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HomeMy WebLinkAbout02-25-25 City Commission Amended 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 Formal Cancellation of the March 4, 2025 Regular City Commission Meeting (Newby) F.2 Accounts Payable Claims Review and Approval (Edwards) F.3 Authorize the City Manager to Sign the Non-Profit Grant Agreement with Family THE CITY COMMISSION OF BOZEMAN, MONTANA REGULAR MEETING AGENDA Tuesday, February 25, 2025 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 Promise(Grabinski) F.4 Authorize the City Manager to Sign the Non-Profit Grant Agreement with Haven (Grabinski) F.5 Authorize the City Manager to Sign a Notice of Award and Sign a Bid Purchase Agreement for Three (3) Years of Polymer for the Bozeman WRF with the option of Two (2) Additional Years.(Kercher) F.6 Notice of Award and Construction Agreement with CK May Excavation for the Construction of Manley Ditch(Smith) F.7 Authorize the City Manager to sign Estoppel Certificate and Amendment to Development Agreement for the 7th and Aspen Urban Renewal Project(Fine) F.8 Authorize the City Manager to sign a Waiver of Affordable Housing Provision in Laurel Glen Annexation Agreement(Rischke) F.9 Authorize the City Manager to Sign a Professional Services Agreement with Ayres Associates Inc for Annual Aerial Photography Data Acquisition(Jorgenson) F.10 Authorize City Manager to Sign Professional Services Agreements for Facilities Contractors Term Contracts(Miller) F.11 Authorize the City Manager to sign Amendment No. 1 to the Software as a Service Agreement with THG Energy Solutions for City facility utility tracking software services(Meyer) F.12 Resolution authorizing Change Order 01 with DT Tanks of Montana, LLC for the Water Reclamation Facility 2024 Gravity Thickener Rehabilitation Project(Nielsen) F.13 Authorize the City Manager to sign Task Order 3 with Cushing Terrell for Fowler Annexation and Zone Map Amendment Professional Services(Fine) F.14 Approve Resolution 2025-##, Declaring the Intent of the Commission to Rename Elaine Lane to Naughty Trout Lane(Lonsdale) F.15 Ordinance 2025-## Amending Ethics Opinions and Complaint Procedures (Giuttari) G. Public Comment on Non-agenda Items Falling Within the Purview and Jurisdiction of the Commission 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. 2 H. Action Items H.1 Adoption of a Resolution of the City Commission to Replace and Readopt the Annexation Policy for the City of Bozeman. This Resolution Replaces Resolution 5076 (Revised February 24, 2025)(Rogers) I. FYI / Discussion J. Adjournment Consider the Motion: I move to adopt the Resolution provided to Replace and Readopt the Annexation Policy. 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. Commission meetings are televised live on cable channel 190 and streamed live on our Meeting Videos Page. 3 Memorandum REPORT TO:City Commission FROM:Alex Newby, Deputy City Clerk Mike Maas, City Clerk SUBJECT:Formal Cancellation of the March 4, 2025 Regular City Commission Meeting MEETING DATE:February 25, 2025 AGENDA ITEM TYPE:Administration RECOMMENDATION:Approve cancelling the March 4, 2025 Regular City Commission Meeting. STRATEGIC PLAN:1.1 Outreach: Continue to strengthen and innovate in how we deliver information to the community and our partners. BACKGROUND:The Mayor has decided not to meet on March 4, 2025. Per Bozeman Municipal Code Sec. 2.02.070.A.4, the Mayor or majority of the Commission may cancel a regular meeting if no business is scheduled for that meeting. This item formalizes this decision to cancel the meeting. UNRESOLVED ISSUES:None ALTERNATIVES:As determined by the City Commission. FISCAL EFFECTS:None. Report compiled on: February 19, 2025 4 Memorandum REPORT TO:City Commission FROM:Nicole Armstrong, Accounts Payable Clerk Rhonda Edwards, Accounts Payable Clerk Aaron Funk, City Controller Melissa Hodnett, Finance Director SUBJECT:Accounts Payable Claims Review and Approval MEETING DATE:February 25, 2025 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 January 29th, 2024. UNRESOLVED ISSUES:None ALTERNATIVES:The City Commission could decide not to approve these claims or a portion of the claims presented. This alternative is not recommended as it may result in unbudgeted late fees assessed against the City. FISCAL EFFECTS:The total amount of the claims to be paid is presented at the bottom of the Expenditure Approval List posted on the City’s website at https://www.bozeman.net/departments/finance/purchasing. Report compiled on: August 21, 2024 5 Memorandum REPORT TO:City Commission FROM:Jamie Grabinski, Grants Coordinator Aaron Funk, Controller Melissa Hodnett, Finance Director SUBJECT:Authorize the City Manager to Sign the Non-Profit Grant Agreement with Family Promise MEETING DATE:February 25, 2025 AGENDA ITEM TYPE:Grant RECOMMENDATION:Authorize the City Manager to Sign the Non-Profit Grant Agreement with Family Promise. STRATEGIC PLAN:1.4 Business and Institutional Partnerships: Explore opportunities for partnerships with key business groups and non-profit organizations. BACKGROUND:The Bozeman City Commission adopted Resolution No. 3866 on October 17, 2005 establishing policies for the granting of funds and pursuant to Section 7-1-4124(9), MCA, the City Commission may grant money for public purposes. The City Commission appropriated $500,000 for non-profit grants in the FY25-26 biennium budget, and on January 7, 2025, the Commission allocated $100,000 to Family Promise of Gallatin Valley to serve City of Bozeman residents for the emergency housing continuum. This grant agreement between Family Promise and the City of Bozeman supports strategic plan 1.4 -partnerships with key business groups and non-profit organizations and strategic plan 3.2 -work with partners to coordinate programs for important social services. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:The budget includes appropriations for the $100,000 grant. Attachments: FY25 Family Promise_Combined.pdf Report compiled on: January 31, 2025 6 FY 2025 Grant Agreement – Family Promise of Gallatin Valley Page 1 CITY OF BOZEMAN GRANT AGREEMENT Family Promise of Gallatin Valley THIS AGREEMENT is made and entered into this ____ day of ________ 2025 by and between the City of Bozeman, Montana, a self-governing municipal corporation operating pursuant to its Charter and the laws of the State of Montana, located at 121 N. Rouse Ave., Bozeman MT 59771 (“City”) as GRANTOR and Family Promise of Gallatin Valley, a non-profit organization located at 1603 Tschache, Bozeman, Montana 59718 as GRANTEE. WHEREAS, on October 17, 2005, the Bozeman City Commission adopted Resolution No. 3866 establishing policies for the granting of funds from the City of Bozeman to a requesting entity; and WHEREAS, Family Promise of Gallatin Valley submitted a proposal to the City Commission for a grant of $150,000 for the operations of the emergency housing continuum (the “Project”/the “Services”) that would benefit from GRANTOR funding; and WHEREAS, the City Commission may make grants of money for public purposes pursuant to Sect. 7-1-4124(9), MCA; and WHEREAS, the City Commission determines the granting of funds under this Agreement is for a public purpose benefitting the community by providing emergency housing; and WHEREAS, on January 7th, 2025 the Commission appropriated $100,000 for the Services. THE PARTIES AGREE: 1. The Grant. GRANTOR will grant and release to GRANTEE a sum of up to One hundred thousand dollars ($100,000) from its General Fund (the “Grant”) pursuant to the payment terms in Section 4. 2. Term of Grant. This Agreement becomes effective on the date of signing and shall terminate on June 30, 2025. 3. Use of Grant Funds. Grant funds in the amount of up to One hundred thousand dollars ($100,000) will be used by GRANTEE for the sole purpose of operations of the emergency housing continuum as described in the proposal submitted by GRANTEE to the City Commission, attached hereto as Exhibit A and by this reference incorporated herein. Eligible expenses must be incurred during the term of this Agreement [and must be requested for reimbursement no later than July 20th, 2025, following the expiration of this Agreement]. Eligible expenses must serve City of Bozeman residents. 7 FY 2025 Grant Agreement – Family Promise of Gallatin Valley Page 2 4. Payment of Grant Funds a. GRANTEE may request the Grant funds during the fiscal year ending June 30, 2025 as needed by providing proof of expenses paid. Acceptable forms of proof of payment shall be as determined in the sole discretion of the City’s Director of Finance. b. Modifications to the scope of work or term of this Agreement must be submitted as a written request by the GRANTEE. The City’s Director of Finance must review and approve all requests prior to the expiration of this Agreement. c. GRANTOR will have no obligation to pay any Grant funds unless at the time of the request for payment (i) all of GRANTEE’s representations as set forth in Section 4 are true and correct, and (ii) GRANTEE is not in breach of any term of this Agreement. If any of the above conditions are not satisfied in sole the determination of GRANTOR, GRANTOR shall have no obligation to make payment and GRANTOR’s determination to refrain from paying, or its inability to pay, any of the Grant funds shall not be or result in a default of this Agreement. 5. Grantee Representations a. GRANTEE has familiarized itself with the nature and extent of this Agreement and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect GRANTEE’s performance under this Agreement. b. GRANTEE represents and warrants to GRANTOR that it has the experience and ability to perform its obligations under this Agreement; that it will perform said obligations in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. GRANTOR will not determine or exercise control as to general procedures or formats necessary for GRANTEE to meet this warranty. c. GRANTEE represents and warrants to GRANTOR that the Grant funds are necessary to accomplish the financial requirements of the Emergency Housing Continuum and that the [Services] will benefit City of Bozeman citizens. 6. Reports/Accountability/Public Information. If Grant funds are paid to GRANTEE, GRANTEE will provide to GRANTOR a formal written report that includes, at a minimum, the proof of expenses paid. GRANTEE agrees to provide to GRANTOR Commission, if requested, a formal presentation that includes detail regarding use of 8 FY 2025 Grant Agreement – Family Promise of Gallatin Valley Page 3 Grant funds. GRANTEE agrees to develop and/or provide such other documentation as requested by GRANTOR demonstrating GRANTEE’s compliance with the requirements of this Agreement. GRANTEE must allow GRANTOR, its auditors, and other persons authorized by GRANTOR to inspect and copy its books and records for the purpose of verifying that monies provided to GRANTEE pursuant to this Agreement were used in compliance with this Agreement and all applicable provisions of federal, state, and local law. GRANTEE will retain such records for seven years after receipt of final payment under this Agreement unless permission to destroy them is granted by GRANTOR. GRANTEE shall not issue any statements, releases or information for public dissemination without prior approval of GRANTOR. 7. Permits and Compliance with Laws. GRANTEE will obtain, in a timely manner, all required permits, licenses and approvals, and will meet all requirements of all local, state and federal laws, rules and regulations which must be obtained or met in connection with the Project. 8. Independent Contractor Status. The parties agree that GRANTEE, its agents, employees, contractors, or subcontractors, are independent contractors for purposes of this Agreement and are not to be considered employees or agents of GRANTOR for any purpose. GRANTEE and its agents, employees, contractors, or subcontractors, are not subject to the terms and provisions of GRANTOR’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. GRANTEE, its agents, employees, contractors, or subcontractors, are not authorized to represent GRANTOR or otherwise bind GRANTOR in any way. 9. Default and Termination. If GRANTEE fails to comply with any condition of this Agreement at the time or in the manner provided for, GRANTOR may terminate this Agreement if the default is not cured within fifteen (15) days after written notice is provided to GRANTEE. The notice will set forth the items to be cured. If this Agreement is terminated pursuant to this Section, GRANTEE will repay to GRANTOR any Grant funds already delivered to GRANTEE for the Emergency Housing Continuum. 10. Limitation on GRANTEE’s Damages; Time for Asserting Claim a. In the event of a claim for damages by GRANTEE under this Agreement, GRANTEE’s damages shall be limited to contract damages and GRANTEE hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event GRANTEE wants to assert a claim for damages of any kind or nature, GRANTEE must first provide GRANTOR with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total 9 FY 2025 Grant Agreement – Family Promise of Gallatin Valley Page 4 amount of damages sought by the claim, within ninety (90) days of the facts and circumstances giving rise to the claim. In the event GRANTEE fails to provide such notice, GRANTEE shall waive all rights to assert such claim. 11. Representatives a. City’s Representative. GRANTOR’s Representative for the purpose of this Agreement shall be Melissa Hodnett, Finance Director or such other individual as GRANTOR may designate in writing. Whenever approval or authorization from or communication or submission to GRANTOR is required by this Agreement, such communication or submission must be directed to GRANTOR’s Representative and approvals or authorizations will be issued only by such Representative; provided, however, that in exigent circumstances when GRANTOR’s Representative is not available, GRANTEE may direct its communication or submission to other designated GRANTOR personnel or agents and may receive approvals or authorization from such persons. b. GRANTEE’s Representative. GRANTEE’s Representative for the purpose of this Agreement shall be Christel Chvilicek, Executive Director or such other individual as GRANTEE designates in writing. Whenever direction to or communication with GRANTEE is required by this Agreement, such direction or communication must be directed to GRANTEE’s Representative; provided, however, that in exigent circumstances when GRANTEE’s Representative is not available, City may direct its direction or communication to other designated GRANTEE personnel or agents. 12. Indemnity/Waiver of Claims/Insurance. To the fullest extent permitted by law, GRANTEE agrees to defend, indemnify and hold GRANTOR and its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as GRANTOR) harmless against all third party claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, which arise out of, relate to or result from GRANTEE’s (i) negligence, or (ii) willful or reckless misconduct. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the indemnitee(s) which would otherwise exist as to such indemnitee(s). GRANTEE’s indemnification obligations under this Section shall be without regard to and without any right to contribution from any insurance maintained by GRANTOR. Should any indemnitee described herein be required to bring an action against GRANTEE to assert its right to defense or indemnification under this Agreement or 10 FY 2025 Grant Agreement – Family Promise of Gallatin Valley Page 5 under GRANTEE’s applicable insurance policies required below the indemnitee shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines GRANTEE was obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof. In the event of an action filed against City resulting from GRANTOR’s performance under this Agreement, GRANTOR may elect to represent itself and incur all costs and expenses of suit. GRANTEE also waives any and all claims and recourse against GRANTOR or its officers, agents or employees, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement. In addition to and independent from the above, GRANTEE shall at GRANTEE’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 GRANTEE in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by GRANTEE in this Section unless and to the extent coverage for such liability is not reasonably available. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by GRANTOR without limit and without regard to the cause therefore and which is acceptable to GRANTOR and GRANTEE shall furnish to GRANTOR an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate The GRANTOR, its officers, agents, and employees, shall be endorsed as an additional insured on a primary non-contributory basis on the Commercial General Liability policy. The insurance and required endorsements must be in a form suitable to GRANTOR and shall include no less than a thirty (30) day notice of cancellation or non-renewal. 11 FY 2025 Grant Agreement – Family Promise of Gallatin Valley Page 6 GRANTOR must approve all insurance coverage and endorsements prior to delivery of Grant funds to GRANTEE. GRANTEE shall notify City within two (2) business days of GRANTEE’s receipt of notice that any required insurance coverage will be terminated or GRANTEE’s decision to terminate any required insurance coverage for any reason. 13. Nondiscrimination and Equal Pay. GRANTEE agrees that all hiring by GRANTEE of persons performing this Grant Agreement shall be on the basis of merit and qualifications. GRANTEE will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. GRANTEE 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. GRANTEE 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). GRANTEE must report to GRANTOR any violations of the Montana Equal Pay Act that GRANTEE has been found liable for or guilty of within 30 days of such finding for violations occurring during the term of this Agreement. GRANTEE shall require these nondiscrimination terms of its subcontractors providing services under this Grant Agreement. 14. Public Meetings and Access to Public Records a. Meetings of GRANTEE that pertain to the receipt or expenditure of Grant funds from GRANTOR may be subject to the open meeting requirements of Montana law, including those set forth in Title 7, Chapter 1, Part 41, MCA and Title 2, Chapter 3, MCA. To ensure compliance, GRANTEE must provide agendas for meetings that pertain to the receipt or expenditure of Grant funds covered by this Agreement to the City Clerk’s office no later than 72 working hours prior to meeting for notice on GRANTOR’s official posting board and any other sites deemed reasonable by the Clerk’s office. In addition, meeting minutes will be kept by GRANTEE and provided to the City Clerk’s office no later than 90 days after the meeting. These minutes shall be posted and made available to the public by the City Clerk’s office except for those minutes taken during a closed meeting in accordance with 2-3-203, MCA. Minutes taken during a closed meeting shall also be provided to the City Clerk’s office but shall be handled in accordance with the City Clerk’s regular executive session protocol and kept private in a secured cabinet. 12 FY 2025 Grant Agreement – Family Promise of Gallatin Valley Page 7 b. In accordance with 7-1-4144, MCA and subject to any applicable legal obligation to protect and preserve individual confidential or private information, upon reasonable request and at reasonable times during normal business hours, GRANTEE shall make such records available for inspection and copying by members of the public. GRANTEE may charge for such copying in accordance with the policies of GRANTOR, which GRANTEE hereby adopts for such purposes. c. To determine whether a meeting or part of a meeting may be closed to the public and to determine whether information contained in GRANTEE documents is protected by law from disclosure, GRANTEE may seek a determination of the City Attorney at no cost to GRANTEE. Such request and determination shall not create an attorney- client relationship between GRANTEE and GRANTOR. 15. Attorney’s Fees and Costs. In the event it becomes necessary for a party to this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing party shall be entitled to reasonable attorney’s fees and costs, including fees, salary, and costs of in- house counsel to include City Attorney. 16. Integration and Modification. This document contains the entire agreement between the parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Agreement may be considered valid or binding. This Agreement may not be modified except by written agreement signed by both parties. 17. Dispute Resolution a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 18. No Assignment. GRANTEE may not subcontract or assign GRANTEE’s rights, including the right to Grant payments, or any other rights or duties arising hereunder, without the prior written consent of City. 19. No Third-Party Beneficiary. The terms and provisions of this Agreement are intended solely for the benefit of each party and their respective successors and assigns. It is not the parties’ intent to confer third party beneficiary rights upon any other person or entity. 13 FY 2025 Grant Agreement – Family Promise of Gallatin Valley Page 8 20. Choice of Law. This Agreement shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 21. 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. 22. Severability. If any portion of this Agreement is held to be void or unenforceable, the balance of the Agreement shall continue in effect. 23. Counterparts. This Agreement may be executed in counterparts, which together constitute one instrument. 24. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year indicated below. _______________________ Date: __________ Chuck Winn, City Manager City of Bozeman _______________________ Date: __________ Christel Chvilicek, Executive Director GRANTEE Approved as to form: _______________________ Date: __________ Greg Sullivan, City Attorney City of Bozeman 14 FY 2025 Grant Agreement – Emergency Housing Continuum Exhibit A V 9 7 22 Exhibit A Grant Proposal Grant Project Overview: Family Promise of Gallatin Valley supports families experiencing housing insecurities. The program provides an essential safety net for extremely low-income families in Bozeman. The funding request will support the operations of emergency housing continuum which aligns with the City of Bozeman’s Strategic Plan priority #2 and the Community Housing Action Plan. 15 In recent years, as part of the budget process, the City of Bozeman has awarded grants to non-profit organizations which provide social services not covered by the City. Requirements In order to be awarded funds, organizations must: Be a registered 501(c)(3) non-profit Use funds during fiscal year 2025 (July 2024-June 2025 year 1 of the biennial budget) Show alignment with the Strategic Plan Directly benefit Bozeman residents/taxpayers In addition to the above requirements, applicants are encouraged to: Demonstrate alignment with our equity and inclusion initiatives Show alignment with at least one of the city's long-range plans, such as our Community Plan or Climate Plan Application Period Applications are being accepted from April 1 - May 15, 2024.Please submit all grant requests via the online application (below) by 5 p.m. on May 15, 2024. Applications received outside of this time frame will not be considered for an award. Allocation Process As part of the budget process, an opportunity will be provided for the City Commission to allocate funds to Non-profit Grant Awards. Bozeman City Commission makes all funding decisions, which is typically done during the final adoption of the budget. Budget presentation and adoption occurs from May through the end of June. The current six-month calendar and all future agendas can be found on the City Commission web page. Funding Information The total amount available to non-profits varies annually based on the budget. The majority of prior year awards included the use of one-time federal funding* which has all been allocated in prior budget years. Fiscal year 2025 awards will be based on the available budget in the General Fund using discretionary City funding** and may compete with other City services and priorities and result in a lower total award amount available. Other Grant Considerations Grant requests lower than $5,000 will not be considered. The City Commission reserves the right to award partial grant amounts during this process. Footnotes *Coronavirus Aid, Relief, and Economic Security Act and American Rescue Plan Act (ARPA) **Primarily consists of property tax revenue and state shared revenue * Entity Name Family Promise of Gallatin Valley * Entity's Physical Address 1603 Tschache Ln Bozeman Montana 59715 * Number of Years of Operation as a Non-Profit Organization 20 * Link to Most Recent Annual Financial Report https://www.familypromisegv.org/_files/ugd/1c23dd_d0329a9ead4a489db6959d4d98a1d044.pdf * Dollar Amount Requested for the Fiscal Year 150000 * Description of the Funding Request in Relation to Commission Priorities and/or Citizen Benefit FPGV empowers families experiencing housing insecurities to secure a safe, affordable home, a livelihood, and the chance to build a better future for their children. We are seeking funding to support the operations of our housing continuum. The following continuum is aligned with priority #2 of the Strategic Plan and multiple strategies in the Community Housing Action Plan: EMERGENCY SHELTER provides immediate shelter and crisis resolution to children and families living in their cars, tents or places not meant for human habitation. This program provides an essential safety net for extremely low-income families in Bozeman who are experiencing homelessness/housing insecurity. This safety net is needed more than ever before in Bozeman and will play a vital role during the time it takes to implement the affordable housing solutions laid out in the City’s planning documents. TRANSITIONAL HOUSING offers families longer-term housing with the goal of stability and self-sufficiency. Families participate in a graduated rent program, where a portion of the rent is put into a savings account, allowing families to budget for rent and save for future expenses. WORKFORCE HOUSING provides long-term housing guaranteed to be affordable to low-income families in our community. EMPLOYEE HOUSING provides housing to FPGV employees. We require case management for all families participating in our housing programs. This, along with the wrap-around supportive services we offer, is designed to help families regain sustainable stability. FPGV is committed to equity in every aspect of our organization. We are aligned with the City’s equity and inclusion initiatives and FPGV is written into the Belonging in Bozeman plan as one of the leads to Housing Goal #1. We are working with Haven and HRDC on a strategic plan to develop a continuum of care for families Page | 1 16 that will be in their emergency shelter then moved into our facility as soon as possible to ensure services are not duplicated. Other Entities Funding has been Requested From AND Other Partners Assisting with Funding Entity (List up to three) Name #1 The Rieschel Foundation Amount $ 20000 Name #2 Yellowstone Club Community Foundation Amount $ 50000 Name #3 Otto Bremer Trust Amount # 75000 Contact Information for Entity * Full Name Elliott Brown * Phone (512) 923-8632 Email Address ebrown@familypromisegv.org Page | 2 17 Memorandum REPORT TO:City Commission FROM:Jamie Grabinski, Grants Coordinator Aaron Funk, Controller Melissa Hodnett, Finance Director SUBJECT:Authorize the City Manager to Sign the Non-Profit Grant Agreement with Haven MEETING DATE:February 25, 2025 AGENDA ITEM TYPE:Grant RECOMMENDATION:Authorize the City Manager to Sign the Non-Profit Grant Agreement with Haven. STRATEGIC PLAN:1.4 Business and Institutional Partnerships: Explore opportunities for partnerships with key business groups and non-profit organizations. BACKGROUND:The Bozeman City Commission adopted Resolution No. 3866 on October 17, 2005 establishing policies for the granting of funds and pursuant to Section 7-1-4124(9), MCA, the City Commission may grant money for public purposes. The City Commission appropriated $500,000 for non-profit grants in the FY25-26 biennium budget, and on January 7, 2025, the Commission allocated $40,000 to Haven to serve City of Bozeman residents by providing intervention services and transitional housing to survivors of domestic violence. This grant agreement between Haven and the City of Bozeman supports strategic plan 1.4 -partnerships with key business groups and non- profit organizations and strategic plan 3.2 -work with partners to coordinate programs for important social services. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:The budget includes appropriations for the $40,000 grant. Attachments: FY25 Haven Combined.pdf Report compiled on: January 31, 2025 18 FY 2025 Grant Agreement -Haven Page 1 CITY OF BOZEMAN GRANT AGREEMENT Haven Domestic Violence Intervention and Prevention Program THIS AGREEMENT is made and entered into this ____ day of ________ 2025 by and between the City of Bozeman, Montana, a self-governing municipal corporation operating pursuant to its Charter and the laws of the State of Montana, located at 121 N. Rouse Ave., Bozeman MT 59771 (“City”) as GRANTOR and Haven, a non-profit organization located at 132 Pond Row, Bozeman, Montana 59718 as GRANTEE. WHEREAS, on October 17, 2005, the Bozeman City Commission adopted Resolution No. 3866 establishing policies for the granting of funds from the City of Bozeman to a requesting entity; and WHEREAS, Haven submitted a proposal to the City Commission for a grant of $50,000 for the financial support to provide crisis intervention services to survivors of domestic violence (the “Project”/the “Services”) that would benefit from GRANTOR funding; and WHEREAS, the City Commission may make grants of money for public purposes pursuant to Sect. 7-1-4124(9), MCA; and WHEREAS, the City Commission determines the granting of funds under this Agreement is for a public purpose benefitting the community by providing intervention services and transitional housing to survivors of domestic violence; and WHEREAS, on January 7th, 2025, the Commission appropriated $40,000 for crisis intervention services and transitional housing services to survivors of domestic violence. THE PARTIES AGREE: 1. The Grant. GRANTOR will grant and release to GRANTEE a sum of up to forty thousand dollars ($40,000) from its General Fund (the “Grant”) pursuant to the payment terms in Section 4. 2. Term of Grant. This Agreement becomes effective on the date of signing and shall terminate on June 30, 2025. 3. Use of Grant Funds. Grant funds in the amount of up to forty thousand dollars ($40,000 will be used by GRANTEE for the sole purpose of providing crisis intervention services to domestic violence survivors as described in the proposal submitted by GRANTEE to the City Commission, attached hereto as Exhibit A and by this reference incorporated herein. Eligible expenses must be incurred during the term of this Agreement [and must be requested for reimbursement no later than July 20th, 2025 following the expiration of this Agreement]. Eligible expenses must serve City of Bozeman residents. 19 FY 2025 Grant Agreement -Haven Page 2 4. Payment of Grant Funds a. GRANTEE may request the Grant funds during the fiscal year ending June 30, 2025, as needed by providing proof of expenses paid. Acceptable forms of proof of payment shall be as determined in the sole discretion of the City’s Director of Finance. b. Modifications to the scope of work or term of this Agreement must be submitted as a written request by the GRANTEE. The City’s Director of Finance must review and approve all requests prior to the expiration of this Agreement. c. GRANTOR will have no obligation to pay any Grant funds unless at the time of the request for payment (i) all of GRANTEE’s representations as set forth in Section 4 are true and correct, and (ii) GRANTEE is not in breach of any term of this Agreement. If any of the above conditions are not satisfied in sole the determination of GRANTOR, GRANTOR shall have no obligation to make payment and GRANTOR’s determination to refrain from paying, or its inability to pay, any of the Grant funds shall not be or result in a default of this Agreement. 5. Grantee Representations a. GRANTEE has familiarized itself with the nature and extent of this Agreement and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect GRANTEE’s performance under this Agreement. b. GRANTEE represents and warrants to GRANTOR that it has the experience and ability to perform its obligations under this Agreement; that it will perform said obligations in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. GRANTOR will not determine or exercise control as to general procedures or formats necessary for GRANTEE to meet this warranty. c. GRANTEE represents and warrants to GRANTOR that the Grant funds are necessary to accomplish the financial requirements of the Crisis Intervention Services to Domestic Violence Survivors and that the [Project] will benefit City of Bozeman citizens. 6. Reports/Accountability/Public Information. If Grant funds are paid to GRANTEE, GRANTEE will provide to GRANTOR a formal written report that includes, at a minimum, the proof of expenses paid. GRANTEE agrees to provide to GRANTOR 20 FY 2025 Grant Agreement -Haven Page 3 Commission, if requested, a formal presentation that includes detail regarding use of Grant funds. GRANTEE agrees to develop and/or provide such other documentation as requested by GRANTOR demonstrating GRANTEE’s compliance with the requirements of this Agreement. GRANTEE must allow the GRANTOR, its auditors, and other persons authorized by GRANTOR to inspect and copy its books and records for the purpose of verifying that monies provided to GRANTEE pursuant to this Agreement were used in compliance with this Agreement and all applicable provisions of federal, state, and local law. GRANTEE will retain such records for seven years after receipt of final payment under this Agreement unless permission to destroy them is granted by GRANTOR. GRANTEE shall not issue any statements, releases or information for public dissemination without prior approval of GRANTOR. 7. Permits and Compliance with Laws. GRANTEE will obtain, in a timely manner, all required permits, licenses and approvals, and will meet all requirements of all local, state and federal laws, rules and regulations which must be obtained or met in connection with the Project. 8. Independent Contractor Status. The parties agree that GRANTEE, its agents, employees, contractors, or subcontractors, are independent contractors for purposes of this Agreement and are not to be considered employees or agents of GRANTOR for any purpose. GRANTEE and its agents, employees, contractors, or subcontractors, are not subject to the terms and provisions of GRANTOR’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. GRANTEE, its agents, employees, contractors, or subcontractors, are not authorized to represent GRANTOR or otherwise bind GRANTOR in any way. 9. Default and Termination. If GRANTEE fails to comply with any condition of this Agreement at the time or in the manner provided for, GRANTOR may terminate this Agreement if the default is not cured within fifteen (15) days after written notice is provided to GRANTEE. The notice will set forth the items to be cured. If this Agreement is terminated pursuant to this Section, GRANTEE will repay to GRANTOR any Grant funds already delivered to GRANTEE for the Crisis Intervention Services. 10. Limitation on GRANTEE’s Damages; Time for Asserting Claim a. In the event of a claim for damages by GRANTEE under this Agreement, GRANTEE’s damages shall be limited to contract damages and GRANTEE hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event GRANTEE wants to assert a claim for damages of any kind or nature, GRANTEE must first provide GRANTOR with written notice of its claim, the 21 FY 2025 Grant Agreement -Haven Page 4 facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within ninety (90) days of the facts and circumstances giving rise to the claim. In the event GRANTEE fails to provide such notice, GRANTEE shall waive all rights to assert such claim. 11. Representatives a. City’s Representative. GRANTOR’s Representative for the purpose of this Agreement shall be Melissa Hodnett, Finance Director or such other individual as GRANTOR may designate in writing. Whenever approval or authorization from or communication or submission to GRANTOR is required by this Agreement, such communication or submission must be directed to GRANTOR’s Representative and approvals or authorizations will be issued only by such Representative; provided, however, that in exigent circumstances when GRANTOR’s Representative is not available, GRANTEE may direct its communication or submission to other designated GRANTOR personnel or agents and may receive approvals or authorization from such persons. b. GRANTEE’s Representative. GRANTEE’s Representative for the purpose of this Agreement shall be Erica Aytes Coyle, Executive Director or such other individual as GRANTEE designates in writing. Whenever direction to or communication with GRANTEE is required by this Agreement, such direction or communication must be directed to GRANTEE’s Representative; provided, however, that in exigent circumstances when GRANTEE’s Representative is not available, GRANTOR may direct its direction or communication to other designated GRANTEE personnel or agents. 12. Indemnity/Waiver of Claims/Insurance. To the fullest extent permitted by law, GRANTEE agrees to defend, indemnify and hold GRANTOR and its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as GRANTOR) harmless against all third party claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, which arise out of, relate to or result from GRANTEE’s (i) negligence, or (ii) willful or reckless misconduct. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the indemnitee(s) which would otherwise exist as to such indemnitee(s). GRANTEE’s indemnification obligations under this Section shall be without regard to and without any right to contribution from any insurance maintained by GRANTOR. 22 FY 2025 Grant Agreement -Haven Page 5 Should any indemnitee described herein be required to bring an action against GRANTEE to assert its right to defense or indemnification under this Agreement or under GRANTEE’s applicable insurance policies required below the indemnitee shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines GRANTEE was obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof. In the event of an action filed against GRANTOR resulting from GRANTOR’s performance under this Agreement, GRANTOR may elect to represent itself and incur all costs and expenses of suit. GRANTEE also waives any and all claims and recourse against GRANTOR or its officers, agents or employees, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement. In addition to and independent from the above, GRANTEE shall at GRANTEE’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 GRANTEE in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by GRANTEE in this Section unless and to the extent coverage for such liability is not reasonably available. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by GRANTOR without limit and without regard to the cause therefore and which is acceptable to GRANTOR and GRANTEE shall furnish to GRANTOR an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate GRANTOR, its officers, agents, and employees, shall be endorsed as an additional insured on a primary non-contributory basis on the Commercial General Liability policy. 23 FY 2025 Grant Agreement -Haven Page 6 The insurance and required endorsements must be in a form suitable to GRANTOR and shall include no less than a thirty (30) day notice of cancellation or non-renewal. GRANTOR must approve all insurance coverage and endorsements prior to delivery of Grant funds to GRANTEE. GRANTEE shall notify GRANTOR within two (2) business days of GRANTEE’s receipt of notice that any required insurance coverage will be terminated or GRANTEE’s decision to terminate any required insurance coverage for any reason. 13. Nondiscrimination and Equal Pay.. GRANTEE agrees that all hiring by GRANTEE of persons performing this Grant Agreement shall be on the basis of merit and qualifications. GRANTEE will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. GRANTEE 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. In addition, GRANTEE 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). GRANTEE must report to GRANTOR any violations of the Montana Equal Pay Act that GRANTEE has been found liable for or guilty of within 30 days of such finding for violations occurring during the term of this Agreement. GRANTEE shall require these nondiscrimination terms of its subcontractors providing services under this Grant Agreement. 14. Public Meetings and Access to Public Records a. Meetings of GRANTEE that pertain to the receipt or expenditure of Grant funds from GRANTOR may be subject to the open meeting requirements of Montana law, including those set forth in Title 7, Chapter 1, Part 41, MCA and Title 2, Chapter 3, MCA. To ensure compliance, GRANTEE must provide agendas for meetings that pertain to the receipt or expenditure of Grant funds covered by this Agreement to the City Clerk’s office no later than 72 working hours prior to meeting for notice on the GRANTOR’s official posting board and any other sites deemed reasonable by the Clerk’s office. In addition, meeting minutes will be kept by GRANTEE and provided to the City Clerk’s office no later than 90 days after the meeting. These minutes shall be posted and made available to the public by the City Clerk’s office except for those 24 FY 2025 Grant Agreement -Haven Page 7 minutes taken during a closed meeting in accordance with 2-3-203, MCA. Minutes taken during a closed meeting shall also be provided to the City Clerk’s office but shall be handled in accordance with the City Clerk’s regular executive session protocol and kept private in a secured cabinet. b. In accordance with 7-1-4144, MCA and subject to any applicable legal obligation to protect and preserve individual confidential or private information, upon reasonable request and at reasonable times during normal business hours, GRANTEE shall make such records available for inspection and copying by members of the public. GRANTEE may charge for such copying in accordance with the policies of GRANTOR, which GRANTEE hereby adopts for such purposes. c. To determine whether a meeting or part of a meeting may be closed to the public and to determine whether information contained in GRANTEE documents is protected by law from disclosure, GRANTEE may seek a determination of the City Attorney at no cost to GRANTEE. Such request and determination shall not create an attorney- client relationship between GRANTEE and GRANTOR. 15. Attorney’s Fees and Costs. In the event it becomes necessary for a party to this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing party shall be entitled to reasonable attorney’s fees and costs, including fees, salary, and costs of in- house counsel to include City Attorney. 16. Integration and Modification. This document contains the entire agreement between the parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Agreement may be considered valid or binding. This Agreement may not be modified except by written agreement signed by both parties. 17. Dispute Resolution a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 18. No Assignment. GRANTEE may not subcontract or assign GRANTEE’s rights, including the right to Grant payments, or any other rights or duties arising hereunder, without the prior written consent of GRANTOR. 25 FY 2025 Grant Agreement -Haven Page 8 19. No Third-Party Beneficiary. The terms and provisions of this Agreement are intended solely for the benefit of each party and their respective successors and assigns. It is not the parties’ intent to confer third party beneficiary rights upon any other person or entity. 20. Choice of Law. This Agreement shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 21. 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. 22. Severability. If any portion of this Agreement is held to be void or unenforceable, the balance of the Agreement shall continue in effect. 23. Counterparts. This Agreement may be executed in counterparts, which together constitute one instrument. 24. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year indicated below. _______________________ Date: __________ Chuck Winn, City Manager City of Bozeman _______________________ Date: __________ Erica Aytes Coyle, Executive Director GRANTEE Approved as to form: _______________________ Date: __________ Greg Sullivan, City Attorney City of Bozeman 26 FY 2025 Grant Agreement -Crisis Intervention Services to Domestic Violence Survivors Exhibit A V 9 7 22 Exhibit A Grant Proposal Grant Project Overview: Haven is committed to reducing incidences and minimizing the impact of domestic violence on families and the community by providing crisis intervention services to survivors and education to the community. Haven provides emergency shelter, crisis intervention, ongoing support, referrals, and education. This year, Haven is also developing a transitional housing program to assist survivors in finding long-term affordable housing options. Haven’s request for funding is for general operating support to provide life- saving domestic violence intervention and prevention programs. 27 In recent years, as part of the budget process, the City of Bozeman has awarded grants to non-profit organizations which provide social services not covered by the City. Requirements In order to be awarded funds, organizations must: Be a registered 501(c)(3) non-profit Use funds during fiscal year 2025 (July 2024-June 2025 year 1 of the biennial budget) Show alignment with the Strategic Plan Directly benefit Bozeman residents/taxpayers In addition to the above requirements, applicants are encouraged to: Demonstrate alignment with our equity and inclusion initiatives Show alignment with at least one of the city's long-range plans, such as our Community Plan or Climate Plan Application Period Applications are being accepted from April 1 - May 15, 2024.Please submit all grant requests via the online application (below) by 5 p.m. on May 15, 2024. Applications received outside of this time frame will not be considered for an award. Allocation Process As part of the budget process, an opportunity will be provided for the City Commission to allocate funds to Non-profit Grant Awards. Bozeman City Commission makes all funding decisions, which is typically done during the final adoption of the budget. Budget presentation and adoption occurs from May through the end of June. The current six-month calendar and all future agendas can be found on the City Commission web page. Funding Information The total amount available to non-profits varies annually based on the budget. The majority of prior year awards included the use of one-time federal funding* which has all been allocated in prior budget years. Fiscal year 2025 awards will be based on the available budget in the General Fund using discretionary City funding** and may compete with other City services and priorities and result in a lower total award amount available. Other Grant Considerations Grant requests lower than $5,000 will not be considered. The City Commission reserves the right to award partial grant amounts during this process. Footnotes *Coronavirus Aid, Relief, and Economic Security Act and American Rescue Plan Act (ARPA) **Primarily consists of property tax revenue and state shared revenue * Entity Name Haven * Entity's Physical Address 132 Pond Row Bozeman MT 59718 * Number of Years of Operation as a Non-Profit Organization 45 * Link to Most Recent Annual Financial Report https://havenmt.org/annual-reports * Dollar Amount Requested for the Fiscal Year $50,000 * Description of the Funding Request in Relation to Commission Priorities and/or Citizen Benefit Haven's mission is to reduce the incidence and minimize the impact of domestic violence on families and communities by providing crisis intervention services to survivors and education to the community. Haven is the only nonprofit serving survivors of domestic violence, sex trafficking, and stalking in Gallatin County. Our approach makes us unique—everything we do is rooted in empowerment. We connect survivors to all the resources and support they need while trusting they should be the ones to decide what’s best for their own journey. Last year, Haven served 1,232 participants, the majority of whom were from Bozeman. Haven serves individuals of color at a greater rate than exists within the general population, and is committed to delivering services to historically underserved communities. In the coming year, Haven is also developing a transitional housing program to assist survivors in finding long-term affordable housing options. Haven facilitates the Domestic Violence Response Team, which includes city and county partners as well as other local service organizations. The DVRT meets regularly to assess best practices for responses to domestic violence crimes, and to support new initiatives to improve responses across service provision and the justice system. Haven's work supports Bozeman's strategic plan vision for a safe, welcoming community, as well as the Community Plan’s objectives for a resilient community through using past experience to inform new models. Haven's services help empower all Bozeman residents to live safe, secure lives as full participants in the community, while education, outreach, and prevention work aims to reduce violence and increase well- being across the community. Page | 1 28 Other Entities Funding has been Requested From AND Other Partners Assisting with Funding Entity (List up to three) Name #1 DOJ Rural Program Amount $ $745,755 Name #2 Montana Board of Crime Control Amount $ $232,312 Name #3 DOJ Transitional Housing Amount # $536,974 Contact Information for Entity * Full Name RJ Watters * Phone (406) 586-7689 Email Address grants@havenmt.org Page | 2 29 Memorandum REPORT TO:City Commission FROM:Jon Kercher, WRF Superintendent Shawn Kohtz, Utilities Director SUBJECT:Authorize the City Manager to Sign a Notice of Award and Sign a Bid Purchase Agreement for Three (3) Years of Polymer for the Bozeman WRF with the option of Two (2) Additional Years. MEETING DATE:February 25, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Award bid to Neo-Solutions to supply NS4413 polymer for one year at a cost of $1.53 per pound and (2) years with increase not to exceed ten percent, delivered to the Bozeman WRF with the option of two (2) additional years upon mutual agreement of the City of Bozeman and Neo-Solutions. STRATEGIC PLAN:6.1 Clean Water Supplies: Ensure adequate supplies of clean water for today and tomorrow. BACKGROUND:The City of Bozeman WRF purchases approximately 124,000 pounds of this product per year. Bids for this product were advertised on January 25th, 2025 and opened on February 10th, 2025. Neo-Solution Inc. were the lowest bid at $1.53 per pound. Due to the volatile polymer raw materials market and shipping charges the contract is for one (1) year at this price and an allowance for no more than ten percent increase in the next (2) years, with the option of two (2) additional years upon mutual agreement of the city and Neo-Solutions. The first year of this contract will be approximately $225,000. UNRESOLVED ISSUES:None ALTERNATIVES:As Suggested by City Commission FISCAL EFFECTS:This polymer cost has been accounted for in the WRF budget. Attachments: Notice_to_Award_2025.docx Bid Form 2025.pdf Purchase Agreement 2025-2028.pdf Report compiled on: February 13, 2025 30 NOTICE OF AWARD Dated: TO: Neo Solutions ADDRESS: P.O. Box 26 Beaver, PA 15009 CONTRACT FOR: To supply (3) years worth of Polymer for the Bozeman WRF at $1.53 per pound in the first year with no more than ten percent increase in the second and third years, delivered to the Bozeman WRF.. With the option of (2) additional years upon mutual agreement of the City of Bozeman and Neo. Solutions You are notified that your Bid opened on February 10, 2025 at 2 p.m. for the above Contract has been considered. You are the apparent Successful Bidder and have been awarded a Contract for the: Purchase of NS4413 polymer at a $1.53 per pound delivered to the Bozeman in the first of (3) years. With the potential variability of 10% in the following (2) years and the option of (2) additional years upon mutual agreement of the City of Bozeman and Neo. Solutions One (1) copy of the Contract Documents has been signed and accompanies this Notice of Award for your records. CITY OF BOZEMAN, MONTANA BY: (CITY MANAGER) BY: (CITY CLERK) DATE: 31 32 33 34 35 36 37 38 39 40 41 42 Memorandum REPORT TO:City Commission FROM:Shawn Kohtz, Utilities Director Russ Smith, Stormwater Project Coordinator SUBJECT:Notice of Award and Construction Agreement with CK May Excavation for the Construction of Manley Ditch MEETING DATE:February 25, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign a Notice of Award and Agreement with CK May to construct Manley Ditch STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:The Manley Ditch Rehabilitation (Project) includes restoring a historical ditch that conveyed stormwater from a 58-acre drainage basin to the Cherry Creek Fishing Access. Due to inadequate past management, the ditch is degraded and, in some cases, non-existent. A functioning stormwater conveyance channel is critical to mitigating flooding and property damage. City staff has coordinated with stakeholders to acquire necessary easements and permissions to complete the work and maintain the ditch indefinitely. The Project’s permitting and design stage is complete. On January 9th, 2025 the City Clerk opened 9 construction bids. CK May Excavation submitted the low bid. The following documents require the City Manager’s signature before commencing construction of the Project. Notice of Award to CK May Excavation for Manley Ditch Rehabilitation Construction Agreement with CK May Excavation for Manley Ditch Rehabilitation UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the City Commission FISCAL EFFECTS:The project design was budgeted and completed over the last several years. The Commission approved the Manley Ditch Rehabilitation Project construction phase with the FY25 Budget and CIP (STDM02). The 43 construction contract amount is $471,732.00 and is within the approved budget. Attachments: Notice of Award to CK May Excavation for Manley Ditch Rehabilitation.pdf Construction Agreement with CK May Excavation for Manley Ditch Rehabilitation .pdf Report compiled on: February 14, 2025 44 NOTICE OF AWARD Sec 00440 - 1 DIVISION 1 – GENERAL REQUIREMENTS SECTION 00440 – NOTICE OF AWARD NOTICE OF AWARD Dated: __________________ TO: CK May Excavating ADDRESS: PO Box 1426 PROJECT: Bozeman, MT 59714 CONTRACT FOR: City of Bozeman – Manley Ditch Rehabilitation You are notified that your Bid opened on January 9th, 2025, for the above Contract has been considered. You are the apparent Successful Bidder and have been awarded a Contract for the: City of Bozeman – Manley Ditch Rehabilitation. The Contract Price of your Contract is: four-hundred seventy-one thousand, seven-hundred, thirty- two Dollars ($471,732.00). Four (4) copies of each of the proposed Contract Documents (except Drawings) accompany this Notice of Award. Two (2) sets of the Drawings will be delivered separately or otherwise made available to you immediately. You must comply with the following conditions precedent within fifteen (15) days of the date of this Notice of Award, that is, by _______________. 1. You must deliver to the OWNER Four (4) fully executed counterparts of the Agreement including all the Contract Documents and Drawings. 2. You must deliver with the executed Agreement the Contract Security (Bonds) as specified in the Instruction to Bidders (Article 20), and the General Conditions (paragraph 5.01). 3. List other conditions precedent: You must deliver with the executed Agreement the Certificates of Insurance as specified in the General Conditions (Article 5) and Supplementary Conditions (paragraphs SC-5.04 and SC-5.06). Failure to comply with these conditions within the time specified will entitle OWNER to consider your Bid abandoned, to annul this Notice of Award, and to declare your Bid Security forfeited. Within ten (10) days after you comply with these conditions, OWNER will return to you two fully signed counterpart of the Agreement with the Contract Documents attached. CITY OF BOZEMAN, MONTANA ATTEST: BY: __________________________________ BY: ____________________________ (CITY MANAGER) (CITY CLERK) DATE: _______________________________ 45 AGREEMENT Sec 00500 - 1 AGREEMENT FORM THIS AGREEMENT is dated as of the day of ________ in the year 2025, by and between CITY OF BOZEMAN, hereinafter called OWNER, and CK May Excavation hereinafter called CONTRACTOR. OWNER AND CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree as follows: Article 1. WORK. CONTRACTOR shall complete all Work as specified or indicated in the Contract Documents. The project work is generally described as follows: City of Bozeman – Manley Ditch Rehabilitation Project. The City of Bozeman Manley Ditch Rehabilitation project will consist of re-establishing the Manley Ditch and City of Bozeman’s northeast stormwater outfall. The project includes approximately 2,400 feet of open channel stormwater ditching and bioswales, drop structures, 227 linear feet of reinforced concrete pipe, concrete weirs, access roads, trail resurfacing, and riprap reinforcement. The proposed project will be completed within BNSF railroad, MDT, and City of Bozeman right-of-way, and crossing various utility easements and agency permitting established by the City of Bozeman. Article 2. CONTRACT TIME. 2.1 The Work will be completed within 140 calendar days after the date when the contract time commences to run as provided in the General Conditions. Final payment will be withheld until final completion and acceptance of the Work, as stipulated in this Agreement. 2.2 Liquidated Damages. OWNER and CONTRACTOR recognize that time is of the essence in this Agreement and that OWNER will suffer financial loss if the Work is not substantially complete within the time specified above, plus any extensions thereof allowed in accordance with the General Conditions. They also recognize the delays, expense and difficulties involved in proving, in a legal or arbitration proceeding, the actual loss suffered by OWNER if the Work is not substantially complete on time. Accordingly, instead of requiring any such proof, OWNER and CONTRACTOR agree that as liquidated damages for delay (but not as a penalty) CONTRACTOR shall pay OWNER one thousand dollars ($1,000) for each day that expires after the time specified herein until the Work is substantially complete. 46 AGREEMENT Sec 00500 - 2 Article 3. CONTRACT PRICE. 3.1 OWNER shall pay CONTRACTOR for performance of the Work in accordance with the Contract Documents the sum (subject to adjustment as provided in the Contract Documents) of four-hundred seventy-one thousand, seven-hundred, thirty-two Dollars ($471,732.00). Article 4. PAYMENT PROCEDURES. CONTRACTOR shall submit applications for payment in accordance with the General Conditions. Applications for payment will be processed as provided in the General Conditions. 4.1 Progress Payments. OWNER will make progress payments monthly on account of the contract price on the basis of CONTRACTOR'S application for payment as recommended by ENGINEER. All progress payments will be on the basis of the progress of the Work measured by the schedule of values provided for in the General Conditions. 4.1.1 The OWNER may retain five (5) percent of the amount due the CONTRACTOR in accordance with the General Conditions and as outlined herein. 4.2 Final Payment. Upon final completion and acceptance of the Work in accordance with the General Conditions, OWNER shall pay the remainder of the contract price as recommended by ENGINEER. Article 5. INTEREST. All monies not paid when due hereunder shall bear interest at the simple rate established by the Federal Cost of Money Rate commencing at the time of a claim. Article 6. CONTRACTOR'S REPRESENTATIONS. In order to induce OWNER to enter into this Agreement, CONTRACTOR makes the following representations: 6.1 CONTRACTOR has familiarized himself with the nature and extent of the Contract Documents, Work, locality, 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 Work. Contractor has read and agrees to all the terms in the General and Supplementary conditions including term 6.20 of the General Conditions. 6.2 CONTRACTOR has studied carefully all reports of investigations and tests of subsurface and latent physical conditions at the site or otherwise affecting cost, progress or performance of the Work which were relied upon by ENGINEER in the preparation of the drawings and specifications and which have been identified in the modifications to 47 AGREEMENT Sec 00500 - 3 the General Conditions. 6.3 CONTRACTOR has made or caused to be made examinations, investigations and tests and studies of such reports and related data in addition to those referred to above as he deems necessary for the performance of the Work at the contract price, within the contract time and in accordance with the other terms and conditions of the Contract Documents, and no additional examinations, investigations, tests, reports or similar data are or will be required by CONTRACTOR for such purposes. 6.4 CONTRACTOR has correlated the results of all such observations, examinations, investigations, tests, reports and data with the terms and conditions of the Contract Documents. 6.5 CONTRACTOR has given ENGINEER written notice of all conflicts, errors or discrepancies that he has discovered in the Contract Documents and the written resolution thereof by ENGINEER is acceptable to CONTRACTOR. 6.6 Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. Article 7. CONTRACT DOCUMENTS. The Contract Documents which comprise the entire Agreement between OWNER and CONTRACTOR are attached to this Agreement, made a part hereof and consist of the following: 7.1 This Agreement. 48 AGREEMENT Sec 00500 - 4 7.2 Exhibits to this Agreement (if any). 7.3 Performance Bond, Payment Bond, and Bid Bond. 7.4 Invitation to Bid. 7.5 Instructions to Bidders and Bid Form. 7.6 Certificate(s) of Insurance. 7.7 General Conditions (by reference). 7.8 Supplementary Conditions. 7.9 Wage Rates. 7.10 Special Provisions and Measurement and Payment. 7.11 Montana Public Works Specifications, Sixth Edition, and City of Bozeman Modifications to Montana Public Works Standard Specifications Sixth Edition, March 31, 2011 (by reference). 7.12 Appendix A – Construction Drawings 7.13 Appendix B – Permits 7.14 Appendix C – MDT Memorandum of Agreement and Bond 7.15 Addenda listed on the Bid forms. 7.16 CONTRACTOR'S executed Bid forms. 7.17 Documentation submitted by CONTRACTOR prior to Notice of Award. 7.18 Notice of Award. 7.19 Notice to Proceed. 7.20 Any modification, including Change Orders, duly delivered after execution of Agreement. 7.21 Any Notice of Partial Utilization. 7.22 Notice of Substantial Completion. 49 AGREEMENT Sec 00500 - 5 7.23 Notices of Final Completion and Acceptance. 7.24 Non-discrimination affirmation form. There are no Contract Documents other than those listed above in this Article 7. The Contract Documents may only be altered, amended or repealed by a modification (as defined in the General Conditions). Article 8. MISCELLANEOUS. 8.1 Terms used in this Agreement which are defined in the General Conditions shall have the meanings indicated in the General Conditions. 8.2 This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the OWNER and the CONTRACTOR respectively and his partners, successors, assigns, and legal representatives. Neither the OWNER nor the CONTRACTOR shall have the right to assign, transfer or sublet his interest or obligations hereunder without written consent of the other party. The OWNER reserves the right to withdraw at any time from any subcontractor where Work has proven unsatisfactory the right to be engaged in or employed upon any part of the Work. 8.3 In the event it becomes necessary for either party to this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing party or the party giving notice shall be entitled to reasonable attorney's fees and costs. 8.4 Any amendment of modifications of this Agreement or any provisions herein shall be made in writing and executed in the same manner as this original document and shall after execution become a part of this Agreement. 8.5 The CONTRACTOR agrees that all hiring by CONTRACTOR of persons performing this Agreement shall be on the basis of merit and qualifications. The CONTRACTOR will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. CONTRACTOR represents it is, and for the term of this Agreement will be, in 50 AGREEMENT Sec 00500 - 6 compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. CONTRACTOR shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 8.6 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. 51 AGREEMENT Sec 00500 - 7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. (CONTRACTOR) By (SEAL &) Title __________________________ (ATTEST) (JOINT VENTURE) By (SEAL &) Title _____________________________ (ATTEST) City of Bozeman (OWNER) By _____________________________ (SEAL &) (CITY MANAGER) _____________________________ (ATTEST) APPROVED AS TO FORM: ________________________________ (CITY ATTORNEY) 52 AGREEMENT Sec 00500 - 8 City of Bozeman - Manley Ditch Rehabilitation (#9433569) Owner: Bozeman MT, City of Solicitor: Bozeman MT, City of Bid Opening Date: January 9th, 2025 @ 2:30pm Item Number Description Quantity Unit CK May Excavation Unit Prices Amount Dollars Dollars 101 Mobilization / Demobilization 1 LS $22,000.00 $22,000.00 102 Taxes / Bonds / Insurance 1 LS $4,500.00 $4,500.00 103 Temporary Erosion Control 1 LS $6,000.00 $6,000.00 104 Clearing and Grubbing 1 LS $14,000.00 $14,000.00 105 Dewatering & Water Control 1 LS $5,500.00 $5,500.00 106 Topsoil Strip, Stockpile, and Spread 1,925 CY $18.00 $34,650.00 107 General Excavation 3,328 CY $6.75 $22,464.00 108 Embankment 3,614 CY $4.50 $16,263.00 109 Road Mix Gravel Surfacing 481 CY $80.00 $38,480.00 110 Riprap 34 CY $325.00 $11,050.00 111 Geotextile 1,617 SY $3.00 $4,851.00 112 Erosion Control Blanket 5,863 SY $5.00 $29,315.00 113 Locked Access Gate - Chain 2 EA $4,425.00 $8,850.00 113a Locked Access Gate - Swing 1 EA $4,500.00 $4,500.00 114 Modify Outlet Structure 1 LS $6,250.00 $6,250.00 115 RCP 42" 227 LF $475.00 $107,825.00 116 72" Manhole 3 EA $10,250.00 $30,750.00 117 Additional 72" Manhole Height 21 VLF $475.00 $9,975.00 118 96" Manhole 1 EA $16,500.00 $16,500.00 119 Additional 96" Manhole Height 3 VLF $1,750.00 $5,250.00 120 Concrete Weir 4 EA $6,250.00 $25,000.00 121 Seeding 11,279 SY $1.00 $11,279.00 122 Wetland Plantings 163 SY $60.00 $9,780.00 123 Signage 1 EA $1,500.00 $1,500.00 124 Rigid Insulation Board 65 LF $80.00 $5,200.00 125 Miscellaneous Work 1 LS $20,000.00 $20,000.00 BASE BID TOTAL = $471,732.00 53 Memorandum REPORT TO:City Commission FROM:David Fine, Economic Development Manager SUBJECT:Authorize the City Manager to sign Estoppel Certificate and Amendment to Development Agreement for the 7th and Aspen Urban Renewal Project MEETING DATE:February 25, 2025 AGENDA ITEM TYPE:Agreement - Legal RECOMMENDATION:Authorize the City Manager to sign the Amendment to the Development Agreement STRATEGIC PLAN:4.5 Housing and Transportation Choices: Vigorously encourage, through a wide variety of actions, the development of sustainable and lasting housing options for underserved individuals and families and improve mobility options that accommodate all travel modes. BACKGROUND:The 7th and Aspen project contains two buildings with two different ownership structures and sources of financing. This amendment to the development agreement assigns certain eligible costs to each of the phases to clarify which parties are responsible for which improvements and costs eligible for reimbursement. The amendment does not increase the overall commitments of funds to the project. UNRESOLVED ISSUES:None at this time. ALTERNATIVES:None at this time. FISCAL EFFECTS:The Amendment does not have any fiscal effects. The original agreement commits the City to reimburse the developer for $3,024,061 in eligible costs from the Midtown Urban Renewal District. Attachments: Midtown_Aspen_- _Estoppel_and_Amendment_to_Development_Agreement 20250220.docx 7th and Aspen Exhibit Schedule.pdf BZN_Development_Agreement.7th_and_Aspen.v2.pdf Report compiled on: February 13, 2025 54 4902-1890-1506.3 ESTOPPEL CERTIFICATE AND AMENDMENT TO DEVELOPMENT AGREEMENT This Estoppel Certificate and Amendment to Development Agreement (this “Agreement”) is dated as of _____________, 2025, and entered into by and between the CITY OF BOZEMAN, MONTANA (the “City”) and BOUNDARY DEVELOPMENT, LLC (the “Developer”), in favor of MIDTOWN ASPEN 4 LLLP,a Montana limited liability limited partnership (the “Midtown 4% Owner”), MIDTOWN ASPEN 9 LLLP,a Montana limited liability limited partnership (the “Midtown 9% Owner”; the Midtown 4% Owner and Midtown 9% Owner shall be referredto individually as an “Owner” and collectively, as the “Owners”) and U.S. BANCORP COMMUNITY DEVELOPMENT CORPORATION, a Delaware limited partnership (the “Limited Partner”) and its respective successors and/or assigns. RECITALS A.The City and the Developer entered into that certain unrecorded Development Agreement dated as of May 21, 2024 (the “Development Agreement”), relating to certain real property described therein and setting forth certain rights and obligations among the parties with respect to the development of Land in accordance with the Bozeman Midtown Urban Renewal Plan. B.Developer or its affiliate intends to sell Unit 1 of the Project I Improvements to Midtown Aspen 4% Owner in order to construct and operate the Midtown 4% Project (as defined in this Agreement). Additionally, Developer or its affiliate intends to sell Unit 2 of the Project I Improvements to Midtown Aspen 9% Owner in order to construct and operate the Midtown 9% Project (as defined in this Agreement). Each Owner has informed the City that at the time of closing for the various financing sources needed in order to construct and operate Phase I of the Project, the Limited Partner will be admitted to each Owner as a limited partner in order to make an equity investment in the development and ongoing operation of the Midtown 4% Project and Midtown 9% Project. C.As a condition to being admitted as a limited partner in the Midtown 4% Owner and Midtown 9% Owner, as applicable, the Limited Partner requires that the City and Developer execute and deliver this Agreement to in favor of the Owners and the Limited Partner with respect to certain amendments and representations with respect to the Development Agreement and the development of the Project. AGREEMENT In order to induce the Limited Partner to be admitted to the Owners, and with the understanding that the Owners and the Limited Partner will rely upon this Agreement, the City and Developer hereby agree, represent, and warrant as follows: 1.Incorporation of Recitals.The recitals set forth above are incorporated herein by reference as if set forth fully herein. 2.Defined Terms. Capitalized terms used but not defined herein shall have the respective meanings set forth therefor in the Development Agreement. 55 4902-1890-1506.3 3.Phase I Project. The third Recital of the Development Agreement is hereby amended and restated in its entirety to read as follows: “WHEREAS, the Developer or affiliated entities, together with Midtown Aspen, LLC, owns certain property in the District, legally described on Exhibit B hereto (collectively, the “Land”), and together with Midtown Aspen, LLC and the Human Resource Development Council (“HRDC”), Developer proposes to undertake a project on the Land in two phases. Phase I consists of the design, engineering and construction of a four-story apartment building containing 46 residential rental units, 29 of which are expected to be affordable at 60% area median income (“AMI”) and 17 of which are expected to be affordable at 50% AMI, together with residential common space and related improvements, which will be located on “Lot 4A” (“Phase I of the Project”). Midtown Aspen, LLC has or will file a Condominium Declaration which will create two separate projects within Phase I of the Project. The first, which will consist of 23 residential units, will be owned by Midtown Aspen 4 LLLP, a Montana limited liability limited partnership (the “Midtown 4% Owner”) and will be financed in part with low income housing tax credits awarded or allocated to Midtown 4% Owner and tax exempt bonds (the “Midtown 4% Project”). The second, which will consist of 23 residential units, will be owned by Midtown Aspen 9 LLLP, a Montana limited liability limited partnership (the “Midtown 9% Owner”) and will be financed in part with low income housing tax credits awarded or allocated to Midtown 9% Owner (the “Midtown 9% Project”; collectively, the Midtown 4% Project and Midtown 9% Project are referred to as “Phase I of the Project”). Both the Midtown 4% Project and the Midtown 9% Project will be subject to a regulatory agreement or similar instrument restricting the use of Lot 4A to affordable housing meeting certain requirements; and” 4.Definitions. Section 1.1 of the Development Agreement is hereby revised to include the following defined terms: “Limited Partners” means, collectively, the Midtown Aspen 4% Limited Partner and the Midtown Aspen 9% Limited Partner. Each individually shall be a “Limited Partner.” “Midtown Aspen 4% Limited Partner” means U.S. Bancorp Community Development Corporation, and its successors and/or assigns, as the investor limited partner of Midtown 4% Owner. “Midtown Aspen 9% Limited Partner” means U.S. Bancorp Community Development Corporation, and its successors and/or assigns, as the investor limited partner of Midtown 9% Owner. “Midtown 4% Owner” has the meaning given to it in the Recitals. “Midtown 9% Owner” has the meaning given to it in the Recitals. 5.Exhibits. Exhibits A (“Project Costs”), Exhibit C (“Eligible Costs”) and Exhibit D (“Milestones”) of the Development Agreement are hereby deleted and shall be replaced with the exhibits attached hereto in Schedule 1. 56 4902-1890-1506.3 6.Workforce Housing Covenant. The first sentence of Section 3.12 of the Development Agreement is hereby amended to read as follows: “The Developer agrees that, as a condition to receiving any reimbursement for Phase II of the Project under this Agreement, the Developer will file a restrictive covenant on Lot 6A, providing that any residential housing units development on Lot 6A as part of Phase II of the Project (the “Workforce Housing Units”) will be restricted for a period not less than 50 years for use as workforce housing affordable to households with incomes equal to 80% area median income (“AMI”).” 7.Conditions and Procedure. Section 5.1 of the Development Agreement is hereby amended and restated in its entirety to read as follows: “(a)The Developer shall complete or satisfy the specified Milestones for the Midtown 4% Project, Midtown 9% Project and Phase II of the Project by the applicable Milestone Dates, as such dates may have been extended pursuant to Section 3.4 hereof. (b)Reimbursement by the City for costs of the Infrastructure Improvements must be based on paid invoices for costs incurred by the Developer, its contractors and subcontractors or utility companies, which the Developer must supply to the City. The City may reject, in its sole discretion, any invoice related to the Infrastructure Improvements. The City will notify the Developer of any rejected invoice and the reason it was rejected. (c)At the time of the Developer’s request for reimbursement for any phase of the Project (i) all of the Developer’s representations as set forth in Section 2.2 as to that phase of the Project must be true and correct, (ii) the Developer must not be in breach of any covenant or undertaking set forth in Section 3, and (iii) there must be adequate Tax Increment on hand to satisfy all financial obligations related to the Series 2020 Bonds and the debt service reserve account for the Series 2020 Bonds such that Tax Increment is available to reimburse the Developer. (d)For Phase II of the Project, the Developer must provide evidence satisfactory to the City that the Restrictive Covenants have been recorded with the Gallatin County Clerk and Recorder’s Office with respect to Lot 6A and have not been modified, amended or rescinded other than with the prior written consent of the City. (e)For the Midtown 4% Project and Midtown 9% Project, the Developer must provide evidence satisfactory to the City that a regulatory agreement or similar instrument restricting the use of the Midtown 4% Project or the Midtown 9% Project, as applicable, to affordable housing has been recorded with the Gallatin County Clerk and Recorder’s Office. (f)The Developer shall have been issued a certificate of occupancy for such phase of the Project it is seeking reimbursement for. (g)When the above conditions have been met with respect to such phase of the project thatDeveloper is seeking reimbursement, the Developer shall submit to the Director 57 4902-1890-1506.3 of Economic Development a certificate substantially in the form attached hereto as Exhibit E, together with such supporting documentation as may be requested by the City. 8.Failure to Satisfy Conditions. Section 5.2 of the Development Agreement is hereby amended to read as follows: “If any of the conditions described in Section 5.1 are not satisfied in the determination of the City, the City shall have no obligation to reimburse the Developer with respect to that phase of the Project, and the City’s determination to refrain from reimbursing, or its inability to reimburse, any of the Eligible Costs for that phase of the Project shall not be or result in a default of this Agreement. It is hereby agreed that the failure of one phase of the Project to meet any conditions described in Section 5.1 or to be in default under the Agreement shall not be grounds for the City to deny a claim for reimbursement with respect to any other phase of the Project.” 9.Assignment of Reimbursement. The parties hereby agree to add a new Section 5.3 of the Development Agreement which reads as follows: “Assignment of Reimbursement. The Developer and the City hereby agree that the Developer may elect that any approved Eligible Costs for the Midtown 4% Project, Midtown 9% Project or Phase II of the Project be reimbursed directly to HRDC. The Developer shall provide a written request to the City along with the documentation required in Section 5.1 identifying that it is electing any approved Eligible Costs to be reimbursed directly to HRDC. Upon approval of the Eligible Costs pursuant to Section 5.1 and receipt of such written request, the City hereby agrees to provide the approved reimbursement directly to HRDC.” 10.Rights Cumulative. Section 8.2 of the Development Agreement shall be amended to include the following at the end of such section: “Notwithstanding the foregoing, a default applicable solely to one phase of the Project shall not allow for any remedy to be applied against the Developer or the owners of any other phase of the Project or require repayment of any funds already disbursed in connection with any phase which is not in default under the Agreement.” 11.Warranties. The City represents and warrants that as of the date hereof: (i) attached hereto as Schedule 2 is a true, correct and complete copy of the Development Agreement; (ii) the Development Agreement is and remains in full force and effect; and (iii) to the best of its knowledge, without investigation, no default currently exists under the Development Agreement and no condition exists which, with the passage of time, would constitute a default under the Development Agreement. 12.Covenants. The City will use best efforts to provide written notice to the Limited Partners prior to: 58 4902-1890-1506.3 (i) amending or modifying the Agreement, or consenting to any modification or amendment of the Development Agreement; and/or (ii) terminating the Development Agreement, except for a termination as a result of a default by Developer which is not cured after a notice of default is provided to the Limited Partner, as applicable, and an opportunity to cure any such notice of default is provided to such Limited Partner. 13.Notices. The City acknowledges that the Limited Partners have hereby provided written notice, as required in Section 8.11of the Development Agreement, that the Limited Partners wish to receive a copy of any notice of default or notice of noncompliance under the Development Agreement relating to the Midtown 4% Project and/or the Midtown 9% Project, as applicable. The City agrees to provide the Limited Partners, as applicable, a copy of any notice of default or notice of noncompliance as to the Midtown 4% Project or Midtown 9% Project, as applicable, and that such notice be sent to the addresses as set forth below: If to the Midtown 4% Limited Partner: U.S. Bancorp Community Development Corporation 1307 Washington Avenue, Suite 300 Mail Code: SL MO RMCD St. Louis, MO 63103 USB Project No. 31051 Attention: Direction of LIHTC Project Management With a copy to: Kutak Rock LLP 1650 Farnam Street Omaha, NE 68102 Attn: Jill Goldstein, Esq. If to the Midtown 9% Limited Partner: U.S. Bancorp Community Development Corporation 1307 Washington Avenue, Suite 300 Mail Code: SL MO RMCD St. Louis, MO 63103 USB Project No. 31053 Attention: Direction of LIHTC Project Management With a copy to: Kutak Rock LLP 1650 Farnam Street Omaha, NE 68102 Attn: Jill Goldstein, Esq. 59 4902-1890-1506.3 14.Development Agreement. All provisions of the Development Agreement not expressly amended hereby shall remain unamended and in full force and effect between the City and the Developer. 15.Governing Law. This Certificate shall be governed by, interpreted under, and construed and enforceable in accordance with the laws of the State of Montana without regard to any conflicts-of-laws rules which would require the application of the laws of any other jurisdiction. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK; SIGNATURES FOLLOW] 60 4902-1890-1506.3 IN WITNESS WHEREOF, the Parties hereto have caused this Development Agreement to be executed as of the date first set forth above. CITY OF BOZEMAN, MONTANA By:_______________________________________ Printed Name: Chuck Winn Title: Acting City Manager APPROVED AS TO FORM By Name: Greg Sullivan Title: City Attorney 61 4902-1890-1506.3 BOUNDARY DEVELOPMENT, LLC, a Montana limited liability company By: Name: Joseph Walsh Title: Authorized Signatory 62 4902-1890-1506.3 SCHEDULE 1 EXHIBIT A PROJECT COSTS 63 4902-1890-1506.3 EXHIBIT C ELIGIBLE COSTS 64 4902-1890-1506.3 EXHIBIT D MILESTONES 65 4902-1890-1506.3 SCHEDULE 2 DEVELOPMENT AGREEMENT See attached. 66 Exhibit A: Project Costs Phase I - 4% Unit Phase I - 9% Unit Phase II Total Total Estimated Costs [1] Land / Acquisition Costs $785,000 $785,000 $3,237,000 $4,807,000 Hard Costs $4,094,036 $4,094,036 $8,662,500 $16,850,572 Soft Costs $1,587,541 $1,646,787 $1,804,059 $5,038,387 Financing Costs $184,278 $184,278 $158,125 $526,681 Interest Reserves $391,741 $372,231 $538,316 $1,302,288 Subtotal $7,042,595 $7,082,332 $14,400,000 $28,524,928 [1] Includes TIF Eligible Costs Estimated TIF Eligible Costs Infastructure and Vertical $500,000 $500,000 $1,000,000 $2,000,000 Impact Fees, CIL, Permit Fees $273,580 $273,580 $450,031 $997,191 Contingency $6,718 $6,718 $13,435 $26,870 Subtotal $780,298 $780,298 $1,463,466 $3,024,061 Exhibit C: Eligible Costs Phase I - 4% Unit Phase I - 9% Unit Phase II Total Demolition $18,250 $18,250 $61,733 $98,233 Excavation $125,185 $125,185 $250,370 $500,740 Storm Water Retention $10,641 $10,641 $21,282 $42,564 Water Main $12,028 $12,028 $24,055 $48,110 Sewer Main $6,104 $6,104 $12,207 $24,414 Fire Line $12,879 $12,879 $25,757 $51,514 Other Vertical Costs $314,915 $314,915 $604,596 $1,234,425 Subtotal $500,000 $500,000 $1,000,000 $2,000,000 Impact Fees, CIL, Permit Fees $273,580 $273,580 $450,031 $997,191 Contingency $6,718 $6,718 $13,435 $26,870 Total $780,298 $780,298 $1,463,466 $3,024,061 Exhibit D Phase I - 4% Unit Phase I - 9% Unit Phase II Site Plan Submittal Complete Complete Complete Building Permit Submittal Complete Complete Complete Start of Development Construction 12/31/2025 12/31/2025 12/31/2025 Completion of Construction (occupancy)7/1/2027 7/1/2027 7/1/2027 67 DEVELOPMENT AGREEMENT (7th and Aspen) This DEVELOPMENT AGREEMENT (this “Agreement”) is dated as of May 21, 2024, by and between BOUNDARY DEVELOPMENT, LLC (the “Developer”) and the CITY OF BOZEMAN, MONTANA, 121 N. Rouse Ave., Bozeman, Montana 59771 (the “City”). The Developer and the City are each individually referred to herein as a “Party” and collectively as the “Parties.” RECITALS: WHEREAS, under the provisions of Montana Code Annotated, Title 7, Chapter 15, Parts 42 and 43, as amended (the “Act”), the City is authorized to create urban renewal areas, prepare and adopt an urban renewal plan therefor and amendments thereto, undertake urban renewal projects therein, provide for the segregation and collection of tax increment with respect to property taxes collected in such areas, and apply tax increment revenues derived from projects undertaken within the urban renewal area to pay eligible costs; and WHEREAS, pursuant to the Act and Ordinance No. 1685 adopted by the City Commission of the City (the “City Commission”) on November 27, 2006, as amended by Ordinance No. 1925, adopted by the City Commission on December 16, 2015 (collectively, the “Ordinance”), the City has created the Bozeman Midtown Urban Renewal District (the “District”) as an urban renewal district and has approved the Bozeman Midtown Urban Renewal Plan (the “Plan”) as an urban renewal plan in accordance with the Act, which Plan provides for the segregation and collection of tax increment revenues with respect to the District; and WHEREAS, the Developer or affiliated entities, together with Midtown Aspen, LLC, owns certain property in the District, legally described on Exhibit B hereto (collectively, the “Land”), and together with Midtown Aspen, LLC and the Human Resource Development Council (“HRDC”), Developer proposes to undertake a project on the Land in two phases. Phase I is or will be owned by Midtown Aspen LLC, a Delaware limited liability company, or an affiliated entity, and consists of the design, engineering and construction of a four-story apartment building containing 46 residential rental units, 29 of which are expected to be affordable at 60% area median income (“AMI”) and 17 of which are expected to be affordable at 50% AMI, together with residential common space and related improvements (“Phase I of the Project”), which will be located on “Lot 4A”. Phase I of the Project will be financed in part with low income housing tax credits awarded or allocated to Midtown Aspen 4 LLLP, a Montana limited liability limited partnership, and Midtown Aspen 9 LLLP, a Montana limited liability limited partnership, who will each own condominium units comprised of the residential housing units upon which such tax credits were awarded or allocated. Phase I of the Project will be subject to a regulatory agreement or similar instrument restricting the use of Lot 4A to affordable housing meeting certain requirements, and will be owned and operated in partnership with HRDC; and WHEREAS, the second phase of the project is expected to consist of the design, engineering and construction of four-story apartment building containing 50 residential rental units, all of which are expected to be workforce housing affordable at 80% AMI, together with Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 68418 2 residential common areas and related improvements (“Phase II of the Project” and, collectively with Phase I of the Project, the “Project”), which will be located on “Lot 6A”. Phase II of the Project will be owned by Developer or an affiliated entity. The current budget for the Project is set forth on Exhibit A hereto; and WHEREAS, under the Act, permissible uses of tax increment and tax increment financing include the acquisition, construction and improvement of public improvements or infrastructure, with “infrastructure” defined to include “workforce housing;” and WHEREAS, although “workforce housing” is not defined in the Act, Section 90-6-143, Montana Code Annotated, defines “attainable workforce housing” as housing of a cost that a household earning between 60% and 140% of median household income would spend no more than 30% of gross monthly income to attain; and WHEREAS, the Developer has requested tax increment assistance with respect to certain eligible costs of the Project; and WHEREAS, pursuant to Resolution No. 5596 adopted on May 21, 2024, the City Commission approved the Project as an urban renewal project under the Plan and the Act and authorized the use of tax increment revenue of the District to reimburse the Developer for certain eligible costs of the Project described more particularly on Exhibit C hereto (the “Eligible Costs”) in the maximum amount of $3,024,061, subject to the terms and conditions of this Agreement; and WHEREAS, certain of the Eligible Costs are costs paid by the Developer in connection with the demolition of existing structures on the Land, together with the design, engineering and construction of infrastructure, including water, sewer, storm water, streets, sidewalks, curbs and gutters serving the entire Project and certain costs of the workforce housing to be provided by Phase II of the Project and related improvements (the “Infrastructure Improvements”), and certain of the Eligible Costs are costs to be paid by the Developer as fees or charges pertaining to the Project (the “Project Fees and Charges”); and WHEREAS, as a condition to the City’s reimbursing the Developer for Eligible Costs, the Developer will record the Restrictive Covenants (as hereinafter defined) against Lot 6A, which will require the long-term use of that property for workforce housing; and WHEREAS, the City Commission expects to reimburse the Developer for Eligible Costs solely out of Tax Increment, as further described herein; and WHEREAS, the Parties desire to enter into this Agreement which sets forth the obligations and commitments of the Parties with respect to the Project and the Eligible Costs. NOW, THEREFORE, the City and the Developer, pursuant to the Act, each in consideration of the representations, covenants and agreements of the other, as set forth herein, mutually represent, covenant and agree as follows: Section 1. Definitions; Rules of Interpretation; Exhibits. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 69419 3 1.1. Definitions. For all purposes of this Agreement, except as otherwise expressly provided or unless the context clearly requires otherwise, the following terms have the meanings assigned to them, respectively: “Act” means Montana Code Annotated, Title 7, Chapter 15, Parts 42 and 43, as amended or supplemented. “Agreement” means this Development Agreement, dated as of May 21, 2024, by and between the City and the Developer, as it may be amended or supplemented from time to time in accordance with the terms hereof. “City” means the City of Bozeman, Montana, or any successors to its functions under this Agreement. “City Commission” means the governing body of the City. “Developer” means Boundary Development, LLC, a Montana limited liability company, or affiliated entities, and its successors and assigns in accordance with and as permitted under this Agreement. “Developer Certificate” means the certificate attached hereto as Exhibit E. “District” means the Bozeman Midtown Urban Renewal District, an urban renewal district created by the Ordinance pursuant to the Act, as such may be enlarged or reduced from time to time in accordance with the Act. “DOR” means the State of Montana Department of Revenue. “Eligible Costs” means the costs identified as such on the attached Exhibit C. “Environmental Laws and Regulations” means and includes the Federal Comprehensive Environmental Compensation Response and Liability Act (“CERCLA” or the “Federal Superfund Act”) as amended by the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), 42 U.S.C. §§ 9601 et seq.; the Federal Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. §§ 6901 et seq.; the Clean Water Act, 33 U.S.C. § 1321 et seq.; and the Clean Air Act, 42 U.S.C. §§ 7401 et seq., all as the same may be from time to time amended, and any other federal, state, county, municipal, local or other statute, code, law, ordinance, regulation, requirement or rule which may relate to or deal with human health or the environment including without limitation all land use, zoning, and stormwater control regulations as well as all regulations promulgated by a regulatory body pursuant to any statute, code, law, ordinance, regulation, requirement or rule. “Fiscal Year” means the period commencing on the first day of July of any year and ending on the last day of June of the next calendar year, or any other twelve-month period authorized by law and specified by the Commission as the City’s fiscal year. “Indemnified Parties” has the meaning given to it in Section 7.1. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 70420 4 “Infrastructure Improvements” means the demolition of existing structures on the Land, together with the design, engineering and construction of infrastructure, including water, sewer, storm water, streets, sidewalks, curbs and gutters serving the entire Project and certain costs of the workforce housing, and related improvements. “Land” has the meaning given to it in the recitals. “Land Use Regulations” means all federal, state and local laws, rules, regulations, ordinances and plans relating to or governing the development or use of the Land or the Project. “Lot 4A” means that portion of the Land on which Phase I of the Project will be constructed. “Lot 6A” means that portion of the Land on which Phase II of the Project will be constructed. “Milestone” or “Milestones” has the meaning given in Section 3.4 hereof. “Milestone Date” or “Milestone Dates” has the meaning given in Section 3.4 hereof. “Ordinance” means Ordinance No. 1685 adopted by the City Commission on November 27, 2006, as amended by Ordinance No. 1925, adopted by the City Commission on December 16, 2015. “Original Resolution” means Resolution No. 5131, adopted by the City Commission on July 6, 2020, pursuant to which the City issued the Series 2020 Bonds. “Person” means any individual, corporation, limited liability company, partnership, limited liability partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. “Phase I of the Project” has the meaning given to it in the recitals. “Phase II of the Project” has the meaning given to it in the recitals. “Prevailing Wage Rates” means the Montana Prevailing Wage Rate for public works projects as published from time to time by and available from the Montana Department of Labor and Industry, Research and Analysis Bureau, P.O. Box 1728, Helena, Montana 59624, telephone number (800) 541-3904. “Project” means the facilities to be constructed by the Developer on the Land in accordance with this Agreement, as described more particularly in the recitals hereto. “Project Fees and Charges” means those fees and charges pertaining to the Project that form a part of the Eligible Costs, including cash in lieu of water rights and parkland and impact fees. “Restrictive Covenants” has the meaning given to it in Section 3.12 hereof. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 71421 5 “Series 2020 Bonds” means the Tax Increment Urban Renewal Revenue Bonds (Bozeman Midtown Urban Renewal District), Series 2020, issued in the principal amount of $6,500,000 pursuant to the Original Resolution. “State” means the State of Montana. “Tax Increment” means the amount received by the City pursuant to the Act from the extension of levies of Taxes (expressed in mills) against the incremental taxable value (as defined in the Act) of all Taxable Property, and shall include all payments in lieu of Taxes attributable to the incremental taxable value and all payments received by the City designated as replacement revenues for lost Tax Increment. “Taxable Property” means all real and personal property located in the District and subject to Taxes, including land, improvements and equipment. “Taxes” means all taxes levied on an ad valorem basis by any Taxing Body against the Taxable Property (exclusive of the six mill levy for university purposes levied by the State and any other mills that may hereafter be excluded from the calculation of increment by the Act), and shall include all payments in lieu of taxes received by the City with respect to Taxable Property. “Taxing Body” means the City; the County of Gallatin, Montana; High School District No. 7 (Bozeman), Gallatin County, Montana; Elementary School District No. 7 (Bozeman), Gallatin County, Montana; the State; and any other political subdivision or governmental unit that levies or may hereafter levy or cause to be levied Taxes against property within the District. “Unavoidable Delay” means a delay resulting from a cause over which the Party required to perform does not have control and which cannot or could not have been avoided by the exercise of reasonable care, including but not limited to, acts of God, accidents, war, civil unrest, embargoes, strikes, unavailability of raw materials or manufactured goods, litigation, pandemics, epidemics, labor shortages, unusual permitting delays, unusually inclement weather and the delays of the other Party or its contractors, agents or employees in the performance of their duties under or incident to this Agreement. “Workforce Housing Covenants” has the meaning given to it in Section 3.12 hereof. “Workforce Housing Units” has the meaning given to it in Section 3.12 hereof. 1.2. Rules of Interpretation. (a) The words “herein,” “hereof” and words of similar import, without reference to any particular section or subdivision, refer to this Agreement as a whole rather than to any of its particular sections or subdivisions. (b) References to any particular section or subdivision hereof are to the section or subdivision of this Agreement in its original signed form, unless otherwise indicated. (c) The word “or” is not exclusive but is intended to contemplate or encompass one, more or all of the alternatives conjoined. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 72422 6 1.3. Exhibits. The following Exhibits are attached to and by reference made a part of this Agreement: Exhibit A: Project Costs Exhibit B: Description of the Land Exhibit C: Eligible Costs Exhibit D: Milestones Exhibit E: Form of Developer Certificate and Request Exhibit F: Nondiscrimination and Equal Pay Affirmation Exhibit G: Form of Restrictive Covenants Section 2. Representations. 2.1. City Representations. The City hereby represents as follows: (a) Pursuant to the Act, and after a public hearing duly called and held, the City by the Ordinance has duly created the District. (b) Pursuant to the Original Resolution, the City has issued and there are outstanding the Series 2020 Bonds. In the Original Resolution, the City reserved the right to issue obligations having a lien on Tax Increment subordinate to the lien of the Series 2020 Bonds (“Subordinate Obligations”). Any obligation of the City to make payments under this Agreement constitutes a Subordinate Obligation under the Original Resolution, subordinate and junior in all respects to the repayment of the Series 2020 Bonds and the replenishment of the debt service reserve account for the Series 2020 Bonds, and subject to all other terms and conditions of the Original Resolution. (c) Pursuant to Resolution No. 5596 of the City Commission, the City Commission authorized the execution and delivery by the City of this Agreement and approved the use of Tax Increment, if available, to reimburse the Eligible Costs in a total amount not to exceed $3,024,061. (d) The City has found and determined that the Project is a means to provide safe, sanitary and healthful workforce housing, which constitutes a public purpose and a public use for which tax increment funds may be spent. 2.2. Developer Representations. The Developer hereby represents as follows: (a) The Developer is a Montana limited liability company, duly formed, validly existing, in good standing and duly qualified to do business in the State of Montana. The Developer has the power to enter into this Agreement and by all necessary corporate action has duly authorized the execution and delivery of this Agreement. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 73423 7 (b) The Developer or its affiliated entities have good marketable title to the Land, free and clear of all liens, encumbrances and defects except such as do not materially affect the value of the Land or materially interfere with the use made and proposed to be made of the Land by the Developer, or such liens and encumbrances that may otherwise be approved by the City in writing. The individual condominium units comprised of the residential housing units in Phase I of the Project are owned by Aspen 4 LLLP, a Montana limited liability limited partnership, and Midtown Aspen 9 LLLP, a Montana limited liability limited partnership, and such condominium units are free and clear of all liens, encumbrances and defects except such as do not materially affect the value of the Land or materially interfere with the use made and proposed to be made of the Land by the Developer, or such liens and encumbrances that may otherwise be approved by the City in writing. (c) The Developer has the financial capability or commitments to complete the Project. (d) The Developer is not aware of any facts the existence of which would cause the Developer to be in violation in any material respect of any Environmental Laws and Regulations applicable to the Project or the Infrastructure Improvements. The Developer has not received from any local, state or federal official any notice or communication indicating that the activities of the Developer have been, may be or will be in violation of any Environmental Laws and Regulations applicable to the Project or the Infrastructure Improvements. (e) Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions hereof is prohibited or limited by, conflicts with or results in a breach of the terms, conditions or provisions of the certificate of formation, partnership agreement or operating agreement of the Developer or any evidence of indebtedness, agreement or instrument of whatever nature to which the Developer is now a party or by which it is bound, or constitutes a default under any of the foregoing. (f) There is no action, suit, investigation or proceeding now pending or, to the knowledge of the Developer, threatened against or affecting the Developer or its business, operations, properties or condition (financial or otherwise) before or by any governmental department, commission, board, authority or agency, or any court, arbitrator, mediator or grand jury, that could, individually or in the aggregate, materially and adversely affect the ability of the Developer to complete the Project. (g) The Developer acknowledges and agrees that the sole source of funds for reimbursing the Developer under this Agreement is Tax Increment. The Developer further acknowledges and agrees the amount of Tax Increment in the District is dependent upon a number of variables, including, without limitation, the taxable value of the Project, the number of mills levied by Taxing Bodies, and then-prevailing state laws regarding computation of Tax Increment, and that the City has no control over such variables. In addition, if Tax Increment in the District decreases, the City may need to use Tax Increment to pay debt service on the Series 2020 Bonds or to replenish the debt service reserve account for the Series 2020 Bonds, and there may not be Tax Increment available to reimburse the Developer for Eligible Costs, despite the Developer having paid all property taxes then due with respect to the Project. The Developer Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 74424 8 agrees that if Tax Increment is not available to reimburse the Developer, the City shall have no obligation to pay to the Developer the amount of reimbursement described in Section 4. The Developer agrees that such event shall not constitute a default by the City hereunder. In such event, if the Developer has not received any reimbursement but has recorded the Restrictive Covenants described in Section 3.12, upon request of the Developer or subsequent owner of Phase II of the Project, the City agrees to cooperate with the Developer or subsequent owner of Phase II of the Project to remove the Restrictive Covenants from Lot 6A. Section 3. Developer Undertakings. 3.1. Construction and Maintenance of Project. The Developer hereby agrees and commits to the City that it will diligently prosecute to completion the construction of the Project in accordance with this Agreement, the site plan submitted to the City and all applicable federal, State and local laws, rules, regulations, ordinances and plans relating to or governing the development or use of the Project, including applicable Land Use Regulations and Environmental Laws and Regulations. The Developer agrees and commits to the City that construction of the Project shall be completed by July 1, 2027, subject to Unavoidable Delays. The total estimated costs of the Project are shown on Exhibit A hereto. The Developer has the financial capacity to complete the Project, and the Developer agrees to pay all costs thereof. If there is an increase in the costs of the Project from that shown on Exhibit A hereto that cannot be covered by the contingency amount, the Developer shall notify the City of the increase and submit additional evidence in a form acceptable to the City that the Developer has the financial capacity to cover such additional costs and complete the Project. At all times during the term of this Agreement, the Developer will operate and maintain, preserve and keep the Project or cause the Project to be operated, maintained, preserved and kept for the purposes for which it was constructed, and with the appurtenances and every part and parcel thereof, in good repair and condition. The Developer agrees to permit the City and any of its officers, employees or agents access to the Land for the purpose of inspection of all work being performed in connection with the Project; provided, however, that the City shall have no obligation to inspect such work. 3.2. Preparation, Review and Approval of Construction Plans. In connection with the Project, the Developer, at its sole expense, shall prepare and submit construction plans, drawings, and related documents for each portion of the Project to the appropriate City officials for architectural, engineering or land use review and written approval or permits. The Developer acknowledges that no review or approval by City officials hereunder may be in any way construed by the Developer to replace, override or be in lieu of any required review, inspection, or approval by the City Planning Division, or any other building construction official review or approvals required by any State laws or local ordinances or regulations. Nothing contained in this Agreement indicates or evidences that the City has approved or will approve the Project or any portion thereof. This Agreement does not affect or limit the City’s regulatory powers with regard to the Project, including, without limitation, those relating to building permits or other permits or the payment of fees. As further described in Section 7.1, the City shall have no liability and the Developer shall hold the City harmless with respect to any increases in costs of the Project related to or arising out of delays resulting from the City’s regulatory actions or approvals. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 75425 9 3.3. Construction of the Infrastructure Improvements. The Developer shall acquire, install, construct or otherwise provide the Infrastructure Improvements. The Developer acknowledges and agrees that the City is not responsible for acquiring, installing, constructing or otherwise providing the Infrastructure Improvements. The estimated costs of the Infrastructure Improvements, which form a part of the Eligible Costs, are shown on Exhibit C hereto. 3.4. Milestones of the Project. Certain steps in the development of the Project are listed on Exhibit D attached hereto (collectively, the “Milestones”; each a “Milestone”), together with the dates by which the Developer is obligated to complete the Milestones (collectively, the “Milestone Dates”; each as it relates to a particular Milestone, the “Milestone Date”). The Developer acknowledges and agrees that the City in reserving or offering to make available Tax Increment to pay or reimburse the Eligible Costs necessarily means that certain Tax Increment is not available to pay or reimburse other undertakings or costs for the benefit of the District and that the City reasonably expects additional Tax Increment as a result of completion of the Project. The Developer acknowledges and agrees that conditioning the availability of Tax Increment to pay or reimburse the Eligible Costs on completion or satisfaction of the Milestones by the corresponding Milestone Dates is reasonable. If the Developer is unable to complete or satisfy a Milestone by the corresponding Milestone Date, the Developer shall make a formal written request to the Director of Economic Development, with appropriate supporting material, to extend the Milestone Date and, as appropriate, subsequent Milestone Dates. The Director of Economic Development may, in his or her sole discretion, (i) determine whether such extension is appropriate and, if so, fix a new and superseding Milestone Date and also adjust other subsequent Milestone Dates, along with any other terms or conditions, or (ii) refer the request to the City Commission to either approve the extension and adjust other Milestone Dates, as appropriate, or, in its sole discretion, terminate this Agreement upon thirty (30) days prior written notice, in which case the City will have no obligation to reimburse the Developer hereunder. If this Agreement is terminated as described in this Section 3.4 and the Developer has not received any reimbursement but has recorded the Restrictive Covenants described in Section 3.12, upon request of the Developer or subsequent owner of Phase II of the Project, the City agrees to cooperate with the Developer or subsequent owner of Phase II of the Project to remove the Restrictive Covenants from Lot 6A. 3.5. Prevailing Wage Rates; Competitive Bidding. The Developer understands that the City is obligated to follow certain laws with respect to the expenditure of public funds, which includes Tax Increment. The Developer agrees to comply with laws that govern City contracting obligations, including public procurement laws relating to all of the Infrastructure Improvements, such as, without limitation, laws and rules regarding prevailing wage and solicitation of work on a competitive basis. Without limitation of the foregoing, the Developer agrees that in the awarding of contracts for the Infrastructure Improvements (i) it will, and it will cause its contractor to, publicly bid competitively contracts for each component of the Infrastructure Improvements, and (ii) through its contract with its contractor, it will, in addition to the requirements of Sections 3.9 and 3.10, require its contractor to, pay the Prevailing Wage Rates on such contracts related to the Infrastructure Improvements. The Developer will provide to the City all documentation requested to verify the compliance of the Developer and its contractor with the foregoing requirements. Failure of the Developer or its contractor to bid competitively contracts for each Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 76426 10 component of the Infrastructure Improvements or to require contracts entered into directly with contractors or sub-contractors to include provisions requiring the contractor or sub-contractor to pay the Prevailing Wage Rates on the work related to the Infrastructure Improvements will be considered a breach of this Agreement and the City will be entitled, at its discretion and without obligation, to exercise any and all measures to assure compliance and retroactive compensation plus interest to workers not paid in accordance with this Agreement, and recovery of any penalty or fine assessed by the State attributed to any failure to pay the Prevailing Wage Rates. Additionally, the Developer acknowledges that a violation of these requirements may, in the City’s sole discretion, cause the Infrastructure Improvements to be ineligible for the application of Tax Increment, in which case the City will have no obligation to reimburse or pay the Developer hereunder. 3.6. Utilities. The Developer shall not interfere with, or construct any improvements over, any public street or utility easement without the prior written approval of the City. All connections to public utility lines and facilities shall be subject to approval of the City and any private utility company involved. The Developer at its own expense shall replace any public facilities or utilities damaged during the Project by the Developer or its agents or by others acting on behalf of or under their direction or control of the Developer. 3.7. Permits and Compliance With Laws. The Developer will obtain, in a timely manner, all required permits, licenses and approvals, and will meet all requirements of all local, state and federal laws, rules and regulations which must be obtained or met in connection with the acquisition and construction of the Project, including the Infrastructure Improvements. Without limiting the foregoing, the Developer will request and seek to obtain from the City or other appropriate governmental authority all necessary land use, zoning, and building permits. The Developer will comply in all material respects with all Environmental Laws and Regulations applicable to the construction, acquisition, and operation of the Project, including the Infrastructure Improvements, will obtain any and all necessary environmental reviews, licenses or clearances under, and will comply in all material respects with, Environmental Laws and Regulations. In addition, the Developer shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances related to worker safety including but not limited to 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, and the Americans with Disabilities Act. 3.8. Easements. To the extent that the Infrastructure Improvements are to be located on the Land, the Developer hereby agrees to grant to the City and applicable utility companies from time to time such easements, rights-of-way and similar licenses in a form required by the City and as are reasonably necessary to permit the City to own, operate and maintain the Infrastructure Improvements. 3.9. Nondiscrimination and Equal Pay Affirmation. The Developer agrees to require its contractor(s) to be in compliance with the City’s Nondiscrimination and Equal Pay Affirmation attached hereto as Exhibit F, as well as Title 49, Montana Code Annotated, regarding activities related to the Project, including the Infrastructure Improvements. The Developer agrees that in its contracts with its contractors the Developer’s contractor will be required to require its subcontractors to comply with the City’s Nondiscrimination and Equal Pay Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 77427 11 Affirmation attached hereto as Exhibit F, as well as Title 49, Montana Code Annotated, regarding activities related to the Project. The Developer agrees to provide copies of all such contracts upon request by the City. 3.10. Worker’s Compensation Insurance. The Developer shall provide in its construction contracts related to the Project with all of its respective contractors that such contractors are to be covered by a Worker’s Compensation insurance program with the State, a private insurance carrier, or an approved self-insurance plan in accordance with State law. 3.11. Walkaway Provision. The Developer shall have the option, in its sole discretion and for any reason, to cease developing the Project and terminate this Agreement without penalty at any time prior to the Developer submitting any request for reimbursement or payment to the City (“walkaway provision”). If the Developer exercises this walkaway provision, this Agreement shall immediately terminate and all rights and obligations of the Parties under this Agreement shall cease, except for those rights and obligations specifically identified in this Agreement as surviving termination. If the Developer exercises this walkaway provision, the Developer automatically waives any and all rights to reimbursement or payment from the City under this Agreement. This walkaway provision shall not limit or prohibit any rights, claims, or recourse that the City may have in connection with the Project. The Parties expect that, if the Developer determines to exercise this walkaway provision, the Restrictive Covenants will not be recorded against Phase II of the Project or Lot 6A. If the Developer records the Restrictive Covenants and, at a later date, determines to exercise the walkaway provision, the City agrees to cooperate with the Developer to remove the Restrictive Covenants from Lot 6A. 3.12. Workforce Housing Covenants. The Developer agrees that, as a condition to receiving any reimbursement under this Agreement, the Developer will file a restrictive covenant on Lot 6A, providing that any residential housing units developed on Lot 6A (the “Workforce Housing Units”) will be restricted for a period not less than 50 years for use as workforce housing affordable to households with incomes equal to 80% area median income (“AMI”). As a condition to reimbursement hereunder, the Developer shall record the restrictive covenants, substantially in the form attached hereto as Exhibit G (the “Restrictive Covenants”) against Lot 6A. The Restrictive Covenants must (i) run with the land, (ii) bind, for a period not less than 50 years from the date of issuance of a certificate of occupancy with respect to Phase II of the Project, the Workforce Housing Units to be used as residential rental units affordable at 80% AMI, with rental prices tied to affordability at 80% AMI, and (iii) provide that a third-party or government entity with experience in managing affordable housing units must manage the rental of the Workforce Housing Units. In addition, the Restrictive Covenants will provide that the Workforce Housing Units are prohibited from being used, rented or made available as short term rentals, as that term is defined in the Bozeman Municipal Code. The affordability requirements in the Restrictive Covenants will be index-based, tied to AMI, and pursuant to the Restrictive Covenants, permissible rental prices of the Workforce Housing Units will be based on the most recent affordability data available through the Housing and Urban Development’s Housing Availability Data System or other similar affordability data that is available at the time of rental. The Developer’s covenants described in this Section 3.12 are referred to herein as the “Workforce Housing Covenants.” The Developer acknowledges and agrees that the Workforce Housing Covenants are fundamental to the City’s agreements hereunder. The Parties acknowledge that, as development proceeds at Lot 6A, it may be necessary or desirable to record Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 78428 12 other instruments to implement the Workforce Housing Covenants and provide for the affordability of the Workforce Housing Units, either in addition to or in replacement of the Restrictive Covenants to be recorded as a condition to reimbursement of the Developer under this Agreement, and the Parties agree to cooperate with respect to recording such other instruments if necessary or desirable. The Developer acknowledges that, as determined by the City, one-person household pricing relates to studios, two-person household pricing relates to one bedroom units, three-person household pricing relates to two bedroom units, and four-person household pricing relates to three bedroom units. Section 4. Housing Choice Vouchers and Phase I of the Project. Five of the residential units developed as Phase I of the Project must accept Housing Choice Vouchers (HCV) as a form of rental payment for those units targeting 50% AMI or below. In connection with the five units accepting HCV as a form of rental payment, the property owner with respect to Phase I of the Project must participate in the HCV program and comply with all program requirements, including but not limited to rent reasonableness standards. In the event that the rent charged to a tenant receiving HCV assistance exceeds the applicable payment standard established by the U.S. Department of Housing and Urban Development (HUD), the rent will be adjusted to the Fair Market Rents (FMRs) or payment standard set by HUD for tenants utilizing the HCV program. City Undertakings. Subject to satisfaction of all conditions in Section 5 below, and solely from Tax Increment, and subject to the prior lien of the Series 2020 Bonds and the debt service reserve account therefor, the City agrees to reimburse the Developer in an amount equal to the amount of the Eligible Costs (not to exceed $3,024,061). Section 5. Reimbursement for the Eligible Costs. Reimbursement of the Developer for Eligible Costs shall be subject to the following conditions and in accordance with the following procedures: 5.1. Conditions and Procedure. (a) The Developer shall complete or satisfy Milestones by the applicable Milestone Dates, as such dates may have been extended pursuant to Section 3.4 hereof. (b) Reimbursement by the City for costs of the Infrastructure Improvements must be based on paid invoices for costs incurred by the Developer, its contractors and subcontractors or utility companies, which the Developer must supply to the City. The City may reject, in its sole discretion, any invoice related to the Infrastructure Improvements. The City will notify the Developer of any rejected invoice and the reason it was rejected. (c) At the time of the Developer’s request for reimbursement (i) all of the Developer’s representations as set forth in Section 2.2 must be true and correct, (ii) the Developer must not be in breach of any covenant or undertaking set forth in Section 3, and (iii) there must be adequate Tax Increment on hand to satisfy all financial obligations related to the Series 2020 Bonds and the debt service reserve account for the Series 2020 Bonds such that Tax Increment is available to reimburse the Developer. (d) The Developer must provide evidence satisfactory to the City that the Restrictive Covenants have been recorded with the Gallatin County Clerk and Recorder’s Office with Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 79429 13 respect to Lot 6A and have not been modified, amended or rescinded other than with the prior written consent of the City. (e) The Developer must provide evidence satisfactory to the City that a regulatory agreement or similar instrument restricting the use of Lot 4A to affordable housing has been recorded with the Gallatin County Clerk and Recorder’s Office. (f) The Developer shall have been issued a certificate of occupancy for the Project. (g) When the above conditions have been met, the Developer shall submit to the Director of Economic Development a certificate substantially in the form attached hereto as Exhibit E, together with such supporting documentation as may be requested by the City. 5.2. Failure to Satisfy Conditions. If any of the conditions described in Section 5.1 are not satisfied in the determination of the City, the City shall have no obligation to reimburse the Developer, and the City’s determination to refrain from reimbursing, or its inability to reimburse, any of the Eligible Costs shall not be or result in a default of this Agreement. Section 6. Covenants to Pay Taxes. 6.1. Taxes. The Developer shall pay or cause to be paid when due and prior to the imposition of penalty all Taxes and all installments of any special assessments payable with respect to the Project and any improvements thereto or extension thereof. 6.2. Maintenance of Land and Project. The Developer, for itself and its successors and assigns, agrees to use its commercially reasonable best efforts to maintain and operate the Project so as to be able at all times to pay promptly and when due all property taxes levied with respect to the Project. 6.3. Injunction; Specific Performance. The Parties agree that, in the event of a breach of this Section 6 by the Developer or its successors or assigns, the City would suffer irreparable harm. Therefore, in the event the Developer or its successors or assigns fails to comply with the provisions of this Section 6, the Developer agrees that the City may pursue any remedy at law or in equity, including, without limitation, the remedies of injunction and specific performance. Section 7. Indemnification and Insurance. 7.1. Indemnification. The Developer releases the City and all City Commission members, board members, officers, agents, servants and employees of the City (the “Indemnified Parties”) from, and covenants and agrees that the Indemnified Parties shall not be liable for, and agrees to indemnify, defend and hold harmless the Indemnified Parties against, any loss, damage, cost (including reasonable attorneys’ fees), claim, demand, suit, action or other proceeding whatsoever (i) arising or purportedly arising out of, or resulting or purportedly resulting from, the acquisition and construction of the Project, including the Infrastructure Improvements, any violation by the Developer of any agreement, condition or covenant of this Agreement, the ownership, maintenance and operation of the Project, or the presence on any portion of the Land, of any dangerous, toxic or hazardous pollutants, contaminants, chemicals, waste, materials or Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 80430 14 substances; or (ii) which is proximately caused by the Developer or its officers, agents, contractors, consultants or employees. 7.2. Insurance. Developer shall keep and maintain the Project at all times insured against such risks and in such amounts, with such deductible provisions, as are customary in connection with facilities of the type and size comparable to the Project, and the Developer shall carry and maintain, or cause to be carried and maintained, and pay or cause to be paid timely the premiums for direct damage insurance covering all risks of loss, including, but not limited to, the following: 1. fire 2. extended coverage perils 3. vandalism and malicious mischief 4. boiler explosion (but only if steam boilers are present) 5. collapse on a replacement cost basis in an amount equivalent to the Full Insurable Value thereof. “Full Insurable Value” shall include the actual replacement cost of the Project, exclusive of foundations and footings, without deduction for architectural, engineering, legal or administrative fees or for depreciation. The policies required by this Section 7.2 shall be subject to a no coinsurance clause or contain an agreed amount clause, and must contain a deductibility provision not exceeding $100,000. Subject to the terms of any mortgage relating to the Project, policies of insurance required by this Section 7.2 shall insure and be payable to Developer and shall provide for release of insurance proceeds to Developer for restoration of loss. The City shall be furnished certificates showing the existence of such insurance. In case of loss, Developer is hereby authorized to adjust the loss and execute proof thereof in the name of all parties in interest. During construction of the Project, any and all of the foregoing insurance policies may be maintained by the Developer’s contractor; provided that once the Project is placed into service, Developer shall maintain all of the foregoing insurance policies. In addition to and independent of the above, the Developer shall at the Developer’s expense secure liability insurance through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana. The insurance shall not contain any exclusion for liabilities specifically assumed by the Developer in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City in relation to construction of the Project and the Infrastructure Improvements without limit and without regard to the cause therefore. The Developer must furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate The above amounts shall be exclusive of defense costs. The City, its officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non-contributory Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 81431 15 basis on the Commercial General Liability policy. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. The City must approve all insurance coverage and endorsements prior to the Developer commencing work on Project or Infrastructure Improvements. Developer must notify the City within two (2) business days of Developer’s receipt of notice that any required insurance coverage will be terminated or Developer’s decision to terminate any required insurance coverage for any reason. Section 8. General Provisions. 8.1. Conflicts of Interest; City’s Representatives Not Individually Liable. The Developer represents that it does not employ, retain, or contract with an officer or employee of the City and that no member, officer or employee of the City has a personal or financial interest, direct or indirect, in this Agreement or in the Project, or a financial interest in the Infrastructure Improvements. No member, officer or employee of the City shall be personally liable to Developer in the event of any default under or breach of this Agreement by the City, or for any amount that may become due to Developer for any obligation issued under or arising from the terms of this Agreement. 8.2. Rights Cumulative. The rights and remedies of the Parties of this Agreement, whether provided by law or by this Agreement, shall be cumulative, and the exercise by any Party hereto of any one or more of such remedies shall not preclude the exercise by such Party, at the same or different times, of any other remedy for the same default or breach or of any of its remedies for any other default or breach of the Party subject to the limitation of remedies provided herein. No waiver made by such Party with respect to the performance or the manner or time thereof, of any obligation under this Agreement, shall be considered a waiver with respect to the particular obligation of the other Party or a condition to its own obligation beyond those expressly waived in writing and to the extent thereof, or a waiver in any respect in regard to any other rights of the Party making the waiver of any obligations of the other Party. Delay by a Party hereto instituting or prosecuting any cause of action or claim hereunder shall not be deemed a waiver of any rights hereunder. 8.3. Term of Agreement. (a) This Agreement shall remain in effect until the earlier of (i) the date that is 10 days after the date the City reimburses the Developer in full hereunder, or (ii) the termination of this Agreement pursuant to Sections 5.2 or 3.11; provided that this Agreement may be earlier terminated by the City in its sole discretion at any time after failure by the Developer to complete or satisfy a Milestone by the applicable Milestone Payment Date (as such date may be extended as described in Section 3.4). (b) Notwithstanding the foregoing provisions of this Section 8.3, (i) Sections 6, 7, and 8 of this Agreement shall in all events survive the termination of this Agreement, and (ii) if the Developer is reimbursed under this Agreement, Section 3.12 shall survive the termination of this Agreement. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 82432 16 8.4. Limitation on City Liability. No agreements or provisions contained in this Agreement nor any agreement, covenant or undertaking by the City contained in any document in connection with the Project, including the Infrastructure Improvements, or the Eligible Costs shall give rise to any pecuniary liability of the City or a charge against its general credit or taxing powers, or shall obligate the City financially in any way except with respect to then-available Tax Increment. No failure of the City to comply with any term, condition, covenant or agreement herein shall subject the City to liability for any claim for damages, costs or other financial or pecuniary charge except to the extent that the same can be paid or recovered from then-available Tax Increment; and no execution on any claim, demand, cause of action or judgment shall be levied upon or collected from the general credit, general funds or taxing powers of the City (except as such constitute then-available Tax Increment). Nothing herein shall preclude a proper party in interest from seeking and obtaining specific performance against the City for any failure to comply with any term, condition, covenant or agreement herein; provided that no costs, expenses or other monetary relief shall be recoverable from the City except as may be payable from the Tax Increment. This Agreement shall not constitute or be construed to give rise to a debt of the City. 8.5. Assignment. This Agreement is unique among the City and the Developer and no Party may assign any rights or privileges, or delegate any duties or obligations under this Agreement, without first obtaining the written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing or any other provision herein, the Parties acknowledge and agree that the investor limited partner with respect to Phase I of the Project may require certain amendments or modifications to this Agreement, which may include the assignment by Developer of this Agreement to Midtown Aspen LLC, a Delaware limited liability company, or another affiliate of Developer in relation to the tax credit financing for Phase I of the Project. 8.6. Successors Bound By Agreement; No Third Party Beneficiary; No Property Interest. Subject to compliance with Section 8.5, this Agreement will inure to the benefit of and be binding upon the Parties to this Agreement and their respective successors in interest and permitted assignees. 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. This Agreement, by itself, does not create or give rise to a property interest in the Land or the Project. 8.7. Prior Agreements. This Agreement supersedes, merges and voids any and all prior discussions, negotiations, agreements and undertakings between the Parties with respect to the subject matter of this Agreement. The Parties waive and release each other from any claims, actions, or causes of action that relate in any manner to any prior discussions, negotiations, agreements and undertakings between the Parties with respect to the subject matter of this Agreement. 8.8. Entire Agreement. This Agreement, including any exhibits and attachments hereto, embodies the entire agreement and understanding of the Parties with respect to its subject matter. All Parties shall be prohibited from offering into evidence in any arbitration or civil action any terms, conditions, understandings, warranties, statements or representations, whether Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 83433 17 oral or written, with respect to the subject matter of this Agreement and that are not contained in this Agreement. 8.9. Amendments, Changes and Modifications. This Agreement may be amended and any of its terms may be modified only by written amendment authorized and signed by the Parties hereto. 8.10. Headings. The headings of articles and sections in this Agreement are inserted for convenience of reference only and do not limit or amplify the terms and provisions of the Agreement in any manner. The headings will be ignored and will not affect the construction of any provisions of this Agreement. 8.11. Notice. Any formal notice, demand or communication required or permitted by the terms of this Agreement to be given to the City or the Developer will be in writing and will be delivered to such Party either: (i) by personal hand-delivery; (ii) by depositing the same in the United States mail, certified mail with return receipt requested; (iii) by depositing the same with a nationally recognized overnight delivery service; or (iv) with respect to notice to the Developer, by email (in which case the notice shall be effective as of the date of confirmed delivery). Notice will be deemed complete upon receipt of the notice pursuant to any of the foregoing methods of notice. Notices and communications to the parties must be addressed to and delivered at the following addresses: If to City: City of Bozeman Attention: Bozeman City Manager 121 N. Rouse Ave. P.O. Box 1230 Bozeman, MT 59771 If to Developer: Boundary Development, LLC Attention: Joseph Walsh 233 E. Main Street, Suite 404 Bozeman, MT 59715 Email: joe@boundarydev.com The City and the Developer, by notice given hereunder, may designate different addresses to which subsequent notices, certificates or other communications should be sent. 8.12. Severability. If any provision of this Agreement is declared void or held invalid, such provision will be deemed severed from this Agreement and the remaining provisions of this Agreement will otherwise remain in full force and effect. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 84434 18 8.13. Duplicate Originals or Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. 8.14. Place of Performance. The place of performance of this Agreement will be in the City of Bozeman, Gallatin County, Montana. 8.15. Governing Law. This agreement and the legal relations between the Parties hereto will be governed by and construed in accordance with the laws of the State of Montana, without giving effect to any choice of law statutes, rules, or principles. 8.16. Dispute Resolution. (a) Any claim, controversy, or dispute between the Parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each Party duly authorized to execute settlement agreements. Upon mutual agreement of the Parties, the Parties may invite an independent, disinterested mediator acceptable to the Parties to assist in the negotiated settlement discussions. (b) If the Parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the applicable law and the provisions of this Agreement. 8.17. Further Assurances and Corrective Instruments. The Parties agree that they will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as may reasonably be required for correcting any inadequate or incorrect description of the Project, including the Infrastructure Improvements, or the Eligible Costs or for carrying out the expressed intention of this Agreement. 8.18. Reports/Accountability/Public Information. The Developer agrees to develop and/or provide documentation as requested by the City demonstrating the Developer’s compliance with the requirements of this Agreement. The Developer shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the monies reimbursed to the Developer pursuant to this Agreement were used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Developer shall not issue any statements, releases or information for public dissemination regarding this Agreement or the work contemplated hereunder without prior written approval of the City. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 85435 19 IN WITNESS WHEREOF, the Parties hereto have caused this Development Agreement to be executed as of the date first set forth above. CITY OF BOZEMAN, MONTANA By: _______________________________________ Printed Name: ______________________________ Title: City Manager [Signature Page to Development Agreement] Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 Chuck Winn 86436 20 BOUNDARY DEVELOPMENT, LLC, a Montana limited liability company By: Name: Joseph Walsh Title: Authorized Signatory [Signature Page to Development Agreement] Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 87437 A-1 EXHIBIT A PROJECT COSTS Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 88438 B-1 EXHIBIT B LEGAL DESCRIPTION OF THE LAND Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 89439 C-1 EXHIBIT C ELIGIBLE COSTS Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 90440 D-1 EXHIBIT D MILESTONES MILESTONE MILESTONE DATE PHASE I OF THE PROJECT: Site Plan Submittal to the City Complete Development Building Permit Submittal 7/1/2025 Start of Development Construction 12/31/2025 Completion of Development Construction (occupancy) 7/1/2027 PHASE II OF THE PROJECT: Site Plan Submittal to the City Complete Development Building Permit Submittal 7/1/2025 Start of Development Construction 12/31/2025 Completion of Development Construction (occupancy) 7/1/2027 Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 91441 E-1 EXHIBIT E FORM OF DEVELOPER CERTIFICATE AND REQUEST TO: City of Bozeman, Montana FROM: Boundary Development, LLC (the “Developer”) SUBJECT: Request for Reimbursement This Developer Certificate is delivered in accordance with the Development Agreement between the Developer and the City of Bozeman, Montana, dated as of May 21, 2024 (the “Development Agreement”). Capitalized terms used but not otherwise defined herein shall have the respective meanings given such terms in the Development Agreement. Pursuant to Section 5.1 of the Development Agreement, the undersigned hereby certifies on behalf of the Developer that: (a) the expenditures for which reimbursement is requested are listed in summary form in the attached schedule headed “Project Expenditures;” (b) invoices paid by the Developer corresponding to the expenditures set forth on the attached Project Expenditures Schedule are appended to the attached schedule headed “Project Invoices;” (c) the amounts for which reimbursement is requested have been paid by the Developer to the City for Project Fees and Charges or to contractors, subcontractors, materialmen, engineers, architects or other persons who or that have performed necessary or appropriate services or supplied necessary or appropriate materials for the acquisition, construction, renovation, equipping, and installation of the Infrastructure Improvements; (d) with respect to the Infrastructure Improvements, the contractor and subcontractors were solicited and retained competitively and all persons performing work on the Infrastructure Improvements were paid the Montana prevailing wage for such work; (e) the reimbursement of the amounts requested will not result in a breach of any of the covenants of the Developer contained in the Development Agreement; and (f) no litigation has been instituted or is threatened with regard to any amounts sought to be reimbursed, and binding and enforceable lien waivers have been obtained from all contractors, subcontractors, materialmen, and others with regard to all work related to any amounts for which reimbursement is requested. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 92442 E-2 Based on the attached invoices, the Developer hereby requests reimbursement for the Eligible Costs in the amount of $[_______].1 The Developer represents that all of the representations of the Developer in Section 2.2 of the Development Agreement are true and correct as of the date hereof and the Developer is not in default of the performance of any of its undertakings or obligations under Section 3 of the Development Agreement as of the date hereof. Dated: _____________, 20__ Boundary Development, LLC By: Authorized Developer Representative 1 Lesser of $3,024,061 or total cost. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 93443 F-1 EXHIBIT F Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 94444 G-1 EXHIBIT G [Form of Affordable Housing Restrictive Covenant and Agreement] Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 95445 Declaration of Restrictive Covenants 1 Original to: City of Bozeman Attn: City Clerk PO Box 1230 Bozeman, MT 59771-1230 DECLARATION OF RESTRICTIVE COVENANTS This Declaration is made this _____ day of ______________, 20__ by BOUNDARY DEVELOPMENT, LLC [address] (“Declarant”). RECITALS A. Declarant owns certain real property described as follows (the “Property”): [legal description] B. It is the intent of Declarant to meet the conditions of the Development Agreement (the “Agreement”), dated as of [________], by and between Declarant and the City of Bozeman, Montana (the “City”); and C. Declarant agrees that it receives a significant benefit from the Agreement; and D. To satisfy the requirements of the Agreement, Declarant desires to place covenants, conditions and restrictions upon the Property for the use and benefit of Declarant and the City. NOW, THEREFORE, Declarant hereby declares: 1. Provision of Income Restricted Housing. a. Declarant agrees that all of the residential rental units developed as part of Phase II of the Project (as defined in the Agreement) (the “Units”) will be restricted for a period not less than 50 years for use as housing affordable to households with incomes equal to 80% of the area Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 96446 Declaration of Restrictive Covenants 2 median income (“AMI”), as reported annually for single persons and households of various sizes by the United States Department of Housing and Urban Development, or by any successor United States Government department, agency, or instrumentality, for the Primary Metropolitan Statistical Area which includes the City. b. The sale and management of the Units shall be administered by a third-party or government entity with experience in managing affordable housing units, or other entity acceptable to the City. c. Throughout the term of this Declaration, the Units must be affordable to households with income no greater than 80% of the AMI. All rental prices for the Units must be based on the most recent affordability data available through the Housing and Urban Development’s Affordability Data System for the City or similar affordability data available at the time of rental. 2. Prohibition on Use as Short Term Rentals. The Units are prohibited from being used, rented, or made available as short term rentals, as the term is defined in the Bozeman Municipal Code. 3. Term. This Declaration shall remain in place and be enforceable for a term of 50 years from the date of the issuance of a certificate of occupancy with respect to the Units and shall inure to the benefit of Declarant, each owner of property, the City, and their respective legal representatives, heirs, successors, or assigns, subject to the right of amendment provided in this Article. 4. Amendment. This Declaration may not be amended without the prior written consent of the Bozeman City Commission. Any amendment shall become effective only upon the filing of such amendment in the records of the Clerk and Recorder of Gallatin County, Montana. 5. Enforcement. The Declarant, the City, or any owner of real property within the Property may take action to enforce the provisions of this Declaration. Enforcement may be by injunction, declaratory judgment, action for damages, or any other legal claims, all of which shall be cumulative and non-exclusive. The prevailing party in any action shall be entitled to recover, in addition to other damages, its reasonable litigation expenses, including attorney’s fees, as may be awarded in the judgment of the court. 6. Covenants to Run with the Land. The Declarant intends that the terms of this Declaration shall with the land and shall continue in effect with respect to the entire Property notwithstanding any partition or division of the Property. 7. Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no way affect any other provisions, which shall remain in full force and effect. 8. Choice of Law and Venue. This Declaration of Covenants, Conditions, and Restrictions shall be governed by the laws of Montana and venue shall be in Gallatin County, Montana. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 97447 Declaration of Restrictive Covenants 3 IN WITNESS WHEREOF the DECLARANT has signed this instrument and arranged for its recordation in the real property records of Gallatin County, Montana. BOUNDARY DEVELOPMENT, LLC By:_______________________________________ Title:_____________________________________ STATE OF ____________ ) :ss COUNTY OF __________ ) This instrument was signed or acknowledged before me on _________________ by ___________, as ______________ of ____________________. ____________________________________ (NOTARIAL SEAL) Printed Name:________________________ Notary Public for the State of ___________ Residing at __________________________ My commission expires ________________ Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 98448 Declaration of Restrictive Covenants - 4 - Acknowledged by: CITY OF BOZEMAN ____________________________________ By: City Manager ATTEST: ________________________________ Mike Maas, City Clerk STATE OF MONTANA ) :ss COUNTY OF GALLATIN ) This instrument was signed or acknowleged before me on _______________ by ______________ and Mike Maas, acting in the capacities of City Manager and City Clerk, respectively, of the City of Bozeman, Montana. . ____________________________________ (NOTARIAL SEAL) Printed Name:________________________ Notary Public for the State of ___________ Residing at __________________________ My commission expires ________________ Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 99449 Memorandum REPORT TO:City Commission FROM:Greg Sullivan, City Attorney Kelley Rischke, Assistant City Attorney SUBJECT:Authorize the City Manager to sign a Waiver of Affordable Housing Provision in Laurel Glen Annexation Agreement MEETING DATE:February 25, 2025 AGENDA ITEM TYPE:Agreement - Property RECOMMENDATION:Authorize the City Manager to sign a Waiver of the enforcement of an affordable housing provision found within the Laurel Glen Annexation Agreement because the terms obligating developers to provide affordable housing cannot be ascertained. STRATEGIC PLAN:4.1 Informed Conversation on Growth: Continue developing an in-depth understanding of how Bozeman is growing and changing and proactively address change in a balanced and coordinated manner. BACKGROUND:In 2003, the City executed an annexation agreement with landowners Chuck Hinesley, representing the Hinesley Family Limited Partnership, and Sydney and Ethel Dykstra, for a parcel of land known as the Laurel Glen Annexation. The annexation agreement contains the following provision: 13. Affordable Housing The landowners hereby acknowledge that annexation and development of the subject property will have an impact on the cost and availability of housing stock in the Bozeman area. The landowners have prepared and submitted a written letter evidencing its intent to develop and offer housing units which will be within Single Family Affordability Limits, as that term has been defined in H.U.D. guidelines, which letter by reference is made a part of this agreement and incorporated herein. One landowner of lots subject to the Laurel Glen Annexation Agreement discovered the affordable housing provision while attempting to sell some of their property. The landowner did not have a copy of the referenced letter and requested a copy of the letter from the City. After extensive efforts to locate the letter referenced in the affordable housing provision of the Laurel Glen Annexation Agreement, the City and landowner are unable to locate it. The letter was not attached to the recorded Annexation Agreement. The City was unable to locate the letter in its Community Development records or in the City Clerk's archives. Without the letter, the City cannot ascertain 100 the terms of any obligations to provide affordable housing within the annexed land. Notably, the Laurel Glen subdivision is largely already built out. To the City's knowledge, no affordable housing has ever been required or provided as it has been developed. The landowner has requested the City waive the applicability and enforcement of the affordable housing provision, leaving the rest of the terms of the Laurel Glen Annexation Agreement unaffected. Please find the 2003 Annexation Agreement and the proposed Waiver of Affordable Housing Provision in Laurel Glen Annexation Agreement attached. The waiver states that the City forever waives its ability to enforce the affordable housing provision, even if the letter is later found. Because the City is unable to locate the letter and to settle the matter for this and future landowners within the area annexed by the Laurel Glen Annexation Agreement, the City Attorney recommends authorizing the City Manager to sign the attached Waiver. UNRESOLVED ISSUES:None. ALTERNATIVES:Do not authorize the City Manager to sign the Waiver. FISCAL EFFECTS:None. Attachments: Laurel Glen Annexation Agreement.pdf Rosa III Waiver of Affordable Housing Provision.pdf Report compiled on: February 14, 2025 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 Return to: City Manager Bozeman City Hall 121 N. Rouse Avenue Bozeman, MT 59715 1 WAIVER OF AFFORDABLE HOUSING PROVISION IN LAUREL GLEN ANNEXATION AGREEMENT THIS WAIVER OF AFFORDABLE HOUSING PROVISION IN LAUREL GLEN ANNEXATION AGREEMENT (this “Waiver”) is made and given this _____ day of February, 2025, by the CITY OF BOZEMAN, MONTANA, a duly organized and existing municipal corporation and political subdivision of the State of Montana (the “City”), with offices at 121 N. Rouse Avenue, Bozeman, Montana 59715, for the purpose of, and on the terms and conditions, set forth herein. RECITALS A. In connection with the Laurel Glen Annexation (as defined in the Annexation Agreement referenced below), the City and Chuck Hinesley, representing the Hinesley Family Limited Partnership, and Sydney and Ethel M. Dykstra, executed the Laurel Glen Annexation Agreement dated September 30, 2003, and recorded February 2, 2004, under Document No. 2139301, records of Gallatin County, Montana (the “Annexation Agreement”), with respect to real property situated in Gallatin County, Montana, more particularly described as follows (the “Annexed Tract”): A parcel of land being described as Lots 1, 2 and 3, Minor Subdivision No. 201, according to the plat thereof, on file and of record in the office of the Clerk and Recorder, Gallatin County, Montana, and all of Durston Road as dedicated on said Minor Subdivision No. 201, and all located in the East Half of the Southwest Quarter and the West Half of the Southeast Quarter of Section 4, Township 2 South, Range 5 East of P.M.M., Gallatin County, Montana, and more particularly described as: Beginning at the South Quarter comer of said Section 4; thence westerly 268° 14' 44", assumed azimuth from north, 1337.41 feet along the south line of the Southwest Quarter of said Section 4; thence northerly 000° 45' 31" azimuth 2633.98 feet along the west line of said East Half of the Southwest Quarter; thence easterly 089° 18' 14" azimuth 2657.21 feet along the north line of the Southwest Quarter and the north line of the Southeast Quarter of said Section 4; thence southerly 180° 43' 38" azimuth 2620.28 feet along the east line of said West Half of the Southeast Quarter; thence westerly 269° 46' 58" azimuth 1321.88 feet along the south line of the Southeast Quarter of said Section 4 to the point of 121 2 beginning. Said tract being 159.7130 acres, more or less, along with and subject to all easements of fact and record. B. Section 13 of the Annexation Agreement addresses the intent to develop and offer certain housing units on the Annexed Tract, as follows (the “Affordable Housing Provision”): 13. Affordable Housing The Landowners hereby acknowledges that annexation and development of the subject property will have an impact on the cost and availability of housing stock in the Bozeman area. The Landowners have prepared and submitted a written letter evidencing its intent to develop and offer housing units which will be within Single Family Affordability Limits, as that term has been defined under H.U.D. guidelines, which letter by reference is made a part of this agreement and incorporated herein. C. Notwithstanding diligent efforts by the City and the Landowners, the written letter referenced in Section 13 (the “Letter Agreement”) cannot be located and is deemed lost, which means the terms and conditions regarding the development of the housing units pursuant to the Letter Agreement cannot be ascertained. D. The Annexed Tract has been substantially developed by the Landowners or by the Landowners’ successors in title to various portions of the Annexed Tract. E. With respect to prior, current and future development of projects or developments within the Annexed Tract, the City has agreed to waive the application and enforcement of the Affordable Housing Provision. WAIVER 1. Waiver of Affordable Housing Provision. In order clarify the application of the Affordable Housing Provision in the Annexation Agreement with respect to completed or contemplated projects within the Annexed Tract, and to facilitate the orderly development of future projects within the Annexed Tract, the City does hereby irrevocably waive and forego the application or enforcement of the Affordable Housing Provision with respect to any past, current or future projects or developments within the Annexed Tract. The City agrees that this waiver will remove or eliminate any doubt about Section 13 of the Annexation Agreement and the terms and conditions of the missing or lost Letter Agreement with respect to any lots or tracts of real property within the Annexed Tract, which benefits the City, as well as the owners and developers of projects within the Annexed Tract. Accordingly, this Waiver is and shall remain applicable to the Annexed Tract even if the Letter Agreement is discovered or located after the execution and delivery of this Waiver. 2. Binding Effect of Waiver. This Waiver is independent from all other agreements, is supported by sufficient independent consideration to which the City is a party, shall constitute a covenant that runs with all of the lots or tracts of real property within the Annexed Tract, shall be binding upon the City and its successors and assigns, and shall be recorded in the office of the County Clerk and Recorder of Gallatin County, Montana. The current and future owners of lots or tracts of real property within the Annexed Tract shall be entitled to rely on this Waiver and the 122 3 City’s agreement to waive and forego the enforcement of the Affordable Housing Provision. Other than the Affordable Housing Provision, the remaining terms and conditions of the Annexation Agreement shall remain in full force and effect. 3. Governing Law and Venue. The Waiver shall be construed under and governed by the laws of the State of Montana. In the event of litigation, the venue for such action shall be the Eighteenth Judicial District Court, in and for the County of Gallatin, State of Montana. IN WITNESS WHEREOF, the City has caused this Waiver to be executed the day and year set forth above. CITY OF BOZEMAN By: ______________________________________ City Manager ATTEST: _____________________________________ City Clerk STATE OF MONTANA ) : ss. County of Gallatin ) This instrument was acknowledged before me on this ______ day of February, 2025, by _______________________________ and _______________________________, as the City Manager and Clerk of the City of Bozeman, Montana. ________________________________________ Notary Public 123 Memorandum REPORT TO:City Commission FROM:Gail Jorgenson, GIS Program Manager Jon Henderson, Assistant City Manager SUBJECT:Authorize the City Manager to Sign a Professional Services Agreement with Ayres Associates Inc for Annual Aerial Photography Data Acquisition MEETING DATE:February 25, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign a Professional Services Agreement with Ayres Associates Inc for Annual Aerial Photography Data Acquisition STRATEGIC PLAN:2.2 Infrastructure Investments: Strategically invest in infrastructure as a mechanism to encourage economic development. BACKGROUND:The City of Bozeman regularly uses aerial photography and planimetric information to support regulatory, land management, planning, and engineering projects in addition to basemaps made available through a wide variety of internet mapping applications which supports public access to current information. This project will update all aerial imagery for the entire 78.7 square mile planning boundary and sidewalks within Bozeman city limits (map included in Attachment A of the attached request for proposals). The desired flight dates are between April 1st and April 30th, 2025 with project completion within 90 days from photo acquisition. Ayres Associates was selected through a competitive RFP process for professional services. UNRESOLVED ISSUES:None. ALTERNATIVES:As directed by the City Commission. FISCAL EFFECTS:The total project cost is $65,000. Adequate funding exists for this project within the adopted FY25 Strategic Services budget. Attachments: Professional Service Agreement With Ayres Associates Inc for Annual Aerial Photography Data Acquisition.pdf Report compiled on: January 31, 2025 124 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 202__ (“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, _Ayres Associates Inc_, _5201 E. Terrace Drive Suite 200, Madison, WI 53715_, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Attachment C and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon and will terminate two years (730 days) after the date of its execution, unless earlier terminated in accordance with this Agreement. 3. Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, 125 and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. In the event that, during the term of this Agreement, any labor problems or disputes of any type arise or materialize which in turn cause any services to cease for any period of time, Contractor specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. 126 Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes, or any delays or stoppages of work associated with such problems or disputes. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. 127 Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury per accident; and • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 128 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. 129 d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Gail Jorgenson, GIS Program Manager or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be _Zachary Nienow_ or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or 130 communication to other designated Contractor personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non- discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. 131 Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 16. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 17. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 18. Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 19. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable 132 attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 21. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 22. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 23. Headings: The headings used in this Agreement are for convenience only and are not to be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 24. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 25. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 26. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 28. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 133 29. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 30. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. 31. Extensions: this Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than three years after the date of its execution (1095 days). **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** 134 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. CITY OF BOZEMAN, MONTANA CONTRACTOR (Type Name Above) By________________________________ By_________________________________ Chuck Winn, Acting City Manager Print Name: ________________________ Print Title: __________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 135 Page 1 of 29 REQUEST FOR PROPOSALS (RFP) DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION CITY OF BOZEMAN Bozeman, MT City of Bozeman PO Box 1230 Bozeman, MT 59771-1230 DECEMBER 2024 136 NOTICE IS HEREBY given that the City of Bozeman (City) is seeking proposals from firms to provide aerial photography and planimetric information to support regulatory, land management, planning and engineering projects. This project is to update all aerial imagery for the entire 78.7 square planning boundary in addition to collecting LiDAR data to update a variety of planimetric information (image included in Attachment B of this RFP shows the area of interest). The intent of this request for proposals is to secure a contract for services for two years to include digital orthoimagery only, with an option to extend the contract to a third year to include LiDAR data in addition to digital orthoimagery. The desired flight dates are between April 1st and April 30th. The desired project completion date is 90 days from photo acquisition. Final deliverables will be mailed to the City of Bozeman on an external hard drive that allows import to the city GIS database. Copies of the Request for Proposals are available on the City’s website. All proposals must be provided as a single, searchable PDF document file and be submitted digitally as an email attachment to the RFP Recipient email address below. Respondents are advised that Recipient’s email attachment size limit is 25MB and that only one PDF file will be allowed per response. The subject line of the transmittal email shall clearly identify the RFP title, company name and due date/time. File sizes greater than 25MB in size may be uploaded to bzncloud.bozeman.net upon special arrangement of the Recipient; however, it is the respondent’s sole responsibility to ensure the file upload is completed, and that the Recipient is separately notified via email of same, prior to the given deadline. Deliver RFPs via email to the City Clerk by January 8, 2025 at 5:00 p.m. MST. It is the sole responsibility of the proposing party to ensure that proposals are received prior to the closing time as late submittals will not be accepted and will be returned unopened. The email address for submission is: procurement@bozeman.net NON-DISCRIMINATION AND EQUAL PAY The City of Bozeman is an Equal Opportunity Employer. Discrimination in the performance of any agreement awarded under this RFP on the basis of race, color, religion, creed, sex, age, marital status, national origin, or actual or perceived sexual orientation, gender identity or disability is prohibited. This prohibition shall apply to the hiring and treatment of the awarded entity’s employees and to all subcontracts. As such, each entity submitting under this notice shall include a provision wherein the submitting entity, or entities, affirms in writing it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and which also recognizes the eventual contract will contain a provision prohibiting discrimination as described above and that this prohibition on 137 discrimination shall apply to the hiring and treatment of the submitting entity’s employees and to all subcontracts. In addition, pursuant to City Commission Resolution 5169, the entity awarded a contract under this RFP and any subcontractors must abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act), and affirm it will abide by the above and that it has visited the State of Montana Equal Pay for Equal Work “best practices” website, or equivalent “best practices publication and has read the material. Any administrative questions regarding proposal procedures should be directed to: Mike Maas, City Clerk (406) 582-2321, agenda@bozeman.net. Questions relating to the RFP should be directed to: Gail Jorgenson, GIS Program Manager, (406) 582-2972, gjorgenson@bozeman.net. DATED at Bozeman, Montana, thisWednesday December 4, 2024. Mike Maas City Clerk City of Bozeman For publication on: Saturday, December 7, 2024 Saturday, December 28, 2024 138 I. INTRODUCTION The City of Bozeman (Owner), is seeking proposals from firms to provide digital orthoimagery for the greater Bozeman area. The intent of this request for proposals is to secure a contract for services for two years to include digital orthoimagery only, with an option to extend the contract to a third year to include LiDAR data in addition to digital orthoimagery. The Owner intends to enter into a contract with the selected firm that will include but is not limited to the following deliverables: • Digital Orthoimagery: 1”=50’map scale (i.e., 1”=300’ photo scale), 3” pixel, 4-band (RGB & NIR), true color, orthorectified digital imagery o Survey Control and Quality Check Shots o Digital Orthoimagery (4-band, 3” pixels, mosaic) o Public Sidewalks centerline (within city limits only) o Seamless mosaic at 1-foot (Optional: 0.5-foot) pixel resolution. • LiDAR: o Hydrography (streams & water bodies) o Building Footprints (extruded with height) o Digital Terrain Model (DTM) & Digital Elevation Model (DEM) & Hillshade (grayscale) o Breaklines & Point Cloud (raw & classified) o 1 ft Contours • Project Reports & Metadata • External hard drive with deliverables to be imported to the city Enteprise GIS This RFP shall not commit the Owner to enter into an agreement, to pay any expenses incurred in preparation of any response to this request, or to procure or contract for any supplies, goods or services. The Owner reserves the right to accept or reject all responses received as a result of this RFP if it is in the Owner’s best interest to do so. This procurement is governed by the laws of the State of Montana and venue for all legal proceedings shall be in the 18th Judicial District Court, Gallatin County. By offering to perform services under this RFP, all Submitters agree to be bound by the laws of the State of Montana and of the Owner, including, but not limited to, applicable wage rates, payments, gross receipts taxes, building codes, equal opportunity employment practices, safety, non-discrimination, etc. II. PROJECT BACKGROUND AND DESCRIPTION The City of Bozeman regularly uses aerial photography, LiDAR and planimetric information to support regulatory, land management, planning, and engineering projects. This project will update all aerial imagery for the entire 78.7 square mile planning boundary in addition to building footprints (image included in Attachment B of this RFP shows the area of interest). This documents defines the technical, cost, and time scope for developing a portion of the City’s GIS database. 139 The desired flight dates are between April 1st and April 30th. The desired project completion date is 90 days from photo and LiDAR acquisition. III. SCOPE OF SERVICES The preliminary scope of work involved for this project is outlined below. Additional tasks and work elements may be added during contract negotiations. It is also possible that tasks or elements could be deleted through negotiation. In its proposal, the Consultant may recommend addition/deletion of tasks or modification of tasks in describing its particular understanding and approach for the project. Proposals must clearly identify any elements of the proposed scope of work that would not be provided by the prime Consultant. Any sub-Consultants which comprise the overall Consultant team must be identified along with a description of past working history between the firms. The City desires to complete the proposed work in a diligent manner. Proposals must clearly indicate the Consultant’s anticipated schedule given their staffing and current and projected work load commitments. The proposal shall include a proposed schedule of events necessary to complete the work. The schedule shall include a process and schedule for the submittal of draft products for City review prior to final submittals. Prior to receiving notice to proceed after negotiations, before any data collection the Consultant must submit a project plan. The project plan will include the following: 1) A map showing the study area boundaries and flight path at a reasonable scale (approx. 1:150,000) 2) Documentation specifying altitude, air speed, scan angle, scan rate, and other flight and equipment information deemed appropriate. 3) A chart of areas of high Position Dilution of Precision (PDOP), or a list showing the time of the beginning and end of high PDOP. 4) The proposed ground control plan containing Airborne GPS support. If necessary, the Consultant shall obtain all rights of entry, be responsible for all GPS control information and show all National Spatial Reference System (NSRS) monuments that will be used for the GPS base stations for airborne GPS control. Failure to comply with any of these provisions may result in the rejection of the proposal. Digital Imagery Specifications: Orthoimagery shall be acquired only on clear days, leaf-off conditions, with no snow and minimal puddling of rain water or other weather-related effects obscuring the ground surface. At a minimum, National Map Accuracy Standards for the production of the Orthoimagery must be adhered to. The camera and magazines shall meet or exceed the 140 most recent USGS specifications for aerial camera systems. Aerotriangulation/bundle adjustment shall be performed by the current state-of-the-art analysis software to maximize accuracy of the data. o Photographic Conditions • Tree Cover. Photography shall be undertaken while the leaves are off the deciduous trees. • Clouds. Clouds or cloud shadows must not appear on the imagery. High, thin overcast is permitted above the flying altitude if it does not cause ground mottling or a discernable reduction in light levels and/or ground object shadows. • Well-Defined Images. Collect imagery to obtain well-defined images. Do not attempt imagery acquisition where the ground is obscured by haze, smoke, smog, dust, or falling snow, sleet, rain, or other obscuring phenomena. Do not collect imagery when ground is covered by water (flood), snow, or ice. • Visibility. The minimum visibility at the time of exposure must be 10 miles or greater. • Sun Angle. The majority of the project area will be collected when the sun angle is not less than 40°. In areas with tall trees or areas with significant urban development with buildings 3 stories or taller (such as downtown Bozeman), increase the minimum sun-to-horizon angle to acquire the photography during the times of minimal shadow. • Tilt will not exceed four degrees for any photographic frame and will average not more than two degrees for any ten consecutive frames. Relative tilt exceeding six degrees between any two successive frames may be cause for rejecting that portion of the flight lines. • Crab angle as measured from the average line of flight will not exceed five degrees. The course-heading differential between any two successive exposures will not exceed five degrees. • Forward overlap will be at least 55 percent between consecutive exposures. The average sidelap will be at least 20 percent. o Image Quality/Radiometry • There shall be no areas of an orthophoto where the process was incomplete due to image gaps or lack of data. • All digital orthophotos shall be radiometrically adjusted as necessary so that adjacent digital orthophotos can be displayed simultaneously without an obvious visual edge seam between them. Localized adjustment of the brightness values shall be performed to minimize tonal differences between the join areas. For this adjustment, the orthophoto judged by visual inspection to have the better contrast shall be used as the reference orthophoto. Localized brightness values of the adjacent orthophoto shall be adjusted to that of the reference orthophoto. When possible and feasible, the area adjusted should be bounded by a tonal break ground feature such as a road, field line, shadow line, etc. The radiometric adjustment should not compromise the accuracy, clarity, or resolution of the orthophoto. • Prior to undertaking full digital orthophoto production, the Consultant shall furnish the City with sample digital images to evaluate and accept as examples of overall 141 image quality. The City will select one image, which will become the standard to which all subsequent digital orthophotos will be compared for acceptance/rejection relative to image quality. LiDAR Specifications: The Contractor shall acquire aerial fixed wing LiDAR data collected to meet or exceed QL1 guidelines established in the U. S. Geological Survey National Geospatial Program Lidar Base Specifications Version 2023 rev. A., with vertical accuracy assessment procedures to comply with FEMA Guidelines and Specifications for Flood Hazard Mapping Partners. The DEM will have inland water bodies and streams hydro-flattened as defined in the USGS National Geospatial Program Base LiDAR Specification. The DTM will be of such precision and quality to support projects such as slope analysis; develop perspective plots; perform hydrographic and hydrologic analyses; generate cross-sections; regenerate contours; as the control network in the development of orthoimagery of the mapped areas; and other products requiring continuous contours of mapped areas. The selection and spacing of DTM points shall be defined by the contractor to be appropriate for the generation of 1-foot contours for 50ft scale to meet or exceed National Map Accuracy Standards. The City requires that digital image and LiDAR data be acquired simultaneously captured during one flight to ensure consistency between image and LiDAR datasets. Control: All horizontal and vertical control necessary to provide the deliverables requested in the proposal; digital orthoimagery, and planimetrics meeting the standards specified herein shall be completed by the Consultant. Ground control must be adequate to support the accuracy specifications identified herein. Some existing vertical and horizontal control may be available for this area. The Consultant shall review all horizontal and vertical control for accuracy and completeness. If the existing control is not deemed sufficient, then the Consultant shall describe any additional control work necessary to provide a DTM meeting the specified standards. The Consultant shall provide in the proposal, a draft control plan. The City will not perform any surveying for this project. Any survey work performed by the Consultant shall be done in conformance with Montana survey laws, regulations and administrative rules. For survey control work performed by the Consultant (or sub-Consultants) the following requirements will pertain: A brief survey control report in PDF and/or other digital format shall be delivered that contains: • One digital copy of the control diagram (the survey network scheme). 142 • One copy of all field notes, horizontal and vertical computations, and control network adjustments, with the connections to the National Spatial Reference System shall be clearly shown. • A digital copy of the new control points established to control the photogrammetry with all observations and ties, a point description, digital photograph of the monument and the control point location context, and coordinate values in geographic coordinates and in both UTM Zone 12 NAD83 (2011) meters, NAVD88 meters and Montana State Plane NAD83 (2011) meters, NAVD88 meters. • Survey party personnel, equipment, software, and procedures used. Deliverables: The respondent shall submit a delivery schedule. The Consultant shall deliver to the City for acceptance the following items: 1) Flight Plan and Logs: The flight plan shall be distributed to and approved by the City prior to acquisition. a. Project flight lines on a map displaying the project area and distributed as a feature class or Shapefile suitable for inclusion in ESRI ArcGIS software. Flight lines shall include flight line numbers within the feature attribution, and metadata shall describe the software used to generate the flight plan. b. Approximate number of exposures for the intended coverage area. c. Image centers of each exposure with date and time of acquired photo included. The data shall be distributed as a feature class or Shapefile suitable for inclusion in ESRI ArcGIS software. d. Upon completion of acquisition the Contractor shall provide a collection report summarizing the flight and logs. 2) Calibration Reports: Camera and digital sensor calibration reports along with a product characterization report validating USGS Digital Aerial Type standards shall be provided. 3) Survey Control Report: The following information shall be provided in a final survey report. a. Positional AGPS data and a statistical summary of the AGPS adjustment results. b. IMS sensor orientation and a statistical summary describing the overall accuracy of adjusted IMU data. c. Differentially corrected GPS ground control data used to supplement the AGPS data and a narrative describing all aspects of the ground survey including locations and extent of the network. d. The results and analysis of the constrained least squares adjustment, tables summarizing GPS misclosures, and a description of equipment and software used. 4) Aerial Triangulation Report: An aerial triangulation report shall be provided upon completion of all adjustments. This report shall include, a. An executive summary of the Aerotriangulation solution and its results. b. A detailed narrative of the adjustment process and quality checks for accuracy. c. A description of the software and equipment used to perform the adjustments. 143 d. A listing of the final adjusted coordinates in a spreadsheet or format agreed upon during contract negotiations. 5) Digital Orthoimagery Images: a. 1”=50’ map scale (i.e., 1”=300’ photo scale), 3” pixel, 4-band (RGB and NIR), true color, orthorectified digital imagery b. Seamless mosaic at 1-foot (Optional: 0.5-foot) pixel resolution. c. Edge-matched, non-overlapping tiles based on the tile scheme provided by the City and shall register to the existing City orthophotography database. d. Images with edge artifacts, mismatch, or voids will be rejected. e. Breaklines used to correct bridge and overpass distortion shall be provided in a feature class or Shapefile suitable for inclusion in ESRI ArcGIS software. f. Public Sidewalks (centerline): Within city limits only. 6) LiDAR Data: a. Hydrography: Streams and water bodies throughout the planning area. b. Building Footprints: Extracted with maximum height above ground as an attribute. c. Digital Terrain Model (DTM): Elevation data points shall be delivered as either a regular or irregular DTM in an ESRI geodatabase compatible format. d. Digital Elevation Model (DEM): Gridded raster representation in an ESRI geodatabase compatible format (a TIN is not being requested under this solicitation). e. Hillshade: Grayscale 3D representation of the bare-earth surface. f. Breaklines: ESRI feature class, same reference system as LiDAR point. The Consultant will produce hydro-enforced / hydro-flattened breaklines at NSSDA accuracy standards for 1:2,400-scale maps. o Breaklines will allow water to flow from the tops of hills all the way down the stream network o Breaklines will cut through culverts and bridges to allow water to flow downstream network o Elevation values for the breaklines will be derived from the bare-earth LiDAR o Single line stream centerlines for streams <2 meters wide will be created at channel bottom o For streams >2 meters wide, double breaklines will be digitized only at the bottom of both sides of the channel at the land/water interface (but not at the top of bank) o Drainage ditches (single line <2 meters wide) o Drainage ditches (double line >2 meters wide at bottom of channel) o Water bodies (ponds, lakes, reservoirs) greater than ¼ acre in size g. Point Cloud – Raw: Data shall be delivered in LAS files compatible with the most current ASPRS LAS Specification format and must meet the requirements identified within this specification. The point cloud data shall not contain any data voids and overlap between flight lines shall be removed. h. Point Cloud – Classified: Fully compliant ASPRS LAS v1 1.4 classifications. 144 i. Tiling: Single schema for tiling, no overlap, tile-based .prj files, edgematch seamlessly in horizontal & vertical. j. Contours – 1 ft intervals 7) Progress Reports: Progress reports shall be provided by e-mail on a weekly basis for aerial photography acquisition until delivery of the pilot project, and bi-weekly thereafter until the project is complete. These informal reports shall consist of a summary of production status, major activities completed during the most recent reporting period, description of issues and corrections, and associated status maps or acquired flight lines. 8) Metadata: Complete FGDC-compliant metadata shall be provided for all data in an XML format. The metadata shall provide a complete description of identification, data quality, spatial data organization, spatial reference, and entity and attribute information. The metadata for orthorectified imagery shall also include acquisition dates. 9) Project Report: A final project report summarizing the flight acquisition, orthorectification process and data collection, quality control and assurance, and deliverables provided shall be provided upon completion of the project. This report shall include a detailed narrative of the analysis, accuracy assessment, and validation of all deliverables. 10) External Hard Drive: An external hard drive will be delivered to the city with all of the deliverables available to upload into the city GIS. All final data shall become sole property of the City with no restrictions on use or dissemination. Final deliverables will be stored in the City’s ArcGIS SQL database and will be made available to internal and external customers through various client applications and downloadable data files. All data shall be delivered in both UTM Zone 12 NAD83 (2011) meters, NAVD88 meters and Montana State Plane NAD83 (2011) meters, NAVD88 meters. For more information on the National Adjustment of 2011, please visit the following website: http://www.ngs.noaa.gov/web/surveys/NA2011/. Respondents shall indicate in their proposal a description of the internal quality control processes they will utilize throughout the various phases of the project to assure that the contract deliverables will be acceptable. The Consultant may provide forms, flow charts, or other materials to document the quality control process. The City retains the sole right to determine contract adherence to quality control requirements. Judgment that the Consultant is in breach of the quality control requirements may require suspension of any phase of the contract until such time as the City can determine that such problem(s) have been remedied. IV. PROPOSAL REQUIREMENTS 145 Firms interested in providing the services described above are requested to submit the following information. Responses to each item should appear in the same order as in this RFP and should identifythe item to which the responses applies. a) Executive Summary And executive summary that provides a high level review of the proposed proposal. b) Firm/Inidvidual Profile Consultant’s legal name, address, telephone number, website (if any), and email address. c) Description of Proposed Solution A narrative describing the Consultant’s proposed approach to provide digital orthoimagery for the greater Bozeman area. d) Scope of Project A summary of the proposed products or documents that will be provided at the completion of this project. e) Related Experience with Projects Similar to the Scope of Services Descriptions of similar projects completed. f) Statement of Qualifications Include the Consultant’s professional credentials, experience, and qualifications in providing the Scope of Services stated in this Request for Proposal. g) References List of no more than three municipal organizations you have worked for and whom we may contact for recommendations. h) Present and Projected Workloads A description of the firm’s current work activities and how these would be coordinated with the project, as well as specific current workloads of the project team members. i) Key Personnel Identify each principal of the firm and other key personnel who will be professionally associated with this contract. Describe their respective areas of expertise and contract role. Include personalized resumes, which identify the qualifications, training, and experience of each key personnel. j) Additional Information Submit any other additional information, which would assist the City of Bozeman in the evaluation of the proposal. The City of Bozeman reserves the right to make any investigation and solicit additional information or submittals as it deems necessary to determine the ability of any Consultant to perform the Scope of Services stated within this Request for Proposals. k) Affirmation of Nondiscrimination & Equal Pay (see Attachment A) Non-completion of the Affirmation of Nondiscrimination is cause for disqualification of firms. 146 Non-completion of the Affirmation of Nondiscrimination is cause for disqualification of firms. V. TIMELINES, DELIVERY DEADLINE, AND INSTRUCTIONS EVENT DATE/TIME Publication dates of RFP Saturday, December 7, 2024 Saturday, December 28, 2024 Deadlines for Questions 3:00 p.m. MST December 31, 2024 Deadline for receipt of proposals 5:00 p.m. MST January 8, 2025 Evaluation of proposals January 13-14, 2025 Notice of Interviews January 15, 2025 Interviews (if necessary) and January 17, 2025 Selection of consultant January 20, 2025 With the exception of the advertising dates and advertised due date, the City reserves the right to modify the above timeline. Deliver RFPs via email to the City Clerk (agenda@bozeman.net) by January 8, 2025 at 5:00 p.m. MST. It is the sole responsibility of the proposing party to ensure that proposals are received prior to the closing time as late submittals will not be accepted and will be returned unopened. All proposals must be provided as a single, searchable PDF document file and be submitted digitally as an email attachment to the RFP Recipient email address agenda@bozeman.net. Respondents are advised that Recipient’s email attachment size limit is 25MB and that only one PDF file will be allowed per response. The subject line of the transmittal email shall clearly identify the RFP title, company name and due date/time. File sizes greater than 25MB in size may be uploaded to bzncloud.bozeman.net upon special arrangement of the Recipient; however, it is the respondent’s sole responsibility to ensure the file upload is completed, and that the Recipient is separately notified via email of same, prior to the given deadline. VI. AMENDMENTS TO SOLICITATION Any interpretation or correction of this request will be published on the City’s webpage. The deadline for questions related to this document is 3:00 p.m. MST on December 31, 2024. VII. CONTACT INFORMATION Any administrative questions regarding proposal procedures should be directed to: Mike Maas, City Clerk, (406) 582-2321, agenda@bozeman.net Questions relating to scope of services should be directed to: Gail Jorgenson, GIS Program Manager, gjorgenson@bozeman.net, 406-582-2972. 147 VIII. SELECTION PROCEDURE A review committee will evaluate all responses to the RFP that meet the submittal requirements and deadline. Submittals that do not meet the requirement or deadline will not be considered. The review committee will rank the proposals and may arrange interviews with the finalist(s) prior to selection. Selection may be made directly based on the written RFP submission. If interviews occur, the selection of finalists to be interviewed will be made by a selection committee representing the City of Bozeman. The selection of interview candidates will be based on an evaluation of the written responses to the RFPs. All submitted proposals must be complete and contain the information required as stated in the "Request for Proposals.” IX. SELECTION CRITERIA Proposals will be evaluated on the following criteria and the requirements of MCA 18-8-204 et seq. • The Consultant’s specific project approach and understanding; • Qualifications of professional personnel to be assigned to the project; • Capability to meet project time and budget requirements; • Location of the Consultant in relation to project; • Present and projected workloads; • Related experience on similar projects; • Recent and current work for the City. X. FORM OF AGREEMENT The Contractor will be required to enter into a contract with the City in substantially the same form as the professional services agreement attached as Attachment C. XI. CITY RESERVATION OF RIGHTS / LIABILITY WAIVER All proposals submitted in response to this RFP become the property of the City and public records and, as such, may be subject to public review. A SUBMISSION IN RESPONSE TO THIS REQUEST FOR QUALIFICATIONS CONFERS NO RIGHTS UPON ANY RESPONDENTS AND SHALL NOT OBLIGATE THE CITY IN ANY MANNER WHATSOEVER. THE CITY RESERVES THE RIGHT TO MAKE NO AWARD AND TO SOLICIT ADDITIONAL REQUEST FOR QUALIFICATIONS AT A LATER DATE. A. This RFP may be canceled or any or all responses may be rejected in whole or in part, as 148 specified herein, when it is in the best interests of the City. If the City cancels or revises this RFP, all Respondents who submitted will be notified using email. B. The City reserves the right to accept or reject any and all proposals; to add or delete items and/or quantities; to amend the RFP; to waive any minor irregularities, informalities, or failure to conform to the RFP; to extend the deadline for submitting proposals; to postpone award for up to 60 days; to award one or more contracts, by item or task, or groups of items or tasks, if so provided in the RFP and if multiple awards or phases are determined by the City to be in the public interest. C. The City of Bozeman reserves the right to reject the proposal of any person/firm who previously failed to perform properly to the satisfaction of the City of Bozeman, or complete on time agreements of similar nature, or to reject the proposal of any person/firm who is not in a position to perform such an agreement satisfactorily as determined by the City of Bozeman. D. The City of Bozeman reserves the right to determine the best qualified Contractor and negotiate a final scope of service and cost, negotiate a contract with another Contractor if an agreement cannot be reached with the first selected Contractor, or reject all proposals. E. The professional services contract between the City of Bozeman and the successful Contractor will incorporate the Contractor's scope of service and work schedule as part of the agreement (see Attachment C for form of professional services agreement. The professional services agreement presented to the Contractor may differ from this form as appropriate for the scope of services). F. This RFP does not commit the City to award a contract. The City assumes no liability or responsibility for costs incurred by firms in responding to this request for proposals or request for interviews, additional data, or other information with respect to the selection process, prior to the issuance of an agreement, contract or purchase order. The Contractor, by submitting a response to this RFP, waives all right to protest or seek any legal remedies whatsoever regarding any aspect of this RFP. G. The City reserves the right to cancel, in part or in its entirety, this RFP including, but not limited to: selection procedures, submittal date, and submittal requirements. If the City cancels or revises this RFP, all Contractors who submitted proposals will be notified using email. H. Projects under any contract are subject to the availability of funds. XII. NONDISCRIMINATION AND EQUAL PAY POLICY The City of Bozeman requires each entity submitting under this notice shall affirm, on a separate form provided, that it will not discriminate on the basis of race, color, religion, creed, 149 sex, age, marital status, national origin, or because of actual or perceived sexual orientation, sexual preference, gender identity, or disability in fulfillment of a contract entered into for the services identified herein and that this prohibition on discrimination shall apply to the hiring and treatment of the submitting entity’s employees and to all subcontracts it enters into in the fulfillment of the services identified herein. Failure to comply with this requirement shall be cause for the submittal to be deemed nonresponsive. The City also requires each entity submitting under this notice shall affirm it will abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act), and has visited the State of Montana Equal Pay for Equal Work “best practices” website, https://equalpay.mt.gov/BestPractices/Employers, or equivalent “best practices publication and has read the material. XIII. MISCELLANEOUS A. No Oral Agreements. No conversations or oral agreements with any officer, employee, or agent of the City shall affect or modify any term of this solicitation. Oral communications or any written/email communication between any person and City officer, employee or agent shall not be considered binding. B. No Partnership/Business Organization. Nothing in this solicitation or in any subsequent agreement, or any other contract entered into as a result of this solicitation, shall constitute, create, give rise to or otherwise be recognized as a partnership or formal business organization of any kind between or among the respondent and the City. C. Employment Restriction and Indemnity. No person who is an owner, officer, employee, contractor, or consultant of a respondent shall be an officer or employee of the City. No rights of the City’s retirement or personnel rules accrue to a respondent, its officers, employees, contractors, or consultants. Respondents shall have the responsibility of all salaries, wages, bonuses, retirement, withholdings, worker’s compensation and occupational disease compensation, insurance, unemployment compensation other benefits and taxes and premiums appurtenant thereto concerning its officers, employees, contractors, and consultants. Each Respondent shall save and hold the City harmless with respect to any and all claims for payment, compensation, salary, wages, bonuses, retirement, withholdings, worker’s compensation and occupational disease compensation, insurance, unemployment compensation other benefits and taxes and premiums in any way related to each respondent’s officers, employees, contractors and consultants. D. Accessibility. Upon reasonable notice, the City will provide assistance for those persons with sensory impairments. For further information please contact the ADA Coordinator David Arnado at 406-582-3232 or the City’s TTY line at 406-582-2301. E. Procurement. When discrepancies occur between words and figures in this solicitation, 150 the words shall govern. No responsibility shall attach to a City employee for the premature opening of an RFP not properly addressed and identified in accordance with these documents. F. Governing Law. This solicitation and any disputes arising hereunder or under any future agreement shall be governed and construed and enforced in accordance with the laws of the State of Montana, without reference to principles of choice or conflicts of laws. XIV. ATTACHMENTS The following exhibits are incorporated in this RFP: Attachment A: Non-Discrimination Affirmation Attachment B: 2025 Bozeman Aerial Flight Boundary (Area of Interest) Attachment C: Professional Services Agreement END OF RFP 151 Attachment A NONDISCRIMINATION AND EQUAL PAY AFFIRMATION ____________________________________(name of entity submitting) hereby affirms it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and acknowledges and understands the eventual contract will contain a provision prohibiting discrimination as described above and this prohibition on discrimination shall apply to the hiring and treatments or proposer’s employees and to all subcontracts. In addition, ____________________________________(name of entity submitting) hereby affirms it will abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act), and has visited the State of Montana Equal Pay for Equal Work “best practices” website, https://equalpay.mt.gov/BestPractices/Employers, or equivalent “best practices publication and has read the material. ______________________________________ Name and title of person authorized to sign on behalf of submitter 152 153 Attachment C PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 202__ (“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, ____________, _______________, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Attachment C and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon and will terminate two years (730 days) after the date of its execution, unless earlier terminated in accordance with this Agreement. 3. Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, 154 and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. In the event that, during the term of this Agreement, any labor problems or disputes of any type arise or materialize which in turn cause any services to cease for any period of time, Contractor specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. 155 Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes, or any delays or stoppages of work associated with such problems or disputes. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. 156 Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury per accident; and • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 157 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. 158 d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Gail Jorgenson, GIS Program Manager or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be _____________________ or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or 159 communication to other designated Contractor personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non- discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. 160 Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 16. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 17. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 18. Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 19. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable 161 attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 21. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 22. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 23. Headings: The headings used in this Agreement are for convenience only and are not to be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 24. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 25. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 26. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 28. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 162 29. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 30. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. 31. Extensions: this Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than three years after the date of its execution (1095 days). **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** 163 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. CITY OF BOZEMAN, MONTANA ____________________________________ XV. CONTRACTOR (Type Name Above) By________________________________ By__________________________________ Chuck Winn, Acting City Manager Print Name: ___________________________ Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 164 www.AyresAssociates.com Ingenuity, Integrity, and Intelligence. City of Bozeman, MT January 8, 2025 Digital Orthoimagery and Lidar Acquisition Attachment C 165 608.443.1200 | 5201 E. Terrace Drive, Suite 200 | Madison, WI 53718 www.AyresAssociates.com January 8, 2025 Mike Maas, City Clerk Gail Jorgenson, GIS Progam Manager City of Bozeman 121 N. Rouse Ave., Suite 202 Bozeman, MT 59715 Re: Digital Orthoimagery and Lidar Acquisition Dear Mr. Maas, Ms. Jorgenson, and Selection Committee members: Ayres is pleased to provide this proposal for aerial digital orthoimagery and lidar services. Ayres has a long history of services to counties and municipalities throughout the country and looks forward to bringing our expertise and experience to the City of Bozeman on this project. Ayres has a proven track record of providing high-quality aerial imagery and mapping in the Western U.S. including Montana, and we hope this proposal exemplifies our unrivaled approach to your important project. We bring an experienced team of professional land surveyors, geographers, remote sensing experts, project managers, and engineers who are accustomed to completing complex, large-scale aerial mapping projects around the country. Our proven track record of successful aerial mapping projects, completed on time and on budget, has been a platform for our success in this industry over the past 45 years. Our approach to developing high-accuracy lidar, imagery, and mapping products is cost-effective and supports expedited production schedules. Ayres is very familiar with the area; we have offices in Wyoming and Colorado and recently completed the 2024 City of Bozeman Orthoimagery and Lidar Acquisition project, and the 2023 Land Use Land Cover and Turf Mapping project. For your project we plan to have Aerial Surveys International (ASI) as our flight partner and KLJ Engineering and Planning as our survey partner. We understand that the City of Bozeman in interested in acquiring updated orthoimagery for two years, with an optional third year for updated orthoimagery and lidar, along with enhanced planimetric mapping and lidar derivatives for the 78.7 square mile project area defined by the City. We understand the importance of meeting the needs of multiple departments when designing cost-effective solutions, and we’ll certainly do the same for the City. It’s important to note that all the work we do for this project will occur within the United States. Our team of talented survey staff, orthoimagery and lidar technicians, remote sensing specialists, mapping and GIS specialists have completed thousands of square miles of orthoimagery and lidar processing and planimetric mapping in the past couple of years. We believe our dynamic, client-focused approach will result in a successful orthoimagery and lidar project for the City of Bozeman. 166 www.AyresAssociates.com 608.443.1200 | 5201 E. Terrace Drive, Suite 200 | Madison, WI 53718 City of Bozeman January 8, 2025 Page 2 of 2 We are dedicated to providing the City of Bozeman with high-quality service and custom solutions in imagery, lidar and mapping. Our team can provide the full complement of expertise needed for your project and will take the time to consult with you to ensure the best approach is taken, not only for this project but with your overall goals in mind. When we are done, we will meet with your staff to walk through the data to answer your questions and ensure you hit the ground running. Since completing the 2024 Orthoimagery and Lidar project for the City of Bozeman, we believe efficiencies can be gained in the flight planning process, the planimetric mapping update process, and the QA/QC client review process. With our past project experience we are eager to deliver a products that exceeds the City of Bozeman’s expectations. Completing projects means more than just delivering final products. We are committed to understanding your spatial data needs and hope to further discuss how we can meet your goals. In the meantime, please contact me if you have questions or would like additional information. Sincerely, Ayres Associates Inc Tyler Kaebisch Project Manager – Geospatial Services 414.467.8891 I KaebischT@AyresAssociates.com “Services from Ayres have been excellent. Every time I’ve had a problem, they’ve offered solutions for us to look at. A lot of the issues have been more with our own software, but they’ve given us ideas to look at and avenues to go down.” Scott Hand Supervisor of GIS Services, Wisconsin Public Service 167 4AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. Since beginning to provide aerial imagery services in 1978, Ayres’ Geospatial Division has completed thousands of projects, from film-based imagery to rectification of historical imagery to today’s digital imagery (including data outside the visible spectrum) with advanced sensors and processing techniques. Lidar has also long been an area of Ayres’ expertise – Ayres has have been offering airborne lidar services for 21 years. Regardless of the medium or content, Ayres’ project planning and performance are built on two elements: selecting the best approach for the client’s needs and problems, and expert understanding and application of the principles of orthophotography and photogrammetry. Ayres’ proposed approach relies on both. For example, meeting your needs includes working within the City’s budget and schedule requirements; Ayres has shown that we are able to perform the necessary work for the budgeted amount and within the City’s time frame. Furthermore, Ayres provides effective communication throughout the life-cycle of the project and will be available to answer any questions or concerns along the way. One important skill that Ayres can bring to the City of Bozeman is managing multiple, sequential aerial mapping projects. Through groups like the Wisconsin Regional Orthoimagery Consortium (WROC) and the Chicago-area GIS Consortium (GISC), Ayres has been continually providing some local government clients with aerial mapping services for over 25 years. We advise these clients regarding the frequency of updating particular data layers, methods to cost-effectively perform change detection, and when, how, and whether new methods and technologies are right for their situation. Since Ayres has already performed multiple aerial mapping projects for the City of Bozeman, we have the local knowledge to help you get the most from this contract. Ayres also brings a few specific recommendations to this project based on our previous aerial mapping work for the City. These are commencing the review process sooner to maintain the project schedule and adding a crossing flight line over the downtown area to help reduce building lean in the delivered imagery. Ayres is also comfortable that we can meet the project schedule based on our experience working with the City. Project Team and Key Personnel The Ayres team is led by Ayres Associates Inc, a national engineering and geospatial firm with a large presence in the Rocky Mountain region. Ayres will serve as the prime consultant, responsible for project management; direct communication with City personnel; quality process definition, tracking, and enforcement; project planning and scheduling; all imagery, lidar, planimetric and hydrographic processing; and delivery of all products. Ayres’ project manager will be Tyler Kaebisch, a geospatial data expert with deep experience in the western U.S. in both private and public sector work and a reputation for innovative approaches to aerial mapping projects. Tyler also has extensive previous experience as a remote sensing specialist for the USDA Forest Service in Idaho, the US Bureau of Reclamation in the Great Basin, and Minnesota DNR. Ayres has almost 70 people in its Geospatial Division. Approximately half of these are in the Aerial Mapping group, and include GISPs, certified photogrammetrists, and certified mapping scientists. Many of them have worked on the Bozeman Land Use/Land Cover project and the City’s previous imagery and lidar project from 2024. This means Ayres has the knowledge, capacity and broad expertise to complete the project on-time and with excellent quality. KLJ, a national engineering firm with four locations in Montana, including Bozeman, will serve as our subconsultant responsible for survey control and aerial control targeting. They have provided similar services on other Ayres projects in the past, including the City of Bozeman’s 2024 Orthoimagery and Lidar Acquisiton project, the City of Bozeman’s Land Use/Land Cover and Turf Mapping project and the Montana DOT’s Bridge Scour Study. Justin Stefanik, the survey lead for KLJ, has spent his entire career in Montana and has worked in Bozeman often. Aerial Surveys International (ASI), a Colorado-based firm, will perform aerial data acquisition. ASI has successfully completed dozens of acquisition missions for Ayres throughout the Rocky Mountain region, including the 2023 City of Bozeman’s Land Use/Land Cover and Turf Mapping project. Their knowledge of aerial mapping processing, ability to offer a variety of planes and imagery sensors, and familiarity with working in the western U.S. makes them an ideal partner for the Bozeman project. Project Understanding and Overview The City requires updated aerial imagery over 2 years, with an optional 3rd year for updated lidar and imagery along with planimetric and hydrographic data to support the operation of various City departments as well as making available a common, accurate set of geospatial data to businesses and members of the public. As a fast-growing community in the Rocky Mountain region, Bozeman is subject to continuous change created by human and natural forces. For example, A) EXECUTIVE SUMMARY 168 5AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. the city’s population has increased by over 8.5% since the 2020 census. Developed areas, drainage, the street network, and land cover are all changing, and the City government and the community require current, accurate data to inform plans and budgeting, to assess and manage growth, and to best display the attractions of Bozeman to businesses, travelers, and prospective residents. In the Request for Proposal, the City has listed several government functions that the data created under this contract will support. Ayres understands the benefits that will be gained by these groups, including: • Regulatory: Confirm and quantify compliance or non-compliance with regulations and permits such as building height, site slope, vegetation or other encroachments, impervious surfaces, setbacks from water or roadways, and zoning.• Land Management: Identify conflicting uses; use landform and hydrography data to predict fire and flood risk and behavior; assess appropriateness of land for use restrictions, reservation, or withdrawal; and support acquisition and sale of properties.• Planning: Assess the transportation system, including trails, lanes, and sidewalks for active transportation. Evaluate transit service changes needed due to planned development. Use imagery and data to support grant applications, multimodal transportation planning, and parking analysis. Update land use plans, conduct route and time analyses, and determine viewsheds and the impact of new construction.• Engineering: High-level design, maintenance planning and estimating, supporting data for proposers and bidders, drainage around and within projects. Identify potential sites requiring safety improvements based on slope or other attributes, and right-size drainage assets. For the 2025 and 2026 orthoimagery projects, Ayres proposes to provide 3-inch pixel resolution, 4-band digital orthoimagery collected for the 78.7 square mile project area, along with updated Public Sidewalk Centerlines for the 21 square mile City Limits project area defined by the City. The imagery will be collected under leaf-off, snow-free conditions when the sun angle is at least 45 degrees above the horizon. Using a minimum sun angle of 45 degrees rather than the RFP’s requirement of 40 degrees will both improve image quality by reducing shadows and will save time and money by eliminating the need to organize flights to have a larger minimum sun angle in those areas of the city where tall trees, buildings, or steeper terrain occur. The imagery will meet National Map Accuracy standards for 1” = 50’ mapping throughout the project. To meet these accuracy standards, all survey control will be established by KLJ, using existing control locations to the maximum extent possible. KLJ will confirm that all existing control is still acceptable for use, and will create new control points if it is not. KLJ will also establish additional control points as directed by Ayres to meet the promised accuracy across the entire project area. In addition, KLJ will establish quality check points to be used to verify the accuracy of the imagery. All control and validation points will be re-established and re-surveyed prior to each annual data acquisition. For the optional third year of lidar and orthoimagery collection, KLJ will collect an additional 30 checkpoints to comply with FEMA vertical accuracy requirements. ASI will use a Vexcel UltraCam Eagle Mk I digital imagery sensor. This is a widely used sensor that is capable of image resolution well beyond that required by the City. Ayres will be responsible for ensuring the quality of the imagery acquired and will require reflights for any areas that do not meet required image quality. The raw imagery will be orthorectified based on the control points. After the compliance of the AT solution has been verified, Ayres’ imagery analysts will review, and correct as needed, each image for tone balance between adjacent images and across the project. They will also perform manual correction of radial displacement of bridges and overpasses. Tiles using the City’s tiling scheme will be created from the completed images. As extra enhancement, Ayres will prepare three orthomosaic files for the City: the original source 3-inch pixel resolution for maximum quality and accuracy, and both 6-inch and 12- inch resolutions for ease of use for City staff and community members. Providing mosaics at the various resolutions will maximize the accessibility of the mosaic to the City’s user base, allowing selection of the most appropriate resolution based on user requirements and their available processing and rendering capabilities. Aerial imagery acquisition is estimated to commence in early April of 2025 and 2026. A pilot area will be delivered within 60 days of completion of the aerial data acquisition, and project completion is estimated for thirty days after that, or approximately the end of July 2025. For the optional third year of orthoimagery and lidar collection and processing services, Ayres proposes to collect both lidar and imagery simultaneously. The lidar deliverables would meet or exceed the USGS QL1 lidar specifications and would have a vertical accuracy of 10 cm on nonvegetated surfaces. The full list of proposed deliverables is shown in section D of this proposal, “Scope of Project.” 169 6AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. Ayres is a nationwide professional consulting firm providing services in photogrammetry, orthoimagery, lidar, and digital mapping; GIS; survey; civil, structural, transportation, river, levee, and water resources engineering; environmental science; planning; mechanical/electrical/plumbing engineering; and architecture. Incorporated in Eau Claire, Wisconsin, Ayres now employs approximately 400 people who provide services from a network of offices around the country. Geospatial Services Ayres’ geospatial services division is based in Madison, Wisconsin. The geospatial division originated as Alster & Associates Photogrammetric Engineering (founded in 1951) and merged with Ayres in 1978. The geospatial division consists of certified photogrammetrists, lidar professionals, highly trained technicians, and project managers, all of whom have formal education in the discipline of geography. Nationally recognized for our skill and experience in aerial mapping, land surveying, and GIS, we deliver efficient and intelligent solutions. Our geospatial division provides a diverse range of mapping services to clients around the country: Aerial lidar (fixed wing, UAS, and helicopter) Ground-based lidar (Mobile and HD Scanning) Aerial imagery acquisition Digital orthoimagery Planimetric and topographic mapping GIS consulting, training, and development GPS and conventional survey Remote sensing Oblique aerial imagery Digital terrain modeling (DTM) Vendor Contact Information Company’s Full Legal Name Ayres Associates Inc Location of Principal Office Responsible for Contract Implementation 5201 E. Terrace Drive, Suite 200 Madison, WI 53718 Website AyresAssociates.com Contact Person’s Information Tyler Kaebisch, GISP T: 414.467.8891 KaebischT@AyresAssociates.com Year Established 1959 Type of Ownership Employee-owned corporation AYRES OFFICE LOCATIONS B) FIRM PROFILE 170 7AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. Production Based in the United States All of your work will be performed in the United States. Ayres possesses more than enough resources to accomplish this project with skilled professionals based in the United States. For reasons of efficient production, quality control, and security of data about critical infrastructure, it is important that the production is directly under the control of Ayres personnel at all times. There remain only a few geospatial firms that have their entire production staff within the country; Ayres is proud to be among them. Each member of our team is dedicated to quality products and services and has a personal stake in the satisfaction of our clients. Experienced Staff Ayres’ geospatial division includes certified photogrammetrists (CP) and certified mapping specialists (CMS). In addition, all of our mapping technicians have bachelor’s degrees in the discipline of geography and also have training in the latest photogrammetric equipment and software. Qualifications like these result in accurate, quality mapping products that follow project specifications closely. Commitment to Quality We respect our clients and understand that success is earned through cooperation and understanding the needs of our valued clients. Our technical and management staff make every effort to listen to clients and prepare mapping that meets client expectations. These efforts start at the receipt of the RFP and continue on to final delivery – and beyond. Project Manager Our approach to managing your project begins with a dedication to understanding your needs and designing solutions that address them. Too often firms propose technical approaches that fit the contractor better than they fit the client. We will commit ample management resources to the project, led by Project Manager Tyler Kaebisch. Tyler is experienced in project management and has a strong history of involvement in the West with over 15 years of experience in GIS, remote sensing, and other geospatial disciplines. As project manager, Tyler will update City of Bozeman personnel during the course of the project to discuss pertinent project issues as needed. Additionally, he will participate in weekly internal meetings with supervisors to assess the status of the project and address key technical issues, thereby maintaining high standards for product specifications and keeping the project on track to meet the timeframe agreed upon. “All staff that GMRC had contact with were most accommodating. Anything we needed or asked for were supplied without question.” Faith Jones Director of Information Services, Georgia Mountains Regional Commission 171 8AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. The City of Bozeman, Montana, requires the development of new lidar, orthoimagery, planimetric, and hydrographic mapping. These critical datasets will be used for land management, planning, zoning, and engineering. New orthoimagery along with updated sidewalk centerlines will be collected and processed in 2025 and 2026, while an optional third year (2027) will collect and process both orthoimagery and lidar along with updated sidewalk centerlines and updated lidar derived hydrography. The aerial imagery will meet 3-inch resolution, and will support the development of updated planimetric mapping of sidewalk centerlines. The lidar data will be collected to USGS QL1 specifications, collected at a minimum of 8 pulses per square meter (ppsm). Lidar data will be processed to derive 1-foot contours, building footprints, hydro and culvert breaklines, DEM, hydro-enforced DEM, DTM and hillshade models. Along with lidar and orthoimagery products, updated ground control survey, reports and metadata will also be provided. Our unique approach will utilize individual orthoimagery flights in 2025 and 2026, and a simultaneous lidar and imagery data acquisition in 2027. Our approach will also focus the collection efforts when the sun angle is not less than 45 degrees, throughout the project area, which will ensure minimal shadows in areas with tall trees or buildings greater than three stories tall. In an effort to reduce building lean within the downtown area of the City of Bozeman, we have added an additional cross flight line over downtown area, centered along Main Street. This additional cross flight line will provide additional image frames in an area with taller buildings, allowing for the best possible nadir (straight down) images to be used in image processing to reduce potential building lean. We are confident we have a dynamic, well-planned approach to work with the City to complete your project successfully. We have carefully estimated the capacity and resources needed – with a focus on maintaining the necessary resources to complete the project on schedule. Please note that all work for the City will be performed within the United States by the Ayres Associates team. Project Management Initial Coordination Meeting. Before project initiation, we propose that Tyler and key staff from the City participate in a coordination meeting. During this meeting, we will review and refine the project schedule and scope, discuss the acquisition conditions and schedule, and establish a pilot project area. Quality Assurance and Quality Control Procedures. Ayres’ quality program defines quality as meeting client expectations. Therefore, quality performance requires consensus between the City and project team members regarding the requirements of the project and design of project strategies based on those requirements. Ayres’ quality program is dynamic and promotes continual improvement based on feedback from our clients, from our own project operations, and from opportunities created by changing technologies. Ayres and Tyler Kaebisch are ultimately responsible for the successful completion of quality products and services for each project. Tyler establishes the philosophy, organization, and policy that set Ayres’ quality assurance/quality control (QA/QC) program in place. Project managers or their designated project QA officers implement the QA/QC program on individual projects. We understand that only through consistent implementation of quality procedures can we complete projects to our clients’ satisfaction. Ayres and our partner ASI have formal, co-developed QA/QC checks in place and standard operating procedures designed so that all required information is collected accurately and that products meet or exceed project standards and specifications. Task-Specific QA/QC Procedures. QA/QC procedures and the supervisors responsible for their implementation are included in the production phases outlined in this technical approach. Ayres will work with the City to develop additional QA/QC procedures tailored to the participants’ needs during this phase. C) PROPOSED SOLUTION 172 9AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. Quality Monitoring. A QA/QC team will be assigned for each aspect of the project and will consist of photogrammetric, mapping, survey, and GIS specialists. The QA/QC reviews will include reviews of results and weekly progress meetings with each project group. Issues brought to the attention of the project manager will be addressed immediately. The project manager will coordinate the subcontractors’ efforts to ensure consistent results and ensure that all procedures implemented will be incorporated into QA/QC documentation. Ground Control Survey ABGPS. Our primary method of control for the project will be by Airborne GPS (ABGPS). All airborne cameras and sensors used for this project will use highly accurate geodetic-grade ABGPS systems. Location accuracy of the ABGPS capture points will range between .02 and .05 meter. To reduce control costs for the project, Ayres will use a combination of ground control points and ABGPS control. Ayres understands that we’ll be responsible for establishing ground control points for this project. Our survey partner, KLJ, is well known in the Montana survey community and has extensive experience with control networks and specifically around Bozeman. With its professional land surveyor crew based in Bozeman, the firm has local knowledge to give the ground survey the attention it deserves. Control will be re-established and remeasured prior to each annual flight. Upon receiving the previously established control, KLJ will locate and determine if they are acceptable for use in the aerial flights. If KLJ determines any of the previously established points are compromised it will be reset or moved to a more ideal location. New control points will be monumented in locations determined by Ayres as optimal for the flight. The material used by the newly established control will be a 2-inch aluminum cap on a 5/8”x24” rebar, stamped with corresponding point naming convention. Sketches, ties, and photos of the new points will be documented for use in future flights. Each of the previously and newly established control points will be observed using static baselines from high accuracy reference networks (HARN). Each mark will be observed a minimum of two times, adjusting the height of the instrument to eliminate errors in measurements to the GPS unit. The static baselines will be imported in Trimble Business Center for a least square adjustment constrained to the HARN point coordinates. The coordinate values of the control will be in UTM Zone 12 and Montana State Plane Coordinates, both in meters. The resultant vectors establish the final coordinates of the ground control points. Targets will be placed at the center of the control point for identification during the flight. Photo-identifiable Targets. In addition to any established control points, Ayres will use photo- identifiable ground control targets; this does not require establishing and removing panels. Photo-identifiable targets will consist of easily distinguished ground features such as ends of paint lines, sidewalk corners, and corners where driveways meet road edge. Independent Vertical Accuracy Check Shots. KLJ will also establish additional control points as directed by Ayres to meet the promised accuracy across the entire project area. For the optional third year of orthoimagery and lidar collection, KLJ will establish quality check points to be used to verify the accuracy of the imagery and lidar. In order to comply with the FEMA Guidelines and Specifications for Flood Hazard Mapping Partners vertical accuracy assessment procedures, KLJ will collect 30 NVA/VVA check shots to assess the lidar vertical accuracy across terrain types. These check points will be independent and will not be used to perform aerotriangulation (AT) or calibration computations. 173 10AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. Aerial Imagery and Lidar Acquisition Ayres and our flight partner in this project, ASI, propose individual orthoimagery flights in 2025 and 2026, and a simultaneous collection of lidar and imagery for the optional third year in 2027. The UltraCam Eagle digital mapping camera will be utilized to collect the aerial imagery. Depending on the technology and sensors available in 2027, the 1560ii-s lidar sensor will be planned for the simultaneous lidar and imagery acquisition. This system is versatile in its design, allowing for maximum efficiency for medium- and small-scale mapping projects. We have worked extensively with the staff at ASI over the years on projects both large and small, which will provide a seamless workflow for the City of Bozeman’s project. Details concerning the imagery and lidar acquisition technology are provided below. Digital Aerial Imagery. The UltraCam sensor supports aerial photogrammetric missions for the broadest range of GIS and remote sensing applications. 4-band aerial imagery will be collected in the Spring of 2025 and 2026 (and optionally in 2027) at 3-inch pixel resolution. The complete data acquisition system delivers small scale or large-scale images with high-quality resolution at engineering-scale accuracy, capable of supplying images with ground resolutions of less than 2.5cm. Designed with break-through technologies, the modular system consists of state-of-the-art components, centered on frame sensor technology, to advance all aspects of the digital workflow. The following are features and benefits associated with ASI’s UltraCam Eagle and peripheral equipment:• Simultaneous collection of panchromatic, true color (RGB), and near infrared bands (RGBIR).• Ground resolution of 13,080 pixels along track and 20,010 pixels across track• 12-bit radiometric resolution• FMC forward motion compensation • Gyro-stabilized mount• Applanix 510 POS/AV system with Litton 200 Inertial Measurement Unit (IMU)• Computer controlled navigation system Lidar Specifications We understand that the City’s current objective is to acquire updated lidar data for this project over an optional third year in 2027. Ayres has worked with tribes, municipalities, counties, utilities, and state and federal agencies on their lidar and topographic needs for years. Ayres’ work with the USGS 3-DEP program includes grant writing, federal data acceptance, and production of additional derivative products, such as culverts and feature extraction. Aerial lidar will be acquired simultaneously with the orthoimagery in the Spring of 2027. Aggregate nominal pulse density (ANPD) for the QL1 lidar acquisition will be ≥ 8 pulses per square meter (ppsm). Lidar acquisition will be conducted by ASI when the ground is free of snow and ice, and when the atmospheric conditions between the aircraft and the ground are free of clouds, smoke, and fog. The calibrated lidar point cloud will support the development of a bare earth surface model (DEM) to meet the following vertical accuracy requirements: • RMSEz (non-vegetated) ≤ 10 cm (point cloud and DEM). • NVA ≤ 19.6 cm at 95% confidence level (point cloud and DEM). • VVA ≤ 30 cm at 95th percentile level (DEM only). Lidar Sensors. Not all lidar sensors are the same. Even when using current technology, different sensors may provide different results. Some sensors can be flown higher and faster, some can provide a higher pulse rate, some can provide more returns, and some can provide less noise. Ayres has been producing lidar data since the early 2000s, and we dedicate significant time to understand the benefits of each new generation of sensor on the market and modify our project planning and production workflow to adopt the benefits of new technologies to the appropriate projects. Given the large size and high-density requirement for the City of Bozeman’s project, Ayres recommends using Riegl’s 1560II. Among other benefits this system offers: • High laser pulse repetition rate up to 800 kHz. • Unrivaled scan pattern for best point spacing on the ground. 174 11AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. • Innovative forward/backward looking capability for collecting data of vertical structures. • Offers highly efficient data acquisition at a wide range of point densities. • Digitization electronics for full waveform data. • Enables Multiple-Time-Around (MTA) processing for resolving range ambiguities automatically. • Excellent suppression of atmospheric clutter. • Integrated inertial measurement unit and GNSS receiver. Additionally, this sensor is capable of collecting seven or more returns from each lidar pulse, allowing for better penetration of vegetation, less data voids, and better data for feature extraction. It is known to produce very little noise in the data. Flight Planning Quality Assurance. Ayres will take special care in designing an optimal flight plan that will achieve maximum coverage and efficiency for the 3-inch orthoimagery. Upon notice to proceed, Ayres will present the flight plan in the Spring of each project year to the City of Bozeman prior to any flights. For the 2025 imagery acquisition, there will be a total of 1,016 images over the 24 flight lines. For reference, the proposed 3-inch imagery flight plan is shown below. Data for the geographic extents of the project will be acquired using the correct mission profiles for the desired final products. Proper planning of flight lines promotes the success of this project (with minimal rework) – and proper planning optimizes lidar performance versus cost. Mission planning consists of several steps for proper flight preparation. First and foremost, the project boundaries are imported into the flight planning software. Following this, we review available information, such as elevation data, vegetation coverage data, and cultural feature extents of the area. General assessments are made by certified photogrammetrists to determine the proper lidar system settings, such as FOV (field of view) and GSD (ground sample distance). All lidar flight lines will be flown to ensure no data void exists between lines. It is important to note that extra consideration for building lean was taken into account for the 2025 orthoimagery flight planning. In an effort to reduce building lean within the downtown area of the City of Bozeman, we have added an additional cross flight line over downtown area, centered along Main Street. This additional cross flight line will provide additional image frames in an area with taller buildings, allowing for the best possible nadar (straight down) images to be used in image processing to reduce potential building lean. Conditions During Acquisition. Imagery and lidar will be collected in stable weather conditions, e.i., cloud-free, low- moisture, leaf-off, snow-and-ice-free. Photography and lidar will not be captured when the ground is obscured by snow, haze, fog, smoke, dust, or cloud shadows in any one photo. Data will not be collected until all bodies of water in the project area are free of ice. Flight Management System. The aircraft is guided by a GPS-controlled flight management system. During the mission, the crew will monitor all functions involving the operations and guidance systems, allowing for continuous onboard QA. Freshwater Surface Hydrography Conditions. The lidar collection will target low-flow discharge conditions throughout the project area. No unusual flooding or water inundation will be present during the acquisition. Ayres will work closely with the City and local experts to determine the most suitable ground conditions for the flight mission. BOZEMAN FLIGHT PLAN 175 12AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. FAA Certification. All aircraft used in the performance of this contract will be maintained and operated in accordance with all regulations required by the U.S. Department of Transportation, Federal Aviation Administration (FAA). Positive Control Airspace. It will be Ayres’ responsibility to obtain all approvals necessary to ensure that required clearances are achieved for the flight missions. When the flight plan and location of any project area coverage fall within positive-control airspace, the aircraft must contain the appropriate equipment to operate in such positive-control areas within the purview of the federal aviation regulations. In addition to all FAA requirements, all flights requesting clearance in the vicinity of “VIP” type airspace with temporary flight restrictions (TFR) will notify the contracting officer before receiving FAA clearance for instructions. Acquisition Date. Imagery will be flown when deciduous foliage is under leaf-off conditions. The target flight window will be between April 1 and April 30, 2025, or as weather permits. Sun Angle. The sun angle for all flights will be at least 45 degrees above horizon. Stereoscopic Coverage. The entire area of the project will be stereoscopically covered by successive and adjacent overlaps of photographs within the usable portion of the field of the lens. Four Band Imagery. The UltraCam Eagle collects imagery in the standard three RGB color bands, as well as a fourth band for near infrared. Ayres will provide the City with all four-color bands at no additional cost to the City. Crab. Average crab for any flight line will not exceed 3 degrees. Crab will not exceed 3 degrees between any two consecutive flights. Tilt. Imagery collected with the optical axis of the aerial sensor in a vertical position is desired. Tilt is angular departure of the aerial sensor axis from a vertical line at the instant of exposure. Tilt will not average more than 1 degree for the entire project. End Lap/Side Lap. The end lap will average not less than 55% or more than 65%. End lap of less than 55% or more than 65% in one or more images will be cause for rejection. The side lap will average 30%. Any image having side lap less than 25% or more than 35% will be rejected. Reflights. Lack of acceptable imagery or gaps in swaths will be corrected by reflights, with no additional cost to the City. All reflights will be centered on the plotted flight lines and will be taken with the same camera system. Image Review. Immediately upon completion of the acquisition, the imagery will be forwarded for inspection to our digital orthoimagery supervisor, Aaron Sale. Once we confirm successful acquisition and image quality, the City will be notified. If any imagery does not meet the acceptance criteria, a reflight will be scheduled and the City notified. Since completing the 2024 Orthoimagery and Lidar Acquisition project for the City of Bozeman, we feel that the client review process should start earlier, to ensure timely delivery of final products. Digital Orthophotography Production As aerial data collection missions are completed, orthoimagery production will begin. Ayres has significant digital orthoimagery production capability and capacity. We invest heavily in our staff and hardware. Our production methodology is specifically designed to consistently produce high-quality products. Specialists at Ayres will be responsible for all orthoimagery production components of the project. Advancements in production software and our investments in infrastructure favor an increasingly aggressive schedule for the upcoming project; we are committed to meeting the City’s schedule expectations for this project. 176 13AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. Ayres has trained and experienced staff running fully equipped Z/I Imaging digital workstations, NT orthoimagery workstations, and dedicated image editing stations. We’ve designed our complementary production methodologies to facilitate a completely digital workflow using all Z/I hardware and software environments, resulting in a consistent approach to orthoimagery production and a high-quality product. Analytical Aerotriangulation (AT). To maintain an aggressive schedule, it will be critical to prepare for AT immediately upon the successful completion of each imagery mission. This is the first step in the orthoimagery production process and must be completed in efficiently for the rest of the ortho process to proceed on schedule. Planning for sufficient capacity in this area is critical to the project. Several important factors will contribute to the efficient AT processing under our approach. The first is the use of ABGPS and IMU data, which provide image orientation information to streamline AT production. The orientation data significantly reduces processing time and allows us to process large blocks of image data at a rapid rate. AT Solution. Although orientation data will be supplied from the IMU, we will still complete an AT solution to verify the ABGPS and IMU data. We will prepare the AT solution on a Z/I Imaging digital photogrammetric workstation using Z/I Imaging ISAT software. ISAT offers a complete softcopy aerotriangulation software suite that includes interior orientation, point mensuration, relative orientation, and a fully analytical simultaneous least squares adjustment with robust error detection. ISAT incorporates the capability to weigh control points on an individual basis and to correct for image deformation, atmospheric refraction, earth curvature, and lens distortion. Aerotriangulation QA/QC. When a block of aerotriangulation has been completed, all reports and supporting documentation will be examined for compliance with project specifications. This testing will include, at a minimum, the following: ‹Inspect ABGPS positions against AT-derived exposure coordinates ‹Compare AT-derived coordinates of independent QA points against ground survey ‹Inspect measurements, residuals, weights, RMSE in AT listings ‹Verify all AT support and measurement files are in archive ‹Verify metadata is complete and in proper format Rectification Type. We will use a cubic convolution resampling method for all orthoimagery rectification. This method preserves fine detail better than the common bilinear algorithm. Our imagery specialist will take extra caution around overpasses and bridges to ensure the correct horizontal location of these features holds true. Tone Balancing. Digital orthoimagery is subject to tonal imbalances due to several factors, including source photography (sun angle, illumination, atmospheric conditions, and date and time of exposure), image characteristics, and image processing. Our ortho specialists will not only tonal balance the individual images, but also will use tonal balancing techniques to the project. This process will eliminate the flight line effect and individual photo effect. Digital Terrain Model (DTM) For the 2025 and 2026 imagery projects, a DTM using existing lidar data will be used to orthorectify the imagery. For the optional 2027 combined imagery and lidar project, a newly acquired DTM will be employed to orthorectify the imagery. The data will be thoroughly reviewed by Aaron Sale, our orthoimagery supervisor, and he will report any inconsistencies to the lead lidar specialist, Drew Knight. Radial Displacement. Our ortho production staff will also manually correct radial displacement and distortion of bridges and overpasses through a series of pre-rectification 177 14AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. measures and post-processing edits. A thorough examination of these features will be conducted during the interim and final QA/QC checks. Mosaicking. To achieve consistent tone across the project area and to address the overlap between tiles, we will seamlessly mosaic the images. We will select imagery in a way to use the most advantageous area of each photo to maximize color, tone, and contrast, and at the same time reduce building lean and “ghosting,” as well as glare in water bodies. Image mosaicking will be accomplished by a combination of automated tools and manual methods. All seam lines will be placed manually to eliminate the issues of noticeable seam lines through buildings, bridges, and other features. Following the completion of imagery production, a shapefile of seam line locations will be provided to the City. We will use manual editing procedures to provide QA/QC for every tile for visible seam lines in water bodies, warped bridges, and any anomalies that may affect the accuracy or aesthetics of the imagery. We will use photogrammetric software products such as Z/I Imaging’s Digital Ortho- Production Suite: ImageStation OrthoPro, PixelQue, IRAS/c, and Digital Image Analyst. Orthomosaics. Ayres will prepare the project wide mosaic imagery at the original 3-inch pixel resolution for maximum quality and accuracy. In addition to the 3-inch mosaic, both 6-inch and 12-inch resolution orthomosaics will be provided for ease of use for City staff and community members. Providing mosaics at the various resolutions will maximize the accessibility of the mosaic to the City’s user base, allowing selection of the most appropriate resolution based on user requirements and their available processing and rendering capabilities. The 3-inch and 6-inch resolution mosaics will be provided as additional deliverables at no added cost to the City. Accuracy. Resultant orthoimagery will be 3-inch orthos that will conform to National Map Accuracy Standards (NMAS) for 1”=50’ scale mapping; this translates to a horizontal accuracy of +/- 1.7 feet. Orthoimagery Tiling Scheme. Ayres will use the City- provided tiling scheme to deliver edge-matched, non- overlapping tiles. This tile scheme will match the 2024 final product delivery, unless otherwise noted by the City. The same tile scheme will be used for the orthoimagery and the lidar. Should the City want to use a different scheme for their 2025 project, Ayres will work with the City to accommodate that request. Digital Orthoimagery Pilot Projects. Early in the imagery production phase, a pilot area consisting of geo-referenced TIF images can be provided to the City for review and feedback. We propose further discussion concerning the best area for review during the project kick-off meeting. Coordinate System/Datum. All mapping products associated with this project will be prepared and delivered in both Montana State Plane NAD83 (2011) meters, NAVD88 meters and UTM Zone 12 NAD83 (2011) meters, or another agreed upon coordinate system. Orthophotography Quality Control Project manager Tyler Kaebisch will be responsible for coordinating the final QA/QC of the orthoimagery. Our highly trained technicians will visually scour the imagery looking for anomalies or potential errors. If further editing is needed, a detailed edit call report will be returned to Ayres to perform corrections as needed. If the data meets specifications, the orthoimagery will be prepared for the final battery of checks. While overseeing the QA/QC, Tyler will work with the City to develop a check-in process for the imagery and a method by which edit calls can be recorded. If the City determines that the data needs further editing, Tyler will determine what action needs to be taken in the orthoimagery process. The Ayres team will conduct the following QC procedures: 1. Create an overview of each deliverable and combine the overviews to inspect overall radiometry, geographic accuracy, and complete coverage. 178 15AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. 2. Orthoimagery QA technicians will perform QC on each image. QC forms will be submitted with the Project Planning Manual. A thorough inspection of every ortho image tile will be conducted with an evaluation criteria based on: ‹Seamless geometry ‹Seamless radiometry ‹Appropriate dynamic range ‹Appropriate mean intensity ‹Appropriate contrast ‹Detection of data dropouts ‹Complete coverage ‹Appropriate resolution ‹Shadows, clouds, low sun angle ‹Bridge, overpass distortion Lidar Data Processing Ayres has extensive experience processing lidar data to meet strict specifications over large areas. Our technicians will use several software packages specifically designed for lidar processing. These software packages include GeoCue and the TerraSolid suite of processing components. The GeoCue software is a database management system for housing the lidar dataset (usually multiple gigabytes to terabytes in size). Additionally, the GeoCue program incorporates a thorough checklist of processing steps and QA/QC procedures that assist the technicians in the lidar workflow. Hydro-flattening Breaklines. We will collect new breaklines in a 3-D environment to support appropriate modeling and hydro-flattening of contours along water bodies. Whereas some geospatial firms take the approach of using existing hydro vectors or heads-up digitized “breaklines” as a means of cutting processing cost, our team collects new breaklines in a 3-D environment. Our approach will ultimately result in a much truer horizontal and vertical position of hydrographic features and will more accurately reflect conditions at the time of lidar acquisition. The result will be a more accurate surface model and cleaner contour generation across the entire project. Hydro breaklines are collected using lidargrammetry. This process involves manipulating the lidar data’s intensity information to create a metrically sound stereo environment. From this generated “imagery,” dependable breaklines can be photogrammetrically compiled. This capability allows us to offer high-accuracy terrain data from lidar without supplemental aerial imagery. Breakline polygons are formed to represent open water bodies, including lakes, and streams. While the current USGS 3-DEP base project standards call for hydro breaklines to be created for streams wider than 100 feet and ponded water of two (2) acres or greater, it is important to note that for the City of Bozeman project, we will be collecting hydro breaklines according to the following specifications:• Double-lined breaklines for streams and ditches greater than 2 meters wide• Water bodies (ponds, lakes, reservoirs) greater than ¼ acre in size Additional breaklines will be collected for bridges, culverts, and streams and ditches less than 2 meters wide for production of a hydro-enforced DEM and Elevation Derived Hydrography (EDH). Additional details for the below in the Hydrographic Mapping Services sections. Point Cloud Automated Classification. The TerraSolid suite of software is used to automate the initial classification of the lidar point cloud based on a set of predetermined parameters. It is at this point that we will refer to the ground cover research (natural and cultural features) within the project area. This will be very useful in determining the algorithms most appropriate for the initial automated lidar classification. (Some algorithms/filters recognize the ground in forests well, while others have greater capability in urban areas.) During this process each point is given an initial classification based on the point’s coordinates and its relation to its neighbors. The initial values offer a coarse and inexact dataset but are a good starting point. It is 179 16AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. during this step that “overlap” points are automatically classified (those originating from neighboring flight lines). This classification is based on information gathered from the AGPS and IMU data. Point Cloud Manual Classification. TerraSolid is also used for the subsequent manual classification of the lidar points. This software permits technicians to view the point cloud in a number of ways and within a number of contexts provided by other available datasets such as orthos or road centerline files. This combination of automated and manual processes provides a cost-effective approach to the tedious practice of point classification, while still allowing our talented technicians to review and confirm the results of automation. Current USGS base specifications require delivered point cloud in LAS v1.4 format. Classification includes: • Class 1: Processed, but unclassified • Class 2: Bare-earth ground • Class 6: Buildings (automated & manual, if necessary) • Class 7: Low noise • Class 9: Water • Class 17: Bridge decks • Class 18: High noise • Class 20: Ignored ground (breakline proximity) Surface Models. Once the hydro-breaklines and point cloud classification are complete, Ayres will derive the following surface models:• 1-foot pixel resolution Digital Terrain Model (DTM): Elevation data points will be delivered as either a regular or irregular DTM in esri geodatabase compatible format • 1-foot pixel resolution Digital Elevation Model (DEM): Gridded raster representation in esri geodatabase compatible format • 1-foot pixel resolution Hillshade: Grayscale 3-D representation of the bare-earth surface in esri geodatabase compatible format Contours. Ayres can deliver 1-foot contours processed from the lidar surface. After the DTM processing is complete, our GIS technicians will generate the final contours using Boeing-Autometric KDMS software, a TIN-based system. The index contours, intermediate contours, index depressions, and intermediate depressions will be clipped to the tile boundaries. Each contour line will be attributed with the elevation value. The contours will then be topologically cleaned to ensure a seamless dataset across the project area and translated to an .esri geodatabase. Lidar-Specific QC Quality control of lidar is a system of routine technical activities to measure and control the quality of the mapping deliverables and services as they are being performed. The QC system is designed to: • Provide routine and consistent checks to ensure data integrity, correctness, and completeness • Identify and address errors and omissions • Document and archive inventory material and record all QC activities Ayres’ lidar QA/QC specialist, Drew Knight, CP, will lead the lidar QA/QC process. In that capacity, he will work with project manager Tyler Kaebisch, to fulfill our team’s commitment to providing quality products and services. In his supervisory role, Drew has a number of specific technical workflows at his disposal. The following highlights the primary steps in a lidar QC plan: 180 17AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. a. Review mission logs and examine mission parameters b. Vertical accuracy validation c. Automated edit of the raw data d. Visual inspection of data e. QC of lidar classification f. Systematic review of point clouds g. Surface model verification (a) Review Mission Logs and Parameters. The first step in the QC process is to review the mission parameters against the statement of work and the overall project objectives. Once the flight specifications are confirmed, the base station data sheets and AGPS data will be reviewed to determine that they meet required tolerance and minimum requirement for operation. Additionally, the raw data will be reviewed to verify project area coverage, individual swath overlap parameters, and appropriate point density. (b) Vertical Accuracy Validation. Using a “Z-probe” methodology, the lidar supervisor will compare surveyed ground control, independent check points, and published monuments against the lidar bare-earth surface. This statistical test will verify that the lidar acquisition and calibration has been completed to meet the accuracy objective of the project. (c) Automated Edits. This process will ensure the removal of extraneous points and artifacts. Additionally, it will determine that all desired features have been retained within the dataset. Filtered and edited data are subjected to semi-automated algorithms defined within our internal production manuals. (d) Visual Inspection. A series of quantitative and visual procedures is employed to validate the accuracy and consistency of the filtered and edited data. Importantly, human eyes will review every square mile of the project. A rigorous peer-to-peer system, in addition to the overall QA/QC process, results in a substantial focus on quality and precision. (e) QC of Lidar Classification. After querying specific tiles into their workspace, our technicians will begin scanning through the tile, searching for areas where the automated classification routine erred. They will view the datasets from numerous angles, generate triangulated irregular networks (TINs) or contours, and consult shaded relief models to fully understand the data model at each point of their analysis. Using this information and technical experience, our technicians will detect, investigate, and correct any areas that display anomalies – i.e., areas where the automated classifications show weakness. (f) Systematic Review of Point Clouds. The technicians will systematically work their way through anomalous areas – taking narrow swaths of data, viewing the swath from isometric and profile viewpoints, and reclassifying each point in accordance with their expertise. Technicians focus on eligible classifications, which include “unclassified” (buildings, vegetation, and other non-terrain/non-noise features), “ground,” and “noise.” Points falling under the “water” and “overlap” categories are weeded out effectively during automated procedures. (g) Surface Model Verification. After this process is complete for the area, the technician will generate new TINs and contours to determine that the anomaly has been fully addressed. If it has, the technician will continue scanning the tile for other anomalies. This procedure will continue until the tile has been determined to meet or exceed project specifications. At this point, the technician will query the adjacent tile and continue working. Planimetric Mapping Services We understand there is a need for new planimetric mapping features for the project area. During the 2025 and 2026 orthoimagery only projects, newly updated planimetric mapping of Sidewalk Centerlines will be collected for the 21 square mile City Limits project area. For the optional orthoimagery and lidar 2027 project, in addition to updated Sidewalk Centerlines, Building Footprints with heights will be collected for the entire 78.7 square miles project area. Our process ensures feature alignment is congruent with coinciding features for provision of a seamless dataset. The final product for all 181 18AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. planimetric features will be consistent with National Map Accuracy Standards for 1” = 50’ horizontal map scale. Building Footprints. Ayres will collect 2-D building footprints for the entire project area derived from the Lidar buildings classification collected for this project. Building footprints will be digitized at the building roof edge (drip line) for structures with a minimum size of 100’ x 100’. Buildings will be topologically structured and delivered as 2-D flattened polygons in ESRI geodatabase format. In areas where buildings meet either pavement edge or impervious surface features, a topology will be run to ensure seamless line work between different feature types. Buildings will have a maximum height above ground as at attribute within the attribute table. Sidewalk Centerlines. Ayres will stereo-graphically compile all sidewalk centerlines within the City limits. All public sidewalk centerlines will be captured. Ayres will review any existing City polygon sidewalk inventories to aid in identifying potential areas of change. Sidewalk centerlines will be captured and prepared as polylines. The mapping will be delivered in ESRI geodatabase format. Hydrographic Mapping Services We understand there is a need for new hydrographic mapping features for the project area during the optional third year of orthoimagery and lidar collection in 2027. Updating watercourse hydrography for the 78.7 square mile project area will greatly benefit any potential drainage and storm water studies the City intends to perform in the future. In order to correctly capture all drainage and depressions along the landscape, Ayres recommends collecting an updated culvert inventory dataset from the lidar and imagery to ensure water modeling will replicate the true flow of water within the project area. If the City already possesses a recent culvert inventory database, Ayres will use it to ensure proper representation of water flow. By using the lidar DEM surface and the culvert inventory, a hydro-enforced DEM will be created allowing all water conveyance features across the landscape to be captured. 3-D Hydrographic Mapping from lidar. Ayres uses the ArcHydro toolset to derive intermediate lidar raster products and ultimately polylines representative of accumulated flow across the landscape. Using the hydro- modified DEM, an interactive process of creating flow directions, contributing areas, and stream raster grids will be generated as part of hydrography processing. Elevation Derived Hydrography will replicate the flow of water at a 1 : 2,400 scale. Ayres will work with the City to determine the level of detail needed to capture the river, streams, drainages, and ditches within the project area. The following hydrographic features will be captured: Culverts and Bridges• Breaklines will cut through culverts and bridges and will allow water to flow from the tops of hills all the way down through the stream network. A hydro-enforced DEM will be produced with the lidar DEM and culvert and bridge breakline datasets. Ponds and Lakes• Ponded water of 1/4 acre and larger will be captured as part of the hydrobreakline process within the standard lidar processing deliverables. Rivers, Streams, and Ditches• Rivers, streams, and ditches 2 meters and wider will be captured as part of the hydrobreakline process within the standard lidar processing deliverables.• Rivers, streams, and ditches less than 2 meters in width will be captured as polylines with the ArcHydro 3-D Hydro mapping tools. 182 19AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. Deliverables D) SCOPE OF PROJECT Orthoimagery 2025 & 2026• Project plan• Sample imagery for pilot area review• 4-band orthoimages by tile, GeoTIFF format• 4-band Orthomosaic for entire City provided at 3-inch, 6-inch and 12-inch resolution, MrSID format Planimetric Mapping Features 2025, 2026, & 2027• Sidewalk Centerlines, within City limites, esri shapefile format Optional 2027 Lidar Deliverables• Bridge and Overpass Breaklines, esri shapefile format• Raw and Classified Lidar Point Coulds, LAS version 1.4 format• Hydro-Breaklines, esri shapefile format• Culvert and Bridge Breaklines, esri shapefile format• Elevation Derived Hydrography Breaklines, esri shapefile format • Lidar DEM, DTM, Hillshade, Hydro-enforced DEM, 1-foot pixel, geotif or esri geodatabase compatible format• 1-foot Contours, esri shapefile format• Planimetric Mapping Features ‹2-D Building footprints with height attributes, esri shapefile format Reports (for each year’s project) ‹Flight plan and logs ‹Calibration report ‹Survey control report, with quality check shots ‹Aerial triangulation report ‹FGDC metadata, .xml format ‹Progress reports ‹Final project report Data Delivery An external hard drive will be delivered to the City with all of the deliverables available to upload into the City GIS. Ownership Ayres has always assigned ownership and copyright to our clients at the completion of a project and will do the same with this project. Schedule Ayres proposes the following schedule to complete the City’s project successfully. We are open to adjustments to this schedule based on input from the City of Bozeman, including expedited delivery of pilot areas and final deliverables. MILESTONE DATE Ground control survey April 1 to 30, 2025, 2026, and optional 2027 Aerial imagery acquisition April 1 to 30, 2025, 2026, and optional 2027 (as conditions permit) Lidar acquisition Collected simultaneously with aerial imagery (for optional 2027 project only) Delivery of pilot area June 1, 2025, 2026, and optional 2027 Initial delivery of orthoimagery July 15, 2025, 2026, and optional 2027 City review period of imagery (and optional lidar in 2027)July 15 to July 22, 2025, 2026, and optional 2027 Final delivery of imagery products (and optional lidar in 2027)Approximately July 31, 2025, 2026, and optional 2027 Initial delivery of sidewalk centerlines (and optional lidar derived building footprints and hydrography products in 2027) July 15, 2025, 2026, and optional 2027 City review period of building footprints, sidewalk centerlines, and hydrography products July 15 to July 22, 2025, 2026, and optional 2027 Final delivery of all product Approximately July 31, 2025, 2026, and optional 2027 183 20AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. E) RELATED EXPERIENCE Wisconsin Regional Orthoimagery Consortium – Imagery and Lidar The WROC is a multi-entity group whose goal is to build and sustain a multiparticipant program to acquire elevation data and digital orthoimagery throughout Wisconsin for use in tasks ranging from tax assessment to emergency management. WROC 2025 marks the seventh time since 1995 that a regional consortium in Wisconsin, including Ayres as a key partner, has worked together towards this goal. During the 2020 cycle, 11,000 square miles of aerial lidar and 56,000 square miles of aerial imagery was acquired, with the Ayres team delivering customized datasets to more than 100 separate entities. Ayres was again selected to manage the WROC Program thru 2025. The program continues to grow and has now collected lidar statewide and will collect aerial imagery for all 72 Counties. The public has gained access to statewide aerial imagery coverage through this program. Over the years public and private partners have contributed significant funds toward imagery and lidar projects in exchange for access to these high-quality spatial datasets. Partners include utilities, electric cooperatives, tribes, municipalities, private industry, and state and federal agencies. Examples of diverse products within the WROC program include: • Lidar with 1-foot and 2-foot contours for floodplain studies • Detailed planimetric mapping for GIS • Multispectral imagery for environmental analysis and forestry• 6-inch or 12-inch resolution orthoimagery for countywide projects • 3-inch resolution for municipalities • 18-inch resolution derivative regional datasets To facilitate a cooperative approach for orthoimagery data acquisition, WROC and Ayres worked with the Wisconsin land information community to strengthen relationships among local, regional, state, and federal entities, as well as tribes and utilities. The program is designed to allow all participants to receive products and services tailored to their individual geospatial needs. Participants were given a range of orthoimagery options from 3-inch up to 12-inch resolution in addition to specialized formatting and coordinate system outputs. Customized photogrammetric and lidar services also make up a significant part of the WROC program. We collected countywide lidar in conjunction with new aerial imagery. Ayres was able to use the surveyed lidar data to process the orthoimagery to meet and exceed ASPRS Class 2 horizontal accuracy specifications. Lidar data was also collected in conjunction with an NSSDA survey to check its accuracy. Client Information North Central Wisconsin Regional Planning Commission 210 McClellan Street, Suite 210 Wausau, WI 54403 184 21AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. Montana State Library Point Cloud Classifications 2023-2024: Automated and Manual 2-D Building Generation Over the winter of 2023/2024, Ayres was selected by the Montana State Library to classify vegetation and buildings from a lidar point cloud for 2,928 square miles of land covering Sanders County, Montana. Lidar data was processed from August 2023 through December 2023 utilizing USGS Quality Level 2 lidar that was collected in Fall 2020. The primary goal of this project is to increase the value of the data that was collected by expanding upon the initially unclassified point cloud into buildings, as well as low, medium, and high vegetation. Building footprints were also derived from the classified point to provide the county with accurate location of structures in a GIS-friendly format. 2-D building footprints were extracted from lidar building points collected from the roof surface and classified as buildings. Once building points are properly classified through automated routines, a manual review and clean-up process is run to remove any potential noise or overhanging vegetation. Buildings are classified for any structures larger than 100 square feet and taller than 10 feet. These points are then processed through modeling software which employs edge-detection macros to determine the outside extents of buildings, resulting in footprints of the building locations. A QC process is then employed to review for any irregularities caused by the obstruction of buildings by vegetation, and if necessary, footprints manually edited to reflect the building’s true shape. The result is that the building edges are compiled without horizontal displacement. When compared to orthoimagery, buildings derived from lidar represent more horizontally accurate rooflines. Since orthoimagery is draped to the ground surface, the tops of buildings are displaced from true position, often referred to as “building lean.” The further from the center point of the camera during flight the greater the displacement. To ensure a minimum of 95% of 100-square-foot and larger buildings and 98% of 200-square-foot buildings are captured, an additional QA/QC step of reviewing building footprints against existing reference data sources, such as Google Earth imagery, Microsoft Building database, and ancillary road centerline data sourced from Montana DOT will be applied. During this step any missing or incorrect building classifications will be adjusted and corrected. The Montana State Library has a catalog of lidar data for nearly the entire State of Montana. The automated and manual review process described above can be created throughout the State, supporting the potential for a statewide building footprint layer. Client Information Montana State Library 1515 E. Sixth Avenue Helena, MT, 59620 185 22AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. Rapid City MPO 2023 Lidar Derived 3-D and 2-D Buildings In 2023, Ayres was selected by the Rapid City MPO to collect and process 3-inch orthoimagery and 8 ppsm lidar data. As a project enhancement, the Rapid City MPO elected to generate 2-D and 3-D building information from the lidar data. Utilizing the building classification, 2-D building footprints and 3-D multipatch building features were extracted from the lidar point cloud. Compiling building footprints from lidar is an example of a new approach to automated feature extraction, which can be more efficient and cost effective than manual compilation of 2-D and 3-D features. With lidar, the points are collected from the roof surface and classified as buildings. These points are then processed through modeling software which employs edge-detection macros to determine the outside extents of buildings. The result is that the building edges are compiled without horizontal displacement. The QL1, 8ppm lidar density acquired for Rapid City MPO lidar project is geared to allow for more complex feature extraction and supports 3-D building multipatch features. Automated editing as well as a degree of manual editing was necessary to help clean up areas where dense vegetation partially obscures buildings. When compared to orthoimagery, buildings derived from lidar represent more horizontally accurate rooflines. Since orthoimagery is draped to the ground surface, the tops of buildings are displaced from true position. The further from the center point of the camera during flight the greater the displacement. With lidar, the points are collected from the roof surface and classified as buildings. These points are then processed through modeling software which employs edge-detection macros to determine the outside extents of buildings. The result is that the building edges are compiled without horizontal displacement. Sources: Esri, Airbus DS, USGS, NGA, NASA, CGIAR, N Robinson, NCEAS, NLS, OS, NMA, Geodatastyrelsen,Rijkswaterstaat, GSA, Geoland, FEMA, Intermap and the GIS user community, Esri Community Maps Contributors,County of McHenry, © OpenStreetMap, Microsoft, Esri, HERE, Garmin, SafeGraph, GeoTechnologies, Inc, METI/NASA, USGS, EPA, NPS, US Census Bureau, USDA Client Information Rapid City Area Metropolitan Planning Organization (MPO) 300 6th Street Rapid City, SD 57701 186 23AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. Bismark-Mandan MPO Orthoimagery and Lidar, 2020 The Bismarck-Mandan Metropolitan Planning Organization (MPO) kicked off its partnership with Ayres in 2009 to collect aerial imagery and lidar to modernize its base mapping data. The MPO has since acquired 6-inch imagery and 1-foot contours derived from lidar in 2013 and 2016. In 2020, Ayres provided the MPO with higher resolution data products, including 3-inch pixel orthos and lidar to support 1-foot contours and high accuracy surface modeling and change detection. At Ayres we’re big supporters of both formal and informal regional organizations banding together for aerial mapping services. Through programs such as this one, we’re able to facilitate collaboration among organizations in need of similar services, which becomes a mutually beneficial relationship. This approach is not only extremely cost effective but also allows for the growth of standardized, high-quality geospatial datasets across regional borders. Project Details (March to November 2020):• 395 square miles of high-resolution 3” orthoimagery• 395 square miles of lidar to support 1-foot contours Idaho Transportation Department Payette River Highway 21 Bridge Mapping 2019 Ayres acquired 20 ppsm aerial lidar and 3-inch imagery and provided a digital elevation model (DEM), InRoads digital terrain model (DTM), and orthoimagery for approximately 1 square mile surrounding the Highway 21 Bridge over the Payette River in Lowman, Idaho. Client Information Bismark-Mandan Metropolitan Planning Organization 221 N. 5th Street Bismark, ND 58506 Client Information Idaho Transportation Department 3311 W. State Street Boise, ID 83707 187 24AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. Schweitzer Mountain Resort Lidar, Orthoimagery, and Planimetric Mapping 2021 Ayres was retained by Schweitzer Mountain Properties and construction management agent OAC services of Seattle to acquire aerial imagery and high density lidar and to provide survey and mapping of the Schweitzer Mountain Resort near Sandpoint, Idaho. The 7,000-acre resort in the rugged Selkirk Mountains of the northern Idaho panhandle is considered to be one of the best family-friendly ski resorts in the Pacific Northwest. This mapping will support the initial planning and design stages of a 10-year expansion effort for the resort. Ayres performed the ground control targeting survey and acquired 3-inch color aerial imagery and high-density 20 ppsm lidar with a simultaneous collection aerial mission and provided our client with digital orthoimagery including large scale laminated color wall maps, colorized lidar point clouds, digital elevation model, contour mapping, and 50 scale planimetric mapping of roads, buildings and other pertinent infrastructure. Client Information OAC 2200 1st Avenue South, Suite 200 Seattle, WA 98134 “Ayres exhibits exceptional customer service and responsiveness. During the City’s hour of need, Ayres staff worked nights and weekends to assist in condition assessments, field solutions, and coordination of resources.” Chris Matkins Water Utilities Manager City of Loveland, CO 188 25AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. City of Loveland Lidar and Orthoimagery In the spring of 2021, Ayres was selected to provide lidar and orthoimagery mapping services for the City of Loveland located in southeastern Larimer County, Colorado. For this project, Ayres used a calibrated lidar sensor and digital photogrammetric camera for a simultaneous collection of high-density aerial lidar and 3-inch photography to derive orthoimagery, 1-foot contours, and a detailed surface model. Lidar and aerial imagery were collected and processed for 70 square miles, which included the City of Loveland Growth Management Area and the Loveland Water Storage Area. Quality Level 1 lidar was collected at 8 pulses per square meter, and the calibrated lidar point cloud supports a bare earth surface model meeting a vertical accuracy of RMSEz of <= 10 cm, and NVA of <= 19.6 cm at the 95% confidence interval for the point cloud and digital elevation model (DEM). The 3-inch digital orthoimagery meets ASPRS Level 2 horizontal accuracy standards of 0.7 feet RMSE, which equates to 1.2 feet at the 95% confidence interval according to NSSDA standards. The calibrated lidar point cloud was classified to the USGS standardized base classification scheme. A DEM consisting of bare-earth ground points was also derived to support the interpolation of 1-foot interval contours to National Map Accuracy Standards. Additionally, Ayres complied hydro-flattened breaklines for ponded water that is two acres or greater and double line streams that are 20-feet in width or greater, which were used in the creation of the bare earth DEM and contours. Ayres collected all ground control survey points required to complete this project. Final deliverables to the City of Loveland included: ‹Raw and classified lidar point clouds in .Las format ‹A DEM surface in GeoTIFF format ‹1-foot contours in Esri file Geodatabase ‹3-inch color orthoimagery tiles in GeoTIFF and MrSID format ‹City-wide orthomosaics in GeoTIFF and MrSID format ‹FGDC-compliant metadata ‹Survey, control, and vertical accuracy reports The City again selected Ayres for work in the fall of 2022 using the stereo pairs from the digital aerial imagery to derive detailed planimetric mapping of the edge of asphalt for all streets within City of Loveland’s growth management area, approximately 66 square miles. The planimetric mapping features identified from the imagery are being mapped to 1” = 50’ scale mapping (1.0 feet RMSE using the National Standard for Spatial Data Accuracy [NSSDA] testing procedures). Client Information City of Loveland 500 E. 3rd Street Loveland, CO 80537 189 26AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. Illinois GIS Consortium: Lidar, Aerial Imagery, and Planimetric Mapping The Illinois-based GIS Consortium (GISC) represents one of Ayres’ most complex geospatial programs and exemplifies our background in performing large-scale mapping in urban environments. The GISC is a group of more than 30 communities in the Chicago region that work together to develop GIS solutions to support a wide range of applications, including municipal engineering, planning, forestry, and public safety. Ayres has been providing high-accuracy mapping and surveying services to member communities since the 1990s. The GISC continues to work with Ayres year after year; we completed the 2023 mapping projects and are currently completing the 2024 data collections and mapping initiatives.   The mapping performed for the GISC is designed primarily for daily use in municipal engineering. Annual aerial missions maintain up-to-date base mapping data, consisting of 3-inch resolution orthoimagery, 1” = 50’ scale planimetrics, and 1-foot interval contours derived from high-resolution lidar. Ancillary products have included leaf-on aerial imagery for urban forestry applications, 3-D modeling of structures, and tall building-lean mitigation in business districts. Most of the GISC falls within a 10-nautical-mile radius of Chicago’s O’Hare International Airport. This is one of the most difficult airspace environments in the United States and presents unique challenges during each flying season. Ayres has built strong relationships with the Federal Aviation Administration, Terminal Radar Approach Control Facilities, and the O’Hare Air Traffic Control Tower. Recurring temporary flight restrictions add another dimension to security restrictions in the area. Client Information GIS Consortium 188 A Skokie Valley Road Highland Park, IL 60035 190 27AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. MDT Bridge Scour Study, Multiple Locations in Montana This Montana Department of Transportation (MDT) project was a bridge scour study of 13 different bridge sites located throughout the state. KLJ worked with Ayres as a subconsultant providing surveying and hydrologic analysis support. A hydrological study of each site included surveying the bridge structure and river channel both directions for two-thirds of a mile. Two of the sites along the Yellowstone River required aerial lidar surveys for the upland areas. The first site was located in Livingston and the second near Custer. These locations did not have publicly available lidar to analyze the upland areas. KLJ laid ground control points and ground proofing points for each of these locations. For every site KLJ established MDT approved control points using static bases lines and network adjustments. Perma Curves (MT-200) STTP-F 6-1(36)83, Paradise, MT This MDT project is the design of a five-mile stretch of Highway 200 along the Flathead River east of Paradise. The highway traverses a dangerous corridor between rock cliff faces and the Flathead River. A portion of the project lies on the Flathead Indian Reservation and includes culturally sensitive areas to CSKT. The project corridor was flown with a helicopter enabled with a lidar sensor. Ground control panels were placed along the corridor. The crews coordinated access to private land to place that targets and operated GPS base stations during the flight. Cross-sections of the corridor were used to ground truthing the flights. Aeronautical Survey and Airport Airspace Analysis, Laurel, MT This Aeronautical Survey with Vertical Guidance for an Airport Layout Plan developed Instrument Procedure Development for the airport serving Laurel, Montana. Ground survey included establishing control points using GPS baselines, tie in photogrammetry control features, identify/measure vertical obstructions, and topographical survey of the runway and air traffic control apparatus. Using NGS established GPS control points and KLJ established aerial targets, photogrammetry and lidar was used to yield two-foot contour intervals. All the survey data was then transferred to AGIS as part of the final project report. Client Information Montana Department of Transportation 2701 Prospect Avenue Helena, MT 59620 KLJ PROJECT EXPERIENCE 191 28AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. City of Bozeman Experience (KLJ) NEURD Roadway Design and Construction Projects, Bozeman, MT – KLJ provided design and construction of more than 5,000 linear feet of street and utility reconstruction projects through the City of Bozeman’s Northeast Urban Renewal District (NEURD). The projects consist of complete removal and replacement of all public sanitary sewer and storm drain systems within the project corridor, removal and replacement of public water systems, and full-depth reconstruction of new urban street sections. Street reconstruction consisted of dedicated vehicular travel lanes with on-street parking, as well as shared-use travel lanes and dedicated bike lanes, traffic calming elements consisting of intersection bulb-outs, traffic circle, and a section of center-raised median. Construction also consisted of numerous drive approaches and pedestrian and Americans with Disabilities Act (ADA) facility improvements. KLJ led multiple neighborhood meetings to communicate construction requirements and schedules and coordinate resident concerns and business requirements. Permitting acquisition for these projects was required to secure six separate permits from four separate regulatory agencies. We also provided construction administration services and assisted with RPR services. North Wallace Avenue – The North Wallace Avenue project required a significant amount of coordination to minimize impacts to mature street trees and existing utilities. Design included 5,000 linear feet of new roadway pavement; new curbs and gutters; ADA facilities; an upsized 18-, 24-, and 30-inch storm drain trunk main and curb inlets; a storm retention pond; new stormwater pre-treatment structure; replacement of existing water and sanitary sewer systems, including upsizing Front Street interceptor sewer to a 24-inch main with 36-inch jack and bored cased crossing of Bozeman Creek; and a new concrete wingwall for the East Tamarack Street Bridge over Bozeman Creek. Extensive utility relocations were required with many undocumented and abandoned utilities dating back to the turn of the century. East Tamarack Street Reconstruction – KLJ provided roadway and sanitary sewer main improvements for a 0.20- mile urban roadway reconstruction project. KLJ was hired to design the reconstruction of one of the oldest streets in Bozeman. Included in the design are 0.20 miles of roadway reconstruction, upsizing the existing sanitary sewer main to a new 24-inch diameter sanitary sewer, storm drain improvements, new five-foot sidewalk on both sides of the street, numerous ADA facilities, a new dedicated bicycle lane, new roadway signage, new pavement markings, and utility coordination. East Peach Street Reconstruction – The project was a 0.25- mile urban roadway reconstruction project. KLJ designed reconstruction of one of the oldest streets in Bozeman. Included in the design were 0.25 miles of roadway reconstruction, new eight-inch water main, new eight-inch sanitary sewer main, storm drain improvements, new sidewalk, numerous ADA facilities, new roadway signage, new pavement markings, and utility coordination. 192 29AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. Ayres is a nationwide professional consulting firm providing services in photogrammetry, lidar, and digital mapping; GIS; survey; civil, structural, transportation, river, and water resources engineering; environmental science; planning; architecture; landscape architecture; and mechanical, electrical, and plumbing engineering. Our employee-owned firm was founded in 1959 by Owen Ayres, an engineer who instituted many of the practices we follow: working with clients as a partner; offering smart, creative solutions; conducting business with the utmost integrity; and providing employees challenges and the opportunity to advance and invest in their company. Incorporated in Eau Claire, Wisconsin, Ayres now employs approximately 400 people. Ayres has 12 offices in Wisconsin, Colorado, Wyoming, Florida, Minnesota, North Carolina, and California. Ayres’ geospatial division is based in Madison, Wisconsin. The geospatial division originated as Alster & Associates Photogrammetric Engineering (founded in 1951), who merged with Ayres in 1978. The geospatial division has over 60 people. Credentials held by these employees include multiple Certified Photogrammetrists, GISPs, Certified Mapping Scientists in several specialties, and Professional Land Surveyors. There are also many highly trained technicians and project managers, all of whom have formal education in the discipline of geography. As shown in the Related Experience section, Ayres’ staff has brought unparalleled experience providing geospatial and survey to municipalities throughout the nation. This breadth of expertise and deep capacity means that Ayres can simultaneously perform and complete a variety of projects on schedule and meeting or exceeding client needs and expectations. Ayres’ geospatial division provides a diverse range of mapping services to clients in the West and nationally, including: • Digital orthoimagery • Planimetric and topographic mapping • Digital terrain modeling (DTM) • Remote sensing • GIS consulting, training, and development • GPS and conventional survey • Aerial lidar (fixed wing and helicopter) • Oblique aerial imagery • Ground-based lidar (mobile and HD scanning) Ayres has been providing aerial imagery to local governments for over 25 years. Ayres helped launch and develop what is now known as the Wisconsin Regional Orthoimagery Consortium (WROC). Beginning in 1995 with one regional planning organization covering a handful of counties, Ayres helped recruit members and partners, manage funding participation and contracts, and grow the available products and services until WROC is now a statewide program that includes state agencies, county and municipal governments, utilities, and more. Ayres is the only firm that has ever held the contract throughout WROC’s history, delivering imagery, lidar, and related mapping products. In the past five years Ayres has completed nearly 700 aerial mapping projects. These projects took place in 24 states, including Montana and all its surrounding states. Ayres’ approach to managing the City of Bozeman’s project will begin with a dedication to understanding your needs and designing solutions that address them. For example, Bozeman is a very attractive area for relocation, ranking first in the Policom Economic Strength Rankings for Micropolitan Areas in 2023 for the fifth consecutive year. Due to the rapid rate of growth, there will be substantial updates to the building footprints and changes to the imagery. Ayres has designated a project manager who is experienced with municipalities experiencing rapid growth. Ayres’ proposed project manager, Tyler Kaebisch, will coordinate the data collection and processing efforts for the City of Bozeman project. Tyler has experience managing geospatial projects throughout the country, with a focus on the western United States. Tyler is experienced in project management and has a strong history of involvement in geospatial projects, with over 15 years of experience in GIS, remote sensing F) STATEMENT OF QUALIFICATIONS 193 30AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. and project management. Prior to joining Ayres, Tyler serviced as a remote sensing specialist and an inventory and monitoring GIS specialist for the U.S. Bureau of Reclamation and the U.S. Forest Service in the Rocky Mountain region. He has also been involved in numerous projects using aerial mapping to support mitigation and recovery after natural disasters. As project manager, Tyler will update City of Bozeman personnel during the project to discuss pertinent project issues as needed. Additionally, he will participate in weekly internal meetings with Ayres supervisors to assess the status of the project and address key technical issues, thereby maintaining high standards for product specifications and keeping the project on track to meet the timeframe agreed upon. One important difference about Ayres compared to some geospatial firms is that all work is performed in the United States. Ayres possesses more than enough resources and uses efficient processes to allow us to accomplish this project with skilled professionals based in the United States. There remain only a few geospatial firms that have their entire production staff within the country; Ayres is proud to be among them. Ayres’ subconsultants are KLJ for control survey and Aerial Surveys International (ASI) for aerial imagery acquisition. Ayres has a successful history with both firms. KLJ has four offices in Montana, including one in Bozeman, and has five surveyors who hold Professional Land Surveyor licensure with the State of Montana. KLJ’s survey lead, Justin Stefanik, began his surveying career in Bozeman and is familiar with the City’s requirements. KLJ has performed a number of projects for the City and served as a sub to Ayres on a contract with the Montana Department of Transportation to perform scour studies on 13 bridges. Under this project, KLJ provided survey control for aerial lidar data. ASI has acquired aerial data for nearly forty projects for Ayres over the past 10 years. These include the Bismarck-Mandan MPO and the City of Laramie project described in the Related Experience section. ASI owns seven aircraft and four different types of digital imagery sensors from different manufacturers, allowing them to provide Ayres with the best and most appropriate technology to meet the specific needs of each client. All services performed and products produced for the proposed contract will be performed under the direct supervision of an active ASPRS Certified Photogrammetrist or Certified Mapping Scientist. Detailed information on the key members of the Ayres team – and their availability during relevant time periods to the City of Bozeman’s project – can be found in the Key Personnel section of this submittal. 194 “Lorem ipsum dolor sit amet, consectetur adipiscing elit. Nullam turpis dui, ornare quis dapibus vel, eleifend quis dui. Pellentesque posuere molestie pulvinar. Quisque rhoncus diam eu scelerisque aliquet. Lorem ipsum dolor sit amet, consectetur adipiscing elit. Nullam turpis dui.” First Last Name Title, Company Name 31AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. Our experience has shown us that close and open communication with our clients is the foundation for a successful working relationship. We place a high priority on understanding our clients’ needs, openly addressing issues, involving clients in decision-making, and resolving project concerns. In every project we undertake, our goal is always client satisfaction. We invite you to contact the references listed below – for whom our firm has provided similar services – for a firsthand account of our work. City of Loveland – Lidar, Aerial Imagery, and Planimetric Mapping Client: City of Loveland Address: 500 E. Third St., Loveland, CO 80537 Contact: Chris Carlson Phone: 970.962.2774 Email: Chris.Carlson@CityofLoveland.org Rapid City Area Metropolitan Planning Organization Client: Rapid City Area Metropolitan Planning Organization Address: Department of Community Development 300 Sixth Street, Rapid City, SD 57701 Contact: Kelly Brennan, Long Range Planner III Phone: 605.394.4120 Email: Kelly.Brennan@rcgov.org Illinois GIS Consortium – Lidar, Aerial Imagery, and Planimetric Mapping Client: Municipal GIS Partners (MGP) Address: 701 Lee Street #1020, Des Plaines, IL 60016 Contact: Andrew Shuman Phone: 224.369.0635 Email: ashuman@mgpinc.com G) REFERENCES “I had really high expectations from the start because I knew we had an incredible team of professionals working on this project, and yet (Ayres) still exceeded my expectations.” Mark Sears Natural Areas Program Manager City of Fort Collins, CO 195 32AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. H) PRESENT & PROJECTED WORKLOADS The following table and chart represent our current capacity and workload projections to assist the City of Bozeman on its digital orthoimagery and lidar acquisition project. NAME % EST. CAPACITY % TIME TO PROJECT Tyler Kaebisch 80%15% Aaron Sale 40%25% Drew Knight 40%30% Burt Lindquist 45%30% Amber Tomaras 60%30% Imagery Technicians 70%20% KLJ Survey Staff 40%25% ASI Flight Staff 30%15% “Ayres has consistently produced quality work in a timely manner, and with the highest degree of professionalism. They work closely with me ... to resolve issues and discuss ideas, and are always available when needed.” Jennifer Spinelli Assistant Planner City of Montrose, CO AYRES WORKLOAD PROJECTIONS 2025 March April May June July August September WY Fish and Game Lidar GISC: IL Lidar, Orthoimagery, & Plannimetric Mapping WROC: Wisconsin Lidar and Orthoimagery 196 “Lorem ipsum dolor sit amet, consectetur adipiscing elit. Nullam turpis dui, ornare quis dapibus vel, eleifend quis dui. Pellentesque posuere molestie pulvinar. Quisque rhoncus diam eu scelerisque aliquet. Lorem ipsum dolor sit amet, consectetur adipiscing elit. Nullam turpis dui.” First Last Name Title, Company Name 33AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. “Ayres is a trusted commodity in our community. They’ve been very good to work with; they’ve provided everything they said they would and usually a little bit more.” Steve Tilton Former Assistant Village Manager, Village of Tinley Park, IL We know that every project we complete is really about people. That’s why we have assigned our best people to work with the City of Bozeman staff and project stakeholders to make sure your project meets your needs. Our team will be led by Tyler Kaebisch, a geospatial project manager with extensive experience in digital mapping. Tyler is proactive in identifying and addressing challenges to keep the project on schedule and is committed to keeping major stakeholders informed throughout the course of the project. Ayres’ staff members approach each project knowing the services we provide bring noticeable improvements for the communities for which we work and improve lives in the process. Through years of successful projects, we know that assigning qualified staff to your project and providing good communication are vital for maintaining trust and confidence. Resumes for key members of our team are included on the following pages. I) KEY PERSONNEL 197 Box head (resume side bar copy - light bkgr) 34AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Tyler Kaebisch Geospatial Project Manager Tyler joined Ayres in 2019 as a project manager in the aerial mapping group. He has used his communication and organizational skills to manage large-scale statewide projects that apply remote sensing techniques to analyze features across the landscape. Tyler has worked in the federal and state agency sectors, where he has more than 15 years of experience with resource inventory and monitoring programs, working side by side with federal, state, county, and private sector partners. Tyler’s focus as a remote sensing specialist has included object-based image analysis, wetland flora and fauna, hydrography, aerial photography, and lidar (light detection and ranging). Tyler will seek opportunities to solve mapping problems for clients in sectors including local government, utilities, and telecom in the Midwest and West. Select Experience • Orthoimagery Lidar Plan 2024, Bozeman, MT • Land Cover Dataset and Turf Layer, Bozeman, MT• Montana State Library Lidar Classification 2023-2024, Helena, MT• Water Supply and Storage Company Ditch Mapping 2020, CO• Larimer County Fairgrounds Orthoimagery and Topographic/Planimetric Mapping 2020, Larimer County, CO• Greeley-Loveland Irrigation Canal Lake Drive Stabilization/UAS Aerial Orthophotography and Lidar, Loveland, CO• Larimer County Landfill Aerial Mapping 2020, Larimer County, CO• Estes Park Building Mapping 2021, Town of Estes Park, CO • City of Loveland Lidar and Orthoimagery 2021, Loveland, CO• Bismarck-Mandan Metropolitan Planning Organization 2020 Orthoimagery & Topographic Mapping, ND• Goodhue County Orthoimagery 2022, MN• 3-DEP QL0 Lidar 2020, Goodhue County, MN• Grand Forks - East Grand Forks MPO Ortho and Lidar 2021, MN• Grand Forks, ND Building Footprints• Lidar and Orthoimagery 2021, Loveland, CO• Georgia Site Lidar and Orthos 2021, Warrenton, GA• GISC Topo Lidar Mapping 2022, Northfield, IL• LA County UAS Lidar 2021, Los Angeles, CA• Lidar Processing 2021, Madison, WI• Mobile Lidar 2022, Davenport, IA• Washington State King County Lidar Processing, Sheboygan Falls, WI• GISC Lidar 2019, Wilmette, IL Total Experience 15 Years Education MS, Geospatial Information Science, University of Minnesota BS, Fisheries and Water Resources Management, University of Wisconsin - Stevens Point 198 Box head (resume side bar copy - light bkgr) Box head (resume side bar copy - light bkgr) 35AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Drew Knight, CP Lidar Professional Drew is a lidar professional who joined Ayres in 2024 with six years of geospatial experience in private consulting and public sector transportation markets. He is responsible for designing project approaches, bringing new technology solutions, and ensuring lidar projects meet client standards for quality and accuracy. Drew supports all facets of mobile, unmanned aerial system (UAS), and fixed-wing lidar projects, from acquisition through production and client delivery. Drew has experience leading the collection and processing of aerial imagery and mobile and aerial lidar data for transportation, energy, and environmental projects. He is skilled in MicroStation, Civil3D, Pix4D, and ArcGIS. Drew holds a Federal Aviation Administration (FAA) Part 107 remote pilot certificate and has trained and overseen a team of UAS pilots collecting and processing data for corridor mapping projects. He is experienced in UAS flight planning, ground control layout, and data processing. Select Experience• Post Fire Mitigation Lidar Collection of 2023-2024 Sites, Larimer County, CO• Chambers Lake Reservoir Survey 2024, Larimer County, CO• WROC 2025 Lincoln Co Orthos (2024), Merrill, WI• 38th West Study, Wheat Ridge, CO• Mower Co, MN Lidar Enhancements (2024), Austin, MN Total Experience 6 Years Registrations Certified Photogrammetrist, ASPRS, US Education MS, Geography, University of Georgia BS, Geography, James Madison University Aaron Sale Imagery Supervisor Aaron joined Ayres in 1996 as a digital orthophotography technician. His experience with Ayres is in the use and production of digital orthophotography and flight planning for geospatial projects. Aaron has led imagery development for major orthoimagery projects around the nation. His experience includes the award-winning Wisconsin Regional Orthoimagery Consortium project, which was the first statewide, leaf-off orthoimagery project in the state and included the development of 12-inch resolution imagery of the entire state as well as higher resolution imagery for a range of public and private entities. Select Experience • Orthoimagery Lidar Plan 2024, Bozeman, MT • Land Cover Dataset and Turf Layer, Bozeman, MT• Montana State Library Lidar Classification 2023-2024, Helena, MT• Bismarck-Mandan MPO Orthos and Topographic Mapping, Bismarck, ND • Schweitzer Mountain Resort Lidar, Orthoimagery, and Planimetric Mapping 2021, Sandpoint, ID• Idaho Transportation Department Payette River Highway 21 Bridge Mapping 2019, Boise, ID• Wisconsin Regional Orthoimagery Consortium (WROC), Statewide, WI• Northern Colorado Geospatial Consortium Lidar and Orthoimagery, Years of Experience 29 Years Education BS, Geography/Earth Sciences, University of Wisconsin- La Crosse 199 Box head (resume side bar copy - light bkgr) Box head (resume side bar copy - light bkgr) 36AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Burton Lindquist Analytical Aerotriangulation Specialist Burton joined Ayres in 1989, bringing three years of experience in stereo plotter operation and analytical aerotriangulation, as well as additional skills in orthophoto production and digital file editing. Since 1998, Burton has been in charge of overseeing all phases of analytical aerotriangulation. He has an extensive background in conventional analytical aerotriangulation (AT) and is trained and experienced in the use of Z/I ISAT softcopy AT software. Select Experience • Orthoimagery Lidar Plan 2024, Bozeman, MT • Land Cover Dataset and Turf Layer, Bozeman, MT• Schweitzer Mountain Resort Lidar, Orthoimagery, and Planimetric Mapping 2021, Sandpoint, ID• Idaho Transportation Department Payette River Highway 21 Bridge Mapping 2019, Boise, ID• Wisconsin Regional Orthoimagery Consortium (WROC), Statewide, WI• Lidar and Orthoimagery 2021, Loveland, CO • Colorado Department of Transportation US 34 Canyon Mapping Revision Lidar• MnDOT Spring 2019 Imagery, St. Paul, MN• CDOT US 85 & WCR44 Roadway Drainage Lidar & Imagery 2018, Various Locations, CO• Landfill Aerial Mapping 2020, Larimer County, CO Amber Tomaras Planimetric Mapping Specialist Amber joined Ayres in 2001 as a stereo compilation technician. Her responsibilities include stereo compilation of planimetric and topographic map features on first order analytical and digital photogrammetric stereo compilation systems. Select Experience • Orthoimagery Lidar Plan 2024, Bozeman, MT • Wisconsin Regional Orthoimagery Consortium (WROC), Statewide, WI• Bismarck-Mandan MPO 2020 Orthos and Topo Mapping, Bismarck, ND• GIS Consortium Mapping, Illinois• Texas Lidar Editing QSI 2015, Various Locations, Texas• Schweitzer Mountain Resort Lidar, Orthoimagery, and Planimetric Mapping 2021• Idaho Transportation Department Payette River Highway 21 Bridge Mapping 2019• Landfill Aerial Mapping 2020, Larimer County, CO• Larimer County Fairgrounds 2020, CO• Loveland Plan Mapping 2021, Loveland, CO• Planimetric Mapping 2020, Brookfield, WI• Lidar Enhancements 2020, Goodhue County, MN Total Experience 37 Years Education BS, Cartography/Geography, University of Wisconsin-Eau Claire Total Experience 23 Years Education BS, Geography, University of Wisconsin-Oshkosh 200 37AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Justin Stefanik Professional Land Surveyor, Certified Federal Surveyor, Engineering Intern – Helena, MT Justin is a Professional Land Surveyor (PLS) in Montana, a Certified Federal Surveyor (CFedS), and an Engineering Intern (EI). He has extensive experience providing cadastral, private land retracement, corridor, utility, and control surveys to public and private clients. Justin completes General Land Office (GLO) retracement surveys, section breakdowns, Certificate of Survey, topographical surveys, bathymetric surveys, construction stakeout, drafting, writing legal descriptions, courthouse research, data downloads and manipulations. His supervision of field surveys crews for more than 14 years brings an understanding of the correct procedures to provide an accurate survey and has completed surveys meeting the City of Bozeman protocols. Justin’s role for this project will be the planning and execution ground control and ground truthing surveys. Justin started his career in Bozeman, after finishing his Construction Engineering Technology from Montana State University he worked at a local engineering and surveying crew for two years before moving back to Helena. Justin has completed multiple ground control surveys on manned aerial flights throughout Montana. Chantry Myers Crew Chief, Drone Pilot – Helena, MT Chantry is a crew chief with experience involving GLO retracement surveys, section breakdowns, COS drafting, topographical surveys, construction stakeout, writing legal descriptions, and courthouse research. He has gained experience working on these types of projects for the last 3 years with KLJ and is knowledgeable in both survey field work and AutoCAD Civil 3D. Chanty is also a licensed drone pilot, passing his part 107 certification a year ago. He has operated drones on four different sites in Bozeman in the last 6 months. He planned, laid out the ground control, flew and processed the aerial flights for these four sites and multiple others around Montana. Chantry is Construction Engineering Technology graduate from Montana State University that started his survey career in Bozeman working for a contractor staking grades on heavy civil projects. Robert Hofer Crew Chief, Drone Pilot – Billings, MT Robert is a crew chief with experience involving General Land Office (GLO) retracement surveys, hydrologic surveys, section breakdowns, Certificate of Survey (COS) drafting, topographical surveys, construction stakeout, writing legal descriptions, and courthouse research, Stormwater Pollution Prevention Plans (SWPPP). He has gained experience working on these types of projects for the last four years. Robert is knowledgeable in both survey field work and AutoCAD Civil 3D. Robert is a licensed drone pilot that passed his part 107 certificate 18 months ago. Robert is a Civil Engineering graduate from Montana Tech and has performed ground control surveys on four different projects. He is currently laying ground control for a large power line project from Colstrip to the Montana/North Dakota state line. 201 38AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Mark Schubert – Owner/President Chief Pilot & Acquisition Manager Mark has over 26 years of experience in mapping and surveying. He started in 1995 as an aerial photography pilot and became co-owner of ASI in 1998. Mark is an accomplished photo/lidar pilot and is a Commercial, Multi, Instrument Rated, Pilot and Aircraft Mechanic. He has completed an extensive number of both domestic and international projects. As the owner of ASI, Mr. Schubert provides overall direction of the company, business & project management support and technical leadership & direction to the organization. Mark will serve as ASI’s principal-in-charge, acquisition manager and chief pilot for this project. Accomplishments:• Successfully managed growth of company to level of premier domestic and international aerial• acquisition firm• Estimated, designed, and managed thousands of aerial photo and data acquisition missions• Researched diverse national and global client groups to forward ASI’s market position• Performed network marketing and coordination with industry related businesses to develop• Strategic partnerships in the GIS, geospatial and photogrammetric mapping arenas. Education and Training:• Metro State College, Denver State - Professional Flight Training• Colorado Aerotech, Bloomfield, CO - A & P License• University of North Dakota, Grand Forks Aerospace Sciences• Embry Riddle Aeronautical University, Prescott, AZ – Aircraft Maintenance Management Certifications and Registrations:• Commercial, Multi, Instrument Rated pilot with ~7700 hours TT, ~6500 multi-hours• Certified (AP) Aircraft Mechanic Erik Woods - Project Manager/Production Manager/Sensor Operator Erik has over 17 years of experience with LiDAR and digital imaging. He is responsible day-to-day project management as well as resource management and oversight of field crews, photogrammetric processing and all deliverables. He has expertise in photogrammetry, remote sensing, aerial photography, and advanced Geographic Information Systems including advanced geospatial processing techniques, methods and quality planning. Erik has extensive hands-on geospatial experience specializing in production and quality assurance of all data products. Erik also provides GIS technical support and consultation including database development, composition and collaboration of technical and non-technical proposals and responses. Erik is also responsible for the maintenance of the IT infrastructure at ASI. Certifications and Registrations:• Intergraph / Z/I Processing Certification• Optech Processing Certification• Certified (AP) Aircraft Mechanic David Braun - Sensor Operator David has over 41 years of experience with LiDAR and digital image acquisition. He is responsible for daily mission planning and digital aerial image and/or lidar acquisition. David has flown literally thousands of missions over the course of his career. David also provides additional support with sensor installation, calibration and aircraft maintenance. He has expertise in remote sensing, aerial photography, methods and quality planning. Certifications and Registrations:• US Navy Reconnaissance School• Certified DMC, ADS and Optech LiDAR sensor operator 202 39AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. Ayres Advantages to the City of Bozeman Ayres’ is able to offer the City a unique combination of applicable experience and innovative approaches: 9 Project approach and understanding: Ayres has been providing lidar and imagery together to local governments for nearly 20 years. We have proven ourselves in hundreds of projects, and have brought new approaches and products such as Elevation Derived Hydrography (EDH). EDH makes use of lidar data and asset information, such as culverts and roads, to provide more accurate understanding of the expected behavior of water across the landscape 9 Personnel qualifications: Ayres’ key personnel have been with Ayres for many years – some for decades – and have personal knowledge of how the process of the creation of data products has evolved. They understand the reasons for the data specifications and how the data will be used. Ayres lead project personnel and the subconsultants all have significant Western experience, and the subconsultants have worked with Ayres in the past. 9 Ability to meet timeline and budget: The City’s budget aligns with recent Ayres projects that are comparable in size and complexity, so we are comfortable that we can perform the work within budget. In addition, the majority of aerial mapping is done in the spring every year, so Ayres has over 45 years of experience performing and delivering during periods of high demand. We make use of cross- trained personnel who can work on lidar or imagery as the workflow requires. 9 Location relative to project: Although headquartered in Wisconsin, Ayres is a national company, with approximately 60 employees in the Rocky Mountain region. Ayres is listed as a GIS contractor on the Montana Association of Geographic Information Professionals (MAGIP), and Ayres personnel holds membership in the organization. Ayres has performed aerial mapping work in Montana as well as Idaho, Wyoming, Colorado, North Dakota, and South Dakota. Additionally, KLJ, who is performing the control survey work, has an office in Bozeman, and ASI, who is performing the aerial data acquisition, will be mobilizing from CO, and has experience in the Western United States. Ayres is currently providing aerial mapping and processing services for both the City of Bozeman and the Montana State Library, and has completed work for the Montana DOT, so we are able to successfully perform work for Montana clients. 9 Related experience on similar projects: In the past five years, Ayres has performed 39 aerial mapping projects that used both lidar and imagery. During that same period, we have completed 81 aerial mapping projects for municipal governments, or approximately one project for a municipality every three weeks, year-round. We have the capacity and experience to successfully complete the City’s orthoimagery and lidar projects. 9 Recent and current work for the City: Ayres completed the 2024 Orthoimagery and Lidar project for the City of Bozeman and also completed the City’s Land Use/Land Cover mapping project from 2023. Ayres also worked with the City in 2018 to support an EPA brownfield grant application. J) ADDITIONAL INFORMATION Additional Options Ayres understands that the City of Bozeman is asking for cost-effective datasets, which we have responded to on the preceding pages. Ayres works with many municipalities on similar projects and has found several products that help increase the return on investment for these projects. We are excited to recommend several options to the City to help increase the value of your project. Ayres Lidar Online Ayres Lidar Online is a 3-D, browser-based application used by a number of local governments to make lidar data publicly accessible. Users can take measurements between two points and see the separate horizontal and vertical distances, they can generate contours and select the contour interval, and they can view the point cloud to see features such as buildings and trees. 203 40AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. Optional data creation and hosting of layers can include:• Slope shade bare earth layer • Shaded relief bare earth layer • Hillshade bare earth layer • Elevation surface layer from lidar DEM • Ground lidar point cloud • High vegetation lidar point cloud layer colorized with imagery • High vegetation lidar point cloud layer colorized with 2021 NAIP imagery • Building lidar point cloud layer (includes bridge decks) colorized with imagery • 1-foot topographic contour layer • RGB Orthoimagery layer• NIR Orthoimagery layer • Base map streets layer • County boundaries • Municipal boundaries • Tax Parcels Additional Planimetric Mapping. Ayres can also extract a wide range of additional features from the aerial imagery. Below are some common features that can be extracted in addition to those listed above:• Gravel, dirt, and paved surfaces• Medians• Paths• Parks• Parking lots• Patios• Driveways• Pools• Railroad surfaces• Bridges• Walls• Curb and gutter• Utilities (manholes, vaults, etc.) Lidar Derived Enhancements. Ayres has derived a number of other data products from lidar for local governments. These can be added to the contract as possible, or provided in the future as the City is able to utilize them. A few examples of additional products are:• closed depressions where standing water may occur• road profiles for drainage and repair• slope of ditch banks to assess stability and erodibility• low points in pavement for potential standing water• slope of road banks for safety and stability assessment Ayres would welcome the chance to discuss and demonstrate these additional data products to the City. For Bozeman’s specific needs, the City needs to be confident in the ability of the consultant to perform to the highest quality standards, be responsive to its cost and timeline needs, and be accountable for the results. Through previous projects that Ayres completed for a number of cities, counties, and municipalities, our team has demonstrated that we are not only reliable, but that we are also professional in how we manage your projects. Because our projects start with education and communication, you can be assured that our team understands the goals of the City and know that we appreciate the importance of communication with all stakeholders throughout the life cycle of our projects. Ayres has an experienced team of professionals to address your project goals, including stakeholder outreach and education, grant writing, project planning, data processing, and delivery of enhanced products for specialized uses such as culverts and hydro-modified DEMs. We have a long history of project success and are able to handle projects of any size. Ayres handles thousands of square miles of lidar processing yearly, with a high degree of expertise. 204 41AYRES | DIGITAL ORTHOIMAGERY AND LIDAR ACQUISITION | CITY OF BOZEMAN, MT Ingenuity, Integrity, and Intelligence. K) NONDISCRIMINATION & EQUAL PAY Attachment 1 NONDISCRIMINATION AND EQUAL PAY AFFIRMATION Ayres Associates Inc (name of entity submitting) hereby affirms it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and acknowledges and understands the eventual contract will contain a provision prohibiting discrimination as described above and this prohibition on discrimination shall apply to the hiring and treatments or proposer's employees and to all subcontracts. In addition, Ayres Associates Inc (name of entity submitting) hereby affirms it will abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act), and has visited the State of Montana Equal Pay for Equal Work "best practices" website, https://equalpay.mt.gov/BestPractices/Employers, or equivalent "best practices publication and has read the material. HR Director Name and title of person authorized to sign on behalf of submitter 205 www.AyresAssociates.com Ingenuity, Integrity, and Intelligence. BUDGET Digtal Orthoimagery Acquisition City of Bozeman, MT February 3, 2025 206 1 Ingenuity, Integrity, and Intelligence. AYRES | DIGITAL ORTHOIMAGERY ACQUISITION | CITY OF BOZEMAN We propose to provide the requested services for the estimated fees as follows. DIGITAL ORTHOIMAGERY ACQUISITION GEOSPATIAL SERVICES PROVIDED LUMP SUM FEES Aerial Imagery Acquisition $21,500 Orthoimagery Processing $27,000 Ground Control Survey $6,500 Planimetric Mapping (Sidewalks)$10,000 Lump Sum Total Fees:$65,000 BUDGET 207 Memorandum REPORT TO:City Commission FROM:Shane Miller - Facilities Project Coordinator David Arnado - Facilities Superintendent Jon Henderson - Strategic Services Director SUBJECT:Authorize City Manager to Sign Professional Services Agreements for Facilities Contractors Term Contracts MEETING DATE:February 25, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign Professional Services Agreements for Facilities Contractors Term Contracts STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:The Facilities Dept. regularly uses general contractors and specialty trades contractors for projects related to facilities management and maintenance. To attract a wider pool of contractors the Facilities Dept. published an RFQ for contractors of all trades on October 21st, 2023, with the intention of placing qualified respondents on a preferred contractor list and establishing agreements to provide contractor services at pre-negotiated rates. This will help minimize procurement delays in responding to future facilities projects as they arise. When responding to emergency maintenance needs, procurement delays can significantly increase building downtime resulting in impacts to the public and staff. Maintaining term contracts with general and specialty trade contractors positions the City to be able to adequately respond to facilities needs while also building stronger contractor relationships. The contractors listed below responded to the Request for Qualifications and were evaluated by the review committee to be qualified to provide the services detailed in their statements of qualifications and their proposals. Term Contract proposals were extended to all responding contractors who were evaluated as 'qualified' by the review committee. Contracts included in this item: Sime Construction, Cushing Terrell, Gaille Janitorial, Second Nature Consulting, TD&H Engineering, DC Excavation, All Valley Landscape Services, UNRESOLVED ISSUES:None at this time. ALTERNATIVES:As suggested by City Commission. FISCAL EFFECTS:Services provided under these term contracts will be provided at the pre- 208 negotiated rates as stated in the Scope of Services for each contract. Services are to be provided on an 'as-needed' basis and individual project expenses are to be project specific with projects initiated via task order. Total contracted project costs are to be $79,999 or less per the City of Bozeman Purchasing Policy. Attachments: Sime Construction PSA (Professional Service Agreement) Contract 2025.01.01.pdf Cushing Terrell PSA (Professional Service Agreement) Contract 2025.01.01.pdf Gaille Janitorial (Professional Service Agreement) Contract 2025.01.01.pdf Second Nature Consulting PSA (Professional Service Agreement) Contract 2025.01.01.pdf TD&H Engineering PSA (Professional Service Agreement) Contract 2025.01.01.pdf DC Excavation PSA (Professional Service Agreement) Contract 2025.01.01.pdf All Valley Landscape Services, LLC PSA (Professional Service Agreement) Contract 2025.01.01.pdf Report compiled on: January 31, 2025 209 Professional Services Agreement for [Sime Construction, Inc.] Page 1 of 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 202__ (“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, _Sime Construction, Inc._, _190 Ramshorn Dr; Bozeman, MT 59718_, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon the Effective Date and will expire on the _1st_ day of _March_, 2030, unless earlier terminated in accordance with this Agreement. 3. Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. Contractor agrees to be bound by its responses to the City’s Cloud Questions, 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 Contractor’s performance. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 210 Professional Services Agreement for [Sime Construction, Inc.] Page 2 of 11 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, 211 Professional Services Agreement for [Sime Construction, Inc.] Page 3 of 11 expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. 212 Professional Services Agreement for [Sime Construction, Inc.] Page 4 of 11 In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows:  Workers’ Compensation – statutory;  Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;  Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;  Automobile Liability - $1,000,000 property damage/bodily injury per accident; and  Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. 213 Professional Services Agreement for [Sime Construction, Inc.] Page 5 of 11 b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 214 Professional Services Agreement for [Sime Construction, Inc.] Page 6 of 11 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be _Shane Miller, Project Coordinator_ or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be _Patrick Rapciak_ or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission 215 Professional Services Agreement for [Sime Construction, Inc.] Page 7 of 11 report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Web Accessibility and the ADA: Title II of the ADA prohibits discrimination against people with disabilities in all services, programs, and activities offered or made available by the City. This includes ensuring that the City’s communications with people with disabilities are as effective as its communications with others. If Contractor’s Scope of Services includes the production of digital content, documents, or web applications intended to be branded for use by the City, Contractor must use the City style guide when creating a design. As per recommendations found in Section 508 of the Rehabilitation Act, all digital content, documents, or web applications must also adhere to level A and AA Success Criteria and Conformance Requirements as defined by the current Web Content Accessibility Guidelines (WCAG). The City will not accept digital content that does not comply with WCAG A and AA guidelines. If the City refuses digital content because it is non-compliant with the City style guide, Section 508 of the Rehabilitation Act, and/or WCAG, Contractor will be required to make the digital content compliant and redelivered at no additional cost to the City. 15. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will 216 Professional Services Agreement for [Sime Construction, Inc.] Page 8 of 11 not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 16. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 17. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 18. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the 217 Professional Services Agreement for [Sime Construction, Inc.] Page 9 of 11 requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 19. Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 20. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 21. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 22. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 23. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 24. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 218 Professional Services Agreement for [Sime Construction, Inc.] Page 10 of 11 25. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 26. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 27. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 28. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 29. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 30. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 31. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. 32. Extensions: this Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than __________________________. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. CITY OF BOZEMAN, MONTANA _Sime Construction, Inc._ 219 Professional Services Agreement for [Sime Construction, Inc.] Page 11 of 11 CONTRACTOR By________________________________ By__________________________________ Chuck Winn, Interim City Manager Print Name: ___________________________ Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 220 T&M Rates 2024 Equipment Type SKIDSTEER CAT Skidsteer 110 Hour SKIDSTEER plus attachment 165 Hour BROOM BROCE BROOM 165 Hour COMPACTOR 815 CAT Sheepsfoot 135 Hour Wacker Walk Behind 220 Daily Rate 433 ROLLER 110 Hour 323 CAT Trnch Cmpctr 100 Hour BOMAG WALK BEHIND COMPACTOR 220 Daily Rate BOMAG BMP 8500 220 Daily Rate CAT 815B Compactor 135 Hour DOZER D5 CAT Dozer 120 Hour D6R CAT DOZER - GPS 225 Hour CAT D5K XL - GPS 180 Hour JD 700K DOZER - GPS 225 Hour D4G CAT Dozer 110 Hour KOMATSU D51PXI-24 - GPS 225 Hour TRUCKING Single 155 Hour Side/Truck and Pup 165 Hour Transfer 175 Hour Lowboy 180 Hour Equipment Trailer 175 Hour EXCAVATOR 325 CAT Excavator 160 Hour 400LC-7 Komts Excvtr - GPS 215 Hour 305 CAT MINI EXCAVAT 115 Hour 320DRR EXCAVATOR 160 Hour 221 KOMATSU PC 160 EXCAVATOR 150 Hour KOMATSU PC 210LC EXC 160 Hour KOMATSU PC170LC-10 150 Hour 329E CAT Excavator 160 Hour KOMATSU PC290LC-11 EXC 175 Hour KOMATSU PC 228 - GPS 185 Hour KOMATSU PC290LC-11 EXC - GPS 215 Hour KOMATSU PC 360 LC11 - GPS 215 Hour Cat 315 150 Hour GRADER 143H CAT Grader 165 Hour 140H CAT Grader 145 Hour 14H CAT Grader 175 Hour LOADER L90 Loader Volvo 120 Hour 908 Loader Cat 105 Hour L60 Loader Volvo 120 Hour CAT 938 125 Hour Komatsu WA 320 125 Hour L110H Loader Volvo 140 Hour ROCK TRK VOLVO ROCK TRUCK 155 Hour FUEL TRUCK FUEL/LUBE TRUCK + FUEL @ MARKET RATE 200 Hour ROLLER 8ft drum 115 Hour SCRAPER 613C CAT 180 Hour 627 CAT 270 Hour WATER TRKS 3600 Gal 160 Hour LABOR SUPERVISORS AND FOREMEN 95 Hour LABORERS 80 Hour 222 Professional Services Agreement for [Cushing Terrell] Page 1 of 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 202__ (“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, _Cushing Terrell_, _PO Box 1439 (Payments only – PO Box 30071, Billings, MT 59107); Billings, MT 59103_, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon the Effective Date and will expire on the _1st_ day of _March_, 2030_, unless earlier terminated in accordance with this Agreement. 3. Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the 223 Professional Services Agreement for [Cushing Terrell] Page 2 of 11 Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. In the event that, during the term of this Agreement, any labor problems or disputes of any type arise or materialize which in turn cause any services to cease for any period of time, Contractor specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in 224 Professional Services Agreement for [Cushing Terrell] Page 3 of 11 connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of 225 Professional Services Agreement for [Cushing Terrell] Page 4 of 11 contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows:  Workers’ Compensation – statutory;  Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;  Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;  Automobile Liability - $1,000,000 property damage/bodily injury per accident; and  Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 226 Professional Services Agreement for [Cushing Terrell] Page 5 of 11 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the 227 Professional Services Agreement for [Cushing Terrell] Page 6 of 11 Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be _Shane Miller, Project Coordinator_ or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be _Sky Cook, Project Manager_ or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed 228 Professional Services Agreement for [Cushing Terrell] Page 7 of 11 to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). 229 Professional Services Agreement for [Cushing Terrell] Page 8 of 11 Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 16. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 17. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 18. Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term 230 Professional Services Agreement for [Cushing Terrell] Page 9 of 11 or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 19. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 21. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 22. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 23. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 24. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 25. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 26. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 231 Professional Services Agreement for [Cushing Terrell] Page 10 of 11 27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 28. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 29. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 30. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. 31. Extensions: this Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than __5 years__. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** 232 Professional Services Agreement for [Cushing Terrell] Page 11 of 11 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. CITY OF BOZEMAN, MONTANA ___Cushing Terrell_______ CONTRACTOR By________________________________ By__________________________________ Chuck Winn, Interim City Manager Print Name: ___________________________ Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 233 ARCHITECTURAL Min Max Architectural Production..........................................................................................................90.00$ 134.00$ Architectural..................................................................................................................................94.00$ 168.00$ Project Architect..........................................................................................................................126.00$ 204.00$ Project Management - Architectural.................................................................................169.00$ 233.00$ Director/Lead of Architectural ..............................................................................................232.00$ 286.00$ Landscape Architect...................................................................................................................111.00$ 165.00$ Landscape Architect Senior.....................................................................................................198.00$ 250.00$ Planner.............................................................................................................................................121.00$ 150.00$ Interior Designer..........................................................................................................................94.00$ 171.00$ Interior Designer Senior...........................................................................................................135.00$ 234.00$ Sustainability Professional.......................................................................................................134.00$ 160.00$ Sustainability Senior...................................................................................................................202.00$ 208.00$ Architectural Principal...............................................................................................................228.00$ 309.00$ ENGINEERING Engineering Production Civil..................................................................................................119.00$ 177.00$ Engineering Civil..........................................................................................................................173.00$ 213.00$ Engineering Civil Senior............................................................................................................270.00$ 279.00$ Engineering Production Structural.......................................................................................99.00$ 168.00$ Engineering Structural..............................................................................................................150.00$ 191.00$ Engineering Structural Senior................................................................................................198.00$ 265.00$ Engineering Production Electrical........................................................................................83.00$ 147.00$ Engineering Electrical................................................................................................................153.00$ 230.00$ Engineering Electrical Senior..................................................................................................261.00$ 278.00$ Engineering Production Mechanical...................................................................................89.00$ 154.00$ Engineering Mechanical...........................................................................................................130.00$ 243.00$ Engineering Mechanical Senior.............................................................................................175.00$ 254.00$ Engineering Production Refrigeration................................................................................112.00$ 142.00$ Engineering Refrigeration........................................................................................................113.00$ 183.00$ Engineering Refrigeration Senior.........................................................................................194.00$ 250.00$ Engineering Principal.................................................................................................................222.00$ 302.00$ SUPPORT Project Coordinator....................................................................................................................91.00$ 139.00$ Administrative Assistant...........................................................................................................75.00$ 127.00$ Graphic Designer.........................................................................................................................113.00$ 158.00$ cushingterrell.com 2025 Standard Hourly Rates 234 Professional Services Agreement for [Gaille Janitorial, LLC] Page 1 of 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 202__ (“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, _Gaille Janitorial LLC_, _773 Professional Drive Apt 88: Bozeman, MT 59718_, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon the Effective Date and will expire on the _1st_ day of _February_, 2030, unless earlier terminated in accordance with this Agreement. 3. Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. Contractor agrees to be bound by its responses to the City’s Cloud Questions, 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 Contractor’s performance. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 235 Professional Services Agreement for [Gaille Janitorial, LLC] Page 2 of 11 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, 236 Professional Services Agreement for [Gaille Janitorial, LLC] Page 3 of 11 expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. 237 Professional Services Agreement for [Gaille Janitorial, LLC] Page 4 of 11 In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows:  Workers’ Compensation – statutory;  Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;  Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;  Automobile Liability - $1,000,000 property damage/bodily injury per accident; and  Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. 238 Professional Services Agreement for [Gaille Janitorial, LLC] Page 5 of 11 b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 239 Professional Services Agreement for [Gaille Janitorial, LLC] Page 6 of 11 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be _Shane Miller, Project Coordinator_ or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be _Gaille Frankep Constant Abolo_ or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission 240 Professional Services Agreement for [Gaille Janitorial, LLC] Page 7 of 11 report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Web Accessibility and the ADA: Title II of the ADA prohibits discrimination against people with disabilities in all services, programs, and activities offered or made available by the City. This includes ensuring that the City’s communications with people with disabilities are as effective as its communications with others. If Contractor’s Scope of Services includes the production of digital content, documents, or web applications intended to be branded for use by the City, Contractor must use the City style guide when creating a design. As per recommendations found in Section 508 of the Rehabilitation Act, all digital content, documents, or web applications must also adhere to level A and AA Success Criteria and Conformance Requirements as defined by the current Web Content Accessibility Guidelines (WCAG). The City will not accept digital content that does not comply with WCAG A and AA guidelines. If the City refuses digital content because it is non-compliant with the City style guide, Section 508 of the Rehabilitation Act, and/or WCAG, Contractor will be required to make the digital content compliant and redelivered at no additional cost to the City. 15. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will 241 Professional Services Agreement for [Gaille Janitorial, LLC] Page 8 of 11 not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 16. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 17. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 18. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the 242 Professional Services Agreement for [Gaille Janitorial, LLC] Page 9 of 11 requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 19. Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 20. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 21. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 22. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 23. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 24. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 243 Professional Services Agreement for [Gaille Janitorial, LLC] Page 10 of 11 25. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 26. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 27. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 28. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 29. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 30. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 31. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. 32. Extensions: this Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than __________________________. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** 244 Professional Services Agreement for [Gaille Janitorial, LLC] Page 11 of 11 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. CITY OF BOZEMAN, MONTANA _Gaille Janitorial, LLC_ CONTRACTOR By________________________________ By__________________________________ Chuck Winn, Interim City Manager Print Name: ___________________________ Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 245 GAILLE JANITORIAL LLC contact@gaille-janitorial.com contact@gaille-janitorial.com GAILLE JANITORIAL LLC CAGE Code: 9UQ59 UEI Number: RX6BTBHH1UU5 EIN: 93-4698579 January 24, 2025 To: City of Bozeman 20 E. Olive Street, Office 014B Bozeman, MT 59715 Dear Facilities Project Coordinator, Thank you for sharing the good news about the selection of my company for the solicitation referenced in the subject line above. As requested, my company GAILLE JANITORIAL LLC is pleased to provide the following labor rates and pricing of for your consideration. I. Labor Rate Description Hourly Rate Notes Janitorial Services $50 Services included:  Trash Removal: Emptying trash bins and replacing liners.  Surface Cleaning: Wiping down desks, tables, and office furniture.  Sweeping, Dusting, and Mopping: Regular cleaning of floors and surfaces.  Vacuuming: Cleaning of carpets and rugs.  Restroom Cleaning: Cleaning and sanitizing toilets, sinks, and replenishing restroom supplies.  Cleaning of Appliances: Cleaning of kitchen appliances  Window Cleaning: Cleaning interior windows and glass surfaces. RE: REQUEST FOR QUALIFICATIONS (RFQ) CONTRACTORS – ALL TRADES AND SERVICES – FACILITIES PROJECTS 246 1 For the specialized cleaning tasks below, we utilize services from our partner companies upon request:  Floor Care: Polishing, buffing, and waxing hard floors.  External Window Cleaning: Cleaning of exterior windows and glass surfaces. II. Additional Fees Description Hourly Rate Notes Emergency Call- Out $75 Available for emergency services outside of regular hours. (2-hour minimum) Event cleaning $65 A detailed request should be submitted by the client. Holiday Service $75 Additional fee for services rendered on holidays. III. Payment Terms  Invoices are issued monthly and are due on a specific date agreed upon with the client.  Late Payment Fee: A late fee of 15% will be applied to overdue invoices.  Payment Methods: Payments can be made via check or bank transfer. IV. Contract Terms and Conditions  Standard Working Hours: Our company operates 24/7. The specific work schedule (days and hours) will be established and agreed upon with the client.  Cancellation Policy: In the event of a cancellation by the client, our company should be notified at least 60 working days prior to the scheduled service. V. Contact Information Please feel free to contact us if you have any questions, need additional information, or require adjustments at +1 (240)-758-1867 or contact@gaille-janitorial.com. Gaille Fankep Manager 247 Professional Services Agreement for [KSLA Corp dba Second Nature Consulting] Page 1 of 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 202__ (“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, _KSLA Corp dba Second Nature Consulting_, _1432 Teton Ave; Billings, Montana 59102_, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon the Effective Date and will expire on the _1st_ day of _February_, 2030, unless earlier terminated in accordance with this Agreement. 3. Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. Contractor agrees to be bound by its responses to the City’s Cloud Questions, 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 Contractor’s performance. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 248 Professional Services Agreement for [KSLA Corp dba Second Nature Consulting] Page 2 of 11 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, 249 Professional Services Agreement for [KSLA Corp dba Second Nature Consulting] Page 3 of 11 expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. 250 Professional Services Agreement for [KSLA Corp dba Second Nature Consulting] Page 4 of 11 In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows:  Workers’ Compensation – statutory;  Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;  Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;  Automobile Liability - $1,000,000 property damage/bodily injury per accident; and  Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. 251 Professional Services Agreement for [KSLA Corp dba Second Nature Consulting] Page 5 of 11 b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 252 Professional Services Agreement for [KSLA Corp dba Second Nature Consulting] Page 6 of 11 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be _Shane Miller, Project Coordinator_ or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be _Neil R. Kiner, Partner_ or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission 253 Professional Services Agreement for [KSLA Corp dba Second Nature Consulting] Page 7 of 11 report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Web Accessibility and the ADA: Title II of the ADA prohibits discrimination against people with disabilities in all services, programs, and activities offered or made available by the City. This includes ensuring that the City’s communications with people with disabilities are as effective as its communications with others. If Contractor’s Scope of Services includes the production of digital content, documents, or web applications intended to be branded for use by the City, Contractor must use the City style guide when creating a design. As per recommendations found in Section 508 of the Rehabilitation Act, all digital content, documents, or web applications must also adhere to level A and AA Success Criteria and Conformance Requirements as defined by the current Web Content Accessibility Guidelines (WCAG). The City will not accept digital content that does not comply with WCAG A and AA guidelines. If the City refuses digital content because it is non-compliant with the City style guide, Section 508 of the Rehabilitation Act, and/or WCAG, Contractor will be required to make the digital content compliant and redelivered at no additional cost to the City. 15. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will 254 Professional Services Agreement for [KSLA Corp dba Second Nature Consulting] Page 8 of 11 not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 16. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 17. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 18. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the 255 Professional Services Agreement for [KSLA Corp dba Second Nature Consulting] Page 9 of 11 requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 19. Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 20. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 21. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 22. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 23. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 24. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 256 Professional Services Agreement for [KSLA Corp dba Second Nature Consulting] Page 10 of 11 25. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 26. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 27. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 28. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 29. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 30. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 31. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. 32. Extensions: this Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than __________________________. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. CITY OF BOZEMAN, MONTANA KSLA Corp dba Second Nature Consulting 257 Professional Services Agreement for [KSLA Corp dba Second Nature Consulting] Page 11 of 11 CONTRACTOR By________________________________ By__________________________________ Chuck Winn, Interim City Manager Print Name: ___________________________ Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 258 SECOND NATURE CONSULTING, PLLC 2025 Hourly Rate Sheet Principal Landscape Architect: $175 per hour Senior Landscape Architect: $150 per hour Landscape Designer: $115 per hour Graphic Designer: $95 per hour Administrative: $85 per hour 259 Professional Services Agreement for [TD&H Engineering] Page 1 of 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 202__ (“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, _TD&H Engineering_, _1088 River Drive North; Great Falls, MT 59401_, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon the Effective Date and will expire on the _1st_ day of _January_, 2030, unless earlier terminated in accordance with this Agreement. 3. Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. Contractor agrees to be bound by its responses to the City’s Cloud Questions, 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 Contractor’s performance. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 260 Professional Services Agreement for [TD&H Engineering] Page 2 of 11 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, 261 Professional Services Agreement for [TD&H Engineering] Page 3 of 11 expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. 262 Professional Services Agreement for [TD&H Engineering] Page 4 of 11 In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows:  Workers’ Compensation – statutory;  Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;  Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;  Automobile Liability - $1,000,000 property damage/bodily injury per accident; and  Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. 263 Professional Services Agreement for [TD&H Engineering] Page 5 of 11 b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 264 Professional Services Agreement for [TD&H Engineering] Page 6 of 11 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be _Shane Miller, Project Coordinator_ or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be _Scott Mahurin, Structural Engineer_ or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission 265 Professional Services Agreement for [TD&H Engineering] Page 7 of 11 report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Web Accessibility and the ADA: Title II of the ADA prohibits discrimination against people with disabilities in all services, programs, and activities offered or made available by the City. This includes ensuring that the City’s communications with people with disabilities are as effective as its communications with others. If Contractor’s Scope of Services includes the production of digital content, documents, or web applications intended to be branded for use by the City, Contractor must use the City style guide when creating a design. As per recommendations found in Section 508 of the Rehabilitation Act, all digital content, documents, or web applications must also adhere to level A and AA Success Criteria and Conformance Requirements as defined by the current Web Content Accessibility Guidelines (WCAG). The City will not accept digital content that does not comply with WCAG A and AA guidelines. If the City refuses digital content because it is non-compliant with the City style guide, Section 508 of the Rehabilitation Act, and/or WCAG, Contractor will be required to make the digital content compliant and redelivered at no additional cost to the City. 15. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will 266 Professional Services Agreement for [TD&H Engineering] Page 8 of 11 not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 16. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 17. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 18. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the 267 Professional Services Agreement for [TD&H Engineering] Page 9 of 11 requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 19. Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 20. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 21. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 22. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 23. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 24. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 268 Professional Services Agreement for [TD&H Engineering] Page 10 of 11 25. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 26. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 27. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 28. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 29. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 30. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 31. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. 32. Extensions: this Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than __________________________. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. CITY OF BOZEMAN, MONTANA _TD&H Engineering_ 269 Professional Services Agreement for [TD&H Engineering] Page 11 of 11 CONTRACTOR By________________________________ By__________________________________ Chuck Winn, Interim City Manager Print Name: ___________________________ Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 270 234 E. Babcock,Suite 3 • Bozeman, MT 59715 • (406) 586-0277 2025 BOZEMAN RATE SCHEDULE Fee Compensation TD&H’s hourly billing rates for 2025 are provided in the adjacent table. We invoice for services rendered to a project to the nearest quarter hour. Direct project costs will be invoiced at cost plus 10%. Examples of these costs include airfare, ground transportation, lodging, meals, shipping and express mail, outside reproduction services, and other direct costs required for the project. Outside contract services including subconsultants, subcontractors and drilling services will be invoiced at cost plus 10% to cover additional insurance and administrative fees. DIRECT REIMBURSABLES Vehicle Use: Passenger Vehicle Mileage $0.75/mile Survey – Robotic Total Station Heavy Duty Vehicle Mileage $1.10/mile Hourly Rate: $30.00 Survey – Global Positioning Survey – Total Station with Data Collector Daily Rate: $500.00 Daily Rate: $100.00 Hourly Rate: $80.00 Hourly Rate: $20.00 Minimum Charge: $160.00 Reproduction Color (8.5x11) $1.50/page CAD Plotter (In-house) Color (11x17) $2.50/page Bond $0.90/SF B&W (8.5x11) $0.60/page Mylar $3.30/SF B&W (11x17) $1.20/page NOTES: 1) Construction Materials Testing per Separate Fee Schedule. *See Materials Testing Fee Schedule for Additional Information 2) Overtime work (above 40 hours per week, or weekends) increase hourly rates by 25%, or per quotation. 3) Annual rate adjustments occur in January of each year and typically range from 3% to 4%. DESCRIPTION HOURLY RATE AA Administrative Assistant $77.00 AM Administrative Manager $125.00 GA Grant Administrator $104.00 LS1 Surveyor’s Assistant $87.00 LS2 Surveyor $103.00 LS3 Survey Party Chief $121.00 LS4 Project Surveyor $139.00 LS5 Registered Land Surveyor $166.00 ENVS Environmental Scientist $126.00 IH1 Industrial Hygiene Technician I $92.00 IH2 Industrial Hygiene Technician II $119.00 LT1 Lab Technician I $80.00 LT2 Lab Technician II $89.00 CR1 Construction Representative I $110.00 CR2 Construction Representative II $131.00 CR3 Construction Representative III $155.00 CR4 Construction Representative IV $188.00 LA Landscape Architect $140.00 LP Land Planner $174.00 CLS CMT Lab Supervisor $130.00 CD1 CAD Designer I $92.00 CD2 CAD Designer II $120.00 CD3 CAD Manager $131.00 GC CAD/GIS Specialist $110.00 ET Engineering Technician $126.00 E1 Engineer I $119.00 E2 Engineer II $128.00 E3 Engineer III $149.00 E4 Engineer IV $174.00 E5 Engineer V $198.00 E6 Engineer VI $228.00 P Principal $254.00 DCT Deposition & Court Testimony $418.00 PMI Project Manager I $184.00 PMII Project Manager II $238.00 EXHIBIT A 271 Professional Services Agreement for [DC Excavation, LLC] Page 1 of 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 202__ (“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, _DC Excavation, LLC_, _PO Box 11984; Bozeman, MT 59719_, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon the Effective Date and will expire on the _1st_ day of _January_, 2030, unless earlier terminated in accordance with this Agreement. 3. Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. Contractor agrees to be bound by its responses to the City’s Cloud Questions, 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 Contractor’s performance. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 272 Professional Services Agreement for [DC Excavation, LLC] Page 2 of 11 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, 273 Professional Services Agreement for [DC Excavation, LLC] Page 3 of 11 expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. 274 Professional Services Agreement for [DC Excavation, LLC] Page 4 of 11 In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows:  Workers’ Compensation – statutory;  Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;  Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;  Automobile Liability - $1,000,000 property damage/bodily injury per accident; and  Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. 275 Professional Services Agreement for [DC Excavation, LLC] Page 5 of 11 b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 276 Professional Services Agreement for [DC Excavation, LLC] Page 6 of 11 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be _Shane Miller, Project Coordinator_ or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be _Bill Dempsey_ or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission 277 Professional Services Agreement for [DC Excavation, LLC] Page 7 of 11 report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Web Accessibility and the ADA: Title II of the ADA prohibits discrimination against people with disabilities in all services, programs, and activities offered or made available by the City. This includes ensuring that the City’s communications with people with disabilities are as effective as its communications with others. If Contractor’s Scope of Services includes the production of digital content, documents, or web applications intended to be branded for use by the City, Contractor must use the City style guide when creating a design. As per recommendations found in Section 508 of the Rehabilitation Act, all digital content, documents, or web applications must also adhere to level A and AA Success Criteria and Conformance Requirements as defined by the current Web Content Accessibility Guidelines (WCAG). The City will not accept digital content that does not comply with WCAG A and AA guidelines. If the City refuses digital content because it is non-compliant with the City style guide, Section 508 of the Rehabilitation Act, and/or WCAG, Contractor will be required to make the digital content compliant and redelivered at no additional cost to the City. 15. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will 278 Professional Services Agreement for [DC Excavation, LLC] Page 8 of 11 not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 16. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 17. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 18. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the 279 Professional Services Agreement for [DC Excavation, LLC] Page 9 of 11 requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 19. Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 20. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 21. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 22. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 23. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 24. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 280 Professional Services Agreement for [DC Excavation, LLC] Page 10 of 11 25. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 26. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 27. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 28. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 29. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 30. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 31. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. 32. Extensions: this Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than __________________________. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** 281 Professional Services Agreement for [DC Excavation, LLC] Page 11 of 11 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. CITY OF BOZEMAN, MONTANA _DC Excavation, LLC_ CONTRACTOR By________________________________ By__________________________________ Chuck Winn, Interim City Manager Print Name: ___________________________ Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 282 DC Excavation LLC 70 Motherlode Unit A Belgrade, MT 59714 DC Excavation, LLC 2025 Equipment Rates Excavators Bare Rate ($/HR)W/Engcon ($/HR)W/GPS ($/HR) Dozers Bare Rate ($/HR)W/GPS ($/HR) Front End Loaders Bare Rate ($/HR) Skid Steer Bare Rate ($/HR)W/Attachment ($/HR)W/GPS ($/HR) Compactors Bare Rate ($/HR) CAT 352 $450.00 John Deere 350P $350.00 CAT 340 $350.00 CAT 335 $325.00 $350.00 $400.00 CAT 325 $275.00 $325.00 $375.00 CAT 310 $225.00 $250.00 CAT 305 $175.00 CAT D6XE $400.00 $450.00 CAT D3 $225.00 $275.00 JD 326P TeleLift JD 544L $250.00 JD 644L $275.00 CAT 259D3 $175.00 $200.00 $225.00 John Deere 335P $175.00 $200.00 $225.00 HAMM H14I $175.00 HAMM H5I $150.00 Volvo SD110 $175.00 Volvo SD45 $150.00 Jumping Jack $75.00 Plate Wacker $100.00 Walk Behind Wacker $75.00 EXHIBIT A 283 Pickups & Trucking Bare Rate ($/HR)Oversize Load ($/HR) Pumps Daily ($/HR)Monthly ($/MO) Ground Heat Daily ($/DAY)Monthly ($/MO) Labor Bare Rate ($/HR) Technology Day ($/HR)Monthly ($/MO) Aggregates Unit Pice ($/TON) Ground Heat Rates Do Not Include Labor or Fuel Pump Rates Do Not Include Labor or Fuel Ground Heater, Pump Rental, and Generator operating 24 hours per day will be billed at 3x the daily rate. Lowboy $190.00 $200.00 Rental Side Dump $212.00 Rental Transfer $225.00 Rental Solo Truck $200.00 Pickup $90.00 Pickup W/Trailer $110.00 Water Truck $170.00 JD 260E Haul Truck $250.00 4" Godwin $700.00 $6,000.00 2" Submersible $200.00 $1,800.00 Thawzall 3000 $700.00 $7,500.00 Superviser $100.00 Foreman $90.00 Operator $70.00 Laborer $70.00 GPS Base & Rover $775.00 $6,775.00 3/4" Screened Rock $28.44 6" Minus Pit Run $11.65 1.5" Minus Road Mix $14.56 3" Minus Road Mix $13.00 284 Professional Services Agreement for [All Valley Landscape Services, LLC] Page 1 of 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 202__ (“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, _All Valley Landscape Services, LLC_, _PO Box 11746; Bozeman, MT 59719_, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon the Effective Date and will expire on the _1st_ day of _March_, 2030, unless earlier terminated in accordance with this Agreement. 3. Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. Contractor agrees to be bound by its responses to the City’s Cloud Questions, 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 Contractor’s performance. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 285 Professional Services Agreement for [All Valley Landscape Services, LLC] Page 2 of 11 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, 286 Professional Services Agreement for [All Valley Landscape Services, LLC] Page 3 of 11 expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. 287 Professional Services Agreement for [All Valley Landscape Services, LLC] Page 4 of 11 In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows:  Workers’ Compensation – statutory;  Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;  Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;  Automobile Liability - $1,000,000 property damage/bodily injury per accident; and  Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. 288 Professional Services Agreement for [All Valley Landscape Services, LLC] Page 5 of 11 b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 289 Professional Services Agreement for [All Valley Landscape Services, LLC] Page 6 of 11 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be _Shane Miller, Project Coordinator_ or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be _Mick Derzay_ or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission 290 Professional Services Agreement for [All Valley Landscape Services, LLC] Page 7 of 11 report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Web Accessibility and the ADA: Title II of the ADA prohibits discrimination against people with disabilities in all services, programs, and activities offered or made available by the City. This includes ensuring that the City’s communications with people with disabilities are as effective as its communications with others. If Contractor’s Scope of Services includes the production of digital content, documents, or web applications intended to be branded for use by the City, Contractor must use the City style guide when creating a design. As per recommendations found in Section 508 of the Rehabilitation Act, all digital content, documents, or web applications must also adhere to level A and AA Success Criteria and Conformance Requirements as defined by the current Web Content Accessibility Guidelines (WCAG). The City will not accept digital content that does not comply with WCAG A and AA guidelines. If the City refuses digital content because it is non-compliant with the City style guide, Section 508 of the Rehabilitation Act, and/or WCAG, Contractor will be required to make the digital content compliant and redelivered at no additional cost to the City. 15. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, 291 Professional Services Agreement for [All Valley Landscape Services, LLC] Page 8 of 11 creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 16. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 17. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 18. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the 292 Professional Services Agreement for [All Valley Landscape Services, LLC] Page 9 of 11 reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 19. Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 20. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 21. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 22. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 23. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 24. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 25. Severability: If any portion of this Agreement is held to be void or unenforceable, the 293 Professional Services Agreement for [All Valley Landscape Services, LLC] Page 10 of 11 balance thereof shall continue in effect. 26. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 27. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 28. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 29. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 30. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 31. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. 32. Extensions: this Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than __________________________. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** 294 Professional Services Agreement for [All Valley Landscape Services, LLC] Page 11 of 11 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. CITY OF BOZEMAN, MONTANA _All Valley Landscape Services, LLC_ CONTRACTOR By________________________________ By__________________________________ Chuck Winn, City Manager Print Name: ___________________________ Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 295 Po Box 11746 Bozeman MT 59719 Office: 406-624-6047 January 22, 2025 Winter Rates 2024-2025 Crew Member per Hour: • Includes Snowblowers, Shovels, handspreaders. - $70.00/Hr Sidewalk Machines- • ATV with 5’ Plow/ Boss Snow Rator- $115.00/hr 3/4 or 1 Ton Pickups per Hour • With Wideout or V Plow - $160.00/hr • With Front Plow and Articulating Rear Plow- $200.00/hr Skid Loader per Hour • Plowing with Snow Wolf Quatro Plow- $200.00/hr • Moving or hauling piles with 1 yd bucket - $150.00/hr Dump Truck/ Trailer Per Hour • $150.00/hr • Dump Fees TBD EXHIBIT A 296 Po Box 11746 Bozeman MT 59719 Office: 406-624-6047 January 22, 2025 Ice Management • 5/16 Microchip Sand – Price Per Application $150 minimum • Sno Plow Cal Melt Bagged Icemelt Product - $0.75/pound • Tailgate Spreader Truck - $115.00/hr --- $75.00/minimum Summer/Landscaping and Irrigation Rates Hourly Rates apply to Projects spanning 1-4 days. Daily Rates apply to Projects spanning 5-9 days. Weekly Rates apply to Projects spanning 10 plus days. The above rate scale may change depending on logistics, location, or details of scope of work. Crew Member Rates Type Hourly Daily (8 Hour Day) Weekly (40 Hr Week) 4 Man Crew $300.00/hr $2250.00/day $11,000.00/week 2 Man Crew $180.00/hr $1,320.00/day NA 297 Po Box 11746 Bozeman MT 59719 Office: 406-624-6047 January 22, 2025 Equipment and Trucking Rates Type Hourly Daily Weekly Mini Skid Steer (Dingo) $100-$160.00/hr w/ 4 Hr min $875.00/day $3050.00/week Tracked Skid Loader $150.00-200.00/hr w/ 4 hr min $1200.00/day $4,000.00/week 2 Ton Mini Ex with Thumb $150.00/hr w/ 4 hr min $1000.00/day $3,500.00/week 4.5 Ton Mini Ex with Thumb $200.00/hr w/ 4 hr min $1400.00/day $6000.00/week Single Axle Dump Trucks Payload up to 5 Tons $125.00/hr NA NA Irrigation Services System Installation per zone- • 1” Poly using vibratory plow using multi strand wiring or Hydrawise 2 wire - $1000.00/zone • Larger sized systems- Price TBD Irrigation Alteration/ Modifications – Charged at Time and Materials Using Crew Rates 298 Po Box 11746 Bozeman MT 59719 Office: 406-624-6047 January 22, 2025 Product and Material Pricing Product and material pricing depends on or local markets and availability. Products and materials can be obtained through wholesale vendors given enough notice. Materials and products are all marked up a minimum of of 25% of cost, with some (especially those with lots of handling and warranties offered ie; Nursery Stock, Trees) exceeding 100% markup. Transparency is always given with final totals used of all stock. 299 Memorandum REPORT TO:City Commission FROM:Kesslie Carlson-Ham, Sustainability Program Analyst Natalie Meyer, Sustainability Program Manager Jon Henderson, Assistant City Manager SUBJECT:Authorize the City Manager to sign Amendment No. 1 to the Software as a Service Agreement with THG Energy Solutions for City facility utility tracking software services MEETING DATE:February 25, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign Amendment No. 1 to the Software as a Service Agreement with THG Energy Solutions for City facility utility tracking software services. STRATEGIC PLAN:6.3 Climate Action: Reduce community and municipal Greenhouse Gas (GHG) emissions, increase the supply of clean and renewable energy; foster related businesses. BACKGROUND: To enhance energy management and increase operational transparency within the City of Bozeman facilities, the City of Bozeman is upgrading its municipal utility tracking and carbon accounting services. On November 19, 2024, the City Commission authorized the City Manager to sign a Software as a Service Agreement with THG Energy Solutions to integrate all natural gas and electric City utility accounts into one online platform, providing the most up-to-date utility usage and cost data, reporting and visualization, facility benchmarking, and comparison grouping. Access to utility data will be streamlined for selected user groups for department-focused access allowing for ease of communication, reporting, and delivery of usage and billing anomaly alerts. THG Energy Solutions enables custom carbon emission factors to accurately report carbon emissions at a facility level and allow for integration with Energy Star Portfolio Manager to benchmark major City buildings. Fifteen- minute interval electricity usage data will be made more readily available through the platform for the five highest usage facilities, allowing for a level of data granularity that can be used to improve operational processes and monitor the outcomes of facility improvements and retrofits. THG Energy Solutions will enable future integration of City facility water and waste utility 300 accounts, utility sub-metering, on-site solar production data, and energy demand response management. With over three hundred utility accounts, utility tracking software will improve the City of Bozeman’s ability to more efficiently measure, monitor, and verify utility usage in one platform. Implementing utility tracking supports the goals of the 2020 Bozeman Climate Plan by increasing energy efficiency at City facilities (Action 1.A.3) and by using data and price signals to advance energy efficiency (Action 1.A.2). Amendment No. 1 to the Software as a Service Agreement clarifies insurance coverage provisions to satisfy adequate notice of cancellation on behalf of the Provider’s insurance broker and clarifies the circumstances applicable to the Provider’s limitation of liability and additional context concerning the virus warranty. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:Authorization of Amendment No. 1 will not affect the approved Software as a Service Agreement contract fees. Attachments: SaaS Agreement_THG Utility Tracking Software Services.pdf SaaS Agreement Amendment 1_THG Utility Tracking Software.pdf Report compiled on: February 13, 2025 301 Software as a Service Agreement This Software as a Service Agreement (“Agreement”), is made and entered into this 1st day of October, 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 THG Energy Solutions, LLC a Texas limited liability company with a mailing address of 811 Trinity, Suite B Austin, TX 78701, 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 (d) independently developed by the receiving Party without reference to or use of the disclosing Party’s Confidential Information.        302 - page 2 of 16 - 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 material 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 __36____ 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- current term (each a “Renewal Term” and together with the Initial Term, the “Term”). c. Termination.        303 - page 3 of 16 - 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. 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        304 - page 4 of 16 - 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 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        305 - page 5 of 16 - 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. 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.        306 - page 6 of 16 - 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 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).        307 - page 7 of 16 - 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: x Workers’ Compensation – statutory; x Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; x Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; x Automobile Liability - $1,000,000 property damage/bodily injury per accident; x Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate; and x 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.        308 - page 8 of 16 - 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: 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        309 - page 9 of 16 - 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. 15. Limitation of Liability. The Provider's liability for contract damages is limited to direct 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.        310 - page 10 of 16 - 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 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        311 - page 11 of 16 - 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 implement and maintain reasonable procedures to 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 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 72-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        312 - page 12 of 16 - 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. 25. Remedy for When Services are Subject of a Claim. If any Services furnished are 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: Natalie Meyer, Sustainability Program Manager email: nmeyer@bozeman.net, 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.        313 - page 13 of 16 - b. Provider’s Representative. The Provider’s Representative for the purpose of this Agreement must be: THG Energy Solutions, LLC 811 Trinity Suite B Austin TX 78701 Atten: Daniel M. Frey President email:DMFrey@THGEnergy.com 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 (with a successful transmission report) to the email address 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 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        314 - page 14 of 16 - 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. 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        315 - page 15 of 16 - 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. 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.        316 - page 16 of 16 - 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. 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: THG Energy Solutions, LLC City of Bozeman By:_______________________________ Name: ____________________________ Title: _____________________________ By:_______________________________ Name: ____________________________ Title: _____________________________                ____________________ ______________ 317 THG Energy Solutions | September 2024 THG ENERGY: SERVICE PROPOSAL SUMMARY City of Bozeman: Carbon Accounting with Data Management & Energy Reporting Solutions Proposal Overview: Energy Intelligence Suite (EIS) with Sustainability Reporting THG’s proposal includes software and services to simplify and streamline best practices for energy management and provide standardized energy information across meters, facilities, and aggregated groups of sites and business units. The standardized logic for data collection and management that THG provides lends itself to easier adoption of more involved energy and sustainability strategies; from the top levels of the business, down to granular site-level operations. As a part of this initial scope, THG will work with the City of Bozeman to identify target commodities and facilities and automate the collection of data from metered locations and associate all key metrics at the meter and account levels. Those meters and accounts can be grouped and filtered for reporting purposes. THG will also leverage the data made available through data collection to equip the client with metrics required for GHG management and broader ESG reporting. Information and reporting structures will be made available via THG’s SaaS platform for specified locations and groups to provide appropriate visibility to stakeholders. Data made available in the platform can also be included in internal and/or other client-identified 3rd party systems via API. Examples of Customer Account Aggregation and Hierarchy is included on final page. Proposed Services and Pricing Summary THG takes utility data management seriously and we work hard to be as specific as possible when outlining our suggested approach. We built the following structured pricing options that we felt makes the most sense based on our almost 20 years of experience. Per our conversation, Bozeman estimates there are 315 meters for initial data collection, and THG will be working with City of Bozeman to manage ENERGY STAR Portfolio Manager data updates for 18 buildings. THG will also be collecting data for 5 IDR meters. THG’s draft proposal is for data services and support for the following: - EIS Data Set Up & Collection - Sustainability Reporting Services - ENERGY STAR Portfolio Manager - IDR Meter Data Management džŚŝďŝƚƚŽ^ŽĨƚǁĂƌĞĂƐĂ^ĞƌǀŝĐĞŐƌĞĞŵĞŶƚ       318 THG Energy Solutions | September 2024 Standard Fees for Implementation and Ongoing Support Pricing totals in the tables below are based on the information THG has been provided with to date. Final pricing will be based on Client feedback and formally agreed upon approaches and solutions. Cost Breakdown Summary for Initial Proposal Energy Intelligence Suite: Enterprise Solution One-Time Fees Item Qty.$/Unit One-Time Total EIS Set-Up + History (per Utility Service Account; "USN")1 315 20.00 $ 6,300 IDR Set Up 5 20.00 $ 100 ENERGY STAR Portfolio Manager Set Up 18 125.00 $ 2,250 One-Time Summary $ 8,650 Monthly Support Fees Item Qty.$/Unit Monthly Costs Electronic processing per Commodity USN - Domestic US 300 3.50 $ 1,050 Manual processing per Commodity USN - Domestic US 2 15 8.00 $ 120 IDR Meter Data Collection 5 20.00 $ 100 ENERGY STAR Portfolio Manager Commodity Reporting *assuming 3 per facility 54 2.50 $ 135 ESG/Carbon Accounting Reporting Module4 1 500 $ 500 Monthly Estimated Total $ 1,905 Assumptions: 1Historical includes as much as utility provider makes available to THG per data source (12-24 months) 2Manual bills can be client supplied or THG can be added to distribution list. (emailed, scanned .PDFs, snail mail) 3THG can ingest pre-formatted, client-keyed bill data into templates and dropped into an SFTP site to be processed by THG with bill copy. *Note that we are willing to amortize set up fees at $25/meter over 36 mo. period. ($0.70 adder per meter/month) THG invoices for the first full year unless other payment schedules are agreed upon. **Note that we do not offer monthly invoicing for less than $5,000. THG can offer project management for ENERGY STAR Portfolio Manager at hourly rates for support around annual auditing and disclosures, data clean up, and facility creation.        319 THG Energy Solutions | September 2024 Standard Pricing for Premium Services: Timeline for Execution - Approximately 95 days for onboarding account & meter set-ups Solution Details: Sustainability Reporting THG Energy Solutions provides utility data management services that follows the Greenhouse Gas Protocol to align customers with credible emissions reporting requirements for Scope 1 and Scope 2 emissions. We automate a data processing strategy to track emissions for multi-facility portfolios with accurate, transparent, and timely reporting requirements. For Scope 2, THG Energy Solutions offers grid-average emissions by tying EPA eGRID databases to processed utility bill data. For customers with more ambitious carbon reduction goals, we also offer tools to track emissions related to purchasing decisions related to different grid electricity products, such as RECs, PPAs, and unique supplier-specific emissions products. Our carbon emissions tools automatically convert utility bill usage into metric tons of carbon dioxide equivalents (MT C02e) for Scope 1 & Scope 2 emissions that can be viewed in aggregate, as well as down to the facility-level. Emissions reporting methodology mirrors EPA’s ENERGY STAR Portfolio Manager, which was designed to be consistent with the Greenhouse Gas Protocol developed by the World Resources Institute and World Business Council for Sustainable Development. As such, the reporting protocol is compatible with the accounting, inventory and reporting requirements of Environmental Protection Agency’s Climate Leaders program. The tool calculates GHG emissions –Carbon Dioxide, Methane and Nitrous Oxide –from both fossil fuel consumed on-site (direct emissions), as well as GHG emissions generated off-site at power plants that deliver heat, cooling or electricity to the building (indirect emissions) using EPA’s eGRID reporting data. The Sustainability report gives users the ability to record, track, and communicate the GHG emissions associated with the energy use of their building portfolios. The tool can report GHG data by site, region, or division levels –essentially, the reporting capabilities are based on the corporate hierarchy/tree-structure the customer chooses.        320 THG Energy Solutions | September 2024 Automated Data Collection and Computerized Bill Validation Whenever possible, THG electronically gathers and aggregate utility bill data from utility providers and suppliers. Whenever we can’t obtain accounts electronically, we employ manual methods, including billing redirection and email distribution lists. Machine learning technology delivers every data point on the bill along with the original bill image. We offer several ways to display and track line-item detail, ranging from reporting software graphics, database reporting tables, and an API. See Appendix for screenshot examples. THG collects all the billing determinants as outlined in the final work order, if the billing determinants appear on the utility bills. Example categories for usage/cost reporting are below: a) Commodity Volume (usage) b) Transport Volume (usage) c) Weather Normalized Usage d) Demand (Actual & Billed) e) Commodity Costs; Energy vs. Capacity f) Delivery Costs (T&D) a. Subcomponent of Demand Charges if available g) Other Costs h) Taxes i) Total Charges THG’s metric-based utility invoice validation comes standard as a basic service for all invoices it processes. The 35- point inspection is a computerized, automated process designed to identify potential operational outliers and service provider errors. Data checks include: x Best practices: valid due date, service period, gaps or overlaps in service dates, facility location, unique invoice number, valid meter number. x Performance metrics: cost & usage vs.: last year, estimated, and historical maximum. x Load factor parameters and demand metrics (electricity invoices only). If variances are outside of tolerance levels, the system will flag the invoice and an alert will be available next time the user logs onto the portal, whenever a report is generated for the particular account for that month, or if the user configures their settings to be automatically notified audit alerts via email. Clients can use standard or they can set their own validation tolerance levels. See figure below illustrating some of the metric validations, as well as typical screens a user may see when logging into the portal. Results of each bill validation will be tied to each invoice, so there is always a record of the audit for future reference. Security THG has successfully completed a SOC 2® - SOC Type 2 Report for Service Organizations: Trust Services Criteria. This is a report on Controls at a Service Organization Relevant to Security, Availability, Processing Integrity, Confidentiality or Privacy These reports are intended to meet the needs of a broad range of users that need detailed information and assurance about the controls at a service organization relevant to security, availability, and processing integrity of the systems the service organization uses to process users’ data and the confidentiality and privacy of the information processed by these systems. These reports play an important role in: x Oversight of the organization x Vendor management programs x Internal corporate governance and risk management processes x Regulatory oversight        321 THG Energy Solutions | September 2024 Other Differentiators THG Energy: More than software and hardware. While navigating the sea of utility data and demand side management opportunities, we understand how easy it can be to lose track of the big picture. We’ve seen it with other solutions. THG seeks to present the best value from the end-user’s perspective. Rather than building a software company, we have focused on building our team with energy experts who understand data, electricity markets, and who can make suggestions around priorities, goals, and new opportunities. At our core, we find the most practical solutions for market participation. This includes leveraging: x Electronic/automated data acquisition vs. manual processes x Using existing real-time data from submetering (house meters) vs. installing new metering hardware x Market signals to allow customers to independently manage Peak Load Contribution/capacity tags and coincident peak load vs. sharing benefits with third parties (unless there’s no other way). Data Build Out: custom grouping/naming options Site-Level Business Unit Enterprise City Office Space HR Office City Gov.Vehicle Shop Public Services Rec Center Transportation Hierarchy and Grouping Examples Meter 1 Meter 1 Meter 1        322 Exhibit B to Software as a Service Agreement Cloud Services Questions- THG Responses 1) Service Levels: What level of service should we expect? What is the City’s recourse for excessive downtime? Refund of percentage of monthly fee? THG Response: THG shall maintain monthly operating statistics on Customer facing EIS system uptime and latency. THG shall make these statistics available to Client upon request. x THG shall maintain 98% uptime (no more than 3 hours per month of downtime) during operating hours of 7:00 AM to 7:00 PM Central Time. To the extent that maintenance during operating hours is necessary which is anticipated to impact uptime for more than thirty minutes, THG shall notify users in advance. x THG shall monitor system latency (response time for screen refresh and response) for all user activities. Monthly reporting monitors number of queries, query type, and function. o 90% of queries shall respond within 10 seconds o 95% of queries shall respond within 20 seconds o 99% of queries shall respond within 30 seconds x To the extent that THG violates any of the above system and uptime performance SLA’s for any given month, THG shall notify the client of such event and shall provide an explanation and mitigation plan for addressing such violations going forward. If THG fails to address such violations with a mitigation plan, and incurs violations for more than 3 consecutive months, THG shall refund five percent per occurrence, capped at twenty percent of client’s basic service costs during the period in which such performance violations occurred. x These System and Uptime Performance SLAs shall be further subject to standard events of Force Majeure. 2) Data Ownership: Who owns the data we provide and what can be done with the data? THG Response: THG acknowledges that client will maintain ownership of data collected. Data THG collects and makes available in the portal can be used within portal for standard reports, and is able to be exported in a variety of ways to accommodate data needs outside of the portal as well. Client will have access to their data should the business relationship end. 3) ADA Compliance: If your proposed services include websites, they must be ADA compliant as defined by WCAG (Web Content Accessibility Guidelines) standards. THG Response: The EIS system includes a web interface that is undergoing an update and will include WCAG standards once complete in 6-12 months. Please note that the web interface is not a public website, so therefore may not fall under ADA requirements.        323 4) Data Security: How secure is our data and how is it being kept secure? a. If this is a multi-tenant environment on the same hardware how is our data kept separate and secure from other customers, including any PII (Personally Identifiable Information) that may be gathered? THG Response: The environment is multi-tenant. All data is keyed to individual customers with access granted using hierarchical roles and permissions to prevent any cross-over access by other system users. b. If PII is gathered, is it encrypted in transit and at rest? THG Response: Yes. c. If credit card transactions are occurring is your system fully PCI compliant? THG Response: N/A 5) Data Integrity: What do you do as a vendor to ensure our data maintains its integrity? THG Response: On ingestion, we have metric-based validations of all data prior to acceptance. Stored data is encrypted and backed up at least daily and retained offsite for up to six months. 6) We require data centers to be located in the United States: What country will our data be located in? THG Response: United States 7) Responding to legal demands to disclose data: What is your process when someone subpoenas or requests our data from you as a vendor? THG Response: THG does not share customer data without customer permission except to comply with legally valid law enforcement orders. Any customer requirements regarding law enforcement orders will also be met except where they obstruct THG from meeting its own legal obligations. 8) Reporting: What is your protocol for data breaches? THG Response: THG initiates its Incident Response Procedure immediately, taking steps to preserve evidence, contain and eradicate the incident, recover from any effects, and prevent recurrence. Customers are notified within 72 hours of breach discovery. 9) Disaster Recovery: What protections/protocols do you have in place to mitigate disasters? THG Response: THG staff are all capable of full remote work in case of regional disasters. Customer- facing systems are hosted in fully secured data centers with redundant power and network resources. A geographically separated cold site is ready for full system recreation. System backups are created at least daily and retained for at least 30 days, with data and critical backups retained for six months. 10) Business Continuity/Exit: If you decide to bring your business to an end or we end our relationship what happens to our data? If you give us a copy of our data, what format options will there be for our data and what assistance will you provide getting our data to us?        324 THG Response: Data will be made available in either a series of files exported or delivered via FTP, or API in commonly used formats- csv, xls, etc. 11) Termination rights and consequences: What is your termination policy both for you as a vendor and us as a customer? THG Response: In the event of termination for any reason, Client shall pay THG for any component of the System that has been licensed or for all Services performed up to and including the termination date; and THG shall provide such license or Services already paid for by Client, unless Client fails to comply with the provisions as outlined and agreed upon in the fully executed contract. Questionnaire Completed by:______Kathryn Becht___ Date:___9/20/24_____        325 First Amendment to Software as a Service Agreement for THG Energy Solutions FY 2025 – FY 2026 Page 1 of 4 FIRST AMENDMENT TO SOFTWARE AS A SERVICES AGREEMENT THIS FIRST AMENDMENT TO THE SOFTWARE AS A SERVICES AGREEMENT FOR utility data management dated October 1, 2024 (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 THG Energy Solutions, a Texas limited liability company with a mailing address of 811 Trinity, Suite B, Austin, TX 78701, 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 to amend the Agreement as follows: Section 9 of the Agreement is removed entirely and replaced with the following: “ 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 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. 326 First Amendment to Software as a Service Agreement for THG Energy Solutions FY 2025 – FY 2026 Page 2 of 4 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; • Employer’s Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; 327 First Amendment to Software as a Service Agreement for THG Energy Solutions FY 2025 – FY 2026 Page 3 of 4 • 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, Automobile Liability, and Cyber Liability policies. The City must be endorsed as Alternate Employer on the Workers’ Compensation policy. The insurance and required endorsements must be in a form suitable to City and must include no less than a ten (10) day notice of cancellation and thirty (30) day notice of non-renewal, noting Provider’s insurance broker will be providing a ten (10) day notice of cancellation and thirty (30) day notice of non-renewal with respect to Provider’s Cyber Liability policy. 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.” Section 15 of the Agreement is removed entirely and replaced with the following: “ 15. Limitation of Liability. The Provider's liability for contract damages is limited to direct damages. With the exception of grossly negligent or willful misconduct of the Provider, Provider’s liability or indemnity shall not exceed the value of the prior year of professional services billed to the City by Provider pursuant to this Agreement.” Section 24 of the Agreement is removed entirely and replaced with the following: 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 328 First Amendment to Software as a Service Agreement for THG Energy Solutions FY 2025 – FY 2026 Page 4 of 4 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 in section 15 (as amended by this amendment) applies to this indemnification obligation.” Agreement still valid. All remaining terms and provisions of the Agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA THG ENERGY SOLUTIONS By________________________________ By_____________________________ Chuck Winn, Interim City Manager Print Name: Title: APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney 329 Memorandum REPORT TO:City Commission FROM:Griffin Nielsen, Project Engineer Shawn Kohtz, Utilities Director SUBJECT:Resolution authorizing Change Order 01 with DT Tanks of Montana, LLC for the Water Reclamation Facility 2024 Gravity Thickener Rehabilitation Project MEETING DATE:February 25, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Approve a resolution authorizing Change Order 01 with DT Tanks of Montana, LLC for the Water Reclamation Facility 2024 Gravity Thickener Rehabilitation Project. STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:Attached is a copy of a resolution and Change Order 01 for the Water Reclamation Facility 2024 Gravity Thickener Rehabilitation project. The change order includes two items, reduction of the Miscellaneous Work Items 107 and 203. The Miscellaneous Work Item covers minor work not covered by other items. During construction, welding repairs were found to be needed on the gravity thickener’s mechanical unit after the existing coating was removed. The additional work was authorized under the Miscellaneous Work Item but did not require full utilization of the contract quantity. Change Order 01 is the final change order and reconciles final quantities and the contract price. The recommended change in cost for these items is reasonable and commensurate with the work involved. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the City Commission FISCAL EFFECTS:Decrease the contract price by $19,164.42 from $419,000 to $399,835.58. Attachments: 2024 WRF Gravity Thickener Project_ Change Order 01_Resolution.doc 2024 WRF Gravity Thickener Project_ Change Order 01.pdf Report compiled on: February 7, 2025 330 331 1 of 2 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, WHEREAS,the City Commission did, on the 25th day of March2024, authorizeaward of the bid for the Water Reclamation Facility 2024 Gravity Thickener RehabilitationProject, to DN Tanks of Montana, LLC, Wakefield, MA; and WHEREAS,Section 7-5-4308, Montana Code Annotated, provides that any such alterations or modifications of the specifications and/or plans of the contract be made by resolution; and WHEREAS,it has become necessary in the prosecution of the work to make alterations or modifications to the specifications and/or plans of the contract. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, that the proposed modifications and/or alterations to the contract between the City of Bozeman, a municipal corporation, andDN Tanks of Montana LLC, as contained in Change Order 01,attached hereto, be and the same are hereby approved; and the City Manager is hereby authorized and directed to execute the contract change order for and on behalf of the City;and the City Clerkis authorized and directed to attest such signature, to wit: 332 2 of 2 PASSED AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the ## th day of February 2025. __________________________________________ TERRY CUNNINGHAM Mayor ATTEST: ________________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: _____________________________________________ GREG SULLIVAN City Attorney 333 Page 1 of 3 CHANGE ORDER No. 01 DATE OF ISSUANCE 2/7/2025 EFFECTIVE DATE 2/7/2025 OWNER City of Bozeman CONTRACTOR DN Tanks of Montana, LLC Contract: WRF 2024 Gravity Thickener Rehabilitation Project: WRF 2024 Gravity Thickener Rehabilitation OWNER's Contract No. NA ENGINEER City of Bozeman ENGINEER's Contract No. NA You are directed to make the following changes in the Contract Documents: Description: Item 1 – Reconciliation of Final Quantities - Welding repairs were found to be needed on the gravity thickener’s mechanical unit once the existing coating was removed. The additional work was authorized under the Miscellaneous Work Item 107 but did not require full utilization of the contract quantities. No additional Miscellaneous Work was required during construction. All other item qualities were completed per the Bid Form. Reason for Change Order: No additional Miscellaneous Work was required during construction. All other item qualities were completed per the Bid Form. Attachments: (List documents supporting change) Attachment A – Email correspondence of welding repair and authorization of Miscellaneous Work Item Attachment B – Reconciliation of Final Quantities Attachment C – DN Tanks Change Request Proposal CHANGE IN CONTRACT PRICE: CHANGE IN CONTRACT TIMES: Original Contract Price $ 419,000.00 Original Contract Times: Substantial Completion: 60 Ready for final payment: 60 (days or dates) Net Increase (Decrease) from previous Change Orders No. to : $ 0.00 Net change from previous Change Orders No. to No. : Substantial Completion: 0 Ready for final payment: 0 (days) Contract Price prior to this Change Order: $ 419,000.00 Contract Times prior to this Change Order: Substantial Completion: 0 Ready for final payment: 0 (days or dates) Net decrease of this Change Order: $ 19,164.42 Net increase (decrease) this Change Order: Substantial Completion: 0 Ready for final payment: 0 (days) Contract Price with all approved Change Orders: $ 399,835.58 Contract Times with all approved Change Orders: Substantial Completion: 60 Ready for final payment: 60 (days or dates) Contractor certifies and agrees that there are no additional costs or claims for extra work, additional time, delays or omitted items, of any nature whatsoever, associated with the subject change order items, except as identified and set forth herein and unless expressly stated otherwise in the Change Order. And further, that the price agreed-upon herein represents the full cost and value for the subject work performed and the materials supplied under the terms of the contract and that the work quantities and value were properly determined and are correct. Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 334406 Page 2 of 3 CONTRACTOR (Authorized Signature) Date RECOMMENDED BY: APPROVED BY: (ENGINEER - Signature) Date OWNER (Authorized Signature) Date EJCDC 1910-8-B (1996 Edition Prepared by the Engineers Joint Contract Documents Committee and endorsed by The Associated General Contractors of America and the Construction Specifications Institute. Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 2/7/2025 335407 Page 3 of 3 CHANGE ORDER INSTRUCTIONS A. GENERAL INFORMATION This document was developed to provide a uniform format for handling contract changes that affect Contract Price or Contract Times. Changes that have been initiated by a Work Change Directive must be incorporated into a subsequent Change Order if they affect Price or Times. Changes that affect Contract Price or Contract Times should be promptly covered by a Change Order. The practice of accumulating Change Orders to reduce the administrative burden may lead to unnecessary disputes. If Milestones have been listed in the Agreement, any effect of a Change Order thereon should be addressed. For supplemental instructions and minor changes not involving a change in the Contract Price or Contract Times, a Field Order should be used. B. COMPLETING THE CHANGE ORDER FORM Engineer normally initiates the form, including a description of the changes involved and attachments based upon documents and proposals submitted by Contractor, or requests from Owner, or both. Once Engineer has completed and signed the form, all copies should be sent to Owner or Contractor for approval, depending on whether the Change Order is a true order to the Contractor or the formalization of a negotiated agreement for a previously performed change. After approval by one contracting party, all copies should be sent to the other party for approval. Engineer should make distribution of executed copies after approval by both parties. If a change only applies to price or to times, cross out the part of the tabulation that does not apply. Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 336408 From:Griffin Nielsen To:Gomez, Omar Subject:RE: [EXTERNAL]PCO 1 - Rotating Arm Steel Welding Date:Monday, August 12, 2024 5:03:00 PM Attachments:image001.png Omar, We cover this with the Miscellaneous Work Item. Please consider this the approval to move forward with the work. Thanks, City of Bozeman MT Griffin Nielsen, PE| Engineering/Utilities Department D:406.582.2279 C:406.595.1598gnielsen@bozeman.net From: Gomez, Omar <Omar.Gomez@dntanks.com>  Sent: Monday, August 12, 2024 4:37 PM To: Griffin Nielsen <GNielsen@BOZEMAN.NET> Subject: [EXTERNAL]PCO 1 - Rotating Arm Steel Welding CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Hi Griffin, I am putting together some numbers to fix the tubing. Here is what I am getting at rough numbers. We would like to proceed with this on Wednesday if possible. 1 day repair $15,835.58 Includes delay fee for KLM, Eagle, Blasting and DN Tanks Includes patch repair for tubing (doesn’t include internal rings) Highest price increase is due to Eagle blasting staying over the weekend to finish the work. 2 day repair $20,751.17 Includes delay fee for KLM, Eagle, Blasting and DN Tanks Includes patch repair for tubing (doesn’t include internal rings) Highest price increase is due to Eagle blasting staying over the weekend to finish the work. Regards, Omar Fojaco Gomez Attachment A Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 337409 Project Manager 619.504.3515 Phone 351 Cypress LN, El Cajon, CA 92020 www.dntanks.com   Disclaimer The information contained in this communication from the sender is confidential. It is intended solely for useby the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified thatany disclosure, copying, distribution or taking action in relation of the contents of this information is strictlyprohibited and may be unlawful. This email has been scanned for viruses and malware, and may have been automatically archived byMimecast Ltd, an innovator in Software as a Service (SaaS) for business. Providing a safer and moreuseful place for your human generated data. Specializing in; Security, archiving and compliance. To find outmore Click Here. Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 338410 From:Griffin Nielsen To:Gomez, Omar Cc:Freitas, Kevin Subject:RE: [EXTERNAL]RE: Bozeman WRF Gravity Thickener - Onsite Superintendent Date:Thursday, August 8, 2024 3:41:00 PM Thanks Omar! City of Bozeman MT Griffin Nielsen, PE| Engineering/Utilities Department D:406.582.2279 C:406.595.1598 gnielsen@bozeman.net From: Gomez, Omar <Omar.Gomez@dntanks.com> Sent: Thursday, August 8, 2024 1:28 PM To: Griffin Nielsen <GNielsen@BOZEMAN.NET> Cc: Freitas, Kevin <kevin.freitas@dntanks.com> Subject: Re: [EXTERNAL]RE: Bozeman WRF Gravity Thickener - Onsite Superintendent CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Griffin we will get on this. We don't have no immediate sub that can help us. We are not that familiar with Bozeman MT, but we will definitely make our phone calls Regards, Omar Fojaco Gomez619-504-3515 DN Tanks, LLC On Aug 8, 2024, at 12:09 PM, Griffin Nielsen <GNielsen@bozeman.net> wrote:  This message originated from outside DN Tanks Hi Omar, I went out and looked at the condition of the steel with Kevin and Eagle Blasting. After consideration, we would like to have the pitting on the mechanical drum ribbing and Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 339411 rack arms, especially where holes have formed and are allowing water inside the tubing, taken care of now. Unfortunately, we don’t have the in-house capability to deal with this. Can your team provide a proposal to repair the steel? If so in the proposal can separate out repairs on the drum vs the rack arms? Give me a call if you would like to discuss. Thanks, City of Bozeman MT Griffin Nielsen, PE| Engineering/Utilities Department D:406.582.2279 C:406.595.1598 gnielsen@bozeman.net From: Gomez, Omar <Omar.Gomez@dntanks.com> Sent: Wednesday, August 7, 2024 4:40 PM To: Freitas, Kevin <kevin.freitas@dntanks.com>; Griffin Nielsen <GNielsen@BOZEMAN.NET> Subject: RE: [EXTERNAL]RE: Bozeman WRF Gravity Thickener - Onsite Superintendent CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Hi Griffin, Kevin brought me up to speed. If there is something that we need to do to the drum let us know please. We should be done with sandblasting by Friday. Regards, Omar Fojaco Gomez Project Manager 619.504.3515 Phone 351 Cypress LN, El Cajon, CA 92020 www.dntanks.com <image001.png> From: Freitas, Kevin <kevin.freitas@dntanks.com> Sent: Wednesday, August 7, 2024 3:39 PM To: Griffin Nielsen <GNielsen@BOZEMAN.NET>; Gomez, Omar <Omar.Gomez@dntanks.com> Subject: Re: [EXTERNAL]RE: Bozeman WRF Gravity Thickener - Onsite Superintendent Good afternoon Griffin Here’s the pictures of the area that we talked about Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 340412 Kevin Freitas DN Tanks Phone # 858-424-1812 Email: Kevin.freitas@dntanks.com From: Griffin Nielsen <GNielsen@BOZEMAN.NET> Sent: Monday, August 5, 2024 4:42:30 PM To: Gomez, Omar <Omar.Gomez@dntanks.com> Cc: Freitas, Kevin <kevin.freitas@dntanks.com> Subject: RE: [EXTERNAL]RE: Bozeman WRF Gravity Thickener - Onsite Superintendent This message originated from outside DN Tanks Thank Omar. Kevin, nice to meet you. I’ll be onsite regularly but if you need anything from me don’t hesitate to give me a call. City of Bozeman MT Griffin Nielsen, PE| Engineering/Utilities Department D:406.582.2279 C:406.595.1598 gnielsen@bozeman.net From: Gomez, Omar <Omar.Gomez@dntanks.com> Sent: Monday, August 5, 2024 4:14 PM To: Griffin Nielsen <GNielsen@BOZEMAN.NET> Cc: Freitas, Kevin <kevin.freitas@dntanks.com> Subject: [EXTERNAL]RE: Bozeman WRF Gravity Thickener - Onsite Superintendent CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Hi Griffin, Kevin Freitas / 858-424-1812 Regards, Omar Fojaco Gomez Project Manager Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 341413 619.504.3515 Phone 351 Cypress LN, El Cajon, CA 92020 www.dntanks.com <image001.png> From: Griffin Nielsen <GNielsen@BOZEMAN.NET> Sent: Monday, August 5, 2024 3:11 PM To: Gomez, Omar <Omar.Gomez@dntanks.com> Subject: Bozeman WRF Gravity Thickener - Onsite Superintendent This message originated from outside DN Tanks Hi Omar, I checked in on the project this afternoon and met with your onsite rep Kevin. I didn’t have any cards with me so can you pass along my contact info to Kevin andsend me his when you have a minute? Thanks, City of Bozeman MT Griffin Nielsen, PE| Engineering/Utilities Department D:406.582.2279 C:406.595.1598 gnielsen@bozeman.net Disclaimer The information contained in this communication from the sender is confidential. It is intendedsolely for use by the recipient and others authorized to receive it. If you are not the recipient,you are hereby notified that any disclosure, copying, distribution or taking action in relation ofthe contents of this information is strictly prohibited and may be unlawful. This email has been scanned for viruses and malware, and may have been automaticallyarchived by Mimecast Ltd, an innovator in Software as a Service (SaaS) for business.Providing a safer and more useful place for your human generated data. Specializing in;Security, archiving and compliance. To find out more Click Here. City of Bozeman emails are subject to the Right to Know provisions of Montana’s Constitution (Art. II, Sect. 9) and may be considered a “public record” pursuant to Title 2, Chpt. 6, Montana Code Annotated. As such, this email, its sender and receiver, and the contents may be available for public disclosure and will be retained pursuant to the City’s record retention policies. Emails that contain confidential information such as information related to individual privacy may be protected from disclosure under law. City of Bozeman emails are subject to the Right to Know provisions of Montana’s Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 342414 Constitution (Art. II, Sect. 9) and may be considered a “public record” pursuant to Title 2, Chpt. 6, Montana Code Annotated. As such, this email, its sender and receiver, and the contents may be available for public disclosure and will be retained pursuant to the City’s record retention policies. Emails that contain confidential information such as information related to individual privacy may be protected from disclosure under law. Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 343415 Attachment B Project: City of Bozeman Water Reclamation Facility 2024 Gravity Thickener Rehabilitation Project (#8942518) Owner: City of Bozeman Engineer City of Bozeman Contractor: DN Tanks of Montana LLC Date:2/4/2024 Line Item Item Description UofM Unit Price Contract Quantity Contract Unit Payment Quantity Measured Final Unit Payment 101 Taxes, Bonds, and Insurance LS $7,000.00 1 $7,000.00 1 $7,000.00 102 Mobilization LS $26,800.00 1 $26,800.00 1 $26,800.00 103 Existing Coating Removal and Interior Surface Preparation LS $94,300.00 1 $94,300.00 1 $94,300.00 104 Concrete Rehabilitation and Crack Repair LS $98,400.00 1 $98,400.00 1 $98,400.00 105 Application of Epoxy Coating to Tank Interior and Launder LS $79,300.00 1 $79,300.00 1 $79,300.00 106 Removal and Reinstallation of Rubber Squeegee Blades LS $7,900.00 1 $7,900.00 1 $7,900.00 201 Mechanical Unit Existing Coating Removal and Exterior Surface Preparation LS $23,700.00 1 $23,700.00 1 $23,700.00 202 Application of Coating to Mechanical Unit Exterior LS $46,600.00 1 $46,600.00 1 $46,600.00 107 Schedule 1 Miscellaneous Work EA $1.00 25000 $25,000.00 15835.58 $15,835.58 203 Additive Alterative Schedule 2 Miscellaneous Work EA $1.00 10000 $10,000.00 0 $0.00 Total $419,000.00 $399,835.58 Miscellaneous Work Reconciliation of Final Quantities Bid Total Final Construction Total Additive Alternative - Schedule 2 Rehabilitation of Mechanical Units Exterior Schedule 1 Rehabilitation of Tank's Concrete Interior Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 344416 Page 1 of 1 City of Bozeman 1004 Executed 02/05/2025 0.00 0 02/05/2025 -19,164.42Amount For CR 1004 Change Request Proposal Change Request Number: Description: Project: (name and address) 2024-015 / Bozeman, MT -CTS Grav Tkn 2245 Springhill Rd Bozeman, MT 59718 Deductive Change Order - Allowance Not Used Status: Origination Date: Approval Date: Received Date: Submitted Date: Requested Days Delay: Submitted Date: Quotation Notice to Proceed Approvals Customer: City of Bozeman By: Date: Contractor: DN Tanks LLC Date: By: Print Date: 02/05/2025 Customer: Submitted Amount: Authorized Representative: 17,500.0000 -19,164.42 Billing Group / Item Quantity UM Unit Price Revenue Cost Detail Description 99 90 Miscellaneous Work Item 203 LS Due Date: 2/5/2025 Omar Fojaco Gomez Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 345417 Memorandum REPORT TO:City Commission FROM:David Fine, Economic Development Manager SUBJECT:Authorize the City Manager to sign Task Order 3 with Cushing Terrell for Fowler Annexation and Zone Map Amendment Professional Services MEETING DATE:February 25, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Consider the Motion: I move to authorize the City Manager to sign Task Order 3 with Cushing Terrell for Fowler Annexation and Zone Map Amendment Professional Services STRATEGIC PLAN:4.5 Housing and Transportation Choices: Vigorously encourage, through a wide variety of actions, the development of sustainable and lasting housing options for underserved individuals and families and improve mobility options that accommodate all travel modes. BACKGROUND:Staff are initiating the process to annex and zone property owned by the City along the future Fowler Ave. corridor. As part of this process, staff plan to engage the public to understand possible outcomes from zoning choices and, concurrently, refine a vision to guide future request for proposals to develop the property for affordable housing. Cushing Terrell will provide architectural services to assist Sanbell in the submittal of applications for Annexation & ZMA, Site Plan Pre-Application, and Preliminary Plat Application for the Fowler property south of the Oak Street and Davis Lane round-about. Cushing Terrell services will include conceptual building massing and site layout studies to verify unit types/counts and site density as well as integration of infrastructure as designed by Sanbell. These studies may include design refinements to illustrate exterior materials and glazing. Cushing Terrell will also assist in community engagement efforts to facilitate the project. Cushing Terrell will perform these services at an hourly rate. UNRESOLVED ISSUES:None at this time. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:The scope of work allows for services not to exceed $50,000. This contract 346 will be paid from the Community Housing Fund. Attachments: CT URD Task Order 3.docx Report compiled on: February 13, 2025 347 City of Bozeman Urban Renewal District Term Contract Task Order Number # 3 PROJECT:Professional Design Services for the Fowler Annexation and Zoning Project Issued under the authority of Urban Renewal District Term Contract Professional Services Agreement with Cushing Terrell for Architectural and Engineering Services. This Task Order is dated February 25, 2025 between the City of Bozeman and Cushing Terrell. The following representatives have been designated for the work performed under this Task Order: City: David Fine, Economic Development Director Contractor: Alex Russell, Principal SCOPE OF WORK: Cushing Terrell will provide architectural services to assist Sanbell in the submittal of applications for Annexation & ZMA, Site Plan Pre-Application, and Preliminary Plat Application for the Fowler property south of the Oak Street and Davis Lane round- about. Cushing Terrell services will include conceptual building massing and site layout studies to verify unit types/counts and site density as well as integration of infrastructure as designed by Sanbell. These studies may include design refinements to illustrate exterior materials and glazing. Cushing Terrell will also assist in community engagement efforts to facilitate the project. Cushing Terrell will perform these services at an hourly rate. COMPENSATION:Cushing Terrell will bill for its services on a time-and-materials basis not to exceed $50,000. Cushing Terrell shall submit invoices to the City of Bozeman for work accomplished during each calendar month. The amount of each monthly invoice shall be determined on the “time-and-materials basis” according to the attached standard rate sheets for Cushing Terrell and it’s subconsultants. Monthly invoices shall include, separately listed, any charges for services for which time charges and/or unit costs shall apply. The provisions of the Professional Services Agreement shall govern the Work. 348 IN WITNESS WHEREOF, the parties authorized to commit resources of the parties have executed this Task Order: City of Bozeman Cushing Terrell Chuck Winn, Interim City Manager Alex Russell, Principal 349 Memorandum REPORT TO:City Commission FROM:Taylor Lonsdale, Transportation Engineer Nicholas Ross, Director of Transportation and Engineering SUBJECT:Approve Resolution 2025-##, Declaring the Intent of the Commission to Rename Elaine Lane to Naughty Trout Lane MEETING DATE:February 25, 2025 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Approve Resolution 2025-##, Declaring the Intent of the Commission to Rename Elaine Lane to Naughty Trout Lane STRATEGIC PLAN:1.3 Public Agencies Collaboration: Foster successful collaboration with other public agencies and build on these successes. BACKGROUND:The City of Bozeman received the request from a resident to rename Elaine Lane to Naughty Trout Lane. Resolution 3628 identifies the procedure for renaming of streets. This Resolution of Intent provides for the public noticing of the proposed name change and establishes the date for the public hearing. UNRESOLVED ISSUES:None ALTERNATIVES:None suggested or recommended. FISCAL EFFECTS:None Attachments: Resolution ____ Intent -Elaine Lane to Naughty Trout Run.docx Exhibit A_Elaine Lane.pdf Notice of Intent-Elaine Lane to Naughty Trout Run.docx Report compiled on: January 27, 2025 350 RESOLUTION #2025- A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, DECLARING IT TO BE THE INTENTION OF THE CITY COMMISSION TO RE-NAME ELAINE LANE TO NAUGHTY TROUT RUN IN THE CITY OF BOZEMAN, MONTANA. WHEREAS a resident has presented a petition requesting that Elaine Lane be changed to Naughty Trout Run. WHEREAS,it appearsto theCityCommission, basedonthestaffreport submitted, that the subject street can be renamed without detriment to the public interests; and WHEREAS it appears to the City Commission to be in the best interests of the City of Bozeman, and the inhabitants therein, that said Elaine Lane be re-named Naughty Trout Run. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, to wit: It is hereby declared to be the intention of the City Commission of the City of Bozeman, Montana, to re-name Elaine Lane to Naughty Trout Run, said street being located: off Springhill Road, just north of the Riverside Country Club and the Riverside Greens Subdivision, in COS 3030, located in Section 23, Township 1 South, Range 5 East, as shown on attached Exhibit A. That the Clerk of the Commission of the City of Bozeman is hereby directed to publish notice in Bozeman Daily Chronicle per Section 7-1-4127, Montana Code Annotated, and mail notice to the affected property owners, which notice shall state the time and place at which objections will be heard. On March 25, 2025, at 6:00 p.m., in the Commission Room of City Hall, 121 N Rouse Ave, Bozeman, Montana, the City Commission of the City of Bozeman will conduct a public hearing regarding the re-naming of Elaine Lane to Naughty Trout Run. This is the time that the 351 Commission will hear all objections to the re-naming of said street. Written protests pertaining to the re-naming of Elaine Lane to Naughty Trout Run may be filed by an owner of real property who would be affected by the change. Such protests must be delivered to the City Clerk at the City Hall, 121 N Rouse Ave, Ste 200, Bozeman, MT not later than 5:00 p.m., MST., on Monday, March 24, 2025. Further information regarding the proposed change, or other matters in respect thereof, may be obtained from the City Engineer, PO Box 1230, Bozeman, MT 59771, or by telephone at (406)582-2280. PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 25th day of February 2025. TERENCE CUNNINGHAM Mayor ATTEST: MIKE MAAS City Clerk APPROVED AS TO FORM: GREG SULLIVAN City Attorney 352 CERTIFICATE AS TO RESOLUTION AND ADOPTING VOTE I, the undersigned, being the duly qualified and acting recording officer of the City of Bozeman, Montana (the “City”) hereby certify that the attached resolution is a true copy of Resolution No. 2025-XX entitled: “A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, DECLARING IT TO BE THE INTENTION OF THE CITY COMMISSION TO RE-NAME ELAINE LANE TO NAUGHTY TROUT RUN IN THE CITY OF BOZEMAN, MONTANA.” (the “Resolution”), on file in the original records of the City in my legal custody; that the Resolution was duly adopted by the City Commission of the City at a meeting on February 25, 2025, and that the meeting was duly held by the City Commission and was attended throughout by a quorum, pursuant to call and notice of such meeting given as required by law; and that the Resolution has not as of the date hereof been amended or repealed. I further certify that, upon vote being taken on the Resolution at said meeting, the following Commissioners voted in favor thereof: voted against the same: abstained from voting thereon: or were absent: WITNESS my hand officially this 25th day of February, 2025. MIKE MAAS City Clerk 353 354 NOTICE OF PASSAGE OF RESOLUTION OF INTENTION TO RE-NAME ELAINE LANE TO NAUGHTY TROUT RUN IN THE CITY OF BOZEMAN, MONTANA. NOTICE IS HEREBY GIVEN that on February 25, 2025, the City Commission (the “Commission”) of the City of Bozeman, Montana (the “City”), adopted Resolution #2025-XX, a Resolution of Intention to change the street name of Elaine Lane to Naughty Trout Run. You are receiving this notice because you are considered an owner of real property within the area affected by the street name change. NOTICE IS FURTHER GIVEN that a complete copy of said Resolution #2025-XX is on file in the office of the City Clerk, 121 N Rouse Ave., Ste 200, Bozeman, Montana, and is subject to inspection of all persons interested. The Resolutions and accompanying exhibits may be also viewed on the City’s website at www.bozeman.net. On March 25, 2025, at 6:00 p.m., in the Commission Room of City Hall, 121 North Rouse Avenue, Bozeman, Montana, the City Commission will conduct a public hearing regarding adoption of Resolution renaming Elaine Lane to Naughty Trout Run and pass upon all written protests regarding the renaming. Written protests regarding the re-naming of Elaine Lane to Naughty Trout Run may be filed by an owner of real property whose property in the area to be affected by the street name change. Such protests must be delivered to the City Clerk at the City Hall, 121 North Rouse Avenue, Suite 200, Bozeman, Montana not later than 5:00 p.m., MST., on Monday, February 24, 2025. Further information regarding the proposed change or other matters in respect thereof may be obtained from the City Engineer, PO Box 1230, Bozeman, Montana, 59771 or by telephone at (406) 582-2280. 355 NOTICE OF INTENT TO VACATE NOTICE IS HEREBY GIVEN that, at its regular meeting held on the February 25, 2025, the City Commission of the City of Bozeman, Montana, duly and regularly passed and adopted Commission Resolution #2025-___, entitled: COMMISSION RESOLUTION #2025- A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, DECLARING IT TO BE THE INTENTION OF THE CITY COMMISSION TO RE-NAME ELAINE LANE TO NAUGHTY TROUT RUN IN THE CITY OF BOZEMAN, MONTANA. NOTICE IS HEREBY FURTHER GIVEN that Tuesday, the 25th day of March 2025, at 6:00 p.m. in the Commission Meeting Room, City Hall, 35 N. Rouse Avenue, Bozeman, Montana, is designated as the time and place to hear objections to the renaming of the street, more particularly described in the Resolution of Intention, and is the time and place for any person affected by the proposed renaming to appear and object, if they wish to do so. DATED this 1st day of March 2025. _________________________________________ MIKE MAAS City Clerk Legal Ad Publish: March 1, 2025, and March 8, 2025 356 Memorandum REPORT TO:City Commission FROM:Greg Sullivan, City Attorney Jennifer A. Giuttari, Assistant City Attorney SUBJECT:Ordinance 2025-## Amending Ethics Opinions and Complaint Procedures MEETING DATE:February 25, 2025 AGENDA ITEM TYPE:Ordinance RECOMMENDATION:Move to finally adopt Ordinance 2025-### which amends Bozeman Code of Ethics Sec. 2.03.580, 2.03.600 through 640, and 2.03.670. STRATEGIC PLAN:7.1 Values-Driven Culture: Promote a values-driven organizational culture that reinforces ethical behavior, exercises transparency and maintains the community's trust. BACKGROUND:On February 4, 2025 the Bozeman City Commission provisionally adopted Ordinance 2025-### Amending Ethics Opinions and Complaint Procedures. As required by Montana law, the Commission must finally adopt this Ordinance. If the Commission does so, it will become effective 30 days after final adoption. In June 2024, the Board of Ethics established a work plan. One of the board's work plan items includes recommending to the City Commission an ordinance on procedural changes for ethics complaints and opinions. Upon the board establishing its work plan, the City Attorney's Office began reviewing the Code of Ethics to determine what procedural changes related to the filing and processing of a complaint, if any, it would recommend to the Board at its September 2024 work session. In September 2024, the Board of Ethics held a work session to examine the Bozeman Code of Ethics and provide the City Attorney's Office with direction about substantive changes to the Code. During the work session, the board considered recommendations from the City Attorney’s Office on three sections in the Code. In response to the Board's September 2024 work session, the City Attorney's Office drafted amendments to these three sections, as requested during the work session. At the December 9, 2024 meeting, the City Attorney's Office presented a draft ordinance detailing the amendments to the three code sections discussed during the September 2024 work session. In addition, the City Attorney's Office presented amendments to four other code sections not 357 previously considered by the board. At the end of the December 2024 meeting, the Board of Ethics unanimously voted to recommend the City Commission to approve the proposed ordinance, which is attached as Exhibit A. The following key changes were made in response to the board’s work sessions: 2.03.610 – Who can request board action: This section is repealed and reserved because the portion that applies to ethics complaints is now incorporated in revised 2.03.640. As discussed during the September work session, the requirement that the board issue ethics opinions is removed because with these revisions, the board’s duties are now more focused on overseeing the hearing procedures. Additionally, in practice, under 2.03.610 as written, if the board receives a request of an ethics opinion, it would request a written analysis from their legal advisor, which, unless there is a conflict, would be the city attorney. 2.03.630 – City attorney ethics opinions: This section now includes the ability of the public to request an ethics opinion from the city attorney on a potential conflict of interest. Additionally, how requests for opinions from public officials and employees are made, as well as the ability for a person to use an ethics opinion as a defense to an ethics complaint, has been clarified. There is also a new requirement that the city attorney provide the board a summary of significant ethics opinions issued. 2.03.640 – Procedures for complaints (revised to include Sec. 2.03.610): This section was redrafted to provide clarity about who can file a complaint, how a complaint is filed, what needs to be contained in the complaint, and the timeline for a respondent to answer and the city attorney to provide a preliminary written analysis to the board. The actions the board can take after an ethics complaint is filed has also been clarified. The flowchart, attached as Exhibit B, provides a more detailed explanation of this process. Additionally, the City Attorney's Office proposed four additional Code sections that it recommended to be revised. These four sections are: 2.03.580 – Board of ethics: Amendments are recommended for clarity. Specifically, how interim appointments occur and who the city attorney represents when there is a conflict acting as a legal advisor for the board has been clarified. 2.03.600 – Duties and powers of the board: Organizational changes and amendments for clarity are recommended. The City Commission’s oversight of the board’s power to adopt procedural rules has been clarified. This section was also reorganized and now includes the board’s ability to investigate ethics complaints and to appoint a hearing officer. Both duties were previously included in 2.03.640. 2.03.620 – Limitations on board’s power: The board’s limitations has 358 been clarified by including a non-exhaustive list of areas that the board does not have authority over such as budgetary, personnel, and legislative matters. 2.03.670 – Confidentiality of board information: The requirement pertaining to confidential advisory ethics opinions has been removed since with these revisions the board will no longer be issuing ethics opinions. UNRESOLVED ISSUES:Possible unresolved issue: 2.03.580, BMC establishes 2 year terms for board members. Changing the term limit is outside of the scope of this review, but should the Commission want to establish longer term limits for Board of Ethics members, nothing in state law appears to prevent it from doing so. ALTERNATIVES:As directed by the City Commission. FISCAL EFFECTS:None. Attachments: Ex. A. Ethics Code Revisions Ord.pdf Ex. B Board of Ethics Complaint Process flowchart.pdf Report compiled on: February 5, 2025 359 Version February 2023 Ord XXXX Page 1 of 10 ORDINANCE AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA REVISING BOZEMAN MUNICIPAL CODE OF ETHICS SECTIONS 2.03.580, 2.03.600 THROUGH 640, AND 2.03.670 RELATED TO PROCEDURES FOR ETHICS COMPLAINTS AND OPINIONS. WHEREAS, Section 4.07 of the Bozeman Charter permits the City Commission to create boards, commissions, or committees as determined necessary or if required by statute; and WHEREAS, MCA 2-2-144(5)(a) permits a local government to establish a three- member panel to review ethics complaints; and WHEREAS, 2.03.580, BMC, creates the City’s three-member board of ethics; and WHEREAS, the Bozeman Code of Ethics contains provisions that provide ethical standards for city employees and officials and also provides for a procedure for the filing of an ethics complaint; and WHEREAS, in addition to establishing the ethics complaint procedure, the Bozeman Code of Ethics also includes provisions governing the board’s creation, its duties and powers, limitations, requests for city attorney ethics opinions, who may file a complaint, and confidentiality requirements; and WHEREAS, revising the Code of Ethics will improve the ethics complaint process and ensure the ethics complaint review process is fair and impartial; WHEREAS, in June 2024, the board of ethics established a work plan with five goals which included recommending the City Commission adopt an ordinance amending the Code of Ethics; and WHEREAS, in alignment with its work plan, in September 2024, the board of ethics held a work session to consider what changes to the Code of Ethics are needed; and 360 Ordinance (Revising the Bozeman Code of Ethics) Page 2 of 10 WHEREAS, during its December 9, 2024 meeting, staff presented a draft of this ordinance amending the Code of Ethics which reflected the direction it received during the board’s September 2024 work session; and WHEREAS, during its December 9, 2024 meeting, the board of ethics voted to recommend the City Commission adopt the this ordinance.; and WHEREAS, the City Commission determines this ordinance to be in the public interest. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 That Section 2.03.580, Bozeman Municipal Code, will be amended as follows: Sec. 2.03.580. Board of ethics. A. There is created a board of ethics consisting of three members who shall serve without compensation unless the city commission provides otherwise. Members of the board of ethics shall not be elected officials, of the city, full-time appointed city officials whether exempt or nonexempt, or city employees, nor shall they be currently serving on any other city board or commission. B. Members of the board shall be residents of the city. C. Board members shall be appointed by the city commission. An appointment to fill a vacancy or an interim appointment to resolve a conflict of interest shall be made by the city commission appointing authority who appointed the member who formerly held the position which is vacant. D. The board shall select its own presiding officer from among its members. E. Board members shall serve staggered terms of two years. A member shall hold office until a member's successor is appointed. At initial appointment of the members of the board, one of the initial members shall be appointed for a term of three years and thereafter for a term of one year. F. The city commission shall provide such staff support for the board as the city commission determines to be necessary for the board to fulfill its duties. The city attorney is designated to be the legal advisor for the board, except that the city attorney is not authorized to represent the board in any legal action if doing so would create a conflict which would prevent the city attorney from also representing the city or a duly authorized constituent of the city such as the mayor, the city manager, or the city commission. The city clerk shall serve as recording secretary to the board and shall provide such administrative services to the board as may be necessary. Neither the city attorney nor the city clerk shall be eligible for appointment as board members. Section 2 That Section 2.03.600, Bozeman Municipal Code, will be amended as follows: 361 Ordinance (Revising the Bozeman Code of Ethics) Page 3 of 10 Sec. 2.03.600. Duties and powers of the board. A. The board shall, in addition to its other duties: 1. Adopt written rules governing its procedures, including procedures for the hearing of complaints, and providing for the holding of regular and special meetings. A majority of the city commission may request review of the boards rules and may amend or repeal such rules. , which rules shall be subject to the approval of the city commission; a A copy of the rules shall be filed with the city clerk; and 2. Administer oaths, including requiring witnesses to testify under oath during investigations or hearings; 3. Conduct hearings as needed to hear and decide specific cases in which a violation of this division or a violation of title 2, chapter 2, part 1, of Montana Code Annotated (MCA 2-2-101 et seq.) is alleged, whether such cases arise from a complaint or are brought on the board's own motion; and 4. No later than December of each year, submit an annual report to the city commission concerning its action in the preceding year; the report shall contain: a. A summary of its decisions and opinions, both open and confidential; the board shall make any alterations in the summaries necessary to prevent disclosure of any confidential information pertaining to any individual or to any organization if the disclosure could lead to the disclosure of the identity of a person who is entitled to confidentiality; and b. Recommend any legislative or administrative actions regarding the city's policies and practices which the board believes would or could enhance the ethical environment in which public servants work; and 5. Establish a process for systematically and regularly evaluating all significant aspects of the administration and implementation of this division, which shall include an annual a regular review of the full scope of operations of the board and its procedures, and which shall ensure that the both the public and all public servants are provided a reasonable opportunity, and are encouraged to participate in the process; and 6. Prescribe and make available forms for use under this division; and 7. When it deems it appropriate, request the city attorney for assistance in compelling the production of documents and witnesses to assist the board in the conduct of any investigation; 8. When circumstances make it necessary to do so, retain outside legal counsel and other experts as needed after solicitation of recommendations from the city attorney (unless the need to retain outside counsel is caused by a conflict involving the city attorney's office), and upon approval by the city commission of a contract for services approved as to form by the city attorney; and 9.7. Serve as legal custodian of the board's records, and accept, file, maintain and administer, in accordance with all applicable laws, any information related to the purposes of this 362 Ordinance (Revising the Bozeman Code of Ethics) Page 4 of 10 division; and 10.8 Make financial disclosure statements filed with the board city clerk available for public inspection and copying facilities available at a charge which is the minimum amount permitted under applicable law. All open opinions decisions of the board shall be filed with the city clerk and are open to public inspection. To the extent permitted by law, confidential opinions decisions and any records obtained or filed in connection with requests for confidential opinions decisions, whether the records are written, tape recorded, videotaped, or otherwise recorded shall be kept confidential; and confidential advisory opinions rendered shall be closed in whole to public inspection. Confidential opinions and summaries of them or open references to them shall be drafted in such a way as not to reveal confidential information; 11.9. Compile and maintain an index to all financial disclosure statements currently on file with the board city clerk to facilitate public access to such statements; and 12.10. Develop a plan for implementation of a program to educate public servants who are subject to this division and the public about their rights, duties and responsibilities hereunder; and 13.11. Within one year from the date of the first meeting of the board When the board determines it deemed necessary, submit to the city commission for its approval and promulgation, an ethics handbook for the use of all public servants and the public; the human resources department shall document that each city officer and employee receives a copy of the handbook and acknowledges receipt of the handbook in writing; and 14.12. In coordination with the city attorney, city manager, and other appropriate city personnel, arrange for the conduct of annual training and education, which shall serve as an orientation for new board members and an opportunity for experienced members to explore specific issues in depth. a. Attendance at this training shall be made a condition of service as a member of the board, and, before taking office, board members shall commit themselves to attend it. b. The city clerk shall forward to the commission annually a list of officials who fail to take the training required under this section and the Charter. The commission may remove an official for failing to take the required training. B. The board may: 1. Conduct hearings as it determines necessary or appropriate a. To ascertain public opinions and to gather information from the general public, employees, or others regarding any aspect of the city's ethics policies or practices; and b. For any other purpose for which the board is authorized to conduct hearings; and 2. Respond, as it deems appropriate, to requests for confidential advisory opinions; the board may decline to render an opinion in response to any request for an advisory opinion; Conduct investigations on ethics complaints filed in accordance with Sec. 2.03.640. The board has discretion to decide upon the scope and method of the investigation; 363 Ordinance (Revising the Bozeman Code of Ethics) Page 5 of 10 3. Render and publish formal opinions on any matter within the scope of the board's authority which it may deem appropriate; the board may initiate opinions on its own motion or upon request; any formal opinion shall be in writing; and Appoint a hearing officer to conduct hearings on a complaint; 4. Prepare and publish special reports, technical studies, and recommendations to further the purposes of this division. Retain outside legal counsel and other experts as needed after soliciting recommendations from the city attorney unless the need to retain outside counsel is caused by a conflict involving the city attorney's office; 5. Request the city attorney for assistance in compelling the production of documents and witnesses to assist the board in performing its duties; 6. Issue a subpoena for any necessary documents or to any witness it deems necessary to attend an ethics hearing; and 7. Prepare and publish special reports, technical studies, and recommendations to further the purposes of this division. Section 3 That the entirety Section 2.03.610, Bozeman Municipal Code, is repealed and reserved. Section 4 That Section 2.03.620, Bozeman Municipal Code, will be amended as follows: Sec. 2.03.620. Limitations on board's power. The board does not have the authority to reverse or otherwise modify a prior action, or to proscribe a future action of the mayor, city commission, or an officer or employee of the city. This includes budgetary, personnel, contractual, administrative, and legislative matters. If, after a hearing, the board finds a prior action, or a future action of the mayor, the city commission, officer, or employee to have violated or potentially be in violation of the code of ethics or state statutes have been ethically improper, the board may advise the appropriate party that the action should be reconsidered or avoided. Upon such advice by the board, the action shall be reconsidered by the appropriate person or public body. If the board determines an existing city contract to be ethically improper, after such determination and advice from the board, the city may void or seek termination of the contract if legally permissible. The board may refer a matter to the city attorney for review and consideration for appropriate action. Upon completion of review and consideration, the city attorney's office shall report its findings to the board. 364 Ordinance (Revising the Bozeman Code of Ethics) Page 6 of 10 Section 5 That Section 2.03.630, Bozeman Municipal Code, will be repealed in its entirety and replaced as follows: Sec. 2.03.630. City attorney opinions. A. Requests from the public. Any member of the public may request the city attorney to issue an ethics opinion about an employee or official’s potential conflict of interest under 2.03.520. All requests to the city attorney for ethics opinions must be made in writing and contain all facts relevant to the request. The city attorney may issue an opinion in writing. B. Requests from public officials and employees. Any public official or employee may request the city attorney to issue an ethics opinion about the public official or employee’s own conduct, or another public official or employee’s conduct. All requests to the city attorney for ethics opinions must be made in writing and contain all facts relevant to the request. The city attorney may issue an opinion in writing. C. Any person who seeks an ethics opinion prior to taking an action or performing a duty and subsequently relies upon such an opinion, and who acts in good faith in accordance with the provisions and findings of such opinion, may present the ethics opinion as a defense to a complaint filed under this division. D. The city attorney must provide the board a summary of significant opinions at a board meeting. Section 6 That Section 2.03.640, Bozeman Municipal Code, will be repealed in its entirety and replaced as follows: Sec. 2.03.640. Procedures for hearing complaints. A. Any person may file a written ethics complaint. All ethics complaints must be filed with the city clerk within the statute of limitations established in 2.03.690. B. An ethics complaint must: 1. Name the individual whom the complaint is being filed against (“respondent”); 2. Identify which provisions of this division and/or provisions of title 2, chapter 2, part 1 of Montana Code Annotated (MCA 2-2-101 et seq.) the individual is alleged to have violated; 3. Include a statement of the facts supporting the alleged ethics violation, as well as any supporting physical evidence. Physical evidence may include documents, still or moving images, audio, or video; and 4. Include an unsworn declaration as to the facts and allegations contained in the complaint, as set forth in MCA 1-6-105. 365 Ordinance (Revising the Bozeman Code of Ethics) Page 7 of 10 C. Within five (5) working days of receiving the ethics complaint which complies with 2.03.640(A) and (B), the city clerk must acknowledge receipt of the ethics complaint to the complainant and forward the complaint to the board, the city attorney, and the respondent. If the complaint fails to meet any of the requirements of 2.03.640(B), the city clerk must reject the complaint. D. Within twenty (20) working days of receiving the ethics complaint from the city clerk, the respondent may file a written response with the city clerk. The response must contain an unsworn declaration as to the contents of the response, as set forth in MCA 1-6-105. Within five (5) working days of receiving the response, the city clerk must acknowledge receipt of the response to the respondent and forward the response to the board, the city attorney, and the complainant. If the complaint fails to include an unsworn declaration, the city clerk must reject the response. Within ten (10) working days of receiving notice of the rejection, the respondent may re-file the response with the city clerk. E. Within twenty (20) working days after receiving the response from the city clerk or the period for the filing of the response has passed, the city attorney must provide the board, complainant, and respondent with a preliminary written analysis of the complaint and response. F. Within twenty (20) working days of receiving the city attorney’s written analysis or at the next regular meeting, whichever is sooner, the board must set a meeting for its review of the ethics complaint, the response, and the city attorney’s analysis. The board may, at any time, request additional information from the parties and set deadlines for the submission of the additional information. At the close of its review, the board may: 1. Dismiss the complaint with or without prejudice; 2. Make a decision on the merits without a hearing. The board must notify the parties of its decision at its next meeting and issue its written findings and conclusions within twenty (20) working days; or 3. Determine a formal ethic hearing is necessary. The board has discretion to schedule either an evidentiary hearing or oral argument, or both. G. During any hearing which is conducted to determine whether a violation of this division or a violation of title 2, chapter 2, part 1 of Montana Code Annotated (MCA 2-2-101 et seq.) has occurred: 1. The respondent may be represented by counsel; and 2. The respondent or the respondent’s representative, if any, shall have an opportunity to: a. Challenge the sufficiency of the complaint; b. Examine all documents and records obtained or prepared by the board in connection with the complaint; c. Have witnesses testify under oath; 366 Ordinance (Revising the Bozeman Code of Ethics) Page 8 of 10 d. Question or refute testimony or evidence, including the opportunity to confront and cross examine adverse witnesses. This subsection H must be read in conjunction with the board’s adopted rules for the conduct of hearings. H. As soon as possible after the close of an ethics hearing, the board must issue its written findings and conclusions. The board’s findings and conclusions must be supported by facts that are included in the official hearing record. Section 7 That Section 2.03.670, Bozeman Municipal Code, will be amended as follows: Sec. 2.03.670. Confidentiality of board information. No member of the board nor any public servant who has access to any confidential information related to the functions or activities of the board shall divulge that information to any person who is not authorized to have it. The identity of a person who requests a confidential advisory ethics opinion is confidential, as is information describing or pertaining to any organization mentioned in the request for an opinion if the disclosure of the information could lead to the disclosure of the identity of the person requesting the confidential advisory opinion. Section 8 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 9 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 10 Severability. 367 Ordinance (Revising the Bozeman Code of Ethics) Page 9 of 10 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 11 Codification. This Ordinance shall be codified as indicated in Section 1 – 7. Section 12 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 _____ day of ________________, 20__. ____________________________________ Terry Cunningham Mayor ATTEST: ____________________________________ MIKE MAAS City Clerk FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the City of Bozeman, Montana on second reading at a regular session thereof held on the ___ of ____________________, 20__. The effective date of this ordinance is ______________, 20__. _________________________________ 368 Ordinance (Revising the Bozeman Code of Ethics) Page 10 of 10 Terry Cunningham Mayor ATTEST: _______________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 369 PROPOSED Board of Ethics Complaint Process Clerk processes complaint Complaint Filed Copies sent to Board, Respondent & City Attorney Respondent files written response & Clerk sends copies to Board, Complainant, & City Attorney City Attorney provides written analysis for Board, Complainant, and Respondent 370 Board meets for initial review of complaint *Board Action: Dismiss complaint with or without prejudice OR Make a decision on the merits without a hearing OR Determine a formal ethics hearing is necessary *The board may request more info. from parties at any time If the Board determines more information is needed, after receiving more information, the board can make a final decision OR schedule an ethics hearing If the Board determines an ethics hearing is necessary, the Board can request more information from the parties before the ethics hearing Board issues written findings and conclusions 371 Memorandum REPORT TO:City Commission FROM:Tom Rogers, Senior Planner Chris Saunders, Community Development Manager Erin George, Director of Community Development SUBJECT:Adoption of a Resolution of the City Commission to Replace and Readopt the Annexation Policy for the City of Bozeman. This Resolution Replaces Resolution 5076 (Revised February 24, 2025 ) MEETING DATE:February 25, 2025 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Consider the Motion: I move to adopt the Resolution provided to Replace and Readopt the Annexation Policy. STRATEGIC PLAN:4.1 Informed Conversation on Growth: Continue developing an in-depth understanding of how Bozeman is growing and changing and proactively address change in a balanced and coordinated manner. BACKGROUND: “****ADDENDUM February 24, 2025****: The published memorandum did not contain a clean version of the proposed resolution adopting adjustments to the existing annexation policy. This clean version is now included as an attachment. Also, we provide a comparison document that shows the changes between the proposed resolution and the current applicable resolution (Resolution 5076). One of the attachments provided with the original publication (the document labeled “Revised Annexation Policy Proposed Revisions 2-18-2025 strike and underline) contains all of the changes being proposed by City staff but is not in final resolution format. We provide two additional documents: (i) a clean version of the proposed resolution the motion would adopt (labeled Resolution Revising and Re-Establishing City of Bozeman Annexation Policy); and (ii) a resource document that compares the new proposed resolution with the current Resolution 5076. These two documents are now listed first in the agenda. We have not removed any of the documents provided with the first publication of this agenda item. 372 The City must follow state law in annexation. There are multiple methods allowed in law but all focus on provision of services to the annexing property. The City has had an annexation policy since 1984 to communicate City expectations and intentions with annexation. It has revises its approach periodically as needed. The last revision was adopted in 2019 by Resolution 5076. Experience with Resolution 5076 has shown several areas where improvements in clarity and simplicity are needed without modifying the basic purpose or intent. An incremental step for delivery of efficient city services, the attached Resolution restates the existing annexation policy (Resolution 5076), reorganizes the document, and improves it on several points as described herein. Annexations and annexation policy are important components of community growth and implementation of numerous city goals and objectives. This resolution only addresses citizen initiated petitions and not City initiated actions. In conjunction with the adoption of Resolution 5076 on October 28, 2019 [External Agenda Link], the Commission directed the City Manager to bring an Extension of Service Plan for City Initiated Annexations for the Commission to consider. On May 10, 2022, the Commission adopted Resolution 5383, an Extension of City Service Plan for City Initiated Annexation [External Link]. Revising and improving the City’s annexation policy is supported by the Strategic Plan. Strategic Plan 4.1 Informed Conversation on Growth, subsection a) Adopt a New Growth Policy Based on Sustainable Growth Principles - Direct and guide sustainable growth through appropriate planning, annexation, land use, and a streamlined development review process and b) Develop and Align Infill Policies - Develop, adopt and align city policies for infill and redevelopment, economic development and public infrastructure. Under High Performance Organization section 7.3(e) High- level Policy Conversations - Develop a structure to foster regular, ongoing dialogue on innovative ideas and information to assist the Commission with high level policy deliberation and decisions. Bozeman Community Plan 2020 (BCP2020) addresses annexation policy in Theme 7 | A City Engaged in Regional Coordination. Specifically, RC-3.3 Prioritize annexations that enable the incremental expansion of the City and its utilities, RC-3.4 Encourage annexation of land adjacent to the City prior to development and encourage annexation of wholly surrounded areas, and RC-3.7 Provide education and information on the value and benefits of annexation, including existing un-annexed pockets surrounding the City, to individual landowners and the community at large. Establish interlocal agreements, when appropriate, to formalize working relationships and procedures. Both the number of annexation requests and the area to be annexed varies greatly from year to year. The city processes approximately 6.8 annexation 373 applications annually with an average of 31.9 acres per application since 2018. During this period the city has added approximately 10,000 residents assuming a 2024 population of 58,500. Currently, the Community Development Department is processing six annexation applications in 2024. The Resolution revises the annexation policy by generally reorganizing the document from three sections of goals, policies, and adoption to a more complete form. The revision creates legislative intent, clearly delineates procedural requirements from city policy, eliminates redundancy, clarifies existing annexation policies based on prior experience to improve criteria, and integrates references for recently revised and adopted City plans. Annexation is the first step in any potential future development. All future development is continent on meeting existing requirements and standards for provisions of services, transportation, and site development. Annexation does not grant entitlement for development. Organization: Section 1 Legislative Intent & Goals Section 2 Policies Section 3 Procedures Section 4 Adoption The Resolution defines what considerations must be present for favorable review of annexation request. However, every application is unique and may have a particular set of circumstances making strict application of these policies contrary to the City’s best interest. Therefore, policy #12 is included to allow the Commission, with evidence, to determine an annexation is appropriate that may not meet a strict interpretation of city policy. With the Commission’s adoption of the 2023 Parks, Recreation, and Active Transportation Plan (PRAT), the existing requirements for securing public access easements for Class I Trails is moot. The PRAT incorporates the Anchor Routes system that, with currently adopted standards, can be secured with site plan or subdivision application review. Furthermore, the general intent of Anchor Routes is not conducive to establishing their location at time of annexation. Upon development review with site plan or subdivision the overall design will consider the anchor routes for better placement. Therefore, anchor route easement is not included with the revised annexation policy. This Resolution formalizes an existing procedure of coordinating annexation review with the County. Bozeman Community Plan 2020, Objective RC-3.7 Provide education and information on the value and benefits of annexation, including existing un-annexed pockets surrounding the City, to individual landowners and the community at large. Establish interlocal agreements, when appropriate, to formalize working relationships and procedures. See Section 3, Procedure # 4. 374 Previous Annexation Policy Resolutions: Resolution 2502 May 29, 1984 Resolution 2524 September 10, 1984 Resolution 3137 August 19, 1996 Resolution 3907 January 6, 2006 Resolution 4400 September 10, 2012 Resolution 5076 October 28, 2019 UNRESOLVED ISSUES:There are no identified conflicts on this application. ALTERNATIVES:1. Adopt the Resolution as presented. 2. Adopted the Resolution with revisions/edits determined by the Commission. 3. Request specific revisions for further review and direct staff to address identified issues. 4. Do not approve the Resolution. The existing Resolution 5076 will continue to be in force. FISCAL EFFECTS:No unusual fiscal effects have been identified. Attachments: Resolution Revising and Re-Establishing City of Bozeman Annexation Policy.pdf Annexation Policy_5076 and New Policy Comparison.pdf Resolution 5076 Revising and Re-establishing Goals and Policies for Landowner Initiated Annexation of Properties.pdf Revised Annexation Policy 5076 Proposed Revisions 2-18- 2025 strike and underline.pdf Resolution 4400 Revising and Re-Establishing goals and policies for Annexation of Properties.pdf Report compiled on: February 19, 2025 375 Page 1 of 6 RESOLUTION _______ A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, REVISING AND RE-ESTABLISHING GOALS AND POLICIES FOR LANDOWNER INITIATED ANNEXATION OF PROPERTIES TO THE CITY OF BOZEMAN, AND SUPERSEDING RESOLUTION 5076. WHEREAS, the City of Bozeman wishes to establish comprehensive annexation goals and policies for landowner initiated annexations to provide for orderly, well-planned growth of the City; and WHEREAS, the City of Bozeman adopted its most recent growth policy, the Bozeman Community Plan 2020, on November 17, 2021, through Resolution No. 5133; and WHEREAS, the Bozeman Community Plan 2020 addresses annexation policy and details specific goals and objectives related to the orderly annexation of land into the City; and WHEREAS, on May 10, 2022, the City Commission adopted Resolution 5383 establishing an Extension of Services Plan and Report for City-Initiated Annexation and this Resolution in no way affects Resolution 5383 as this Resolution addresses landowner-initiated annexations only; and WHEREAS, the adoption of this resolution will provide the community with clear guidelines for informed annexation proposals; and WHEREAS, adoption of this resolution establishes annexation policies to implement the goals of the Bozeman Community Plan 2020 and supports financially efficient delivery of city services; and WHEREAS, the Resolution revises the annexation policy by generally reorganizing the document from the existing three sections of goals, policies, and procedures to a more orderly organization. The revision establishes the Commission’s legislative intent, clearly distinguishes procedural requirements from city policy, eliminates redundancy, clarifies existing annexation 376 Page 2 of 6 policies based on prior experience to improve evaluation criteria, and integrates references to recently revised and adopted City plans; and WHEREAS, this Resolution supersedes Resolution 5076; and WHEREAS, the City adopts this resolution in accordance with annexation statutes as set forth in Title 7, Chapter 2, Part 42, 43, and 46, Mont. Code Ann. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana: Section 1 – Legislative Intent & Goals The intent of the Bozeman City Commission in adopting this Resolution and its annexation policies is to implement the City’s land use plan (growth policy) and integrate other relevant City plans determining appropriate lands for annexation to support the health, safety, and general welfare of its citizens, make fiscally prudent decisions for the long term financial health of the City, promote environmental health of the community through the provision of sanitary sewer and water utilities, support compact and orderly expansion of the City, and provide for the efficient delivery of City services. The following are general goals related to landowner-initiated annexations: 1. The City presumes all areas which are wholly surrounded by the City are suitable for annexation. 2. All requests for annexations must be within the area of the City’s most recently adopted version of its future land use map. 3. All petitions for annexation must be for land within the service areas identified in relevant adopted City plans, including but not limited to the Water Facility Plan, Wastewater Collection Plan, Water Reclamation Plan, Stormwater Plan, and the Integrated Water Resource Facility Plan. 4. The City requires annexation of all land proposed for development that will use municipal water or sanitary sewer systems. 5. The city encourages annexations for the provision of clean, treated water and sanitary sewer. 6. Compliance with adopted standards of Montana law and the Bozeman Municipal Code (BMC) is the primary implementing tool for satisfying provision of service requirements. 377 Page 3 of 6 Section 2 – Policies The City establishes the following policies for all landowner-initiated annexations to the City of Bozeman, made pursuant to Montana Code Annotated Title 7, Chapter 2, Part 42, 43, and 46. Petitions for annexation must comply with these policies and applicable state law: 1. Annexations must include dedication of all rights of way for collector and arterial streets, public water, sanitary sewer, or storm or sewer mains. When required, rights of way for anchor routes as recognized in the City’s adopted parks and trails plans, must be provided when such anchor routes are not located within the right of way for arterial or collector streets. 2. Annexations may be required to include dedication of rights of way for adjacent or internal local streets to complete street connectivity and provide required legal and physical access. 3. Annexations must include written waivers of a property owner’s right to protest the creation of special improvement districts necessary to provide essential services. The waivers must run with the land, be binding on the owner and owner’s successors in interest and be recorded concurrently with the annexation agreement. 4. The petition for annexation must be in conformance with the current Bozeman land use plan (growth policy). If a land use plan (growth policy) amendment is necessary for anticipated land uses, the land use plan amendment process must be completed prior to any action for approval of a petition for annexation. 5. The City prefers petitions for annexation of land larger than five acres. However, the City will consider annexation of smaller areas of land when one or more of the following are present: topographic limitations; the land is served by one or more City utilities; septic system failure; extension and integration of transportation infrastructure; enhancement of the existing traffic circulation system or to provide for transportation systems that do not currently exist; annexation will make the City boundaries more regular; annexation will better incorporate unannexed property for the provision of City fire, police, and emergency services; or when annexation provides improved access to and maintenance of public facilities. 6. The City will review infrastructure and emergency services available to an area proposed for annexation for the health, safety and welfare of the public and conformance with the City’s adopted plans. If the City determines adequate services cannot be provided to ensure public health, safety and welfare, the City may deny the petition for annexation. Alternatively, the City may require all property owners within the land to be annexed provide a written plan for accommodation of services at the expense of the property owner(s). The land to be annexed may only be provided sanitary sewer service via the applicable drainage basin defined in the City Wastewater Collection Facilities Plan. 7. The City may require annexation of any contiguous property for which City services are 378 Page 4 of 6 requested or for which City services are currently being provided. In addition, any person, firm, or corporation receiving water or sewer service outside of the City limits is required as a condition of initiating or continuing such service, to record a consent to annexation of the property serviced by the City. 8. The City Manager may enter into an agreement with a property owner for an emergency connection to the City’s sanitary sewer or water system. In doing so, the property owner must submit a petition for annexation and file a notice of consent to annex with the Gallatin County Clerk and Recorder’s Office prior to connection to City utilities. The City will prepare the notice of consent to annex. The agreement for connection to City sewer or water must require the property owner to complete annexation or consent to disconnection of the services. Connection for purposes of obtaining City sewer services in an emergency requires, when feasible as determined by the City, the connection to City water services. 9. The use of Part 46 annexations is preferred. 10. Where a road improvement district has been created, annexation does not repeal the creation of the district. The City will not assume operations of a road improvement district until the entirety of the district has been annexed. Any funds held in trust for the district will be used to benefit the district after transfer to the City. Inclusion within a district does not absolve a landowner of the obligation to participate in general City programs that address the same subject. 11. The City requires connection to and use of City utilities and services upon development of annexed properties. The City may establish a fixed time frame for connection to municipal services. Upon development, unless otherwise approved by the City, septic systems must be properly abandoned and the development must be connected to the City sanitary sewer system. Upon development, unless otherwise approved by the City, water wells on the subject property may be used for irrigation but must be disconnected from any structure. Potable water must be supplied from the City water distribution system. The property owner must contact the City Water and Sewer Division to verify disconnection of wells and septic systems. 12. All annexations must be contiguous with or wholly surrounded by the existing City boundary. The City Commission may agree to annex property that is not contiguous or wholly surrounded. If the land to be annexed is not contiguous to or wholly surrounded by the City, the reasoning and justification for annexation must be explicitly addressed within the petition and approved by the Commission prior to adoption of a Resolution of Annexation. Section 3 – Procedures The following procedures apply to a petition for annexation subject to this Resolution: 1. Property owners must submit a written petition for annexation on an annexation application 379 Page 5 of 6 form provided by the City. 2. The annexation application must be accompanied by a map that meets the requirements of the Director of Transportation and Engineering. Where an area to be annexed can be entirely described by reference to a certificate of survey or subdivision plat on file with the Gallatin County Clerk and Recorder, the required map may be waived by the Director of Transportation and Engineering. 3. Fees for an annexation application will be established by the City Commission. 4. The City will provide notice of the application to the Gallatin County Department of Planning & Community Development and the existing county fire services area or district providing service to the area. 5. Prior to the recording an annexation agreement, property owner must address the City’s water adequacy requirements at Section 38.410.130, BMC, as amended. 6. The City will assess systems development and impact fees in accordance with Montana law and Chapter 2, Article 6, Division 9, BMC. 7. If the property to be annexed is within a payback district or area, the City will apply the terms of the payback. 8. The initial zoning classification of the property is determined by the City Commission simultaneously with review of the annexation petition, with consideration of the zoning request of the applicant and recommendation of the Community Development Board. The applicant must indicate any requested zoning classification as part of the annexation application. 9. Public notice requirements for zone map amendment application are set forth in the Bozeman Municipal Code. To the extent possible, the public comment period of an annexation application must be the same as the public comment period for an associated zone map amendment application. 10. Annexation agreements must be signed and notarized by all landowners and returned to the City within 60 days of transmission of the annexation agreement by the City to the property owner(s), unless a different time is specifically identified by the City Commission. 11. At the City’s discretion, an annexation agreement or an extension of services plan may be used to meet statutory requirements for the delivery of municipal service. 380 Page 6 of 6 Section 4 This Resolution once adopted supersedes Resolution 5076 adopted by the City Commission on October 28, 2019. PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the ______ day of ___________, 2025. _________________________________ TERENCE CUNNINGHAM Mayor ATTEST: _______________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ______________________________ GREG SULLIVAN City Attorney Previous Annexation Policy Resolutions: Resolution 2502 May 29, 1984 Resolution 2524 September 10, 1984 Resolution 3137 August 19, 1996 Resolution 3907 January 6, 2006 Resolution 4400 September 10, 2012 Resolution 5076 October 28, 2019 381 Page 1 of 9 RESOLUTION 5076_______ A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, REVISING AND RE-ESTABLISHING GOALS AND POLICIES FOR LANDOWNER INITIATED ANNEXATION OF PROPERTIES TO THE CITY OF BOZEMAN, AND SUPERSEDING RESOLUTION 44005076. WHEREAS, the City of Bozeman wishes to establish updated comprehensive annexation goals and policies for landowner initiated annexations to provide for orderly, well-planned growth of the City; and WHEREAS,WHEREAS, the City of Bozeman adopted its most recent growth policy, the Bozeman Community Plan 2020, on November 17, 2021, through Resolution No. 5133; and WHEREAS, the Bozeman Community Plan 2020 addresses annexation policy and details specific goals and objectives related to the orderly annexation of land into the City; and WHEREAS, on May 10, 2022, the City Commission adopted Resolution 5383 establishing an Extension of Services Plan and Report for City-Initiated Annexation and this Resolution in no way affects Resolution 5383 as this Resolution addresses landowner-initiated annexations only; and WHEREAS, the adoption of such goals and policies this resolution will provide ourthe community with clear guidelines for informed annexation proposals; and WHEREAS, the Cityadoption of this resolution establishes these goals and annexation policies to implement the goals of the Bozeman Community Plan 2020 and supports financially efficient delivery of city services; and WHEREAS, the Resolution revises the annexation policy by generally reorganizing the document from the existing three sections of goals, policies, and procedures to a more orderly organization. The revision establishes the Commission’s legislative intent, clearly distinguishes 382 Page 2 of 9 procedural requirements from city policy, eliminates redundancy, clarifies existing annexation policies based on prior experience to improve evaluation criteria, and integrates references to recently revised and adopted City plans; and WHEREAS, this Resolution supersedes Resolution 5076; and WHEREAS, the City adopts this resolution in accordance with annexation statutes as set forth in Title 7, Chapter 2, PartsPart 42, 43, 45,and 46 and 47, MCA, Mont. Code Ann. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, to wit: Section 1 – Legislative Intent & Goals The following goals are hereby established for the consideration of annexations to the City of Bozeman. 1. The City of Bozeman encourages annexations of land contiguous to the City. The intent of the Bozeman City Commission in adopting this Resolution and its annexation policies is to implement the City’s land use plan (growth policy) and integrate other relevant City plans determining appropriate lands for annexation to support the health, safety, and general welfare of its citizens, make fiscally prudent decisions for the long term financial health of the City, promote environmental health of the community through the provision of sanitary sewer and water utilities, support compact and orderly expansion of the City, and provide for the efficient delivery of City services. The following are general goals related to landowner-initiated annexations: 2.1. The City encouragespresumes all areas thatwhich are totallywholly surrounded by the City to annexare suitable for annexation. 3. The City encourages all properties currently contracting with the City for City services such as water, sanitary sewer, and/or fire protection to annex. 2. All requests for annexations must be within the area of the City’s most recently adopted version of its future land use map. 383 Page 3 of 9 3. All petitions for annexation must be for land within the service areas identified in relevant adopted City plans, including but not limited to the Water Facility Plan, Wastewater Collection Plan, Water Reclamation Plan, Stormwater Plan, and the Integrated Water Resource Facility Plan. 4. The City of Bozeman requires annexation of all land proposed for development lying within the existing and planned service area of the that will use municipal water andor sanitary sewer systems as depicted in their respective facility plans, any land proposed for development that proposes to utilize municipal water or sewer systems.. 5. The City encourages annexations within the urban area identified on the future land use map in the current Bozeman Growth Policy. 6. The City of Bozeman city encourages annexations to make the City boundaries more regular rather than creating irregular extensions which leave unannexed gaps between annexed areas or islands of annexed or unannexed land. 7. The City of Bozeman encourages annexations which will enhance the existing traffic circulation system or provide for circulation systems that do not exist at the present time. 8. The City prefers annexation of parcels of land larger than five (5) acres in size, but will allow annexation of smaller parcels if factors such as topographic limitations, sanitary disposal needs, fire access, maintenance of public facilities, etc., justify a smaller annexation. 9. The City seeks to obtain water rights adequate for future development of the property with annexation. 10.5. The City of Bozeman encourages annexations for Cityfor the provision of clean, treated water and sanitary sewer. 6. Compliance with adopted standards of Montana law and the Bozeman Municipal Code (BMC) is the primary implementing tool for satisfying provision of service requirements. Section 2 – Policies The City establishes the following policies for the consideration of all future landowner -initiated annexations to the City of Bozeman., made pursuant to Montana Code Annotated Title 7, Chapter 2, Part 42, 43, and 46. Petitions for annexation must comply with these policies and applicable state law: 1. Annexations must include dedication of all easements for rights- of- way for collector and arterial streets, adjacent local streets, public water, sanitary sewer, or storm or sewer mains, 384 Page 4 of 9 and Class I public. When required, rights of way for anchor routes as recognized in the City’s adopted parks and trails notplans, must be provided when such anchor routes are not located within the right of way for arterial or collector streets. 2. Annexations must also may be required to include dedication of rights of way for adjacent or internal local streets to complete street connectivity and provide required legal and physical access. 1.3. Annexations must include written waivers of a property owner’s right to protest the creation of special or improvement districts necessary to provide the essential services for future development of the City. The waivers must run with the land, be binding on the owner and owner’s successors in interest and be recorded concurrently with the annexation agreement. 2. Issues pertaining to master planning and zoning must be addressed prior to or in conjunction with the application for annexation. 3. The applicationpetition for annexation must be in conformance with the current Bozeman Growth Policy.land use plan (growth policy). If a Growth Policy Amendment is land use plan (growth policy) amendment is necessary to accommodate for anticipated land uses, the land use plan amendment process must be initiated by the property owner and completed prior to any action for approval of the application for annexation. 4. Initial zoning classification of the property to be annexed will be determined by the City Commission, in compliance with the Bozeman Growth Policy and upon a recommendation of the City Zoning Commission, simultaneously with review of the annexation petition. 5.4. The applicant must indicate their preferred zoning classification as part of the annexation a petition for annexation. 6. Fees for annexation processing will be established by the City Commission. 7. It is the policy of the City that annexations will not be approved where unpaved county roads will be the most commonly used route to gain access to the property unless the landowner proposes a method to provide for construction of the road to the City’s street standards. 8. Prior to annexation of property, the City will require the property owner to acquire adequate and usable water rights, or an appropriate fee in lieu thereof, in accordance with Section 38.410.130 of the municipal code, as amended. 5. Infrastructure and emergency services for The City prefers petitions for annexation of land 385 Page 5 of 9 larger than five acres. However, the City will consider annexation of smaller areas of land when one or more of the following are present: topographic limitations; the land is served by one or more City utilities; septic system failure; extension and integration of transportation infrastructure; enhancement of the existing traffic circulation system or to provide for transportation systems that do not currently exist; annexation will make the City boundaries more regular; annexation will better incorporate unannexed property for the provision of City fire, police, and emergency services; or when annexation provides improved access to and maintenance of public facilities. 9.6. The City will review infrastructure and emergency services available to an area proposed for annexation will be reviewed for the health, safety and welfare of the public and conformance with the City’s adopted facility plans. If the City determines adequate services cannot be provided to ensure public health, safety and welfare, the City may deny the petition for annexation. Alternatively, the City may require theall property ownerowners within the land to be annexed provide a written plan for accommodation of these services, or the City may reject the petition for annexation. Additionally, at the parcelexpense of the property owner(s). The land to be annexed may only be provided sanitary sewer service via the applicable drainage basin defined in the City Wastewater Collection Facilities Plan. 7. The City may require annexation of any contiguous property for which cityCity services are requested or for which cityCity services are currently being provided. In addition, any person, firm, or corporation receiving water or sewer service outside of the City limits is required as a condition of initiating or continuing such service, to record a consent to annexation of the property serviced by the City. 10.8. The City Manager may enter into an agreement with a property owner for an emergency connection to the City’s sanitary sewer or water system in an emergency conditioned upon the submittal by. In doing so, the property owner ofmust submit a petition for annexation and filing offile a notice of consent to annexationannex with the Gallatin County Clerk and Recorder’s Office. prior to connection to City utilities. The contractCity will prepare the notice of consent to annex. The agreement for connection to cityCity sewer and/or water must require the property owner to annexcomplete annexation or consent to disconnection of the services. Connection for purposes of obtaining City sewer services in an emergency requires, when feasible as determined by the City, the connection to City water services. 11. The annexation application shall be accompanied by mapping to meet the requirements of the Director of Public Works. Where an area to be annexed can be entirely described by reference to a certificate of survey or subdivision plat on file with the Gallatin County Clerk and Recorder the mapping may be waived by the Director of Public Works. The 12. The City will assess system development/ impact fees in accordance with Montana 386 Page 6 of 9 law and Chapter 2, Article 6, Division 9, Bozeman Municipal Code. 13. Public notice requirements: Notice for annexation of property must be coordinated with the required notice for the zone map amendment required with all annexation. The zone map amendment notice must contain the materials required by 38.220.410, BMC. 14. Annexation agreements must be executed and returned to the City within 60 days of distribution of the annexation agreement by the City, unless another time is specifically identified by the City Commission. 15.9. When possible, the use of Part 46 annexations is preferred. 16.10. Where a road improvement district has been created, the annexation does not repeal the creation of the district. The City will not assume operations of thea road improvement district until the entirety of the district has been annexed. Any funds held in trust for the district will be used to benefit the district after transfer to the City. Inclusion within a district does not lessenabsolve a landowner of the obligation to participate in general cityCity programs that address the same subject. 17. The City will notify the Gallatin County Planning Department and Fire District providing service to the area of applications for annexation. 18.11. The City will requirerequires connection to and use of all City utilities and services upon development of annexed properties. The City may establish a fixed time frame for connection to municipal utilitiesservices. Upon development, unless otherwise approved by the City, septic systems must be properly abandoned and the development must be connected to the City sanitary sewer system. Upon development, unless otherwise approved by the City, water wells on the subject property may be used for irrigation, but must be disconnected from any potable uses structure. Potable water must be supplied from the City water distribution system and any wells disconnected from structures.. The property owner must contact the City Water and Sewer SuperintendentDivision to verify disconnectsdisconnection of wells and septic systems. 12. All annexations must be contiguous with or wholly surrounded by the existing City boundary. The City Commission may agree to annex property that is not contiguous or wholly surrounded. If the land to be annexed is not contiguous to or wholly surrounded by the City, the reasoning and justification for annexation must be explicitly addressed within the petition and approved by the Commission prior to adoption of a Resolution of Annexation. Section 3 – Procedures 387 Page 7 of 9 The following procedures apply to a petition for annexation subject to this Resolution: 1. Property owners must submit a written petition for annexation on an annexation application form provided by the City. 2. The annexation application must be accompanied by a map that meets the requirements of the Director of Transportation and Engineering. Where an area to be annexed can be entirely described by reference to a certificate of survey or subdivision plat on file with the Gallatin County Clerk and Recorder, the required map may be waived by the Director of Transportation and Engineering. 3. Fees for an annexation application will be established by the City Commission. 4. The City will provide notice of the application to the Gallatin County Department of Planning & Community Development and the existing county fire services area or district providing service to the area. 5. Prior to the recording an annexation agreement, property owner must address the City’s water adequacy requirements at Section 38.410.130, BMC, as amended. 6. The City will assess systems development and impact fees in accordance with Montana law and Chapter 2, Article 6, Division 9, BMC. 7. If the property to be annexed is within a payback district or area, the City will apply the terms of the payback. 8. The initial zoning classification of the property is determined by the City Commission simultaneously with review of the annexation petition, with consideration of the zoning request of the applicant and recommendation of the Community Development Board. The applicant must indicate any requested zoning classification as part of the annexation application. 9. Public notice requirements for zone map amendment application are set forth in the Bozeman Municipal Code. To the extent possible, the public comment period of an annexation application must be the same as the public comment period for an associated zone map amendment application. 10. Annexation agreements must be signed and notarized by all landowners and returned to the City within 60 days of transmission of the annexation agreement by the City to the property owner(s), unless a different time is specifically identified by the City Commission. 11. At the City’s discretion, an annexation agreement or an extension of services plan may be used to meet statutory requirements for the delivery of municipal service. 388 Page 8 of 9 Section 4 This Resolution once adopted supersedes Resolution 44005076 adopted by the City Commission on September 10, 2012October 28, 2019. PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the th______ day of October, 2019___________, 2025. CHRIS MEHL Deputy _________________________________ TERENCE CUNNINGHAM Mayor ATTEST: ROBIN CROUGH _______________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ______________________________ GREG SULLIVAN City Attorney Previous Annexation Policy Resolutions: Resolution 2502 May 29, 1984 389 Page 9 of 9 Resolution 2524 September 10, 1984 Resolution 3137 August 19, 1996 Resolution 3907 January 6, 2006 Resolution 4400 September 10, 2012 Resolution 5076 October 28, 2019 390 IS30 9TIN CO. RESOLUTION 5076 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, REVISING AND RE-ESTABLISHING GOALS AND POLICIES FOR LANDOWNER INITIATED ANNEXATION OF PROPERTIES TO THE CITY OF BOZEMAN,AND SUPERSEDING RESOLUTION 4400. WHEREAS, the City of Bozeman wishes to establish updated comprehensive annexation goals and policies for landowner initiated annexations to provide for orderly, well- planned growth ofthe City; and WHEREAS, adoption of such goals and policies will provide our community with clear guidelines for informed annexation proposals; and WHEREAS,the City establishes these goals and policies in accordance with annexation statutes as set forth in Title 7, Chapter 2,Parts 43, 45, 46 and 47,MCA. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana,to wit: Section I The following goals are hereby established for the consideration of annexations to the City of Bozeman. 1.The City of Bozeman encourages annexations of land contiguous to the City. 2.The City encourages all areas that are totally surrounded by the City to annex. Page 1 of 5 391 Resolution 5076,Revising and Re-Establishing Goals and Policies for•Landoi4,ner Initiated Annexation ofProperties to the City ofBozeman 3.The City encourages all properties currently contracting with the City for City services such as water, sanitary sewer, and/or fire protection to annex. 4.The City of Bozeman requires annexation of all land proposed for development lying within the existing and planned service area of the municipal water and sewer systems as depicted in their respective facility plans, any land proposed for development that proposes to utilize municipal water or sewer systems. 5.The City encourages annexations within the urban area identified on the future land use map in the current Bozeman Growth Policy. 6.The City of Bozeman encourages annexations to make the City boundaries more regular rather than creating irregular extensions which leave unannexed gaps between annexed areas or islands of annexed or unannexed land. 7.The City of Bozeman encourages annexations which will enhance the existing traffic circulation system or provide for circulation systems that do not exist at the present-time. 8.The City prefers annexation ofparcels of land larger than five(5) acres in size,but will allow annexation of smaller parcels if factors such as topographic limitations, sanitary disposal needs, fire access, maintenance of public facilities, etc.,justify a smaller annexation. 9.The City seeks to obtain water rights adequate for future development of the property with annexation. 10. The City of Bozeman encourages annexations for City provision of clean treated water and sanitary sewer. Section 2 The City establishes the following policies for the consideration of all future landowner initiated annexations to the City of Bozeman. 1.Annexations must include dedication of all easements for rights-of-way for collector and arterial streets,adjacent local streets,public water,sanitary sewer,or storm or sewer mains, and Class I public trails not within the right ofway for arterial or collector streets.Annexations must also include waivers of right to protest the creation of special or improvement districts necessary to provide the essential services for future development ofthe City. 2.Issues pertaining to master planning and zoning must be addressed prior to or in conjunction with the application for annexation. Page 2 of 5 392 Resolution 5076,Revising and Re-Establishing Goals and Policies for Landowner Initiated Annexation of Properties to the City ofBozeman 3.The application for annexation must be in conformance with the current Bozeman Growth Policy. If a Growth Policy Amendment is necessary to accommodate anticipated uses, the amendment process must be initiated by the property owner and completed prior to any action for approval of the application for annexation. 4.Initial zoning classification of the property to be annexed will be determined by the City Commission, in compliance with the Bozeman Growth Policy and upon a recommendation of the City Zoning Commission, simultaneously with review of the annexationpetition. 5.The applicant must indicate their preferred zoning classification as part of the annexation petition. 6.Fees for annexation processing will be established by the City Commission. 7.It is the policy of the City that annexations will not be approved where unpaved county roads will be the most commonly used route to gain access to the property unless the landowner proposes a method to provide for construction ofthe road to the City's street standards. 8.Prior to annexation of property, the City will require the property owner to acquire adequate and usable water rights, or an appropriate fee in lieu thereof, in accordance with Section 38.410.130 of the municipal code, as amended. 9.Infrastructure and emergency services for an area proposed for annexation will be reviewed for the health, safety and welfare of the public and conformance with the City's adopted facility plans. If the City determines adequate services cannot be provided to ensure public health, safety and welfare,the City may require the property owner to provide a written plan for accommodation of these services, or the City may reject the petition for annexation. Additionally, the parcel to be annexed may only be provided sanitary sewer service via the applicable drainage basin defined in the City Wastewater Collection FacilitiesPlan. 10.The City may require annexation of any contiguous property for which city services are requested or for which city services are currently being provided. In addition, any person, firm, or corporation receiving water or sewer service outside of the City limits is required as a condition of initiating or continuing such service, to consent to annexation of the property serviced by the City. The City Manager may enter into an agreement with a property owner for connection to the City's sanitary sewer or water system in an emergency conditioned upon the submittal by the property owner of a petition for annexation and filing of a notice ofconsent to annexation with the Gallatin County Clerk and Recorder's Office. The contract for connection to city sewer and/or water must require the property owner to annex or consent to Page 3 of 5 393 Resolution 5076, Revising and Re-Establishing Goals and Policies for Landowner Initiated Annexation ofProperties to the City ofBozeman disconnection of the services. Connection for purposes of obtaining City sewer services in an emergency requires, when feasible as determined by the City, the connection to City water services. 11.The annexation application shall be accompanied by mapping to meet the requirements of the Director of Public Works. Where an area to be annexed can be entirely described by reference to a certificate of survey or subdivision plat on file with the Gallatin County Clerk and 12.Recorder the mapping may be waived by the Director ofPublic Works. 13.The City will assess system development/ impact fees in accordance with Montana law and Chapter 2, Article 6, Division 9, Bozeman Municipal Code. 14.Public notice requirements: Notice for annexation of property must be coordinated with the required notice for the zone map amendment required with all annexation. The zone map amendment notice must contain the materials required by 38.220.410,BMC. 15.Annexation agreements must be executed and returned to the City within 60 days of distribution of the annexation agreement by the City, unless another time is specifically identified by the City Commission. 16.When possible,the use of Part 46 annexations is preferred. 17.Where a road improvement district has been created, the annexation does not repeal the creation of the district. The City will not assume operations of the district until the entirety of the district has been annexed. Any funds held in trust for the district will be used to benefit the district after transfer to the City. Inclusion within a district does not lessen the obligation to participate in general city programs that address the same subject. 18.The City will potify the Gallatin County Planning Department and Fire District providing service to the area of applications for annexation. 19.The City will require connection to and use of all City services upon development of annexed properties. The City may establish a fixed time frame for connection to municipal utilities. Upon development, unless otherwise approved by the City, septic systems must be properly abandoned and the development connected to the City sanitary sewer system. Upon development, unless otherwise approved by the City,water wells on the subject property may be used for irrigation, but any potable uses must be supplied from the City water distribution system and any wells disconnected from structures. The property owner must contact the City Water and Sewer Superintendent to verify disconnects of wells and septic systems. Page 4 of 5 394 Resolution 5076,Revising and Re-Establishing Goals and Policies far Landowner li?itiated Annexation ofProperties to the City ofBozeman Section 3 This Resolution once adopted supersedes Resolution 4400 adopted by the City Commission on September 10, 2012. PASSED,ADOPTED,AND APPROVED by the City Commission of the City of Bozeman,Montana,at aregular session thereof held on they 8 th day of October,2019. 1Z qej HRIS MEHL Deputy Mayor ATTEST: v QF.B02' L t U 3 9l•.,'RO RN C- UGH 1883 ..• IN CO•` APPR ED AS T RM: GREG SlotTVAN City Attorney Page 5 of 5 395 Page 1 of 6 RESOLUTION _______ A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, REVISING AND RE-ESTABLISHING GOALS AND POLICIES FOR LANDOWNER INITIATED ANNEXATION OF PROPERTIES TO THE CITY OF BOZEMAN, AND SUPERSEDING RESOLUTION 5076. WHEREAS, the City of Bozeman wishes to establish comprehensive annexation goals and policies for landowner initiated annexations to provide for orderly, well-planned growth of the City; and WHEREAS, the City of Bozeman adopted its most recent growth policy, the Bozeman Community Plan 2020, on November 17, 2021, through Resolution No. 5133; and WHEREAS, the Bozeman Community Plan 2020 addresses annexation policy and details specific goals and objectives related to the orderly annexation of land into the City; and WHEREAS, on May 10, 2022, the City Commission adopted Resolution 5383 establishing an Extension of Services Plan and Report for City-Initiated Annexation and this Resolution in no way affects Resolution 5383 as this Resolution addresses landowner-initiated annexations only; and WHEREAS, the adoption of this resolution will provide our community with clear guidelines for informed annexation proposals; and WHEREAS, adoption of this resolution establishes annexation policies to implement the goals of the Bozeman Community Plan 2020 and supports financially efficient delivery of city services; and WHEREAS, the Resolution revises the annexation policy by generally reorganizing the document from three sections of goals, policies, and adoption to a more complete form. The revision creates legislative intent, clearly delineates procedural requirements from city policy, eliminates redundancy, clarifies existing annexation policies based on prior experience to improve criteria, integrates references for recently revised and adopted City plans, and defines key terms; and WHEREAS, this Resolution supersedes Resolution 5076; and 396 Page 2 of 6 WHEREAS, the City adopts this resolution in accordance with annexation statutes as set forth in Title 7, Chapter 2, Part 42, 43, and 46, Mont. Code Ann. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana: Section 1 – Legislative Intent & Goals The intent of the Bozeman City Commission in adopting this Resolution and its annexation policies is to implement the city’s land use plan (growth policy) and integrate other relevant city plans determining appropriate lands for annexation to support the health, safety, and general welfare of its citizens, make fiscally prudent decisions for the long term financial health of the city, promote environmental health of the community through the provision of sanitary sewer and water utilities, support compact and orderly expansion of the city, and provide for the efficient delivery of city services. The following are general goals related to landowner initiated annexations: 1. The City presumes all areas which are wholly surrounded by the city are suitable for annexation. 2. All requests for annexations must be within the area of the city’s most recently adopted version of its future land use map. 3. All written petitions for annexation pursuant to must also be for annexation of land within the service areas identified in relevant adopted city plans, including but not limited to the Water Facility Plan, Wastewater Collection Plan, Water Reclamation Plan, Stormwater Plan, and Integrated Water Resource Facility Plan. 4. The City requires annexation of all land proposed for development that will utilize municipal water or sewer systems lying within the existing and planned service area of the municipal water and sewer systems. 5. The city encourages annexations for the provision of clean, treated water and sanitary sewer. 6. Compliance with adopted standards of Montana law and the Bozeman Municipal Code (BMC) is the primary implementing tool for satisfying provision of service requirements. Section 2 – Policies The City establishes the following policies for the consideration of all future landowner-initiated annexations to the City of Bozeman, made pursuant to Montana Code Annotated Title 7, Chapter 2, Part 42, 43, and 46. Petitions for annexation must comply with these policies and applicable state 397 Page 3 of 6 law: 1. Annexations must include dedication of all easements for rights of way for collector and arterial streets, adjacent local streets, public water, sanitary sewer, or storm or sewer mains. When required, easement(s) rights of way for and Class I public trails anchor routes as recognized in the City’s adopted parks and trails plans, must be provided when such anchor routes are not located within the right of way for arterial or collector streets. 2. Annexations may be required to must include dedication of all easements for rights of way for adjacent or internal local streets to complete street connectivity and provide required legal and physical access. 3. Annexations must also include written waivers of a property owner’s right to protest the creation of special improvement districts necessary to provide the essential services for future development of the city, which. The waivers must run with the land, be binding on the owner and owner’s successors in interest and be and must be recorded concurrently with the annexation agreement. 4. Issues pertaining to master planning and zoning must be addressed prior to or in conjunction with the application for annexation. 5. The petition application for annexation must be in conformance with the current Bozeman growth policy land use plan (growth policy). If a growth policy land use plan (growth policy) amendment is necessary for to accommodate for anticipated land uses, the amendment process must be initiated by the property owner and completed prior to any action for approval of a application for a petition for annexation. 6. The City prefers petitions for annexation of parcels of land larger than five (5) acres in size are preferred. However, the City will consider but annexation of smaller areas of land parcels when one or more of the following are present: topographic limitations;, the land is served by one or more City utilities currently contracting with the city services,; septic system failure, sanitary disposal needs; , extension and integration of transportation infrastructure, enhancement of the existing traffic circulation system or provide for circulation systems that do not exist at the present time; , annexation will make the City boundaries more regular; or fill islands of previously annexation will better incorporate unannexed property for the provision of City fire, police, and emergency services; and or when annexation provides improved access, to and maintenance of public facilities. etc., justify a smaller annexation. 7. It is the policy of the City that Annexations will not be approved where unpaved and substandard county roads will be the most commonly used route to gain access to the property unless the landowner proposes a method to provide for construction of the road to the City’s street standards. Proposed street improvement plans (construction and financial mechanism) must be reviewed and approved by the review authority prior to granting annexation approval. 8. The city will review infrastructure and emergency services available to for an area proposed for annexation for the health, safety and welfare of the public and conformance with the City’s adopted facility plans. The land to be annexed may only be provided sanitary sewer service via 398 Page 4 of 6 the applicable drainage basin defined in the City Wastewater Collection Facilities Plan. If the City determines adequate services cannot be provided to ensure public health, safety and welfare, the City may deny the petition for annexation. Alternatively, the City may require the all property owners within the land to be annexed to provide a written plan for accommodation of these services at the expense of the property owner(s). or the City may reject the petition for annexation. Additionally, the parcel to be annexed may only be provided sanitary sewer service via the applicable drainage basin defined in the City Wastewater Collection Facilities Plan. 9. The City may require annexation of any contiguous property for which city services are requested or for which city services are currently being provided. In addition, any person, firm, or corporation receiving water or sewer service outside of the City limits is required as a condition of initiating or continuing such service, to record a consent to annexation of the property serviced by the City. 10. The City Manager may enter into an agreement with a property owner for connection to the City’s sanitary sewer or water system in an emergency. conditioned upon Tthe property owner must submit a submittal by the property owner of a petition for annexation and fileing of a notice of consent of to annexation with the Gallatin County Clerk and Recorder’s Office prior to connection to city utilities. The city will prepare the notice of consent to annex. The agreement contract for connection to city sewer and/or water must require the property owner to complete annexation or consent to disconnection of the services. Connection for purposes of obtaining City sewer services in an emergency requires, when feasible as determined by the City, the connection to City water services. 11. When possible, the The use of Part 46 annexations is preferred. 12. Where a road improvement district has been created, the annexation does not repeal the creation of the district. The City will not assume operations of a road improvement the district until the entirety of the district has been annexed. Any funds held in trust for the district will be used to benefit the district after transfer to the City. Inclusion within a district does not absolve a land owner of lessen the obligation to participate in general city programs that address the same subject. 13. The City will requires connection to and use of all City utilities and services upon development of annexed properties. The City may establish a fixed time frame for connection to municipal utilities. Upon development, unless otherwise approved by the City, septic systems must be properly abandoned, and the development must be connected to the City sanitary sewer system. Upon development, unless otherwise approved by the City, water wells on the subject property may be used for irrigation, but must be disconnected from any structure. Potable water any potable uses must be supplied from the City water distribution system and any wells disconnected from structures. The property owner must contact the City Water and Sewer Superintendent to verify disconnections of wells and septic systems. 14. All annexations must be contiguous with or wholly surrounded by the existing city boundary. The City Commission may waive this policy. If the land to be annexed is not contiguous with City limits, the reasoning and justification for annexation must be explicitly addressed within 399 Page 5 of 6 the petition and approved by the Commission prior to adoption of a Resolution of Annexation. Section 3 – Procedures The following procedures apply to a petition for annexation subject to this Resolution: 1. Property owners must submit a written petition for annexation on an annexation application form provided by the city. 2. The annexation application must shall be accompanied by a map that meets the requirements of the Director of Public Works Transportation and Engineering. Where an area to be annexed can be entirely described by reference to a certificate of survey or subdivision plat on file with the Gallatin County Clerk and Recorder, the required mapping may be waived by the Director of Public Works Transportation and Engineering. 3. The City requires seeks to obtain water rights adequate for future development of the property with annexation. 4. Fees for an annexation application processing will be established by the City Commission. 5. The City will notify the Gallatin County Department of Planning & Community Development and the County or Rural Fire District providing service to the area of applications for annexation. 6. Prior to the recording an annexation agreement of property, the City will require the property owner to transfer address water rights or pay cash-in-lieu of water rights in acquire adequate and usable water rights, or an appropriate fee in lieu thereof, in accordance with Section 38.410.130, BMC of the municipal code, as amended. 7. The City will assess systems development and impact fees in accordance with Montana law and Chapter 2, Article 6, Division 9, Bozeman Municipal Code BMC. 8. If the property to be annexed is within a payback district or area, the city will apply the terms of the payback. 9. Initial zoning classification of the property to be annexed will be is determined by the City Commission simultaneously with review of the annexation petition, in compliance with the Bozeman Growth Policy, with consideration of the zoning request of the applicant, and upon a recommendation of the City Zoning Commission Community Development Board. The applicant must indicate any requested their preferred zoning classification as part of the annexation application petition. 10. Public notice requirements for zone map amendment applications is set forth in the BMC. To the extent possible, the public comment period of an annexation application must be the same as the public comment period for an associated zone map amendment application. 11. Annexation agreements must be signed and notarized by all land owners executed and returned to the City within 60 days of transmission distribution of the annexation agreement by the City to the property owner, unless another time is specifically identified by the City 400 Page 6 of 6 Commission. 12. At the City’s discretion, an annexation agreement or extension of services plan may be used to meet statutory requirements for the delivery of municipal service. Section 4 This Resolution once adopted supersedes Resolution 5076 adopted by the City Commission on October 28, 2019. PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the ______ day of ___________, 2025. _________________________________ TERENCE CUNNINGHAM Mayor ATTEST: _______________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ______________________________ GREG SULLIVAN City Attorney Previous Annexation Policy Resolutions: Resolution 2502 May 29, 1984 Resolution 2524 September 10, 1984 Resolution 3137 August 19, 1996 Resolution 3907 January 6, 2006 Resolution 4400 September 10, 2012 Resolution 5076 October 28, 2019 401 Co.t . COMMISSION RESOLUTION NO. 4400 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, REVISING AND RE-ESTABLISHING GOALS AND POLICIES FOR ANNEXATION OF PROPERTIES TO THE CITY OF BOZEMAN, AND SUPERSEDING COMMISSION RESOLUTION NO. 3907. WHEREAS,the City of Bozeman wishes to establish updated comprehensive annexation goals and policies,to provide for orderly, well-planned growth, and WHEREAS, adoption of such goals and policies will provide our community with clear guidelines for informed annexation proposals and WHEREAS,the City establishes these goals and policies in accordance with annexation statutes as set forth in Title 7, Chapter 2, Parts 43, 45, 46 and 47, M.C.A. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, to wit: Section 1 Goals The following goals are hereby established for the consideration of annexations to the City of Bozeman. 1. It shall be the goal of the City of Bozeman to encourage annexations of land contiguous to the City. 2. The City shall seek to annex all areas that are totally surrounded by the City,without regard to parcel size. 3. The City shall seek to annex all property currently contracting with the City for City services such as water, sanitary sewer and/or fire protection.. 4. It shall be the goal of the City of Bozeman to require annexation of all land proposed for development lying within the service boundary of the existing sewer system as depicted in the Bozeman Growth Policy, and to encourage annexations within the urban growth area identified in the Bozeman Growth Policy. 1 of 4 402 Resolution No. 4400, Goals and Policies for Annexation Section 2 Policies The following policies are hereby established for the consideration of all future annexations to the City of Bozeman. 1. Annexations shall include dedication of all easements,rights-of-way for collector and arterial streets, water rights and waivers of right to protest against the creation of improvement districts necessary to provide the essential services for future development of the city. 2. Issues pertaining to master planning and zoning shall be addressed in conjunction with the application for annexation. a.The initial application for annexation shall be in conformance with the current Bozeman Growth Policy, If a Growth Policy Amendment is necessary to accommodate anticipated uses, said amendment process may be initiated by the applicant and conducted concurrently with the processing of the application for annexation. b.Initial zoning classification of the property to be annexed shall be determined by the City Commission, in compliance with the Bozeman Growth Policy and upon a recommendation of the City Zoning Commission,prior to final annexation approval. C.The applicant may indicate his or her preferred zoning classification as part of the annexation application. 3. Fees for Annexation procedures shall be established by the City Commission.No fee will be charged for any City-initiated annexation. 4. It shall be the general policy of the City that annexations will not be approved where unpaved county roads will be the most commonly used route to gain access to the property. 5. Prior to annexation ofproperty,it shall be the policy ofthe City of Bozeman to acquire adequate and usable-water rights, or an appropriate fee in lieu thereof, in accordance with Section 38.23.180 of the municipal code, equal to the avefage annual&vefsien requirement neeessai=y te pr-evide he arAieipated Epiefage af.-iffial eenstmVtieii efv elef by fesideiAs aftd/ef tiser-s ef the pr-eperty when fully develeped en the basis of the zoning designation(s). The -&-ee may be iised to aequire water- r-i&s af fe 4s te the water systeffi whieh would er-eate additiena4 walef stipp eapaeib,, This peliey may be &ubjeet to the fellewing exeepti a.Fer-afty aiine Eatieii in eNeess eften(10)aer-es,it shall be eaffied efft pfier-to final plat appreval, final site plan appreva4 or- 4te issiianee of any Wildiiig pefmit, whieheve eeetffs first provided applieai4 exeetites a premissei-y Rote er- other- appr-epi:iale doeument aeeeptable to the Givy. b. Fef aRy annexatien or portien thereof proposed fi)r use as a ehweh as that tefm defined in the Bozeman zoning or-dinanee, the R 1, ResiderAial Single 14ouseheld, Low sDensityDistr-iet shall be used ift plaee of the pfepefty zening designation fe ealeulating the water requirement. if!he use ehmges 4em a ehweh at aft),fifne in the 2 of 4 403 Resolution No. 4400, Goals and Policies for Annexation 9... the time of the ehange, the ewtier- ar- its sueeesser- shall supply any additional wa4 rights or fee whieh fnigh4 be"e,based en the aetual .a the eh 6. Infrastructure and emergency services for an area proposed for annexation will be reviewed for the health, safety and welfare of the public. If it is found that adequate services cannot be provided to ensure public health, safety and welfare,it shall be the general policy of the City to require the applicant to provide a written plan for accommodation of these services, or not approve the annexation. Additionally, annexation proposals that would use up infrastructure capacity already reserved for properties lying either within undeveloped portions of the City limits or lying outside the City limits but within identified sewer or water service area boundaries, shall generally not be approved. 7.It shall be the general policy of the City of Bozeman to require annexation of any contiguous property for which city services are requested or for which city services are currently being contracted. 8. The annexation application shall be accompanied by mapping to meet the requirements of the Director of Public Service. 9. It shall be the policy of the City of Bozeman to assess a systern development/impact fee in accordance with-Chaptef 3.24Chapter_2,Article 6 Division '9, Bozeman Municipal Code, and accordance with the Bozeman Growth Policy and other policies as they are developed. 10. Public notice requirements shall be in compliance with Montana Code Annotated. In addition, notice shall be posted in at least one conspicuous location on the site in question,and mailed to all owners of real property of record within 200 feet of the site in question using last declared county real estate tax records, not more than forty-five days nor less than fifteen days prior to the scheduled action to approve or deny the annexation by the City Commission, specifying the date,time and place the annexation will be considered by the City Commission. The notice shall contain the materials required by Section 18.76.0-20. 38.40.020.A & B.1, BMC.Ina d• e ,-a annexed, nefiee shall provide a map of the area in question so as to indieate its general leeation 11. Annexation agreements shall be executed and returned to the City within 60 days of distribution of the annexation agreement, unless another tirne period is specifically identified by the City Commission. 12. When possible, the use of Part 46 annexations is preferred. 3 of 4 404 Resolution.No. 4400, Goals and Policies for Annexation. PASSED AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the l 01" day of September 2012, The effective date of this Resolution shall be October 13 2012. SEAN A. BECKER Mayor ATTEST: ewm CmC City Jerk M APPROVED AS TO FORM: SULLIVAN City Attorney 4 of 405 Page 1 of 3 CHANGE ORDER No. 01 DATE OF ISSUANCE 2/7/2025 EFFECTIVE DATE 2/7/2025 OWNER City of Bozeman CONTRACTOR DN Tanks of Montana, LLC Contract: WRF 2024 Gravity Thickener Rehabilitation Project: WRF 2024 Gravity Thickener Rehabilitation OWNER's Contract No. NA ENGINEER City of Bozeman ENGINEER's Contract No. NA You are directed to make the following changes in the Contract Documents: Description: Item 1 – Reconciliation of Final Quantities - Welding repairs were found to be needed on the gravity thickener’s mechanical unit once the existing coating was removed. The additional work was authorized under the Miscellaneous Work Item 107 but did not require full utilization of the contract quantities. No additional Miscellaneous Work was required during construction. All other item qualities were completed per the Bid Form. Reason for Change Order: No additional Miscellaneous Work was required during construction. All other item qualities were completed per the Bid Form. Attachments: (List documents supporting change) Attachment A – Email correspondence of welding repair and authorization of Miscellaneous Work Item Attachment B – Reconciliation of Final Quantities Attachment C – DN Tanks Change Request Proposal CHANGE IN CONTRACT PRICE: CHANGE IN CONTRACT TIMES: Original Contract Price $ 419,000.00 Original Contract Times: Substantial Completion: 60 Ready for final payment: 60 (days or dates) Net Increase (Decrease) from previous Change Orders No. to : $ 0.00 Net change from previous Change Orders No. to No. : Substantial Completion: 0 Ready for final payment: 0 (days) Contract Price prior to this Change Order: $ 419,000.00 Contract Times prior to this Change Order: Substantial Completion: 0 Ready for final payment: 0 (days or dates) Net decrease of this Change Order: $ 19,164.42 Net increase (decrease) this Change Order: Substantial Completion: 0 Ready for final payment: 0 (days) Contract Price with all approved Change Orders: $ 399,835.58 Contract Times with all approved Change Orders: Substantial Completion: 60 Ready for final payment: 60 (days or dates) Contractor certifies and agrees that there are no additional costs or claims for extra work, additional time, delays or omitted items, of any nature whatsoever, associated with the subject change order items, except as identified and set forth herein and unless expressly stated otherwise in the Change Order. And further, that the price agreed-upon herein represents the full cost and value for the subject work performed and the materials supplied under the terms of the contract and that the work quantities and value were properly determined and are correct. Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 334406 Page 2 of 3 CONTRACTOR (Authorized Signature) Date RECOMMENDED BY: APPROVED BY: (ENGINEER - Signature) Date OWNER (Authorized Signature) Date EJCDC 1910-8-B (1996 Edition Prepared by the Engineers Joint Contract Documents Committee and endorsed by The Associated General Contractors of America and the Construction Specifications Institute. Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 2/7/2025 335407 Page 3 of 3 CHANGE ORDER INSTRUCTIONS A. GENERAL INFORMATION This document was developed to provide a uniform format for handling contract changes that affect Contract Price or Contract Times. Changes that have been initiated by a Work Change Directive must be incorporated into a subsequent Change Order if they affect Price or Times. Changes that affect Contract Price or Contract Times should be promptly covered by a Change Order. The practice of accumulating Change Orders to reduce the administrative burden may lead to unnecessary disputes. If Milestones have been listed in the Agreement, any effect of a Change Order thereon should be addressed. For supplemental instructions and minor changes not involving a change in the Contract Price or Contract Times, a Field Order should be used. B. COMPLETING THE CHANGE ORDER FORM Engineer normally initiates the form, including a description of the changes involved and attachments based upon documents and proposals submitted by Contractor, or requests from Owner, or both. Once Engineer has completed and signed the form, all copies should be sent to Owner or Contractor for approval, depending on whether the Change Order is a true order to the Contractor or the formalization of a negotiated agreement for a previously performed change. After approval by one contracting party, all copies should be sent to the other party for approval. Engineer should make distribution of executed copies after approval by both parties. If a change only applies to price or to times, cross out the part of the tabulation that does not apply. Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 336408 From:Griffin Nielsen To:Gomez, Omar Subject:RE: [EXTERNAL]PCO 1 - Rotating Arm Steel Welding Date:Monday, August 12, 2024 5:03:00 PM Attachments:image001.png Omar, We cover this with the Miscellaneous Work Item. Please consider this the approval to move forward with the work. Thanks, City of Bozeman MT Griffin Nielsen, PE| Engineering/Utilities Department D:406.582.2279 C:406.595.1598gnielsen@bozeman.net From: Gomez, Omar <Omar.Gomez@dntanks.com>  Sent: Monday, August 12, 2024 4:37 PM To: Griffin Nielsen <GNielsen@BOZEMAN.NET> Subject: [EXTERNAL]PCO 1 - Rotating Arm Steel Welding CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Hi Griffin, I am putting together some numbers to fix the tubing. Here is what I am getting at rough numbers. We would like to proceed with this on Wednesday if possible. 1 day repair $15,835.58 Includes delay fee for KLM, Eagle, Blasting and DN Tanks Includes patch repair for tubing (doesn’t include internal rings) Highest price increase is due to Eagle blasting staying over the weekend to finish the work. 2 day repair $20,751.17 Includes delay fee for KLM, Eagle, Blasting and DN Tanks Includes patch repair for tubing (doesn’t include internal rings) Highest price increase is due to Eagle blasting staying over the weekend to finish the work. Regards, Omar Fojaco Gomez Attachment A Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 337409 Project Manager 619.504.3515 Phone 351 Cypress LN, El Cajon, CA 92020 www.dntanks.com   Disclaimer The information contained in this communication from the sender is confidential. It is intended solely for useby the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified thatany disclosure, copying, distribution or taking action in relation of the contents of this information is strictlyprohibited and may be unlawful. This email has been scanned for viruses and malware, and may have been automatically archived byMimecast Ltd, an innovator in Software as a Service (SaaS) for business. Providing a safer and moreuseful place for your human generated data. Specializing in; Security, archiving and compliance. To find outmore Click Here. Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 338410 From:Griffin Nielsen To:Gomez, Omar Cc:Freitas, Kevin Subject:RE: [EXTERNAL]RE: Bozeman WRF Gravity Thickener - Onsite Superintendent Date:Thursday, August 8, 2024 3:41:00 PM Thanks Omar! City of Bozeman MT Griffin Nielsen, PE| Engineering/Utilities Department D:406.582.2279 C:406.595.1598 gnielsen@bozeman.net From: Gomez, Omar <Omar.Gomez@dntanks.com> Sent: Thursday, August 8, 2024 1:28 PM To: Griffin Nielsen <GNielsen@BOZEMAN.NET> Cc: Freitas, Kevin <kevin.freitas@dntanks.com> Subject: Re: [EXTERNAL]RE: Bozeman WRF Gravity Thickener - Onsite Superintendent CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Griffin we will get on this. We don't have no immediate sub that can help us. We are not that familiar with Bozeman MT, but we will definitely make our phone calls Regards, Omar Fojaco Gomez619-504-3515 DN Tanks, LLC On Aug 8, 2024, at 12:09 PM, Griffin Nielsen <GNielsen@bozeman.net> wrote:  This message originated from outside DN Tanks Hi Omar, I went out and looked at the condition of the steel with Kevin and Eagle Blasting. After consideration, we would like to have the pitting on the mechanical drum ribbing and Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 339411 rack arms, especially where holes have formed and are allowing water inside the tubing, taken care of now. Unfortunately, we don’t have the in-house capability to deal with this. Can your team provide a proposal to repair the steel? If so in the proposal can separate out repairs on the drum vs the rack arms? Give me a call if you would like to discuss. Thanks, City of Bozeman MT Griffin Nielsen, PE| Engineering/Utilities Department D:406.582.2279 C:406.595.1598 gnielsen@bozeman.net From: Gomez, Omar <Omar.Gomez@dntanks.com> Sent: Wednesday, August 7, 2024 4:40 PM To: Freitas, Kevin <kevin.freitas@dntanks.com>; Griffin Nielsen <GNielsen@BOZEMAN.NET> Subject: RE: [EXTERNAL]RE: Bozeman WRF Gravity Thickener - Onsite Superintendent CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Hi Griffin, Kevin brought me up to speed. If there is something that we need to do to the drum let us know please. We should be done with sandblasting by Friday. Regards, Omar Fojaco Gomez Project Manager 619.504.3515 Phone 351 Cypress LN, El Cajon, CA 92020 www.dntanks.com <image001.png> From: Freitas, Kevin <kevin.freitas@dntanks.com> Sent: Wednesday, August 7, 2024 3:39 PM To: Griffin Nielsen <GNielsen@BOZEMAN.NET>; Gomez, Omar <Omar.Gomez@dntanks.com> Subject: Re: [EXTERNAL]RE: Bozeman WRF Gravity Thickener - Onsite Superintendent Good afternoon Griffin Here’s the pictures of the area that we talked about Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 340412 Kevin Freitas DN Tanks Phone # 858-424-1812 Email: Kevin.freitas@dntanks.com From: Griffin Nielsen <GNielsen@BOZEMAN.NET> Sent: Monday, August 5, 2024 4:42:30 PM To: Gomez, Omar <Omar.Gomez@dntanks.com> Cc: Freitas, Kevin <kevin.freitas@dntanks.com> Subject: RE: [EXTERNAL]RE: Bozeman WRF Gravity Thickener - Onsite Superintendent This message originated from outside DN Tanks Thank Omar. Kevin, nice to meet you. I’ll be onsite regularly but if you need anything from me don’t hesitate to give me a call. City of Bozeman MT Griffin Nielsen, PE| Engineering/Utilities Department D:406.582.2279 C:406.595.1598 gnielsen@bozeman.net From: Gomez, Omar <Omar.Gomez@dntanks.com> Sent: Monday, August 5, 2024 4:14 PM To: Griffin Nielsen <GNielsen@BOZEMAN.NET> Cc: Freitas, Kevin <kevin.freitas@dntanks.com> Subject: [EXTERNAL]RE: Bozeman WRF Gravity Thickener - Onsite Superintendent CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Hi Griffin, Kevin Freitas / 858-424-1812 Regards, Omar Fojaco Gomez Project Manager Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 341413 619.504.3515 Phone 351 Cypress LN, El Cajon, CA 92020 www.dntanks.com <image001.png> From: Griffin Nielsen <GNielsen@BOZEMAN.NET> Sent: Monday, August 5, 2024 3:11 PM To: Gomez, Omar <Omar.Gomez@dntanks.com> Subject: Bozeman WRF Gravity Thickener - Onsite Superintendent This message originated from outside DN Tanks Hi Omar, I checked in on the project this afternoon and met with your onsite rep Kevin. I didn’t have any cards with me so can you pass along my contact info to Kevin andsend me his when you have a minute? Thanks, City of Bozeman MT Griffin Nielsen, PE| Engineering/Utilities Department D:406.582.2279 C:406.595.1598 gnielsen@bozeman.net Disclaimer The information contained in this communication from the sender is confidential. It is intendedsolely for use by the recipient and others authorized to receive it. If you are not the recipient,you are hereby notified that any disclosure, copying, distribution or taking action in relation ofthe contents of this information is strictly prohibited and may be unlawful. This email has been scanned for viruses and malware, and may have been automaticallyarchived by Mimecast Ltd, an innovator in Software as a Service (SaaS) for business.Providing a safer and more useful place for your human generated data. Specializing in;Security, archiving and compliance. To find out more Click Here. City of Bozeman emails are subject to the Right to Know provisions of Montana’s Constitution (Art. II, Sect. 9) and may be considered a “public record” pursuant to Title 2, Chpt. 6, Montana Code Annotated. As such, this email, its sender and receiver, and the contents may be available for public disclosure and will be retained pursuant to the City’s record retention policies. Emails that contain confidential information such as information related to individual privacy may be protected from disclosure under law. City of Bozeman emails are subject to the Right to Know provisions of Montana’s Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 342414 Constitution (Art. II, Sect. 9) and may be considered a “public record” pursuant to Title 2, Chpt. 6, Montana Code Annotated. As such, this email, its sender and receiver, and the contents may be available for public disclosure and will be retained pursuant to the City’s record retention policies. Emails that contain confidential information such as information related to individual privacy may be protected from disclosure under law. Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 343415 Attachment B Project: City of Bozeman Water Reclamation Facility 2024 Gravity Thickener Rehabilitation Project (#8942518) Owner: City of Bozeman Engineer City of Bozeman Contractor: DN Tanks of Montana LLC Date:2/4/2024 Line Item Item Description UofM Unit Price Contract Quantity Contract Unit Payment Quantity Measured Final Unit Payment 101 Taxes, Bonds, and Insurance LS $7,000.00 1 $7,000.00 1 $7,000.00 102 Mobilization LS $26,800.00 1 $26,800.00 1 $26,800.00 103 Existing Coating Removal and Interior Surface Preparation LS $94,300.00 1 $94,300.00 1 $94,300.00 104 Concrete Rehabilitation and Crack Repair LS $98,400.00 1 $98,400.00 1 $98,400.00 105 Application of Epoxy Coating to Tank Interior and Launder LS $79,300.00 1 $79,300.00 1 $79,300.00 106 Removal and Reinstallation of Rubber Squeegee Blades LS $7,900.00 1 $7,900.00 1 $7,900.00 201 Mechanical Unit Existing Coating Removal and Exterior Surface Preparation LS $23,700.00 1 $23,700.00 1 $23,700.00 202 Application of Coating to Mechanical Unit Exterior LS $46,600.00 1 $46,600.00 1 $46,600.00 107 Schedule 1 Miscellaneous Work EA $1.00 25000 $25,000.00 15835.58 $15,835.58 203 Additive Alterative Schedule 2 Miscellaneous Work EA $1.00 10000 $10,000.00 0 $0.00 Total $419,000.00 $399,835.58 Miscellaneous Work Reconciliation of Final Quantities Bid Total Final Construction Total Additive Alternative - Schedule 2 Rehabilitation of Mechanical Units Exterior Schedule 1 Rehabilitation of Tank's Concrete Interior Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 344416 Page 1 of 1 City of Bozeman 1004 Executed 02/05/2025 0.00 0 02/05/2025 -19,164.42Amount For CR 1004 Change Request Proposal Change Request Number: Description: Project: (name and address) 2024-015 / Bozeman, MT -CTS Grav Tkn 2245 Springhill Rd Bozeman, MT 59718 Deductive Change Order - Allowance Not Used Status: Origination Date: Approval Date: Received Date: Submitted Date: Requested Days Delay: Submitted Date: Quotation Notice to Proceed Approvals Customer: City of Bozeman By: Date: Contractor: DN Tanks LLC Date: By: Print Date: 02/05/2025 Customer: Submitted Amount: Authorized Representative: 17,500.0000 -19,164.42 Billing Group / Item Quantity UM Unit Price Revenue Cost Detail Description 99 90 Miscellaneous Work Item 203 LS Due Date: 2/5/2025 Omar Fojaco Gomez Docusign Envelope ID: 7C297BBF-5EAC-4CAB-BE68-C05E0CE8A0C8 345417 DEVELOPMENT AGREEMENT (7th and Aspen) This DEVELOPMENT AGREEMENT (this “Agreement”) is dated as of May 21, 2024, by and between BOUNDARY DEVELOPMENT, LLC (the “Developer”) and the CITY OF BOZEMAN, MONTANA, 121 N. Rouse Ave., Bozeman, Montana 59771 (the “City”). The Developer and the City are each individually referred to herein as a “Party” and collectively as the “Parties.” RECITALS: WHEREAS, under the provisions of Montana Code Annotated, Title 7, Chapter 15, Parts 42 and 43, as amended (the “Act”), the City is authorized to create urban renewal areas, prepare and adopt an urban renewal plan therefor and amendments thereto, undertake urban renewal projects therein, provide for the segregation and collection of tax increment with respect to property taxes collected in such areas, and apply tax increment revenues derived from projects undertaken within the urban renewal area to pay eligible costs; and WHEREAS, pursuant to the Act and Ordinance No. 1685 adopted by the City Commission of the City (the “City Commission”) on November 27, 2006, as amended by Ordinance No. 1925, adopted by the City Commission on December 16, 2015 (collectively, the “Ordinance”), the City has created the Bozeman Midtown Urban Renewal District (the “District”) as an urban renewal district and has approved the Bozeman Midtown Urban Renewal Plan (the “Plan”) as an urban renewal plan in accordance with the Act, which Plan provides for the segregation and collection of tax increment revenues with respect to the District; and WHEREAS, the Developer or affiliated entities, together with Midtown Aspen, LLC, owns certain property in the District, legally described on Exhibit B hereto (collectively, the “Land”), and together with Midtown Aspen, LLC and the Human Resource Development Council (“HRDC”), Developer proposes to undertake a project on the Land in two phases. Phase I is or will be owned by Midtown Aspen LLC, a Delaware limited liability company, or an affiliated entity, and consists of the design, engineering and construction of a four-story apartment building containing 46 residential rental units, 29 of which are expected to be affordable at 60% area median income (“AMI”) and 17 of which are expected to be affordable at 50% AMI, together with residential common space and related improvements (“Phase I of the Project”), which will be located on “Lot 4A”. Phase I of the Project will be financed in part with low income housing tax credits awarded or allocated to Midtown Aspen 4 LLLP, a Montana limited liability limited partnership, and Midtown Aspen 9 LLLP, a Montana limited liability limited partnership, who will each own condominium units comprised of the residential housing units upon which such tax credits were awarded or allocated. Phase I of the Project will be subject to a regulatory agreement or similar instrument restricting the use of Lot 4A to affordable housing meeting certain requirements, and will be owned and operated in partnership with HRDC; and WHEREAS, the second phase of the project is expected to consist of the design, engineering and construction of four-story apartment building containing 50 residential rental units, all of which are expected to be workforce housing affordable at 80% AMI, together with Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 68418 2 residential common areas and related improvements (“Phase II of the Project” and, collectively with Phase I of the Project, the “Project”), which will be located on “Lot 6A”. Phase II of the Project will be owned by Developer or an affiliated entity. The current budget for the Project is set forth on Exhibit A hereto; and WHEREAS, under the Act, permissible uses of tax increment and tax increment financing include the acquisition, construction and improvement of public improvements or infrastructure, with “infrastructure” defined to include “workforce housing;” and WHEREAS, although “workforce housing” is not defined in the Act, Section 90-6-143, Montana Code Annotated, defines “attainable workforce housing” as housing of a cost that a household earning between 60% and 140% of median household income would spend no more than 30% of gross monthly income to attain; and WHEREAS, the Developer has requested tax increment assistance with respect to certain eligible costs of the Project; and WHEREAS, pursuant to Resolution No. 5596 adopted on May 21, 2024, the City Commission approved the Project as an urban renewal project under the Plan and the Act and authorized the use of tax increment revenue of the District to reimburse the Developer for certain eligible costs of the Project described more particularly on Exhibit C hereto (the “Eligible Costs”) in the maximum amount of $3,024,061, subject to the terms and conditions of this Agreement; and WHEREAS, certain of the Eligible Costs are costs paid by the Developer in connection with the demolition of existing structures on the Land, together with the design, engineering and construction of infrastructure, including water, sewer, storm water, streets, sidewalks, curbs and gutters serving the entire Project and certain costs of the workforce housing to be provided by Phase II of the Project and related improvements (the “Infrastructure Improvements”), and certain of the Eligible Costs are costs to be paid by the Developer as fees or charges pertaining to the Project (the “Project Fees and Charges”); and WHEREAS, as a condition to the City’s reimbursing the Developer for Eligible Costs, the Developer will record the Restrictive Covenants (as hereinafter defined) against Lot 6A, which will require the long-term use of that property for workforce housing; and WHEREAS, the City Commission expects to reimburse the Developer for Eligible Costs solely out of Tax Increment, as further described herein; and WHEREAS, the Parties desire to enter into this Agreement which sets forth the obligations and commitments of the Parties with respect to the Project and the Eligible Costs. NOW, THEREFORE, the City and the Developer, pursuant to the Act, each in consideration of the representations, covenants and agreements of the other, as set forth herein, mutually represent, covenant and agree as follows: Section 1. Definitions; Rules of Interpretation; Exhibits. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 69419 3 1.1. Definitions. For all purposes of this Agreement, except as otherwise expressly provided or unless the context clearly requires otherwise, the following terms have the meanings assigned to them, respectively: “Act” means Montana Code Annotated, Title 7, Chapter 15, Parts 42 and 43, as amended or supplemented. “Agreement” means this Development Agreement, dated as of May 21, 2024, by and between the City and the Developer, as it may be amended or supplemented from time to time in accordance with the terms hereof. “City” means the City of Bozeman, Montana, or any successors to its functions under this Agreement. “City Commission” means the governing body of the City. “Developer” means Boundary Development, LLC, a Montana limited liability company, or affiliated entities, and its successors and assigns in accordance with and as permitted under this Agreement. “Developer Certificate” means the certificate attached hereto as Exhibit E. “District” means the Bozeman Midtown Urban Renewal District, an urban renewal district created by the Ordinance pursuant to the Act, as such may be enlarged or reduced from time to time in accordance with the Act. “DOR” means the State of Montana Department of Revenue. “Eligible Costs” means the costs identified as such on the attached Exhibit C. “Environmental Laws and Regulations” means and includes the Federal Comprehensive Environmental Compensation Response and Liability Act (“CERCLA” or the “Federal Superfund Act”) as amended by the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), 42 U.S.C. §§ 9601 et seq.; the Federal Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. §§ 6901 et seq.; the Clean Water Act, 33 U.S.C. § 1321 et seq.; and the Clean Air Act, 42 U.S.C. §§ 7401 et seq., all as the same may be from time to time amended, and any other federal, state, county, municipal, local or other statute, code, law, ordinance, regulation, requirement or rule which may relate to or deal with human health or the environment including without limitation all land use, zoning, and stormwater control regulations as well as all regulations promulgated by a regulatory body pursuant to any statute, code, law, ordinance, regulation, requirement or rule. “Fiscal Year” means the period commencing on the first day of July of any year and ending on the last day of June of the next calendar year, or any other twelve-month period authorized by law and specified by the Commission as the City’s fiscal year. “Indemnified Parties” has the meaning given to it in Section 7.1. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 70420 4 “Infrastructure Improvements” means the demolition of existing structures on the Land, together with the design, engineering and construction of infrastructure, including water, sewer, storm water, streets, sidewalks, curbs and gutters serving the entire Project and certain costs of the workforce housing, and related improvements. “Land” has the meaning given to it in the recitals. “Land Use Regulations” means all federal, state and local laws, rules, regulations, ordinances and plans relating to or governing the development or use of the Land or the Project. “Lot 4A” means that portion of the Land on which Phase I of the Project will be constructed. “Lot 6A” means that portion of the Land on which Phase II of the Project will be constructed. “Milestone” or “Milestones” has the meaning given in Section 3.4 hereof. “Milestone Date” or “Milestone Dates” has the meaning given in Section 3.4 hereof. “Ordinance” means Ordinance No. 1685 adopted by the City Commission on November 27, 2006, as amended by Ordinance No. 1925, adopted by the City Commission on December 16, 2015. “Original Resolution” means Resolution No. 5131, adopted by the City Commission on July 6, 2020, pursuant to which the City issued the Series 2020 Bonds. “Person” means any individual, corporation, limited liability company, partnership, limited liability partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. “Phase I of the Project” has the meaning given to it in the recitals. “Phase II of the Project” has the meaning given to it in the recitals. “Prevailing Wage Rates” means the Montana Prevailing Wage Rate for public works projects as published from time to time by and available from the Montana Department of Labor and Industry, Research and Analysis Bureau, P.O. Box 1728, Helena, Montana 59624, telephone number (800) 541-3904. “Project” means the facilities to be constructed by the Developer on the Land in accordance with this Agreement, as described more particularly in the recitals hereto. “Project Fees and Charges” means those fees and charges pertaining to the Project that form a part of the Eligible Costs, including cash in lieu of water rights and parkland and impact fees. “Restrictive Covenants” has the meaning given to it in Section 3.12 hereof. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 71421 5 “Series 2020 Bonds” means the Tax Increment Urban Renewal Revenue Bonds (Bozeman Midtown Urban Renewal District), Series 2020, issued in the principal amount of $6,500,000 pursuant to the Original Resolution. “State” means the State of Montana. “Tax Increment” means the amount received by the City pursuant to the Act from the extension of levies of Taxes (expressed in mills) against the incremental taxable value (as defined in the Act) of all Taxable Property, and shall include all payments in lieu of Taxes attributable to the incremental taxable value and all payments received by the City designated as replacement revenues for lost Tax Increment. “Taxable Property” means all real and personal property located in the District and subject to Taxes, including land, improvements and equipment. “Taxes” means all taxes levied on an ad valorem basis by any Taxing Body against the Taxable Property (exclusive of the six mill levy for university purposes levied by the State and any other mills that may hereafter be excluded from the calculation of increment by the Act), and shall include all payments in lieu of taxes received by the City with respect to Taxable Property. “Taxing Body” means the City; the County of Gallatin, Montana; High School District No. 7 (Bozeman), Gallatin County, Montana; Elementary School District No. 7 (Bozeman), Gallatin County, Montana; the State; and any other political subdivision or governmental unit that levies or may hereafter levy or cause to be levied Taxes against property within the District. “Unavoidable Delay” means a delay resulting from a cause over which the Party required to perform does not have control and which cannot or could not have been avoided by the exercise of reasonable care, including but not limited to, acts of God, accidents, war, civil unrest, embargoes, strikes, unavailability of raw materials or manufactured goods, litigation, pandemics, epidemics, labor shortages, unusual permitting delays, unusually inclement weather and the delays of the other Party or its contractors, agents or employees in the performance of their duties under or incident to this Agreement. “Workforce Housing Covenants” has the meaning given to it in Section 3.12 hereof. “Workforce Housing Units” has the meaning given to it in Section 3.12 hereof. 1.2. Rules of Interpretation. (a) The words “herein,” “hereof” and words of similar import, without reference to any particular section or subdivision, refer to this Agreement as a whole rather than to any of its particular sections or subdivisions. (b) References to any particular section or subdivision hereof are to the section or subdivision of this Agreement in its original signed form, unless otherwise indicated. (c) The word “or” is not exclusive but is intended to contemplate or encompass one, more or all of the alternatives conjoined. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 72422 6 1.3. Exhibits. The following Exhibits are attached to and by reference made a part of this Agreement: Exhibit A: Project Costs Exhibit B: Description of the Land Exhibit C: Eligible Costs Exhibit D: Milestones Exhibit E: Form of Developer Certificate and Request Exhibit F: Nondiscrimination and Equal Pay Affirmation Exhibit G: Form of Restrictive Covenants Section 2. Representations. 2.1. City Representations. The City hereby represents as follows: (a) Pursuant to the Act, and after a public hearing duly called and held, the City by the Ordinance has duly created the District. (b) Pursuant to the Original Resolution, the City has issued and there are outstanding the Series 2020 Bonds. In the Original Resolution, the City reserved the right to issue obligations having a lien on Tax Increment subordinate to the lien of the Series 2020 Bonds (“Subordinate Obligations”). Any obligation of the City to make payments under this Agreement constitutes a Subordinate Obligation under the Original Resolution, subordinate and junior in all respects to the repayment of the Series 2020 Bonds and the replenishment of the debt service reserve account for the Series 2020 Bonds, and subject to all other terms and conditions of the Original Resolution. (c) Pursuant to Resolution No. 5596 of the City Commission, the City Commission authorized the execution and delivery by the City of this Agreement and approved the use of Tax Increment, if available, to reimburse the Eligible Costs in a total amount not to exceed $3,024,061. (d) The City has found and determined that the Project is a means to provide safe, sanitary and healthful workforce housing, which constitutes a public purpose and a public use for which tax increment funds may be spent. 2.2. Developer Representations. The Developer hereby represents as follows: (a) The Developer is a Montana limited liability company, duly formed, validly existing, in good standing and duly qualified to do business in the State of Montana. The Developer has the power to enter into this Agreement and by all necessary corporate action has duly authorized the execution and delivery of this Agreement. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 73423 7 (b) The Developer or its affiliated entities have good marketable title to the Land, free and clear of all liens, encumbrances and defects except such as do not materially affect the value of the Land or materially interfere with the use made and proposed to be made of the Land by the Developer, or such liens and encumbrances that may otherwise be approved by the City in writing. The individual condominium units comprised of the residential housing units in Phase I of the Project are owned by Aspen 4 LLLP, a Montana limited liability limited partnership, and Midtown Aspen 9 LLLP, a Montana limited liability limited partnership, and such condominium units are free and clear of all liens, encumbrances and defects except such as do not materially affect the value of the Land or materially interfere with the use made and proposed to be made of the Land by the Developer, or such liens and encumbrances that may otherwise be approved by the City in writing. (c) The Developer has the financial capability or commitments to complete the Project. (d) The Developer is not aware of any facts the existence of which would cause the Developer to be in violation in any material respect of any Environmental Laws and Regulations applicable to the Project or the Infrastructure Improvements. The Developer has not received from any local, state or federal official any notice or communication indicating that the activities of the Developer have been, may be or will be in violation of any Environmental Laws and Regulations applicable to the Project or the Infrastructure Improvements. (e) Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions hereof is prohibited or limited by, conflicts with or results in a breach of the terms, conditions or provisions of the certificate of formation, partnership agreement or operating agreement of the Developer or any evidence of indebtedness, agreement or instrument of whatever nature to which the Developer is now a party or by which it is bound, or constitutes a default under any of the foregoing. (f) There is no action, suit, investigation or proceeding now pending or, to the knowledge of the Developer, threatened against or affecting the Developer or its business, operations, properties or condition (financial or otherwise) before or by any governmental department, commission, board, authority or agency, or any court, arbitrator, mediator or grand jury, that could, individually or in the aggregate, materially and adversely affect the ability of the Developer to complete the Project. (g) The Developer acknowledges and agrees that the sole source of funds for reimbursing the Developer under this Agreement is Tax Increment. The Developer further acknowledges and agrees the amount of Tax Increment in the District is dependent upon a number of variables, including, without limitation, the taxable value of the Project, the number of mills levied by Taxing Bodies, and then-prevailing state laws regarding computation of Tax Increment, and that the City has no control over such variables. In addition, if Tax Increment in the District decreases, the City may need to use Tax Increment to pay debt service on the Series 2020 Bonds or to replenish the debt service reserve account for the Series 2020 Bonds, and there may not be Tax Increment available to reimburse the Developer for Eligible Costs, despite the Developer having paid all property taxes then due with respect to the Project. The Developer Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 74424 8 agrees that if Tax Increment is not available to reimburse the Developer, the City shall have no obligation to pay to the Developer the amount of reimbursement described in Section 4. The Developer agrees that such event shall not constitute a default by the City hereunder. In such event, if the Developer has not received any reimbursement but has recorded the Restrictive Covenants described in Section 3.12, upon request of the Developer or subsequent owner of Phase II of the Project, the City agrees to cooperate with the Developer or subsequent owner of Phase II of the Project to remove the Restrictive Covenants from Lot 6A. Section 3. Developer Undertakings. 3.1. Construction and Maintenance of Project. The Developer hereby agrees and commits to the City that it will diligently prosecute to completion the construction of the Project in accordance with this Agreement, the site plan submitted to the City and all applicable federal, State and local laws, rules, regulations, ordinances and plans relating to or governing the development or use of the Project, including applicable Land Use Regulations and Environmental Laws and Regulations. The Developer agrees and commits to the City that construction of the Project shall be completed by July 1, 2027, subject to Unavoidable Delays. The total estimated costs of the Project are shown on Exhibit A hereto. The Developer has the financial capacity to complete the Project, and the Developer agrees to pay all costs thereof. If there is an increase in the costs of the Project from that shown on Exhibit A hereto that cannot be covered by the contingency amount, the Developer shall notify the City of the increase and submit additional evidence in a form acceptable to the City that the Developer has the financial capacity to cover such additional costs and complete the Project. At all times during the term of this Agreement, the Developer will operate and maintain, preserve and keep the Project or cause the Project to be operated, maintained, preserved and kept for the purposes for which it was constructed, and with the appurtenances and every part and parcel thereof, in good repair and condition. The Developer agrees to permit the City and any of its officers, employees or agents access to the Land for the purpose of inspection of all work being performed in connection with the Project; provided, however, that the City shall have no obligation to inspect such work. 3.2. Preparation, Review and Approval of Construction Plans. In connection with the Project, the Developer, at its sole expense, shall prepare and submit construction plans, drawings, and related documents for each portion of the Project to the appropriate City officials for architectural, engineering or land use review and written approval or permits. The Developer acknowledges that no review or approval by City officials hereunder may be in any way construed by the Developer to replace, override or be in lieu of any required review, inspection, or approval by the City Planning Division, or any other building construction official review or approvals required by any State laws or local ordinances or regulations. Nothing contained in this Agreement indicates or evidences that the City has approved or will approve the Project or any portion thereof. This Agreement does not affect or limit the City’s regulatory powers with regard to the Project, including, without limitation, those relating to building permits or other permits or the payment of fees. As further described in Section 7.1, the City shall have no liability and the Developer shall hold the City harmless with respect to any increases in costs of the Project related to or arising out of delays resulting from the City’s regulatory actions or approvals. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 75425 9 3.3. Construction of the Infrastructure Improvements. The Developer shall acquire, install, construct or otherwise provide the Infrastructure Improvements. The Developer acknowledges and agrees that the City is not responsible for acquiring, installing, constructing or otherwise providing the Infrastructure Improvements. The estimated costs of the Infrastructure Improvements, which form a part of the Eligible Costs, are shown on Exhibit C hereto. 3.4. Milestones of the Project. Certain steps in the development of the Project are listed on Exhibit D attached hereto (collectively, the “Milestones”; each a “Milestone”), together with the dates by which the Developer is obligated to complete the Milestones (collectively, the “Milestone Dates”; each as it relates to a particular Milestone, the “Milestone Date”). The Developer acknowledges and agrees that the City in reserving or offering to make available Tax Increment to pay or reimburse the Eligible Costs necessarily means that certain Tax Increment is not available to pay or reimburse other undertakings or costs for the benefit of the District and that the City reasonably expects additional Tax Increment as a result of completion of the Project. The Developer acknowledges and agrees that conditioning the availability of Tax Increment to pay or reimburse the Eligible Costs on completion or satisfaction of the Milestones by the corresponding Milestone Dates is reasonable. If the Developer is unable to complete or satisfy a Milestone by the corresponding Milestone Date, the Developer shall make a formal written request to the Director of Economic Development, with appropriate supporting material, to extend the Milestone Date and, as appropriate, subsequent Milestone Dates. The Director of Economic Development may, in his or her sole discretion, (i) determine whether such extension is appropriate and, if so, fix a new and superseding Milestone Date and also adjust other subsequent Milestone Dates, along with any other terms or conditions, or (ii) refer the request to the City Commission to either approve the extension and adjust other Milestone Dates, as appropriate, or, in its sole discretion, terminate this Agreement upon thirty (30) days prior written notice, in which case the City will have no obligation to reimburse the Developer hereunder. If this Agreement is terminated as described in this Section 3.4 and the Developer has not received any reimbursement but has recorded the Restrictive Covenants described in Section 3.12, upon request of the Developer or subsequent owner of Phase II of the Project, the City agrees to cooperate with the Developer or subsequent owner of Phase II of the Project to remove the Restrictive Covenants from Lot 6A. 3.5. Prevailing Wage Rates; Competitive Bidding. The Developer understands that the City is obligated to follow certain laws with respect to the expenditure of public funds, which includes Tax Increment. The Developer agrees to comply with laws that govern City contracting obligations, including public procurement laws relating to all of the Infrastructure Improvements, such as, without limitation, laws and rules regarding prevailing wage and solicitation of work on a competitive basis. Without limitation of the foregoing, the Developer agrees that in the awarding of contracts for the Infrastructure Improvements (i) it will, and it will cause its contractor to, publicly bid competitively contracts for each component of the Infrastructure Improvements, and (ii) through its contract with its contractor, it will, in addition to the requirements of Sections 3.9 and 3.10, require its contractor to, pay the Prevailing Wage Rates on such contracts related to the Infrastructure Improvements. The Developer will provide to the City all documentation requested to verify the compliance of the Developer and its contractor with the foregoing requirements. Failure of the Developer or its contractor to bid competitively contracts for each Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 76426 10 component of the Infrastructure Improvements or to require contracts entered into directly with contractors or sub-contractors to include provisions requiring the contractor or sub-contractor to pay the Prevailing Wage Rates on the work related to the Infrastructure Improvements will be considered a breach of this Agreement and the City will be entitled, at its discretion and without obligation, to exercise any and all measures to assure compliance and retroactive compensation plus interest to workers not paid in accordance with this Agreement, and recovery of any penalty or fine assessed by the State attributed to any failure to pay the Prevailing Wage Rates. Additionally, the Developer acknowledges that a violation of these requirements may, in the City’s sole discretion, cause the Infrastructure Improvements to be ineligible for the application of Tax Increment, in which case the City will have no obligation to reimburse or pay the Developer hereunder. 3.6. Utilities. The Developer shall not interfere with, or construct any improvements over, any public street or utility easement without the prior written approval of the City. All connections to public utility lines and facilities shall be subject to approval of the City and any private utility company involved. The Developer at its own expense shall replace any public facilities or utilities damaged during the Project by the Developer or its agents or by others acting on behalf of or under their direction or control of the Developer. 3.7. Permits and Compliance With Laws. The Developer will obtain, in a timely manner, all required permits, licenses and approvals, and will meet all requirements of all local, state and federal laws, rules and regulations which must be obtained or met in connection with the acquisition and construction of the Project, including the Infrastructure Improvements. Without limiting the foregoing, the Developer will request and seek to obtain from the City or other appropriate governmental authority all necessary land use, zoning, and building permits. The Developer will comply in all material respects with all Environmental Laws and Regulations applicable to the construction, acquisition, and operation of the Project, including the Infrastructure Improvements, will obtain any and all necessary environmental reviews, licenses or clearances under, and will comply in all material respects with, Environmental Laws and Regulations. In addition, the Developer shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances related to worker safety including but not limited to 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, and the Americans with Disabilities Act. 3.8. Easements. To the extent that the Infrastructure Improvements are to be located on the Land, the Developer hereby agrees to grant to the City and applicable utility companies from time to time such easements, rights-of-way and similar licenses in a form required by the City and as are reasonably necessary to permit the City to own, operate and maintain the Infrastructure Improvements. 3.9. Nondiscrimination and Equal Pay Affirmation. The Developer agrees to require its contractor(s) to be in compliance with the City’s Nondiscrimination and Equal Pay Affirmation attached hereto as Exhibit F, as well as Title 49, Montana Code Annotated, regarding activities related to the Project, including the Infrastructure Improvements. The Developer agrees that in its contracts with its contractors the Developer’s contractor will be required to require its subcontractors to comply with the City’s Nondiscrimination and Equal Pay Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 77427 11 Affirmation attached hereto as Exhibit F, as well as Title 49, Montana Code Annotated, regarding activities related to the Project. The Developer agrees to provide copies of all such contracts upon request by the City. 3.10. Worker’s Compensation Insurance. The Developer shall provide in its construction contracts related to the Project with all of its respective contractors that such contractors are to be covered by a Worker’s Compensation insurance program with the State, a private insurance carrier, or an approved self-insurance plan in accordance with State law. 3.11. Walkaway Provision. The Developer shall have the option, in its sole discretion and for any reason, to cease developing the Project and terminate this Agreement without penalty at any time prior to the Developer submitting any request for reimbursement or payment to the City (“walkaway provision”). If the Developer exercises this walkaway provision, this Agreement shall immediately terminate and all rights and obligations of the Parties under this Agreement shall cease, except for those rights and obligations specifically identified in this Agreement as surviving termination. If the Developer exercises this walkaway provision, the Developer automatically waives any and all rights to reimbursement or payment from the City under this Agreement. This walkaway provision shall not limit or prohibit any rights, claims, or recourse that the City may have in connection with the Project. The Parties expect that, if the Developer determines to exercise this walkaway provision, the Restrictive Covenants will not be recorded against Phase II of the Project or Lot 6A. If the Developer records the Restrictive Covenants and, at a later date, determines to exercise the walkaway provision, the City agrees to cooperate with the Developer to remove the Restrictive Covenants from Lot 6A. 3.12. Workforce Housing Covenants. The Developer agrees that, as a condition to receiving any reimbursement under this Agreement, the Developer will file a restrictive covenant on Lot 6A, providing that any residential housing units developed on Lot 6A (the “Workforce Housing Units”) will be restricted for a period not less than 50 years for use as workforce housing affordable to households with incomes equal to 80% area median income (“AMI”). As a condition to reimbursement hereunder, the Developer shall record the restrictive covenants, substantially in the form attached hereto as Exhibit G (the “Restrictive Covenants”) against Lot 6A. The Restrictive Covenants must (i) run with the land, (ii) bind, for a period not less than 50 years from the date of issuance of a certificate of occupancy with respect to Phase II of the Project, the Workforce Housing Units to be used as residential rental units affordable at 80% AMI, with rental prices tied to affordability at 80% AMI, and (iii) provide that a third-party or government entity with experience in managing affordable housing units must manage the rental of the Workforce Housing Units. In addition, the Restrictive Covenants will provide that the Workforce Housing Units are prohibited from being used, rented or made available as short term rentals, as that term is defined in the Bozeman Municipal Code. The affordability requirements in the Restrictive Covenants will be index-based, tied to AMI, and pursuant to the Restrictive Covenants, permissible rental prices of the Workforce Housing Units will be based on the most recent affordability data available through the Housing and Urban Development’s Housing Availability Data System or other similar affordability data that is available at the time of rental. The Developer’s covenants described in this Section 3.12 are referred to herein as the “Workforce Housing Covenants.” The Developer acknowledges and agrees that the Workforce Housing Covenants are fundamental to the City’s agreements hereunder. The Parties acknowledge that, as development proceeds at Lot 6A, it may be necessary or desirable to record Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 78428 12 other instruments to implement the Workforce Housing Covenants and provide for the affordability of the Workforce Housing Units, either in addition to or in replacement of the Restrictive Covenants to be recorded as a condition to reimbursement of the Developer under this Agreement, and the Parties agree to cooperate with respect to recording such other instruments if necessary or desirable. The Developer acknowledges that, as determined by the City, one-person household pricing relates to studios, two-person household pricing relates to one bedroom units, three-person household pricing relates to two bedroom units, and four-person household pricing relates to three bedroom units. Section 4. Housing Choice Vouchers and Phase I of the Project. Five of the residential units developed as Phase I of the Project must accept Housing Choice Vouchers (HCV) as a form of rental payment for those units targeting 50% AMI or below. In connection with the five units accepting HCV as a form of rental payment, the property owner with respect to Phase I of the Project must participate in the HCV program and comply with all program requirements, including but not limited to rent reasonableness standards. In the event that the rent charged to a tenant receiving HCV assistance exceeds the applicable payment standard established by the U.S. Department of Housing and Urban Development (HUD), the rent will be adjusted to the Fair Market Rents (FMRs) or payment standard set by HUD for tenants utilizing the HCV program. City Undertakings. Subject to satisfaction of all conditions in Section 5 below, and solely from Tax Increment, and subject to the prior lien of the Series 2020 Bonds and the debt service reserve account therefor, the City agrees to reimburse the Developer in an amount equal to the amount of the Eligible Costs (not to exceed $3,024,061). Section 5. Reimbursement for the Eligible Costs. Reimbursement of the Developer for Eligible Costs shall be subject to the following conditions and in accordance with the following procedures: 5.1. Conditions and Procedure. (a) The Developer shall complete or satisfy Milestones by the applicable Milestone Dates, as such dates may have been extended pursuant to Section 3.4 hereof. (b) Reimbursement by the City for costs of the Infrastructure Improvements must be based on paid invoices for costs incurred by the Developer, its contractors and subcontractors or utility companies, which the Developer must supply to the City. The City may reject, in its sole discretion, any invoice related to the Infrastructure Improvements. The City will notify the Developer of any rejected invoice and the reason it was rejected. (c) At the time of the Developer’s request for reimbursement (i) all of the Developer’s representations as set forth in Section 2.2 must be true and correct, (ii) the Developer must not be in breach of any covenant or undertaking set forth in Section 3, and (iii) there must be adequate Tax Increment on hand to satisfy all financial obligations related to the Series 2020 Bonds and the debt service reserve account for the Series 2020 Bonds such that Tax Increment is available to reimburse the Developer. (d) The Developer must provide evidence satisfactory to the City that the Restrictive Covenants have been recorded with the Gallatin County Clerk and Recorder’s Office with Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 79429 13 respect to Lot 6A and have not been modified, amended or rescinded other than with the prior written consent of the City. (e) The Developer must provide evidence satisfactory to the City that a regulatory agreement or similar instrument restricting the use of Lot 4A to affordable housing has been recorded with the Gallatin County Clerk and Recorder’s Office. (f) The Developer shall have been issued a certificate of occupancy for the Project. (g) When the above conditions have been met, the Developer shall submit to the Director of Economic Development a certificate substantially in the form attached hereto as Exhibit E, together with such supporting documentation as may be requested by the City. 5.2. Failure to Satisfy Conditions. If any of the conditions described in Section 5.1 are not satisfied in the determination of the City, the City shall have no obligation to reimburse the Developer, and the City’s determination to refrain from reimbursing, or its inability to reimburse, any of the Eligible Costs shall not be or result in a default of this Agreement. Section 6. Covenants to Pay Taxes. 6.1. Taxes. The Developer shall pay or cause to be paid when due and prior to the imposition of penalty all Taxes and all installments of any special assessments payable with respect to the Project and any improvements thereto or extension thereof. 6.2. Maintenance of Land and Project. The Developer, for itself and its successors and assigns, agrees to use its commercially reasonable best efforts to maintain and operate the Project so as to be able at all times to pay promptly and when due all property taxes levied with respect to the Project. 6.3. Injunction; Specific Performance. The Parties agree that, in the event of a breach of this Section 6 by the Developer or its successors or assigns, the City would suffer irreparable harm. Therefore, in the event the Developer or its successors or assigns fails to comply with the provisions of this Section 6, the Developer agrees that the City may pursue any remedy at law or in equity, including, without limitation, the remedies of injunction and specific performance. Section 7. Indemnification and Insurance. 7.1. Indemnification. The Developer releases the City and all City Commission members, board members, officers, agents, servants and employees of the City (the “Indemnified Parties”) from, and covenants and agrees that the Indemnified Parties shall not be liable for, and agrees to indemnify, defend and hold harmless the Indemnified Parties against, any loss, damage, cost (including reasonable attorneys’ fees), claim, demand, suit, action or other proceeding whatsoever (i) arising or purportedly arising out of, or resulting or purportedly resulting from, the acquisition and construction of the Project, including the Infrastructure Improvements, any violation by the Developer of any agreement, condition or covenant of this Agreement, the ownership, maintenance and operation of the Project, or the presence on any portion of the Land, of any dangerous, toxic or hazardous pollutants, contaminants, chemicals, waste, materials or Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 80430 14 substances; or (ii) which is proximately caused by the Developer or its officers, agents, contractors, consultants or employees. 7.2. Insurance. Developer shall keep and maintain the Project at all times insured against such risks and in such amounts, with such deductible provisions, as are customary in connection with facilities of the type and size comparable to the Project, and the Developer shall carry and maintain, or cause to be carried and maintained, and pay or cause to be paid timely the premiums for direct damage insurance covering all risks of loss, including, but not limited to, the following: 1. fire 2. extended coverage perils 3. vandalism and malicious mischief 4. boiler explosion (but only if steam boilers are present) 5. collapse on a replacement cost basis in an amount equivalent to the Full Insurable Value thereof. “Full Insurable Value” shall include the actual replacement cost of the Project, exclusive of foundations and footings, without deduction for architectural, engineering, legal or administrative fees or for depreciation. The policies required by this Section 7.2 shall be subject to a no coinsurance clause or contain an agreed amount clause, and must contain a deductibility provision not exceeding $100,000. Subject to the terms of any mortgage relating to the Project, policies of insurance required by this Section 7.2 shall insure and be payable to Developer and shall provide for release of insurance proceeds to Developer for restoration of loss. The City shall be furnished certificates showing the existence of such insurance. In case of loss, Developer is hereby authorized to adjust the loss and execute proof thereof in the name of all parties in interest. During construction of the Project, any and all of the foregoing insurance policies may be maintained by the Developer’s contractor; provided that once the Project is placed into service, Developer shall maintain all of the foregoing insurance policies. In addition to and independent of the above, the Developer shall at the Developer’s expense secure liability insurance through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana. The insurance shall not contain any exclusion for liabilities specifically assumed by the Developer in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City in relation to construction of the Project and the Infrastructure Improvements without limit and without regard to the cause therefore. The Developer must furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate The above amounts shall be exclusive of defense costs. The City, its officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non-contributory Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 81431 15 basis on the Commercial General Liability policy. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. The City must approve all insurance coverage and endorsements prior to the Developer commencing work on Project or Infrastructure Improvements. Developer must notify the City within two (2) business days of Developer’s receipt of notice that any required insurance coverage will be terminated or Developer’s decision to terminate any required insurance coverage for any reason. Section 8. General Provisions. 8.1. Conflicts of Interest; City’s Representatives Not Individually Liable. The Developer represents that it does not employ, retain, or contract with an officer or employee of the City and that no member, officer or employee of the City has a personal or financial interest, direct or indirect, in this Agreement or in the Project, or a financial interest in the Infrastructure Improvements. No member, officer or employee of the City shall be personally liable to Developer in the event of any default under or breach of this Agreement by the City, or for any amount that may become due to Developer for any obligation issued under or arising from the terms of this Agreement. 8.2. Rights Cumulative. The rights and remedies of the Parties of this Agreement, whether provided by law or by this Agreement, shall be cumulative, and the exercise by any Party hereto of any one or more of such remedies shall not preclude the exercise by such Party, at the same or different times, of any other remedy for the same default or breach or of any of its remedies for any other default or breach of the Party subject to the limitation of remedies provided herein. No waiver made by such Party with respect to the performance or the manner or time thereof, of any obligation under this Agreement, shall be considered a waiver with respect to the particular obligation of the other Party or a condition to its own obligation beyond those expressly waived in writing and to the extent thereof, or a waiver in any respect in regard to any other rights of the Party making the waiver of any obligations of the other Party. Delay by a Party hereto instituting or prosecuting any cause of action or claim hereunder shall not be deemed a waiver of any rights hereunder. 8.3. Term of Agreement. (a) This Agreement shall remain in effect until the earlier of (i) the date that is 10 days after the date the City reimburses the Developer in full hereunder, or (ii) the termination of this Agreement pursuant to Sections 5.2 or 3.11; provided that this Agreement may be earlier terminated by the City in its sole discretion at any time after failure by the Developer to complete or satisfy a Milestone by the applicable Milestone Payment Date (as such date may be extended as described in Section 3.4). (b) Notwithstanding the foregoing provisions of this Section 8.3, (i) Sections 6, 7, and 8 of this Agreement shall in all events survive the termination of this Agreement, and (ii) if the Developer is reimbursed under this Agreement, Section 3.12 shall survive the termination of this Agreement. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 82432 16 8.4. Limitation on City Liability. No agreements or provisions contained in this Agreement nor any agreement, covenant or undertaking by the City contained in any document in connection with the Project, including the Infrastructure Improvements, or the Eligible Costs shall give rise to any pecuniary liability of the City or a charge against its general credit or taxing powers, or shall obligate the City financially in any way except with respect to then-available Tax Increment. No failure of the City to comply with any term, condition, covenant or agreement herein shall subject the City to liability for any claim for damages, costs or other financial or pecuniary charge except to the extent that the same can be paid or recovered from then-available Tax Increment; and no execution on any claim, demand, cause of action or judgment shall be levied upon or collected from the general credit, general funds or taxing powers of the City (except as such constitute then-available Tax Increment). Nothing herein shall preclude a proper party in interest from seeking and obtaining specific performance against the City for any failure to comply with any term, condition, covenant or agreement herein; provided that no costs, expenses or other monetary relief shall be recoverable from the City except as may be payable from the Tax Increment. This Agreement shall not constitute or be construed to give rise to a debt of the City. 8.5. Assignment. This Agreement is unique among the City and the Developer and no Party may assign any rights or privileges, or delegate any duties or obligations under this Agreement, without first obtaining the written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing or any other provision herein, the Parties acknowledge and agree that the investor limited partner with respect to Phase I of the Project may require certain amendments or modifications to this Agreement, which may include the assignment by Developer of this Agreement to Midtown Aspen LLC, a Delaware limited liability company, or another affiliate of Developer in relation to the tax credit financing for Phase I of the Project. 8.6. Successors Bound By Agreement; No Third Party Beneficiary; No Property Interest. Subject to compliance with Section 8.5, this Agreement will inure to the benefit of and be binding upon the Parties to this Agreement and their respective successors in interest and permitted assignees. 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. This Agreement, by itself, does not create or give rise to a property interest in the Land or the Project. 8.7. Prior Agreements. This Agreement supersedes, merges and voids any and all prior discussions, negotiations, agreements and undertakings between the Parties with respect to the subject matter of this Agreement. The Parties waive and release each other from any claims, actions, or causes of action that relate in any manner to any prior discussions, negotiations, agreements and undertakings between the Parties with respect to the subject matter of this Agreement. 8.8. Entire Agreement. This Agreement, including any exhibits and attachments hereto, embodies the entire agreement and understanding of the Parties with respect to its subject matter. All Parties shall be prohibited from offering into evidence in any arbitration or civil action any terms, conditions, understandings, warranties, statements or representations, whether Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 83433 17 oral or written, with respect to the subject matter of this Agreement and that are not contained in this Agreement. 8.9. Amendments, Changes and Modifications. This Agreement may be amended and any of its terms may be modified only by written amendment authorized and signed by the Parties hereto. 8.10. Headings. The headings of articles and sections in this Agreement are inserted for convenience of reference only and do not limit or amplify the terms and provisions of the Agreement in any manner. The headings will be ignored and will not affect the construction of any provisions of this Agreement. 8.11. Notice. Any formal notice, demand or communication required or permitted by the terms of this Agreement to be given to the City or the Developer will be in writing and will be delivered to such Party either: (i) by personal hand-delivery; (ii) by depositing the same in the United States mail, certified mail with return receipt requested; (iii) by depositing the same with a nationally recognized overnight delivery service; or (iv) with respect to notice to the Developer, by email (in which case the notice shall be effective as of the date of confirmed delivery). Notice will be deemed complete upon receipt of the notice pursuant to any of the foregoing methods of notice. Notices and communications to the parties must be addressed to and delivered at the following addresses: If to City: City of Bozeman Attention: Bozeman City Manager 121 N. Rouse Ave. P.O. Box 1230 Bozeman, MT 59771 If to Developer: Boundary Development, LLC Attention: Joseph Walsh 233 E. Main Street, Suite 404 Bozeman, MT 59715 Email: joe@boundarydev.com The City and the Developer, by notice given hereunder, may designate different addresses to which subsequent notices, certificates or other communications should be sent. 8.12. Severability. If any provision of this Agreement is declared void or held invalid, such provision will be deemed severed from this Agreement and the remaining provisions of this Agreement will otherwise remain in full force and effect. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 84434 18 8.13. Duplicate Originals or Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. 8.14. Place of Performance. The place of performance of this Agreement will be in the City of Bozeman, Gallatin County, Montana. 8.15. Governing Law. This agreement and the legal relations between the Parties hereto will be governed by and construed in accordance with the laws of the State of Montana, without giving effect to any choice of law statutes, rules, or principles. 8.16. Dispute Resolution. (a) Any claim, controversy, or dispute between the Parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each Party duly authorized to execute settlement agreements. Upon mutual agreement of the Parties, the Parties may invite an independent, disinterested mediator acceptable to the Parties to assist in the negotiated settlement discussions. (b) If the Parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the applicable law and the provisions of this Agreement. 8.17. Further Assurances and Corrective Instruments. The Parties agree that they will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as may reasonably be required for correcting any inadequate or incorrect description of the Project, including the Infrastructure Improvements, or the Eligible Costs or for carrying out the expressed intention of this Agreement. 8.18. Reports/Accountability/Public Information. The Developer agrees to develop and/or provide documentation as requested by the City demonstrating the Developer’s compliance with the requirements of this Agreement. The Developer shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the monies reimbursed to the Developer pursuant to this Agreement were used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Developer shall not issue any statements, releases or information for public dissemination regarding this Agreement or the work contemplated hereunder without prior written approval of the City. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 85435 19 IN WITNESS WHEREOF, the Parties hereto have caused this Development Agreement to be executed as of the date first set forth above. CITY OF BOZEMAN, MONTANA By: _______________________________________ Printed Name: ______________________________ Title: City Manager [Signature Page to Development Agreement] Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 Chuck Winn 86436 20 BOUNDARY DEVELOPMENT, LLC, a Montana limited liability company By: Name: Joseph Walsh Title: Authorized Signatory [Signature Page to Development Agreement] Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 87437 A-1 EXHIBIT A PROJECT COSTS Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 88438 B-1 EXHIBIT B LEGAL DESCRIPTION OF THE LAND Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 89439 C-1 EXHIBIT C ELIGIBLE COSTS Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 90440 D-1 EXHIBIT D MILESTONES MILESTONE MILESTONE DATE PHASE I OF THE PROJECT: Site Plan Submittal to the City Complete Development Building Permit Submittal 7/1/2025 Start of Development Construction 12/31/2025 Completion of Development Construction (occupancy) 7/1/2027 PHASE II OF THE PROJECT: Site Plan Submittal to the City Complete Development Building Permit Submittal 7/1/2025 Start of Development Construction 12/31/2025 Completion of Development Construction (occupancy) 7/1/2027 Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 91441 E-1 EXHIBIT E FORM OF DEVELOPER CERTIFICATE AND REQUEST TO: City of Bozeman, Montana FROM: Boundary Development, LLC (the “Developer”) SUBJECT: Request for Reimbursement This Developer Certificate is delivered in accordance with the Development Agreement between the Developer and the City of Bozeman, Montana, dated as of May 21, 2024 (the “Development Agreement”). Capitalized terms used but not otherwise defined herein shall have the respective meanings given such terms in the Development Agreement. Pursuant to Section 5.1 of the Development Agreement, the undersigned hereby certifies on behalf of the Developer that: (a) the expenditures for which reimbursement is requested are listed in summary form in the attached schedule headed “Project Expenditures;” (b) invoices paid by the Developer corresponding to the expenditures set forth on the attached Project Expenditures Schedule are appended to the attached schedule headed “Project Invoices;” (c) the amounts for which reimbursement is requested have been paid by the Developer to the City for Project Fees and Charges or to contractors, subcontractors, materialmen, engineers, architects or other persons who or that have performed necessary or appropriate services or supplied necessary or appropriate materials for the acquisition, construction, renovation, equipping, and installation of the Infrastructure Improvements; (d) with respect to the Infrastructure Improvements, the contractor and subcontractors were solicited and retained competitively and all persons performing work on the Infrastructure Improvements were paid the Montana prevailing wage for such work; (e) the reimbursement of the amounts requested will not result in a breach of any of the covenants of the Developer contained in the Development Agreement; and (f) no litigation has been instituted or is threatened with regard to any amounts sought to be reimbursed, and binding and enforceable lien waivers have been obtained from all contractors, subcontractors, materialmen, and others with regard to all work related to any amounts for which reimbursement is requested. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 92442 E-2 Based on the attached invoices, the Developer hereby requests reimbursement for the Eligible Costs in the amount of $[_______].1 The Developer represents that all of the representations of the Developer in Section 2.2 of the Development Agreement are true and correct as of the date hereof and the Developer is not in default of the performance of any of its undertakings or obligations under Section 3 of the Development Agreement as of the date hereof. Dated: _____________, 20__ Boundary Development, LLC By: Authorized Developer Representative 1 Lesser of $3,024,061 or total cost. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 93443 F-1 EXHIBIT F Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 94444 G-1 EXHIBIT G [Form of Affordable Housing Restrictive Covenant and Agreement] Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 95445 Declaration of Restrictive Covenants 1 Original to: City of Bozeman Attn: City Clerk PO Box 1230 Bozeman, MT 59771-1230 DECLARATION OF RESTRICTIVE COVENANTS This Declaration is made this _____ day of ______________, 20__ by BOUNDARY DEVELOPMENT, LLC [address] (“Declarant”). RECITALS A. Declarant owns certain real property described as follows (the “Property”): [legal description] B. It is the intent of Declarant to meet the conditions of the Development Agreement (the “Agreement”), dated as of [________], by and between Declarant and the City of Bozeman, Montana (the “City”); and C. Declarant agrees that it receives a significant benefit from the Agreement; and D. To satisfy the requirements of the Agreement, Declarant desires to place covenants, conditions and restrictions upon the Property for the use and benefit of Declarant and the City. NOW, THEREFORE, Declarant hereby declares: 1. Provision of Income Restricted Housing. a. Declarant agrees that all of the residential rental units developed as part of Phase II of the Project (as defined in the Agreement) (the “Units”) will be restricted for a period not less than 50 years for use as housing affordable to households with incomes equal to 80% of the area Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 96446 Declaration of Restrictive Covenants 2 median income (“AMI”), as reported annually for single persons and households of various sizes by the United States Department of Housing and Urban Development, or by any successor United States Government department, agency, or instrumentality, for the Primary Metropolitan Statistical Area which includes the City. b. The sale and management of the Units shall be administered by a third-party or government entity with experience in managing affordable housing units, or other entity acceptable to the City. c. Throughout the term of this Declaration, the Units must be affordable to households with income no greater than 80% of the AMI. All rental prices for the Units must be based on the most recent affordability data available through the Housing and Urban Development’s Affordability Data System for the City or similar affordability data available at the time of rental. 2. Prohibition on Use as Short Term Rentals. The Units are prohibited from being used, rented, or made available as short term rentals, as the term is defined in the Bozeman Municipal Code. 3. Term. This Declaration shall remain in place and be enforceable for a term of 50 years from the date of the issuance of a certificate of occupancy with respect to the Units and shall inure to the benefit of Declarant, each owner of property, the City, and their respective legal representatives, heirs, successors, or assigns, subject to the right of amendment provided in this Article. 4. Amendment. This Declaration may not be amended without the prior written consent of the Bozeman City Commission. Any amendment shall become effective only upon the filing of such amendment in the records of the Clerk and Recorder of Gallatin County, Montana. 5. Enforcement. The Declarant, the City, or any owner of real property within the Property may take action to enforce the provisions of this Declaration. Enforcement may be by injunction, declaratory judgment, action for damages, or any other legal claims, all of which shall be cumulative and non-exclusive. The prevailing party in any action shall be entitled to recover, in addition to other damages, its reasonable litigation expenses, including attorney’s fees, as may be awarded in the judgment of the court. 6. Covenants to Run with the Land. The Declarant intends that the terms of this Declaration shall with the land and shall continue in effect with respect to the entire Property notwithstanding any partition or division of the Property. 7. Severability. Invalidation of any one of these covenants or restrictions by judgment or court order shall in no way affect any other provisions, which shall remain in full force and effect. 8. Choice of Law and Venue. This Declaration of Covenants, Conditions, and Restrictions shall be governed by the laws of Montana and venue shall be in Gallatin County, Montana. Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 97447 Declaration of Restrictive Covenants 3 IN WITNESS WHEREOF the DECLARANT has signed this instrument and arranged for its recordation in the real property records of Gallatin County, Montana. BOUNDARY DEVELOPMENT, LLC By:_______________________________________ Title:_____________________________________ STATE OF ____________ ) :ss COUNTY OF __________ ) This instrument was signed or acknowledged before me on _________________ by ___________, as ______________ of ____________________. ____________________________________ (NOTARIAL SEAL) Printed Name:________________________ Notary Public for the State of ___________ Residing at __________________________ My commission expires ________________ Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 98448 Declaration of Restrictive Covenants - 4 - Acknowledged by: CITY OF BOZEMAN ____________________________________ By: City Manager ATTEST: ________________________________ Mike Maas, City Clerk STATE OF MONTANA ) :ss COUNTY OF GALLATIN ) This instrument was signed or acknowleged before me on _______________ by ______________ and Mike Maas, acting in the capacities of City Manager and City Clerk, respectively, of the City of Bozeman, Montana. . ____________________________________ (NOTARIAL SEAL) Printed Name:________________________ Notary Public for the State of ___________ Residing at __________________________ My commission expires ________________ Docusign Envelope ID: 5750E4C4-B048-470D-8C4A-0526A434C460 99449