damages, injuries, injunctions, suits, fines, penalties, costs, and expenses and liability whatsoever (including reasonable legal fees), arising out of: (i) the infringement by Customer or any third party of any Intellectual Property or other property or contract right of any other entity; (ii) the violation of any law, rule, regulation or authority by Customer, Participant, or any third party; (iii) any gross negligence or intentional act of Customer, Participant or, including, but not limited to, Customer’s, Participant’s or an transmission of incorrect, illegible, duplicate, or fraudulent data to U.S. Bank; or (iv) any Customer Default. U.S. Bank shall notify Customer of any claim that is asserted and each action or suit that is filed or served, and provide Customer with a copy of any written documentation received in relation with the claim, for which U.S. Bank is seeking indemnification pursuant to this section 9, provided, however, that failure to give such notice shall not relieve Customer of its indemnification obligations. Customer may thereafter assume control of such claim, provided that U.S. Bank shall have the right to participate in the defense or settlement of such claim. U.S. Bank may employ counsel at its own expense to assist with any such claim; however, if such counsel is necessary because of a conflict of interest of either Customer or its counsel or because Customer does not assume control, Customer shall bear the expense of such counsel. Customer may not settle any claim, admit to any liability, or consent to any judgment with respect thereto without the consent of U.S. Bank. 10.LIMITATION OF LIABILITY. U.S. Bank and its affiliates are not liable for any consequential, special, indirect, or punitive damages of any nature (including lost profits) regardless of whether such party has been advised of the possibility of such damages. In no event is U.S. Bank liable for any damages under the Program and VMS Services that exceed the fees U.S. Bank collected during the 12 months immediately preceding the alleged liability. 16 Confidential Page 11 of 16 R 01.2023 11.NOTICES.Any notice required to be given to a party pursuant to this Agreement shall be in writing and will be deemed received either: (i) two days after the date of mailing if sent by overnight, registered, or certified mail, return receipt requested; or (ii) one day after the date of mailing if sent by a national overnight courier service. Notices shall be sent to the following addresses: to U.S. Bank at U.S. Bank National Association, Corporate Payment Systems, Mail Code EP- MN-A17S, 901 Marquette Ave., Minneapolis, MN 55402, U.S.A. Attn: CPS Contract Manager and to Customer at the address stated on the Application. Either party may change its notification address at any time by written notice to the other. 12.ASSIGNMENT; TRANSFER; CHANGE IN OWNERSHIP.Customer shall not assign or otherwise transfer or delegate its rights, obligations, or duties under this Agreement without U.S. Bank’s prior written approval at its sole discretion. For the purposes of this provision, “transfer” refers to a merger, acquisition, consolidation, divestiture, change in control, asset transfer, amalgamation, proceeding under bankruptcy laws, or any other transfer, reorganization, or sale (in whole or in part) of Customer. To the fullest extent not prohibited by applicable law, Customer will notify U.S. Bank in advance of any material change (and if prohibited, within 15 days after such change) to any information provided to U.S. Bank at any time concerning Customer’s primary business, legal organization (e.g., partnership, corporation, etc.) or any change resulting from a transfer as described above. Customer must promptly provide any information requested by U.S. Bank associated with the request for approval. 13.GOVERNING LAW AND VENUE.The laws of the state in which Customer is organized under and applicable federal laws and regulations of the United States, apply to any dispute arising out of this Agreement, its subject matter, or its formation. 14.COMPLIANCE WITH APPLICABLE STATUTES, REGULATIONS AND OTHER AGREEMENTS.The parties will maintain compliance with all statutes and regulations applicable to the products and services contemplated under this Agreement, including all economic sanctions laws, anti-money laundering laws, and trade restrictions imposed by the United States, United Nations, European Union or Canada and U.S. Bank’s policies related thereto. U.S. Bank may require Identification Information for Customer, its affiliates, and its Participants, and any Authorized Officers, authorized signers, Account and Card holders, beneficial owners, authorized user or directors of Customer and its affiliates and Participants. Customer shall promptly provide any such required Identification Information to U.S. Bank. Customer shall comply with, and shall cause its Participants and Account and Card holders to comply with the following regulations and terms and conditions to the extent applicable to the Program or the products and services provided pursuant to this Agreement: (i) Any applicable automated clearinghouse operating rules or regulations, including, without limitation, the National Automated Clearing House Association Operating Rules or any related or successor operating rules or regulations and (ii) Card Network operating rules and regulations. 15.FORCE MAJEURE AND EXCUSABLE DELAY. 15.1 Except for payment obligations under this Agreement, neither party is responsible for performance delays or failures resulting from acts of God, acts of civil or military authority, fire, flood, strikes, war, epidemics, shortage of power or chips, telecommunications or Internet service interruptions or other acts or causes reasonably beyond the control of that party. The party suffering the force majeure event will: (i) implement its applicable disaster recovery plan to the extent appropriate, and practicable; (ii) give the other party prompt notice of the occurrence of a force majeure event; (iii) use diligent efforts to re-commence performance as promptly as commercially practicable pursuant to its disaster recovery plan; and (iv) provide periodic updates to the other party regarding its efforts to re-commence performance until performance has re-commenced in accordance with this Agreement. 15.2 Either party may terminate this Agreement upon written notice to the other, if the non-terminating party is unable to perform a material portion of its obligations as a direct result of a force majeure event for more than 30 consecutive days. Delay in either party's performance is excused to the extent its performance is delayed solely due to an act or omission of the other party. 16.CHANGE IN TERMS OF THIS AGREEMENT.U.S. Bank may change the terms and conditions of this Agreement at any time upon written notice to Customer (which notice may be given by email). If permitted by applicable law, the changes will apply to both existing and future transactions and Obligations. If Customer refuses to accept the changes, Customer must notify U.S. Bank in writing within 30 days from the date of the notice that it refuses to accept the changes and elects to terminate this Agreement. Should Customer terminate this Agreement pursuant to this section 16, all Obligations will immediately become due and payable by Customer to U.S. Bank, according to the terms of this Agreement. 17.INTERPRETATION.The parties expressly agree this Agreement will not be construed more strongly against the drafting party. This Agreement constitutes the entire agreement between the parties concerning the matters addressed in this Agreement, and cancels and supersedes any prior agreements, undertakings, declarations or representations, written or verbal, in respect thereof. Headings are inserted for convenience of reference only and do not affect the construction or interpretation of this Agreement. 17 Confidential Page 12 of 16 R 01.2023 18.SEVERABILITY.Should any provision of this Agreement be declared invalid for any reason, such declaration will not affect the validity of any other provision of this Agreement, which will remain in full force and effect as if this Agreement had been executed with the invalid provision(s) eliminated. The parties shall use their commercially reasonable efforts to agree upon a valid substitute provision in accordance with the purpose of this Agreement and the parties’ intent. 19.NO WAIVER.No failure or delay by either party to insist on specific performance of any term or obligation set forth in this Agreement or exercise any right, power, or privilege provided under this Agreement or by applicable law, will operate as a waiver thereof; nor will any single or partial exercise of any such right, power, or privilege preclude any other or future exercise of any other right, power, or privilege. 20.RELATIONSHIP OF THE PARTIES.The relationship between the parties is that of independent contractors. Nothing contained in this Agreement creates an agency, partnership, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party has authority to contract for or bind the other party in any manner whatsoever. 21.RELATIONSHIP BETWEEN U.S. BANK AND THIRD PARTY SERVICE PROVIDERS.U.S. Bank may enter into agreements with third parties for the purpose of marketing and advertising U.S. Bank’s products and services and providing other services to U.S. Bank. U.S. Bank may compensate the third parties based on revenue generated instead of a flat fee for such services. The products or services provided to Customer pursuant to this Agreement may include products or services subject to such compensation paid to third parties. To the extent Customer was referred to U.S. Bank by such third party, Customer authorizes U.S. Bank to release Customer’s Confidential Information to such third party (and its agents) for purposes of communicating or computing any revenue or fees that may be due from U.S. Bank to such third party. Additionally, Customer may from time to time request that U.S. Bank provide certain of Customer’s Confidential Information (including transaction data) to a third party (such request a “Data Release Request”). U.S. Bank’s action on any such Data Release Request is subject to the following conditions: (i) the Confidential Information to be transmitted must be clearly identified by Customer (which can include by category), (ii) Customer must provide specific directions regarding the initial personnel at the third party that U.S. Bank will interface with regarding the transmission of such Confidential Information and once identified U.S. Bank may speak generally about such Confidential Information with such third party, (iii) the directions regarding such Confidential Information transmission, including file format, frequency and means for any transmission or delivery, must be acceptable to U.S. Bank, (iv) U.S. Bank will have no liability to the extent it follows the directions of anyone U.S. Bank reasonably believes to be authorized by you or the designated third party to provide directions regarding the delivery of the Confidential Information, (v) Customer is solely liable for the third party’s use or disclosure of its Confidential Information and neither U.S. Bank nor any of its affiliates is liable for such third party’s use or further release of Customer’s Confidential Information, (vi) any Data Release Request will be considered an ongoing direction until affirmatively revoked or disavowed in writing by Customer, and (vii) U.S. Bank may suspend or terminate delivery of the Confidential Information without notice during the continuance of any default under this Agreement or in the event such transmission or delivery to the third party would violate applicable law. 22.DELEGATION.U.S. Bank may delegate duties herein to one or more third parties without Customer approval or consent so long as U.S. Bank remains responsible for the conduct of and payment to such third parties. 23.NO THIRD PARTY BENEFICIARIES OR CLAIMS. Except as stated in this Agreement, and with reference to any successors or assigns, any services provided under this Agreement are for the sole and exclusive benefit of Customer and Participants, if any, and nothing in this Agreement will be deemed to create any third party beneficiary rights in any person or entity not party to this Agreement. 24.SET-OFF.U.S. Bank may set-off any amounts Customer owes to U.S. Bank pursuant to this Agreement or any other agreement between the parties or their affiliates against any amounts due to Customer by U.S. Bank or its affiliates. 25.CUMULATIVE REMEDIES.Except as expressly provided elsewhere in this Agreement, each party's rights and remedies under this Agreement are cumulative and in addition to, not exclusive of or in substitution for, any rights or remedies otherwise available to that party. 26.INCORPORATION. The following are incorporated into this Agreement by reference as if set out at length: 26.1 U.S. Bank Voyager Fleet Cobrand Card Program Application 26.2 Schedule 1 – Fees 26.3 Schedule 2 - Rebates 27.JURY TRIAL WAIVER. Customer and U.S. Bank hereby waive all rights to trial by jury in any proceeding relating to this Agreement. 28.AUTHORIZATION AND EXECUTION.This Agreement may be executed and delivered by Customer electronically, and fully executed electronic versions of this Agreement, or reproductions thereof, will be deemed to be original counterparts. 18 Confidential Page 13 of 16 R 01.2023 By completing the Application, Customer acknowledges and agrees that: U.S. Bank will review the Application and may, at its sole discretion, grant such request, but that U.S. Bank is under no obligation to do so. The signer represents, warrants and agrees that: (i) he or she is authorized by an applicable Bylaw, Article or other organizational authority to enter into all transactions contemplated by this Agreement; (ii) all information provided in the Application is true, complete and accurate to the best of the signer’s knowledge and the signer has the authority to provide such information and complete such Application; (iii) if U.S. Bank approves the Application, Customer shall be bound by this Agreement; and (iv) U.S. Bank is authorized to investigate, obtain, and exchange reports and information regarding the Application and any resulting Accounts with credit reporting agencies and other parties with legitimate business needs for such reports or information. By selecting the "I Accept" button, you are signing this Agreement electronically. You agree your electronic signature is the legal equivalent of your manual signature on this Agreement. By selecting "I Accept" Customer is consenting to be legally bound by the Agreement's terms and conditions. In witness whereof, Customer has executed this Agreement. Date: __________________ ________________________________________________________________ Printed Name of 1st Authorized Signer Printed Name of 2nd Authorized Signer ________________________________________________________________ Printed Title of 1st Authorized Signer Printed Title of 2nd Authorized Signer ________________________________________________________________ Signature of 1st Authorized Signer Signature of 2nd Authorized Signer (ONLY if required by Customer’s organizational guidelines) ___________________________________________________________________________________________ 19 Confidential Page 14 of 16 R 01.2023 Schedule 1 Fees The fees listed below apply to this Agreement. Failure of U.S. Bank to apply any fee outlined in this Agreement, at any time, does not preclude U.S. Bank from ever applying such fee. U.S. Bank reserves the right to change fees upon 30 days prior notice to Customer. Fees identified as recurring monthly are billed on the first statement of the month. Fees Description Fee, per Account, card, or occurrence, as applicable monthly card Fee $0.00 U.S. Bank Voyager Maintenance Solution transaction service fee $1.00 insufficient funds $20.00 custom card logo (design provided by Customer)$300.00 expedited delivery $20.00 paper statement or report $4.95 returned check $35.00 stop payment $20.00 finance charge 3.5% of the past-due balance per billing cycle (minimum of $2.00 assessed) non-financial transaction at Private Sites $0.20 Customer is solely responsible for determining whether to conduct a transaction as a VMS transaction or a standard Voyager Card transaction if the merchant in question is both a merchant that accepts the Voyager Card and a VMS Merchant. The fees applied to a particular transaction may be impacted by the type of program selected to conduct such transaction . 20 Confidential Page 15 of 16 R 01.2023 Schedule 2 Rebates 1.Definitions. Capitalized terms used but not defined herein shall have the meaning ascribed thereto in the Agreement. In addition, the following terms shall have the following meanings: 1.1.“Charge-off” means any amount due and owing to U.S. Bank by Customer related to the Agreement that is classified as a charge-off under U.S. Bank’s then applicable accounting policies. 1.2.“Charge-off Adjustment” means the difference between Charge-offs and one-half of Charge-off Recoveries. 1.3.“Charge-off Recovery” means an amount equal to any monetary recovery related to a Charge-off. 1.4.“Client Held Days Payment Performance” means the sum of the daily accounts receivable balances for the Rebate Period divided by the total sales for the same Rebate Period, inclusive of the beginning and ending dates less 15 days. 1.5.“Discount Interchange Rate Program” means an interchange rate program where the rates assessed on particular transactions are less than standard rates. Subcategories subject to differentiated discount volume percentage include transactions processed on large ticket program indicators and transactions assessed at network negotiated rates, all as reasonably determined by U.S. Bank. Transactions subject to Discount Interchange Rate Programs may change from time to time without notification to Customer. 1.6.“Net Combined Discount Charge Volume” means all Voyager and Mastercard Charges set forth on the Statements furnished for the Accounts in the applicable Rebate Period that qualify for and have applied to them a Discount Interchange Rate Program, less credits for Voyager Charges, and net of Voyager Charge Charge-off Adjustments for the same Rebate Period. All other Charges, fees, fraudulent charges, and chargebacks are excluded from Net Voyager Discount Charge Volume. 1.7.“Net Combined Standard Charge Volume” means all Voyager and Mastercard Charges set forth on the Statements furnished for all Accounts in a Rebate Period less, without duplication, each of the following categories to the extent that they relate to Charges: Non-Financial Transactions at Private Sites, fees, fraudulent charges, chargebacks, Voyager Maintenance Solution Volume, Charges qualifying for discount interchange rates or discount merchant fees, and net of Charge-off Adjustments, all in the same Rebate Period. 1.8.“Non-Financial Transaction” means a transaction on a Card where U.S. Bank does not (i) pay or reimburse a merchant for the value of the goods or services in such transaction, or (ii) charge or retain from merchants in amounts that are based on defined transaction fees or a percentage of the retail dollar value, less any merchant rebates. 1.9.“Rebate Period” means each 12-month period, beginning on January 1 of each year. 1.10.“Voyager Maintenance Solution Volume” means Charges set forth on the Statements furnished for all Accounts in a Rebate Period for transactions of VMS Services. 2.Rebate. 2.1 Conditions. To be eligible for and to retain a rebate, Customer must: (i) complete the Rebate Period in which a rebate is earned; (ii) not be subject to an uncured Customer Default at the time the rebate payment is due; and (iii) Client Held Days Payment Performance for all accounts’ Statements is equal to or less than 30. If Customer fails to satisfy the requirements of this section at the time of a scheduled rebate payment, U.S. Bank will not be required to pay Customer any such rebate payment. If the sum of Customer’s final net rebates is a negative amount, Customer shall reimburse U.S. Bank up to the amount of rebates U.S. Bank has previously paid to Customer. 2.2 Standard Rebate Calculation. U.S. Bank will calculate a rebate for the same Rebate Period as follows: (a)U.S. Bank will multiply the Customer’s Net Combined Standard Charge Volume by the percentage on Table A (Client Held Days Payment Performance Percentage) corresponding to Client Held Days Payment Performance achieved by Customer. (b)U.S. Bank will multiply the Customer’s Net Combined Standard Charge Volume by the percentage on Table B (Net Combined Standard Charge Volume Percentage) corresponding to the Net Combined Standard Charge Volume achieved by Customer. (c)U.S. Bank will add the values arrived at in sections 2.2 (a) - (b) above. (d)U.S. Bank will apply Charge-off Adjustments to the value arrived at in 2.2(c) to arrive at Customer’s net rebate. For the avoidance of doubt, section 2.2(e) is only a component in the calculation of Customer’s rebate for a particular Rebate Period. It does not constitute the payment, forgiveness or netting of any Charge-offs or any other amounts due to U.S. Bank against amounts due to Customer. 2.3 VMS Rebate Calculation. U.S. Bank will calculate a rebate, which will be paid separately from the rebate in section 2.2 of this schedule, for the same Rebate Period as follows: (a)U.S. Bank will multiply the Customer’s Voyager Maintenance Solution Volume by the percentage in Table C (Voyager Maintenance Solution Volume Percentage). (b)U.S. Bank will apply Charge-off Adjustments to the value arrived at in 2.3(a) to arrive at Customer’s net rebate. For the avoidance of doubt, section 2.3(b) is only a component in the calculation of Customer’s rebate for a particular Rebate Period. It does not constitute the payment, forgiveness or netting of any Charge-offs or any other amounts due to U.S. Bank against amounts due to Customer. 21 Confidential Page 16 of 16 R 01.2023 2.4 Payment. U.S. Bank will pay Customer’s net rebates within 60 days after the completion of the applicable Rebate Period. U.S. Bank will pay Customer’s final net rebates within 90 days after Customer satisfies all Obligations and provides written instruction to U.S. Bank to close all Accounts. U.S. Bank may retain and will not be required to pay Customer standard rebate payments less than $3,500.00. U.S. Bank will not carry forward any standard rebate payment less than $3,500.00. U.S. Bank may retain and will not be required to pay Customer VMS rebate payments less than $50.00. U.S. Bank will not carry forward any VMS rebate payment less than $50.00. 3.Rebate Tables. Table A –Client Held Days Payment Performance Percentage Client Held Days Payment Performance Performance Percentage Client Held Days Payment Performance Performance Percentage Client Held Days Payment Performance Performance Percentage 0-5 0.100%6-10 0.080%11-30 0.000% Table B –Net Combined Standard Charge Volume Percentage Net Combined Standard Charge Volume Percentage All 1.200% Table C -Voyager Maintenance Solution Volume Percentage Voyager Maintenance Solution Volume Percentage All 1.650% 4.Rebate Payment Registration. Customer shall register for ACH payments in the manner prescribed by U.S. Bank. U.S. Bank will not make any rebate payments until Customer has registered for ACH. If Customer fails to register for ACH by the date a rebate is due, Customer forfeits any payment of that rebate. Customer designates the following person to register Customer for ACH: Rebate Payment Registration a)Authorized Person’s Name b)Authorized Person’s Email Address 22 23 24 25 26 Implementation Information – ENTITY LEGAL NAME: Name to be Embossed on Card Sourcewell ID# CONTACT INFORMATION PROGRAM MANAGER (Primary) Name: Title: Address: Phone: Fax: Email: BILLING CONTACT Name: Title: Address: Phone: Fax: Email: FLEET CONTACT (Daily Contact) Name: Title: Address: Phone: Fax: Email: Financial Information Provide financials* or web-based link to such Number of Cards Needed Federal Tax- ID number: Estimated monthly or annual spend: * Along with the addendum/application, please attach or submit your most recent annual financial statement(s) according to the grid below. If the most recent annual financial statements are more than five (5) months old, please attach the most recent interim financial statements as well. Note: Entity’s name on the financial statements must match exactly the Entity’s name on this Application. Anticipated Monthly Charge Volume Financial Statements Required? Years =< $50,000.00 Yes 1 $50,000.01 - $250,000.00 Yes 2 => $250,000.01 Yes 3 27 Memorandum REPORT TO:City Commission FROM:Nic Focken, Parking Manager Ben Bailey, Neighborhood Services and Code Compliance Program Manager SUBJECT:Reject All Bids for Bridger Garage Repair and Rebid the Project at a Later Date MEETING DATE:December 3, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Reject All Bids for Bridger Garage Repair and Rebid the Project at a Later Date STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:Bids for the Bridger Garage Repair Project were opened on October 24th, with one bid being submitted. Halselden Montana Constructors LLC submitted the only bid of $943,708.70, not within the allocated budget for P031. Therefore, in our commitment to the project's success, City Staff recommends rejecting these bids and re-estimating and budgeting for re- advertising in a future fiscal year. UNRESOLVED ISSUES:None ALTERNATIVES:As the Commission sees fit FISCAL EFFECTS:None Report compiled on: November 20, 2024 28 Memorandum REPORT TO:City Commission FROM:Nic Focken, Parking Manager Ben Bailey, Neighborhood Services and Code Compliance Program Manager SUBJECT:Authorize the City Manager to Sign a Software as a Service Agreement (SaaS) with SkiData MEETING DATE:December 3, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign a Software as a Service Agreement (SaaS) with SkiData STRATEGIC PLAN:2.2 Infrastructure Investments: Strategically invest in infrastructure as a mechanism to encourage economic development. BACKGROUND:The Parking Department relies on SkiData to operate the gates in the Bridger Garage. However, the system's computer, which is over a decade old, is hindering the department's ability to utilize the technology effectively. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the Commission FISCAL EFFECTS:Getting the new hardware is $15,288 Attachments: City SaaS Agreement SKIDATA.pdf Report compiled on: November 20, 2024 29 Software as a Service Agreement This Software as a Service Agreement (“Agreement”), is made and entered into this 19th day of November, 2024 (“Effective Date”), by and between the City of Bozeman, Montana, a self- governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and, SkiData Inc., with a mailing address of 150 Capitol Dr. #120, Golden, CO 80401 hereinafter referred to as “Provider.” The City and Provider may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the Parties hereto agree as follows: 1. Definitions. a. “Aggregated Statistics” means data and information related to the City's use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services. b. “Authorized User” means the City's employees, consultants, contractors, and agents (i) who are authorized by the City to access and use the Services under the rights granted to the City pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder. c. “Confidential Information” means, subject to Montana’s Open Records Law, all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential. With respect to the City, Confidential Information must also include any and all information transmitted to or stored by Provider in connection with performance of its obligations under this Agreement, including, but not limited to, personally identifiable information (“PII”) of residents, employees or people included within the City’s data, including name, address, phone number, e-mail address, date of birth, social security number, patient records, credit card information, driver’s license number, account numbers, PINs and/or passwords, any other information that could reasonably identify a person, and products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential.” Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or 30 - page 2 of 16 - (d) independently developed by the receiving Party without reference to or use of the disclosing Party’s Confidential Information. d. “City's Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of the City or an Authorized User through the Services, including, without limitation, the City's meter data and other energy data related to the City's facilities located in the State of Montana. This information, data, and content may also include that which is considered Confidential Information. e. “Data Incident” means a breach of the City or the Provider’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the City’s Data through the Services licensed to the City by the Provider. f. “Documentation” means Provider’s user manuals, handbooks, and guides relating to the Services provided by Provider to the City either electronically or in hard copy form/end user documentation relating to the Services. g. “Intellectual Property Rights” or “IP Rights” means any and all rights that may exist under patent law, copyright law, publicity rights law, moral rights law, trade secret law, trademark law, unfair competition law or other similar protections, whether or not such rights are registered or perfected. h. “Provider IP” means the Services, the Documentation, and any and all intellectual property provided to the City or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of the City's access to or use of the Services, but does not include the City's Data. i. “Services” means the on premise software-as-a-service license described in the Scope of Services. See attached Exhibit A. 2. Purpose. City agrees to enter into this Agreement with Provider to perform for the City the Services described in the Scope of Services, incorporated into this Agreement and attached as Exhibit A. 3. Term and Termination. a. Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for 12 months from such date (the “Initial Term”). This Agreement will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to this Agreement’s express provisions. The Parties may extend this Agreement for three (3) additional one (1) year terms. b. Notice of Non-Renewal. A Party to this Agreement gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then- 31 - page 3 of 16 - current term (each a “Renewal Term” and together with the Initial Term, the “Term”). c. Termination. i. Provider may terminate this Agreement, effective on written notice to the City if the City: 1) fails to pay any amount when due hereunder, and such failure continues more than sixty (60) days after Provider’s delivery of written notice thereof; or 2) breaches any of its obligations under Paragraph 6 of this Agreement ii. Any Party to this Agreement may terminate their obligations under this Agreement, effective on written notice to the other Parties, if another Party materially breaches this Agreement, and such breach: 1) is incapable of cure; or 2) being capable of cure, remains uncured sixty (60) days after the non-breaching Party provides the breaching Party with written notice of such breach; or iii. Any Party to this Agreement may terminate this Agreement, effective immediately upon written notice to the other Parties, if the other Party: 1) becomes insolvent or is generally unable to pay or fails to pay its debts as they become due; 2) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; 3) makes or seeks to make a general assignment for the benefit of its creditors; or 4) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. d. Expiration. Provider must notify the City 90 days in advance of this Agreement’s expiration date. e. Effect of Expiration or Termination. No expiration or termination will affect the City's obligation to pay all Fees that may have become due before such expiration or termination or entitle the City to any refund. 4. Scope of Services. Provider must perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, this Agreement governs. Provider agrees to be bound by its responses to the City’s Cloud Questionnaires, incorporated into and attached to this Agreement as Exhibit B and made part of this Agreement. Such responses constitute material consideration for the City to enter into this Agreement and the responses are material representations regarding the Provider’s performance. 32 - page 4 of 16 - 5. Access and Use. a. Provision of Access to Services. Subject to and conditioned on the City's payment of fees and compliance with the terms and conditions of this Agreement, Provider grants the City a non-exclusive, non-transferable license to the Services during the Term. This license to the Services is solely for use by the City and its Authorized Users and must be accessed and used in accordance with the terms and conditions set forth in this Agreement. Unless otherwise agreed upon and detailed in the Scope of Services, such access and use is limited to the City's internal use. If applicable, Provider must provide to the City the necessary passwords and network links or connections to allow the City to access the Services. b. Documentation License. Subject to the terms and conditions contained in this Agreement, Provider grants to the City a non-exclusive, non-sublicensable, non- transferable license to use the Documentation during the Term solely for the City's internal business purposes in connection with its use of the Services. c. Designated Authorized Users. The City may designate the number of Authorized Users permitted to access the Services. d. Reservation of Rights. Provider reserves all rights not expressly granted to the City in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to the City or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP. e. Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend the City's and any Authorized User’s access to any portion or all of the Services if: i. Provider reasonably determines 1) there is a threat or attack on any of the Provider IP; 2) the City's or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other Customer or vendor of Provider; 3) the City, or any Authorized User, are using the Provider IP for fraudulent or illegal activities; or 4) Provider’s provision of the Services to the City or any Authorized User is prohibited by applicable law; ii. any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable the City to access the Services; or iii. in accordance with Section 5(a)(iii) (any such suspension described in sub- section (i), (ii), or (iii), a “Service Suspension”). Provider must use commercially reasonable efforts to provide written notice within five (5) business days prior to any planned Service Suspension to the City and provide updates regarding resumption of Services following any Service Suspension. Provider must use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider 33 - page 5 of 16 - may be subject to liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that the City or any Authorized User may incur as a result of a Service Suspension. f. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor the City's use of the Services, and collect and compile Aggregated Statistics. As between Provider and the City, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. The City acknowledges that Provider may compile Aggregated Statistics based on the City's Data input into the Services. The City agrees that Provider may: 1) make Aggregated Statistics publicly available in compliance with applicable law, and 2) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify the City or the City's Confidential Information. 6. The City's Responsibilities. a. The City is responsible for all uses of the Services and Documentation resulting from access provided by the City, directly or indirectly. The City must use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and must cause Authorized Users to comply with such provisions. b. Unless otherwise agreed, the City is responsible for creating and modifying its data into the Services, and keeping the City’s data into the Services current and accurate. c. The City must reasonably cooperate with Provider’s performance of Professional Services. The City recognizes and agrees that performance of Professional Services is contingent upon the City’s cooperation and as set forth in Paragraph 7. d. The City may test the Provider’s Services in a live production environment to ensure that it conforms to the specifications set forth in this Agreement and all Exhibits. Upon acceptance, the City must pay the Provider in accordance with the Scope of Services. See attached Exhibit A. If the City determines that the Services do not meet the specifications set forth in this Agreement and all Exhibits, upon 60 days of receiving written notice of such deficiencies, the City may terminate this Agreement if the Provider does not cure the deficiencies. Provider must refund the City all sums already paid within five (5) business days. Such termination and refund does not bar the City from pursuing other remedies available under the Agreement or law. 7. Provider’s Obligations. To induce the City to enter into this Agreement, Provider makes the following representations: a. Provider has familiarized itself with the nature and extent of this Agreement, all exhibits including but not limited to the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. 34 - page 6 of 16 - b. Provider represents and warrants to the City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement must not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. c. Provider must ensure the Services delivered under this Agreement are adequately secure, and must provide a secure environment for all of the City’s Confidential Information, which may include, but is not limited to any hardware and software (including servers, network and data components) to be provided or used by the Provider as part of its performance under this Agreement. Provider represents that the security measures it takes in performance of its obligations under this Agreement are, and at all times will remain in compliance with all applicable laws and regulations governing Provider’s access to, use of, and handling of the City’s Data. d. If Provider creates a new version of the Services, it must make the new version available to the City at no additional cost. Provider must also provide the City with any additional features or functionalities of the Services that it may develop at no additional cost to the City. 8. Security. Provider must provide a secure environment for all of the City’s Confidential Information and any hardware and Software (including servers, network and data components) to be provided or used by Provider as part of its performance under this Agreement. Provider represents that the security measures it takes in performance of its obligations under this Agreement are, and will at all times remain in agreement with the industry’s minimum standards. Provider’s failure to comply with the industry’s minimum standards in fulfilling its obligations under this Agreement constitutes a breach of this Agreement. Additionally, Provider must contractually require any subcontractors or agents with access to the City’s Confidential Information to adhere to such Security Best Practices. 9. Indemnity/Waiver of Claims/Insurance. For other than professional services rendered, to the fullest extent permitted by law, Provider agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or 35 - page 7 of 16 - intentional misconduct of the Provider; or (ii) any negligent, reckless, or intentional misconduct of any of the Provider’s agents. For the professional services rendered, to the fullest extent permitted by law, Provider agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Provider or Provider’s agents or employees. Such obligations must not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Provider’s indemnity under this Section must be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Provider to assert its right to defense or indemnification under this Agreement or under the Provider’s applicable insurance policies required below, the City must 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 Provider was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Provider also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations must survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Provider must at Provider’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 Provider in this Section. The insurance coverage must not contain any exclusion for liabilities specifically assumed by the Provider in this Section. The insurance must 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. Provider must furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; 36 - page 8 of 16 - • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury per accident; • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate; and • Cyber Liability - $1,500,000 per occurrence; $3,000,000 annual aggregate. The above amounts must be exclusive of defense costs. The City must be endorsed as an additional insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, Automobile Liability, and Cyber Liability policies. The insurance and required endorsements must be in a form suitable to City and must include no less than a thirty (30) day notice of cancellation or non-renewal. Provider must notify City within two (2) business days of Provider’s receipt of notice that any required insurance coverage will be terminated or Provider’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Provider commencing work. 10. Audit Right. Provider must retain a certified public accounting firm to perform an annual audit of the Services’ data protection features and to provide a SOC 2 Type II report, pursuant to the current standards of the American Institute of Certified Public Accountants. In addition, Provider must annually conduct its own internal security audit and address security gaps. Provider must give the City a copy of the most current report from each audit conducted within five (5) business days of receiving the report. If requested by the City, Provider must, on a bi-annual basis, permit security reviews by the City on those systems storing or processing City Data, on Provider policies and procedures relating to the foregoing, including without limitation its information security programs, and permit testing of all security processes and procedures during the term, including without limitation, penetration testing. Provider or its nominee (including its accountants and auditors) may, on reasonable request, inspect and audit the City's use of the Services under this Agreement at any time during the Term. The City must make available all books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of Provider with respect to such audit. 11. General Use Restrictions. Copies of the Services created or transferred pursuant to this Agreement are licensed and may only be used as set forth in this Agreement. The City does not receive any rights to the Services other than those specifically granted in this Agreement and its incorporated exhibits. Other than what is expressly permitted by the terms of this Agreement, the City and its authorized users must not directly or indirectly copy or reproduce all or any part of the Services, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization, without Provider’s prior written permission. However, notwithstanding this restriction, the City has the right to reproduce and distribute any of the Services generated from the City’s Data. Without limiting the above restriction and right, the City receives no right to and must not: 37 - page 9 of 16 - a. copy, modify, create derivative works from, distribute, publicly display, or publicly perform the Application; b. sublicense or otherwise transfer any of the rights granted to it in this Agreement and the Scope of Services; c. reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from the Application; d. remove any proprietary notices from the Services or Documentation; or e. use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. 12. Independent Contractor Status/Labor Relations. The Parties agree that Provider is an independent contractor for purposes of this Agreement and is not considered a City employee for any purpose. Provider is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Provider is not authorized to represent the City or otherwise bind the City in any dealings between Provider and any third parties. 13. Resources and Support. Provider must, throughout the Term, make available such resources, including Provider personnel, as are reasonably required to: a. train designated employee(s) of the City in the use of the Services; b. support the obligations of the City provided in Paragraph 6; c. develop modifications to the Services as agreed to by the Parties in any exhibit attached to this Agreement; and d. Provider must provide technical support to the City as described in Exhibit A, Scope of Services, for the duration of this Agreement. 14. Transition Assistance. The Provider must provide transition assistance to the City when requested in writing. Upon termination of this Agreement for any reason, including but not limited to termination for cause, the Provider must assist the City in the orderly transition to a new Provider. The City must have access to the Provider’s system and the Provider’s support of that system for up to one (1) year following termination. In this instance, for up to one (1) year following termination, the City must pay the Provider at its then-current hourly rate(s). The Provider grants the City a perpetual right to use the Application and Object Code if any one of the following occurs: (a) Provider’s insolvency, bankruptcy, or involvement in an involuntary proceeding for protection of its creditors; (b) Provider materially breaches this Agreement and the City terminates the Agreement; (c) Provider fails to continue development of the Services; (d) Provider fails to provide the City with the most recent version of the Services contained in the Application; or (e) any other circumstance whereby Provider can no longer satisfy its obligation to provide Services to the State under this Agreement. 38 - page 10 of 16 - 15. Limitation of Liability. The Provider's liability for contract damages is limited to direct damages. The Provider must not be liable for special, incidental, consequential, punitive, or indirect damages. Damages caused by injury to persons or tangible property, or arising from any Provider indemnification under this Agreement, are not subject to a cap on the amount of damages. 16. Fees and Payment. Fees. The City must pay Provider the fees and make all payments as set forth in the Scope of Services, without offset or deduction. See attached Exhibit A. Any alteration or deviation from the described Services that involves additional costs above the Agreement amount will be performed by Provider only upon receiving a written request from the City. Any alteration or deviation from the Services will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing before Provider bills for any additional charges. All Fees and other amounts payable by the City under this Agreement are exclusive of taxes and similar assessments. The City is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by the City as set forth in this Agreement, other than any taxes imposed on Provider’s income. 17. Confidential Information. a. From time to time during the Term, a Party to this Agreement may disclose or make available to the other Party Confidential Information, as defined in Section 1 of this Agreement, about its business affairs. The receiving Party must not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s Authorized Users who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations established in this Agreement. b. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required: i. in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order must first have given written notice to the other Party; ii. to establish a Party’s rights under this Agreement, including to make required court filings; or iii. to any Authorized User who may need to access Confidential Information in order to facilitate or execute the purpose of this Agreement. c. Unless otherwise required by law, each Party must not disclose Confidential Information to any other third party not otherwise identified in this agreement 39 - page 11 of 16 - without the other Party’s prior written consent. Each Party’s obligations of non- disclosure with regard to Confidential Information are effective as of the Effective Date, and survive this Agreement and do not terminate. However, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. d. Each Party must protect Confidential Information with the same degree of care it uses to protect its own Confidential Information with of similar nature and importance, but with no less than reasonable care. Each Party agrees to promptly notify the other Party if there is a misuse or misappropriation of Confidential Information. 18. Intellectual Property Ownership; Feedback. a. Provider IP. The City acknowledges that, as between the City and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP. b. The City's Data. Provider acknowledges that, as between Provider and the City, the City owns all right, title, and interest, including all intellectual property rights, in and to the City's Data. The City grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the City's Data and perform all acts with respect to the City's Data as may be necessary for Provider to provide the Services to the City. The City also grants to Provider a non- exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display the City's Data incorporated within the Aggregated Statistics. Unless the City provides written consent, Provider must not access or use the City’s Data for any other purpose than as described in this Agreement. c. Feedback. If the City or any of its Authorized Users sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or related functionality, or any comments, questions, suggestions, or the like (“Feedback”), Provider may use the City’s Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. The City retains all right, title, and interest in the Feedback. 19. Data Location. Provider must not transfer the City’s Data outside of United States or the Provider’s location as identified in the first paragraph of this Agreement unless it receives the City’s prior written consent or unless the transfer is to the Provider’s data center and such transfer is necessary for the execution of the Services. 20. Access to Data. The City may access and copy any of the City’s Data in Provider’s possession at any time. Provider must reasonably facilitate such access and copying promptly 40 - page 12 of 16 - after Customer’s request. In this instance, Provider may charge its reasonable standard fees for any such access and copying or for any fees related to the de-conversion of data. 21. Deletion of Data. Except as authorized by applicable law, Provider must not erase the City’s Data or any copy without the City’s prior written consent. 22. Data Incidents. Provider must implement and maintain a program for managing unauthorized disclosure of, access to, or use of the City’s Data. In case of a Data Incident, Provider must notify the City, in writing or by phone, within 48-hours of the incident. Provider must cooperate with the City and law enforcement agencies to investigate and resolve the Data Incident, including but not limited to providing reasonable assistance to the City in notifying injured third parties. In addition, if the Data Incident results from Provider’s breach of this Agreement or negligent or unauthorized act or omission, Provider must compensate the City for any reasonable expense related to notification of customers and provide one year of credit monitoring to any affected individual. Provider must give the City prompt access to such records related to a Data Incident. 23. Functional Warranty. Provider warrants that the Application and Services, including any modifications that are made by Provider or under Provider’s instructions do not contain any material defects, and will conform in all material respects to the specifications, functions, descriptions, standards and criteria set forth in the Agreement, its Exhibits, and the Documentation, which are all incorporated herein by reference. Provider further warrants that all post-Acceptance updates, alterations, or modifications to the Services will not materially diminish the features or functionality of the Application and Services. Provider must promptly correct any errors identified by the City in the Application and in any modification to the Application at no cost to the City. If, Provider is unable to correct such errors within 30 days following notification by the City, then Provider must at the City’s request accept return of the Application and return all money paid for the Application and maintenance. The City may also pursue any other remedies available to it under this Agreement or by law or equity. 24. Virus Warranty. Provider warrants that it has used commercially reasonable efforts to ensure against introduction of any virus into the City’s systems. Provider must immediately advise the City, in writing, upon reasonable suspicion or actual knowledge that the Services may contain a Virus. If a Virus is found to have been introduced into the City’s systems by the Services within 30 days after the Effective Date of this Agreement, Provider must repair or replace the Services within ten (10) business days. If Provider cannot accomplish the foregoing within such time, then the City must discontinue use of the Services, and Provider must refund all money paid for the Services and maintenance as set forth in the Scope of Services. See Exhibit A. Provider must use all reasonable commercial efforts, at no additional charge, to assist the City in reducing the effects of the Virus and, if the Virus causes a loss of operational efficiency or loss of data, to assist the City to the same extent to mitigate and restore such losses. In addition, Provider must indemnify, defend and hold the City harmless from any claims, suits, damages, liabilities, losses, and reasonable attorney fees resulting from any such Viruses. The limitation of liability described in Paragraph 15 does not apply to this indemnification obligation. 25. Remedy for When Services are Subject of a Claim. If any Services furnished are 41 - page 13 of 16 - likely to or does become the subject of a claim of infringement of a third party’s IP Rights, then the Provider may request the City accept an alternative Service and the City may agree to one of the following alternative Services: 1) procure for the City the right to continue using the alleged infringing Services; 2) modify the Service so that it becomes non-infringing; 3) or replace it with one that is at least functionally equivalent. If the Provider is unable to any of the above three remedies, or if the use of the Services by the City is prohibited by an injunction, temporary restraining order, or other court order, the City must return the Services to the Provider within five (5) days of receiving Provider’s request in writing. The Provider must then give the City a credit equal to the amount paid to the Provider for the creation of the Services. The City is not precluded from seeking other remedies available agreed upon in this Agreement or in equity or law for any damages it may sustain due to its inability to continue using the Services. The Limitations of Liability set forth in Paragraph 15 of this Agreement does not apply to Provider’s obligations under this Section and the City’s right to seek additional remedies arising from Provider’s ‘infringement of a third party’s IP Rights. 26. Representatives and Notices. a. City’s Representative. The City’s Representative for the purpose of this Agreement must be Nic Focken or such other individual as City must designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission must be directed to the City’s Representative and approvals or authorizations must be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Provider may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Provider’s Representative. The Provider’s Representative for the purpose of this Agreement must be Aaron Siebert or such other individual as Provider must designate in writing. Whenever direction to or communication with Provider is required by this Agreement, such direction or communication must be directed to Provider’s Representative; provided, however, that in exigent circumstances when Provider’s Representative is not available, City may direct its direction or communication to other designated Provider personnel or agents. c. Notices. All notices required by this Agreement must be in writing and must be provided to the Representatives named in this Section. Notices must 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. 27. Miscellaneous. a. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, including the Cloud 42 - page 14 of 16 - Services Questions, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: 1) this Agreement, excluding its Exhibits; 2) the Exhibits to this Agreement as of the Effective Date; and 3) any other documents incorporated herein by reference. b. Permits. Provider must provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. c. Laws and Regulations. Provider must 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. d. Nondiscrimination and Equal Pay. Provider agrees that all hiring by Provider of persons performing this Agreement must be on the basis of merit and qualifications. Provider will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. Provider will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. Provider must 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. Provider 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). Provider must report to the City any violations of the Montana Equal Pay Act that Provider has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Provider must require these nondiscrimination terms of its subcontractors providing services under this Agreement. 43 - page 15 of 16 - e. Force Majeure. In no event must a Party to this Agreement be liable to another Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond one Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo. f. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training. Provider must not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Provider acknowledges it is aware of and must 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. The City must have the right to request proof of such compliance and Provider must be obligated to furnish such proof. The Provider must be responsible for instructing and training the Provider’s employees and agents in proper and specified work methods and procedures. The Provider must provide continuous inspection and supervision of the work performed. The Provider is responsible for instructing its employees and agents in safe work practices. g. Modification and Assignability. This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Provider may not subcontract or assign Provider’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. h. Reports/Accountability/Public Information. Provider agrees to develop and/or provide documentation as requested by the City demonstrating Provider’s compliance with the requirements of this Agreement. Provider must allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Provider pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Provider must not issue any statements, releases or information for public dissemination without prior approval of the City. i. Non-Waiver. A waiver by either Party of any default or breach by the other Party of any terms or conditions of this Agreement does not limit the other Party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 44 - page 16 of 16 - j. 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 must 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. k. Taxes. Provider is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. l. Dispute Resolution. i. Any claim, controversy, or dispute between the Parties, their agents, employees, or representatives must 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. ii. If the Parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. m. Survival. Provider’s indemnification must survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. n. 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. o. Severability. If any portion of this Agreement is held to be void or unenforceable, the balance thereof must continue in effect. p. Applicable Law. The Parties agree that this Agreement is governed in all respects by the laws of the State of Montana. q. Binding Effect. This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the Parties. r. 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. s. Integration. This Agreement and all Exhibits attached hereto constitute the entire agreement of the Parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the Parties. There are no understandings between the Parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 45 - page 17 of 16 - t. Counterparts. This Agreement may be executed in counterparts, which together constitute one instrument. u. Consent to Electronic Signatures. The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date. PROVIDER City of Bozeman By:_______________________________ Name: Aaron Siebert_________________ Title: Vice President_________________ By:_______________________________ Name: Chuck Winn__________________ Title: City Manager__________________ 46 Memorandum REPORT TO:City Commission FROM:Nicholas Ross, Director of Transportation and Engineering SUBJECT:Authorize the City Manager to Sign an Amendment 1 with Sanbell for the Extension of the Transportation Engineering Term Contract MEETING DATE:December 3, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign Amendment #1 with Sanbell for the Extension of the Transportation Engineering Term Contract. STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:Sanbell, formerly Sanderson Stewart, was selected in 2023 for a Transportation Engineering term contract through a competitive procurement led by the Department of Transportation and Engineering. The Department issues Task Orders for individual project efforts under this contract, which is used for traffic analysis and design. Amendment No. 1 to the original Professional Services Agreement will extend this contract through 2025. UNRESOLVED ISSUES:None ALTERNATIVES:None identified or recommended. FISCAL EFFECTS:This Amendment does not appropriate any funding. Task Orders issued through this extension will be funded through approved items in the 2025 Biennium Budget. Attachments: Amendment 1 - Transportation Engineering Term Contract - Extension.docx Report compiled on: November 14, 2024 47 1st Amendment to Professional Services Agreement for Transportation Engineering Term Contract FY 2025-FY 2026 Page 1 of 2 FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS FIRST AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR TRANSPORTATION ENGINEERING TERM CONTRACT,dated February 28, 2023, (the “Agreement”) is made and entered into this _____ day of ____________, 202__, by and between the CITY OF BOZEMAN, MONTANA,a self governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and SANBELL, 106 E Babcock Street suite L1, Bozeman MT 59715 hereinafter referred to as “Contractor.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree to amend the Agreement as follows: 1. Extend term of agreement to December 31, 2025. 2.Agreement still valid. All remaining terms and provisions of the Agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** 48 1st Amendment to Professional Services Agreement for Transportation Engineering Term Contract FY 2025-FY 2026 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 SANBELL By________________________________By_____________________________ Chuck Winn, City Manager Print Name: Danielle Scharf, PE, PTOE Title: President APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney 49 Memorandum REPORT TO:City Commission FROM:Kellen Gamradt, Engineer II SUBJECT:Authorize the City Manager to Sign Amendment 4 to the Professional Services Agreement for the Field Survey Term Contract with Sanbell, to Facilitate Design of Upcoming Capital Improvements Projects MEETING DATE:December 3, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Approve and Authorize the City Manager to Sign Amendment 4 to the Professional Services Agreement for the Field Survey Term Contract with Sanbell to Facilitate Design of Upcoming Capital Improvements Projects STRATEGIC PLAN:2.2 Infrastructure Investments: Strategically invest in infrastructure as a mechanism to encourage economic development. BACKGROUND:Attached is a copy of the contract amendment with Sanderson Stewart. This amendment will add survey on South Grand Avenue, East Main Street, and East Harrison Street as described in the attached scope of work and payment schedule. These surveys will be used by the City’s Engineering Department for the design of upcoming sewer renovations projects and will add work to our existing survey contract. Staff has reviewed the amendment and found it to be commensurate with the work involved. Professional Services Agreement - Sanderson Stewart - Capital Improvement Projects Field Survey [EXTERNAL PDF] UNRESOLVED ISSUES:None ALTERNATIVES:As Suggested by the Commission FISCAL EFFECTS:If approved, this amendment will increase the fee on a time and materials basis with a cost not to exceed amount of $21,000 from $104,466.00 to $125,466.00. This will be paid for from City’s annual wastewater pipe replacement fund (WW07). Attachments: PSA Amendment No 4.docx Amendment 4 - Scope&Fee.pdf Report compiled on: November 15, 2024 50 Third Amendment to Professional Services Agreement for Field Survey Term Contract Page 1 of 2 FOURTH AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS FOURTH AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR Field Survey Term Contract dated July 12, 2022 (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 Sanbell, 106 E Babcock Street, Suite L1, Bozeman, MT 59718 hereinafter referred to as “Contractor.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree to amend the Agreement as follows: 1. Addition to Scope of Work. Attached Amendment No.4 1. Addition to Payment. Attached Rate Schedule 2. Agreement still valid. All remaining terms and provisions of the original Agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** 51 Third Amendment to Professional Services Agreement for Field Survey Term Contract 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 SANDERSON STEWART By________________________________By_____________________________ Chuck Winn, City Manager Print Name: Danielle Scharf Title: Principal/Region Manager APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney 52 AMENDMENT TO SERVICES AGREEMENT - NO. Effective Date of Original Services Agreement: Project Name: CLIENT Modifications to Sanbell scope of work and/or contract fee amount AMEND. TO SERVICES AGREE.JULY 2024PAGE 1 OF 1 1. PROJECT/SERVICES AGREEMENT INFORMATION Client and Sanbell hereby agree to modify the above-referenced Services Agreement as set forth in this Amendment. All provisions of the Services Agreement not specifically modified by this or any prior Amendments shall remain in effect. The effective date of this Amendment shall be the signature date of the Client as shown below. Project Number: Client Name: Original services agreement fee: SANBELL 2. NATURE OF AMENDMENT 3. DESCRIPTION OF SERVICES AGREEMENT MODIFICATIONS Modifications to Sub-consultant scope of work and/or contract fee amount Modifications to project schedule 4. FEE MODIFICATIONS Signature: Printed: Total fees for prior Amendments: Total services agreement fee with prior Amendments: Proposed fee for this Amendment: Total services agreement fee with all Amendments: Title: Date: Signature: Printed: Title: Date: 53 4,0000.1 Miles This product is for informational purposes and may not have been prepared for, or be suitable for legal, engineering, or surveying purposes. Users of this information should review or consult the primary data and information sources to ascertain the usability of the information. Feet 4660 Legend 233 Location 466 11/13/2024 Created By: Created For: Date: S Grand Sewer Renovations Street Names City Limits World Imagery Low Resolution 15m Imagery High Resolution 60cm Imagery High Resolution 30cm Imagery Citations 1.2m Resolution Metadata 54 4,0000.1 Miles This product is for informational purposes and may not have been prepared for, or be suitable for legal, engineering, or surveying purposes. Users of this information should review or consult the primary data and information sources to ascertain the usability of the information. Feet 4660 Legend 233 Location 466 11/13/2024 Created By: Created For: Date: Marwyn Addition - Sewer Renovation Street Names City Limits World Imagery Low Resolution 15m Imagery High Resolution 60cm Imagery High Resolution 30cm Imagery Citations 1.2m Resolution Metadata 55 Image © 2024 Airbus Image © 2024 Airbus Image © 2024 Airbus 56 OUTSIDE CONSULTANTS SURVEY CREW SERVICES STAFF PERSONNEL SERVICES CHARGE OUT RATES ROCKY MOUNTAIN EFFECTIVE AUGUST 17, 2024 Staff Engineer I $115.00/hour Staff Engineer II $130.00/hour Staff Engineer III $135.00/hour Landscape Designer I $105.00/hour Landscape Designer II $115.00/hour Landscape Designer III $125.00/hour Landscape Architect I $135.00/hour Landscape Architect II $145.00/hour Senior Landscape Architect I $165.00/hour Senior Landscape Architect II $175.00/hour Staff Planner I $100.00/hour Staff Planner II $115.00/hour Planner I $130.00/hour Planner II $145.00/hour Senior Planner I $155.00/hour Senior Planner II $195.00/hour Senior Planner Manager $205.00/hour Right-of-Way Agent $168.00/hour Project Engineer I $145.00/hour Project Engineer II $155.00/hour Senior Engineer I $190.00/hour Senior Engineer II $195.00/hour Senior Engineer Manager $210.00/hour Principal $250.00/hour Expert Witness/Special Consultant $290.00/hour Engineer Intern $90.00/hour Field Survey Technician I $85.00/hour Field Survey Technician II $88.00/hour Staff Surveyor I $115.00/hour Staff Surveyor II $130.00/hour Professional Land Surveyor I $140.00/hour Professional Land Surveyor II $150.00/hour Senior Professional Land Surveyor I $160.00/hour Senior Professional Land Surveyor II $180.00/hour Construction Inspector $88.00/hour ConstructionEngineering Tech. $100.00/hour Senior Construction Engineering Technician $145.00/hour Construction Engineer I $145.00/hour Construction Engineer II $150.00/hour CADD Technician I $100.00/hour CADD Technician II $105.00/hour Designer I $107.00/hour Designer II $110.00/hour Senior Designer I $120.00/hour Senior Designer II $145.00/hour Senior Designer Manager $165.00/hour Project Administrator $100.00/hour Senior Project Administrator $115.00/hour Administrative/Clerical $90.00/hour Senior Administrative/Clerical $115.00/hour Senior Administrative Director $185.00/hour Graphic Artist $115.00/hour Marketing Coordinator $120.00/hour Senior Marketing Coordinator $130.00/hour Marketing Director $185.00/hour 1-Person/2-Person Crew Per Job Survey Equipment $30.00 /fieldwork hour Survey Vehicle Mileage IRS rate/mile + $0.10/mile Scanner Equipment $150.00/hour Scanner Equipment (full day) $1,050/day 1) At cost if independently billed direct to client 2) Cost plus 5% if billed through us INDEPENDENT LABORATORIES 1) At cost if independently billed direct to client 2) Cost plus 5% if billed through us ADMINISTRATIVE EXPENSES Administrative Expenses 3.5% * Including copies, prints, phone, postage, materials, and travel *Based on professional services only, unless modified by contract Vehicle Mileage IRS Rate These rates are updated periodically to reflect market conditions. Rate increases will be reflected in future invoicing. TRAFFIC DATA COLLECTION SERVICES Standard Intersection Count (veh/bike/ped) $30.00/hour Small Roundabout Count (veh/bike/ped) $41.00/hour Large Roundabout Count (veh/bike/ped) $93.00/hour Spot Location Volume (veh/bike/ped) $4.00/lane/hour Spot Location Travel Speeds (veh) $5.00/lane/hour Data Collection Equipment $30.00/count location Rushed Processing (24-hour turnaround) $9.00/processing hour 57 Memorandum REPORT TO:City Commission FROM:Taylor Lonsdale, Transportation Engineer Nicholas Ross, Director of Transportation and Engineering SUBJECT:Authorize the City Manager to Sign Task Order 2023TETC-007-Gallatin High Mid-Block Crossing with Sanbell for the design of a Mid-Block Crossing on Oak Street at Gallatin High School MEETING DATE:December 3, 2024 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign Task Order 2023TETC-007-Gallatin High Mid-Block Crossing with Sanbell for the design of a Mid-Block Crossing on Oak Street at Gallatin High School STRATEGIC PLAN:1.3 Public Agencies Collaboration: Foster successful collaboration with other public agencies and build on these successes. BACKGROUND:The City of Bozeman's Departments of Transportation and Engineering and Parks and Recreation are partnering with Bozeman School District to build additional fields at the Sports Park. These fields will be used by Gallatin High students and staff. To ensure safe access between the Sports Park and Gallatin High, Transportation and Engineering is utilizing the existing Transportation Engineering Term Contract with Sanbell (formerly Sanderson Stewart) to design a mid-block crossing of Oak Street. Task Order 2023TETC- 007 covers all design work and assistance with the bidding process. UNRESOLVED ISSUES:None identified. ALTERNATIVES:None identified or recommended. FISCAL EFFECTS:The total budget for this Task Order is $38,635.00. Funding for this Task Order has been approved as Consultant Services in the 2025 Biennium Budget. Attachments: 2023TETC-007_Scope of Work_Gallatin High Mid-Block Crossing.pdf Task Order_2023TETC-007_Gallatin High Mid-Block Crossing.docx 58 Report compiled on: November 14, 2024 59 Transportation Engineering Term Contract Scope of Work – Gallatin High Mid-Block Crossing Task Order No. TE23-007 11/12/24 Sanbell is pleased to provide this scope of work for plan and design of a mid-block crossing on Oak Street adjacent to Gallatin High School. The pedestrian crossing would connect the Sports Park Master Plan with Gallatin High School approximately mid-block from Oak Street’s intersections with Cottonwood Road and Flanders Mill Road. All design improvements are anticipated to be completed within the existing Oak Street right of way. A detailed scope of services is outlined below. This work is to be done as a part of the Transportation Engineering term contract for engineering services. Scope of Work: Phase 1 - Project Management & Coordination This phase of the project includes general project management, coordination with the Client, weekly project update emails, and monthly billing/invoicing. Phase 2 - Survey & Mapping A detailed topographic survey of the project intersection will be conducted using a combination of GPS, LIDAR, total station, and drone aerial techniques. The topographic survey will cover the anticipated area of improvements, extending approximately 100-feet along each leg of the crossing location. A boundary survey is not included. Base drawings will be prepared in AutoCAD format following the completion of the topographic survey, and additional pick-up topo will be conducted as needed throughout the duration of the project. Public and private utilities will be located prior to the survey via one-call for inclusion in the base drawings. No in-field excavation of private (dry) utilities is contemplated in this scope of work. This phase also includes traffic control needed for the completion of survey tasks. Phase 3 - Preliminary Mid-block Crossing Design This phase consists of all preliminary design tasks associated with the mid-block crossing design. Subtasks under Phase 3 include the following: · Mid-block crossing design may include raised crosswalk design 60 · Prepare plans and details for signing and striping, sidewalks/paths crosswalks, lighting and ADA accessibility ramps. · Prepare HAWK Signal design plans with signal timing details · Prepare special provisions and specification manual for bid documents · Quality control review and prepare Preliminary PS&E submittal for review by City of Bozeman Phase 4 – Final Mid-block Crossing Design This phase consists of preparation of final plan drawings based on review comments from City of Bozeman. Subtasks under Phase 4 include the following: · Finalize mid-block crossing design layout, plans and details for signing and striping, sidewalks/paths, crosswalks, lighting and ADA accessibility ramps. · Finalize HAWK Signal design and signal timing details · Finalize special provisions and specification manual for bid documents · Finalize quality control review and prepare Final PS&E submittal for City of Bozeman · Coordinate with Northwestern Energy for distribution line conflicts and electrical power service Phase 5 – Construction Bidding Services This phase of the project will consist of construction bidding services, including the following: · Assist City with procurement of signal equipment · Contractor coordination through private bid solicitation · Prepare contract documents for bidding after City final plan review · Facilitate pre-bid on-site meeting and distribute minutes · Shop Drawing submittal review · City of Bozeman will perform all field inspection work Fees and Billing Arrangements: Fee Phase 1 – Project Management & Coordination $3,965 Phase 2 – Survey & Mapping $2,655 Phase 3 – Preliminary Mid-block Crossing Design $10,575 Phase 4 – Final Mid-block Crossing Design $7,620 Phase 5 – Construction Bidding Services $13,820 Total Fee $38,635 61 Sanbell will bill for its services on a fixed fee basis for a total of $38,635.00 as specified in the fee table above and attached detailed hourly breakdown. Sanbell shall submit invoices to the Client for work accomplished during each calendar month. The amount of each monthly invoice shall be determined on the “percentage of completion method” whereby Sanbell will estimate the percentage of the total work accomplished during the invoicing period. Project Schedule: The anticipated schedule for this project will be to submit the Preliminary PS&E submittal within two (2) months of notice to proceed. 62 TE23-007 Gallatin High Mid-Block Crossing Design 11/12/2024 Labor Category Total Plan Hours Rate Total Plan Bill Amount Phase 1: Project Management & Coordination Task 001: Project Planning Principal 2.00 250.00 $500.00 Senior Engineer II 6.00 195.00 $1,170.00 Task 002: Project Coordination Senior Engineer II 10.00 195.00 $1,950.00 Senior Project Administrator 3.00 115.00 $345.00 Total for Project Management & Coordination 21.00 $3,965.00 Phase 2: Survey & Mapping Task 001: Topo Survey Professional Land Surveyor I 4.00 140.00 $560.00 Staff Surveyor II 8.00 130.00 $1,040.00 Task 002: Draft Topo & Base Plan Professional Land Surveyor I 4.00 140.00 $560.00 Task 003: QA/QC Senior Engineer II 1.00 195.00 $195.00 Senior Professional Land Surveyor II 2.00 150.00 $300.00 Total for Survey & Mapping 19.00 $2,655.00 Phase 3: Preliminary Mid-block Crossing Design Task 001: Crosswalk & ADA Design Senior Engineer II 2.00 195.00 $390.00 Staff Engineer II 12.00 130.00 $1,560.00 Task 002: Electrical Signal Design Senior Engineer II 6.00 195.00 $1,170.00 Staff Engineer II 12.00 130.00 $1,560.00 Task 003: PS&E Senior Engineer II 4.00 195.00 $780.00 Staff Engineer II 12.00 130.00 $1,560.00 Task 004: Special Provisions & Specification Manual Senior Engineer II 2.00 195.00 $390.00 Staff Engineer II 8.00 130.00 $1,040.00 Task 005: QA/QC Principal 4.00 250.00 $1,000.00 Senior Engineer II 4.00 195.00 $780.00 Senior Project Administrator 3.00 115.00 $345.00 Total for Preliminary Mid-block Crossing Design 69.00 $10,575.00 Phase 4: Final Mid-block Crossing Design Task 001: Crosswalk & ADA Design Senior Engineer II 2.00 195.00 $390.00 Staff Engineer II 8.00 130.00 $1,040.00 Task 002: Electrical Signal Design Senior Engineer II 4.00 195.00 $780.00 Staff Engineer II 10.00 130.00 $1,300.00 Task 003: PS&E Senior Engineer II 4.00 195.00 $780.00 Staff Engineer II 10.00 130.00 $1,300.00 Task 004: Special Provisions & Specification Manual Senior Engineer II 2.00 195.00 $390.00 Staff Engineer II 4.00 130.00 $520.00 63 TE23-007 Gallatin High Mid-Block Crossing Design 11/12/2024 Labor Category Total Plan Hours Rate Total Plan Bill Amount Task 005: QA/QC Principal 2.00 250.00 $500.00 Senior Engineer II 2.00 195.00 $390.00 Senior Project Administrator 2.00 115.00 $230.00 Total for Final Mid-block Crossing Design 50.00 $7,620.00 Phase 5: Construction Bidding Services Task 001: Equipment Procurement Senior Engineer II 8.00 195.00 $1,560.00 Task 002: Contractor Bid Coordination Senior Engineer II 8.00 195.00 $1,560.00 Task 003: Prepare Contract Documents Senior Engineer II 10.00 195.00 $1,950.00 Staff Engineer II 20.00 130.00 $2,600.00 Senior Construction Engineering Tech 10.00 145.00 $1,450.00 Task 004: Facilitate Pre-Bid Senior Engineer II 4.00 195.00 $780.00 Staff Engineer II 4.00 130.00 $520.00 Task 005: Shop Drawing Review Senior Engineer II 10.00 195.00 $1,950.00 Senior Construction Engineering Tech 10.00 145.00 $1,450.00 Total for Construction Bidding Services 84.00 $13,820.00 Total for Gallatin High Mid-block Crossing 243.00 $38,635.00 64 OUTSIDE CONSULTANTS SURVEY CREW SERVICES STAFF PERSONNEL SERVICES CHARGE OUT RATES ROCKY MOUNTAIN EFFECTIVE AUGUST 17, 2024 Staff Engineer I $115.00/hour Staff Engineer II $130.00/hour Staff Engineer III $135.00/hour Landscape Designer I $105.00/hour Landscape Designer II $115.00/hour Landscape Designer III $125.00/hour Landscape Architect I $135.00/hour Landscape Architect II $145.00/hour Senior Landscape Architect I $165.00/hour Senior Landscape Architect II $175.00/hour Staff Planner I $100.00/hour Staff Planner II $115.00/hour Planner I $130.00/hour Planner II $145.00/hour Senior Planner I $155.00/hour Senior Planner II $195.00/hour Senior Planner Manager $205.00/hour Right-of-Way Agent $168.00/hour Project Engineer I $145.00/hour Project Engineer II $155.00/hour Senior Engineer I $190.00/hour Senior Engineer II $195.00/hour Senior Engineer Manager $210.00/hour Principal $250.00/hour Expert Witness/Special Consultant $290.00/hour Engineer Intern $90.00/hour Field Survey Technician I $85.00/hour Field Survey Technician II $88.00/hour Staff Surveyor I $115.00/hour Staff Surveyor II $130.00/hour Professional Land Surveyor I $140.00/hour Professional Land Surveyor II $150.00/hour Senior Professional Land Surveyor I $160.00/hour Senior Professional Land Surveyor II $180.00/hour Construction Inspector $88.00/hour ConstructionEngineering Tech. $100.00/hour Senior Construction Engineering Technician $145.00/hour Construction Engineer I $145.00/hour Construction Engineer II $150.00/hour CADD Technician I $100.00/hour CADD Technician II $105.00/hour Designer I $107.00/hour Designer II $110.00/hour Senior Designer I $120.00/hour Senior Designer II $145.00/hour Senior Designer Manager $165.00/hour Project Administrator $100.00/hour Senior Project Administrator $115.00/hour Administrative/Clerical $90.00/hour Senior Administrative/Clerical $115.00/hour Senior Administrative Director $185.00/hour Graphic Artist $115.00/hour Marketing Coordinator $120.00/hour Senior Marketing Coordinator $130.00/hour Marketing Director $185.00/hour 1-Person/2-Person Crew Per Job Survey Equipment $30.00 /fieldwork hour Survey Vehicle Mileage IRS rate/mile + $0.10/mile Scanner Equipment $150.00/hour Scanner Equipment (full day) $1,050/day 1) At cost if independently billed direct to client 2) Cost plus 5% if billed through us INDEPENDENT LABORATORIES 1) At cost if independently billed direct to client 2) Cost plus 5% if billed through us ADMINISTRATIVE EXPENSES Administrative Expenses 3.5% * Including copies, prints, phone, postage, materials, and travel *Based on professional services only, unless modified by contract Vehicle Mileage IRS Rate These rates are updated periodically to reflect market conditions. Rate increases will be reflected in future invoicing. TRAFFIC DATA COLLECTION SERVICES Standard Intersection Count (veh/bike/ped) $30.00/hour Small Roundabout Count (veh/bike/ped) $41.00/hour Large Roundabout Count (veh/bike/ped) $93.00/hour Spot Location Volume (veh/bike/ped) $4.00/lane/hour Spot Location Travel Speeds (veh) $5.00/lane/hour Data Collection Equipment $30.00/count location Rushed Processing (24-hour turnaround) $9.00/processing hour 65 City of Bozeman Transportation Engineering Term Contract Task Order Number 2023TETC-007 PROJECT:Gallatin High Mid-Block Crossing Issued under the authority of Transportation Engineering Term Contract Professional Services Agreement with Sanbell (dba Sanderson Stewart) for Architectural and Engineering Services. This Task Order is dated December 3, 2024 between the City of Bozeman Transportation and Engineering Department and Sanbell (Contractor). The following representatives have been designated for the work performed under this Task Order: City: Taylor Lonsdale, Transportation Engineer Contractor: Joey Staszcuk, Sanbell SCOPE OF WORK:The scope for this task order is detailed in the attached Transportation Engineering Term Contract Scope of Work – Task Order Number 2023TETC-007. COMPENSATION:Sanbell will bill for its services on a lump sum basis with a project total of $38,635.00. The provisions of the Professional Services Agreement shall govern the Work. IN WITNESS WHEREOF, the parties authorized to commit resources of the parties have executed this Task Order: City of Bozeman Sanbell Chuck Winn, Interim City Manager Danielle Scharf, Managing Principal 66 Memorandum REPORT TO:City Commission FROM:Chris Saunders, Community Development Manager Erin George, Community Development Interim Director SUBJECT:Ordinance 2174, Final Adoption of the Rest Stop Zone Map Amendment Amending Zoning on 10.05 Acres from M-1 Light Manufacturing District to B- 2 Community Business District Located East of the Intersection of N. 19th And Valley Center, And Providing An Effective Date, Application 24185 MEETING DATE:December 3, 2024 AGENDA ITEM TYPE:Ordinance RECOMMENDATION:Final Adoption of Ordinance 2174. 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 City Commission conducted a public hearing on this application on September 24, 2024. After consideration of all required criteria and materials the Commission unanimously approved the application with contingencies to complete processing. The applicant has provided all required materials to comply with the contingencies. Provisional adoption of this ordinance occurred on November 19, 2024. This final adoption is the second of the two steps to adopt the required ordinance to implement the zone map amendment. UNRESOLVED ISSUES:None ALTERNATIVES:As identified by the City Commission. FISCAL EFFECTS:None. Attachments: Rest Stop ZMA Ord 2174 - App. 24185.docx 001 Zone Map.pdf Report compiled on: October 24, 2024 67 Ord 2174 Page 1 of 5 ORDINANCE 2174 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA AMENDING THE CITY OF BOZEMAN ZONING MAP TO AMEND THE ZONING MAP ON 10.05 ACRES FROM M-1 LIGHT MANUFACTURING DISTRICT TO B-2 COMMUNITY BUSINESS DISTRICT KNOWN AS THE REST STOP ZONE MAP AMENDMENT, APPLICATION 24185. 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, the Community Development Board has been assigned the duties of the City of Bozeman Zoning Commission; 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 amend 10.05 acres from M-1 Light Manufacturing District to B-2 Community Business District has been properly submitted, reviewed, and advertised; and 68 Ordinance No. 2174, Rest Stop Zone Map Amendment Page 2 of 5 WHEREAS, after proper notice, the Bozeman Community Development Board acting in their capacity as the Zoning Commission held a public hearing on August 19, 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. 24185 the Rest Stop Zone Map Amendment, be approved as requested by the applicant; and WHEREAS, after proper notice, the City Commission held its public hearing on September 24, 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 69 Ordinance No. 2174, Rest Stop Zone Map Amendment Page 3 of 5 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 B-2, Community Business District: An area of land comprised described as follows: A parcel of land being Lots 1, 2, and 3 of Tract 1, of the Gardiner-Simmental Subdivision, together with the vacated portion of Bannock Stage Court and Simmental Way as shown on Plat J-5-E and recorded in Doc #2816581. Located in the Northeast Quarter of Section 35, Township 1 South, Range 5 East, P.M.M., City of Bozeman, Gallatin County, Montana, more particularly described as follows; Beginning at a 1” Iron Pipe located at the southwest corner of Tract 1 of said Gardiner- Simmental Subdivision; thence N 89°25'56" E a distance of 730.65' to a bent 5/8” rebar at the Southeast corner of said Tract 1; thence 625.70’ along a curve concave to the west, with a radius of 4187.50', with a chord bearing of N 17°02'14" W, with a chord length of 625.11 ' to a calculated position; thence S 83°29'33" W a distance of 111.55' to a calculated position; thence N 43°15'30" W a distance of 160.88' to a calculated position; thence N 52°52'45" W a distance of 45.29' to a calculated position; thence N 78°14'28" W a distance of 142.81' to a calculated position; thence S 71°52'28" W a distance of 154.51' to a calculated position; thence S 00°17'18" W a distance 70 Ordinance No. 2174, Rest Stop Zone Map Amendment Page 4 of 5 of 417.82' to a calculated position; thence S 00°17'18" W a distance of 300.00' the Point of Beginning, containing 437,774 square feet, or 10.050 acres. 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. 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 71 Ordinance No. 2174, Rest Stop Zone Map Amendment Page 5 of 5 Effective Date. This ordinance shall be in full force and effect thirty (30) days after final adoption. PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the 19 th day of November, 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 3rd day of December, 2024. The effective date of this ordinance is the 2 nd day of January, 2025. _________________________________ TERENCE CUNNINGHAM Mayor ATTEST: _______________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 72 73 Memorandum REPORT TO:City Commission FROM:Addi Jadin, Park Planning and Development Manager Mitch Overton, Parks and Recreation Director SUBJECT:Cattail Creek Park and Anchor Route Master Plan Presentation MEETING DATE:December 3, 2024 AGENDA ITEM TYPE:Plan/Report/Study RECOMMENDATION:Cattail Creek Park and Anchor Route Master Plan Presentation STRATEGIC PLAN:6.5 Parks, Trails & Open Space: Support the maintenance and expansion of an interconnected system of parks, trails and open spaces. BACKGROUND:The primary purpose of the Cattail Creek Park and Anchor Route park master plan is to further refine the 3.25-mile paved pathway planned to run from E. Valley Center Road to Bozeman Pond Park. This is one of the Anchor Routes described and conceptually depicted in the 2023 Comprehensive Parks, Recreation and Active Transportation Plan (PRAT Plan). The Cattail Anchor Route will primarily fall within existing parks but alternative on-road segments have been chosen where constraints, such as park width or the proximity to the creek, preclude installation of the 10- to 12-foot paved pathway. The Park Master Plan plots the general location of the pathway considering sensitivity to natural resource areas, coinciding with existing creek crossings where necessary, and in order to provide a solid boundary between areas of irrigated lawn and native grasses and tree groves. The master plan will included concept-level placement of active and passive recreation throughout the park system and will advance the main themes of the PRAT plan including park equity and balance. The plan is being creating in conjunction with ongoing partnership projects including the east-west Raptor Route that the City is working with GVLT to complete and Branch Out Bozeman's riparian plantings. Investments in this corridor will be amplified by these community partners and other grants in the near future and will be the guide for development of the corridor for approximately the next 10 years. UNRESOLVED ISSUES:NA. 74 ALTERNATIVES:NA. FISCAL EFFECTS:NA Report compiled on: November 18, 2024 75 Memorandum REPORT TO:City Commission FROM:Jonathon O'Dougherty, Budget Analyst Kaitlin Johnson, Budget Analyst Melissa Hodnett, Finance Director SUBJECT:Fiscal Years (FY) 26-30 Capital Improvements Plan (CIP) Work Session MEETING DATE:December 3, 2024 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Listen, ask questions, and discuss the proposed Capital Improvement Program. 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:We are proud to present to you the City of Bozeman 2026 - 2030 Capital Improvement Plan (CIP). This five-year Capital Improvement Plan (CIP) is a commitment to improving and maintaining the City of Bozeman’s infrastructure, facilities, parks, and roads to aid in the vision of Bozeman being the most livable place. Staff have taken a great deal of time and care in preparing this document and the proposed projects and plans. The CIP includes any planned expenditure of $25,000 or greater, that results in the acquisition of an asset with a useful life of three years or more, with a few exceptions such as large infrastructure master planning efforts. The five-year plan includes long-range plans for current facilities while balancing level of service standards, intergenerational equity, and potential rate/assessment impacts. The proposed plan can be found on the City’s website under Finance and select Budget and Financial Reports at: https://www.bozeman.net/government/finance/budget-and- financialreports The CIP is presented in compliance with State and municipal code. State law requires the City to maintain a CIP for Development Impact Fee Funds. This CIP provides the schedules and cost projections required under Montana Code Annotated (MCA) 7-6-1602(2). In addition, Article 5.06 of the adopted City Charter requires the City Manager to prepare and submit a multi-year capital program to the City Commission no later than December 15th for the ensuing fiscal year. 76 The proposed CIP is developed by City departments and the City finance department in coordination with the City’s many long-range plans such as the Transportation Plan and the Water and Sewer Treatment and Collection Plan. Many of the City’s long-term plans establish level of service standards that are critical to planning for the needs of current and future City residents. In some cases, such as water quality and wastewater discharge, standards are established or guided by outside regulating bodies. Adoption of the CIP does not provide budget authority or bind the City in any way to perform a particular project. The adopted CIP is used as a guide to the budget development process. Any project included in this plan that does not have budget authorized in the 2025 Biennium will be covered by budget savings, or budget amendments may be required. UNRESOLVED ISSUES:The planning process for capital purchases and capital infrastructure happens in many stages. The proposed CIP is one of the first stages in that process. It is a planning document that will be used to guide future budgetary proposals but does not guarantee funding for any specific project. During budget development, departments will identify operational needs that will require revenues in addition to what is required to complete this capital plan. Additional financial modeling will occur to balance projects, debt issuances and rate/assessment impacts. Projects will not be initiated unless funding is secured. ALTERNATIVES:Changes to the proposed CIP can be adopted by motion at final adoption on December 10th. FISCAL EFFECTS:The City's Capital Improvement Plan is a mid-range plan, adopted annually that identifies five years plus of capital infrastructure projects, equipment purchases, and other capital purchases that have been identified to maintain or improve City services. The CIP is a planning document and will be used as a guide for future budgetary proposals, but it does not guarantee funding for any specific project or commit the City to future purchases. More extensive financial models and potential rate impacts will be analyzed during the budget process. Report compiled on: November 13, 2024 77 Memorandum REPORT TO:City Commission FROM:Chuck Winn, Interim City Manager SUBJECT:Appointment of Ex Officio Nonvoting Member for the Bozeman Study Commission and Scheduling the First Meeting of the Bozeman Study Commission MEETING DATE:December 3, 2024 AGENDA ITEM TYPE:Citizen Advisory Board/Commission RECOMMENDATION:Consider the Motion: I move to appoint City Clerk, Mike Maas, as the Ex Officio Nonvoting Member for the Bozeman Study Commission STRATEGIC PLAN:1.1 Outreach: Continue to strengthen and innovate in how we deliver information to the community and our partners. BACKGROUND:Per 7-3-177(2), MCA [EXTERNAL LINK] "Every study commission shall include as an ex officio nonvoting member a member of the governing body or an elected official or employee of the local government appointed by the governing body. The ex officio member must be appointed prior to the organization of the study commission provided for in 7-3-179." Courtesy of Dan Clark, Director of the Local Government Center: "In addition to the elected or appointed members of the commission, the law also requires that every commission shall include an ex officio, nonvoting member appointed by the local governing body (7-3-177, MCA). The ex officio member of the commission, who must be an elected or appointed local government official or employee, can be of considerable assistance to the commission in accomplishing its purpose. He or she may assist you as a liaison person in communicating with your local government; as a source of expert knowledge on the general organization of the local government unit; and in coordinating technical assistance and staff support that may be available from the local government. The ex officio member of the commission can be especially helpful early on as the commission sets about organizing their efforts to accomplish its purpose and in developing a budget to carry out their plans. We suggest that the ex officio member of the study commission might serve as an appropriate conduit for such information but it is important to note that personnel records and performance evaluations cannot be made available to the study commission. 78 An ex officio member should be able to: 1. Represent and speak to the city’s structure, operations, processes and functions 2. Effectively and efficiently gather requested information and records from the city to aid in the study 3. Speak to or about the various operational friction points and provide suggestions and recommendations for improvement 4. Identify appropriate individuals within the city organization who can speak to various aspects of the city’s structure, operations, and functions 5. Could aid in navigating the administrative duties of the commission including budget and claims process It would be helpful for the governing body to consider how the ex officio member can be most valuable to the city as a conduit to the study commission." Per 7-3-179(1), MCA [EXTERNAL LINK] "Not later than 10 days after all members of the study commission have been elected or appointed, the study commission shall meet and organize at a time set by the presiding officer of the governing body of the local government that the study commission is to examine." The Mayor has scheduled the organizational meeting of the Bozeman Study Commission to be on Monday, December 9, 2024, at 4 p.m. in the City Commission Room of City Hall. UNRESOLVED ISSUES:None Identified ALTERNATIVES:As per the Commission FISCAL EFFECTS:n/a Report compiled on: October 28, 2024 79