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HomeMy WebLinkAbout05-13-25 City Commission Agenda and Packet MaterialsA. Call to Order - 6:00 PM - Commission Room, City Hall, 121 North Rouse B. Pledge of Allegiance and a Moment of Silence or Mindfulness C. Changes to the Agenda D. Authorize Absence D.1 Authorize the Absence of Commissioner Jennifer Madgic.(Maas) E. FYI F. Commission Disclosures G. Consent THE CITY COMMISSION OF BOZEMAN, MONTANA REGULAR MEETING AGENDA Tuesday, May 13, 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 Consider the Motion: I move to authorize the absence of Commissioner Jennifer Madgic. 1 G.1 Accounts Payable Claims Review and Approval (Edwards) G.2 Authorize the City Manager to sign the Notice of Award and contract documents once received to MJD Contracting, LLC for the Bozeman WTP Interim Optimization Improvements Project(Nielsen) G.3 Authorize the City Manager to Sign a Notice of Award to Bergkamp Incorporated for a Purchase Agreement for a 2025 Spray Injection Pothole Truck and a 2025 Flameless Pothole Patch Truck(Workman) G.4 Authorize Mayor to Sign Employment Agreement with Chuck Winn for City Manager Appointment(Sullivan) G.5 Authorize the City Manager to Sign a Release of Temporary Construction Easement at 621 W. Mendenhall St(Fine) G.6 Authorize City Manager to Sign a Kenyon Site License Agreement between the City of Bozeman and Gallatin County(McMahan) G.7 Authorize the City Manager to Sign a Professional Services Agreement and Statement of Work with AVI Systems, Inc. for Audio Visual Consulting and Design Services(McMahan) G.8 Authorize the City Manager to Sign an Amendment One SkiData Inc. for the Bridger Garage Server Upgrade(Focken) G.9 Authorize the City Manager to Sign a Task Order 2 with Hydrosolutions Inc to Provide a Valuation Update for the City's Cash-in-Lieu of Water Rights(Heaston) G.10 Authorize the City Manager to Sign a Task Order Number 11 for the Right of Way Acquisition Project with Sanbell for Properties Necessary to Construct Fowler Avenue from Durston to Oak(Murray) G.11 A Resolution, Authorizing the City Manager to Sign Change Order 6 with Constructive Solutions, Inc. for the Downtown Alley Enhancement Pilot Project(Staley) G.12 A Resolution, Adopting the Bozeman Ethics Handbook, 5th Edition (Giuttari) H. Public Comment on Non-agenda Items Falling Within the Purview and Jurisdiction of the Commission I. Action Items 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 I.1 Approval of Bozeman Landmark Project Phase 1 Report, Application 22388 (George/Burke) J. Work Session J.1 Work Session on Tenant Right to Counsel Commission Priority (Winn/Sullivan/Saverud) K. FYI / Discussion L. Adjournment Consider the Motion: Having considered the Landmark Project Phase 1 Report, application 22388, all public comment, and information received, I move to approve the Phase 1 Report as submitted. 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:Authorize the Absence of Commissioner Jennifer Madgic. MEETING DATE:May 13, 2025 AGENDA ITEM TYPE:Administration RECOMMENDATION:Consider the Motion: I move to authorize the absence of Commissioner Jennifer Madgic. STRATEGIC PLAN:1.1 Outreach: Continue to strengthen and innovate in how we deliver information to the community and our partners. BACKGROUND:Commissioner Jennifer Madgic notified Mayor Cunningham of the intended absence. UNRESOLVED ISSUES:None. ALTERNATIVES:None. FISCAL EFFECTS:None. Report compiled on: May 6, 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:May 13, 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 May 14, 2025. 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:Griffin Nielsen, Project Engineer Shawn Kohtz, Director of Utilities SUBJECT:Authorize the City Manager to sign the Notice of Award and contract documents once received to MJD Contracting, LLC for the Bozeman WTP Interim Optimization Improvements Project MEETING DATE:May 13, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign the Notice of Award and contract documents once received to MJD Contracting, LLC for the Bozeman WTP Interim Optimization Improvements 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 the Notice of Award for the Interim Optimization Improvements Project. The project comprises four distinct bid packages for modifications at the Sourdough Water Treatment Plant (WTP). The bid packages are as follows, Package A Fluoride Containment Modifications, Package B Membrane Backwash Waste Recycle Interconnect, Package C Pretreatment Basin Improvements, and Package D Head Tower Recycle Flow Improvements. Packages B and D have been identified by the Residual Handling Study Project, CIP Project W112 and will improve the plant's operational efficiency and increase water conservation. Packages A and C have been identified through the WTP On-call Engineering support contract and will improvement maintenance operations through improved access. The project was advertised for bid on March 15th, 2025. The bid opening occurred on April 10th, 2025 with two bids received. The low bid was submitted by MJD Contracting, LCC. After review, MJD Contracting, LCC is recommended for award. Attached are the Notice of Award, Bid Tab, Contract Award Recommendation, and Contract Documents. To allow the project to be completed within the current budget the Notice of Award is limited to Packages B and D. Packages B and D are the priority improvements. Packages A and C will be rebid at a later date when budget allows. 6 UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the Commission FISCAL EFFECTS:The contract amount totals $130,000. With current and pending obligated fees for the project ($87,000) included the total project cost will be $217,000. This project has been identified in the City’s CIP as project No. W112 and has a total of $220,000 in funds budgeted with in FY25, as such adequate funding exists. Attachments: WTP Interim Opt Project_Notice of Award_MJD Contracting LLC.pdf WTP Interim Opt Project_Bid Tab.pdf WTP Interim Opt Project_Engineer's Recomendation of Award.pdf WTP Interim Opt Project_Contract Documents.pdf Report compiled on: April 30, 2025 7 Sourdough WTP Interim Optimization 00 51 01 - 1 Notice of Award Bozeman, MT NOTICE OF AWARD Date of Issuance: Project Number: Owner: City of Bozeman, MT W112 Engineer: Advanced Engineering and Environmental Services, LLC P05097-2024-008 Project: Bozeman Sourdough Water Treatment Plant Interim Optimization Contract Name: General Construction Bidder: MJD Contracting, LLC Bidder’s Address: 12 Ponderosa Rd | Clancy, MT 59634 You are notified that Owner has accepted your Bid dated April 10, 2025 for the above Contract, and that you are the Successful Bidder and are awarded a Contract for: Bid Package B: Membrane Backwash Recycle Improvements Bid Package D: Head Tower Recycle Flow Improvements The Contract Price of the awarded Contract is $130,000.00. Contract Price is subject to adjustment based on the provisions of the Contract, including but not limited to those governing changes, Unit Price Work, and Work performed on a cost-plus-fee basis, as applicable. One (1) unexecuted counterparts of the Agreement accompany this Notice of Award, and one copy of the Contract Documents accompanies this Notice of Award, or has been transmitted or made available to Bidder electronically. ☒ Drawings will be delivered separately from the other Contract Documents. You must comply with the following conditions precedent within 20 business days of the date of receipt of this Notice of Award: 1. Deliver to Owner one (1) counterpart of the Agreement, signed by Bidder (as Contractor). 2. Deliver with the signed Agreement(s) the Contract security (such as required performance and payment bonds) and insurance documentation, as specified in the Instructions to Bidders and in the General Conditions, Articles 2 and 6. Failure to comply with these conditions within the time specified will entitle Owner to consider you in default, annul this Notice of Award, and declare your Bid security forfeited. Within 15 business days after you comply with the above conditions, Owner will return to you one fully signed counterpart of the Agreement, together with any additional copies of the Contract Documents as indicated in Paragraph 2.02 of the General Conditions. Owner: City of Bozeman, Montana, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana | 121 N R ouse Avenue; Bozeman, Montana 59715 |Mailing address: PO Box 1230, Bozeman, MT 59771 By (signature): Name (printed): Chuck Winn Title: Interim City Manager Copy: Engineer 8 Name:Contractor #:Affirmation Form:Addendum 1 & 2 Acknowledged Non-Collusion Bid Bond:Base Bid Total: Western Municipal Construction 13329 Yes Yes Yes Yes $477,900.00 MJD Contracting, LLC 248582 Yes Yes Yes Yes $260,000.00 Mike Maas Griffin Nielsen City Clerk Water Resource Engineer WTP Interim Optimization These bids were opened and read before the undersigned at 2:30 pm on Thursday, April 10, 2025 Docusign Envelope ID: ED5D6485-F9CD-4683-96CE-E50F921E015E 9618 Bozeman Sourdough Water Treatment Plant Interim OptimizationCity of BozemanBozeman, MTAE2S Project No. P05097-2024-008Bid Opening Time 2:30 PM MDT Date Thursday, April 10, 2025ContractorAcknowledge Addenda 1-2Completed Bid FormBidder's Power of Attorney10% Bid BondSurety's Power of AttorneyNon-Discrimination AffirmationNon-Collusion AffidavitMT Contractor's License or commitment to obtainBozeman Business License or commitment to obtainSurety's Appointment from MT Commissioner of Securities & InsPackage ALump SumPackage BLump SumPackage CLump SumPackage DLump Sum Total Lump Sum Bid PricePackages A-D1MJD Contracting, LLCx x x x x x x x x x70,000.00$ 80,000.00$ 60,000.00$ 50,000.00$ 260,000.00$ 2Western Municipal, Inc.x x x x x x x x x x111,700.00$ 114,400.00$ 130,400.00$ 121,400.00$ 477,900.00$ Advanced Engineering and Environmental Services, LLC1288 North 14th Ave. Suite 103Bozeman, MT 59715Tel: 406-219-2633Brian J. Viall, PE Project Manager Docusign Envelope ID: ED5D6485-F9CD-4683-96CE-E50F921E015E 10619 April 30, 2025 City of Bozeman - Engineering Attn: Griffin Nielsen, PE Water Resources Engineer 20 E. Olive St. Bozeman, MT 59771 gnielsen@bozeman.net RE: Recommendation of Award for Bozeman Sourdough Water Treatment Plant Interim Optimization Dear Mr. Nielsen: Since Advertising the Bidding Documents on March 15, 2025 for the Bozeman Sourdough Water Treatment Plant Interim Optimization, AE2S has supported the City of Bozeman through our Bid Phase Services. Bids were opened on April 10, 2025 and this letter serves as a summary of our evaluation and recommendation for Award of the Contract. Summary of Bids Received: The City of Bozeman received two bids for the Project: one from Western Municipal Construction, Inc. and the other from MJD Contracting, LLC. A tabulation of these bids is enclosed with this letter and each Bidder’s Total Lump Sum Bid Price is listed below. BIDDER: TOTAL LUMP SUM BID PRICE Western Municipal, Inc. .......................................................... $477,900.00 MJD Contracting, LLC .............................................................. $260,000.00 MJD Contracting, LLC appears to have submitted the lowest bid based on the Total Lump Sum Bid Price. Bidder’s Responsiveness: The Bidder’s proposal was submitted in a sealed envelope addressed to the City of Bozeman, care of the City Clerk and included all of the following requirements: • Acknowledgement of Addendum 1 through 2 on both the envelope and the Bid Form. • Signed and Duly Executed Bid Form with evidence of Bidder’s authority to sign. • Bid Security in the form of a Bid Bond in the amount of 10%, along with the Surety’s Power of Attorney and supporting records. • Non-Discrimination and Equal Pay Affirmation. • Non-Collusion Affidavit. • Certificate of Contractor Registration (Registration Number 248582). • A written covenant to obtain a City of Bozeman Business License contingent upon Award of the Project. Based on this documentation, MJD Contracting, LLC’s proposal appears to be “responsive.” 11 https://ae2s.sharepoint.com/sites/BozemanSourdoughWTPInterimOptimization/Shared Documents/5.0 Bidding/5.6 Award/[1] Engineer's Recomendation of Award_Sourdough WTP Int Opt.docx Bidder’s Qualifications and Past Performance: The City’s Bidding Documents did not require submission of qualifications statements from the Bidders, their subcontractors, or suppliers. While we have limited direct experience with MJD Contracting, LLC, we noted that Marty Logan, the LLC’s Member who submitted and signed this Bid, served as the process piping foreman as a subcontractor to Strategic Construction Solutions during construction of the Belgrade Water Reclamation Facility Upgrade – for which we served as the Process Engineer of Record. From our experience, the individual demonstrated consistent adherence to project specifications, timely communication with project stakeholders, and coordination with inspection personnel. However, this prior experience pertains only to one individual, and the qualifications of the full project team that MJD Contracting, LLC intends to retain and assign to this project remain largely unknown to us. If the City wishes to perform additional reference checks on MJD Contracting, LLC’s qualifications or those of its subcontractors or suppliers, the City may do so under its rights in the Instructions to Bidders. We remain available to assist with this process upon request. Bid Irregularities: Our review did not identify irregularities in either Bidder’s proposals. Bid Prices in Relation to Engineer’s Opinion of Probable Costs: The Engineer’s Opinion of Probable Construction Costs (EOPCC) is summarized in Figure 1. The low bidder’s Total Lump Sum Bid Price falls near the upper end of the EOPCC range but remains within the industry-accepted variance of −10% to +20%, as defined by AACE International’s Cost Estimate Classification System for a Class 1 cost opinion. Considering ongoing market fluctuations, particularly those influenced by evolving tariff policies, bid prices at the higher end of this range are considered consistent with current conditions. While the bid prices for Bid Packages B and D marginally exceed the upper limit of their respective “buckets” in the EOPCC, it is important to note that the EOPCC was developed prior to issuance of Addendum 1. This addendum introduced additional scope — including an Air Relief Valve — and addressed inconsistencies related to pipe materials and connection details in Bid Package B. These changes were not reflected in the original EOPCC due to their timing but are believed to account for much of the observed variance. Figure 1: Summary of Engineer's Opinion of Probable Construction Costs Finally, it is noted that there is a significant variance between the two bids received — approximately 81% for Bid Packages B and D combined and nearly 84% between the Total Lump Sum Bid Prices. While such variability can sometimes indicate differing interpretations of the scope or project conditions, we are of the position that site conditions and facility constraints were made sufficiently clear in the Procurement Documents, at the site visit, in pre-bid conference minutes made available to bidders, and through Bidders’ access to Record Drawings directly distributed to Bidders. Additionally, following bid opening, EOPCC Bid Package A Bid Package B Bid Backage C Bid Pacakge D TotalInterior Improvements 40,600$ 28,600$ 29,940$ 31,700$ 130,840$ General Conditions 20,350$ 17,450$ 18,285$ 19,325$ 75,410$ Contingency 6,095$ 4,600$ 4,800$ 5,100$ 20,595$ Total Construction Cost 67,045$ 50,650$ 53,025$ 56,125$ 226,845$ AACE Estimate Class 1: -10% to +20% 204,161$ to 272,214$ 12 https://ae2s.sharepoint.com/sites/BozemanSourdoughWTPInterimOptimization/Shared Documents/5.0 Bidding/5.6 Award/[1] Engineer's Recomendation of Award_Sourdough WTP Int Opt.docx the low bidder verbally confirmed confidence in their submitted bid price in spite of the other bid price received. Recommendation of Award: We recommend the City of Bozeman consider awarding the Contract to MJD Contracting, LLC, contingent upon its satisfaction with the Bidder’s qualifications and references. Additionally, in consultation with the City of Bozeman with respect to its rights reserved in the Instructions to Bidders, we understand that the Bid Packages the City’s wants to prioritize with its available budget are Bid Packages B and D. Therefore, we recommend the City consider limiting the scope of this Award to the scope and contract price summarized below. Bid Package B: Membrane Backwash Recycle Improvements .............. $80,000.00 Bid Package D: Head Tower Recycle Flow Improvements ..................... $50,000.00 VALUE OF POTENTIAL CONTRACT .................................................. $130,000.00 This recommendation is based on our review of the submitted bids and the information available at the time of this assessment. The final decision regarding the contract’s award rests solely with the Owner. Should the Owner require additional assistance in evaluating the qualifications of the selected Bidder or clarifying their understanding of the Work, we remain available to provide support upon request. Sincerely, AE2S Brian Viall, PE Project Manager Encl.: Bid Tabulation for Bozeman Sourdough Water Treatment Plant Interim Optimization Bidders’ Original Proposals: (MJD Contracting, LLC) | (Western Municipal Construction, Inc.) 13 Name:Contractor #:Affirmation Form:Addendum 1 & 2 Acknowledged Non-Collusion Bid Bond:Base Bid Total: Western Municipal Construction 13329 Yes Yes Yes Yes $477,900.00 MJD Contracting, LLC 248582 Yes Yes Yes Yes $260,000.00 Mike Maas Griffin Nielsen City Clerk Water Resource Engineer WTP Interim Optimization These bids were opened and read before the undersigned at 2:30 pm on Thursday, April 10, 2025 Docusign Envelope ID: ED5D6485-F9CD-4683-96CE-E50F921E015E 14 Bozeman Sourdough Water Treatment Plant Interim OptimizationCity of BozemanBozeman, MTAE2S Project No. P05097-2024-008Bid Opening Time 2:30 PM MDT Date Thursday, April 10, 2025ContractorAcknowledge Addenda 1-2Completed Bid FormBidder's Power of Attorney10% Bid BondSurety's Power of AttorneyNon-Discrimination AffirmationNon-Collusion AffidavitMT Contractor's License or commitment to obtainBozeman Business License or commitment to obtainSurety's Appointment from MT Commissioner of Securities & InsPackage ALump SumPackage BLump SumPackage CLump SumPackage DLump Sum Total Lump Sum Bid PricePackages A-D1MJD Contracting, LLCx x x x x x x x x x70,000.00$ 80,000.00$ 60,000.00$ 50,000.00$ 260,000.00$ 2Western Municipal, Inc.x x x x x x x x x x111,700.00$ 114,400.00$ 130,400.00$ 121,400.00$ 477,900.00$ Advanced Engineering and Environmental Services, LLC1288 North 14th Ave. Suite 103Bozeman, MT 59715Tel: 406-219-2633Brian J. Viall, PE Project Manager Docusign Envelope ID: ED5D6485-F9CD-4683-96CE-E50F921E015E 15 Advanced Engineering and Environmental Services, LLC 1288 N 14th Ave, Unit 103, Bozeman, MT 59715 Ph: 406-219-2633 Web: www.AE2S.com Bozeman Sourdough Water Treatment Plant Interim Optimization OWNER: City of Bozeman, MT CONTRACTOR: MJD Contracting, LLC PROEJCT NUMBERS: City of Bozeman: W112 MJD Contracting: 25008 AE2S Project No. P05097-2024-008 Contract Documents 16 This page intentionally left blank. 17 Sourdough WTP Interim Optimization 00 01 11 - 1 Table of Contents for Bozeman, Montana Contract Documents TABLE OF CONTENTS SECTION NO. TITLE CONTRACT DOCUMENTS 00 01 01 TITLE PAGE 00 01 11 TABLE OF CONTENTS 00 51 01 NOTICE OF AWARD 00 51 02 1% GRW – CONTRACT AWARD REGISTRATION FORM CGR-1 00 52 13 AGREEMENT FORM 00 52 13.1 MJD CONTRACTING, LLC – AUTHORITY TO SIGN 00 55 03 NOTICE TO PROCEED 00 55 14.1 AFFIDAVIT OF PUBLICATION – AD FOR BIDS 00 55 14.2 AFFIDAVIT OF PUBLICATION – AMENDMENT 2 00 61 13.13 PERFORMANCE BOND 00 61 13.16 PAYMENT BOND 00 62 16 CERTIFICATE OF INSURANCE 00 72 00 GENERAL CONDITIONS 00 73 00 SUPPLEMENTARY CONDITIONS 00 73 00.29 CITY OF BOZEMAN DISCHARGE PERMIT 0030155 00 73 14 NON-DISCRIMINATION AND EQUAL PAY AFFIRMATION 00 73 44 MONTANA PREVAILING WAGE RATE DETERMINATION 00 73 73 WATER TREATMENT PLANT CONTRACTOR ORIENTATION CHECKLIST 00 73 74 WATER TREATMENT PLANT CHEMICAL SAFETY POLICY FOR CONTRACTORS 00 73 75 WATER TREATMENT PLANT CONFINED SPACE PROGRAM 00 73 92 CONTRACTOR’S REGISTRATION CERTIFICATE 00 73 93 CONTRACTOR’S CITY OF BOZEMAN BUSINESS LICENSE 00 91 13.1 ADDENDUM 1 00 91 13.2 ADDENDUM 2 END OF TABLE OF CONTENTS 18 This page intentionally left blank. 19 Sourdough WTP Interim Optimization 00 51 01 - 1 Notice of Award Bozeman, MT NOTICE OF AWARD Date of Issuance: Project Number: Owner: City of Bozeman, MT W112 Engineer: Advanced Engineering and Environmental Services, LLC P05097-2024-008 Project: Bozeman Sourdough Water Treatment Plant Interim Optimization Contract Name: General Construction Bidder: MJD Contracting, LLC Bidder’s Address: 12 Ponderosa Rd | Clancy, MT 59634 You are notified that Owner has accepted your Bid dated April 10, 2025 for the above Contract, and that you are the Successful Bidder and are awarded a Contract for: Bid Package B: Membrane Backwash Recycle Improvements Bid Package D: Head Tower Recycle Flow Improvements The Contract Price of the awarded Contract is $130,000.00. Contract Price is subject to adjustment based on the provisions of the Contract, including but not limited to those governing changes, Unit Price Work, and Work performed on a cost-plus-fee basis, as applicable. One (1) unexecuted counterparts of the Agreement accompany this Notice of Award, and one copy of the Contract Documents accompanies this Notice of Award, or has been transmitted or made available to Bidder electronically. ☒ Drawings will be delivered separately from the other Contract Documents. You must comply with the following conditions precedent within 20 business days of the date of receipt of this Notice of Award: 1. Deliver to Owner one (1) counterpart of the Agreement, signed by Bidder (as Contractor). 2. Deliver with the signed Agreement(s) the Contract security (such as required performance and payment bonds) and insurance documentation, as specified in the Instructions to Bidders and in the General Conditions, Articles 2 and 6. Failure to comply with these conditions within the time specified will entitle Owner to consider you in default, annul this Notice of Award, and declare your Bid security forfeited. Within 15 business days after you comply with the above conditions, Owner will return to you one fully signed counterpart of the Agreement, together with any additional copies of the Contract Documents as indicated in Paragraph 2.02 of the General Conditions. Owner: City of Bozeman, Montana, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana | 121 N R ouse Avenue; Bozeman, Montana 59715 |Mailing address: PO Box 1230, Bozeman, MT 59771 By (signature): Name (printed): Chuck Winn Title: Interim City Manager Copy: Engineer 20 This page intentionally left blank. 21 MONTANA CGR-1 Rev 01-101% Contractor’s Gross Receipts Contract Award Registration Form CGR-1 is required to be completed and mailed to the Department of Revenue within 10 days after a contract or bid is officially awarded. 1.Contract awarded by: Enter the federal employer identification number, business name and address. Place an “X” in the “Government Entity” box if you are registering this contract between a government entity and a prime contractor. Place an “X” in the “Prime Contractor” box if you are registering this contract between a prime contractor and a subcontractor. Government Entity q Prime Contractor q Federal Identification Number (FEIN) Name Address City State Zip Code 2.Contract awarded to: Enter the federal employer identification number, business name and address. Place an “X” in the “Prime Contractor” box if you are registering this contract between a government entity and a prime contractor. Place an “X” in the “Subcontractor” box if you are registering this contract between a prime contractor and a subcontractor. Prime Contractor q Subcontractor q Federal Identification Number (FEIN) Name Address City State Zip Code 3. Enter the Government Issued Purchase Order Number here. .......................................3. 4. Enter the contract award date here. ...............................................................................4. _____/_____/20___ 5. Enter the estimated construction completion date here. ................................................5. _____/_____/20___ 6. Enter the total dollar amount of the contract here. .........................................................6. $ 7. Enter a description of the work that will be performed under this contract. 8. Enter the location in Montana where this work will be performed. Be specific with your description. Contract award registration submitted by: Select the appropriate box identifying which entity is completing this return, sign this return and enter the information requested below. Government Entity q Prime Contractor q Subcontractor q Preparer’s Signature Preparer’s Title Date Telephone Number Fax Number Please mail this registration to: Department of Revenue, P.O. Box 5835, Helena, MT 59604-5835 22 23 Sourdough WTP Interim Optimization 00 52 13 - 1 Agreement Between Bozeman, Montana Owner & Contractor SECTION 00 52 13 – AGREEMENT FORM AGREEMENT BETWEEN OWNER AND CONTRACTOR FOR CONSTRUCTION CONTRACT (STIPULATED PRICE) THIS AGREEMENT is 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, located at 121 North Rouse Avenue, Bozeman, Montana 59715, with a mailing address of PO Box 1230, Bozeman, Montana 59771 (“Owner”) and MJD Contracting, LLC (“Contractor”). Owner and Contractor hereby agree as follows: ARTICLE 1 – WORK 1.01 Contractor shall complete all Work as specified or indicated in the Contract Documents. The Work is generally described as follows: The Project includes furnishing all labor, skill, equipment, and construction materials to improve safety, accessibility, operational efficiency, and process functionality at the Bozeman Water Treatment Plant (WTP). The scope includes: 1. BID PACKAGE B: Membrane Backwash Recycle Improvements: Installing cross-connection process piping and valves to redirect backwash waste directly to the recycle lift station, bypassing the DAFT feed wet well. Work is defined in the Construction Drawings and Specifications. 2. BID PACKAGE D: Headtower Recycle Flow Improvements: Improve discharge piping at the headtower to better integrate recycle flows with raw water streams, to improve reuse water capture and treatment. Work is defined in the Construction Drawings and Specifications. ARTICLE 2 – THE PROJECT 2.01 The Project, of which the Work under the Contract Documents is a part, is generally referenced as follows: BOZEMAN SOURDOUGH WATER TREATMENT PLANT INTERIM OPTIMIZATION OWNER’S PROJECT NUMBER: W112 CITY OF BOZEMAN, MONTANA 24 Sourdough WTP Interim Optimization 00 52 13 - 2 Agreement Between Bozeman, Montana Owner & Contractor ARTICLE 3 – ENGINEER 3.01 The Project has been designed by Advanced Engineering & Environmental Services, LLC. 3.02 The Owner has retained Advanced Engineering & Environmental Services, LLC (“Engineer”) to act as Owner’s representative, assume all duties and responsibilities, and have the rights and authority assigned to Engineer in the Contract Documents in connection with the completion of the Work in accordance with the Contract Documents. ARTICLE 4 – CONTRACT TIMES 4.01 Time of the Essence A. All time limits for Milestones, if any, Substantial Completion, and completion and readiness for final payment as stated in the Contract Documents are of the essence of the Contract. 4.02 Contract Times: Dates A. The Work will be substantially completed on or before January 30, 2026, and completed and ready for final payment in accordance with Paragraph 15.06 of the General Conditions on or before February 26, 2026. 4.03 Liquidated Damages A. Contractor and Owner recognize that time is of the essence as stated in Paragraph 4.01 above and that Owner will suffer financial and other losses if the Work is not completed and Milestones are not achieved within the times specified in Paragraph 4.02 above, plus any extensions thereof allowed in accordance with the Contract. The parties also recognize the delays, expense, and difficulties involved in proving in a legal proceeding the actual loss suffered by Owner if the Work is not completed on time. Accordingly, instead of requiring any such proof, Owner and Contractor agree that as liquidated damages for delay (but not as a penalty): 1. Substantial Completion: Contractor shall pay Owner $__500.00__ for each day that expires after the time (as duly adjusted pursuant to the Contract) specified in Paragraph 4.02.A above for Substantial Completion until the Work is substantially complete. 2. Completion of Remaining Work: After Substantial Completion, if Contractor shall neglect, refuse, or fail to complete the remaining Work within the Contract Time (as duly adjusted pursuant to the Contract) for completion and readiness for final payment, Contractor shall pay Owner $_250.00_ for each day that expires after such time until the Work is completed and ready for final payment. 3. Liquidated damages for failing to timely attain Substantial Completion and final completion are not additive and will not be imposed concurrently. ARTICLE 5 – CONTRACT PRICE 5.01 Owner shall pay Contractor for completion of the Work in accordance with the Contract Documents the amounts that follow, subject to adjustment under the Contract: A. For all Work other than Unit Price Work, a lump sum of: $130,000.00 (one hundred thirty thousand dollars and zero cents). All specific cash allowances are included in the above price in accordance with Paragraph 13.02 of the General Conditions. 25 Sourdough WTP Interim Optimization 00 52 13 - 3 Agreement Between Bozeman, Montana Owner & Contractor ARTICLE 6 – PAYMENT PROCEDURES 6.01 Submittal and Processing of Payments A. Contractor shall submit Applications for Payment in accordance with Article 15 of the General Conditions. Applications for Payment will be processed by Engineer as provided in the General Conditions. 6.02 Progress Payments; Retainage A. Owner shall make progress payments on account of the Contract Price on the basis of Contractor’s Applications for Payment during performance of the Work as provided in Paragraph 6.02.A.1 below, provided that such Applications for Payment have been submitted in a timely manner and otherwise meet the requirements of the Contract. All such payments will be measured by the Schedule of Values established as provided in the General Conditions (and in the case of Unit Price Work based on the number of units completed) or, in the event there is no Schedule of Values, as provided elsewhere in the Contract. 1. Prior to Substantial Completion, progress payments will be made in an amount equal to the percentage indicated below but, in each case, less the aggregate of payments previously made and less such amounts as Owner may withhold, including but not limited to liquidated damages, in accordance with the Contract a. 95% of Work completed (with the balance being retainage). b. 95% of cost of materials and equipment not incorporated in the Work (with the balance being retainage). 2. Pursuant to Section 15-50-206(2)(3), MCA, the Owner is required to withhold one percent (1%) of all payments due the Contractor and is required to transmit such moneys to the Montana Department of Revenue as part of the public contractor’s license fee. In like fashion, the contractor is required to withhold one percent (1%) from payments to subcontractors. 3. Upon Substantial Completion and at the Owner’s discretion, the amount of retainage may be further reduced if requested by the Contractor. 6.03 Final Payment A. Upon final completion and acceptance of the Work in accordance with Paragraph 15.06 of the General Conditions, Owner shall pay the remainder of the Contract Price as recommended by Engineer as provided in said Paragraph 15.06. ARTICLE 7 – INTEREST 7.01 All amounts not paid when due shall bear interest at the maximum rate allowed by law at the place of the Project. ARTICLE 8 – CONTRACTOR’S REPRESENTATIONS 8.01 In order to induce Owner to enter into this Contract, Contractor makes the following representations: A. Contractor has examined and carefully studied the Contract Documents, and any data and reference items identified in the Contract Documents. 26 Sourdough WTP Interim Optimization 00 52 13 - 4 Agreement Between Bozeman, Montana Owner & Contractor B. Contractor has visited the Site, conducted a thorough, alert visual examination of the Site and adjacent areas, and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work. C. Contractor is familiar with all Laws and Regulations that may affect cost, progress, and performance of the Work. D. Contractor has carefully studied (if provided in the Supplementary Conditions) all: (1) reports of explorations and tests of subsurface conditions at or adjacent to the Site and all drawings of physical conditions relating to existing surface or subsurface structures at the Site that have been identified in the Supplementary Conditions, especially with respect to Technical Data in such reports and drawings, and (2) reports and drawings relating to Hazardous Environmental Conditions, if any, at or adjacent to the Site that have been identified in the Supplementary Conditions, especially with respect to Technical Data in such reports and drawings. E. Contractor has considered the information known to Contractor itself; information commonly known to contractors doing business in the locality of the Site; information and observations obtained from visits to the Site; the Contract Documents; and the Site-related reports and drawings identified in the Contract Documents, with respect to the effect of such information, observations, and documents on (1) the cost, progress, and performance of the Work; (2) the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor; and (3) Contractor’s safety precautions and programs. F. Based on the information and observations referred to in the preceding paragraph, Contractor agrees that no further examinations, investigations, explorations, tests, studies, or data are necessary for the performance of the Work at the Contract Price, within the Contract Times, and in accordance with the other terms and conditions of the Contract. G. Contractor is aware of the general nature of work to be performed by Owner and others at the Site that relates to the Work as indicated in the Contract Documents. H. Contractor has given Engineer written notice of all conflicts, errors, ambiguities, or discrepancies that Contractor has discovered in the Contract Documents, and the written resolution thereof by Engineer is acceptable to Contractor. I. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. J. Contractor’s entry into this Contract constitutes an incontrovertible representation by Contractor that without exception all prices in the Agreement are premised upon performing and furnishing the Work required by the Contract Documents. K. Contractor’s price for the Work is based on materials and equipment complying fully with the plans and specifications and, in the event Contractor named bid materials or equipment which does not conform, Contractor will furnish materials and equipment which fully conforms at no change in price. L. Contractor has read the complete Contract Documents referenced below, all of which contain provisions applicable not only to the Contractor, but also to its subcontractors. M. Contractor has examined documents and conditions at existing site carefully. Contractor will not be awarded payment for conditions which could have been determined by examining documents and existing conditions. 27 Sourdough WTP Interim Optimization 00 52 13 - 5 Agreement Between Bozeman, Montana Owner & Contractor ARTICLE 9 – CONTRACT DOCUMENTS 9.01 Contents A. The Contract Documents consist of the following: 1. This Agreement (pages 1 to 7, inclusive). 2. Performance bond (pages 1 to 4, inclusive). 3. Payment bond (pages 1 to 4, inclusive). 4. General Conditions (pages 1 to 70, inclusive). 5. Supplementary Conditions (pages 1 to 17, inclusive). 6. Specifications (not attached but incorporated herein by reference) as listed in Section 00 01 10 – TABLE OF CONTENTS of the Bozeman Sourdough Water Treatment Plant Interim Optimization Project Manual. 7. Drawings (not attached but incorporated herein by reference) as listed on Project Drawing Sheet GEN G002 – “SHEET INDEX” – of the Bozeman Sourdough Water Treatment Plant Interim Optimization Project Drawings. 8. Addenda (numbers 1 to 2, inclusive). 9. Exhibits to this Agreement (enumerated as follows): a. 00 73 14 – Non-Discrimination and Equal Pay Affirmation. b. 00 73 44 – Montana Prevailing Wage Rate Determination c. 00 73 73 – Water Treatment Plant Contractor Orientation Checklist d. 00 73 74 – Water Treatment Plant Chemical Safety Policy for Contractors e. 00 73 75 – Water Treatment Plant Confined Space Program 10. The following which may be delivered or issued on or after the Effective Date of the Contract and are not attached hereto: a. Notice to Proceed. b. Work Change Directives. c. Change Orders. d. Field Orders. B. The documents listed in Paragraph 9.01.A are attached to this Agreement (except as expressly noted otherwise above). C. There are no Contract Documents other than those listed above in this Article 9. D. The Contract Documents may only be amended, modified, or supplemented as provided in the General Conditions. ARTICLE 10 – MISCELLANEOUS 10.01 Terms A. Terms used in this Agreement will have the meanings stated in the General Conditions and the Supplementary Conditions. 28 Sourdough WTP Interim Optimization 00 52 13 - 6 Agreement Between Bozeman, Montana Owner & Contractor 10.02 Assignment of Contract A. Unless expressly agreed to elsewhere in the Contract, no assignment by a party hereto of any rights under or interests in the Contract will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, money that may become due and money that is due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 10.03 Successors and Assigns A. Owner and Contractor each binds itself, its successors, assigns, and legal representatives to the other party hereto, its successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents. 10.04 Severability A. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Owner and Contractor, who agree that the Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 10.05 Contractor’s Certifications A. Contractor certifies that it has not engaged in corrupt, fraudulent, collusive, or coercive practices in competing for or in executing the Contract. For the purposes of this Paragraph 10.05: 1. “corrupt practice” means the offering, giving, receiving, or soliciting of anything of value likely to influence the action of a public official in the bidding process or in the Contract execution; 2. “fraudulent practice” means an intentional misrepresentation of facts made (a) to influence the bidding process or the execution of the Contract to the detriment of Owner, (b) to establish Bid or Contract prices at artificial non-competitive levels, or (c) to deprive Owner of the benefits of free and open competition; 3. “collusive practice” means a scheme or arrangement between two or more Bidders, with or without the knowledge of Owner, a purpose of which is to establish Bid prices at artificial, non-competitive levels; and 4. “coercive practice” means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the bidding process or affect the execution of the Contract. 29 Sourdough WTP Interim Optimization 00 52 13 - 7 Agreement Between Bozeman, Montana Owner & Contractor IN WITNESS WHEREOF, Owner and Contractor have signed this Agreement. This Agreement will be effective on __________ (which is the Effective Date of the Contract). OWNER: CONTRACTOR: City of Bozeman, MT By: By: Title: Interim City Manager Title: (If Contractor is a corporation, a partnership, or a joint venture, attach evidence of authority to sign.) Attest: Attest: Title: Title: Address for giving notices: Address for giving notices: Marty Logan 12 Ponderosa Rd Clancy, MT 59634 License No.: 248587 (where applicable) (If Owner is a corporation, attach evidence of authority to sign. If Owner is a public body, attach evidence of authority to sign and resolution or other documents authorizing execution of this Agreement.) NOTE TO USER: Use in those states or other jurisdictions where applicable or required. 30 This page intentionally left blank. 31 32 This page intentionally left blank. 33 Sourdough WTP Interim Optimization 00 55 03 - 1 Notice to Proceed Bozeman, Montana SECTION 00 55 03 - NOTICE TO PROCEED Project Numbers: Owner: City of Bozeman, MT W112 Engineer: Advanced Engineering and Environmental Services, LLC P05097-2024-008 Contractor: MJD Contracting, LLC Project: Bozeman Sourdough Water Treatment Plant Interim Optimization Contract Name: General Construction Effective Date of Contract: Owner hereby notifies Contractor that the Contract Times under the above Contract will commence to run on _____________________ pursuant to Paragraph 4.01 of the General Conditions. On that date, Contractor shall start performing its obligations under the Contract Documents. No Work will be done at the Site prior to such date. In accordance with the Agreement: The date by which Substantial Completion must be achieved is January 30, 2026, and the date by which readiness for final payment must be achieved is February 26, 2026. Before starting any Work at the Site, Contractor must comply with the following: • Complete Contractor Orientation Checklist with City of Bozeman Sourdough Water Treatment Plant Superintendent. • Submit Schedule of Submittals for Engineer’s Review • Submit Schedule of Values for Engineer’s Review • Submit Initial Construction Schedule for Engineer’s Review Owner: City of Bozeman, Montana, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana | 121 N R ouse Avenue; Bozeman, Montana 59715 |Mailing address: PO Box 1230, Bozeman, MT 59771 By (signature): Name (printed): Chuck Winn Title: Interim City Manager Date Issued: Copy: Engineer 34 This page intentionally left blank. 35 AD# 617271 Discount: $0.00 Surcharge: $0.00 Credits: $0.00 We Appreciate Your Business! Gross:$260.00 Paid Amount:$0.00 Amount Due:$260.00 Payments: Date Method Card Type Last 4 Digits Check Amount PO Box 11902820 W College, 59718, Bozeman,MT 59771Ph. (541) 331-6473 Fax: (907) 452-5054 ADVERTISING PROOF City of Bozeman_Mike Maas PO BOX 1230 BOZEMAN, MT 59771-1230 BILLING DATE: ACCOUNT NO: 03/13/25 27944 AD #DESCRIPTION START STOP TIMES AMOUNT 03/15/25 03/22/25 4 $260.00BIDS -SOURDOUGH WTP 617271 ADVERTISEMENTFOR BIDSCITY OF BOZEMANBOZEMAN, MONTANASOURDOUGH WTPINTERIM OPTIMIZATION General ConstructionSealed Bids for the construc-tion of the Sourdough Water Treatment Plant Interim Op-timization in Bozeman will be received by City of Bozeman (Owner), at the office of the City Clerk located at 121 N Rouse, Suite 202, Bozeman, MT 59771-1230 or mailed to P.O. Box 1230, Bozeman, MT 59771-1230 until April 3, 2025 at 2:30 PM local time. At that time the Bids received will publicly opened and read aloud.Project Description:The Project includes furnish-ing all labor, skill, equipment, and construction materials to improve safety, accessibility, operational efficiency, and pro-cess functionality at the Boze-man WTP. The scope includes:1. BID PACKAGE A: Fluoride Transfer Pump Spill Con-tainment Improvements: Modifications to the fluoride transfer pump containment area to enhance operator accessibility, safety, and movement during mainte-nance. Work is defined in the Construction Drawings and Specifications.2. BID PACKAGE B: Mem-brane Backwash Recycle Improvements: Installing cross-connection process piping and valves to redirect backwash waste directly to the recycle lift station, by-passing the DAFT feed wet well. Work is defined in the Construction Drawings and Specifications.3. BID PACKAGE C: Pre-treatment Basin Under-flow Baffle Curb Modifica-tions: Removing a concrete curb from underflow baffles to streamline sludge clean-ing operations in the pre-treatment basin. Work is defined in the Construction Drawings and Specifica-tions.4. BID PACKAGE D: Head-tower Recycle Flow Im-provements: Improve discharge piping at the headtower to better inte-grate recycle flows with raw water streams, to improve reuse water capture and treatment. Work is defined in the Construction Draw-ings and Specifications.Bids are requested for the fol-lowing Contract:• Contract No. 1 – General ConstructionOwner anticipates that the Project’s total bid price will be approximately $204,999.00. Contractors will be given ap-proximately 260 days to com-plete the project – the Contract Times can be found in the Agreement.Issuing OfficeThe Issuing Office for the Bid-ding Documents is: AE2S – Bozeman; 1288 North 14th Ave Unit 103; Bozeman, Montana 59715; (406-219-2633). All Bids must be in accordance with the Bidding Documents on file with the City of Bozeman’s (Owner’s) Engineering Department, lo-cated at 20 E. Olive St. 1st floor; Bozeman, MT 59715 OR the office of Advanced Engineering & Environmental Servies, Inc. (AE2S -Bozeman (Engineer) at 1288 North 14th Ave Unit 103, Bozeman, MT 59715. Examination of Bidding Documents:Information and Bidding Doc-uments for the Project can be found at the following desig-nated website:www.ae2s.com/bidding.phpQuest CDN #: 9458601Bidding Documents may be downloaded from the des-ignated website for a fee of $25.00. Prospective Bidders are urged to register with the designated website as a plan holder, even if Bidding Doc-uments are obtained from a plan room or source other than the designated website in either electronic or paper for-mat. The designated website will be updated periodically with addenda, lists of regis-tered plan holders, reports, and other information relevant to submitting a Bid for the Proj-ect. All official notifications, addenda, and other Bidding Documents will be offered only through the designat-ed website and its registered plan holders. Neither Owner nor Engineer will be respon-sible for Bidding Documents, including addenda, if any, ob-tained from sources other than the designated website.Bidding Documents may also be examined at the following locations: Builders Exchanges in Billings, MT; Bozeman, MT; Great Falls, MT; Helena, MT; and Missoula, MT. All Work shall be done according to the Bidding Documents. Pre-Bid ConferenceA pre-bid conference for the Project will be held on March 26th at 2:00 PM at Sour-dough Water Treatment Plant; 7024 Sourdough Canyon Rd; Bozeman, MT 59715. Attendance at the pre-bid conference is encouraged but not required.Bid SecurityBid security shall be furnished in accordance with Instruction to Bidders.Instructions to Bidders.For all further requirements regarding bid submittal, qual-ifications, procedures, and contract award, refer to the In-structions to Bidders that are included in the Bidding Doc-uments. CONTRACTOR and any of the CONTRACTOR’S subcontractors bidding or do-ing work on this project will be required to be registered with the Montana Depart-ment of Labor and Industry (DLI). Forms for registration are available from the DLI, PO Box 8011, 1805 Prospect, Helena, Montana 59604-8011. Information on registration can be obtained by calling (406) 444-7734. CONTRACTOR is not required to have registered with the DLI prior to bidding on this project, but must have reg-istered prior to execution of the Construction Agreement. All laborers and mechanics em-ployed by CONTRACTOR or subcontractors in performance of the construction work shall be paid wages at rates as may be required by the laws of Gallatin County and the state of Montana. City of Bozeman is an Equal Opportunity Em-ployer. Discrimination in the performance of any agree-ment awarded under this project 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 submit-ting under this notice shall in-clude a provision wherein the submitting entity, or entities, affirms in writing it will not dis-criminate 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 discrim-ination as described above and that this prohibition on 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 project 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.Rights ReservedThe City of Bozeman reserves the right to reject any and all Bids, to waive irregularities and informalities, to postpone the award of the contract for a period not to exceed sixty (60) days, and to Award the Con-tract to the Lowest respon-sive and responsible Bidder which is in the best interest of the Owner. The Work must be completed in accordance with the dates outlined in the Agreement.Non- DiscriminationIn submitting its bid, the bidder affirms it will not discriminate on the basis of race, color, re-ligion creed, sex, age, marital status, national origin, or be-cause of actual or perceived sexual orientation, gender identity, or disability in the per-formance of work performed for the City of Bozeman, if a contract is awarded to it, and also recognizes the eventual contract, if awarded, will con-tain a provision prohibiting discrimination as described above and that this prohibi-tion shall apply to the hiring and treatment of the bidders employees and to all subcon-tracts it enters into in the per-formance of the agreement with the City of Bozeman. The City of Bozeman is an Equal Opportunity Employer.Published at Bozeman, Mon-tana this 15 day of March 2025.This Advertisement is is-sued by:Owner: City of BozemanBy: Mike Maas, MPATitle: City ClerkDate: March 15, 2025 Re-published March 22nd, 2025;Newspaper: Bozeman Daily Chronicle March 15, 22, 2025 617271MNAXLP 36 AD# 617271 ADVERTISEMENTFOR BIDSCITY OF BOZEMANBOZEMAN, MONTANASOURDOUGH WTPINTERIM OPTIMIZATIONGeneral ConstructionSealed Bids for the construc-tion of the Sourdough Water Treatment Plant Interim Op-timization in Bozeman will be received by City of Bozeman (Owner), at the office of the City Clerk located at 121 N Rouse, Suite 202, Bozeman, MT 59771-1230 or mailed to P.O. Box 1230, Bozeman, MT 59771-1230 until April 3, 2025 at 2:30 PM local time. At that time the Bids received will publicly opened and read aloud.Project Description:The Project includes furnish-ing all labor, skill, equipment, and construction materials to improve safety, accessibility, operational efficiency, and pro-cess functionality at the Boze-man WTP. The scope includes:1. BID PACKAGE A: Fluoride Transfer Pump Spill Con-tainment Improvements: Modifications to the fluoride transfer pump containment area to enhance operator accessibility, safety, and movement during mainte-nance. Work is defined in the Construction Drawings and Specifications.2. BID PACKAGE B: Mem-brane Backwash Recycle Improvements: Installing cross-connection process piping and valves to redirect backwash waste directly to the recycle lift station, by-passing the DAFT feed wet well. Work is defined in the Construction Drawings and Specifications.3. BID PACKAGE C: Pre-treatment Basin Under-flow Baffle Curb Modifica-tions: Removing a concrete curb from underflow baffles to streamline sludge clean-ing operations in the pre-treatment basin. Work is defined in the Construction Drawings and Specifica-tions.4. BID PACKAGE D: Head-tower Recycle Flow Im-provements: Improve discharge piping at the headtower to better inte-grate recycle flows with raw water streams, to improve reuse water capture and treatment. Work is defined in the Construction Draw-ings and Specifications.Bids are requested for the fol-lowing Contract:• Contract No. 1 – General ConstructionOwner anticipates that the Project’s total bid price will be approximately $204,999.00. Contractors will be given ap-proximately 260 days to com-plete the project – the Contract Times can be found in the Agreement.Issuing OfficeThe Issuing Office for the Bid-ding Documents is: AE2S – Bozeman; 1288 North 14th Ave Unit 103; Bozeman, Montana 59715; (406-219-2633). All Bids must be in accordance with the Bidding Documents on file with the City of Bozeman’s (Owner’s) Engineering Department, lo-cated at 20 E. Olive St. 1st floor; Bozeman, MT 59715 OR the office of Advanced Engineering & Environmental Servies, Inc. (AE2S -Bozeman (Engineer) at 1288 North 14th Ave Unit 103, Bozeman, MT 59715. Examination of Bidding Documents:Information and Bidding Doc-uments for the Project can be found at the following desig-nated website:www.ae2s.com/bidding.phpQuest CDN #: 9458601Bidding Documents may be downloaded from the des-ignated website for a fee of $25.00. Prospective Bidders are urged to register with the designated website as a plan holder, even if Bidding Doc-uments are obtained from a plan room or source other than the designated website in either electronic or paper for-mat. The designated website will be updated periodically with addenda, lists of regis-tered plan holders, reports, and other information relevant to submitting a Bid for the Proj-ect. All official notifications, addenda, and other Bidding Documents will be offered only through the designat-ed website and its registered plan holders. Neither Owner nor Engineer will be respon-sible for Bidding Documents, including addenda, if any, ob-tained from sources other than the designated website.Bidding Documents may also be examined at the following locations: Builders Exchanges in Billings, MT; Bozeman, MT; Great Falls, MT; Helena, MT; and Missoula, MT. All Work shall be done according to the Bidding Documents. Pre-Bid ConferenceA pre-bid conference for the Project will be held on March 26th at 2:00 PM at Sour-dough Water Treatment Plant; 7024 Sourdough Canyon Rd; Bozeman, MT 59715. Attendance at the pre-bid conference is encouraged but not required.Bid SecurityBid security shall be furnished in accordance with Instruction to Bidders.Instructions to Bidders.For all further requirements regarding bid submittal, qual-ifications, procedures, and contract award, refer to the In-structions to Bidders that are included in the Bidding Doc-uments. CONTRACTOR and any of the CONTRACTOR’S subcontractors bidding or do-ing work on this project will be required to be registered with the Montana Depart-ment of Labor and Industry (DLI). Forms for registration are available from the DLI, PO Box 8011, 1805 Prospect, Helena, Montana 59604-8011. Information on registration can be obtained by calling (406) 444-7734. CONTRACTOR is not required to have registered with the DLI prior to bidding on this project, but must have reg-istered prior to execution of the Construction Agreement. All laborers and mechanics em-ployed by CONTRACTOR or subcontractors in performance of the construction work shall be paid wages at rates as may be required by the laws of Gallatin County and the state of Montana. City of Bozeman is an Equal Opportunity Em-ployer. Discrimination in the performance of any agree-ment awarded under this project 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 submit-ting under this notice shall in-clude a provision wherein the submitting entity, or entities, affirms in writing it will not dis-criminate 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 discrim-ination as described above and that this prohibition on 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 project 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.Rights ReservedThe City of Bozeman reserves the right to reject any and all Bids, to waive irregularities and informalities, to postpone the award of the contract for a period not to exceed sixty (60) days, and to Award the Con-tract to the Lowest respon-sive and responsible Bidder which is in the best interest of the Owner. The Work must be completed in accordance with the dates outlined in the Agreement.Non- DiscriminationIn submitting its bid, the bidder affirms it will not discriminate on the basis of race, color, re-ligion creed, sex, age, marital status, national origin, or be-cause of actual or perceived sexual orientation, gender identity, or disability in the per-formance of work performed for the City of Bozeman, if a contract is awarded to it, and also recognizes the eventual contract, if awarded, will con-tain a provision prohibiting discrimination as described above and that this prohibi-tion shall apply to the hiring and treatment of the bidders employees and to all subcon-tracts it enters into in the per-formance of the agreement with the City of Bozeman. The City of Bozeman is an Equal Opportunity Employer.Published at Bozeman, Mon-tana this 15 day of March 2025.This Advertisement is is-sued by:Owner: City of BozemanBy: Mike Maas, MPATitle: City ClerkDate: March 15, 2025 Re-published March 22nd, 2025;Newspaper: Bozeman Daily Chronicle March 15, 22, 2025 617271MNAXLP ADVERTISEMENTFOR BIDSCITY OF BOZEMANBOZEMAN, MONTANASOURDOUGH WTPINTERIM OPTIMIZATIONGeneral ConstructionSealed Bids for the construc-tion of the Sourdough Water Treatment Plant Interim Op-timization in Bozeman will be received by City of Bozeman (Owner), at the office of the City Clerk located at 121 N Rouse, Suite 202, Bozeman, MT 59771-1230 or mailed to P.O. Box 1230, Bozeman, MT 59771-1230 until April 3, 2025 at 2:30 PM local time. At that time the Bids received will publicly opened and read aloud.Project Description:The Project includes furnish-ing all labor, skill, equipment, and construction materials to improve safety, accessibility, operational efficiency, and pro-cess functionality at the Boze-man WTP. The scope includes:1. BID PACKAGE A: Fluoride Transfer Pump Spill Con-tainment Improvements: Modifications to the fluoride transfer pump containment area to enhance operator accessibility, safety, and movement during mainte-nance. Work is defined in the Construction Drawings and Specifications.2. BID PACKAGE B: Mem-brane Backwash Recycle Improvements: Installing cross-connection process piping and valves to redirect backwash waste directly to the recycle lift station, by-passing the DAFT feed wet well. Work is defined in the Construction Drawings and Specifications.3. BID PACKAGE C: Pre-treatment Basin Under-flow Baffle Curb Modifica-tions: Removing a concrete curb from underflow baffles to streamline sludge clean-ing operations in the pre-treatment basin. Work is defined in the Construction Drawings and Specifica-tions.4. BID PACKAGE D: Head-tower Recycle Flow Im-provements: Improve discharge piping at the headtower to better inte-grate recycle flows with raw water streams, to improve reuse water capture and treatment. Work is defined in the Construction Draw-ings and Specifications.Bids are requested for the fol-lowing Contract:• Contract No. 1 – General ConstructionOwner anticipates that the Project’s total bid price will be approximately $204,999.00. Contractors will be given ap-proximately 260 days to com-plete the project – the Contract Times can be found in the Agreement.Issuing OfficeThe Issuing Office for the Bid-ding Documents is: AE2S – Bozeman; 1288 North 14th Ave Unit 103; Bozeman, Montana 59715; (406-219-2633). All Bids must be in accordance with the Bidding Documents on file with the City of Bozeman’s (Owner’s) Engineering Department, lo-cated at 20 E. Olive St. 1st floor; Bozeman, MT 59715 OR the office of Advanced Engineering & Environmental Servies, Inc. (AE2S -Bozeman (Engineer) at 1288 North 14th Ave Unit 103, Bozeman, MT 59715. Examination of Bidding Documents:Information and Bidding Doc-uments for the Project can be found at the following desig-nated website:www.ae2s.com/bidding.phpQuest CDN #: 9458601Bidding Documents may be downloaded from the des-ignated website for a fee of $25.00. Prospective Bidders are urged to register with the designated website as a plan holder, even if Bidding Doc-uments are obtained from a plan room or source other than the designated website in either electronic or paper for-mat. The designated website will be updated periodically with addenda, lists of regis-tered plan holders, reports, and other information relevant to submitting a Bid for the Proj-ect. All official notifications, addenda, and other Bidding Documents will be offered only through the designat-ed website and its registered plan holders. Neither Owner nor Engineer will be respon-sible for Bidding Documents, including addenda, if any, ob-tained from sources other than the designated website.Bidding Documents may also be examined at the following locations: Builders Exchanges in Billings, MT; Bozeman, MT; Great Falls, MT; Helena, MT; and Missoula, MT. All Work shall be done according to the Bidding Documents.Pre-Bid ConferenceA pre-bid conference for the Project will be held on March 26th at 2:00 PM at Sour-dough Water Treatment Plant; 7024 Sourdough Canyon Rd; Bozeman, MT 59715. Attendance at the pre-bid conference is encouraged but not required.Bid SecurityBid security shall be furnished in accordance with Instruction to Bidders.Instructions to Bidders.For all further requirements regarding bid submittal, qual-ifications, procedures, and contract award, refer to the In-structions to Bidders that are included in the Bidding Doc-uments. CONTRACTOR and any of the CONTRACTOR’S subcontractors bidding or do-ing work on this project will be required to be registered with the Montana Depart-ment of Labor and Industry (DLI). Forms for registration are available from the DLI, PO Box 8011, 1805 Prospect, Helena, Montana 59604-8011. Information on registration can be obtained by calling (406) 444-7734. CONTRACTOR is not required to have registered with the DLI prior to bidding on this project, but must have reg-istered prior to execution of the Construction Agreement. All laborers and mechanics em-ployed by CONTRACTOR or subcontractors in performance of the construction work shall be paid wages at rates as may be required by the laws of Gallatin County and the state of Montana. City of Bozeman is an Equal Opportunity Em-ployer. Discrimination in the performance of any agree-ment awarded under this project 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 submit-ting under this notice shall in-clude a provision wherein the submitting entity, or entities, affirms in writing it will not dis-criminate 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 discrim-ination as described above and that this prohibition on 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 project 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.Rights ReservedThe City of Bozeman reserves the right to reject any and all Bids, to waive irregularities and informalities, to postpone the award of the contract for a period not to exceed sixty (60) days, and to Award the Con-tract to the Lowest respon-sive and responsible Bidder which is in the best interest of the Owner. The Work must be completed in accordance with the dates outlined in the Agreement.Non- DiscriminationIn submitting its bid, the bidder affirms it will not discriminate on the basis of race, color, re-ligion creed, sex, age, marital status, national origin, or be-cause of actual or perceived sexual orientation, gender identity, or disability in the per-formance of work performed for the City of Bozeman, if a contract is awarded to it, and also recognizes the eventual contract, if awarded, will con-tain a provision prohibiting discrimination as described above and that this prohibi-tion shall apply to the hiring and treatment of the bidders employees and to all subcon-tracts it enters into in the per-formance of the agreement with the City of Bozeman. The City of Bozeman is an Equal Opportunity Employer.Published at Bozeman, Mon-tana this 15 day of March 2025.This Advertisement is is-sued by:Owner: City of BozemanBy: Mike Maas, MPATitle: City ClerkDate: March 15, 2025 Re-published March 22nd, 2025;Newspaper: Bozeman Daily Chronicle March 15, 22, 2025 617271MNAXLP ADVERTISEMENTFOR BIDSCITY OF BOZEMANBOZEMAN, MONTANASOURDOUGH WTPINTERIM OPTIMIZATIONGeneral ConstructionSealed Bids for the construc-tion of the Sourdough Water Treatment Plant Interim Op-timization in Bozeman will be received by City of Bozeman (Owner), at the office of the City Clerk located at 121 N Rouse, Suite 202, Bozeman, MT 59771-1230 or mailed to P.O. Box 1230, Bozeman, MT 59771-1230 until April 3, 2025 at 2:30 PM local time. At that time the Bids received will publicly opened and read aloud.Project Description:The Project includes furnish-ing all labor, skill, equipment, and construction materials to improve safety, accessibility, operational efficiency, and pro-cess functionality at the Boze-man WTP. The scope includes:1. BID PACKAGE A: Fluoride Transfer Pump Spill Con-tainment Improvements: Modifications to the fluoride transfer pump containment area to enhance operator accessibility, safety, and movement during mainte-nance. Work is defined in the Construction Drawings and Specifications.2. BID PACKAGE B: Mem-brane Backwash Recycle Improvements: Installing cross-connection process piping and valves to redirect backwash waste directly to the recycle lift station, by-passing the DAFT feed wet well. Work is defined in the Construction Drawings and Specifications.3. BID PACKAGE C: Pre-treatment Basin Under-flow Baffle Curb Modifica-tions: Removing a concrete curb from underflow baffles to streamline sludge clean-ing operations in the pre-treatment basin. Work is defined in the Construction Drawings and Specifica-tions.4. BID PACKAGE D: Head-tower Recycle Flow Im-provements: Improve discharge piping at the headtower to better inte-grate recycle flows with raw water streams, to improve reuse water capture and treatment. Work is defined in the Construction Draw-ings and Specifications.Bids are requested for the fol-lowing Contract:• Contract No. 1 – General ConstructionOwner anticipates that the Project’s total bid price will be approximately $204,999.00. Contractors will be given ap-proximately 260 days to com-plete the project – the Contract Times can be found in the Agreement.Issuing OfficeThe Issuing Office for the Bid-ding Documents is: AE2S – Bozeman; 1288 North 14th Ave Unit 103; Bozeman, Montana 59715; (406-219-2633). All Bids must be in accordance with the Bidding Documents on file with the City of Bozeman’s (Owner’s) Engineering Department, lo-cated at 20 E. Olive St. 1st floor; Bozeman, MT 59715 OR the office of Advanced Engineering & Environmental Servies, Inc. (AE2S -Bozeman (Engineer) at 1288 North 14th Ave Unit 103, Bozeman, MT 59715. Examination of Bidding Documents:Information and Bidding Doc-uments for the Project can be found at the following desig-nated website:www.ae2s.com/bidding.phpQuest CDN #: 9458601Bidding Documents may be downloaded from the des-ignated website for a fee of $25.00. Prospective Bidders are urged to register with the designated website as a plan holder, even if Bidding Doc-uments are obtained from a plan room or source other than the designated website in either electronic or paper for-mat. The designated website will be updated periodically with addenda, lists of regis-tered plan holders, reports, and other information relevant to submitting a Bid for the Proj-ect. All official notifications, addenda, and other Bidding Documents will be offered only through the designat-ed website and its registered plan holders. Neither Owner nor Engineer will be respon-sible for Bidding Documents, including addenda, if any, ob-tained from sources other than the designated website.Bidding Documents may also be examined at the following locations: Builders Exchanges in Billings, MT; Bozeman, MT; Great Falls, MT; Helena, MT; and Missoula, MT. All Work shall be done according to the Bidding Documents.Pre-Bid ConferenceA pre-bid conference for the Project will be held on March 26th at 2:00 PM at Sour-dough Water Treatment Plant; 7024 Sourdough Canyon Rd; Bozeman, MT 59715. Attendance at the pre-bid conference is encouraged but not required.Bid SecurityBid security shall be furnished in accordance with Instruction to Bidders.Instructions to Bidders.For all further requirements regarding bid submittal, qual-ifications, procedures, and contract award, refer to the In-structions to Bidders that are included in the Bidding Doc-uments. CONTRACTOR and any of the CONTRACTOR’S subcontractors bidding or do-ing work on this project will be required to be registered with the Montana Depart-ment of Labor and Industry (DLI). Forms for registration are available from the DLI, PO Box 8011, 1805 Prospect, Helena, Montana 59604-8011. Information on registration can be obtained by calling (406) 444-7734. CONTRACTOR is not required to have registered with the DLI prior to bidding on this project, but must have reg-istered prior to execution of the Construction Agreement. All laborers and mechanics em-ployed by CONTRACTOR or subcontractors in performance of the construction work shall be paid wages at rates as may be required by the laws of Gallatin County and the state of Montana. City of Bozeman is an Equal Opportunity Em-ployer. Discrimination in the performance of any agree-ment awarded under this project 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 submit-ting under this notice shall in-clude a provision wherein the submitting entity, or entities, affirms in writing it will not dis-criminate 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 discrim-ination as described above and that this prohibition on 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 project 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.Rights ReservedThe City of Bozeman reserves the right to reject any and all Bids, to waive irregularities and informalities, to postpone the award of the contract for a period not to exceed sixty (60) days, and to Award the Con-tract to the Lowest respon-sive and responsible Bidder which is in the best interest of the Owner. The Work must be completed in accordance with the dates outlined in the Agreement.Non- DiscriminationIn submitting its bid, the bidder affirms it will not discriminate on the basis of race, color, re-ligion creed, sex, age, marital status, national origin, or be-cause of actual or perceived sexual orientation, gender identity, or disability in the per-formance of work performed for the City of Bozeman, if a contract is awarded to it, and also recognizes the eventual contract, if awarded, will con-tain a provision prohibiting discrimination as described above and that this prohibi-tion shall apply to the hiring and treatment of the bidders employees and to all subcon-tracts it enters into in the per-formance of the agreement with the City of Bozeman. The City of Bozeman is an Equal Opportunity Employer.Published at Bozeman, Mon-tana this 15 day of March 2025.This Advertisement is is-sued by:Owner: City of BozemanBy: Mike Maas, MPATitle: City ClerkDate: March 15, 2025 Re-published March 22nd, 2025;Newspaper: Bozeman Daily Chronicle March 15, 22, 2025 617271MNAXLP 37 AD# 624336 Discount: $0.00 Surcharge: $0.00 Credits: $0.00 We Appreciate Your Business! Gross:$143.00 Paid Amount:$0.00 Amount Due:$143.00 Payments: Date Method Card Type Last 4 Digits Check Amount PO Box 11902820 W College, 59718, Bozeman,MT 59771Ph. Fax: (907) 452-5054 ADVERTISING PROOF City of Bozeman_Mike Maas PO BOX 1230 BOZEMAN, MT 59771-1230 BILLING DATE: ACCOUNT NO: 04/04/25 27944 AD #DESCRIPTION START STOP TIMES AMOUNT 04/05/25 04/05/25 2 $143.00ADVERTISEMENT FOR BI624336 ADVERTISEMENT FOR BIDS | Amended NoticeCITY OF BOZEMANBOZEMAN, MONTANASOURDOUGH WTP INTERIM OPTIMIZATIONGeneral Construction Sealed Bids for the construc-tion of the Sourdough Water Treatment Plant Interim Op-timization in Bozeman will be received by City of Bozeman (Owner), at the office of the City Clerk located at 121 N Rouse, Suite 202, Bozeman, MT 59771-1230 or mailed to P.O. Box 1230, Bozeman, MT 59771-1230 until April 10, 2025 at 2:30 PM local time. At that time the Bids received will publicly opened and read aloud. Project Description:The Project includes furnish-ing all labor, skill, equipment, and construction materials to improve safety, accessibility, operational efficiency, and pro-cess functionality at the Boze-man WTP. The scope includes:1. BID PACKAGE A: Fluoride Transfer Pump Spill Con-tainment Improvements: Modifications to the fluoride transfer pump containment area to enhance operator ac-cessibility, safety, and move-ment during maintenance. Work is defined in the Con-struction Drawings and Spec-ifications.2. BID PACKAGE B: Mem-brane Backwash Recycle Improvements: Installing cross-connection process piping and valves to redirect backwash waste directly to the recycle lift station, bypassing the DAFT feed wet well. Work is defined in the Construction Drawings and Specifications.3. BID PACKAGE C: Pretreat-ment Basin Underflow Baffle Curb Modifications: Remov-ing a concrete curb from un-derflow baffles to streamline sludge cleaning operations in the pretreatment basin. Work is defined in the Construction Drawings and Specifications.4. BID PACKAGE D: Head-tower Recycle Flow Improve-ments: Improve discharge piping at the headtower to bet-ter integrate recycle flows with raw water streams, to improve reuse water capture and treat-ment. Work is defined in the Construction Drawings and Specifications.Bids are requested for the fol-lowing Contract:• Contract No. 1 – Gener-al ConstructionOwner anticipates that the Project’s total bid price will be approximately $204,999.00. Contractors will be given ap-proximately 260 days to com-plete the project – the Contract Times can be found in the Agreement. Issuing OfficeThe Issuing Office for the Bid-ding Documents is: AE2S – Bozeman; 1288 North 14th Ave Unit 103; Bozeman, Montana 59715; (406-219-2633). All Bids must be in accordance with the Bidding Documents on file with the City of Bozeman’s (Owner’s) Engineering Department, lo-cated at 20 E. Olive St. 1st floor; Bozeman, MT 59715 OR the office of Advanced Engineering & Environmental Services, Inc. (AE2S -Boze-man (Engineer) at 1288 North 14th Ave Unit 103, Bozeman, MT 59715. Examination of Bidding Documents:Information and Bidding Doc-uments for the Project can be found at the following desig-nated website:www.ae2s.com > “Project Bidding”Quest CDN #: 9458601Bidding Documents may be downloaded from the des-ignated website for a fee of $25.00. Prospective Bidders are urged to register with the designated website as a plan holder, even if Bidding Doc-uments are obtained from a plan room or source other than the designated website in either electronic or paper for-mat. The designated website will be updated periodically with addenda, lists of regis-tered plan holders, reports, and other information relevant to submitting a Bid for the Proj-ect. All official notifications, addenda, and other Bidding Documents will be offered only through the designat-ed website and its registered plan holders. Neither Owner nor Engineer will be respon-sible for Bidding Documents, including addenda, if any, ob-tained from sources other than the designated website.Bidding Documents may also be examined at the following locations: Builders Exchanges in Billings, MT; Bozeman, MT; Great Falls, MT; Helena, MT; and Missoula, MT. All Work shall be done according to the Bidding Documents. Pre-Bid ConferenceA pre-bid conference for the Project will be held on March 26th at 2:00 PM at Sour-dough Water Treatment Plant; 7024 Sourdough Canyon Rd; Bozeman, MT 59715. Attendance at the pre-bid conference is encouraged but not required. Bid SecurityBid security shall be furnished in accordance with Instruction to Bidders. Instructions to Bidders.For all further requirements regarding bid submittal, qual-ifications, procedures, and contract award, refer to the In-structions to Bidders that are included in the Bidding Docu-ments. CONTRACTOR and any of the CONTRACTOR’S subcon-tractors bidding or doing work on this project will be required to be registered with the Mon-tana Department of Labor and Industry (DLI). Forms for registration are available from the DLI, PO Box 8011, 1805 Prospect, Helena, Montana 59604-8011. Information on registration can be obtained by calling (406) 444-7734. CONTRACTOR is not re-quired to have registered with the DLI prior to bidding on this project, but must have regis-tered prior to execution of the Construction Agreement. All laborers and mechanics em-ployed by CONTRACTOR or subcontractors in performance of the construction work shall be paid wages at rates as may be required by the laws of Gallatin County and the state of Montana. City of Bozeman is an Equal Opportunity Em-ployer. Discrimination in the performance of any agree-ment awarded under this project 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 submit-ting under this notice shall in-clude a provision wherein the submitting entity, or entities, affirms in writing it will not dis-criminate 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 discrim-ination as described above and that this prohibition on 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 project 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. Rights ReservedThe City of Bozeman reserves the right to reject any and all Bids, to waive irregularities and informalities, to postpone the award of the contract for a period not to exceed sixty (60) days, and to Award the Con-tract to the Lowest respon-sive and responsible Bidder which is in the best interest of the Owner. The Work must be completed in accordance with the dates outlined in the Agreement. Non- DiscriminationIn submitting its bid, the bidder affirms it will not discriminate on the basis of race, color, re-ligion creed, sex, age, marital status, national origin, or be-cause of actual or perceived sexual orientation, gender identity, or disability in the per-formance of work performed for the City of Bozeman, if a contract is awarded to it, and also recognizes the eventual contract, if awarded, will con-tain a provision prohibiting discrimination as described above and that this prohibi-tion shall apply to the hiring and treatment of the bidders employees and to all subcon-tracts it enters into in the per-formance of the agreement with the City of Bozeman. The City of Bozeman is an Equal Opportunity Employer.Published at Bozeman, Mon-tana this 2nd day of April 2025.This Advertisement is is-sued by:Owner: City of BozemanBy: Mike Maas, MPATitle: City ClerkDate: March 31, 2025 Re-published April 5, 2025;Newspaper: Bozeman Daily ChroniclePub April 5, 2025624336 MNAXLP 38 AD# 624336 ADVERTISEMENT FOR BIDS | Amended NoticeCITY OF BOZEMANBOZEMAN, MONTANASOURDOUGH WTP INTERIM OPTIMIZATIONGeneral ConstructionSealed Bids for the construc-tion of the Sourdough Water Treatment Plant Interim Op-timization in Bozeman will be received by City of Bozeman (Owner), at the office of the City Clerk located at 121 N Rouse, Suite 202, Bozeman, MT 59771-1230 or mailed to P.O. Box 1230, Bozeman, MT 59771-1230 until April 10, 2025 at 2:30 PM local time. At that time the Bids received will publicly opened and read aloud.Project Description:The Project includes furnish-ing all labor, skill, equipment, and construction materials to improve safety, accessibility, operational efficiency, and pro-cess functionality at the Boze-man WTP. The scope includes:1. BID PACKAGE A: Fluoride Transfer Pump Spill Con-tainment Improvements: Modifications to the fluoride transfer pump containment area to enhance operator ac-cessibility, safety, and move-ment during maintenance. Work is defined in the Con-struction Drawings and Spec-ifications.2. BID PACKAGE B: Mem-brane Backwash Recycle Improvements: Installing cross-connection process piping and valves to redirect backwash waste directly to the recycle lift station, bypassing the DAFT feed wet well. Work is defined in the Construction Drawings and Specifications.3. BID PACKAGE C: Pretreat-ment Basin Underflow Baffle Curb Modifications: Remov-ing a concrete curb from un-derflow baffles to streamline sludge cleaning operations in the pretreatment basin. Work is defined in the Construction Drawings and Specifications.4. BID PACKAGE D: Head-tower Recycle Flow Improve-ments: Improve discharge piping at the headtower to bet-ter integrate recycle flows with raw water streams, to improve reuse water capture and treat-ment. Work is defined in the Construction Drawings and Specifications.Bids are requested for the fol-lowing Contract:• Contract No. 1 – Gener-al ConstructionOwner anticipates that the Project’s total bid price will be approximately $204,999.00. Contractors will be given ap-proximately 260 days to com-plete the project – the Contract Times can be found in the Agreement. Issuing OfficeThe Issuing Office for the Bid-ding Documents is: AE2S – Bozeman; 1288 North 14th Ave Unit 103; Bozeman, Montana 59715; (406-219-2633). All Bids must be in accordance with the Bidding Documents on file with the City of Bozeman’s (Owner’s) Engineering Department, lo-cated at 20 E. Olive St. 1st floor; Bozeman, MT 59715 OR the office of Advanced Engineering & Environmental Services, Inc. (AE2S -Boze-man (Engineer) at 1288 North 14th Ave Unit 103, Bozeman, MT 59715. Examination of Bidding Documents:Information and Bidding Doc-uments for the Project can be found at the following desig-nated website:www.ae2s.com > “Project Bidding”Quest CDN #: 9458601Bidding Documents may be downloaded from the des-ignated website for a fee of $25.00. Prospective Bidders are urged to register with the designated website as a plan holder, even if Bidding Doc-uments are obtained from a plan room or source other than the designated website in either electronic or paper for-mat. The designated website will be updated periodically with addenda, lists of regis-tered plan holders, reports, and other information relevant to submitting a Bid for the Proj-ect. All official notifications, addenda, and other Bidding Documents will be offered only through the designat-ed website and its registered plan holders. Neither Owner nor Engineer will be respon-sible for Bidding Documents, including addenda, if any, ob-tained from sources other than the designated website.Bidding Documents may also be examined at the following locations: Builders Exchanges in Billings, MT; Bozeman, MT; Great Falls, MT; Helena, MT; and Missoula, MT. All Work shall be done according to the Bidding Documents. Pre-Bid ConferenceA pre-bid conference for the Project will be held on March 26th at 2:00 PM at Sour-dough Water Treatment Plant; 7024 Sourdough Canyon Rd; Bozeman, MT 59715. Attendance at the pre-bid conference is encouraged but not required. Bid SecurityBid security shall be furnished in accordance with Instruction to Bidders. Instructions to Bidders.For all further requirements regarding bid submittal, qual-ifications, procedures, and contract award, refer to the In-structions to Bidders that are included in the Bidding Docu-ments. CONTRACTOR and any of the CONTRACTOR’S subcon-tractors bidding or doing work on this project will be required to be registered with the Mon-tana Department of Labor and Industry (DLI). Forms for registration are available from the DLI, PO Box 8011, 1805 Prospect, Helena, Montana 59604-8011. Information on registration can be obtained by calling (406) 444-7734. CONTRACTOR is not re-quired to have registered with the DLI prior to bidding on this project, but must have regis-tered prior to execution of the Construction Agreement. All laborers and mechanics em-ployed by CONTRACTOR or subcontractors in performance of the construction work shall be paid wages at rates as may be required by the laws of Gallatin County and the state of Montana. City of Bozeman is an Equal Opportunity Em-ployer. Discrimination in the performance of any agree-ment awarded under this project 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 submit-ting under this notice shall in-clude a provision wherein the submitting entity, or entities, affirms in writing it will not dis-criminate 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 discrim-ination as described above and that this prohibition on 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 project 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. Rights ReservedThe City of Bozeman reserves the right to reject any and all Bids, to waive irregularities and informalities, to postpone the award of the contract for a period not to exceed sixty (60) days, and to Award the Con-tract to the Lowest respon-sive and responsible Bidder which is in the best interest of the Owner. The Work must be completed in accordance with the dates outlined in the Agreement. Non- DiscriminationIn submitting its bid, the bidder affirms it will not discriminate on the basis of race, color, re-ligion creed, sex, age, marital status, national origin, or be-cause of actual or perceived sexual orientation, gender identity, or disability in the per-formance of work performed for the City of Bozeman, if a contract is awarded to it, and also recognizes the eventual contract, if awarded, will con-tain a provision prohibiting discrimination as described above and that this prohibi-tion shall apply to the hiring and treatment of the bidders employees and to all subcon-tracts it enters into in the per-formance of the agreement with the City of Bozeman. The City of Bozeman is an Equal Opportunity Employer.Published at Bozeman, Mon-tana this 2nd day of April 2025.This Advertisement is is-sued by:Owner: City of BozemanBy: Mike Maas, MPATitle: City ClerkDate: March 31, 2025 Re-published April 5, 2025;Newspaper: Bozeman Daily ChroniclePub April 5, 2025624336 MNAXLP ADVERTISEMENT FOR BIDS | Amended NoticeCITY OF BOZEMANBOZEMAN, MONTANASOURDOUGH WTP INTERIM OPTIMIZATIONGeneral ConstructionSealed Bids for the construc-tion of the Sourdough Water Treatment Plant Interim Op-timization in Bozeman will be received by City of Bozeman (Owner), at the office of the City Clerk located at 121 N Rouse, Suite 202, Bozeman, MT 59771-1230 or mailed to P.O. Box 1230, Bozeman, MT 59771-1230 until April 10, 2025 at 2:30 PM local time. At that time the Bids received will publicly opened and read aloud.Project Description:The Project includes furnish-ing all labor, skill, equipment, and construction materials to improve safety, accessibility, operational efficiency, and pro-cess functionality at the Boze-man WTP. The scope includes:1. BID PACKAGE A: Fluoride Transfer Pump Spill Con-tainment Improvements: Modifications to the fluoride transfer pump containment area to enhance operator ac-cessibility, safety, and move-ment during maintenance. Work is defined in the Con-struction Drawings and Spec-ifications.2. BID PACKAGE B: Mem-brane Backwash Recycle Improvements: Installing cross-connection process piping and valves to redirect backwash waste directly to the recycle lift station, bypassing the DAFT feed wet well. Work is defined in the Construction Drawings and Specifications.3. BID PACKAGE C: Pretreat-ment Basin Underflow Baffle Curb Modifications: Remov-ing a concrete curb from un-derflow baffles to streamline sludge cleaning operations in the pretreatment basin. Work is defined in the Construction Drawings and Specifications.4. BID PACKAGE D: Head-tower Recycle Flow Improve-ments: Improve discharge piping at the headtower to bet-ter integrate recycle flows with raw water streams, to improve reuse water capture and treat-ment. Work is defined in the Construction Drawings and Specifications.Bids are requested for the fol-lowing Contract:• Contract No. 1 – Gener-al ConstructionOwner anticipates that the Project’s total bid price will be approximately $204,999.00. Contractors will be given ap-proximately 260 days to com-plete the project – the Contract Times can be found in the Agreement.Issuing OfficeThe Issuing Office for the Bid-ding Documents is: AE2S – Bozeman; 1288 North 14th Ave Unit 103; Bozeman, Montana 59715; (406-219-2633). All Bids must be in accordance with the Bidding Documents on file with the City of Bozeman’s (Owner’s) Engineering Department, lo-cated at 20 E. Olive St. 1st floor; Bozeman, MT 59715 OR the office of Advanced Engineering & Environmental Services, Inc. (AE2S -Boze-man (Engineer) at 1288 North 14th Ave Unit 103, Bozeman, MT 59715. Examination of Bidding Documents:Information and Bidding Doc-uments for the Project can be found at the following desig-nated website:www.ae2s.com > “Project Bidding”Quest CDN #: 9458601Bidding Documents may be downloaded from the des-ignated website for a fee of $25.00. Prospective Bidders are urged to register with the designated website as a plan holder, even if Bidding Doc-uments are obtained from a plan room or source other than the designated website in either electronic or paper for-mat. The designated website will be updated periodically with addenda, lists of regis-tered plan holders, reports, and other information relevant to submitting a Bid for the Proj-ect. All official notifications, addenda, and other Bidding Documents will be offered only through the designat-ed website and its registered plan holders. Neither Owner nor Engineer will be respon-sible for Bidding Documents, including addenda, if any, ob-tained from sources other than the designated website.Bidding Documents may also be examined at the following locations: Builders Exchanges in Billings, MT; Bozeman, MT; Great Falls, MT; Helena, MT; and Missoula, MT. All Work shall be done according to the Bidding Documents.Pre-Bid ConferenceA pre-bid conference for the Project will be held on March 26th at 2:00 PM at Sour-dough Water Treatment Plant; 7024 Sourdough Canyon Rd; Bozeman, MT 59715. Attendance at the pre-bid conference is encouraged but not required.Bid SecurityBid security shall be furnished in accordance with Instruction to Bidders. Instructions to Bidders.For all further requirements regarding bid submittal, qual-ifications, procedures, and contract award, refer to the In-structions to Bidders that are included in the Bidding Docu-ments. CONTRACTOR and any of the CONTRACTOR’S subcon-tractors bidding or doing work on this project will be required to be registered with the Mon-tana Department of Labor and Industry (DLI). Forms for registration are available from the DLI, PO Box 8011, 1805 Prospect, Helena, Montana 59604-8011. Information on registration can be obtained by calling (406) 444-7734. CONTRACTOR is not re-quired to have registered with the DLI prior to bidding on this project, but must have regis-tered prior to execution of the Construction Agreement. All laborers and mechanics em-ployed by CONTRACTOR or subcontractors in performance of the construction work shall be paid wages at rates as may be required by the laws of Gallatin County and the state of Montana. City of Bozeman is an Equal Opportunity Em-ployer. Discrimination in the performance of any agree-ment awarded under this project 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 submit-ting under this notice shall in-clude a provision wherein the submitting entity, or entities, affirms in writing it will not dis-criminate 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 discrim-ination as described above and that this prohibition on 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 project 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. Rights ReservedThe City of Bozeman reserves the right to reject any and all Bids, to waive irregularities and informalities, to postpone the award of the contract for a period not to exceed sixty (60) days, and to Award the Con-tract to the Lowest respon-sive and responsible Bidder which is in the best interest of the Owner. The Work must be completed in accordance with the dates outlined in the Agreement. Non- DiscriminationIn submitting its bid, the bidder affirms it will not discriminate on the basis of race, color, re-ligion creed, sex, age, marital status, national origin, or be-cause of actual or perceived sexual orientation, gender identity, or disability in the per-formance of work performed for the City of Bozeman, if a contract is awarded to it, and also recognizes the eventual contract, if awarded, will con-tain a provision prohibiting discrimination as described above and that this prohibi-tion shall apply to the hiring and treatment of the bidders employees and to all subcon-tracts it enters into in the per-formance of the agreement with the City of Bozeman. The City of Bozeman is an Equal Opportunity Employer.Published at Bozeman, Mon-tana this 2nd day of April 2025.This Advertisement is is-sued by:Owner: City of BozemanBy: Mike Maas, MPATitle: City ClerkDate: March 31, 2025 Re-published April 5, 2025;Newspaper: Bozeman Daily ChroniclePub April 5, 2025624336 MNAXLP ADVERTISEMENT FOR BIDS | Amended NoticeCITY OF BOZEMANBOZEMAN, MONTANASOURDOUGH WTP INTERIM OPTIMIZATIONGeneral ConstructionSealed Bids for the construc-tion of the Sourdough Water Treatment Plant Interim Op-timization in Bozeman will be received by City of Bozeman (Owner), at the office of the City Clerk located at 121 N Rouse, Suite 202, Bozeman, MT 59771-1230 or mailed to P.O. Box 1230, Bozeman, MT 59771-1230 until April 10, 2025 at 2:30 PM local time. At that time the Bids received will publicly opened and read aloud.Project Description:The Project includes furnish-ing all labor, skill, equipment, and construction materials to improve safety, accessibility, operational efficiency, and pro-cess functionality at the Boze-man WTP. The scope includes:1. BID PACKAGE A: Fluoride Transfer Pump Spill Con-tainment Improvements: Modifications to the fluoride transfer pump containment area to enhance operator ac-cessibility, safety, and move-ment during maintenance. Work is defined in the Con-struction Drawings and Spec-ifications.2. BID PACKAGE B: Mem-brane Backwash Recycle Improvements: Installing cross-connection process piping and valves to redirect backwash waste directly to the recycle lift station, bypassing the DAFT feed wet well. Work is defined in the Construction Drawings and Specifications.3. BID PACKAGE C: Pretreat-ment Basin Underflow Baffle Curb Modifications: Remov-ing a concrete curb from un-derflow baffles to streamline sludge cleaning operations in the pretreatment basin. Work is defined in the Construction Drawings and Specifications.4. BID PACKAGE D: Head-tower Recycle Flow Improve-ments: Improve discharge piping at the headtower to bet-ter integrate recycle flows with raw water streams, to improve reuse water capture and treat-ment. Work is defined in the Construction Drawings and Specifications.Bids are requested for the fol-lowing Contract:• Contract No. 1 – Gener-al ConstructionOwner anticipates that the Project’s total bid price will be approximately $204,999.00. Contractors will be given ap-proximately 260 days to com-plete the project – the Contract Times can be found in the Agreement.Issuing OfficeThe Issuing Office for the Bid-ding Documents is: AE2S – Bozeman; 1288 North 14th Ave Unit 103; Bozeman, Montana 59715; (406-219-2633). All Bids must be in accordance with the Bidding Documents on file with the City of Bozeman’s (Owner’s) Engineering Department, lo-cated at 20 E. Olive St. 1st floor; Bozeman, MT 59715 OR the office of Advanced Engineering & Environmental Services, Inc. (AE2S -Boze-man (Engineer) at 1288 North 14th Ave Unit 103, Bozeman, MT 59715. Examination of Bidding Documents:Information and Bidding Doc-uments for the Project can be found at the following desig-nated website:www.ae2s.com > “Project Bidding”Quest CDN #: 9458601Bidding Documents may be downloaded from the des-ignated website for a fee of $25.00. Prospective Bidders are urged to register with the designated website as a plan holder, even if Bidding Doc-uments are obtained from a plan room or source other than the designated website in either electronic or paper for-mat. The designated website will be updated periodically with addenda, lists of regis-tered plan holders, reports, and other information relevant to submitting a Bid for the Proj-ect. All official notifications, addenda, and other Bidding Documents will be offered only through the designat-ed website and its registered plan holders. Neither Owner nor Engineer will be respon-sible for Bidding Documents, including addenda, if any, ob-tained from sources other than the designated website.Bidding Documents may also be examined at the following locations: Builders Exchanges in Billings, MT; Bozeman, MT; Great Falls, MT; Helena, MT; and Missoula, MT. All Work shall be done according to the Bidding Documents.Pre-Bid ConferenceA pre-bid conference for the Project will be held on March 26th at 2:00 PM at Sour-dough Water Treatment Plant; 7024 Sourdough Canyon Rd; Bozeman, MT 59715. Attendance at the pre-bid conference is encouraged but not required.Bid SecurityBid security shall be furnished in accordance with Instruction to Bidders.Instructions to Bidders.For all further requirements regarding bid submittal, qual-ifications, procedures, and contract award, refer to the In-structions to Bidders that are included in the Bidding Docu-ments.CONTRACTOR and any of the CONTRACTOR’S subcon-tractors bidding or doing work on this project will be required to be registered with the Mon-tana Department of Labor and Industry (DLI). Forms for registration are available from the DLI, PO Box 8011, 1805 Prospect, Helena, Montana 59604-8011. Information on registration can be obtained by calling (406) 444-7734. CONTRACTOR is not re-quired to have registered with the DLI prior to bidding on this project, but must have regis-tered prior to execution of the Construction Agreement. All laborers and mechanics em-ployed by CONTRACTOR or subcontractors in performance of the construction work shall be paid wages at rates as may be required by the laws of Gallatin County and the state of Montana. City of Bozeman is an Equal Opportunity Em-ployer. Discrimination in the performance of any agree-ment awarded under this project 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 submit-ting under this notice shall in-clude a provision wherein the submitting entity, or entities, affirms in writing it will not dis-criminate 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 discrim-ination as described above and that this prohibition on 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 project 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. Rights ReservedThe City of Bozeman reserves the right to reject any and all Bids, to waive irregularities and informalities, to postpone the award of the contract for a period not to exceed sixty (60) days, and to Award the Con-tract to the Lowest respon-sive and responsible Bidder which is in the best interest of the Owner. The Work must be completed in accordance with the dates outlined in the Agreement. Non- DiscriminationIn submitting its bid, the bidder affirms it will not discriminate on the basis of race, color, re-ligion creed, sex, age, marital status, national origin, or be-cause of actual or perceived sexual orientation, gender identity, or disability in the per-formance of work performed for the City of Bozeman, if a contract is awarded to it, and also recognizes the eventual contract, if awarded, will con-tain a provision prohibiting discrimination as described above and that this prohibi-tion shall apply to the hiring and treatment of the bidders employees and to all subcon-tracts it enters into in the per-formance of the agreement with the City of Bozeman. The City of Bozeman is an Equal Opportunity Employer.Published at Bozeman, Mon-tana this 2nd day of April 2025.This Advertisement is is-sued by:Owner: City of BozemanBy: Mike Maas, MPATitle: City ClerkDate: March 31, 2025 Re-published April 5, 2025;Newspaper: Bozeman Daily ChroniclePub April 5, 2025624336 MNAXLP 39 EJCDC® C-610, Performance Bond. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 of 4 PERFORMANCE BOND Contractor Surety Name: [Full formal name of Contractor] Name: [Full formal name of Surety] Address (principal place of business): Address (principal place of business): [Address of Contractor’s principal place of business] [Address of Surety’s principal place of business] Owner Contract Name: [Full formal name of Owner] Description (name and location): Mailing address (principal place of business): [Owner’s project/contract name, and location of the project] [Address of Owner’s principal place of business] Contract Price: [Amount from Contract] Effective Date of Contract: [Date from Contract] Bond Bond Amount: [Amount] Date of Bond: [Date] (Date of Bond cannot be earlier than Effective Date of Contract) Modifications to this Bond form: ☐ None ☐ See Paragraph 16 Surety and Contractor, intending to be legally bound hereby, subject to the terms set forth in this Performance Bond, do each cause this Performance Bond to be duly executed by an authorized officer, agent, or representative. Contractor as Principal Surety (Full formal name of Contractor) (Full formal name of Surety) (corporate seal) By: By: (Signature) (Signature)(Attach Power of Attorney) Name: Name: (Printed or typed) (Printed or typed) Title: Title: Attest: Attest: (Signature) (Signature) Name: Name: (Printed or typed) (Printed or typed) Title: Title: Notes: (1) Provide supplemental execution by any additional parties, such as joint venturers. (2) Any singular reference to Contractor, Surety, Owner, or other party is considered plural where applicable. DRAFT40 EJCDC® C-610, Performance Bond. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 of 4 1. The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors, and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. 2. If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except when applicable to participate in a conference as provided in Paragraph 3. 3. If there is no Owner Default under the Construction Contract, the Surety’s obligation under this Bond will arise after: 3.1. The Owner first provides notice to the Contractor and the Surety that the Owner is considering declaring a Contractor Default. Such notice may indicate whether the Owner is requesting a conference among the Owner, Contractor, and Surety to discuss the Contractor’s performance. If the Owner does not request a conference, the Surety may, within five (5) business days after receipt of the Owner’s notice, request such a conference. If the Surety timely requests a conference, the Owner shall attend. Unless the Owner agrees otherwise, any conference requested under this Paragraph 3.1 will be held within ten (10) business days of the Surety’s receipt of the Owner’s notice. If the Owner, the Contractor, and the Surety agree, the Contractor shall be allowed a reasonable time to perform the Construction Contract, but such an agreement does not waive the Owner’s right, if any, subsequently to declare a Contractor Default; 3.2. The Owner declares a Contractor Default, terminates the Construction Contract and notifies the Surety; and 3.3. The Owner has agreed to pay the Balance of the Contract Price in accordance with the terms of the Construction Contract to the Surety or to a contractor selected to perform the Construction Contract. 4. Failure on the part of the Owner to comply with the notice requirement in Paragraph 3.1 does not constitute a failure to comply with a condition precedent to the Surety’s obligations, or release the Surety from its obligations, except to the extent the Surety demonstrates actual prejudice. 5. When the Owner has satisfied the conditions of Paragraph 3, the Surety shall promptly and at the Surety’s expense take one of the following actions: 5.1. Arrange for the Contractor, with the consent of the Owner, to perform and complete the Construction Contract; 5.2. Undertake to perform and complete the Construction Contract itself, through its agents or independent contractors; 5.3. Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and a contractor selected with the Owners concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Paragraph 7 in excess of the Balance of the Contract Price incurred by the Owner as a result of the Contractor Default; or 5.4. Waive its right to perform and complete, arrange for completion, or obtain a new contractor, and with reasonable promptness under the circumstances: DRAFT41 EJCDC® C-610, Performance Bond. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 3 of 4 5.4.1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is determined, make payment to the Owner; or 5.4.2 Deny liability in whole or in part and notify the Owner, citing the reasons for denial. 6. If the Surety does not proceed as provided in Paragraph 5 with reasonable promptness, the Surety shall be deemed to be in default on this Bond seven days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Paragraph 5.4, and the Owner refuses the payment, or the Surety has denied liability, in whole or in part, without further notice, the Owner shall be entitled to enforce any remedy available to the Owner. 7. If the Surety elects to act under Paragraph 5.1, 5.2, or 5.3, then the responsibilities of the Surety to the Owner will not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety will not be greater than those of the Owner under the Construction Contract. Subject to the commitment by the Owner to pay the Balance of the Contract Price, the Surety is obligated, without duplication for: 7.1. the responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; 7.2. additional legal, design professional, and delay costs resulting from the Contractor’s Default, and resulting from the actions or failure to act of the Surety under Paragraph 5; and 7.3. liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non-performance of the Contractor. 8. If the Surety elects to act under Paragraph 5.1, 5.3, or 5.4, the Surety’s liability is limited to the amount of this Bond. 9. The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract, and the Balance of the Contract Price will not be reduced or set off on account of any such unrelated obligations. No right of action will accrue on this Bond to any person or entity other than the Owner or its heirs, executors, administrators, successors, and assigns. 10. The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders, and other obligations. 11. Any proceeding, legal or equitable, under this Bond must be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and must be instituted within two years after a declaration of Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. If the provisions of this paragraph are void or prohibited by law, the minimum periods of limitations available to sureties as a defense in the jurisdiction of the suit will be applicable. 12. Notice to the Surety, the Owner, or the Contractor must be mailed or delivered to the address shown on the page on which their signature appears. 13. When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement will be deemed deleted therefrom and provisions conforming to such DRAFT42 EJCDC® C-610, Performance Bond. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 4 of 4 statutory or other legal requirement will be deemed incorporated herein. When so furnished, the intent is that this Bond will be construed as a statutory bond and not as a common law bond. 14. Definitions 14.1. Balance of the Contract Price—The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made including allowance for the Contractor for any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. 14.2. Construction Contract—The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and changes made to the agreement and the Contract Documents. 14.3. Contractor Default—Failure of the Contractor, which has not been remedied or waived, to perform or otherwise to comply with a material term of the Construction Contract. 14.4. Owner Default—Failure of the Owner, which has not been remedied or waived, to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. 14.5. Contract Documents—All the documents that comprise the agreement between the Owner and Contractor. 15. If this Bond is issued for an agreement between a contractor and subcontractor, the term Contractor in this Bond will be deemed to be Subcontractor and the term Owner will be deemed to be Contractor. 16. Modifications to this Bond are as follows: [Describe modification or enter “None”] DRAFT43 EJCDC® C-615, Payment Bond. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 of 4 PAYMENT BOND Contractor Surety Name: [Full formal name of Contractor] Name: [Full formal name of Surety] Address (principal place of business): Address (principal place of business): [Address of Contractor’s principal place of business] [Address of Surety’s principal place of business] Owner Contract Name: [Full formal name of Owner] Description (name and location): Mailing address (principal place of business): [Owner’s project/contract name, and location of the project] [Address of Owner’s principal place of business] Contract Price: [Amount, from Contract] Effective Date of Contract: [Date, from Contract] Bond Bond Amount: [Amount] Date of Bond: [Date] (Date of Bond cannot be earlier than Effective Date of Contract) Modifications to this Bond form: ☐ None ☐ See Paragraph 18 Surety and Contractor, intending to be legally bound hereby, subject to the terms set forth in this Payment Bond, do each cause this Payment Bond to be duly executed by an authorized officer, agent, or representative. Contractor as Principal Surety (Full formal name of Contractor) (Full formal name of Surety) (corporate seal) By: By: (Signature) (Signature)(Attach Power of Attorney) Name: Name: (Printed or typed) (Printed or typed) Title: Title: Attest: Attest: (Signature) (Signature) Name: Name: (Printed or typed) (Printed or typed) Title: Title: Notes: (1) Provide supplemental execution by any additional parties, such as joint venturers. (2) Any singular reference to Contractor, Surety, Owner, or other party is considered plural where applicable. DRAFT44 EJCDC® C-615, Payment Bond. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 of 4 1. The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors, and assigns to the Owner to pay for labor, materials, and equipment furnished for use in the performance of the Construction Contract, which is incorporated herein by reference, subject to the following terms. 2. If the Contractor promptly makes payment of all sums due to Claimants, and defends, indemnifies, and holds harmless the Owner from claims, demands, liens, or suits by any person or entity seeking payment for labor, materials, or equipment furnished for use in the performance of the Construction Contract, then the Surety and the Contractor shall have no obligation under this Bond. 3. If there is no Owner Default under the Construction Contract, the Surety’s obligation to the Owner under this Bond will arise after the Owner has promptly notified the Contractor and the Surety (at the address described in Paragraph 13) of claims, demands, liens, or suits against the Owner or the Owner’s property by any person or entity seeking payment for labor, materials, or equipment furnished for use in the performance of the Construction Contract, and tendered defense of such claims, demands, liens, or suits to the Contractor and the Surety. 4. When the Owner has satisfied the conditions in Paragraph 3, the Surety shall promptly and at the Surety’s expense defend, indemnify, and hold harmless the Owner against a duly tendered claim, demand, lien, or suit. 5. The Surety’s obligations to a Claimant under this Bond will arise after the following: 5.1. Claimants who do not have a direct contract with the Contractor 5.1.1. have furnished a written notice of non-payment to the Contractor, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were, or equipment was, furnished or supplied or for whom the labor was done or performed, within ninety (90) days after having last performed labor or last furnished materials or equipment included in the Claim; and 5.1.2. have sent a Claim to the Surety (at the address described in Paragraph 13). 5.2. Claimants who are employed by or have a direct contract with the Contractor have sent a Claim to the Surety (at the address described in Paragraph 13). 6. If a notice of non-payment required by Paragraph 5.1.1 is given by the Owner to the Contractor, that is sufficient to satisfy a Claimant’s obligation to furnish a written notice of non-payment under Paragraph 5.1.1. 7. When a Claimant has satisfied the conditions of Paragraph 5.1 or 5.2, whichever is applicable, the Surety shall promptly and at the Surety’s expense take the following actions: 7.1. Send an answer to the Claimant, with a copy to the Owner, within sixty (60) days after receipt of the Claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed; and 7.2. Pay or arrange for payment of any undisputed amounts. 7.3. The Surety’s failure to discharge its obligations under Paragraph 7.1 or 7.2 will not be deemed to constitute a waiver of defenses the Surety or Contractor may have or acquire as to a Claim, except as to undisputed amounts for which the Surety and Claimant have reached agreement. If, however, the Surety fails to discharge its obligations under Paragraph 7.1 or 7.2, the Surety shall indemnify the Claimant for the reasonable attorney’s fees the Claimant incurs thereafter to recover any sums found to be due and owing to the Claimant. DRAFT45 EJCDC® C-615, Payment Bond. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 3 of 4 8. The Surety’s total obligation will not exceed the amount of this Bond, plus the amount of reasonable attorney’s fees provided under Paragraph 7.3, and the amount of this Bond will be credited for any payments made in good faith by the Surety. 9. Amounts owed by the Owner to the Contractor under the Construction Contract will be used for the performance of the Construction Contract and to satisfy claims, if any, under any construction performance bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfying obligations of the Contractor and Surety under this Bond, subject to the Owner’s priority to use the funds for the completion of the work. 10. The Surety shall not be liable to the Owner, Claimants, or others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be liable for the payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligation to make payments to or give notice on behalf of Claimants, or otherwise have any obligations to Claimants under this Bond. 11. The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders, and other obligations. 12. No suit or action will be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the state in which the project that is the subject of the Construction Contract is located or after the expiration of one year from the date (1) on which the Claimant sent a Claim to the Surety pursuant to Paragraph 5.1.2 or 5.2, or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contract, whichever of (1) or (2) first occurs. If the provisions of this paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit will be applicable. 13. Notice and Claims to the Surety, the Owner, or the Contractor must be mailed or delivered to the address shown on the page on which their signature appears. Actual receipt of notice or Claims, however accomplished, will be sufficient compliance as of the date received. 14. When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement will be deemed deleted here from and provisions conforming to such statutory or other legal requirement will be deemed incorporated herein. When so furnished, the intent is that this Bond will be construed as a statutory bond and not as a common law bond. 15. Upon requests by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor and Owner shall promptly furnish a copy of this Bond or shall permit a copy to be made. 16. Definitions 16.1. Claim—A written statement by the Claimant including at a minimum: 16.1.1. The name of the Claimant; 16.1.2. The name of the person for whom the labor was done, or materials or equipment furnished; 16.1.3. A copy of the agreement or purchase order pursuant to which labor, materials, or equipment was furnished for use in the performance of the Construction Contract; 16.1.4. A brief description of the labor, materials, or equipment furnished; DRAFT46 EJCDC® C-615, Payment Bond. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 4 of 4 16.1.5. The date on which the Claimant last performed labor or last furnished materials or equipment for use in the performance of the Construction Contract; 16.1.6. The total amount earned by the Claimant for labor, materials, or equipment furnished as of the date of the Claim; 16.1.7. The total amount of previous payments received by the Claimant; and 16.1.8. The total amount due and unpaid to the Claimant for labor, materials, or equipment furnished as of the date of the Claim. 16.2. Claimant—An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor, materials, or equipment for use in the performance of the Construction Contract. The term Claimant also includes any individual or entity that has rightfully asserted a claim under an applicable mechanic’s lien or similar statute against the real property upon which the Project is located. The intent of this Bond is to include without limitation in the terms of “labor, materials, or equipment” that part of the water, gas, power, light, heat, oil, gasoline, telephone service, or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor’s subcontractors, and all other items for which a mechanic’s lien may be asserted in the jurisdiction where the labor, materials, or equipment were furnished. 16.3. Construction Contract—The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and all changes made to the agreement and the Contract Documents. 16.4. Owner Default—Failure of the Owner, which has not been remedied or waived, to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. 16.5. Contract Documents—All the documents that comprise the agreement between the Owner and Contractor. 17. If this Bond is issued for an agreement between a contractor and subcontractor, the term Contractor in this Bond will be deemed to be Subcontractor and the term Owner will be deemed to be Contractor. 18. Modifications to this Bond are as follows: [Describe modification or enter “None”] DRAFT47 25-GL-ADDITIONAL INSURED.jpg (JPEG Image, 2550 × 3300 pixe... https://businessinsurancesave.com/images/25-GL-ADDITIONAL%20...1 of 13/5/2024, 2:08 PM48 This page intentionally left blank. 49 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. TOC Page 1 of 5 SECTION 00 72 00 STANDARD GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT TABLE OF CONTENTS Page Article 1—Definitions and Terminology ........................................................................................................ 1 1.01 Defined Terms ............................................................................................................................... 1 1.02 Terminology .................................................................................................................................. 6 Article 2—Preliminary Matters ..................................................................................................................... 7 2.01 Delivery of Performance and Payment Bonds; Evidence of Insurance......................................... 7 2.02 Copies of Documents .................................................................................................................... 7 2.03 Before Starting Construction ........................................................................................................ 7 2.04 Preconstruction Conference; Designation of Authorized Representatives .................................. 8 2.05 Acceptance of Schedules .............................................................................................................. 8 2.06 Electronic Transmittals ................................................................................................................. 8 Article 3—Contract Documents: Intent, Requirements, Reuse .................................................................... 9 3.01 Intent ............................................................................................................................................. 9 3.02 Reference Standards ..................................................................................................................... 9 3.03 Reporting and Resolving Discrepancies ...................................................................................... 10 3.04 Requirements of the Contract Documents ................................................................................. 10 3.05 Reuse of Documents ................................................................................................................... 11 Article 4—Commencement and Progress of the Work .............................................................................. 11 4.01 Commencement of Contract Times; Notice to Proceed ............................................................. 11 4.02 Starting the Work ........................................................................................................................ 11 4.03 Reference Points ......................................................................................................................... 12 4.04 Progress Schedule ....................................................................................................................... 12 4.05 Delays in Contractor’s Progress .................................................................................................. 12 Article 5—Site; Subsurface and Physical Conditions; Hazardous Environmental Conditions .................... 14 5.01 Availability of Lands .................................................................................................................... 14 5.02 Use of Site and Other Areas ........................................................................................................ 14 5.03 Subsurface and Physical Conditions ............................................................................................ 15 50 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. TOC Page 2 of 5 5.04 Differing Subsurface or Physical Conditions ............................................................................... 16 5.05 Underground Facilities ................................................................................................................ 17 5.06 Hazardous Environmental Conditions at Site ............................................................................. 19 Article 6—Bonds and Insurance .................................................................................................................. 21 6.01 Performance, Payment, and Other Bonds .................................................................................. 21 6.02 Insurance—General Provisions ................................................................................................... 22 6.03 Contractor’s Insurance ................................................................................................................ 24 6.04 Builder’s Risk and Other Property Insurance .............................................................................. 25 6.05 Property Losses; Subrogation ..................................................................................................... 25 6.06 Receipt and Application of Property Insurance Proceeds .......................................................... 27 Article 7—Contractor’s Responsibilities ..................................................................................................... 27 7.01 Contractor’s Means and Methods of Construction .................................................................... 27 7.02 Supervision and Superintendence .............................................................................................. 27 7.03 Labor; Working Hours ................................................................................................................. 27 7.04 Services, Materials, and Equipment ........................................................................................... 28 7.05 “Or Equals” .................................................................................................................................. 28 7.06 Substitutes .................................................................................................................................. 29 7.07 Concerning Subcontractors and Suppliers .................................................................................. 31 7.08 Patent Fees and Royalties ........................................................................................................... 32 7.09 Permits ........................................................................................................................................ 33 7.10 Taxes ........................................................................................................................................... 33 7.11 Laws and Regulations .................................................................................................................. 33 7.12 Record Documents ...................................................................................................................... 33 7.13 Safety and Protection ................................................................................................................. 34 7.14 Hazard Communication Programs .............................................................................................. 35 7.15 Emergencies ................................................................................................................................ 35 7.16 Submittals ................................................................................................................................... 35 7.17 Contractor’s General Warranty and Guarantee ......................................................................... 38 7.18 Indemnification ........................................................................................................................... 39 7.19 Delegation of Professional Design Services ................................................................................ 39 Article 8—Other Work at the Site ............................................................................................................... 40 8.01 Other Work ................................................................................................................................. 40 8.02 Coordination ............................................................................................................................... 41 51 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. TOC Page 3 of 5 8.03 Legal Relationships ...................................................................................................................... 41 Article 9—Owner’s Responsibilities ............................................................................................................ 42 9.01 Communications to Contractor .................................................................................................. 42 9.02 Replacement of Engineer ............................................................................................................ 42 9.03 Furnish Data ................................................................................................................................ 42 9.04 Pay When Due ............................................................................................................................. 42 9.05 Lands and Easements; Reports, Tests, and Drawings ................................................................. 43 9.06 Insurance ..................................................................................................................................... 43 9.07 Change Orders ............................................................................................................................ 43 9.08 Inspections, Tests, and Approvals ............................................................................................... 43 9.09 Limitations on Owner’s Responsibilities ..................................................................................... 43 9.10 Undisclosed Hazardous Environmental Condition ...................................................................... 43 9.11 Evidence of Financial Arrangements ........................................................................................... 43 9.12 Safety Programs .......................................................................................................................... 43 Article 10—Engineer’s Status During Construction .................................................................................... 44 10.01 Owner’s Representative .......................................................................................................... 44 10.02 Visits to Site ............................................................................................................................. 44 10.03 Resident Project Representative............................................................................................. 44 10.04 Engineer’s Authority ............................................................................................................... 44 10.05 Determinations for Unit Price Work ....................................................................................... 45 10.06 Decisions on Requirements of Contract Documents and Acceptability of Work ................... 45 10.07 Limitations on Engineer’s Authority and Responsibilities ...................................................... 45 10.08 Compliance with Safety Program ............................................................................................ 45 Article 11—Changes to the Contract .......................................................................................................... 46 11.01 Amending and Supplementing the Contract .......................................................................... 46 11.02 Change Orders ........................................................................................................................ 46 11.03 Work Change Directives .......................................................................................................... 46 11.04 Field Orders ............................................................................................................................. 47 11.05 Owner-Authorized Changes in the Work ................................................................................ 47 11.06 Unauthorized Changes in the Work ........................................................................................ 47 11.07 Change of Contract Price ........................................................................................................ 47 11.08 Change of Contract Times ....................................................................................................... 49 11.09 Change Proposals .................................................................................................................... 49 52 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. TOC Page 4 of 5 11.10 Notification to Surety .............................................................................................................. 50 Article 12—Claims ....................................................................................................................................... 50 12.01 Claims ...................................................................................................................................... 50 Article 13—Cost of the Work; Allowances; Unit Price Work ...................................................................... 51 13.01 Cost of the Work ..................................................................................................................... 51 13.02 Allowances .............................................................................................................................. 55 13.03 Unit Price Work ....................................................................................................................... 55 Article 14—Tests and Inspections; Correction, Removal, or Acceptance of Defective Work .................... 56 14.01 Access to Work ........................................................................................................................ 56 14.02 Tests, Inspections, and Approvals ........................................................................................... 56 14.03 Defective Work ....................................................................................................................... 57 14.04 Acceptance of Defective Work................................................................................................ 58 14.05 Uncovering Work .................................................................................................................... 58 14.06 Owner May Stop the Work ..................................................................................................... 58 14.07 Owner May Correct Defective Work ....................................................................................... 59 Article 15—Payments to Contractor; Set-Offs; Completion; Correction Period ........................................ 59 15.01 Progress Payments .................................................................................................................. 59 15.02 Contractor’s Warranty of Title ................................................................................................ 62 15.03 Substantial Completion ........................................................................................................... 62 15.04 Partial Use or Occupancy ........................................................................................................ 63 15.05 Final Inspection ....................................................................................................................... 64 15.06 Final Payment .......................................................................................................................... 64 15.07 Waiver of Claims ..................................................................................................................... 65 15.08 Correction Period .................................................................................................................... 66 Article 16—Suspension of Work and Termination ..................................................................................... 67 16.01 Owner May Suspend Work ..................................................................................................... 67 16.02 Owner May Terminate for Cause ............................................................................................ 67 16.03 Owner May Terminate for Convenience................................................................................. 68 16.04 Contractor May Stop Work or Terminate ............................................................................... 68 Article 17—Final Resolution of Disputes .................................................................................................... 69 17.01 Methods and Procedures ........................................................................................................ 69 Article 18—Miscellaneous .......................................................................................................................... 69 18.01 Giving Notice ........................................................................................................................... 69 53 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. TOC Page 5 of 5 18.02 Computation of Times............................................................................................................. 69 18.03 Cumulative Remedies ............................................................................................................. 70 18.04 Limitation of Damages ............................................................................................................ 70 18.05 No Waiver ............................................................................................................................... 70 18.06 Survival of Obligations ............................................................................................................ 70 18.07 Controlling Law ....................................................................................................................... 70 18.08 Assignment of Contract........................................................................................................... 70 18.09 Successors and Assigns ........................................................................................................... 70 18.10 Headings .................................................................................................................................. 70 54 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 of 70 SECTION 00 72 00 STANDARD GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT ARTICLE 1—DEFINITIONS AND TERMINOLOGY 1.01 Defined Terms A. Wherever used in the Bidding Requirements or Contract Documents, a term printed with initial capital letters, including the term’s singular and plural forms, will have the meaning indicated in the definitions below. In addition to terms specifically defined, terms with initial capital letters in the Contract Documents include references to identified articles and paragraphs, and the titles of other documents or forms. 1. Addenda—Written or graphic instruments issued prior to the opening of Bids which clarify, correct, or change the Bidding Requirements or the proposed Contract Documents. 2. Agreement—The written instrument, executed by Owner and Contractor, that sets forth the Contract Price and Contract Times, identifies the parties and the Engineer, and designates the specific items that are Contract Documents. 3. Application for Payment—The document prepared by Contractor, in a form acceptable to Engineer, to request progress or final payments, and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 4. Bid—The offer of a Bidder submitted on the prescribed form setting forth the prices for the Work to be performed. 5. Bidder—An individual or entity that submits a Bid to Owner. 6. Bidding Documents—The Bidding Requirements, the proposed Contract Documents, and all Addenda. 7. Bidding Requirements—The Advertisement or invitation to bid, Instructions to Bidders, Bid Bond or other Bid security, if any, the Bid Form, and the Bid with any attachments. 8. Change Order—A document which is signed by Contractor and Owner and authorizes an addition, deletion, or revision in the Work or an adjustment in the Contract Price or the Contract Times, or other revision to the Contract, issued on or after the Effective Date of the Contract. 9. Change Proposal—A written request by Contractor, duly submitted in compliance with the procedural requirements set forth herein, seeking an adjustment in Contract Price or Contract Times; contesting an initial decision by Engineer concerning the requirements of the Contract Documents or the acceptability of Work under the Contract Documents; challenging a set-off against payments due; or seeking other relief with respect to the terms of the Contract. 55 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 of 70 10. Claim a. A demand or assertion by Owner directly to Contractor, duly submitted in compliance with the procedural requirements set forth herein, seeking an adjustment of Contract Price or Contract Times; contesting an initial decision by Engineer concerning the requirements of the Contract Documents or the acceptability of Work under the Contract Documents; contesting Engineer’s decision regarding a Change Proposal; seeking resolution of a contractual issue that Engineer has declined to address; or seeking other relief with respect to the terms of the Contract. b. A demand or assertion by Contractor directly to Owner, duly submitted in compliance with the procedural requirements set forth herein, contesting Engineer’s decision regarding a Change Proposal, or seeking resolution of a contractual issue that Engineer has declined to address. c. A demand or assertion by Owner or Contractor, duly submitted in compliance with the procedural requirements set forth herein, made pursuant to Paragraph 12.01.A.4, concerning disputes arising after Engineer has issued a recommendation of final payment. d. A demand for money or services by a third party is not a Claim. 11. Constituent of Concern—Asbestos, petroleum, radioactive materials, polychlorinated biphenyls (PCBs), lead-based paint (as defined by the HUD/EPA standard), hazardous waste, and any substance, product, waste, or other material of any nature whatsoever that is or becomes listed, regulated, or addressed pursuant to Laws and Regulations regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic, or dangerous waste, substance, or material. 12. Contract—The entire and integrated written contract between Owner and Contractor concerning the Work. 13. Contract Documents—Those items so designated in the Agreement, and which together comprise the Contract. 14. Contract Price—The money that Owner has agreed to pay Contractor for completion of the Work in accordance with the Contract Documents. 15. Contract Times—The number of days or the dates by which Contractor shall: (a) achieve Milestones, if any; (b) achieve Substantial Completion; and (c) complete the Work. 16. Contractor—The individual or entity with which Owner has contracted for performance of the Work. 17. Cost of the Work—See Paragraph 13.01 for definition. 18. Drawings—The part of the Contract that graphically shows the scope, extent, and character of the Work to be performed by Contractor. 19. Effective Date of the Contract—The date, indicated in the Agreement, on which the Contract becomes effective. 20. Electronic Document—Any Project-related correspondence, attachments to correspondence, data, documents, drawings, information, or graphics, including but not limited to Shop Drawings and other Submittals, that are in an electronic or digital format. 56 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 3 of 70 21. Electronic Means—Electronic mail (email), upload/download from a secure Project website, or other communications methods that allow: (a) the transmission or communication of Electronic Documents; (b) the documentation of transmissions, including sending and receipt; (c) printing of the transmitted Electronic Document by the recipient; (d) the storage and archiving of the Electronic Document by sender and recipient; and (e) the use by recipient of the Electronic Document for purposes permitted by this Contract. Electronic Means does not include the use of text messaging, or of Facebook, Twitter, Instagram, or similar social media services for transmission of Electronic Documents. 22. Engineer—The individual or entity named as such in the Agreement. 23. Field Order—A written order issued by Engineer which requires minor changes in the Work but does not change the Contract Price or the Contract Times. 24. Hazardous Environmental Condition—The presence at the Site of Constituents of Concern in such quantities or circumstances that may present a danger to persons or property exposed thereto. a. The presence at the Site of materials that are necessary for the execution of the Work, or that are to be incorporated into the Work, and that are controlled and contained pursuant to industry practices, Laws and Regulations, and the requirements of the Contract, is not a Hazardous Environmental Condition. b. The presence of Constituents of Concern that are to be removed or remediated as part of the Work is not a Hazardous Environmental Condition. c. The presence of Constituents of Concern as part of the routine, anticipated, and obvious working conditions at the Site, is not a Hazardous Environmental Condition. 25. Laws and Regulations; Laws or Regulations—Any and all applicable laws, statutes, rules, regulations, ordinances, codes, and binding decrees, resolutions, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 26. Liens—Charges, security interests, or encumbrances upon Contract-related funds, real property, or personal property. 27. Milestone—A principal event in the performance of the Work that the Contract requires Contractor to achieve by an intermediate completion date, or by a time prior to Substantial Completion of all the Work. 28. Notice of Award—The written notice by Owner to a Bidder of Owner’s acceptance of the Bid. 29. Notice to Proceed—A written notice by Owner to Contractor fixing the date on which the Contract Times will commence to run and on which Contractor shall start to perform the Work. 30. Owner—The individual or entity with which Contractor has contracted regarding the Work, and which has agreed to pay Contractor for the performance of the Work, pursuant to the terms of the Contract. 31. Progress Schedule—A schedule, prepared and maintained by Contractor, describing the sequence and duration of the activities comprising Contractor’s plan to accomplish the Work within the Contract Times. 57 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 4 of 70 32. Project—The total undertaking to be accomplished for Owner by engineers, contractors, and others, including planning, study, design, construction, testing, commissioning, and start-up, and of which the Work to be performed under the Contract Documents is a part. 33. Resident Project Representative—The authorized representative of Engineer assigned to assist Engineer at the Site. As used herein, the term Resident Project Representative (RPR) includes any assistants or field staff of Resident Project Representative. 34. Samples—Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and that establish the standards by which such portion of the Work will be judged. 35. Schedule of Submittals—A schedule, prepared and maintained by Contractor, of required submittals and the time requirements for Engineer’s review of the submittals. 36. Schedule of Values—A schedule, prepared and maintained by Contractor, allocating portions of the Contract Price to various portions of the Work and used as the basis for reviewing Contractor’s Applications for Payment. 37. Shop Drawings—All drawings, diagrams, illustrations, schedules, and other data or information that are specifically prepared or assembled by or for Contractor and submitted by Contractor to illustrate some portion of the Work. Shop Drawings, whether approved or not, are not Drawings and are not Contract Documents. 38. Site—Lands or areas indicated in the Contract Documents as being furnished by Owner upon which the Work is to be performed, including rights-of-way and easements, and such other lands or areas furnished by Owner which are designated for the use of Contractor. 39. Specifications—The part of the Contract that consists of written requirements for materials, equipment, systems, standards, and workmanship as applied to the Work, and certain administrative requirements and procedural matters applicable to the Work. 40. Subcontractor—An individual or entity having a direct contract with Contractor or with any other Subcontractor for the performance of a part of the Work. 41. Submittal—A written or graphic document, prepared by or for Contractor, which the Contract Documents require Contractor to submit to Engineer, or that is indicated as a Submittal in the Schedule of Submittals accepted by Engineer. Submittals may include Shop Drawings and Samples; schedules; product data; Owner-delegated designs; sustainable design information; information on special procedures; testing plans; results of tests and evaluations, source quality-control testing and inspections, and field or Site quality-control testing and inspections; warranties and certifications; Suppliers’ instructions and reports; records of delivery of spare parts and tools; operations and maintenance data; Project photographic documentation; record documents; and other such documents required by the Contract Documents. Submittals, whether or not approved or accepted by Engineer, are not Contract Documents. Change Proposals, Change Orders, Claims, notices, Applications for Payment, and requests for interpretation or clarification are not Submittals. 42. Substantial Completion—The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of Engineer, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the 58 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 5 of 70 Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms “substantially complete” and “substantially completed” as applied to all or part of the Work refer to Substantial Completion of such Work. 43. Successful Bidder—The Bidder to which the Owner makes an award of contract. 44. Supplementary Conditions—The part of the Contract that amends or supplements these General Conditions. 45. Supplier—A manufacturer, fabricator, supplier, distributor, or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment to be incorporated in the Work by Contractor or a Subcontractor. 46. Technical Data a. Those items expressly identified as Technical Data in the Supplementary Conditions, with respect to either (1) existing subsurface conditions at or adjacent to the Site, or existing physical conditions at or adjacent to the Site including existing surface or subsurface structures (except Underground Facilities) or (2) Hazardous Environmental Conditions at the Site. b. If no such express identifications of Technical Data have been made with respect to conditions at the Site, then Technical Data is defined, with respect to conditions at the Site under Paragraphs 5.03, 5.04, and 5.06, as the data contained in boring logs, recorded measurements of subsurface water levels, assessments of the condition of subsurface facilities, laboratory test results, and other factual, objective information regarding conditions at the Site that are set forth in any geotechnical, environmental, or other Site or facilities conditions report prepared for the Project and made available to Contractor. c. Information and data regarding the presence or location of Underground Facilities are not intended to be categorized, identified, or defined as Technical Data, and instead Underground Facilities are shown or indicated on the Drawings. 47. Underground Facilities—All active or not-in-service underground lines, pipelines, conduits, ducts, encasements, cables, wires, manholes, vaults, tanks, tunnels, or other such facilities or systems at the Site, including but not limited to those facilities or systems that produce, transmit, distribute, or convey telephone or other communications, cable television, fiber optic transmissions, power, electricity, light, heat, gases, oil, crude oil products, liquid petroleum products, water, steam, waste, wastewater, storm water, other liquids or chemicals, or traffic or other control systems. An abandoned facility or system is not an Underground Facility. 48. Unit Price Work—Work to be paid for on the basis of unit prices. 49. Work—The entire construction or the various separately identifiable parts thereof required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such construction; furnishing, installing, and incorporating all materials and equipment into such construction; and may include related services such as testing, start-up, and commissioning, all as required by the Contract Documents. 59 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 6 of 70 50. Work Change Directive—A written directive to Contractor issued on or after the Effective Date of the Contract, signed by Owner and recommended by Engineer, ordering an addition, deletion, or revision in the Work. 1.02 Terminology A. The words and terms discussed in Paragraphs 1.02.B, C, D, and E are not defined terms that require initial capital letters, but, when used in the Bidding Requirements or Contract Documents, have the indicated meaning. B. Intent of Certain Terms or Adjectives: The Contract Documents include the terms “as allowed,” “as approved,” “as ordered,” “as directed” or terms of like effect or import to authorize an exercise of professional judgment by Engineer. In addition, the adjectives “reasonable,” “suitable,” “acceptable,” “proper,” “satisfactory,” or adjectives of like effect or import are used to describe an action or determination of Engineer as to the Work. It is intended that such exercise of professional judgment, action, or determination will be solely to evaluate, in general, the Work for compliance with the information in the Contract Documents and with the design concept of the Project as a functioning whole as shown or indicated in the Contract Documents (unless there is a specific statement indicating otherwise). The use of any such term or adjective is not intended to and shall not be effective to assign to Engineer any duty or authority to supervise or direct the performance of the Work, or any duty or authority to undertake responsibility contrary to the provisions of Article 10 or any other provision of the Contract Documents. C. Day: The word “day” means a calendar day of 24 hours measured from midnight to the next midnight. D. Defective: The word “defective,” when modifying the word “Work,” refers to Work that is unsatisfactory, faulty, or deficient in that it: 1. does not conform to the Contract Documents; 2. does not meet the requirements of any applicable inspection, reference standard, test, or approval referred to in the Contract Documents; or 3. has been damaged prior to Engineer’s recommendation of final payment (unless responsibility for the protection thereof has been assumed by Owner at Substantial Completion in accordance with Paragraph 15.03 or Paragraph 15.04). E. Furnish, Install, Perform, Provide 1. The word “furnish,” when used in connection with services, materials, or equipment, means to supply and deliver said services, materials, or equipment to the Site (or some other specified location) ready for use or installation and in usable or operable condition. 2. The word “install,” when used in connection with services, materials, or equipment, means to put into use or place in final position said services, materials, or equipment complete and ready for intended use. 3. The words “perform” or “provide,” when used in connection with services, materials, or equipment, means to furnish and install said services, materials, or equipment complete and ready for intended use. 4. If the Contract Documents establish an obligation of Contractor with respect to specific services, materials, or equipment, but do not expressly use any of the four words 60 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 7 of 70 “furnish,” “install,” “perform,” or “provide,” then Contractor shall furnish and install said services, materials, or equipment complete and ready for intended use. F. Contract Price or Contract Times: References to a change in “Contract Price or Contract Times” or “Contract Times or Contract Price” or similar, indicate that such change applies to (1) Contract Price, (2) Contract Times, or (3) both Contract Price and Contract Times, as warranted, even if the term “or both” is not expressed. G. Unless stated otherwise in the Contract Documents, words or phrases that have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning. ARTICLE 2—PRELIMINARY MATTERS 2.01 Delivery of Performance and Payment Bonds; Evidence of Insurance A. Performance and Payment Bonds: When Contractor delivers the signed counterparts of the Agreement to Owner, Contractor shall also deliver to Owner the performance bond and payment bond (if the Contract requires Contractor to furnish such bonds). B. Evidence of Contractor’s Insurance: When Contractor delivers the signed counterparts of the Agreement to Owner, Contractor shall also deliver to Owner, with copies to each additional insured (as identified in the Contract), the certificates, endorsements, and other evidence of insurance required to be provided by Contractor in accordance with Article 6, except to the extent the Supplementary Conditions expressly establish other dates for delivery of specific insurance policies. C. Evidence of Owner’s Insurance: After receipt of the signed counterparts of the Agreement and all required bonds and insurance documentation, Owner shall promptly deliver to Contractor, with copies to each additional insured (as identified in the Contract), the certificates and other evidence of insurance required to be provided by Owner under Article 6. 2.02 Copies of Documents A. Owner shall furnish to Contractor four printed copies of the Contract (including one fully signed counterpart of the Agreement), and one copy in electronic portable document format (PDF). Additional printed copies will be furnished upon request at the cost of reproduction. B. Owner shall maintain and safeguard at least one original printed record version of the Contract, including Drawings and Specifications signed and sealed by Engineer and other design professionals. Owner shall make such original printed record version of the Contract available to Contractor for review. Owner may delegate the responsibilities under this provision to Engineer. 2.03 Before Starting Construction A. Preliminary Schedules: Within 10 days after the Effective Date of the Contract (or as otherwise required by the Contract Documents), Contractor shall submit to Engineer for timely review: 1. a preliminary Progress Schedule indicating the times (numbers of days or dates) for starting and completing the various stages of the Work, including any Milestones specified in the Contract; 2. a preliminary Schedule of Submittals; and 61 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 8 of 70 3. a preliminary Schedule of Values for all of the Work which includes quantities and prices of items which when added together equal the Contract Price and subdivides the Work into component parts in sufficient detail to serve as the basis for progress payments during performance of the Work. Such prices will include an appropriate amount of overhead and profit applicable to each item of Work. 2.04 Preconstruction Conference; Designation of Authorized Representatives A. Before any Work at the Site is started, a conference attended by Owner, Contractor, Engineer, and others as appropriate will be held to establish a working understanding among the parties as to the Work, and to discuss the schedules referred to in Paragraph 2.03.A, procedures for handling Shop Drawings, Samples, and other Submittals, processing Applications for Payment, electronic or digital transmittals, and maintaining required records. B. At this conference Owner and Contractor each shall designate, in writing, a specific individual to act as its authorized representative with respect to the services and responsibilities under the Contract. Such individuals shall have the authority to transmit and receive information, render decisions relative to the Contract, and otherwise act on behalf of each respective party. 2.05 Acceptance of Schedules A. At least 10 days before submission of the first Application for Payment a conference, attended by Contractor, Engineer, and others as appropriate, will be held to review the schedules submitted in accordance with Paragraph 2.03.A. No progress payment will be made to Contractor until acceptable schedules are submitted to Engineer. 1. The Progress Schedule will be acceptable to Engineer if it provides an orderly progression of the Work to completion within the Contract Times. Such acceptance will not impose on Engineer responsibility for the Progress Schedule, for sequencing, scheduling, or progress of the Work, nor interfere with or relieve Contractor from Contractor’s full responsibility therefor. 2. Contractor’s Schedule of Submittals will be acceptable to Engineer if it provides a workable arrangement for reviewing and processing the required submittals. 3. Contractor’s Schedule of Values will be acceptable to Engineer as to form and substance if it provides a reasonable allocation of the Contract Price to the component parts of the Work. 4. If a schedule is not acceptable, Contractor will have an additional 10 days to revise and resubmit the schedule. 2.06 Electronic Transmittals A. Except as otherwise stated elsewhere in the Contract, the Owner, Engineer, and Contractor may send, and shall accept, Electronic Documents transmitted by Electronic Means. B. If the Contract does not establish protocols for Electronic Means, then Owner, Engineer, and Contractor shall jointly develop such protocols. C. Subject to any governing protocols for Electronic Means, when transmitting Electronic Documents by Electronic Means, the transmitting party makes no representations as to long-term compatibility, usability, or readability of the Electronic Documents resulting from the 62 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 9 of 70 recipient’s use of software application packages, operating systems, or computer hardware differing from those used in the drafting or transmittal of the Electronic Documents. ARTICLE 3—CONTRACT DOCUMENTS: INTENT, REQUIREMENTS, REUSE 3.01 Intent A. The Contract Documents are complementary; what is required by one Contract Document is as binding as if required by all. B. It is the intent of the Contract Documents to describe a functionally complete Project (or part thereof) to be constructed in accordance with the Contract Documents. C. Unless otherwise stated in the Contract Documents, if there is a discrepancy between the electronic versions of the Contract Documents (including any printed copies derived from such electronic versions) and the printed record version, the printed record version will govern. D. The Contract supersedes prior negotiations, representations, and agreements, whether written or oral. E. Engineer will issue clarifications and interpretations of the Contract Documents as provided herein. F. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation will be deemed stricken, and all remaining provisions will continue to be valid and binding upon Owner and Contractor, which agree that the Contract Documents will be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. G. Nothing in the Contract Documents creates: 1. any contractual relationship between Owner or Engineer and any Subcontractor, Supplier, or other individual or entity performing or furnishing any of the Work, for the benefit of such Subcontractor, Supplier, or other individual or entity; or 2. any obligation on the part of Owner or Engineer to pay or to see to the payment of any money due any such Subcontractor, Supplier, or other individual or entity, except as may otherwise be required by Laws and Regulations. 3.02 Reference Standards A. Standards Specifications, Codes, Laws and Regulations 1. Reference in the Contract Documents to standard specifications, manuals, reference standards, or codes of any technical society, organization, or association, or to Laws or Regulations, whether such reference be specific or by implication, means the standard specification, manual, reference standard, code, or Laws or Regulations in effect at the time of opening of Bids (or on the Effective Date of the Contract if there were no Bids), except as may be otherwise specifically stated in the Contract Documents. 2. No provision of any such standard specification, manual, reference standard, or code, and no instruction of a Supplier, will be effective to change the duties or responsibilities of Owner, Contractor, or Engineer from those set forth in the part of the Contract Documents prepared by or for Engineer. No such provision or instruction shall be effective 63 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 10 of 70 to assign to Owner or Engineer any duty or authority to supervise or direct the performance of the Work, or any duty or authority to undertake responsibility inconsistent with the provisions of the part of the Contract Documents prepared by or for Engineer. 3.03 Reporting and Resolving Discrepancies A. Reporting Discrepancies 1. Contractor’s Verification of Figures and Field Measurements: Before undertaking each part of the Work, Contractor shall carefully study the Contract Documents, and check and verify pertinent figures and dimensions therein, particularly with respect to applicable field measurements. Contractor shall promptly report in writing to Engineer any conflict, error, ambiguity, or discrepancy that Contractor discovers, or has actual knowledge of, and shall not proceed with any Work affected thereby until the conflict, error, ambiguity, or discrepancy is resolved by a clarification or interpretation by Engineer, or by an amendment or supplement to the Contract issued pursuant to Paragraph 11.01. 2. Contractor’s Review of Contract Documents: If, before or during the performance of the Work, Contractor discovers any conflict, error, ambiguity, or discrepancy within the Contract Documents, or between the Contract Documents and (a) any applicable Law or Regulation, (b) actual field conditions, (c) any standard specification, manual, reference standard, or code, or (d) any instruction of any Supplier, then Contractor shall promptly report it to Engineer in writing. Contractor shall not proceed with the Work affected thereby (except in an emergency as required by Paragraph 7.15) until the conflict, error, ambiguity, or discrepancy is resolved, by a clarification or interpretation by Engineer, or by an amendment or supplement to the Contract issued pursuant to Paragraph 11.01. 3. Contractor shall not be liable to Owner or Engineer for failure to report any conflict, error, ambiguity, or discrepancy in the Contract Documents unless Contractor had actual knowledge thereof. B. Resolving Discrepancies 1. Except as may be otherwise specifically stated in the Contract Documents, the provisions of the part of the Contract Documents prepared by or for Engineer take precedence in resolving any conflict, error, ambiguity, or discrepancy between such provisions of the Contract Documents and: a. the provisions of any standard specification, manual, reference standard, or code, or the instruction of any Supplier (whether or not specifically incorporated by reference as a Contract Document); or b. the provisions of any Laws or Regulations applicable to the performance of the Work (unless such an interpretation of the provisions of the Contract Documents would result in violation of such Law or Regulation). 3.04 Requirements of the Contract Documents A. During the performance of the Work and until final payment, Contractor and Owner shall submit to the Engineer in writing all matters in question concerning the requirements of the Contract Documents (sometimes referred to as requests for information or interpretation—RFIs), or relating to the acceptability of the Work under the Contract Documents, as soon as 64 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 11 of 70 possible after such matters arise. Engineer will be the initial interpreter of the requirements of the Contract Documents, and judge of the acceptability of the Work. B. Engineer will, with reasonable promptness, render a written clarification, interpretation, or decision on the issue submitted, or initiate an amendment or supplement to the Contract Documents. Engineer’s written clarification, interpretation, or decision will be final and binding on Contractor, unless it appeals by submitting a Change Proposal, and on Owner, unless it appeals by filing a Claim. C. If a submitted matter in question concerns terms and conditions of the Contract Documents that do not involve (1) the performance or acceptability of the Work under the Contract Documents, (2) the design (as set forth in the Drawings, Specifications, or otherwise), or (3) other engineering or technical matters, then Engineer will promptly notify Owner and Contractor in writing that Engineer is unable to provide a decision or interpretation. If Owner and Contractor are unable to agree on resolution of such a matter in question, either party may pursue resolution as provided in Article 12. 3.05 Reuse of Documents A. Contractor and its Subcontractors and Suppliers shall not: 1. have or acquire any title to or ownership rights in any of the Drawings, Specifications, or other documents (or copies of any thereof) prepared by or bearing the seal of Engineer or its consultants, including electronic media versions, or reuse any such Drawings, Specifications, other documents, or copies thereof on extensions of the Project or any other project without written consent of Owner and Engineer and specific written verification or adaptation by Engineer; or 2. have or acquire any title or ownership rights in any other Contract Documents, reuse any such Contract Documents for any purpose without Owner’s express written consent, or violate any copyrights pertaining to such Contract Documents. B. The prohibitions of this Paragraph 3.05 will survive final payment, or termination of the Contract. Nothing herein precludes Contractor from retaining copies of the Contract Documents for record purposes. ARTICLE 4—COMMENCEMENT AND PROGRESS OF THE WORK 4.01 Commencement of Contract Times; Notice to Proceed A. The Contract Times will commence to run on the 30th day after the Effective Date of the Contract or, if a Notice to Proceed is given, on the day indicated in the Notice to Proceed. A Notice to Proceed may be given at any time within 30 days after the Effective Date of the Contract. In no event will the Contract Times commence to run later than the 60th day after the day of Bid opening or the 30th day after the Effective Date of the Contract, whichever date is earlier. 4.02 Starting the Work A. Contractor shall start to perform the Work on the date when the Contract Times commence to run. No Work may be done at the Site prior to such date. 65 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 12 of 70 4.03 Reference Points A. Owner shall provide engineering surveys to establish reference points for construction which in Engineer’s judgment are necessary to enable Contractor to proceed with the Work. Contractor shall be responsible for laying out the Work, shall protect and preserve the established reference points and property monuments, and shall make no changes or relocations without the prior written approval of Owner. Contractor shall report to Engineer whenever any reference point or property monument is lost or destroyed or requires relocation because of necessary changes in grades or locations, and shall be responsible for the accurate replacement or relocation of such reference points or property monuments by professionally qualified personnel. 4.04 Progress Schedule A. Contractor shall adhere to the Progress Schedule established in accordance with Paragraph 2.05 as it may be adjusted from time to time as provided below. 1. Contractor shall submit to Engineer for acceptance (to the extent indicated in Paragraph 2.05) proposed adjustments in the Progress Schedule that will not result in changing the Contract Times. 2. Proposed adjustments in the Progress Schedule that will change the Contract Times must be submitted in accordance with the requirements of Article 11. B. Contractor shall carry on the Work and adhere to the Progress Schedule during all disputes or disagreements with Owner. No Work will be delayed or postponed pending resolution of any disputes or disagreements, or during any appeal process, except as permitted by Paragraph 16.04, or as Owner and Contractor may otherwise agree in writing. 4.05 Delays in Contractor’s Progress A. If Owner, Engineer, or anyone for whom Owner is responsible, delays, disrupts, or interferes with the performance or progress of the Work, then Contractor shall be entitled to an equitable adjustment in Contract Price or Contract Times. B. Contractor shall not be entitled to an adjustment in Contract Price or Contract Times for delay, disruption, or interference caused by or within the control of Contractor. Delay, disruption, and interference attributable to and within the control of a Subcontractor or Supplier shall be deemed to be within the control of Contractor. C. If Contractor’s performance or progress is delayed, disrupted, or interfered with by unanticipated causes not the fault of and beyond the control of Owner, Contractor, and those for which they are responsible, then Contractor shall be entitled to an equitable adjustment in Contract Times. Such an adjustment will be Contractor’s sole and exclusive remedy for the delays, disruption, and interference described in this paragraph. Causes of delay, disruption, or interference that may give rise to an adjustment in Contract Times under this paragraph include but are not limited to the following: 1. Severe and unavoidable natural catastrophes such as fires, floods, epidemics, and earthquakes; 2. Abnormal weather conditions; 3. Acts or failures to act of third-party utility owners or other third-party entities (other than those third-party utility owners or other third-party entities performing other work at or 66 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 13 of 70 adjacent to the Site as arranged by or under contract with Owner, as contemplated in Article 8); and 4. Acts of war or terrorism. D. Contractor’s entitlement to an adjustment of Contract Times or Contract Price is limited as follows: 1. Contractor’s entitlement to an adjustment of the Contract Times is conditioned on the delay, disruption, or interference adversely affecting an activity on the critical path to completion of the Work, as of the time of the delay, disruption, or interference. 2. Contractor shall not be entitled to an adjustment in Contract Price for any delay, disruption, or interference if such delay is concurrent with a delay, disruption, or interference caused by or within the control of Contractor. Such a concurrent delay by Contractor shall not preclude an adjustment of Contract Times to which Contractor is otherwise entitled. 3. Adjustments of Contract Times or Contract Price are subject to the provisions of Article 11. E. Each Contractor request or Change Proposal seeking an increase in Contract Times or Contract Price must be supplemented by supporting data that sets forth in detail the following: 1. The circumstances that form the basis for the requested adjustment; 2. The date upon which each cause of delay, disruption, or interference began to affect the progress of the Work; 3. The date upon which each cause of delay, disruption, or interference ceased to affect the progress of the Work; 4. The number of days’ increase in Contract Times claimed as a consequence of each such cause of delay, disruption, or interference; and 5. The impact on Contract Price, in accordance with the provisions of Paragraph 11.07. Contractor shall also furnish such additional supporting documentation as Owner or Engineer may require including, where appropriate, a revised progress schedule indicating all the activities affected by the delay, disruption, or interference, and an explanation of the effect of the delay, disruption, or interference on the critical path to completion of the Work. F. Delays, disruption, and interference to the performance or progress of the Work resulting from the existence of a differing subsurface or physical condition, an Underground Facility that was not shown or indicated by the Contract Documents, or not shown or indicated with reasonable accuracy, and those resulting from Hazardous Environmental Conditions, are governed by Article 5, together with the provisions of Paragraphs 4.05.D and 4.05.E. G. Paragraph 8.03 addresses delays, disruption, and interference to the performance or progress of the Work resulting from the performance of certain other work at or adjacent to the Site. 67 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 14 of 70 ARTICLE 5—SITE; SUBSURFACE AND PHYSICAL CONDITIONS; HAZARDOUS ENVIRONMENTAL CONDITIONS 5.01 Availability of Lands A. Owner shall furnish the Site. Owner shall notify Contractor in writing of any encumbrances or restrictions not of general application but specifically related to use of the Site with which Contractor must comply in performing the Work. B. Upon reasonable written request, Owner shall furnish Contractor with a current statement of record legal title and legal description of the lands upon which permanent improvements are to be made and Owner’s interest therein as necessary for giving notice of or filing a mechanic’s or construction lien against such lands in accordance with applicable Laws and Regulations. C. Contractor shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment. 5.02 Use of Site and Other Areas A. Limitation on Use of Site and Other Areas 1. Contractor shall confine construction equipment, temporary construction facilities, the storage of materials and equipment, and the operations of workers to the Site, adjacent areas that Contractor has arranged to use through construction easements or otherwise, and other adjacent areas permitted by Laws and Regulations, and shall not unreasonably encumber the Site and such other adjacent areas with construction equipment or other materials or equipment. Contractor shall assume full responsibility for (a) damage to the Site; (b) damage to any such other adjacent areas used for Contractor’s operations; (c) damage to any other adjacent land or areas, or to improvements, structures, utilities, or similar facilities located at such adjacent lands or areas; and (d) for injuries and losses sustained by the owners or occupants of any such land or areas; provided that such damage or injuries result from the performance of the Work or from other actions or conduct of the Contractor or those for which Contractor is responsible. 2. If a damage or injury claim is made by the owner or occupant of any such land or area because of the performance of the Work, or because of other actions or conduct of the Contractor or those for which Contractor is responsible, Contractor shall (a) take immediate corrective or remedial action as required by Paragraph 7.13, or otherwise; (b) promptly attempt to settle the claim as to all parties through negotiations with such owner or occupant, or otherwise resolve the claim by arbitration or other dispute resolution proceeding, or in a court of competent jurisdiction; and (c) to the fullest extent permitted by Laws and Regulations, indemnify and hold harmless Owner and Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them, from and against any such claim, and against all costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to any claim or action, legal or equitable, brought by any such owner or occupant against Owner, Engineer, or any other party indemnified hereunder to the extent caused directly or indirectly, in whole or in part by, or based upon, Contractor’s performance of the Work, or because of other actions or conduct of the Contractor or those for which Contractor is responsible. 68 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 15 of 70 B. Removal of Debris During Performance of the Work: During the progress of the Work the Contractor shall keep the Site and other adjacent areas free from accumulations of waste materials, rubbish, and other debris. Removal and disposal of such waste materials, rubbish, and other debris will conform to applicable Laws and Regulations. C. Cleaning: Prior to Substantial Completion of the Work Contractor shall clean the Site and the Work and make it ready for utilization by Owner. At the completion of the Work Contractor shall remove from the Site and adjacent areas all tools, appliances, construction equipment and machinery, and surplus materials and shall restore to original condition all property not designated for alteration by the Contract Documents. D. Loading of Structures: Contractor shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall Contractor subject any part of the Work or adjacent structures or land to stresses or pressures that will endanger them. 5.03 Subsurface and Physical Conditions A. Reports and Drawings: The Supplementary Conditions identify: 1. Those reports of explorations and tests of subsurface conditions at or adjacent to the Site that contain Technical Data; 2. Those drawings of existing physical conditions at or adjacent to the Site, including those drawings depicting existing surface or subsurface structures at or adjacent to the Site (except Underground Facilities), that contain Technical Data; and 3. Technical Data contained in such reports and drawings. B. Underground Facilities: Underground Facilities are shown or indicated on the Drawings, pursuant to Paragraph 5.05, and not in the drawings referred to in Paragraph 5.03.A. Information and data regarding the presence or location of Underground Facilities are not intended to be categorized, identified, or defined as Technical Data. C. Reliance by Contractor on Technical Data: Contractor may rely upon the accuracy of the Technical Data expressly identified in the Supplementary Conditions with respect to such reports and drawings, but such reports and drawings are not Contract Documents. If no such express identification has been made, then Contractor may rely upon the accuracy of the Technical Data as defined in Paragraph 1.01.A.46.b. D. Limitations of Other Data and Documents: Except for such reliance on Technical Data, Contractor may not rely upon or make any claim against Owner or Engineer, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors, with respect to: 1. the completeness of such reports and drawings for Contractor’s purposes, including, but not limited to, any aspects of the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor, and safety precautions and programs incident thereto; 2. other data, interpretations, opinions, and information contained in such reports or shown or indicated in such drawings; 3. the contents of other Site-related documents made available to Contractor, such as record drawings from other projects at or adjacent to the Site, or Owner’s archival documents concerning the Site; or 69 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 16 of 70 4. any Contractor interpretation of or conclusion drawn from any Technical Data or any such other data, interpretations, opinions, or information. 5.04 Differing Subsurface or Physical Conditions A. Notice by Contractor: If Contractor believes that any subsurface or physical condition that is uncovered or revealed at the Site: 1. is of such a nature as to establish that any Technical Data on which Contractor is entitled to rely as provided in Paragraph 5.03 is materially inaccurate; 2. is of such a nature as to require a change in the Drawings or Specifications; 3. differs materially from that shown or indicated in the Contract Documents; or 4. is of an unusual nature, and differs materially from conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents; then Contractor shall, promptly after becoming aware thereof and before further disturbing the subsurface or physical conditions or performing any Work in connection therewith (except in an emergency as required by Paragraph 7.15), notify Owner and Engineer in writing about such condition. Contractor shall not further disturb such condition or perform any Work in connection therewith (except with respect to an emergency) until receipt of a written statement permitting Contractor to do so. B. Engineer’s Review: After receipt of written notice as required by the preceding paragraph, Engineer will promptly review the subsurface or physical condition in question; determine whether it is necessary for Owner to obtain additional exploration or tests with respect to the condition; conclude whether the condition falls within any one or more of the differing site condition categories in Paragraph 5.04.A; obtain any pertinent cost or schedule information from Contractor; prepare recommendations to Owner regarding the Contractor’s resumption of Work in connection with the subsurface or physical condition in question and the need for any change in the Drawings or Specifications; and advise Owner in writing of Engineer’s findings, conclusions, and recommendations. C. Owner’s Statement to Contractor Regarding Site Condition: After receipt of Engineer’s written findings, conclusions, and recommendations, Owner shall issue a written statement to Contractor (with a copy to Engineer) regarding the subsurface or physical condition in question, addressing the resumption of Work in connection with such condition, indicating whether any change in the Drawings or Specifications will be made, and adopting or rejecting Engineer’s written findings, conclusions, and recommendations, in whole or in part. D. Early Resumption of Work: If at any time Engineer determines that Work in connection with the subsurface or physical condition in question may resume prior to completion of Engineer’s review or Owner’s issuance of its statement to Contractor, because the condition in question has been adequately documented, and analyzed on a preliminary basis, then the Engineer may at its discretion instruct Contractor to resume such Work. E. Possible Price and Times Adjustments 1. Contractor shall be entitled to an equitable adjustment in Contract Price or Contract Times, to the extent that the existence of a differing subsurface or physical condition, or any related delay, disruption, or interference, causes an increase or decrease in 70 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 17 of 70 Contractor’s cost of, or time required for, performance of the Work; subject, however, to the following: a. Such condition must fall within any one or more of the categories described in Paragraph 5.04.A; b. With respect to Work that is paid for on a unit price basis, any adjustment in Contract Price will be subject to the provisions of Paragraph 13.03; and, c. Contractor’s entitlement to an adjustment of the Contract Times is subject to the provisions of Paragraphs 4.05.D and 4.05.E. 2. Contractor shall not be entitled to any adjustment in the Contract Price or Contract Times with respect to a subsurface or physical condition if: a. Contractor knew of the existence of such condition at the time Contractor made a commitment to Owner with respect to Contract Price and Contract Times by the submission of a Bid or becoming bound under a negotiated contract, or otherwise; b. The existence of such condition reasonably could have been discovered or revealed as a result of any examination, investigation, exploration, test, or study of the Site and contiguous areas expressly required by the Bidding Requirements or Contract Documents to be conducted by or for Contractor prior to Contractor’s making such commitment; or c. Contractor failed to give the written notice required by Paragraph 5.04.A. 3. If Owner and Contractor agree regarding Contractor’s entitlement to and the amount or extent of any adjustment in the Contract Price or Contract Times, then any such adjustment will be set forth in a Change Order. 4. Contractor may submit a Change Proposal regarding its entitlement to or the amount or extent of any adjustment in the Contract Price or Contract Times, no later than 30 days after Owner’s issuance of the Owner’s written statement to Contractor regarding the subsurface or physical condition in question. F. Underground Facilities; Hazardous Environmental Conditions: Paragraph 5.05 governs rights and responsibilities regarding the presence or location of Underground Facilities. Paragraph 5.06 governs rights and responsibilities regarding Hazardous Environmental Conditions. The provisions of Paragraphs 5.03 and 5.04 are not applicable to the presence or location of Underground Facilities, or to Hazardous Environmental Conditions. 5.05 Underground Facilities A. Contractor’s Responsibilities: Unless it is otherwise expressly provided in the Supplementary Conditions, the cost of all of the following are included in the Contract Price, and Contractor shall have full responsibility for: 1. reviewing and checking all information and data regarding existing Underground Facilities at the Site; 2. complying with applicable state and local utility damage prevention Laws and Regulations; 71 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 18 of 70 3. verifying the actual location of those Underground Facilities shown or indicated in the Contract Documents as being within the area affected by the Work, by exposing such Underground Facilities during the course of construction; 4. coordination of the Work with the owners (including Owner) of such Underground Facilities, during construction; and 5. the safety and protection of all existing Underground Facilities at the Site, and repairing any damage thereto resulting from the Work. B. Notice by Contractor: If Contractor believes that an Underground Facility that is uncovered or revealed at the Site was not shown or indicated on the Drawings, or was not shown or indicated on the Drawings with reasonable accuracy, then Contractor shall, promptly after becoming aware thereof and before further disturbing conditions affected thereby or performing any Work in connection therewith (except in an emergency as required by Paragraph 7.15), notify Owner and Engineer in writing regarding such Underground Facility. C. Engineer’s Review: Engineer will: 1. promptly review the Underground Facility and conclude whether such Underground Facility was not shown or indicated on the Drawings, or was not shown or indicated with reasonable accuracy; 2. identify and communicate with the owner of the Underground Facility; prepare recommendations to Owner (and if necessary issue any preliminary instructions to Contractor) regarding the Contractor’s resumption of Work in connection with the Underground Facility in question; 3. obtain any pertinent cost or schedule information from Contractor; determine the extent, if any, to which a change is required in the Drawings or Specifications to reflect and document the consequences of the existence or location of the Underground Facility; and 4. advise Owner in writing of Engineer’s findings, conclusions, and recommendations. During such time, Contractor shall be responsible for the safety and protection of such Underground Facility. D. Owner’s Statement to Contractor Regarding Underground Facility: After receipt of Engineer’s written findings, conclusions, and recommendations, Owner shall issue a written statement to Contractor (with a copy to Engineer) regarding the Underground Facility in question addressing the resumption of Work in connection with such Underground Facility, indicating whether any change in the Drawings or Specifications will be made, and adopting or rejecting Engineer’s written findings, conclusions, and recommendations in whole or in part. E. Early Resumption of Work: If at any time Engineer determines that Work in connection with the Underground Facility may resume prior to completion of Engineer’s review or Owner’s issuance of its statement to Contractor, because the Underground Facility in question and conditions affected by its presence have been adequately documented, and analyzed on a preliminary basis, then the Engineer may at its discretion instruct Contractor to resume such Work. F. Possible Price and Times Adjustments 1. Contractor shall be entitled to an equitable adjustment in the Contract Price or Contract Times, to the extent that any existing Underground Facility at the Site that was not shown 72 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 19 of 70 or indicated on the Drawings, or was not shown or indicated with reasonable accuracy, or any related delay, disruption, or interference, causes an increase or decrease in Contractor’s cost of, or time required for, performance of the Work; subject, however, to the following: a. With respect to Work that is paid for on a unit price basis, any adjustment in Contract Price will be subject to the provisions of Paragraph 13.03; b. Contractor’s entitlement to an adjustment of the Contract Times is subject to the provisions of Paragraphs 4.05.D and 4.05.E; and c. Contractor gave the notice required in Paragraph 5.05.B. 2. If Owner and Contractor agree regarding Contractor’s entitlement to and the amount or extent of any adjustment in the Contract Price or Contract Times, then any such adjustment will be set forth in a Change Order. 3. Contractor may submit a Change Proposal regarding its entitlement to or the amount or extent of any adjustment in the Contract Price or Contract Times, no later than 30 days after Owner’s issuance of the Owner’s written statement to Contractor regarding the Underground Facility in question. 4. The information and data shown or indicated on the Drawings with respect to existing Underground Facilities at the Site is based on information and data (a) furnished by the owners of such Underground Facilities, or by others, (b) obtained from available records, or (c) gathered in an investigation conducted in accordance with the current edition of ASCE 38, Standard Guideline for the Collection and Depiction of Existing Subsurface Utility Data, by the American Society of Civil Engineers. If such information or data is incorrect or incomplete, Contractor’s remedies are limited to those set forth in this Paragraph 5.05.F. 5.06 Hazardous Environmental Conditions at Site A. Reports and Drawings: The Supplementary Conditions identify: 1. those reports known to Owner relating to Hazardous Environmental Conditions that have been identified at or adjacent to the Site; 2. drawings known to Owner relating to Hazardous Environmental Conditions that have been identified at or adjacent to the Site; and 3. Technical Data contained in such reports and drawings. B. Reliance by Contractor on Technical Data Authorized: Contractor may rely upon the accuracy of the Technical Data expressly identified in the Supplementary Conditions with respect to such reports and drawings, but such reports and drawings are not Contract Documents. If no such express identification has been made, then Contractor may rely on the accuracy of the Technical Data as defined in Paragraph 1.01.A.46.b. Except for such reliance on Technical Data, Contractor may not rely upon or make any claim against Owner or Engineer, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors, with respect to: 1. the completeness of such reports and drawings for Contractor’s purposes, including, but not limited to, any aspects of the means, methods, techniques, sequences and procedures 73 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 20 of 70 of construction to be employed by Contractor, and safety precautions and programs incident thereto; 2. other data, interpretations, opinions, and information contained in such reports or shown or indicated in such drawings; or 3. any Contractor interpretation of or conclusion drawn from any Technical Data or any such other data, interpretations, opinions or information. C. Contractor shall not be responsible for removing or remediating any Hazardous Environmental Condition encountered, uncovered, or revealed at the Site unless such removal or remediation is expressly identified in the Contract Documents to be within the scope of the Work. D. Contractor shall be responsible for controlling, containing, and duly removing all Constituents of Concern brought to the Site by Contractor, Subcontractors, Suppliers, or anyone else for whom Contractor is responsible, and for any associated costs; and for the costs of removing and remediating any Hazardous Environmental Condition created by the presence of any such Constituents of Concern. E. If Contractor encounters, uncovers, or reveals a Hazardous Environmental Condition whose removal or remediation is not expressly identified in the Contract Documents as being within the scope of the Work, or if Contractor or anyone for whom Contractor is responsible creates a Hazardous Environmental Condition, then Contractor shall immediately: (1) secure or otherwise isolate such condition; (2) stop all Work in connection with such condition and in any area affected thereby (except in an emergency as required by Paragraph 7.15); and (3) notify Owner and Engineer (and promptly thereafter confirm such notice in writing). Owner shall promptly consult with Engineer concerning the necessity for Owner to retain a qualified expert to evaluate such condition or take corrective action, if any. Promptly after consulting with Engineer, Owner shall take such actions as are necessary to permit Owner to timely obtain required permits and provide Contractor the written notice required by Paragraph 5.06.F. If Contractor or anyone for whom Contractor is responsible created the Hazardous Environmental Condition in question, then Owner may remove and remediate the Hazardous Environmental Condition, and impose a set-off against payments to account for the associated costs. F. Contractor shall not resume Work in connection with such Hazardous Environmental Condition or in any affected area until after Owner has obtained any required permits related thereto, and delivered written notice to Contractor either (1) specifying that such condition and any affected area is or has been rendered safe for the resumption of Work, or (2) specifying any special conditions under which such Work may be resumed safely. G. If Owner and Contractor cannot agree as to entitlement to or on the amount or extent, if any, of any adjustment in Contract Price or Contract Times, as a result of such Work stoppage, such special conditions under which Work is agreed to be resumed by Contractor, or any costs or expenses incurred in response to the Hazardous Environmental Condition, then within 30 days of Owner’s written notice regarding the resumption of Work, Contractor may submit a Change Proposal, or Owner may impose a set-off. Entitlement to any such adjustment is subject to the provisions of Paragraphs 4.05.D, 4.05.E, 11.07, and 11.08. H. If, after receipt of such written notice, Contractor does not agree to resume such Work based on a reasonable belief it is unsafe, or does not agree to resume such Work under such special 74 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 21 of 70 conditions, then Owner may order the portion of the Work that is in the area affected by such condition to be deleted from the Work, following the contractual change procedures in Article 11. Owner may have such deleted portion of the Work performed by Owner’s own forces or others in accordance with Article 8. I. To the fullest extent permitted by Laws and Regulations, Owner shall indemnify and hold harmless Contractor, Subcontractors, and Engineer, and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them, from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals, and all court, arbitration, or other dispute resolution costs) arising out of or relating to a Hazardous Environmental Condition, provided that such Hazardous Environmental Condition (1) was not shown or indicated in the Drawings, Specifications, or other Contract Documents, identified as Technical Data entitled to limited reliance pursuant to Paragraph 5.06.B, or identified in the Contract Documents to be included within the scope of the Work, and (2) was not created by Contractor or by anyone for whom Contractor is responsible. Nothing in this Paragraph 5.06.I obligates Owner to indemnify any individual or entity from and against the consequences of that individual’s or entity’s own negligence. J. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them, from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to the failure to control, contain, or remove a Constituent of Concern brought to the Site by Contractor or by anyone for whom Contractor is responsible, or to a Hazardous Environmental Condition created by Contractor or by anyone for whom Contractor is responsible. Nothing in this Paragraph 5.06.J obligates Contractor to indemnify any individual or entity from and against the consequences of that individual’s or entity’s own negligence. K. The provisions of Paragraphs 5.03, 5.04, and 5.05 do not apply to the presence of Constituents of Concern or to a Hazardous Environmental Condition uncovered or revealed at the Site. ARTICLE 6—BONDS AND INSURANCE 6.01 Performance, Payment, and Other Bonds A. Contractor shall furnish a performance bond and a payment bond, each in an amount at least equal to the Contract Price, as security for the faithful performance and payment of Contractor’s obligations under the Contract. These bonds must remain in effect until one year after the date when final payment becomes due or until completion of the correction period specified in Paragraph 15.08, whichever is later, except as provided otherwise by Laws or Regulations, the terms of a prescribed bond form, the Supplementary Conditions, or other provisions of the Contract. B. Contractor shall also furnish such other bonds (if any) as are required by the Supplementary Conditions or other provisions of the Contract. C. All bonds must be in the form included in the Bidding Documents or otherwise specified by Owner prior to execution of the Contract, except as provided otherwise by Laws or 75 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 22 of 70 Regulations, and must be issued and signed by a surety named in “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies” as published in Department Circular 570 (as amended and supplemented) by the Bureau of the Fiscal Service, U.S. Department of the Treasury. A bond signed by an agent or attorney-in-fact must be accompanied by a certified copy of that individual’s authority to bind the surety. The evidence of authority must show that it is effective on the date the agent or attorney-in-fact signed the accompanying bond. D. Contractor shall obtain the required bonds from surety companies that are duly licensed or authorized, in the state or jurisdiction in which the Project is located, to issue bonds in the required amounts. E. If the surety on a bond furnished by Contractor is declared bankrupt or becomes insolvent, or the surety ceases to meet the requirements above, then Contractor shall promptly notify Owner and Engineer in writing and shall, within 20 days after the event giving rise to such notification, provide another bond and surety, both of which must comply with the bond and surety requirements above. F. If Contractor has failed to obtain a required bond, Owner may exclude the Contractor from the Site and exercise Owner’s termination rights under Article 16. G. Upon request to Owner from any Subcontractor, Supplier, or other person or entity claiming to have furnished labor, services, materials, or equipment used in the performance of the Work, Owner shall provide a copy of the payment bond to such person or entity. H. Upon request to Contractor from any Subcontractor, Supplier, or other person or entity claiming to have furnished labor, services, materials, or equipment used in the performance of the Work, Contractor shall provide a copy of the payment bond to such person or entity. 6.02 Insurance—General Provisions A. Owner and Contractor shall obtain and maintain insurance as required in this article and in the Supplementary Conditions. B. All insurance required by the Contract to be purchased and maintained by Owner or Contractor shall be obtained from insurance companies that are duly licensed or authorized in the state or jurisdiction in which the Project is located to issue insurance policies for the required limits and coverages. Unless a different standard is indicated in the Supplementary Conditions, all companies that provide insurance policies required under this Contract shall have an A.M. Best rating of A-VII or better. C. Alternative forms of insurance coverage, including but not limited to self-insurance and “Occupational Accident and Excess Employer’s Indemnity Policies,” are not sufficient to meet the insurance requirements of this Contract, unless expressly allowed in the Supplementary Conditions. D. Contractor shall deliver to Owner, with copies to each additional insured identified in the Contract, certificates of insurance and endorsements establishing that Contractor has obtained and is maintaining the policies and coverages required by the Contract. Upon request by Owner or any other insured, Contractor shall also furnish other evidence of such required insurance, including but not limited to copies of policies, documentation of applicable self-insured retentions (if allowed) and deductibles, full disclosure of all relevant exclusions, and evidence of insurance required to be purchased and maintained by 76 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 23 of 70 Subcontractors or Suppliers. In any documentation furnished under this provision, Contractor, Subcontractors, and Suppliers may block out (redact) (1) any confidential premium or pricing information and (2) any wording specific to a project or jurisdiction other than those applicable to this Contract. E. Owner shall deliver to Contractor, with copies to each additional insured identified in the Contract, certificates of insurance and endorsements establishing that Owner has obtained and is maintaining the policies and coverages required of Owner by the Contract (if any). Upon request by Contractor or any other insured, Owner shall also provide other evidence of such required insurance (if any), including but not limited to copies of policies, documentation of applicable self-insured retentions (if allowed) and deductibles, and full disclosure of all relevant exclusions. In any documentation furnished under this provision, Owner may block out (redact) (1) any confidential premium or pricing information and (2) any wording specific to a project or jurisdiction other than those relevant to this Contract. F. Failure of Owner or Contractor to demand such certificates or other evidence of the other party’s full compliance with these insurance requirements, or failure of Owner or Contractor to identify a deficiency in compliance from the evidence provided, will not be construed as a waiver of the other party’s obligation to obtain and maintain such insurance. G. In addition to the liability insurance required to be provided by Contractor, the Owner, at Owner’s option, may purchase and maintain Owner’s own liability insurance. Owner’s liability policies, if any, operate separately and independently from policies required to be provided by Contractor, and Contractor cannot rely upon Owner’s liability policies for any of Contractor’s obligations to the Owner, Engineer, or third parties. H. Contractor shall require: 1. Subcontractors to purchase and maintain worker’s compensation, commercial general liability, and other insurance that is appropriate for their participation in the Project, and to name as additional insureds Owner and Engineer (and any other individuals or entities identified in the Supplementary Conditions as additional insureds on Contractor’s liability policies) on each Subcontractor’s commercial general liability insurance policy; and 2. Suppliers to purchase and maintain insurance that is appropriate for their participation in the Project. I. If either party does not purchase or maintain the insurance required of such party by the Contract, such party shall notify the other party in writing of such failure to purchase prior to the start of the Work, or of such failure to maintain prior to any change in the required coverage. J. If Contractor has failed to obtain and maintain required insurance, Contractor’s entitlement to enter or remain at the Site will end immediately, and Owner may impose an appropriate set-off against payment for any associated costs (including but not limited to the cost of purchasing necessary insurance coverage), and exercise Owner’s termination rights under Article 16. K. Without prejudice to any other right or remedy, if a party has failed to obtain required insurance, the other party may elect (but is in no way obligated) to obtain equivalent insurance to protect such other party’s interests at the expense of the party who was required to provide such coverage, and the Contract Price will be adjusted accordingly. 77 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 24 of 70 L. Owner does not represent that insurance coverage and limits established in this Contract necessarily will be adequate to protect Contractor or Contractor’s interests. Contractor is responsible for determining whether such coverage and limits are adequate to protect its interests, and for obtaining and maintaining any additional insurance that Contractor deems necessary. M. The insurance and insurance limits required herein will not be deemed as a limitation on Contractor’s liability, or that of its Subcontractors or Suppliers, under the indemnities granted to Owner and other individuals and entities in the Contract or otherwise. N. All the policies of insurance required to be purchased and maintained under this Contract will contain a provision or endorsement that the coverage afforded will not be canceled, or renewal refused, until at least 10 days prior written notice has been given to the purchasing policyholder. Within three days of receipt of any such written notice, the purchasing policyholder shall provide a copy of the notice to each other insured and Engineer. 6.03 Contractor’s Insurance A. Required Insurance: Contractor shall purchase and maintain Worker’s Compensation, Commercial General Liability, and other insurance pursuant to the specific requirements of the Supplementary Conditions. B. General Provisions: The policies of insurance required by this Paragraph 6.03 as supplemented must: 1. include at least the specific coverages required; 2. be written for not less than the limits provided, or those required by Laws or Regulations, whichever is greater; 3. remain in effect at least until the Work is complete (as set forth in Paragraph 15.06.D), and longer if expressly required elsewhere in this Contract, and at all times thereafter when Contractor may be correcting, removing, or replacing defective Work as a warranty or correction obligation, or otherwise, or returning to the Site to conduct other tasks arising from the Contract; 4. apply with respect to the performance of the Work, whether such performance is by Contractor, any Subcontractor or Supplier, or by anyone directly or indirectly employed by any of them to perform any of the Work, or by anyone for whose acts any of them may be liable; and 5. include all necessary endorsements to support the stated requirements. C. Additional Insureds: The Contractor’s commercial general liability, automobile liability, employer’s liability, umbrella or excess, pollution liability, and unmanned aerial vehicle liability policies, if required by this Contract, must: 1. include and list as additional insureds Owner and Engineer, and any individuals or entities identified as additional insureds in the Supplementary Conditions; 2. include coverage for the respective officers, directors, members, partners, employees, and consultants of all such additional insureds; 3. afford primary coverage to these additional insureds for all claims covered thereby (including as applicable those arising from both ongoing and completed operations); 78 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 25 of 70 4. not seek contribution from insurance maintained by the additional insured; and 5. as to commercial general liability insurance, apply to additional insureds with respect to liability caused in whole or in part by Contractor’s acts or omissions, or the acts and omissions of those working on Contractor’s behalf, in the performance of Contractor’s operations. 6.04 Builder’s Risk and Other Property Insurance A. Builder’s Risk: Unless otherwise provided in the Supplementary Conditions, Contractor shall purchase and maintain builder’s risk insurance upon the Work on a completed value basis, in the amount of the Work’s full insurable replacement cost (subject to such deductible amounts as may be provided in the Supplementary Conditions or required by Laws and Regulations). The specific requirements applicable to the builder’s risk insurance are set forth in the Supplementary Conditions. B. Property Insurance for Facilities of Owner Where Work Will Occur: Owner is responsible for obtaining and maintaining property insurance covering each existing structure, building, or facility in which any part of the Work will occur, or to which any part of the Work will attach or be adjoined. Such property insurance will be written on a special perils (all-risk) form, on a replacement cost basis, providing coverage consistent with that required for the builder’s risk insurance, and will be maintained until the Work is complete, as set forth in Paragraph 15.06.D. C. Property Insurance for Substantially Complete Facilities: Promptly after Substantial Completion, and before actual occupancy or use of the substantially completed Work, Owner will obtain property insurance for such substantially completed Work, and maintain such property insurance at least until the Work is complete, as set forth in Paragraph 15.06.D. Such property insurance will be written on a special perils (all-risk) form, on a replacement cost basis, and provide coverage consistent with that required for the builder’s risk insurance. The builder’s risk insurance may terminate upon written confirmation of Owner’s procurement of such property insurance. D. Partial Occupancy or Use by Owner: If Owner will occupy or use a portion or portions of the Work prior to Substantial Completion of all the Work, as provided in Paragraph 15.04, then Owner (directly, if it is the purchaser of the builder’s risk policy, or through Contractor) will provide advance notice of such occupancy or use to the builder’s risk insurer, and obtain an endorsement consenting to the continuation of coverage prior to commencing such partial occupancy or use. E. Insurance of Other Property; Additional Insurance: If the express insurance provisions of the Contract do not require or address the insurance of a property item or interest, then the entity or individual owning such property item will be responsible for insuring it. If Contractor elects to obtain other special insurance to be included in or supplement the builder’s risk or property insurance policies provided under this Paragraph 6.04, it may do so at Contractor’s expense. 6.05 Property Losses; Subrogation A. The builder’s risk insurance policy purchased and maintained in accordance with Paragraph 6.04 (or an installation floater policy if authorized by the Supplementary Conditions), will contain provisions to the effect that in the event of payment of any loss or damage the insurer will have no rights of recovery against any insureds thereunder, or against 79 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 26 of 70 Engineer or its consultants, or their officers, directors, members, partners, employees, agents, consultants, or subcontractors. 1. Owner and Contractor waive all rights against each other and the respective officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them, for all losses and damages caused by, arising out of, or resulting from any of the perils, risks, or causes of loss covered by such policies and any other property insurance applicable to the Work; and, in addition, waive all such rights against Engineer, its consultants, all individuals or entities identified in the Supplementary Conditions as builder’s risk or installation floater insureds, and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them, under such policies for losses and damages so caused. 2. None of the above waivers extends to the rights that any party making such waiver may have to the proceeds of insurance held by Owner or Contractor as trustee or fiduciary, or otherwise payable under any policy so issued. B. Any property insurance policy maintained by Owner covering any loss, damage, or consequential loss to Owner’s existing structures, buildings, or facilities in which any part of the Work will occur, or to which any part of the Work will attach or adjoin; to adjacent structures, buildings, or facilities of Owner; or to part or all of the completed or substantially completed Work, during partial occupancy or use pursuant to Paragraph 15.04, after Substantial Completion pursuant to Paragraph 15.03, or after final payment pursuant to Paragraph 15.06, will contain provisions to the effect that in the event of payment of any loss or damage the insurer will have no rights of recovery against any insureds thereunder, or against Contractor, Subcontractors, or Engineer, or the officers, directors, members, partners, employees, agents, consultants, or subcontractors of each and any of them, and that the insured is allowed to waive the insurer’s rights of subrogation in a written contract executed prior to the loss, damage, or consequential loss. 1. Owner waives all rights against Contractor, Subcontractors, and Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them, for all losses and damages caused by, arising out of, or resulting from fire or any of the perils, risks, or causes of loss covered by such policies. C. The waivers in this Paragraph 6.05 include the waiver of rights due to business interruption, loss of use, or other consequential loss extending beyond direct physical loss or damage to Owner’s property or the Work caused by, arising out of, or resulting from fire or other insured peril, risk, or cause of loss. D. Contractor shall be responsible for assuring that each Subcontract contains provisions whereby the Subcontractor waives all rights against Owner, Contractor, all individuals or entities identified in the Supplementary Conditions as insureds, the Engineer and its consultants, and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them, for all losses and damages caused by, arising out of, relating to, or resulting from fire or other peril, risk, or cause of loss covered by builder’s risk insurance, installation floater, and any other property insurance applicable to the Work. 80 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 27 of 70 6.06 Receipt and Application of Property Insurance Proceeds A. Any insured loss under the builder’s risk and other policies of property insurance required by Paragraph 6.04 will be adjusted and settled with the named insured that purchased the policy. Such named insured shall act as fiduciary for the other insureds, and give notice to such other insureds that adjustment and settlement of a claim is in progress. Any other insured may state its position regarding a claim for insured loss in writing within 15 days after notice of such claim. B. Proceeds for such insured losses may be made payable by the insurer either jointly to multiple insureds, or to the named insured that purchased the policy in its own right and as fiduciary for other insureds, subject to the requirements of any applicable mortgage clause. A named insured receiving insurance proceeds under the builder’s risk and other policies of insurance required by Paragraph 6.04 shall maintain such proceeds in a segregated account, and distribute such proceeds in accordance with such agreement as the parties in interest may reach, or as otherwise required under the dispute resolution provisions of this Contract or applicable Laws and Regulations. C. If no other special agreement is reached, Contractor shall repair or replace the damaged Work, using allocated insurance proceeds. ARTICLE 7—CONTRACTOR’S RESPONSIBILITIES 7.01 Contractor’s Means and Methods of Construction A. Contractor shall be solely responsible for the means, methods, techniques, sequences, and procedures of construction. B. If the Contract Documents note, or Contractor determines, that professional engineering or other design services are needed to carry out Contractor’s responsibilities for construction means, methods, techniques, sequences, and procedures, or for Site safety, then Contractor shall cause such services to be provided by a properly licensed design professional, at Contractor’s expense. Such services are not Owner-delegated professional design services under this Contract, and neither Owner nor Engineer has any responsibility with respect to (1) Contractor’s determination of the need for such services, (2) the qualifications or licensing of the design professionals retained or employed by Contractor, (3) the performance of such services, or (4) any errors, omissions, or defects in such services. 7.02 Supervision and Superintendence A. Contractor shall supervise, inspect, and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. B. At all times during the progress of the Work, Contractor shall assign a competent resident superintendent who will not be replaced without written notice to Owner and Engineer except under extraordinary circumstances. 7.03 Labor; Working Hours A. Contractor shall provide competent, suitably qualified personnel to survey and lay out the Work and perform construction as required by the Contract Documents. Contractor shall maintain good discipline and order at the Site. 81 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 28 of 70 B. Contractor shall be fully responsible to Owner and Engineer for all acts and omissions of Contractor’s employees; of Suppliers and Subcontractors, and their employees; and of any other individuals or entities performing or furnishing any of the Work, just as Contractor is responsible for Contractor’s own acts and omissions. C. Except as otherwise required for the safety or protection of persons or the Work or property at the Site or adjacent thereto, and except as otherwise stated in the Contract Documents, all Work at the Site will be performed during regular working hours, Monday through Friday. Contractor will not perform Work on a Saturday, Sunday, or any legal holiday. Contractor may perform Work outside regular working hours or on Saturdays, Sundays, or legal holidays only with Owner’s written consent, which will not be unreasonably withheld. 7.04 Services, Materials, and Equipment A. Unless otherwise specified in the Contract Documents, Contractor shall provide and assume full responsibility for all services, materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities, and all other facilities and incidentals necessary for the performance, testing, start up, and completion of the Work, whether or not such items are specifically called for in the Contract Documents. B. All materials and equipment incorporated into the Work must be new and of good quality, except as otherwise provided in the Contract Documents. All special warranties and guarantees required by the Specifications will expressly run to the benefit of Owner. If required by Engineer, Contractor shall furnish satisfactory evidence (including reports of required tests) as to the source, kind, and quality of materials and equipment. C. All materials and equipment must be stored, applied, installed, connected, erected, protected, used, cleaned, and conditioned in accordance with instructions of the applicable Supplier, except as otherwise may be provided in the Contract Documents. 7.05 “Or Equals” A. Contractor’s Request; Governing Criteria: Whenever an item of equipment or material is specified or described in the Contract Documents by using the names of one or more proprietary items or specific Suppliers, the Contract Price has been based upon Contractor furnishing such item as specified. The specification or description of such an item is intended to establish the type, function, appearance, and quality required. Unless the specification or description contains or is followed by words reading that no like, equivalent, or “or equal” item is permitted, Contractor may request that Engineer authorize the use of other items of equipment or material, or items from other proposed Suppliers, under the circumstances described below. 1. If Engineer in its sole discretion determines that an item of equipment or material proposed by Contractor is functionally equal to that named and sufficiently similar so that no change in related Work will be required, Engineer will deem it an “or equal” item. For the purposes of this paragraph, a proposed item of equipment or material will be considered functionally equal to an item so named if: a. in the exercise of reasonable judgment Engineer determines that the proposed item: 1) is at least equal in materials of construction, quality, durability, appearance, strength, and design characteristics; 82 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 29 of 70 2) will reliably perform at least equally well the function and achieve the results imposed by the design concept of the completed Project as a functioning whole; 3) has a proven record of performance and availability of responsive service; and 4) is not objectionable to Owner. b. Contractor certifies that, if the proposed item is approved and incorporated into the Work: 1) there will be no increase in cost to the Owner or increase in Contract Times; and 2) the item will conform substantially to the detailed requirements of the item named in the Contract Documents. B. Contractor’s Expense: Contractor shall provide all data in support of any proposed “or equal” item at Contractor’s expense. C. Engineer’s Evaluation and Determination: Engineer will be allowed a reasonable time to evaluate each “or-equal” request. Engineer may require Contractor to furnish additional data about the proposed “or-equal” item. Engineer will be the sole judge of acceptability. No “or-equal” item will be ordered, furnished, installed, or utilized until Engineer’s review is complete and Engineer determines that the proposed item is an “or-equal,” which will be evidenced by an approved Shop Drawing or other written communication. Engineer will advise Contractor in writing of any negative determination. D. Effect of Engineer’s Determination: Neither approval nor denial of an “or-equal” request will result in any change in Contract Price. The Engineer’s denial of an “or-equal” request will be final and binding, and may not be reversed through an appeal under any provision of the Contract. E. Treatment as a Substitution Request: If Engineer determines that an item of equipment or material proposed by Contractor does not qualify as an “or-equal” item, Contractor may request that Engineer consider the item a proposed substitute pursuant to Paragraph 7.06. 7.06 Substitutes A. Contractor’s Request; Governing Criteria: Unless the specification or description of an item of equipment or material required to be furnished under the Contract Documents contains or is followed by words reading that no substitution is permitted, Contractor may request that Engineer authorize the use of other items of equipment or material under the circumstances described below. To the extent possible such requests must be made before commencement of related construction at the Site. 1. Contractor shall submit sufficient information as provided below to allow Engineer to determine if the item of material or equipment proposed is functionally equivalent to that named and an acceptable substitute therefor. Engineer will not accept requests for review of proposed substitute items of equipment or material from anyone other than Contractor. 2. The requirements for review by Engineer will be as set forth in Paragraph 7.06.B, as supplemented by the Specifications, and as Engineer may decide is appropriate under the circumstances. 83 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 30 of 70 3. Contractor shall make written application to Engineer for review of a proposed substitute item of equipment or material that Contractor seeks to furnish or use. The application: a. will certify that the proposed substitute item will: 1) perform adequately the functions and achieve the results called for by the general design; 2) be similar in substance to the item specified; and 3) be suited to the same use as the item specified. b. will state: 1) the extent, if any, to which the use of the proposed substitute item will necessitate a change in Contract Times; 2) whether use of the proposed substitute item in the Work will require a change in any of the Contract Documents (or in the provisions of any other direct contract with Owner for other work on the Project) to adapt the design to the proposed substitute item; and 3) whether incorporation or use of the proposed substitute item in connection with the Work is subject to payment of any license fee or royalty. c. will identify: 1) all variations of the proposed substitute item from the item specified; and 2) available engineering, sales, maintenance, repair, and replacement services. d. will contain an itemized estimate of all costs or credits that will result directly or indirectly from use of such substitute item, including but not limited to changes in Contract Price, shared savings, costs of redesign, and claims of other contractors affected by any resulting change. B. Engineer’s Evaluation and Determination: Engineer will be allowed a reasonable time to evaluate each substitute request, and to obtain comments and direction from Owner. Engineer may require Contractor to furnish additional data about the proposed substitute item. Engineer will be the sole judge of acceptability. No substitute will be ordered, furnished, installed, or utilized until Engineer’s review is complete and Engineer determines that the proposed item is an acceptable substitute. Engineer’s determination will be evidenced by a Field Order or a proposed Change Order accounting for the substitution itself and all related impacts, including changes in Contract Price or Contract Times. Engineer will advise Contractor in writing of any negative determination. C. Special Guarantee: Owner may require Contractor to furnish at Contractor’s expense a special performance guarantee or other surety with respect to any substitute. D. Reimbursement of Engineer’s Cost: Engineer will record Engineer’s costs in evaluating a substitute proposed or submitted by Contractor. Whether or not Engineer approves a substitute so proposed or submitted by Contractor, Contractor shall reimburse Owner for the reasonable charges of Engineer for evaluating each such proposed substitute. Contractor shall also reimburse Owner for the reasonable charges of Engineer for making changes in the Contract Documents (or in the provisions of any other direct contract with Owner) resulting from the acceptance of each proposed substitute. 84 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 31 of 70 E. Contractor’s Expense: Contractor shall provide all data in support of any proposed substitute at Contractor’s expense. F. Effect of Engineer’s Determination: If Engineer approves the substitution request, Contractor shall execute the proposed Change Order and proceed with the substitution. The Engineer’s denial of a substitution request will be final and binding, and may not be reversed through an appeal under any provision of the Contract. Contractor may challenge the scope of reimbursement costs imposed under Paragraph 7.06.D, by timely submittal of a Change Proposal. 7.07 Concerning Subcontractors and Suppliers A. Contractor may retain Subcontractors and Suppliers for the performance of parts of the Work. Such Subcontractors and Suppliers must be acceptable to Owner. The Contractor’s retention of a Subcontractor or Supplier for the performance of parts of the Work will not relieve Contractor’s obligation to Owner to perform and complete the Work in accordance with the Contract Documents. B. Contractor shall retain specific Subcontractors and Suppliers for the performance of designated parts of the Work if required by the Contract to do so. C. Subsequent to the submittal of Contractor’s Bid or final negotiation of the terms of the Contract, Owner may not require Contractor to retain any Subcontractor or Supplier to furnish or perform any of the Work against which Contractor has reasonable objection. D. Prior to entry into any binding subcontract or purchase order, Contractor shall submit to Owner the identity of the proposed Subcontractor or Supplier (unless Owner has already deemed such proposed Subcontractor or Supplier acceptable during the bidding process or otherwise). Such proposed Subcontractor or Supplier shall be deemed acceptable to Owner unless Owner raises a substantive, reasonable objection within 5 days. E. Owner may require the replacement of any Subcontractor or Supplier. Owner also may require Contractor to retain specific replacements; provided, however, that Owner may not require a replacement to which Contractor has a reasonable objection. If Contractor has submitted the identity of certain Subcontractors or Suppliers for acceptance by Owner, and Owner has accepted it (either in writing or by failing to make written objection thereto), then Owner may subsequently revoke the acceptance of any such Subcontractor or Supplier so identified solely on the basis of substantive, reasonable objection after due investigation. Contractor shall submit an acceptable replacement for the rejected Subcontractor or Supplier. F. If Owner requires the replacement of any Subcontractor or Supplier retained by Contractor to perform any part of the Work, then Contractor shall be entitled to an adjustment in Contract Price or Contract Times, with respect to the replacement; and Contractor shall initiate a Change Proposal for such adjustment within 30 days of Owner’s requirement of replacement. G. No acceptance by Owner of any such Subcontractor or Supplier, whether initially or as a replacement, will constitute a waiver of the right of Owner to the completion of the Work in accordance with the Contract Documents. 85 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 32 of 70 H. On a monthly basis, Contractor shall submit to Engineer a complete list of all Subcontractors and Suppliers having a direct contract with Contractor, and of all other Subcontractors and Suppliers known to Contractor at the time of submittal. I. Contractor shall be solely responsible for scheduling and coordinating the work of Subcontractors and Suppliers. J. The divisions and sections of the Specifications and the identifications of any Drawings do not control Contractor in dividing the Work among Subcontractors or Suppliers, or in delineating the Work to be performed by any specific trade. K. All Work performed for Contractor by a Subcontractor or Supplier must be pursuant to an appropriate contractual agreement that specifically binds the Subcontractor or Supplier to the applicable terms and conditions of the Contract for the benefit of Owner and Engineer. L. Owner may furnish to any Subcontractor or Supplier, to the extent practicable, information about amounts paid to Contractor for Work performed for Contractor by the Subcontractor or Supplier. M. Contractor shall restrict all Subcontractors and Suppliers from communicating with Engineer or Owner, except through Contractor or in case of an emergency, or as otherwise expressly allowed in this Contract. 7.08 Patent Fees and Royalties A. Contractor shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any invention, design, process, product, or device which is the subject of patent rights or copyrights held by others. If an invention, design, process, product, or device is specified in the Contract Documents for use in the performance of the Work and if, to the actual knowledge of Owner or Engineer, its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights will be disclosed in the Contract Documents. B. To the fullest extent permitted by Laws and Regulations, Owner shall indemnify and hold harmless Contractor, and its officers, directors, members, partners, employees, agents, consultants, and subcontractors, from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals, and all court or arbitration or other dispute resolution costs) arising out of or relating to any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design, process, product, or device specified in the Contract Documents, but not identified as being subject to payment of any license fee or royalty to others required by patent rights or copyrights. C. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them, from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design, process, product, or device not specified in the Contract Documents. 86 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 33 of 70 7.09 Permits A. Unless otherwise provided in the Contract Documents, Contractor shall obtain and pay for all construction permits, licenses, and certificates of occupancy. Owner shall assist Contractor, when necessary, in obtaining such permits and licenses. Contractor shall pay all governmental charges and inspection fees necessary for the prosecution of the Work which are applicable at the time of the submission of Contractor’s Bid (or when Contractor became bound under a negotiated contract). Owner shall pay all charges of utility owners for connections for providing permanent service to the Work. 7.10 Taxes A. Contractor shall pay all sales, consumer, use, and other similar taxes required to be paid by Contractor in accordance with the Laws and Regulations of the place of the Project which are applicable during the performance of the Work. 7.11 Laws and Regulations A. Contractor shall give all notices required by and shall comply with all Laws and Regulations applicable to the performance of the Work. Neither Owner nor Engineer shall be responsible for monitoring Contractor’s compliance with any Laws or Regulations. B. If Contractor performs any Work or takes any other action knowing or having reason to know that it is contrary to Laws or Regulations, Contractor shall bear all resulting costs and losses, and shall indemnify and hold harmless Owner and Engineer, and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them, from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such Work or other action. It is not Contractor’s responsibility to make certain that the Work described in the Contract Documents is in accordance with Laws and Regulations, but this does not relieve Contractor of its obligations under Paragraph 3.03. C. Owner or Contractor may give written notice to the other party of any changes after the submission of Contractor’s Bid (or after the date when Contractor became bound under a negotiated contract) in Laws or Regulations having an effect on the cost or time of performance of the Work, including but not limited to changes in Laws or Regulations having an effect on procuring permits and on sales, use, value-added, consumption, and other similar taxes. If Owner and Contractor are unable to agree on entitlement to or on the amount or extent, if any, of any adjustment in Contract Price or Contract Times resulting from such changes, then within 30 days of such written notice Contractor may submit a Change Proposal, or Owner may initiate a Claim. 7.12 Record Documents A. Contractor shall maintain in a safe place at the Site one printed record copy of all Drawings, Specifications, Addenda, Change Orders, Work Change Directives, Field Orders, written interpretations and clarifications, and approved Shop Drawings. Contractor shall keep such record documents in good order and annotate them to show changes made during construction. These record documents, together with all approved Samples, will be available to Engineer for reference. Upon completion of the Work, Contractor shall deliver these record documents to Engineer. 87 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 34 of 70 7.13 Safety and Protection A. Contractor shall be solely responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the Work. Such responsibility does not relieve Subcontractors of their responsibility for the safety of persons or property in the performance of their work, nor for compliance with applicable safety Laws and Regulations. B. Contractor shall designate a qualified and experienced safety representative whose duties and responsibilities are the prevention of Work-related accidents and the maintenance and supervision of safety precautions and programs. C. Contractor shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury, or loss to: 1. all persons on the Site or who may be affected by the Work; 2. all the Work and materials and equipment to be incorporated therein, whether in storage on or off the Site; and 3. other property at the Site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, other work in progress, utilities, and Underground Facilities not designated for removal, relocation, or replacement in the course of construction. D. All damage, injury, or loss to any property referred to in Paragraph 7.13.C.2 or 7.13.C.3 caused, directly or indirectly, in whole or in part, by Contractor, any Subcontractor, Supplier, or any other individual or entity directly or indirectly employed by any of them to perform any of the Work, or anyone for whose acts any of them may be liable, shall be remedied by Contractor at its expense (except damage or loss attributable to the fault of Drawings or Specifications or to the acts or omissions of Owner or Engineer or anyone employed by any of them, or anyone for whose acts any of them may be liable, and not attributable, directly or indirectly, in whole or in part, to the fault or negligence of Contractor or any Subcontractor, Supplier, or other individual or entity directly or indirectly employed by any of them). E. Contractor shall comply with all applicable Laws and Regulations relating to the safety of persons or property, or to the protection of persons or property from damage, injury, or loss; and shall erect and maintain all necessary safeguards for such safety and protection. F. Contractor shall notify Owner; the owners of adjacent property; the owners of Underground Facilities and other utilities (if the identity of such owners is known to Contractor); and other contractors and utility owners performing work at or adjacent to the Site, in writing, when Contractor knows that prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation, and replacement of their property or work in progress. G. Contractor shall comply with the applicable requirements of Owner’s safety programs, if any. Any Owner’s safety programs that are applicable to the Work are identified or included in the Supplementary Conditions or Specifications. H. Contractor shall inform Owner and Engineer of the specific requirements of Contractor’s safety program with which Owner’s and Engineer’s employees and representatives must comply while at the Site. 88 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 35 of 70 I. Contractor’s duties and responsibilities for safety and protection will continue until all the Work is completed, Engineer has issued a written notice to Owner and Contractor in accordance with Paragraph 15.06.C that the Work is acceptable, and Contractor has left the Site (except as otherwise expressly provided in connection with Substantial Completion). J. Contractor’s duties and responsibilities for safety and protection will resume whenever Contractor or any Subcontractor or Supplier returns to the Site to fulfill warranty or correction obligations, or to conduct other tasks arising from the Contract Documents. 7.14 Hazard Communication Programs A. Contractor shall be responsible for coordinating any exchange of safety data sheets (formerly known as material safety data sheets) or other hazard communication information required to be made available to or exchanged between or among employers at the Site in accordance with Laws or Regulations. 7.15 Emergencies A. In emergencies affecting the safety or protection of persons or the Work or property at the Site or adjacent thereto, Contractor is obligated to act to prevent damage, injury, or loss. Contractor shall give Engineer prompt written notice if Contractor believes that any significant changes in the Work or variations from the Contract Documents have been caused by an emergency, or are required as a result of Contractor’s response to an emergency. If Engineer determines that a change in the Contract Documents is required because of an emergency or Contractor’s response, a Work Change Directive or Change Order will be issued. 7.16 Submittals A. Shop Drawing and Sample Requirements 1. Before submitting a Shop Drawing or Sample, Contractor shall: a. review and coordinate the Shop Drawing or Sample with other Shop Drawings and Samples and with the requirements of the Work and the Contract Documents; b. determine and verify: 1) all field measurements, quantities, dimensions, specified performance and design criteria, installation requirements, materials, catalog numbers, and similar information with respect to the Submittal; 2) the suitability of all materials and equipment offered with respect to the indicated application, fabrication, shipping, handling, storage, assembly, and installation pertaining to the performance of the Work; and 3) all information relative to Contractor’s responsibilities for means, methods, techniques, sequences, and procedures of construction, and safety precautions and programs incident thereto; c. confirm that the Submittal is complete with respect to all related data included in the Submittal. 2. Each Shop Drawing or Sample must bear a stamp or specific written certification that Contractor has satisfied Contractor’s obligations under the Contract Documents with respect to Contractor’s review of that Submittal, and that Contractor approves the Submittal. 89 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 36 of 70 3. With each Shop Drawing or Sample, Contractor shall give Engineer specific written notice of any variations that the Submittal may have from the requirements of the Contract Documents. This notice must be set forth in a written communication separate from the Submittal; and, in addition, in the case of a Shop Drawing by a specific notation made on the Shop Drawing itself. B. Submittal Procedures for Shop Drawings and Samples: Contractor shall label and submit Shop Drawings and Samples to Engineer for review and approval in accordance with the accepted Schedule of Submittals. 1. Shop Drawings a. Contractor shall submit the number of copies required in the Specifications. b. Data shown on the Shop Drawings must be complete with respect to quantities, dimensions, specified performance and design criteria, materials, and similar data to show Engineer the services, materials, and equipment Contractor proposes to provide, and to enable Engineer to review the information for the limited purposes required by Paragraph 7.16.C. 2. Samples a. Contractor shall submit the number of Samples required in the Specifications. b. Contractor shall clearly identify each Sample as to material, Supplier, pertinent data such as catalog numbers, the use for which intended and other data as Engineer may require to enable Engineer to review the Submittal for the limited purposes required by Paragraph 7.16.C. 3. Where a Shop Drawing or Sample is required by the Contract Documents or the Schedule of Submittals, any related Work performed prior to Engineer’s review and approval of the pertinent submittal will be at the sole expense and responsibility of Contractor. C. Engineer’s Review of Shop Drawings and Samples 1. Engineer will provide timely review of Shop Drawings and Samples in accordance with the accepted Schedule of Submittals. Engineer’s review and approval will be only to determine if the items covered by the Submittals will, after installation or incorporation in the Work, comply with the requirements of the Contract Documents, and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. 2. Engineer’s review and approval will not extend to means, methods, techniques, sequences, or procedures of construction, or to safety precautions or programs incident thereto. 3. Engineer’s review and approval of a separate item as such will not indicate approval of the assembly in which the item functions. 4. Engineer’s review and approval of a Shop Drawing or Sample will not relieve Contractor from responsibility for any variation from the requirements of the Contract Documents unless Contractor has complied with the requirements of Paragraph 7.16.A.3 and Engineer has given written approval of each such variation by specific written notation thereof incorporated in or accompanying the Shop Drawing or Sample. Engineer will 90 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 37 of 70 document any such approved variation from the requirements of the Contract Documents in a Field Order or other appropriate Contract modification. 5. Engineer’s review and approval of a Shop Drawing or Sample will not relieve Contractor from responsibility for complying with the requirements of Paragraphs 7.16.A and B. 6. Engineer’s review and approval of a Shop Drawing or Sample, or of a variation from the requirements of the Contract Documents, will not, under any circumstances, change the Contract Times or Contract Price, unless such changes are included in a Change Order. 7. Neither Engineer’s receipt, review, acceptance, or approval of a Shop Drawing or Sample will result in such item becoming a Contract Document. 8. Contractor shall perform the Work in compliance with the requirements and commitments set forth in approved Shop Drawings and Samples, subject to the provisions of Paragraph 7.16.C.4. D. Resubmittal Procedures for Shop Drawings and Samples 1. Contractor shall make corrections required by Engineer and shall return the required number of corrected copies of Shop Drawings and submit, as required, new Samples for review and approval. Contractor shall direct specific attention in writing to revisions other than the corrections called for by Engineer on previous Submittals. 2. Contractor shall furnish required Shop Drawing and Sample submittals with sufficient information and accuracy to obtain required approval of an item with no more than two resubmittals. Engineer will record Engineer’s time for reviewing a third or subsequent resubmittal of a Shop Drawing or Sample, and Contractor shall be responsible for Engineer’s charges to Owner for such time. Owner may impose a set-off against payments due Contractor to secure reimbursement for such charges. 3. If Contractor requests a change of a previously approved Shop Drawing or Sample, Contractor shall be responsible for Engineer’s charges to Owner for its review time, and Owner may impose a set-off against payments due Contractor to secure reimbursement for such charges, unless the need for such change is beyond the control of Contractor. E. Submittals Other than Shop Drawings, Samples, and Owner-Delegated Designs 1. The following provisions apply to all Submittals other than Shop Drawings, Samples, and Owner-delegated designs: a. Contractor shall submit all such Submittals to the Engineer in accordance with the Schedule of Submittals and pursuant to the applicable terms of the Contract Documents. b. Engineer will provide timely review of all such Submittals in accordance with the Schedule of Submittals and return such Submittals with a notation of either Accepted or Not Accepted. Any such Submittal that is not returned within the time established in the Schedule of Submittals will be deemed accepted. c. Engineer’s review will be only to determine if the Submittal is acceptable under the requirements of the Contract Documents as to general form and content of the Submittal. 91 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 38 of 70 d. If any such Submittal is not accepted, Contractor shall confer with Engineer regarding the reason for the non-acceptance, and resubmit an acceptable document. 2. Procedures for the submittal and acceptance of the Progress Schedule, the Schedule of Submittals, and the Schedule of Values are set forth in Paragraphs 2.03. 2.04, and 2.05. F. Owner-delegated Designs: Submittals pursuant to Owner-delegated designs are governed by the provisions of Paragraph 7.19. 7.17 Contractor’s General Warranty and Guarantee A. Contractor warrants and guarantees to Owner that all Work will be in accordance with the Contract Documents and will not be defective. Engineer is entitled to rely on Contractor’s warranty and guarantee. B. Owner’s rights under this warranty and guarantee are in addition to, and are not limited by, Owner’s rights under the correction period provisions of Paragraph 15.08. The time in which Owner may enforce its warranty and guarantee rights under this Paragraph 7.17 is limited only by applicable Laws and Regulations restricting actions to enforce such rights; provided, however, that after the end of the correction period under Paragraph 15.08: 1. Owner shall give Contractor written notice of any defective Work within 60 days of the discovery that such Work is defective; and 2. Such notice will be deemed the start of an event giving rise to a Claim under Paragraph 12.01.B, such that any related Claim must be brought within 30 days of the notice. C. Contractor’s warranty and guarantee hereunder excludes defects or damage caused by: 1. abuse, or improper modification, maintenance, or operation, by persons other than Contractor, Subcontractors, Suppliers, or any other individual or entity for whom Contractor is responsible; or 2. normal wear and tear under normal usage. D. Contractor’s obligation to perform and complete the Work in accordance with the Contract Documents is absolute. None of the following will constitute an acceptance of Work that is not in accordance with the Contract Documents, a release of Contractor’s obligation to perform the Work in accordance with the Contract Documents, or a release of Owner’s warranty and guarantee rights under this Paragraph 7.17: 1. Observations by Engineer; 2. Recommendation by Engineer or payment by Owner of any progress or final payment; 3. The issuance of a certificate of Substantial Completion by Engineer or any payment related thereto by Owner; 4. Use or occupancy of the Work or any part thereof by Owner; 5. Any review and approval of a Shop Drawing or Sample submittal; 6. The issuance of a notice of acceptability by Engineer; 7. The end of the correction period established in Paragraph 15.08; 8. Any inspection, test, or approval by others; or 92 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 39 of 70 9. Any correction of defective Work by Owner. E. If the Contract requires the Contractor to accept the assignment of a contract entered into by Owner, then the specific warranties, guarantees, and correction obligations contained in the assigned contract will govern with respect to Contractor’s performance obligations to Owner for the Work described in the assigned contract. 7.18 Indemnification A. To the fullest extent permitted by Laws and Regulations, and in addition to any other obligations of Contractor under the Contract or otherwise, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them, from losses, damages, costs, and judgments (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals, and all court or arbitration or other dispute resolution costs) arising from third-party claims or actions relating to or resulting from the performance or furnishing of the Work, provided that any such claim, action, loss, cost, judgment or damage is attributable to bodily injury, sickness, disease, or death, or to damage to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, but only to the extent caused by any negligent act or omission of Contractor, any Subcontractor, any Supplier, or any individual or entity directly or indirectly employed by any of them to perform any of the Work, or anyone for whose acts any of them may be liable. B. In any and all claims against Owner or Engineer, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors, by any employee (or the survivor or personal representative of such employee) of Contractor, any Subcontractor, any Supplier, or any individual or entity directly or indirectly employed by any of them to perform any of the Work, or anyone for whose acts any of them may be liable, the indemnification obligation under Paragraph 7.18.A will not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable by or for Contractor or any such Subcontractor, Supplier, or other individual or entity under workers’ compensation acts, disability benefit acts, or other employee benefit acts. 7.19 Delegation of Professional Design Services A. Owner may require Contractor to provide professional design services for a portion of the Work by express delegation in the Contract Documents. Such delegation will specify the performance and design criteria that such services must satisfy, and the Submittals that Contractor must furnish to Engineer with respect to the Owner-delegated design. B. Contractor shall cause such Owner-delegated professional design services to be provided pursuant to the professional standard of care by a properly licensed design professional, whose signature and seal must appear on all drawings, calculations, specifications, certifications, and Submittals prepared by such design professional. Such design professional must issue all certifications of design required by Laws and Regulations. C. If a Shop Drawing or other Submittal related to the Owner-delegated design is prepared by Contractor, a Subcontractor, or others for submittal to Engineer, then such Shop Drawing or other Submittal must bear the written approval of Contractor’s design professional when submitted by Contractor to Engineer. 93 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 40 of 70 D. Owner and Engineer shall be entitled to rely upon the adequacy, accuracy, and completeness of the services, certifications, and approvals performed or provided by the design professionals retained or employed by Contractor under an Owner-delegated design, subject to the professional standard of care and the performance and design criteria stated in the Contract Documents. E. Pursuant to this Paragraph 7.19, Engineer’s review, approval, and other determinations regarding design drawings, calculations, specifications, certifications, and other Submittals furnished by Contractor pursuant to an Owner-delegated design will be only for the following limited purposes: 1. Checking for conformance with the requirements of this Paragraph 7.19; 2. Confirming that Contractor (through its design professionals) has used the performance and design criteria specified in the Contract Documents; and 3. Establishing that the design furnished by Contractor is consistent with the design concept expressed in the Contract Documents. F. Contractor shall not be responsible for the adequacy of performance or design criteria specified by Owner or Engineer. G. Contractor is not required to provide professional services in violation of applicable Laws and Regulations. ARTICLE 8—OTHER WORK AT THE SITE 8.01 Other Work A. In addition to and apart from the Work under the Contract Documents, the Owner may perform other work at or adjacent to the Site. Such other work may be performed by Owner’s employees, or through contracts between the Owner and third parties. Owner may also arrange to have third-party utility owners perform work on their utilities and facilities at or adjacent to the Site. B. If Owner performs other work at or adjacent to the Site with Owner’s employees, or through contracts for such other work, then Owner shall give Contractor written notice thereof prior to starting any such other work. If Owner has advance information regarding the start of any third-party utility work that Owner has arranged to take place at or adjacent to the Site, Owner shall provide such information to Contractor. C. Contractor shall afford proper and safe access to the Site to each contractor that performs such other work, each utility owner performing other work, and Owner, if Owner is performing other work with Owner’s employees, and provide a reasonable opportunity for the introduction and storage of materials and equipment and the execution of such other work. D. Contractor shall do all cutting, fitting, and patching of the Work that may be required to properly connect or otherwise make its several parts come together and properly integrate with such other work. Contractor shall not endanger any work of others by cutting, excavating, or otherwise altering such work; provided, however, that Contractor may cut or alter others' work with the written consent of Engineer and the others whose work will be affected. 94 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 41 of 70 E. If the proper execution or results of any part of Contractor’s Work depends upon work performed by others, Contractor shall inspect such other work and promptly report to Engineer in writing any delays, defects, or deficiencies in such other work that render it unavailable or unsuitable for the proper execution and results of Contractor’s Work. Contractor’s failure to so report will constitute an acceptance of such other work as fit and proper for integration with Contractor’s Work except for latent defects and deficiencies in such other work. F. The provisions of this article are not applicable to work that is performed by third-party utilities or other third-party entities without a contract with Owner, or that is performed without having been arranged by Owner. If such work occurs, then any related delay, disruption, or interference incurred by Contractor is governed by the provisions of Paragraph 4.05.C.3. 8.02 Coordination A. If Owner intends to contract with others for the performance of other work at or adjacent to the Site, to perform other work at or adjacent to the Site with Owner’s employees, or to arrange to have utility owners perform work at or adjacent to the Site, the following will be set forth in the Supplementary Conditions or provided to Contractor prior to the start of any such other work: 1. The identity of the individual or entity that will have authority and responsibility for coordination of the activities among the various contractors; 2. An itemization of the specific matters to be covered by such authority and responsibility; and 3. The extent of such authority and responsibilities. B. Unless otherwise provided in the Supplementary Conditions, Owner shall have sole authority and responsibility for such coordination. 8.03 Legal Relationships A. If, in the course of performing other work for Owner at or adjacent to the Site, the Owner’s employees, any other contractor working for Owner, or any utility owner that Owner has arranged to perform work, causes damage to the Work or to the property of Contractor or its Subcontractors, or delays, disrupts, interferes with, or increases the scope or cost of the performance of the Work, through actions or inaction, then Contractor shall be entitled to an equitable adjustment in the Contract Price or the Contract Times. Contractor must submit any Change Proposal seeking an equitable adjustment in the Contract Price or the Contract Times under this paragraph within 30 days of the damaging, delaying, disrupting, or interfering event. The entitlement to, and extent of, any such equitable adjustment will take into account information (if any) regarding such other work that was provided to Contractor in the Contract Documents prior to the submittal of the Bid or the final negotiation of the terms of the Contract, and any remedies available to Contractor under Laws or Regulations concerning utility action or inaction. When applicable, any such equitable adjustment in Contract Price will be conditioned on Contractor assigning to Owner all Contractor’s rights against such other contractor or utility owner with respect to the damage, delay, disruption, or interference that is the subject of the adjustment. Contractor’s entitlement to an adjustment of the Contract Times or Contract Price is subject to the provisions of Paragraphs 4.05.D and 4.05.E. 95 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 42 of 70 B. Contractor shall take reasonable and customary measures to avoid damaging, delaying, disrupting, or interfering with the work of Owner, any other contractor, or any utility owner performing other work at or adjacent to the Site. 1. If Contractor fails to take such measures and as a result damages, delays, disrupts, or interferes with the work of any such other contractor or utility owner, then Owner may impose a set-off against payments due Contractor, and assign to such other contractor or utility owner the Owner’s contractual rights against Contractor with respect to the breach of the obligations set forth in this Paragraph 8.03.B. 2. When Owner is performing other work at or adjacent to the Site with Owner’s employees, Contractor shall be liable to Owner for damage to such other work, and for the reasonable direct delay, disruption, and interference costs incurred by Owner as a result of Contractor’s failure to take reasonable and customary measures with respect to Owner’s other work. In response to such damage, delay, disruption, or interference, Owner may impose a set-off against payments due Contractor. C. If Contractor damages, delays, disrupts, or interferes with the work of any other contractor, or any utility owner performing other work at or adjacent to the Site, through Contractor’s failure to take reasonable and customary measures to avoid such impacts, or if any claim arising out of Contractor’s actions, inactions, or negligence in performance of the Work at or adjacent to the Site is made by any such other contractor or utility owner against Contractor, Owner, or Engineer, then Contractor shall (1) promptly attempt to settle the claim as to all parties through negotiations with such other contractor or utility owner, or otherwise resolve the claim by arbitration or other dispute resolution proceeding or at law, and (2) indemnify and hold harmless Owner and Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them from and against any such claims, and against all costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such damage, delay, disruption, or interference. ARTICLE 9—OWNER’S RESPONSIBILITIES 9.01 Communications to Contractor A. Except as otherwise provided in these General Conditions, Owner shall issue all communications to Contractor through Engineer. 9.02 Replacement of Engineer A. Owner may at its discretion appoint an engineer to replace Engineer, provided Contractor makes no reasonable objection to the replacement engineer. The replacement engineer’s status under the Contract Documents will be that of the former Engineer. 9.03 Furnish Data A. Owner shall promptly furnish the data required of Owner under the Contract Documents. 9.04 Pay When Due A. Owner shall make payments to Contractor when they are due as provided in the Agreement. 96 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 43 of 70 9.05 Lands and Easements; Reports, Tests, and Drawings A. Owner’s duties with respect to providing lands and easements are set forth in Paragraph 5.01. B. Owner’s duties with respect to providing engineering surveys to establish reference points are set forth in Paragraph 4.03. C. Article 5 refers to Owner’s identifying and making available to Contractor copies of reports of explorations and tests of conditions at the Site, and drawings of physical conditions relating to existing surface or subsurface structures at the Site. 9.06 Insurance A. Owner’s responsibilities, if any, with respect to purchasing and maintaining liability and property insurance are set forth in Article 6. 9.07 Change Orders A. Owner’s responsibilities with respect to Change Orders are set forth in Article 11. 9.08 Inspections, Tests, and Approvals A. Owner’s responsibility with respect to certain inspections, tests, and approvals is set forth in Paragraph 14.02.B. 9.09 Limitations on Owner’s Responsibilities A. The Owner shall not supervise, direct, or have control or authority over, nor be responsible for, Contractor’s means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. Owner will not be responsible for Contractor’s failure to perform the Work in accordance with the Contract Documents. 9.10 Undisclosed Hazardous Environmental Condition A. Owner’s responsibility in respect to an undisclosed Hazardous Environmental Condition is set forth in Paragraph 5.06. 9.11 Evidence of Financial Arrangements A. Upon request of Contractor, Owner shall furnish Contractor reasonable evidence that financial arrangements have been made to satisfy Owner’s obligations under the Contract (including obligations under proposed changes in the Work). 9.12 Safety Programs A. While at the Site, Owner’s employees and representatives shall comply with the specific applicable requirements of Contractor’s safety programs of which Owner has been informed. B. Owner shall furnish copies of any applicable Owner safety programs to Contractor. 97 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 44 of 70 ARTICLE 10—ENGINEER’S STATUS DURING CONSTRUCTION 10.01 Owner’s Representative A. Engineer will be Owner’s representative during the construction period. The duties and responsibilities and the limitations of authority of Engineer as Owner’s representative during construction are set forth in the Contract. 10.02 Visits to Site A. Engineer will make visits to the Site at intervals appropriate to the various stages of construction as Engineer deems necessary in order to observe, as an experienced and qualified design professional, the progress that has been made and the quality of the various aspects of Contractor’s executed Work. Based on information obtained during such visits and observations, Engineer, for the benefit of Owner, will determine, in general, if the Work is proceeding in accordance with the Contract Documents. Engineer will not be required to make exhaustive or continuous inspections on the Site to check the quality or quantity of the Work. Engineer’s efforts will be directed toward providing for Owner a greater degree of confidence that the completed Work will conform generally to the Contract Documents. On the basis of such visits and observations, Engineer will keep Owner informed of the progress of the Work and will endeavor to guard Owner against defective Work. B. Engineer’s visits and observations are subject to all the limitations on Engineer’s authority and responsibility set forth in Paragraph 10.07. Particularly, but without limitation, during or as a result of Engineer’s visits or observations of Contractor’s Work, Engineer will not supervise, direct, control, or have authority over or be responsible for Contractor’s means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. 10.03 Resident Project Representative A. If Owner and Engineer have agreed that Engineer will furnish a Resident Project Representative to represent Engineer at the Site and assist Engineer in observing the progress and quality of the Work, then the authority and responsibilities of any such Resident Project Representative will be as provided in the Supplementary Conditions, and limitations on the responsibilities thereof will be as provided in the Supplementary Conditions and in Paragraph 10.07. B. If Owner designates an individual or entity who is not Engineer’s consultant, agent, or employee to represent Owner at the Site, then the responsibilities and authority of such individual or entity will be as provided in the Supplementary Conditions. 10.04 Engineer’s Authority A. Engineer has the authority to reject Work in accordance with Article 14. B. Engineer’s authority as to Submittals is set forth in Paragraph 7.16. C. Engineer’s authority as to design drawings, calculations, specifications, certifications and other Submittals from Contractor in response to Owner’s delegation (if any) to Contractor of professional design services, is set forth in Paragraph 7.19. D. Engineer’s authority as to changes in the Work is set forth in Article 11. 98 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 45 of 70 E. Engineer’s authority as to Applications for Payment is set forth in Article 15. 10.05 Determinations for Unit Price Work A. Engineer will determine the actual quantities and classifications of Unit Price Work performed by Contractor as set forth in Paragraph 13.03. 10.06 Decisions on Requirements of Contract Documents and Acceptability of Work A. Engineer will render decisions regarding the requirements of the Contract Documents, and judge the acceptability of the Work, pursuant to the specific procedures set forth herein for initial interpretations, Change Proposals, and acceptance of the Work. In rendering such decisions and judgments, Engineer will not show partiality to Owner or Contractor, and will not be liable to Owner, Contractor, or others in connection with any proceedings, interpretations, decisions, or judgments conducted or rendered in good faith. 10.07 Limitations on Engineer’s Authority and Responsibilities A. Neither Engineer’s authority or responsibility under this Article 10 or under any other provision of the Contract, nor any decision made by Engineer in good faith either to exercise or not exercise such authority or responsibility or the undertaking, exercise, or performance of any authority or responsibility by Engineer, will create, impose, or give rise to any duty in contract, tort, or otherwise owed by Engineer to Contractor, any Subcontractor, any Supplier, any other individual or entity, or to any surety for or employee or agent of any of them. B. Engineer will not supervise, direct, control, or have authority over or be responsible for Contractor’s means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. Engineer will not be responsible for Contractor’s failure to perform the Work in accordance with the Contract Documents. C. Engineer will not be responsible for the acts or omissions of Contractor or of any Subcontractor, any Supplier, or of any other individual or entity performing any of the Work. D. Engineer’s review of the final Application for Payment and accompanying documentation, and all maintenance and operating instructions, schedules, guarantees, bonds, certificates of inspection, tests and approvals, and other documentation required to be delivered by Contractor under Paragraph 15.06.A, will only be to determine generally that their content complies with the requirements of, and in the case of certificates of inspections, tests, and approvals, that the results certified indicate compliance with the Contract Documents. E. The limitations upon authority and responsibility set forth in this Paragraph 10.07 also apply to the Resident Project Representative, if any. 10.08 Compliance with Safety Program A. While at the Site, Engineer’s employees and representatives will comply with the specific applicable requirements of Owner’s and Contractor’s safety programs of which Engineer has been informed. 99 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 46 of 70 ARTICLE 11—CHANGES TO THE CONTRACT 11.01 Amending and Supplementing the Contract A. The Contract may be amended or supplemented by a Change Order, a Work Change Directive, or a Field Order. B. If an amendment or supplement to the Contract includes a change in the Contract Price or the Contract Times, such amendment or supplement must be set forth in a Change Order. C. All changes to the Contract that involve (1) the performance or acceptability of the Work, (2) the design (as set forth in the Drawings, Specifications, or otherwise), or (3) other engineering or technical matters, must be supported by Engineer’s recommendation. Owner and Contractor may amend other terms and conditions of the Contract without the recommendation of the Engineer. 11.02 Change Orders A. Owner and Contractor shall execute appropriate Change Orders covering: 1. Changes in Contract Price or Contract Times which are agreed to by the parties, including any undisputed sum or amount of time for Work actually performed in accordance with a Work Change Directive; 2. Changes in Contract Price resulting from an Owner set-off, unless Contractor has duly contested such set-off; 3. Changes in the Work which are: (a) ordered by Owner pursuant to Paragraph 11.05, (b) required because of Owner’s acceptance of defective Work under Paragraph 14.04 or Owner’s correction of defective Work under Paragraph 14.07, or (c) agreed to by the parties, subject to the need for Engineer’s recommendation if the change in the Work involves the design (as set forth in the Drawings, Specifications, or otherwise) or other engineering or technical matters; and 4. Changes that embody the substance of any final and binding results under: Paragraph 11.03.B, resolving the impact of a Work Change Directive; Paragraph 11.09, concerning Change Proposals; Article 12, Claims; Paragraph 13.02.D, final adjustments resulting from allowances; Paragraph 13.03.D, final adjustments relating to determination of quantities for Unit Price Work; and similar provisions. B. If Owner or Contractor refuses to execute a Change Order that is required to be executed under the terms of Paragraph 11.02.A, it will be deemed to be of full force and effect, as if fully executed. 11.03 Work Change Directives A. A Work Change Directive will not change the Contract Price or the Contract Times but is evidence that the parties expect that the modification ordered or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order, following negotiations by the parties as to the Work Change Directive’s effect, if any, on the Contract Price and Contract Times; or, if negotiations are unsuccessful, by a determination under the terms of the Contract Documents governing adjustments, expressly including Paragraph 11.07 regarding change of Contract Price. 100 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 47 of 70 B. If Owner has issued a Work Change Directive and: 1. Contractor believes that an adjustment in Contract Times or Contract Price is necessary, then Contractor shall submit any Change Proposal seeking such an adjustment no later than 30 days after the completion of the Work set out in the Work Change Directive. 2. Owner believes that an adjustment in Contract Times or Contract Price is necessary, then Owner shall submit any Claim seeking such an adjustment no later than 60 days after issuance of the Work Change Directive. 11.04 Field Orders A. Engineer may authorize minor changes in the Work if the changes do not involve an adjustment in the Contract Price or the Contract Times and are compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. Such changes will be accomplished by a Field Order and will be binding on Owner and also on Contractor, which shall perform the Work involved promptly. B. If Contractor believes that a Field Order justifies an adjustment in the Contract Price or Contract Times, then before proceeding with the Work at issue, Contractor shall submit a Change Proposal as provided herein. 11.05 Owner-Authorized Changes in the Work A. Without invalidating the Contract and without notice to any surety, Owner may, at any time or from time to time, order additions, deletions, or revisions in the Work. Changes involving the design (as set forth in the Drawings, Specifications, or otherwise) or other engineering or technical matters will be supported by Engineer’s recommendation. B. Such changes in the Work may be accomplished by a Change Order, if Owner and Contractor have agreed as to the effect, if any, of the changes on Contract Times or Contract Price; or by a Work Change Directive. Upon receipt of any such document, Contractor shall promptly proceed with the Work involved; or, in the case of a deletion in the Work, promptly cease construction activities with respect to such deleted Work. Added or revised Work must be performed under the applicable conditions of the Contract Documents. C. Nothing in this Paragraph 11.05 obligates Contractor to undertake work that Contractor reasonably concludes cannot be performed in a manner consistent with Contractor’s safety obligations under the Contract Documents or Laws and Regulations. 11.06 Unauthorized Changes in the Work A. Contractor shall not be entitled to an increase in the Contract Price or an extension of the Contract Times with respect to any work performed that is not required by the Contract Documents, as amended, modified, or supplemented, except in the case of an emergency as provided in Paragraph 7.15 or in the case of uncovering Work as provided in Paragraph 14.05.C.2. 11.07 Change of Contract Price A. The Contract Price may only be changed by a Change Order. Any Change Proposal for an adjustment in the Contract Price must comply with the provisions of Paragraph 11.09. Any Claim for an adjustment of Contract Price must comply with the provisions of Article 12. B. An adjustment in the Contract Price will be determined as follows: 101 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 48 of 70 1. Where the Work involved is covered by unit prices contained in the Contract Documents, then by application of such unit prices to the quantities of the items involved (subject to the provisions of Paragraph 13.03); 2. Where the Work involved is not covered by unit prices contained in the Contract Documents, then by a mutually agreed lump sum (which may include an allowance for overhead and profit not necessarily in accordance with Paragraph 11.07.C.2); or 3. Where the Work involved is not covered by unit prices contained in the Contract Documents and the parties do not reach mutual agreement to a lump sum, then on the basis of the Cost of the Work (determined as provided in Paragraph 13.01) plus a Contractor’s fee for overhead and profit (determined as provided in Paragraph 11.07.C). C. Contractor’s Fee: When applicable, the Contractor’s fee for overhead and profit will be determined as follows: 1. A mutually acceptable fixed fee; or 2. If a fixed fee is not agreed upon, then a fee based on the following percentages of the various portions of the Cost of the Work: a. For costs incurred under Paragraphs 13.01.B.1 and 13.01.B.2, the Contractor’s fee will be 15 percent; b. For costs incurred under Paragraph 13.01.B.3, the Contractor’s fee will be 5 percent; c. Where one or more tiers of subcontracts are on the basis of Cost of the Work plus a fee and no fixed fee is agreed upon, the intent of Paragraphs 11.07.C.2.a and 11.07.C.2.b is that the Contractor’s fee will be based on: (1) a fee of 15 percent of the costs incurred under Paragraphs 13.01.B.1 and 13.01.B.2 by the Subcontractor that actually performs the Work, at whatever tier, and (2) with respect to Contractor itself and to any Subcontractors of a tier higher than that of the Subcontractor that actually performs the Work, a fee of 5 percent of the amount (fee plus underlying costs incurred) attributable to the next lower tier Subcontractor; provided, however, that for any such subcontracted Work the maximum total fee to be paid by Owner will be no greater than 27 percent of the costs incurred by the Subcontractor that actually performs the Work; d. No fee will be payable on the basis of costs itemized under Paragraphs 13.01.B.4, 13.01.B.5, and 13.01.C; e. The amount of credit to be allowed by Contractor to Owner for any change which results in a net decrease in Cost of the Work will be the amount of the actual net decrease in Cost of the Work and a deduction of an additional amount equal to 5 percent of such actual net decrease in Cost of the Work; and f. When both additions and credits are involved in any one change or Change Proposal, the adjustment in Contractor’s fee will be computed by determining the sum of the costs in each of the cost categories in Paragraph 13.01.B (specifically, payroll costs, Paragraph 13.01.B.1; incorporated materials and equipment costs, Paragraph 13.01.B.2; Subcontract costs, Paragraph 13.01.B.3; special consultants costs, Paragraph 13.01.B.4; and other costs, Paragraph 13.01.B.5) and applying to each such cost category sum the appropriate fee from Paragraphs 11.07.C.2.a through 11.07.C.2.e, inclusive. 102 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 49 of 70 11.08 Change of Contract Times A. The Contract Times may only be changed by a Change Order. Any Change Proposal for an adjustment in the Contract Times must comply with the provisions of Paragraph 11.09. Any Claim for an adjustment in the Contract Times must comply with the provisions of Article 12. B. Delay, disruption, and interference in the Work, and any related changes in Contract Times, are addressed in and governed by Paragraph 4.05. 11.09 Change Proposals A. Purpose and Content: Contractor shall submit a Change Proposal to Engineer to request an adjustment in the Contract Times or Contract Price; contest an initial decision by Engineer concerning the requirements of the Contract Documents or relating to the acceptability of the Work under the Contract Documents; challenge a set-off against payment due; or seek other relief under the Contract. The Change Proposal will specify any proposed change in Contract Times or Contract Price, or other proposed relief, and explain the reason for the proposed change, with citations to any governing or applicable provisions of the Contract Documents. Each Change Proposal will address only one issue, or a set of closely related issues. B. Change Proposal Procedures 1. Submittal: Contractor shall submit each Change Proposal to Engineer within 30 days after the start of the event giving rise thereto, or after such initial decision. 2. Supporting Data: The Contractor shall submit supporting data, including the proposed change in Contract Price or Contract Time (if any), to the Engineer and Owner within 15 days after the submittal of the Change Proposal. a. Change Proposals based on or related to delay, interruption, or interference must comply with the provisions of Paragraphs 4.05.D and 4.05.E. b. Change proposals related to a change of Contract Price must include full and detailed accounts of materials incorporated into the Work and labor and equipment used for the subject Work. The supporting data must be accompanied by a written statement that the supporting data are accurate and complete, and that any requested time or price adjustment is the entire adjustment to which Contractor believes it is entitled as a result of said event. 3. Engineer’s Initial Review: Engineer will advise Owner regarding the Change Proposal, and consider any comments or response from Owner regarding the Change Proposal. If in its discretion Engineer concludes that additional supporting data is needed before conducting a full review and making a decision regarding the Change Proposal, then Engineer may request that Contractor submit such additional supporting data by a date specified by Engineer, prior to Engineer beginning its full review of the Change Proposal. 4. Engineer’s Full Review and Action on the Change Proposal: Upon receipt of Contractor’s supporting data (including any additional data requested by Engineer), Engineer will conduct a full review of each Change Proposal and, within 30 days after such receipt of the Contractor’s supporting data, either approve the Change Proposal in whole, deny it in whole, or approve it in part and deny it in part. Such actions must be in writing, with a copy provided to Owner and Contractor. If Engineer does not take action on the Change 103 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 50 of 70 Proposal within 30 days, then either Owner or Contractor may at any time thereafter submit a letter to the other party indicating that as a result of Engineer’s inaction the Change Proposal is deemed denied, thereby commencing the time for appeal of the denial under Article 12. 5. Binding Decision: Engineer’s decision is final and binding upon Owner and Contractor, unless Owner or Contractor appeals the decision by filing a Claim under Article 12. C. Resolution of Certain Change Proposals: If the Change Proposal does not involve the design (as set forth in the Drawings, Specifications, or otherwise), the acceptability of the Work, or other engineering or technical matters, then Engineer will notify the parties in writing that the Engineer is unable to resolve the Change Proposal. For purposes of further resolution of such a Change Proposal, such notice will be deemed a denial, and Contractor may choose to seek resolution under the terms of Article 12. D. Post-Completion: Contractor shall not submit any Change Proposals after Engineer issues a written recommendation of final payment pursuant to Paragraph 15.06.B. 11.10 Notification to Surety A. If the provisions of any bond require notice to be given to a surety of any change affecting the general scope of the Work or the provisions of the Contract Documents (including, but not limited to, Contract Price or Contract Times), the giving of any such notice will be Contractor’s responsibility. The amount of each applicable bond will be adjusted to reflect the effect of any such change. ARTICLE 12—CLAIMS 12.01 Claims A. Claims Process: The following disputes between Owner and Contractor are subject to the Claims process set forth in this article: 1. Appeals by Owner or Contractor of Engineer’s decisions regarding Change Proposals; 2. Owner demands for adjustments in the Contract Price or Contract Times, or other relief under the Contract Documents; 3. Disputes that Engineer has been unable to address because they do not involve the design (as set forth in the Drawings, Specifications, or otherwise), the acceptability of the Work, or other engineering or technical matters; and 4. Subject to the waiver provisions of Paragraph 15.07, any dispute arising after Engineer has issued a written recommendation of final payment pursuant to Paragraph 15.06.B. B. Submittal of Claim: The party submitting a Claim shall deliver it directly to the other party to the Contract promptly (but in no event later than 30 days) after the start of the event giving rise thereto; in the case of appeals regarding Change Proposals within 30 days of the decision under appeal. The party submitting the Claim shall also furnish a copy to the Engineer, for its information only. The responsibility to substantiate a Claim rests with the party making the Claim. In the case of a Claim by Contractor seeking an increase in the Contract Times or Contract Price, Contractor shall certify that the Claim is made in good faith, that the supporting data are accurate and complete, and that to the best of Contractor’s knowledge 104 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 51 of 70 and belief the amount of time or money requested accurately reflects the full amount to which Contractor is entitled. C. Review and Resolution: The party receiving a Claim shall review it thoroughly, giving full consideration to its merits. The two parties shall seek to resolve the Claim through the exchange of information and direct negotiations. The parties may extend the time for resolving the Claim by mutual agreement. All actions taken on a Claim will be stated in writing and submitted to the other party, with a copy to Engineer. D. Mediation 1. At any time after initiation of a Claim, Owner and Contractor may mutually agree to mediation of the underlying dispute. The agreement to mediate will stay the Claim submittal and response process. 2. If Owner and Contractor agree to mediation, then after 60 days from such agreement, either Owner or Contractor may unilaterally terminate the mediation process, and the Claim submittal and decision process will resume as of the date of the termination. If the mediation proceeds but is unsuccessful in resolving the dispute, the Claim submittal and decision process will resume as of the date of the conclusion of the mediation, as determined by the mediator. 3. Owner and Contractor shall each pay one-half of the mediator’s fees and costs. E. Partial Approval: If the party receiving a Claim approves the Claim in part and denies it in part, such action will be final and binding unless within 30 days of such action the other party invokes the procedure set forth in Article 17 for final resolution of disputes. F. Denial of Claim: If efforts to resolve a Claim are not successful, the party receiving the Claim may deny it by giving written notice of denial to the other party. If the receiving party does not take action on the Claim within 90 days, then either Owner or Contractor may at any time thereafter submit a letter to the other party indicating that as a result of the inaction, the Claim is deemed denied, thereby commencing the time for appeal of the denial. A denial of the Claim will be final and binding unless within 30 days of the denial the other party invokes the procedure set forth in Article 17 for the final resolution of disputes. G. Final and Binding Results: If the parties reach a mutual agreement regarding a Claim, whether through approval of the Claim, direct negotiations, mediation, or otherwise; or if a Claim is approved in part and denied in part, or denied in full, and such actions become final and binding; then the results of the agreement or action on the Claim will be incorporated in a Change Order or other written document to the extent they affect the Contract, including the Work, the Contract Times, or the Contract Price. ARTICLE 13—COST OF THE WORK; ALLOWANCES; UNIT PRICE WORK 13.01 Cost of the Work A. Purposes for Determination of Cost of the Work: The term Cost of the Work means the sum of all costs necessary for the proper performance of the Work at issue, as further defined below. The provisions of this Paragraph 13.01 are used for two distinct purposes: 1. To determine Cost of the Work when Cost of the Work is a component of the Contract Price, under cost-plus-fee, time-and-materials, or other cost-based terms; or 105 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 52 of 70 2. When needed to determine the value of a Change Order, Change Proposal, Claim, set-off, or other adjustment in Contract Price. When the value of any such adjustment is determined on the basis of Cost of the Work, Contractor is entitled only to those additional or incremental costs required because of the change in the Work or because of the event giving rise to the adjustment. B. Costs Included: Except as otherwise may be agreed to in writing by Owner, costs included in the Cost of the Work will be in amounts no higher than those commonly incurred in the locality of the Project, will not include any of the costs itemized in Paragraph 13.01.C, and will include only the following items: 1. Payroll costs for employees in the direct employ of Contractor in the performance of the Work under schedules of job classifications agreed upon by Owner and Contractor in advance of the subject Work. Such employees include, without limitation, superintendents, foremen, safety managers, safety representatives, and other personnel employed full time on the Work. Payroll costs for employees not employed full time on the Work will be apportioned on the basis of their time spent on the Work. Payroll costs include, but are not limited to, salaries and wages plus the cost of fringe benefits, which include social security contributions, unemployment, excise, and payroll taxes, workers’ compensation, health and retirement benefits, sick leave, and vacation and holiday pay applicable thereto. The expenses of performing Work outside of regular working hours, on Saturday, Sunday, or legal holidays, will be included in the above to the extent authorized by Owner. 2. Cost of all materials and equipment furnished and incorporated in the Work, including costs of transportation and storage thereof, and Suppliers’ field services required in connection therewith. All cash discounts accrue to Contractor unless Owner deposits funds with Contractor with which to make payments, in which case the cash discounts will accrue to Owner. All trade discounts, rebates, and refunds and returns from sale of surplus materials and equipment will accrue to Owner, and Contractor shall make provisions so that they may be obtained. 3. Payments made by Contractor to Subcontractors for Work performed by Subcontractors. If required by Owner, Contractor shall obtain competitive bids from subcontractors acceptable to Owner and Contractor and shall deliver such bids to Owner, which will then determine, with the advice of Engineer, which bids, if any, will be acceptable. If any subcontract provides that the Subcontractor is to be paid on the basis of Cost of the Work plus a fee, the Subcontractor’s Cost of the Work and fee will be determined in the same manner as Contractor’s Cost of the Work and fee as provided in this Paragraph 13.01. 4. Costs of special consultants (including but not limited to engineers, architects, testing laboratories, surveyors, attorneys, and accountants) employed or retained for services specifically related to the Work. 5. Other costs consisting of the following: a. The proportion of necessary transportation, travel, and subsistence expenses of Contractor’s employees incurred in discharge of duties connected with the Work. b. Cost, including transportation and maintenance, of all materials, supplies, equipment, machinery, appliances, office, and temporary facilities at the Site, which are 106 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 53 of 70 consumed in the performance of the Work, and cost, less market value, of such items used but not consumed which remain the property of Contractor. 1) In establishing included costs for materials such as scaffolding, plating, or sheeting, consideration will be given to the actual or the estimated life of the material for use on other projects; or rental rates may be established on the basis of purchase or salvage value of such items, whichever is less. Contractor will not be eligible for compensation for such items in an amount that exceeds the purchase cost of such item. c. Construction Equipment Rental 1) Rentals of all construction equipment and machinery, and the parts thereof, in accordance with rental agreements approved by Owner as to price (including any surcharge or special rates applicable to overtime use of the construction equipment or machinery), and the costs of transportation, loading, unloading, assembly, dismantling, and removal thereof. All such costs will be in accordance with the terms of said rental agreements. The rental of any such equipment, machinery, or parts must cease when the use thereof is no longer necessary for the Work. 2) Costs for equipment and machinery owned by Contractor or a Contractor-related entity will be paid at a rate shown for such equipment in the equipment rental rate book specified in the Supplementary Conditions. An hourly rate will be computed by dividing the monthly rates by 176. These computed rates will include all operating costs. 3) With respect to Work that is the result of a Change Order, Change Proposal, Claim, set-off, or other adjustment in Contract Price (“changed Work”), included costs will be based on the time the equipment or machinery is in use on the changed Work and the costs of transportation, loading, unloading, assembly, dismantling, and removal when directly attributable to the changed Work. The cost of any such equipment or machinery, or parts thereof, must cease to accrue when the use thereof is no longer necessary for the changed Work. d. Sales, consumer, use, and other similar taxes related to the Work, and for which Contractor is liable, as imposed by Laws and Regulations. e. Deposits lost for causes other than negligence of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, and royalty payments and fees for permits and licenses. f. Losses and damages (and related expenses) caused by damage to the Work, not compensated by insurance or otherwise, sustained by Contractor in connection with the performance of the Work (except losses and damages within the deductible amounts of builder’s risk or other property insurance established in accordance with Paragraph 6.04), provided such losses and damages have resulted from causes other than the negligence of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable. Such losses include settlements made with the written consent and approval of Owner. No such losses, damages, and expenses will be included in the Cost of the Work for the purpose of determining Contractor’s fee. 107 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 54 of 70 g. The cost of utilities, fuel, and sanitary facilities at the Site. h. Minor expenses such as communication service at the Site, express and courier services, and similar petty cash items in connection with the Work. i. The costs of premiums for all bonds and insurance that Contractor is required by the Contract Documents to purchase and maintain. C. Costs Excluded: The term Cost of the Work does not include any of the following items: 1. Payroll costs and other compensation of Contractor’s officers, executives, principals, general managers, engineers, architects, estimators, attorneys, auditors, accountants, purchasing and contracting agents, expediters, timekeepers, clerks, and other personnel employed by Contractor, whether at the Site or in Contractor’s principal or branch office for general administration of the Work and not specifically included in the agreed upon schedule of job classifications referred to in Paragraph 13.01.B.1 or specifically covered by Paragraph 13.01.B.4. The payroll costs and other compensation excluded here are to be considered administrative costs covered by the Contractor’s fee. 2. The cost of purchasing, renting, or furnishing small tools and hand tools. 3. Expenses of Contractor’s principal and branch offices other than Contractor’s office at the Site. 4. Any part of Contractor’s capital expenses, including interest on Contractor’s capital employed for the Work and charges against Contractor for delinquent payments. 5. Costs due to the negligence of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including but not limited to, the correction of defective Work, disposal of materials or equipment wrongly supplied, and making good any damage to property. 6. Expenses incurred in preparing and advancing Claims. 7. Other overhead or general expense costs of any kind and the costs of any item not specifically and expressly included in Paragraph 13.01.B. D. Contractor’s Fee 1. When the Work as a whole is performed on the basis of cost-plus-a-fee, then: a. Contractor’s fee for the Work set forth in the Contract Documents as of the Effective Date of the Contract will be determined as set forth in the Agreement. b. for any Work covered by a Change Order, Change Proposal, Claim, set-off, or other adjustment in Contract Price on the basis of Cost of the Work, Contractor’s fee will be determined as follows: 1) When the fee for the Work as a whole is a percentage of the Cost of the Work, the fee will automatically adjust as the Cost of the Work changes. 2) When the fee for the Work as a whole is a fixed fee, the fee for any additions or deletions will be determined in accordance with Paragraph 11.07.C.2. 2. When the Work as a whole is performed on the basis of a stipulated sum, or any other basis other than cost-plus-a-fee, then Contractor’s fee for any Work covered by a Change 108 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 55 of 70 Order, Change Proposal, Claim, set-off, or other adjustment in Contract Price on the basis of Cost of the Work will be determined in accordance with Paragraph 11.07.C.2. E. Documentation and Audit: Whenever the Cost of the Work for any purpose is to be determined pursuant to this Article 13, Contractor and pertinent Subcontractors will establish and maintain records of the costs in accordance with generally accepted accounting practices. Subject to prior written notice, Owner will be afforded reasonable access, during normal business hours, to all Contractor’s accounts, records, books, correspondence, instructions, drawings, receipts, vouchers, memoranda, and similar data relating to the Cost of the Work and Contractor’s fee. Contractor shall preserve all such documents for a period of three years after the final payment by Owner. Pertinent Subcontractors will afford such access to Owner, and preserve such documents, to the same extent required of Contractor. 13.02 Allowances A. It is understood that Contractor has included in the Contract Price all allowances so named in the Contract Documents and shall cause the Work so covered to be performed for such sums and by such persons or entities as may be acceptable to Owner and Engineer. B. Cash Allowances: Contractor agrees that: 1. the cash allowances include the cost to Contractor (less any applicable trade discounts) of materials and equipment required by the allowances to be delivered at the Site, and all applicable taxes; and 2. Contractor’s costs for unloading and handling on the Site, labor, installation, overhead, profit, and other expenses contemplated for the cash allowances have been included in the Contract Price and not in the allowances, and no demand for additional payment for any of the foregoing will be valid. C. Owner’s Contingency Allowance: Contractor agrees that an Owner’s contingency allowance, if any, is for the sole use of Owner to cover unanticipated costs. D. Prior to final payment, an appropriate Change Order will be issued as recommended by Engineer to reflect actual amounts due Contractor for Work covered by allowances, and the Contract Price will be correspondingly adjusted. 13.03 Unit Price Work A. Where the Contract Documents provide that all or part of the Work is to be Unit Price Work, initially the Contract Price will be deemed to include for all Unit Price Work an amount equal to the sum of the unit price for each separately identified item of Unit Price Work times the estimated quantity of each item as indicated in the Agreement. B. The estimated quantities of items of Unit Price Work are not guaranteed and are solely for the purpose of comparison of Bids and determining an initial Contract Price. Payments to Contractor for Unit Price Work will be based on actual quantities. C. Each unit price will be deemed to include an amount considered by Contractor to be adequate to cover Contractor’s overhead and profit for each separately identified item. D. Engineer will determine the actual quantities and classifications of Unit Price Work performed by Contractor. Engineer will review with Contractor the Engineer’s preliminary determinations on such matters before rendering a written decision thereon (by recommendation of an Application for Payment or otherwise). Engineer’s written decision 109 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 56 of 70 thereon will be final and binding (except as modified by Engineer to reflect changed factual conditions or more accurate data) upon Owner and Contractor, and the final adjustment of Contract Price will be set forth in a Change Order, subject to the provisions of the following paragraph. E. Adjustments in Unit Price 1. Contractor or Owner shall be entitled to an adjustment in the unit price with respect to an item of Unit Price Work if: a. the quantity of the item of Unit Price Work performed by Contractor differs materially and significantly from the estimated quantity of such item indicated in the Agreement; and b. Contractor’s unit costs to perform the item of Unit Price Work have changed materially and significantly as a result of the quantity change. 2. The adjustment in unit price will account for and be coordinated with any related changes in quantities of other items of Work, and in Contractor’s costs to perform such other Work, such that the resulting overall change in Contract Price is equitable to Owner and Contractor. 3. Adjusted unit prices will apply to all units of that item. ARTICLE 14—TESTS AND INSPECTIONS; CORRECTION, REMOVAL, OR ACCEPTANCE OF DEFECTIVE WORK 14.01 Access to Work A. Owner, Engineer, their consultants and other representatives and personnel of Owner, independent testing laboratories, and authorities having jurisdiction have access to the Site and the Work at reasonable times for their observation, inspection, and testing. Contractor shall provide them proper and safe conditions for such access and advise them of Contractor’s safety procedures and programs so that they may comply with such procedures and programs as applicable. 14.02 Tests, Inspections, and Approvals A. Contractor shall give Engineer timely notice of readiness of the Work (or specific parts thereof) for all required inspections and tests, and shall cooperate with inspection and testing personnel to facilitate required inspections and tests. B. Owner shall retain and pay for the services of an independent inspector, testing laboratory, or other qualified individual or entity to perform all inspections and tests expressly required by the Contract Documents to be furnished and paid for by Owner, except that costs incurred in connection with tests or inspections of covered Work will be governed by the provisions of Paragraph 14.05. C. If Laws or Regulations of any public body having jurisdiction require any Work (or part thereof) specifically to be inspected, tested, or approved by an employee or other representative of such public body, Contractor shall assume full responsibility for arranging and obtaining such inspections, tests, or approvals, pay all costs in connection therewith, and furnish Engineer the required certificates of inspection or approval. 110 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 57 of 70 D. Contractor shall be responsible for arranging, obtaining, and paying for all inspections and tests required: 1. by the Contract Documents, unless the Contract Documents expressly allocate responsibility for a specific inspection or test to Owner; 2. to attain Owner’s and Engineer’s acceptance of materials or equipment to be incorporated in the Work; 3. by manufacturers of equipment furnished under the Contract Documents; 4. for testing, adjusting, and balancing of mechanical, electrical, and other equipment to be incorporated into the Work; and 5. for acceptance of materials, mix designs, or equipment submitted for approval prior to Contractor’s purchase thereof for incorporation in the Work. Such inspections and tests will be performed by independent inspectors, testing laboratories, or other qualified individuals or entities acceptable to Owner and Engineer. E. If the Contract Documents require the Work (or part thereof) to be approved by Owner, Engineer, or another designated individual or entity, then Contractor shall assume full responsibility for arranging and obtaining such approvals. F. If any Work (or the work of others) that is to be inspected, tested, or approved is covered by Contractor without written concurrence of Engineer, Contractor shall, if requested by Engineer, uncover such Work for observation. Such uncovering will be at Contractor’s expense unless Contractor had given Engineer timely notice of Contractor’s intention to cover the same and Engineer had not acted with reasonable promptness in response to such notice. 14.03 Defective Work A. Contractor’s Obligation: It is Contractor’s obligation to assure that the Work is not defective. B. Engineer’s Authority: Engineer has the authority to determine whether Work is defective, and to reject defective Work. C. Notice of Defects: Prompt written notice of all defective Work of which Owner or Engineer has actual knowledge will be given to Contractor. D. Correction, or Removal and Replacement: Promptly after receipt of written notice of defective Work, Contractor shall correct all such defective Work, whether or not fabricated, installed, or completed, or, if Engineer has rejected the defective Work, remove it from the Project and replace it with Work that is not defective. E. Preservation of Warranties: When correcting defective Work, Contractor shall take no action that would void or otherwise impair Owner’s special warranty and guarantee, if any, on said Work. F. Costs and Damages: In addition to its correction, removal, and replacement obligations with respect to defective Work, Contractor shall pay all claims, costs, losses, and damages arising out of or relating to defective Work, including but not limited to the cost of the inspection, testing, correction, removal, replacement, or reconstruction of such defective Work, fines levied against Owner by governmental authorities because the Work is defective, and the costs of repair or replacement of work of others resulting from defective Work. Prior to final payment, if Owner and Contractor are unable to agree as to the measure of such claims, costs, 111 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 58 of 70 losses, and damages resulting from defective Work, then Owner may impose a reasonable set-off against payments due under Article 15. 14.04 Acceptance of Defective Work A. If, instead of requiring correction or removal and replacement of defective Work, Owner prefers to accept it, Owner may do so (subject, if such acceptance occurs prior to final payment, to Engineer’s confirmation that such acceptance is in general accord with the design intent and applicable engineering principles, and will not endanger public safety). Contractor shall pay all claims, costs, losses, and damages attributable to Owner’s evaluation of and determination to accept such defective Work (such costs to be approved by Engineer as to reasonableness), and for the diminished value of the Work to the extent not otherwise paid by Contractor. If any such acceptance occurs prior to final payment, the necessary revisions in the Contract Documents with respect to the Work will be incorporated in a Change Order. If the parties are unable to agree as to the decrease in the Contract Price, reflecting the diminished value of Work so accepted, then Owner may impose a reasonable set-off against payments due under Article 15. If the acceptance of defective Work occurs after final payment, Contractor shall pay an appropriate amount to Owner. 14.05 Uncovering Work A. Engineer has the authority to require additional inspection or testing of the Work, whether or not the Work is fabricated, installed, or completed. B. If any Work is covered contrary to the written request of Engineer, then Contractor shall, if requested by Engineer, uncover such Work for Engineer’s observation, and then replace the covering, all at Contractor’s expense. C. If Engineer considers it necessary or advisable that covered Work be observed by Engineer or inspected or tested by others, then Contractor, at Engineer’s request, shall uncover, expose, or otherwise make available for observation, inspection, or testing as Engineer may require, that portion of the Work in question, and provide all necessary labor, material, and equipment. 1. If it is found that the uncovered Work is defective, Contractor shall be responsible for all claims, costs, losses, and damages arising out of or relating to such uncovering, exposure, observation, inspection, and testing, and of satisfactory replacement or reconstruction (including but not limited to all costs of repair or replacement of work of others); and pending Contractor’s full discharge of this responsibility the Owner shall be entitled to impose a reasonable set-off against payments due under Article 15. 2. If the uncovered Work is not found to be defective, Contractor shall be allowed an increase in the Contract Price or an extension of the Contract Times, directly attributable to such uncovering, exposure, observation, inspection, testing, replacement, and reconstruction. If the parties are unable to agree as to the amount or extent thereof, then Contractor may submit a Change Proposal within 30 days of the determination that the Work is not defective. 14.06 Owner May Stop the Work A. If the Work is defective, or Contractor fails to supply sufficient skilled workers or suitable materials or equipment, or fails to perform the Work in such a way that the completed Work will conform to the Contract Documents, then Owner may order Contractor to stop the Work, 112 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 59 of 70 or any portion thereof, until the cause for such order has been eliminated; however, this right of Owner to stop the Work will not give rise to any duty on the part of Owner to exercise this right for the benefit of Contractor, any Subcontractor, any Supplier, any other individual or entity, or any surety for, or employee or agent of any of them. 14.07 Owner May Correct Defective Work A. If Contractor fails within a reasonable time after written notice from Engineer to correct defective Work, or to remove and replace defective Work as required by Engineer, then Owner may, after 7 days’ written notice to Contractor, correct or remedy any such deficiency. B. In exercising the rights and remedies under this Paragraph 14.07, Owner shall proceed expeditiously. In connection with such corrective or remedial action, Owner may exclude Contractor from all or part of the Site, take possession of all or part of the Work and suspend Contractor’s services related thereto, and incorporate in the Work all materials and equipment stored at the Site or for which Owner has paid Contractor but which are stored elsewhere. Contractor shall allow Owner, Owner’s representatives, agents and employees, Owner’s other contractors, and Engineer and Engineer’s consultants access to the Site to enable Owner to exercise the rights and remedies under this paragraph. C. All claims, costs, losses, and damages incurred or sustained by Owner in exercising the rights and remedies under this Paragraph 14.07 will be charged against Contractor as set-offs against payments due under Article 15. Such claims, costs, losses and damages will include but not be limited to all costs of repair, or replacement of work of others destroyed or damaged by correction, removal, or replacement of Contractor’s defective Work. D. Contractor shall not be allowed an extension of the Contract Times because of any delay in the performance of the Work attributable to the exercise by Owner of Owner’s rights and remedies under this Paragraph 14.07. ARTICLE 15—PAYMENTS TO CONTRACTOR; SET-OFFS; COMPLETION; CORRECTION PERIOD 15.01 Progress Payments A. Basis for Progress Payments: The Schedule of Values established as provided in Article 2 will serve as the basis for progress payments and will be incorporated into a form of Application for Payment acceptable to Engineer. Progress payments for Unit Price Work will be based on the number of units completed during the pay period, as determined under the provisions of Paragraph 13.03. Progress payments for cost-based Work will be based on Cost of the Work completed by Contractor during the pay period. B. Applications for Payments 1. At least 20 days before the date established in the Agreement for each progress payment (but not more often than once a month), Contractor shall submit to Engineer for review an Application for Payment filled out and signed by Contractor covering the Work completed as of the date of the Application and accompanied by such supporting documentation as is required by the Contract Documents. 2. If payment is requested on the basis of materials and equipment not incorporated in the Work but delivered and suitably stored at the Site or at another location agreed to in writing, the Application for Payment must also be accompanied by: (a) a bill of sale, invoice, copies of subcontract or purchase order payments, or other documentation 113 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 60 of 70 establishing full payment by Contractor for the materials and equipment; (b) at Owner’s request, documentation warranting that Owner has received the materials and equipment free and clear of all Liens; and (c) evidence that the materials and equipment are covered by appropriate property insurance, a warehouse bond, or other arrangements to protect Owner’s interest therein, all of which must be satisfactory to Owner. 3. Beginning with the second Application for Payment, each Application must include an affidavit of Contractor stating that all previous progress payments received by Contractor have been applied to discharge Contractor’s legitimate obligations associated with prior Applications for Payment. 4. The amount of retainage with respect to progress payments will be as stipulated in the Agreement. C. Review of Applications 1. Engineer will, within 10 days after receipt of each Application for Payment, including each resubmittal, either indicate in writing a recommendation of payment and present the Application to Owner, or return the Application to Contractor indicating in writing Engineer’s reasons for refusing to recommend payment. In the latter case, Contractor may make the necessary corrections and resubmit the Application. 2. Engineer’s recommendation of any payment requested in an Application for Payment will constitute a representation by Engineer to Owner, based on Engineer’s observations of the executed Work as an experienced and qualified design professional, and on Engineer’s review of the Application for Payment and the accompanying data and schedules, that to the best of Engineer’s knowledge, information and belief: a. the Work has progressed to the point indicated; b. the quality of the Work is generally in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon Substantial Completion, the results of any subsequent tests called for in the Contract Documents, a final determination of quantities and classifications for Unit Price Work under Paragraph 13.03, and any other qualifications stated in the recommendation); and c. the conditions precedent to Contractor’s being entitled to such payment appear to have been fulfilled in so far as it is Engineer’s responsibility to observe the Work. 3. By recommending any such payment Engineer will not thereby be deemed to have represented that: a. inspections made to check the quality or the quantity of the Work as it has been performed have been exhaustive, extended to every aspect of the Work in progress, or involved detailed inspections of the Work beyond the responsibilities specifically assigned to Engineer in the Contract; or b. there may not be other matters or issues between the parties that might entitle Contractor to be paid additionally by Owner or entitle Owner to withhold payment to Contractor. 114 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 61 of 70 4. Neither Engineer’s review of Contractor’s Work for the purposes of recommending payments nor Engineer’s recommendation of any payment, including final payment, will impose responsibility on Engineer: a. to supervise, direct, or control the Work; b. for the means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto; c. for Contractor’s failure to comply with Laws and Regulations applicable to Contractor’s performance of the Work; d. to make any examination to ascertain how or for what purposes Contractor has used the money paid by Owner; or e. to determine that title to any of the Work, materials, or equipment has passed to Owner free and clear of any Liens. 5. Engineer may refuse to recommend the whole or any part of any payment if, in Engineer’s opinion, it would be incorrect to make the representations to Owner stated in Paragraph 15.01.C.2. 6. Engineer will recommend reductions in payment (set-offs) necessary in Engineer’s opinion to protect Owner from loss because: a. the Work is defective, requiring correction or replacement; b. the Contract Price has been reduced by Change Orders; c. Owner has been required to correct defective Work in accordance with Paragraph 14.07, or has accepted defective Work pursuant to Paragraph 14.04; d. Owner has been required to remove or remediate a Hazardous Environmental Condition for which Contractor is responsible; or e. Engineer has actual knowledge of the occurrence of any of the events that would constitute a default by Contractor and therefore justify termination for cause under the Contract Documents. D. Payment Becomes Due 1. Ten days after presentation of the Application for Payment to Owner with Engineer’s recommendation, the amount recommended (subject to any Owner set-offs) will become due, and when due will be paid by Owner to Contractor. E. Reductions in Payment by Owner 1. In addition to any reductions in payment (set-offs) recommended by Engineer, Owner is entitled to impose a set-off against payment based on any of the following: a. Claims have been made against Owner based on Contractor’s conduct in the performance or furnishing of the Work, or Owner has incurred costs, losses, or damages resulting from Contractor’s conduct in the performance or furnishing of the Work, including but not limited to claims, costs, losses, or damages from workplace injuries, adjacent property damage, non-compliance with Laws and Regulations, and patent infringement; 115 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 62 of 70 b. Contractor has failed to take reasonable and customary measures to avoid damage, delay, disruption, and interference with other work at or adjacent to the Site; c. Contractor has failed to provide and maintain required bonds or insurance; d. Owner has been required to remove or remediate a Hazardous Environmental Condition for which Contractor is responsible; e. Owner has incurred extra charges or engineering costs related to submittal reviews, evaluations of proposed substitutes, tests and inspections, or return visits to manufacturing or assembly facilities; f. The Work is defective, requiring correction or replacement; g. Owner has been required to correct defective Work in accordance with Paragraph 14.07, or has accepted defective Work pursuant to Paragraph 14.04; h. The Contract Price has been reduced by Change Orders; i. An event has occurred that would constitute a default by Contractor and therefore justify a termination for cause; j. Liquidated or other damages have accrued as a result of Contractor’s failure to achieve Milestones, Substantial Completion, or final completion of the Work; k. Liens have been filed in connection with the Work, except where Contractor has delivered a specific bond satisfactory to Owner to secure the satisfaction and discharge of such Liens; or l. Other items entitle Owner to a set-off against the amount recommended. 2. If Owner imposes any set-off against payment, whether based on its own knowledge or on the written recommendations of Engineer, Owner will give Contractor immediate written notice (with a copy to Engineer) stating the reasons for such action and the specific amount of the reduction, and promptly pay Contractor any amount remaining after deduction of the amount so withheld. Owner shall promptly pay Contractor the amount so withheld, or any adjustment thereto agreed to by Owner and Contractor, if Contractor remedies the reasons for such action. The reduction imposed will be binding on Contractor unless it duly submits a Change Proposal contesting the reduction. 3. Upon a subsequent determination that Owner’s refusal of payment was not justified, the amount wrongfully withheld will be treated as an amount due as determined by Paragraph 15.01.D.1 and subject to interest as provided in the Agreement. 15.02 Contractor’s Warranty of Title A. Contractor warrants and guarantees that title to all Work, materials, and equipment furnished under the Contract will pass to Owner free and clear of (1) all Liens and other title defects, and (2) all patent, licensing, copyright, or royalty obligations, no later than 7 days after the time of payment by Owner. 15.03 Substantial Completion A. When Contractor considers the entire Work ready for its intended use Contractor shall notify Owner and Engineer in writing that the entire Work is substantially complete and request that Engineer issue a certificate of Substantial Completion. Contractor shall at the same time 116 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 63 of 70 submit to Owner and Engineer an initial draft of punch list items to be completed or corrected before final payment. B. Promptly after Contractor’s notification, Owner, Contractor, and Engineer shall make an inspection of the Work to determine the status of completion. If Engineer does not consider the Work substantially complete, Engineer will notify Contractor in writing giving the reasons therefor. C. If Engineer considers the Work substantially complete, Engineer will deliver to Owner a preliminary certificate of Substantial Completion which will fix the date of Substantial Completion. Engineer shall attach to the certificate a punch list of items to be completed or corrected before final payment. Owner shall have 7 days after receipt of the preliminary certificate during which to make written objection to Engineer as to any provisions of the certificate or attached punch list. If, after considering the objections to the provisions of the preliminary certificate, Engineer concludes that the Work is not substantially complete, Engineer will, within 14 days after submission of the preliminary certificate to Owner, notify Contractor in writing that the Work is not substantially complete, stating the reasons therefor. If Owner does not object to the provisions of the certificate, or if despite consideration of Owner’s objections Engineer concludes that the Work is substantially complete, then Engineer will, within said 14 days, execute and deliver to Owner and Contractor a final certificate of Substantial Completion (with a revised punch list of items to be completed or corrected) reflecting such changes from the preliminary certificate as Engineer believes justified after consideration of any objections from Owner. D. At the time of receipt of the preliminary certificate of Substantial Completion, Owner and Contractor will confer regarding Owner’s use or occupancy of the Work following Substantial Completion, review the builder’s risk insurance policy with respect to the end of the builder’s risk coverage, and confirm the transition to coverage of the Work under a permanent property insurance policy held by Owner. Unless Owner and Contractor agree otherwise in writing, Owner shall bear responsibility for security, operation, protection of the Work, property insurance, maintenance, heat, and utilities upon Owner’s use or occupancy of the Work. E. After Substantial Completion the Contractor shall promptly begin work on the punch list of items to be completed or corrected prior to final payment. In appropriate cases Contractor may submit monthly Applications for Payment for completed punch list items, following the progress payment procedures set forth above. F. Owner shall have the right to exclude Contractor from the Site after the date of Substantial Completion subject to allowing Contractor reasonable access to remove its property and complete or correct items on the punch list. 15.04 Partial Use or Occupancy A. Prior to Substantial Completion of all the Work, Owner may use or occupy any substantially completed part of the Work which has specifically been identified in the Contract Documents, or which Owner, Engineer, and Contractor agree constitutes a separately functioning and usable part of the Work that can be used by Owner for its intended purpose without 117 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 64 of 70 significant interference with Contractor’s performance of the remainder of the Work, subject to the following conditions: 1. At any time, Owner may request in writing that Contractor permit Owner to use or occupy any such part of the Work that Owner believes to be substantially complete. If and when Contractor agrees that such part of the Work is substantially complete, Contractor, Owner, and Engineer will follow the procedures of Paragraph 15.03.A through 15.03.E for that part of the Work. 2. At any time, Contractor may notify Owner and Engineer in writing that Contractor considers any such part of the Work substantially complete and request Engineer to issue a certificate of Substantial Completion for that part of the Work. 3. Within a reasonable time after either such request, Owner, Contractor, and Engineer shall make an inspection of that part of the Work to determine its status of completion. If Engineer does not consider that part of the Work to be substantially complete, Engineer will notify Owner and Contractor in writing giving the reasons therefor. If Engineer considers that part of the Work to be substantially complete, the provisions of Paragraph 15.03 will apply with respect to certification of Substantial Completion of that part of the Work and the division of responsibility in respect thereof and access thereto. 4. No use or occupancy or separate operation of part of the Work may occur prior to compliance with the requirements of Paragraph 6.04 regarding builder’s risk or other property insurance. 15.05 Final Inspection A. Upon written notice from Contractor that the entire Work or an agreed portion thereof is complete, Engineer will promptly make a final inspection with Owner and Contractor and will notify Contractor in writing of all particulars in which this inspection reveals that the Work, or agreed portion thereof, is incomplete or defective. Contractor shall immediately take such measures as are necessary to complete such Work or remedy such deficiencies. 15.06 Final Payment A. Application for Payment 1. After Contractor has, in the opinion of Engineer, satisfactorily completed all corrections identified during the final inspection and has delivered, in accordance with the Contract Documents, all maintenance and operating instructions, schedules, guarantees, bonds, certificates or other evidence of insurance, certificates of inspection, annotated record documents (as provided in Paragraph 7.12), and other documents, Contractor may make application for final payment. 2. The final Application for Payment must be accompanied (except as previously delivered) by: a. all documentation called for in the Contract Documents; b. consent of the surety, if any, to final payment; c. satisfactory evidence that all title issues have been resolved such that title to all Work, materials, and equipment has passed to Owner free and clear of any Liens or other title defects, or will so pass upon final payment. 118 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 65 of 70 d. a list of all duly pending Change Proposals and Claims; and e. complete and legally effective releases or waivers (satisfactory to Owner) of all Lien rights arising out of the Work, and of Liens filed in connection with the Work. 3. In lieu of the releases or waivers of Liens specified in Paragraph 15.06.A.2 and as approved by Owner, Contractor may furnish receipts or releases in full and an affidavit of Contractor that: (a) the releases and receipts include all labor, services, material, and equipment for which a Lien could be filed; and (b) all payrolls, material and equipment bills, and other indebtedness connected with the Work for which Owner might in any way be responsible, or which might in any way result in liens or other burdens on Owner's property, have been paid or otherwise satisfied. If any Subcontractor or Supplier fails to furnish such a release or receipt in full, Contractor may furnish a bond or other collateral satisfactory to Owner to indemnify Owner against any Lien, or Owner at its option may issue joint checks payable to Contractor and specified Subcontractors and Suppliers. B. Engineer’s Review of Final Application and Recommendation of Payment: If, on the basis of Engineer’s observation of the Work during construction and final inspection, and Engineer’s review of the final Application for Payment and accompanying documentation as required by the Contract Documents, Engineer is satisfied that the Work has been completed and Contractor’s other obligations under the Contract have been fulfilled, Engineer will, within 10 days after receipt of the final Application for Payment, indicate in writing Engineer’s recommendation of final payment and present the final Application for Payment to Owner for payment. Such recommendation will account for any set-offs against payment that are necessary in Engineer’s opinion to protect Owner from loss for the reasons stated above with respect to progress payments. Otherwise, Engineer will return the Application for Payment to Contractor, indicating in writing the reasons for refusing to recommend final payment, in which case Contractor shall make the necessary corrections and resubmit the Application for Payment. C. Notice of Acceptability: In support of its recommendation of payment of the final Application for Payment, Engineer will also give written notice to Owner and Contractor that the Work is acceptable, subject to stated limitations in the notice and to the provisions of Paragraph 15.07. D. Completion of Work: The Work is complete (subject to surviving obligations) when it is ready for final payment as established by the Engineer’s written recommendation of final payment and issuance of notice of the acceptability of the Work. E. Final Payment Becomes Due: Upon receipt from Engineer of the final Application for Payment and accompanying documentation, Owner shall set off against the amount recommended by Engineer for final payment any further sum to which Owner is entitled, including but not limited to set-offs for liquidated damages and set-offs allowed under the provisions of this Contract with respect to progress payments. Owner shall pay the resulting balance due to Contractor within 30 days of Owner’s receipt of the final Application for Payment from Engineer. 15.07 Waiver of Claims A. By making final payment, Owner waives its claim or right to liquidated damages or other damages for late completion by Contractor, except as set forth in an outstanding Claim, 119 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 66 of 70 appeal under the provisions of Article 17, set-off, or express reservation of rights by Owner. Owner reserves all other claims or rights after final payment. B. The acceptance of final payment by Contractor will constitute a waiver by Contractor of all claims and rights against Owner other than those pending matters that have been duly submitted as a Claim, or appealed under the provisions of Article 17. 15.08 Correction Period A. If within one year after the date of Substantial Completion (or such longer period of time as may be prescribed by the Supplementary Conditions or the terms of any applicable special guarantee required by the Contract Documents), Owner gives Contractor written notice that any Work has been found to be defective, or that Contractor’s repair of any damages to the Site or adjacent areas has been found to be defective, then after receipt of such notice of defect Contractor shall promptly, without cost to Owner and in accordance with Owner’s written instructions: 1. correct the defective repairs to the Site or such adjacent areas; 2. correct such defective Work; 3. remove the defective Work from the Project and replace it with Work that is not defective, if the defective Work has been rejected by Owner, and 4. satisfactorily correct or repair or remove and replace any damage to other Work, to the work of others, or to other land or areas resulting from the corrective measures. B. Owner shall give any such notice of defect within 60 days of the discovery that such Work or repairs is defective. If such notice is given within such 60 days but after the end of the correction period, the notice will be deemed a notice of defective Work under Paragraph 7.17.B. C. If, after receipt of a notice of defect within 60 days and within the correction period, Contractor does not promptly comply with the terms of Owner’s written instructions, or in an emergency where delay would cause serious risk of loss or damage, Owner may have the defective Work corrected or repaired or may have the rejected Work removed and replaced. Contractor shall pay all costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such correction or repair or such removal and replacement (including but not limited to all costs of repair or replacement of work of others). Contractor’s failure to pay such costs, losses, and damages within 10 days of invoice from Owner will be deemed the start of an event giving rise to a Claim under Paragraph 12.01.B, such that any related Claim must be brought within 30 days of the failure to pay. D. In special circumstances where a particular item of equipment is placed in continuous service before Substantial Completion of all the Work, the correction period for that item may start to run from an earlier date if so provided in the Specifications. E. Where defective Work (and damage to other Work resulting therefrom) has been corrected or removed and replaced under this paragraph, the correction period hereunder with respect to such Work will be extended for an additional period of one year after such correction or removal and replacement has been satisfactorily completed. 120 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 67 of 70 F. Contractor’s obligations under this paragraph are in addition to all other obligations and warranties. The provisions of this paragraph are not to be construed as a substitute for, or a waiver of, the provisions of any applicable statute of limitation or repose. ARTICLE 16—SUSPENSION OF WORK AND TERMINATION 16.01 Owner May Suspend Work A. At any time and without cause, Owner may suspend the Work or any portion thereof for a period of not more than 90 consecutive days by written notice to Contractor and Engineer. Such notice will fix the date on which Work will be resumed. Contractor shall resume the Work on the date so fixed. Contractor shall be entitled to an adjustment in the Contract Price or an extension of the Contract Times directly attributable to any such suspension. Any Change Proposal seeking such adjustments must be submitted no later than 30 days after the date fixed for resumption of Work. 16.02 Owner May Terminate for Cause A. The occurrence of any one or more of the following events will constitute a default by Contractor and justify termination for cause: 1. Contractor’s persistent failure to perform the Work in accordance with the Contract Documents (including, but not limited to, failure to supply sufficient skilled workers or suitable materials or equipment, or failure to adhere to the Progress Schedule); 2. Failure of Contractor to perform or otherwise to comply with a material term of the Contract Documents; 3. Contractor’s disregard of Laws or Regulations of any public body having jurisdiction; or 4. Contractor’s repeated disregard of the authority of Owner or Engineer. B. If one or more of the events identified in Paragraph 16.02.A occurs, then after giving Contractor (and any surety) 10 days’ written notice that Owner is considering a declaration that Contractor is in default and termination of the Contract, Owner may proceed to: 1. declare Contractor to be in default, and give Contractor (and any surety) written notice that the Contract is terminated; and 2. enforce the rights available to Owner under any applicable performance bond. C. Subject to the terms and operation of any applicable performance bond, if Owner has terminated the Contract for cause, Owner may exclude Contractor from the Site, take possession of the Work, incorporate in the Work all materials and equipment stored at the Site or for which Owner has paid Contractor but which are stored elsewhere, and complete the Work as Owner may deem expedient. D. Owner may not proceed with termination of the Contract under Paragraph 16.02.B if Contractor within 7 days of receipt of notice of intent to terminate begins to correct its failure to perform and proceeds diligently to cure such failure. E. If Owner proceeds as provided in Paragraph 16.02.B, Contractor shall not be entitled to receive any further payment until the Work is completed. If the unpaid balance of the Contract Price exceeds the cost to complete the Work, including all related claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, 121 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 68 of 70 attorneys, and other professionals) sustained by Owner, such excess will be paid to Contractor. If the cost to complete the Work including such related claims, costs, losses, and damages exceeds such unpaid balance, Contractor shall pay the difference to Owner. Such claims, costs, losses, and damages incurred by Owner will be reviewed by Engineer as to their reasonableness and, when so approved by Engineer, incorporated in a Change Order. When exercising any rights or remedies under this paragraph, Owner shall not be required to obtain the lowest price for the Work performed. F. Where Contractor’s services have been so terminated by Owner, the termination will not affect any rights or remedies of Owner against Contractor then existing or which may thereafter accrue, or any rights or remedies of Owner against Contractor or any surety under any payment bond or performance bond. Any retention or payment of money due Contractor by Owner will not release Contractor from liability. G. If and to the extent that Contractor has provided a performance bond under the provisions of Paragraph 6.01.A, the provisions of that bond will govern over any inconsistent provisions of Paragraphs 16.02.B and 16.02.D. 16.03 Owner May Terminate for Convenience A. Upon 7 days’ written notice to Contractor and Engineer, Owner may, without cause and without prejudice to any other right or remedy of Owner, terminate the Contract. In such case, Contractor shall be paid for (without duplication of any items): 1. completed and acceptable Work executed in accordance with the Contract Documents prior to the effective date of termination, including fair and reasonable sums for overhead and profit on such Work; 2. expenses sustained prior to the effective date of termination in performing services and furnishing labor, materials, or equipment as required by the Contract Documents in connection with uncompleted Work, plus fair and reasonable sums for overhead and profit on such expenses; and 3. other reasonable expenses directly attributable to termination, including costs incurred to prepare a termination for convenience cost proposal. B. Contractor shall not be paid for any loss of anticipated profits or revenue, post-termination overhead costs, or other economic loss arising out of or resulting from such termination. 16.04 Contractor May Stop Work or Terminate A. If, through no act or fault of Contractor, (1) the Work is suspended for more than 90 consecutive days by Owner or under an order of court or other public authority, or (2) Engineer fails to act on any Application for Payment within 30 days after it is submitted, or (3) Owner fails for 30 days to pay Contractor any sum finally determined to be due, then Contractor may, upon 7 days’ written notice to Owner and Engineer, and provided Owner or Engineer do not remedy such suspension or failure within that time, terminate the contract and recover from Owner payment on the same terms as provided in Paragraph 16.03. B. In lieu of terminating the Contract and without prejudice to any other right or remedy, if Engineer has failed to act on an Application for Payment within 30 days after it is submitted, or Owner has failed for 30 days to pay Contractor any sum finally determined to be due, Contractor may, 7 days after written notice to Owner and Engineer, stop the Work until payment is made of all such amounts due Contractor, including interest thereon. The 122 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 69 of 70 provisions of this paragraph are not intended to preclude Contractor from submitting a Change Proposal for an adjustment in Contract Price or Contract Times or otherwise for expenses or damage directly attributable to Contractor’s stopping the Work as permitted by this paragraph. ARTICLE 17—FINAL RESOLUTION OF DISPUTES 17.01 Methods and Procedures A. Disputes Subject to Final Resolution: The following disputed matters are subject to final resolution under the provisions of this article: 1. A timely appeal of an approval in part and denial in part of a Claim, or of a denial in full, pursuant to Article 12; and 2. Disputes between Owner and Contractor concerning the Work, or obligations under the Contract Documents, that arise after final payment has been made. B. Final Resolution of Disputes: For any dispute subject to resolution under this article, Owner or Contractor may: 1. elect in writing to invoke the dispute resolution process provided for in the Supplementary Conditions; 2. agree with the other party to submit the dispute to another dispute resolution process; or 3. if no dispute resolution process is provided for in the Supplementary Conditions or mutually agreed to, give written notice to the other party of the intent to submit the dispute to a court of competent jurisdiction. ARTICLE 18—MISCELLANEOUS 18.01 Giving Notice A. Whenever any provision of the Contract requires the giving of written notice to Owner, Engineer, or Contractor, it will be deemed to have been validly given only if delivered: 1. in person, by a commercial courier service or otherwise, to the recipient’s place of business; 2. by registered or certified mail, postage prepaid, to the recipient’s place of business; or 3. by e-mail to the recipient, with the words “Formal Notice” or similar in the e-mail’s subject line. 18.02 Computation of Times A. When any period of time is referred to in the Contract by days, it will be computed to exclude the first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction, such day will be omitted from the computation. 123 EJCDC® C-700, Standard General Conditions of the Construction Contract. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 70 of 70 18.03 Cumulative Remedies A. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto are in addition to, and are not to be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by Laws or Regulations, by special warranty or guarantee, or by other provisions of the Contract. The provisions of this paragraph will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right, and remedy to which they apply. 18.04 Limitation of Damages A. With respect to any and all Change Proposals, Claims, disputes subject to final resolution, and other matters at issue, neither Owner nor Engineer, nor any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors, shall be liable to Contractor for any claims, costs, losses, or damages sustained by Contractor on or in connection with any other project or anticipated project. 18.05 No Waiver A. A party’s non-enforcement of any provision will not constitute a waiver of that provision, nor will it affect the enforceability of that provision or of the remainder of this Contract. 18.06 Survival of Obligations A. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with the Contract, as well as all continuing obligations indicated in the Contract, will survive final payment, completion, and acceptance of the Work or termination of the Contract or of the services of Contractor. 18.07 Controlling Law A. This Contract is to be governed by the law of the state in which the Project is located. 18.08 Assignment of Contract A. Unless expressly agreed to elsewhere in the Contract, no assignment by a party to this Contract of any rights under or interests in the Contract will be binding on the other party without the written consent of the party sought to be bound; and, specifically but without limitation, money that may become due and money that is due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract. 18.09 Successors and Assigns A. Owner and Contractor each binds itself, its successors, assigns, and legal representatives to the other party hereto, its successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents. 18.10 Headings A. Article and paragraph headings are inserted for convenience only and do not constitute parts of these General Conditions. 124 This page intentionally left blank. 125 Sourdough WTP Interim Optimization 00 73 00 - 1 Supplementary Conditions Bozeman, Montana SECTION 00 73 00 – SUPPLEMENTARY CONDITIONS TABLE OF CONTENTS Section 00 73 00 - Supplementary Conditions These Supplementary Conditions amend or supplement the Standard General Conditions of the Construction Contract, EJCDC® C-700 (2013 Edition). All provisions that are not so amended or supplemented remain in full force and effect. The terms used in these Supplementary Conditions have the meanings stated in the General Conditions. Additional terms used in these Supplementary Conditions have the meanings stated below, which are applicable to both the singular and plural thereof. The address system used in these Supplementary Conditions is the same as the address system used in the General Conditions, with the prefix "SC" added thereto. ARTICLE 1 – DEFINITIONS AND TERMINOLOGY SC-1.01 Defined Terms ARTICLE 2 – PRELIMINARY MATTERS SC-2.01 Delivery of Bonds and Evidence of Insurance SC-2.01 Delete Paragraphs 2.01 B. and C. in their entirety and insert the following in their place: B. Evidence of Contractor’s Insurance: When Contractor delivers the executed counterparts of the Agreement to Owner, Contractor shall also deliver to Owner copies of the policies of insurance (including all endorsements, and identification of applicable self-insured retentions and deductibles) required to be provided by Contractor in Article 6. Contractor may block out (redact) any confidential premium or pricing information contained in any policy or endorsement furnished under this provision. C. Evidence of Owner’s Insurance: After receipt from Contractor of the executed counterparts of the Agreement and all required bonds and insurance documentation, Owner shall promptly deliver to Contractor copies of the policies of insurance to be provided by Owner under Article 6 (if any). Owner may block out (redact) any confidential premium or pricing information contained in any policy or endorsement furnished under this provision. SC-2.02 Copies of Documents SC-2.02 Delete Paragraph 2.02.A in its entirety and insert the following new paragraph in its place: A. Owner shall furnish to Contractor four copies of conformed Contract Documents incorporating and integrating all Addenda and any amendments negotiated prior to the Effective Date of the Contract (including one fully executed counterpart of the Agreement), and one copy in electronic portable document format (PDF). Additional 126 Sourdough WTP Interim Optimization 00 73 00 - 2 Supplementary Conditions Bozeman, Montana printed copies of the conformed Contract Documents will be furnished upon request at the cost of reproduction. ARTICLE 5 – AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDITIONS; HAZARDOUS ENVIRONMENTAL CONDITIONS SC-5.03 Subsurface and Physical Conditions SC-5.03 Add the following new paragraphs immediately after Paragraph 5.03.B: C. The following reports of explorations and tests of subsurface conditions at or adjacent to the Site are known to Owner: 1. NONE D. The following drawings of physical conditions relating to existing surface or subsurface structures at or adjacent to the Site (except Underground Facilities) are known to Owner: 1. Contract Drawings for City of Bozeman Hyalite/Sourdough Water Treatment Plant (WTP) Replacement Project, RECORD DRAWINGS a. HDR - Morrison-Maierle, Inc; February 2015 2. [ADDENDUM 1] Seepex Fluoride Transfer Pump Technical Data. E. Contractor may examine copies of reports and drawings identified in SC 5.03.C and SC 5.03.D that were not included with the Bidding Documents at the Issuing Office identified in the Invitation to Bid during regular business hours, or may request PDF copies from Engineer. SC-5.06 Hazardous Environmental Conditions SC-5.06 Add the following subparagraphs 5.06.A.1: 1. The following reports regarding Hazardous Environmental Conditions at the Site are known to Owner: a. No Known Reports. 127 Sourdough WTP Interim Optimization 00 73 00 - 3 Supplementary Conditions Bozeman, Montana ARTICLE 6 – BONDS AND INSURANCE SC-6.03 Contractor’s Liability Insurance SC 6.03 Add the following new paragraph immediately after Paragraph 6.03.J: K. The limits of liability for the insurance required by Paragraph 6.03 of the General Conditions shall provide coverage for not less than the following amounts or greater where required by Laws and Regulations: 1. Workers’ Compensation, and related coverages under Paragraphs 6.03.A.1 and A.2 of the General Conditions: WORKER’S COMPENSATION State: Statutory Federal, if applicable (e.g., Longshoreman’s): Statutory Foreign voluntary workers’ compensation (employer’s responsibility coverage), if applicable Statutory JONES ACT (If Applicable) Bodily injury by accident – each accident $1,500,000 Bodily Injury by disease – aggregate $3,000,000 Employer’s Liability: Each accident $1,500,000 Each employee $1,500,000 Policy Limit $3,000,000 2. Contractor’s Commercial General Liability under Paragraphs 6.03.B and 6.03.C of the General Conditions: General Aggregate $ 3,000,000.00 Products - Completed Operations Aggregate $ 3,000,000.00 Personal and Advertising Injury $ 1,500,000.00 Each Occurrence (Bodily Injury and Property Damage) $ 1,500,000.00 Coverage to include: 1) Premises – Operations 2) Operations of Independent Contractor. 3) Contractual Liability. 4) Personal Injury 5) Products and Completed Operations 6) Broad Form Property Damage will include explosion, collapse, blasting, and underground where applicable. 7) Per Project Aggregate Endorsement. 128 Sourdough WTP Interim Optimization 00 73 00 - 4 Supplementary Conditions Bozeman, Montana 3. Automobile Liability under Paragraph 6.03.D. of the General Conditions: Bodily Injury: Each person $ 1,500,000 Each accident $ 1,500,000 Property Damage: Each accident $ 1,500,000 [or] Combined Single Limit of $ 3,000,000 Coverage to include: 1) All Owned. 2) Hired 3) Non-Owned 4. NOT USED. 5. Contractor’s Pollution Liability: Each Occurrence $ 1,500,000 General Aggregate $ 3,000,000 If box is checked, Contractor is not required to provide Contractor’s Pollution Liability insurance under this Contract 6. Additional Insureds: • Owner • Advanced Engineering and Environmental Services, LLC 4050 Garden View Drive, Suite 200 Grand Forks, ND 58201 7. Contractor’s Professional Liability: Each Claim $ 1,500,000.00 Annual Aggregate $ 3,000,000.00 8. The Contractual Liability coverage required by paragraph 6.03.B.1 through 6.03.B.4 of the General Conditions shall provide coverage for not less than the following amounts: Each Occurrence: $ 1,500,000.00 Aggregate $ 3,000,000.00 129 Sourdough WTP Interim Optimization 00 73 00 - 5 Supplementary Conditions Bozeman, Montana SC-6.05 Property Insurance SC-6.05. Delete Paragraph 6.05.A in its entirety and insert the following in its place: A. CONTRACTOR shall purchase and maintain Builder’s Risk / Property Insurance at least as broad as that provided by the ISO special causes of loss form (CP10 30) naming at a minimum the City in an amount equal to the greater of Contractor’s compensation or full replacement value of the work (covering at a minimum all work, buildings, materials, and equipment, whether on site or in transit, loss due to fire, lightening, theft, vandalism, malicious mischief, earthquake, collapse, debris removal, demolition occasioned by enforcement of laws, water damage, flood if site is within a flood plain, repair or replacement costs, testing and start-up costs) on an all risk coverage basis. This insurance must include waivers of subrogation between the City and Contractor to the extent that damage to the Construction Project or City Hall is covered by other insurance; SC-6.05.A.1 Add the following new subparagraph after subparagraph 6.05.A.1: a. In addition to Owner, Contractor, and all Subcontractors, include as insureds the following: Advanced Engineering & Environmental Services, LLC 1288 North 14th Avenue Unit 103 Bozeman, MT 59715 SC-6.05.B. Replace Paragraph 6.05.B. with the following language: All of the policies of insurance (and the certificates or other evidence thereof) required to be purchased and maintained in accordance with Paragraph 6.05 will contain a provision or endorsement that the coverage afforded will not be canceled or materially changed or renewal refused until at least 45 days prior written notice has been given to Owner and Contractor and to each other additional insured to whom a certificate of insurance has been issued and will contain waiver provisions in accordance with Paragraph 6.06. ARTICLE 7 – CONTRACTOR’S RESPONSIBILITIES SC-7.02 Labor; Working Hours Paragraph 7.02.B of the General Conditions restricts Contractor to working during “regular hours” Monday through Friday, and no work is permitted on “legal holidays.” A. To provide details regarding the meaning of the terms “regular hours” and “legal holidays,” consider specifically defining them by adding the following: SC-7.02.B. Add the following new subparagraphs immediately after Paragraph 7.02.B: 1. Regular working hours will be 8:00 AM to 5:00 PM 2. Owner's legal holidays are • New Year’s Day • Indigenous Peoples’ Day • Martin Luther King, Jr. Day • Veterans Day • President’s Day • Election Day • Good Friday • Thanksgiving Day • Memorial Day • Christmas Day • Independence Day • Labor Day 130 Sourdough WTP Interim Optimization 00 73 00 - 6 Supplementary Conditions Bozeman, Montana SC-7.02.B. Amend the first and second sentences of Paragraph 7.02.B to state “…all Work at the Site shall be performed during regular working hours, Monday through Friday. Work outside of these times or during any legal holiday shall be coordinated with Engineer and Owner.” SC-7.09 Taxes SC 7.09 Add a new paragraph immediately after Paragraph 7.09.A: B. Owner is exempt from payment of sales and compensating use taxes of the State of Montana and of cities and counties thereof on all materials to be incorporated into the Work. 1. Owner will furnish the required certificates of tax exemption to Contractor for use in the purchase of supplies and materials to be incorporated into the Work. 2. Owner’s exemption does not apply to construction tools, machinery, equipment, or other property purchased by or leased by Contractor, or to supplies or materials not incorporated into the Work. 3. Owner’s tax exemption is legislated by Title 15 of the Montana Code Annotated (15-6-201, MCA) & (15-31.102, MCA). 7.12 Safety and Protection SC-7.12.C Insert the following after the second sentence of Paragraph 7.12.C: The following Owner safety programs are applicable to the Work: City of Bozeman safety program (current edition). [ADDENDUM 1] Water Treatment Plant Contractor Orientation Checklist [ADDENDUM 1] Water Treatment Plant Chemical Safety Policy for Contractors [ADDENDUM 1] Water Treatment Plant Confined Space Program SC-7.12 Insert the following after the second sentence of Paragraph 7.12.G: H. It is expressly understood by the parties to this Agreement that the Contractor is solely responsible for initiating, maintaining, and supervising safety precautions and programs in connection with the Work. The right of the Owner and Engineer to observe or otherwise review the Work and operations shall not relieve the Contractor from any of its covenants and obligations hereunder. Contractor shall incorporate all safety requirements into the construction progress and work schedules including preconstruction and scheduled monthly safety meetings, posted safety rules, tailgate meetings, and site inspections by safety and other inspectors employed by the Contractor. I. The Contractor shall be responsible for and shall take necessary precautions and provide all material and equipment protect, shore, brace, support, and maintain all underground pipes, conduits, drains, sewers, water mains, gas mains, cables, etc., and other underground construction uncovered in the proximity, or otherwise affected by the construction work performed by him/her. All pavement, surfacing, driveways, curbs, walks, buildings, grass areas, trees, utility poles, or guy wires damaged by the Contractor’s operations in the performance of this Work shall be repaired and/or replaced to the satisfaction of the Owner, Engineer, and affected property owner at the Contractor’s expense. The Contractor shall also be responsible for all damage to streets, roads, 131 Sourdough WTP Interim Optimization 00 73 00 - 7 Supplementary Conditions Bozeman, Montana highways, shoulders, ditches, embankments, culverts, bridges, or other public or private property or facility, regardless of location or character, which may be caused by moving, hauling, or otherwise transporting equipment, materials, or workers to and from the work or any part of the site thereof; whether by him/her or his/her Subcontractors. The Contractor shall make satisfactory and acceptable arrangements with owner of, or the agency or authority having jurisdiction over, the damaged property or facility concerning its repair or replacement or payment of costs incurred in connection with said damage. J. The Contractor shall conduct its work so as to interfere as little as possible with public travel, whether vehicular or pedestrian. Whenever it is necessary to cross, obstruct, or close roads, driveways, and walks, whether public or private, the Contractor shall obtain approval from the governing party and shall, at his/her own expense, provide and maintain suitable and safe bridges, detours, and other temporary expedients for the accommodation of public and private drives before interfering with them. The provisions for temporary expedients will not be required when the Contractor has obtained permission from the owner and tenant of private property, or from the authority having jurisdiction over public property involved, to obstruct traffic at the designated point. K. Safety provisions must be entirely adequate and meet with City, County, State, and/or Federal regulations to protect the public on applicable streets and roads. ARTICLE 8 – OTHER WORK AT THE SITE SC-8.02 Coordination SC-8.02 Delete Paragraph 8.02.A in its entirety and replace with the following: A. Owner intends to contract with others for the performance of other work at or adjacent to the Site. 1. Engineer and Engineer’s RPR shall have authority and responsibility for coordination of the various contractors and work forces at the Site; 2. The following specific matters are to be covered by such authority and responsibility: Construction coordination, communication between Contractor and other work, site access, other matters of other work which affect Contractor’s operations. 3. The extent of such authority and responsibilities is: Communications and general coordination between Contractor and other work and the extent outlined in SECTION 00 30 05 – Special Provisions. ARTICLE 9 – OWNER’S RESPONSIBILITIES SC-9.13 [ADDENDUM 1] Owner operates under its Montana Pollutants Discharge Elimination System Permit No.: MT0030155. Contractor shall work with Owner to coordinate 132 Sourdough WTP Interim Optimization 00 73 00 - 8 Supplementary Conditions Bozeman, Montana construction activities so that Contractor’s Activities do not cause process disruptions that result in discharge permit violations. ARTICLE 10 – ENGINEER’S STATUS DURING CONSTRUCTION SC-10.03 Project Representative SC-10.03 Add the following new paragraphs immediately after Paragraph 10.03.A: B. The Resident Project Representative (RPR) will be Engineer's representative at the Site, will act as directed by and under the supervision of Engineer, and will confer with Engineer regarding RPR's actions. 1. General: RPR's dealings in matters pertaining to the Work in general shall be with Engineer and Contractor. RPR's dealings with Subcontractors shall only be through or with the full knowledge and approval of Contractor. RPR shall generally communicate with Owner only with the knowledge of and under the direction of Engineer. 2. Schedules: Review the progress schedule, schedule of Shop Drawing and Sample submittals, and Schedule of Values prepared by Contractor and consult with Engineer concerning acceptability. 3. Conferences and Meetings: Attend meetings with Contractor, such as preconstruction conferences, progress meetings, job conferences, and other Project-related meetings, and prepare and circulate copies of minutes thereof. 4. Liaison: a. Serve as Engineer’s liaison with Contractor. Working principally through Contractor’s authorized representative or designee, assist in providing information regarding the provisions and intent of the Contract Documents. b. Assist Engineer in serving as Owner’s liaison with Contractor when Contractor’s operations affect Owner’s on-Site operations. c. Assist in obtaining from Owner additional details or information, when required for proper execution of the Work. 5. Interpretation of Contract Documents: Report to Engineer when clarifications and interpretations of the Contract Documents are needed and transmit to Contractor clarifications and interpretations as issued by Engineer. 6. Shop Drawings and Samples: a. Record date of receipt of Samples and Contractor-approved Shop Drawings. b. Receive Samples which are furnished at the Site by Contractor, and notify Engineer of availability of Samples for examination. c. Advise Engineer and Contractor of the commencement of any portion of the Work requiring a Shop Drawing or Sample submittal for which RPR believes that the submittal has not been approved by Engineer. 7. Modifications: Consider and evaluate Contractor’s suggestions for modifications in Drawings or Specifications and report such suggestions, 133 Sourdough WTP Interim Optimization 00 73 00 - 9 Supplementary Conditions Bozeman, Montana together with RPR’s recommendations, if any, to Engineer. Transmit to Contractor in writing decisions as issued by Engineer. 8. Review of Work and Rejection of Defective Work: a. Conduct on-site observations of Contractor’s work in progress to assist Engineer in determining if the Work is in general proceeding in accordance with the Contract Documents. b. Report to Engineer whenever RPR believes that any part of Contractor’s work in progress is defective, will not produce a completed Project that conforms generally to the Contract Documents, or will imperil the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents, or has been damaged, or does not meet the requirements of any inspection, test or approval required to be made; and advise Engineer of that part of work in progress that RPR believes should be corrected or rejected or should be uncovered for observation, or requires special testing, inspection or approval. 9. Inspections, Tests, and System Start-ups: a. Verify that tests, equipment, and systems start-ups and operating and maintenance training are conducted in the presence of appropriate Owner’s personnel, and that Contractor maintains adequate records thereof. b. Observe, record, and report to Engineer appropriate details relative to the test procedures and systems start-ups. 10. Records: a. Prepare a daily report or keep a diary or log book, recording Contractor’s hours on the Site, Subcontractors present at the Site, weather conditions, data relative to questions of Change Orders, Field Orders, Work Change Directives, or changed conditions, Site visitors, deliveries of equipment or materials, daily activities, decisions, observations in general, and specific observations in more detail as in the case of observing test procedures; and send copies to Engineer. b. Record names, addresses, fax numbers, e-mail addresses, web site locations, and telephone numbers of all Contractors, Subcontractors, and major Suppliers of materials and equipment. c. Maintain records for use in preparing Project documentation. 11. Reports: a. Furnish to Engineer periodic reports as required of progress of the Work and of Contractor’s compliance with the Progress Schedule and schedule of Shop Drawing and Sample submittals. b. Draft and recommend to Engineer proposed Change Orders, Work Change Directives, and Field Orders. Obtain backup material from Contractor. c. Immediately notify Engineer of the occurrence of any Site accidents, emergencies, acts of God endangering the Work, force majeure or delay 134 Sourdough WTP Interim Optimization 00 73 00 - 10 Supplementary Conditions Bozeman, Montana events, damage to property by fire or other causes, or the discovery of any Constituent of Concern or Hazardous Environmental Condition. 12. Payment Requests: Review applications for payment with Contractor for compliance with the established procedure for their submission and forward with recommendations to Engineer, noting particularly the relationship of the payment requested to the Schedule of Values, Work completed, and materials and equipment delivered at the Site but not incorporated in the Work. 13. Certificates, Operation and Maintenance Manuals: During the course of the Work, verify that materials and equipment certificates, operation and maintenance manuals and other data required by the Contract Documents to be assembled and furnished by Contractor are applicable to the items actually installed and in accordance with the Contract Documents, and have these documents delivered to Engineer for review and forwarding to Owner prior to payment for that part of the Work. 14. Completion: a. Participate in Engineer’s visits to the Site to determine Substantial Completion, assist in the determination of Substantial Completion and the preparation of a punch list of items to be completed or corrected. b. Participate in Engineer’s final visit to the Site to determine completion of the Work, in the company of Owner and Contractor, and prepare a final punch list of items to be completed and deficiencies to be remedied. c. Observe whether all items on the final list have been completed or corrected and make recommendations to Engineer concerning acceptance and issuance of the notice of acceptability of the work. C. The RPR shall not: 1. Authorize any deviation from the Contract Documents or substitution of materials or equipment (including “or-equal” items). 2. Exceed limitations of Engineer’s authority as set forth in the Contract Documents. 3. Undertake any of the responsibilities of Contractor, Subcontractors, or Suppliers. 4. Advise on, issue directions relative to, or assume control over any aspect of the means, methods, techniques, sequences or procedures of Contractor’s work. 5. Advise on, issue directions regarding, or assume control over security or safety practices, precautions, and programs in connection with the activities or operations of Owner or Contractor. 6. Participate in specialized field or laboratory tests or inspections conducted off-site by others except as specifically authorized by Engineer. 7. Accept Shop Drawing or Sample submittals from anyone other than Contractor. 8. Authorize Owner to occupy the Project in whole or in part. 135 Sourdough WTP Interim Optimization 00 73 00 - 11 Supplementary Conditions Bozeman, Montana ARTICLE 13 – COST OF THE WORK; ALLOWANCES; UNIT PRICE WORK SC-13.01 Cost of the Work SC 13.01.B.5.c Delete Paragraph 13.01.B.5.c in its entirety and insert the following in its place: c. Construction Equipment and Machinery: 1) Rentals of all construction equipment and machinery, and the parts thereof, in accordance with rental agreements approved by Owner with the advice of Engineer, and the costs of transportation, loading, unloading, assembly, dismantling, and removal thereof. All such costs shall be in accordance with the terms of said rental agreements. The rental of any such equipment, machinery, or parts shall cease when the use thereof is no longer necessary for the Work. 2) Costs for equipment and machinery owned by Contractor will be paid at a rate shown for such equipment in the Equipment Watch Cost Recovery (Rental Rate Blue Book). An hourly rate will be computed by dividing the monthly rates by 176. These computed rates will include all operating costs. Costs will include the time the equipment or machinery is in use on the changed Work and the costs of transportation, loading, unloading, assembly, dismantling, and removal when directly attributable to the changed Work. The cost of any such equipment or machinery, or parts thereof, shall cease to accrue when the use thereof is no longer necessary for the changed Work. Equipment or machinery with a value of less than $1,000 will be considered small tools. SC-13.03 Unit Price Work SC 13.03.E Delete Paragraph 13.03.E in its entirety and insert the following in its place: E. The unit price of an item of Unit Price Work shall be subject to reevaluation and adjustment under the following conditions: 1. if the extended price of a particular item of Unit Price Work amounts to 5 percent or more of the Contract Price (based on estimated quantities at the time of Contract formation) and the variation in the quantity of that particular item of Unit Price Work actually furnished or performed by Contractor differs by more than 15 percent from the estimated quantity of such item indicated in the Agreement; and 2. if there is no corresponding adjustment with respect to any other item of Work; and 3. if Contractor believes that Contractor has incurred additional expense as a result thereof, Contractor may submit a Change Proposal, or if Owner believes that the quantity variation entitles Owner to an adjustment in the unit price, Owner may make a Claim, seeking an adjustment in the Contract Price. ARTICLE 15 – PAYMENTS TO CONTRACTOR; SET-OFFS; COMPLETION; CORRECTION PERIOD SC-15.01 Progress Payments SC-15.01.B.3 Add the following language at the end of Paragraph 15.01.B.3: 136 Sourdough WTP Interim Optimization 00 73 00 - 12 Supplementary Conditions Bozeman, Montana No payments will be made that would deplete the retainage, place in escrow any funds that are required for retainage or invest the retainage for the benefit of the Contractor. Each application for progress payment shall be accompanied by Contractor’s updated progress schedule, shop drawing schedule, procurement schedule, and other data specified herein or reasonably required by Owner or Engineer. The Owner reserves the right to require submission of monthly certified payrolls by the Contractor. 15.02 Contractor’s Warranty of Title SC-15.02.A Amend Paragraph 15.02.A by striking out the following text: “no later than seven days after the time of payment by Owner” and insert “no later than the time of payment by Owner.” Then Add the Following to the end of Paragraph 15.02.A: Neither recommendation of any progress payment by Engineer nor payment by the Owner to Contractor, nor any use or occupancy of the Work or any part thereof will release the Contractor from complying with the Contract Documents. Specifically, the Contractor shall maintain in accordance with Article 6, property insurance on all work, materials, and equipment whether incorporated in the project or not and whether included in an application for payment or not, for the full insurable value thereof. Passing title to Owner for materials and equipment included in an application for payment does not relieve the Contractor of the Contractor’s obligation to provide insurance (including property insurance) as required in Article 6 of the General Conditions and these Supplementary Conditions. All insurance shall remain in effect as provided in Article 6. SC-15.03 Substantial Completion SC 15.03.B Add the following new subparagraph to Paragraph 15.03.B: 1. If some or all of the Work has been determined not to be at a point of Substantial Completion and will require re-inspection or re-testing by Engineer, the cost of such re-inspection or re-testing, including the cost of time, travel and living expenses, shall be paid by Contractor to Owner. If Contractor does not pay, or the parties are unable to agree as to the amount owed, then Owner may impose a reasonable set-off against payments due under Article 15. 15.06 Final Payment SC-15.06.A Add the following Paragraph Immediately after Paragraph 15.06.A B. Upon correction of deficiencies and completion of the entire Work, Contractor shall notify Engineer in writing requesting a final inspection. If, in the Opinion of the Engineer, the Contractor has satisfactorily completed the Work, Owner, Agency, Engineer, and Contractor shall execute the Final Inspection and Acceptance. 137 Sourdough WTP Interim Optimization 00 73 00 - 13 Supplementary Conditions Bozeman, Montana ARTICLE 17 – FINAL RESOLUTION OF DISPUTES SC-17.02 Add the following new paragraph immediately after Paragraph 17.01. SC-17.02 Arbitration A. All matters subject to final resolution under this Article will be decided by arbitration in accordance with the rules of [insert name of selected arbitration agency], subject to the conditions and limitations of this paragraph. This agreement to arbitrate and any other agreement or consent to arbitrate entered into will be specifically enforceable under the prevailing law of any court having jurisdiction. B. The demand for arbitration will be filed in writing with the other party to the Contract and with the selected arbitrator or arbitration provider, and a copy will be sent to Engineer for information. The demand for arbitration will be made within the specific time required in this Article, or if no specified time is applicable within a reasonable time after the matter in question has arisen, and in no event shall any such demand be made after the date when institution of legal or equitable proceedings based on such matter in question would be barred by the applicable statute of limitations. The demand for arbitration should include specific reference to Paragraph SC-17.02.D below. C. No arbitration arising out of or relating to the Contract shall include by consolidation, joinder, or in any other manner any other individual or entity (including Engineer, and Engineer’s consultants and the officers, directors, partners, agents, employees or consultants of any of them) who is not a party to this Contract unless: 1. the inclusion of such other individual or entity is necessary if complete relief is to be afforded among those who are already parties to the arbitration; and 2. such other individual or entity is substantially involved in a question of law or fact which is common to those who are already parties to the arbitration and which will arise in such proceedings. D. The award rendered by the arbitrator(s) shall be consistent with the agreement of the parties, in writing, and include a concise breakdown of the award, and a written explanation of the award specifically citing the Contract provisions deemed applicable and relied on in making the award. E. The award will be final. Judgment may be entered upon it in any court having jurisdiction thereof, and it will not be subject to modification or appeal, subject to provisions of the Laws and Regulations relating to vacating or modifying an arbitral award. F. The fees and expenses of the arbitrators and any arbitration service shall be shared equally by Owner and Contractor. ARTICLE 19— MONTANA STATE LAWS & REGULATIONS SC-19 Add the following new article immediately after Article 18. 19.01 All applicable laws, ordinances and the rules and regulations of authorities having jurisdiction over construction of the project shall apply to the Contract throughout. State laws and ordinances with 138 Sourdough WTP Interim Optimization 00 73 00 - 14 Supplementary Conditions Bozeman, Montana which the Contractor must comply include but are not limited to, those involving workmen’s compensation insurance, contractor registration, and gross receipts tax. 19.02 MONTANA CONTRACTOR REGISTRATION REQUIREMENTS. Title 39, Chapter 9, Part 2, MCA Stipulates the requirements for registration of Contractors with the Montana Department of Labor and Industry. Bidders are not required to be registered in Montana prior to bidding on this project, but must have registered prior to execution of the Agreement. A. Information pertaining to this requirement and registration forms may be obtained from the Montana Department of Labor and Industry, P.O. Box 8011, 1805 Prospect, Helena, Montana 59604-8011, or by calling 1-406044407734 or at their website http://erd.dli.mt.gov/mtcontractor/index.html. 19.03 ADDITIONAL CONTRACTOR LICENSE FEE (MONTANA CONTRACTORS GROSS RECEIPTS TAX). In accordance with Title 15, Chapter 50, MCA, the Owner shall withhold, in addition to other amounts withheld as provided by law or specified herein, one percent (1%) of all payments due the Contractor and shall transmit such moneys to the Montana Department of Revenue. 19.04 BIDDER PREFERENCE. In accordance with the provisions of Title 18, Chapter 1, Part 1, MCA, a preference will be given to the lowest responsible Bidder who is a resident of the State of Montana over a nonresident Bidder from any state or country that enforces a preference in their state or country for their resident Bidders. The preference given to the Montana resident Bidders will be equal to the preference given in the other state or country. This Bidder preference applies unless specifically prohibited by Federal laws or regulations. A. Products manufactured or produced in the State of Montana shall be preferred for use in all projects if such products are comparable in price and quality. Further, wherever possible, products manufactured and produced in the State, which are suitable substitutes for products manufactured or produced outside the State, and comparable in price, quality and performance, shall be preferred for use in this project. Preference regarding these products shall be in accordance with the laws of the State of Montana. 19.05 LOCAL LABOR. Contractor shall give preference to the employment of Montana residents in accordance with applicable portions of Title 18, Chapter 2, Part 4, MCA. 19.06 GROSS RECEIPTS WITHHOLDINGS: A. Pursuant to Section 15-50-206(2)(3), MCA, the Owner is required to withhold on percent (1%) of all payments due the Contractor and is required to transmit such moneys to the Montana Department of Revenue as part of the public contractor’s license fee. In like fashion, the contractor is required to withhold on percent (1%) from payments to subcontractors. ARTICLE 20—MONTANA PUBLIC WORKS STANDARD SPECIFICATIONS SC-20 Add the following new article immediately after Article 19. 20.01 The Montana Public Works Standard Specifications are referred to elsewhere in this document as the MPW Standard Specifications or MPWSS. Copies of the MPWSS and all addenda are available from: A. Montana Contractors Association, Inc., 1717 11th Avenue, Helena, MT 59601; Telephone: 406-442-4162 139 Sourdough WTP Interim Optimization 00 73 00 - 15 Supplementary Conditions Bozeman, Montana ARTICLE 21—COMPLIANCE WITH LABOR STANDARDS AND WAGE RATE REQUIREMENTS SC-21 Add the following new article immediately after Article 20. 21.01 For public works projects, pursuant to MCA 18-2-422, all laborer and mechanics employed by the Contractor(s) or subcontractors in performance of construction projects with a total cost in excess of $25,000, shall be paid, minimum wages in conformance with the prevailing State Wage Rates published by the Montana Department of Labor and Industry. The prevailing wage rate schedules are included herein. The Owner does not guarantee that labor can be procured for the minimum wages shown on the referenced schedules. The rates of wages listed are minimum only, below which the Contractor cannot pay, and they do not constitute a representation that labor can be procured for the minimum listed. 21.02 The minimum wages included in the Project Manual are not controlled except as to the minimum for the purpose of Montana State Law or the Davis-Bacon Act: therefore, it is incumbent upon each employer to pay the standard prevailing rate of wages including fringe benefits for health and welfare and pension contributions, and travel allowance provisions in effect and applicable to the county or locality in which the work is being performed. The Contractor and all subcontractors are directed to the Montana Commissioner of Labor for information on the standard prevailing rate of wages applicable to this contract within this project area. 21.03 “Standard Prevailing Rate of Wages” is defined by Section 18-2-401 MCA, as including wages, fringe benefits for health and welfare and pension contributions and travel allowance which are paid in the county of locality by other contractors for work of a similar character performed in that county or locality by each craft, classification or type of worker needed to complete a contract. 21.04 Any infraction of the Laws of the State of Montana covering Labor, Title 39, Chapters 1 through 73, MCA will be forwarded to the State of Montana Department of Labor and Industry. 21.05 “Travel Allowance,” in effect at the time of contract award, and according to latest information received by the State of Montana Department of Labor and Industry, Labor Standards Division, shall be adhered to where applicable. 21.06 Travel allowance if applicable, may or may not be all inclusive of “travel” and/or subsistence and travel time due employees. It is incumbent on the employer to determine the amounts due for each craft employed according to the method of computation outlined for each craft where applicable. 21.07 To comply with Montana Law Section 18-2-406 MCA, the Contractor shall post in a prominent and accessible site on the project work area, not later than the first day of work, a legible statement of all wages to be paid to the employees employed on the project. 140 Sourdough WTP Interim Optimization 00 73 00 - 16 Supplementary Conditions Bozeman, Montana ARTICLE 22—RETAINAGE SC-22 Add the following new article immediately after Article 21. 22.01 Provisions concerning Contractor’s rights to deposit securities in lieu of retainage are set forth in the Agreement. ARTICLE 23—PAYMENTS AND BIDDER BREAKDOWN OF BIDS SC-23 Add the following new article immediately after Article 22. 23.01 Payment for all work performed under the Agreement will be made by the Owner within the time period specified in and in accordance with the procedures outlined in the General Conditions. Payments made after the time limit will be subject to interest at the rate specified in the Agreement. When the work extends beyond thirty (30) days, progress payments will be made monthly for any work accomplished during the preceding month, but subject to the retainage as specified elsewhere. ARTICLE 24—NOTICE OF APPROVAL OF PAYMENT REQUEST PROVISIONS SC-24 Add the following new article immediately after Article 23. 24.01 These Contract Documents and this Contract allows the Owner to review and approve each Contractor’s periodic payment request within 30 days after the request in received by the Owner. ARTICLE 25—NOTICE OF EXTENDED PAYMENT PROVISIONS SC-25 Add the following new article immediately after Article 24. 25.01 These Contract Documents and this contract allow the Owner to make periodic payments within 21 days after the Owner’s approval of each periodic payment request per MCA 28-2-2101 – MCA 28-2-2117, Montana Prompt Payment Act. ARTICLE 26—BOZEMAN BUSINESS LICENSE. SC-26 Add the following new article immediately after Article 25. A. Contractor and all subcontractors will be required to obtain a current City of Bozeman business license prior to award of the Contract. The City Business License is not required for Bidding Purposes. The License(s) may be obtained from the City of Bozeman. Information on requirements and cost of the license may be obtained by calling 406-582-2300. Applications may be obtained at Bozeman Community Development Department – 406-582-2260, Ext. 5; or businesslicenses@bozeman.net. New business license applications can be submitted via the online ProjectBox Portal while existing business licenses may be renewed using the online Business License Renewal link available on the City’s website. For more information, visit: www.bozeman.net > Departments > Community Development + Business Licenses. 26.02 Non-Discrimination 26.03 Bidder will submit with their bid the NON-DISCRIMINATION AFFIRMATION FORM found under Section 00 45 00 – Representations and Certifications reproduced in Appendix A – Project Forms. 26.04 “Bidder affirms that by submitting its Bid it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, nation origins, or because of actual or perceived sexual orientation, gender identity or disability in the performance of the work performed for the City of Bozeman, if 141 Sourdough WTP Interim Optimization 00 73 00 - 17 Supplementary Conditions Bozeman, Montana a contract is awarded to it, and also recognizes the eventual contract, if awarded, will contain a provision prohibiting discrimination as described above and that this prohibition shall apply to the hiring and treatment of bidders employees and to all subcontracts it enters in to in the performance of the agreement with the City of Bozeman ARTICLE 27—NON-COLLUSION SC-27 Add the following new article immediately after Article 26. 27.01 Bidder will submit with their bid the NON-COLLUSION AFFIDAVIT FORM found under Section 00 45 00 – Representations and Certifications reproduced in Appendix A – Project Forms. A. Bidder being first duly sworn, deposes and says that they are _________________________(sole owner, a partner, president, secretary, etc.) of _______________________[COMPANY], the party making the foregoing bid; That such bid is not made in the interest of or on behalf of any undisclosed person, partnership, company, association, organization, or corporation; that such bid is genuine and not collusive or sham; that said bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid, and has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, nor that anyone shall refrain from bidding; that said Bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of said Bidder or any other bidder, not to fix any overhead, profit, or cost element of such bid price, nor of that of any other bidder, nor to secure any advantage against the public body awarding the Contract or anyone interested in the proposed Contract; that all statements contained in such bid are true; and, further, that said bidder has not directly or indirectly, submitted his bid price or any breakdown thereof, not the contents thereof, nor divulged information or data relative thereto, nor paid and will not pay fee in connection therewith to any corporation, partnership, company, association, organization, bid depository, nor to any member or agent thereof, nor to any other individual except to such person or persons as have a partnership or other financial interest with said Bidder in his general business. END OF SUPPLEMENTARY CONDITIONS 142 This page intentionally left blank. 143 Minor Non-POTW Permit No.: MT0030155 MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY AUTHORIZATION TO DISCHARGE UNDER THE MONTANA POLLUTANT DISCHARGE ELIMINATION SYSTEM In compliance with Montana Water Quality Act, Title 75, Chapter 5, Montana Code Annotated (MCA) and the Federal Water Pollution Control Act (the “Clean Water Act”), 33 U.S.C. § 1251 et seq., is authorized to discharge from the City of Bozeman Water Treatment Plant located at 7024 Sourdough Canyon Road, Bozeman, MT 59715 to receiving waters, Bozeman Creek (Sourdough Creek) in accordance with discharge point(s), effluent limitations, monitoring requirements and other conditions set forth herein. Authorization for discharge is limited to those outfalls specifically listed in the permit. This permit shall become effective: July 1, 2020. This permit and the authorization to discharge shall expire at midnight, June 30, 2025. FOR THE MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY Jon Kenning, Chief Water Protection Bureau Issuance Date: May 6, 2020 144 Part I Page 2 of 19 Permit No.: MT0030155 Table of Contents ISSUANCE AND EXPIRATION DATES………….…………………….....……...…....…...…...Cover Sheet TABLE OF CONTENTS ............................................................................................................................. 2 EFFLUENT LIMITATIONS, MONITORING REQUIREMENTS & OTHER CONDITIONS 3 DESCRIPTION OF DISCHARGE POINTS AND MIXING ZONE ............................................................ 3 EFFLUENT LIMITATIONS ................................................................................................................ 3 EFFLUENT MONITORING AND REPORTING REQUIREMENTS.......................................................... 4 AMBIENT MONITORING AND REPORTING REQUIREMENTS ........................................................... 5 REPORTING REQUIREMENTS ......................................................................................................... 6 SPECIAL REPORTING REQUIREMENTS ........................................................................................... 6 MONITORING, RECORDING AND REPORTING REQUIREMENTS ..................................... 7 REPRESENTATIVE SAMPLING ........................................................................................................ 7 MONITORING PROCEDURES ........................................................................................................... 7 PENALTIES FOR TAMPERING.......................................................................................................... 7 REPORTING OF MONITORING RESULTS ......................................................................................... 7 COMPLIANCE SCHEDULES ............................................................................................................. 7 ADDITIONAL MONITORING BY THE PERMITTEE ............................................................................ 8 RECORDS CONTENTS ..................................................................................................................... 8 RETENTION OF RECORDS ............................................................................................................... 8 TWENTY-FOUR HOUR NOTICE OF NONCOMPLIANCE REPORTING ................................................ 8 OTHER NONCOMPLIANCE REPORTING .......................................................................................... 9 INSPECTION AND ENTRY ............................................................................................................... 9 COMPLIANCE RESPONSIBILITIES ........................................................................................... 10 DUTY TO COMPLY ....................................................................................................................... 10 PENALTIES FOR VIOLATIONS OF PERMIT CONDITIONS ............................................................... 10 NEED TO HALT OR REDUCE ACTIVITY NOT A DEFENSE .............................................................. 10 DUTY TO MITIGATE ..................................................................................................................... 10 PROPER OPERATION AND MAINTENANCE ................................................................................... 10 REMOVED SUBSTANCES .............................................................................................................. 11 BYPASS OF TREATMENT FACILITIES ........................................................................................... 11 UPSET CONDITIONS ..................................................................................................................... 11 GENERAL REQUIREMENTS ........................................................................................................ 13 PLANNED CHANGES .................................................................................................................... 13 ANTICIPATED NONCOMPLIANCE ................................................................................................. 13 PERMIT ACTIONS ......................................................................................................................... 13 DUTY TO REAPPLY ...................................................................................................................... 13 DUTY TO PROVIDE INFORMATION ............................................................................................... 13 OTHER INFORMATION ................................................................................................................. 13 SIGNATORY REQUIREMENTS ....................................................................................................... 14 PENALTIES FOR FALSIFICATION OF REPORTS .............................................................................. 14 AVAILABILITY OF REPORTS ........................................................................................................ 15 OIL AND HAZARDOUS SUBSTANCE LIABILITY ............................................................................ 15 PROPERTY RIGHTS ....................................................................................................................... 15 SEVERABILITY ............................................................................................................................. 15 TRANSFERS .................................................................................................................................. 15 FEES ............................................................................................................................................. 16 REOPENER PROVISIONS ............................................................................................................... 16 DEFINITIONS ................................................................................................................................... 17 145 Part I Page 3 of 19 Permit No.: MT0030155 EFFLUENT LIMITATIONS, MONITORING REQUIREMENTS & OTHER CONDITIONS Description of Discharge Points and Mixing Zone The authorization to discharge provided under this permit is limited to those outfalls specially designated below as discharge locations. Discharges at any location not authorized under an MPDES permit is a violation of the Montana Water Quality Act and could subject the person(s) responsible for such discharge to penalties under the Act. Knowingly discharging from an unauthorized location or failing to report an unauthorized discharge within a reasonable time from first learning of an unauthorized discharge could subject such person to criminal penalties as provided under Section 75-5-632 of the Montana Water Quality Act. Outfall Description 001 Location: At the end of the pipe discharging to Bozeman Creek, located at 45.59944° N latitude, 111.02583° W longitude. Mixing Zone: The maximum extent of the chronic mixing zone in the named receiving waters is as follows: 300 feet downstream of the point of discharge for dissolved aluminum and 100 feet downstream of the point of discharge for total residual chlorine. The maximum extent of the acute mixing zone in the named receiving waters is as follows: no acute mixing zone for dissolved aluminum and 10 feet downstream of the point of discharge for total residual chlorine Treatment Works: Conventional pretreatment and membrane filtration. Effluent Limitations Upon the effective date of the permit and lasting through the permit term, the quality of effluent discharged through Outfall 001 shall, as a minimum, meet the limitations as set forth below: There shall be no discharge of floating solids or visible foam other than in trace amounts. There shall be no discharge which causes visible oil sheen in the receiving stream. There shall be no discharge that settles to form objectionable sludge deposits or emulsions beneath the surface of the water or upon adjoining shorelines. 146 Part I Page 4 of 19 Permit No.: MT0030155 Table 1. Final Effluent Limits – Outfall 001 Parameter Units Maximum Daily Limit (1) Average Monthly Limit (1) Total Suspended Solids (TSS) mg/L 45 30 lb/day -- 73 pH s.u. 6.0 – 9.0(2) Total Residual Chlorine (TRC) mg/L 0.019(3) 0.009(3) Aluminum, Dissolved mg/L 0.30 0.11 (1) See definitions in Part V of the permit for explanation of terms. (2) Instantaneous minima and maxima. Any single analysis and/or measurement beyond this limitation shall be considered a violation of the conditions of this permit. (3) Values reported as less than the or equal to DEQ’s RRV of 0.10 mg/L will be considered in compliance with this limit. Effluent Monitoring and Reporting Requirements The facility must monitor their effluent after all treatment and downstream of the confluence of all waste streams, except head tower overflow. Flow monitoring shall be conducted using a magnetic flow meter. Samples are to be obtained at the sampling station located downstream of the magnetic flow meter and prior to discharge from Outfall 001. Monitoring shall be conducted at the locations specified above unless another location is requested and approved by DEQ, in writing. As a minimum, upon the effective date of this permit, the following constituents shall be monitored at the frequency and with the type of measurement indicated; samples or measurements shall be representative of the volume and nature of the monitored discharge. Analytical methods must be 40 CFR 136 approved methods unless otherwise specified or approved by the Department. 147 Part I Page 5 of 19 Permit No.: MT0030155 Table 2. Effluent Monitoring Requirements – Outfall 001 Parameter Units Sample Type (1) Sample Frequency Reporting Requirement RRV(2) Flow mgd Instantaneous Continuous Daily Maximum Monthly Average -- Total Suspended Solids (TSS) mg/L Grab 1/Week Daily Maximum Monthly Average 1 lb/day Calculated 1/Month Monthly Average -- pH s.u. Instantaneous 1/Week Daily Minimum Daily Maximum 0.1 Total Residual Chlorine (TRC) mg/L Grab 1/Day(3) Daily Maximum Monthly Average 0.10 Aluminum, dissolved mg/L Grab 1/Week Daily Maximum Monthly Average 0.009 Fluoride mg/L Grab 1/Quarter(4) Single Value 0.2 (1) See definitions in Part V of the permit for an explanation of terms. (2) Required reporting value. If reporting non-detects, analysis must achieve these or lower RRVs (3) Facility is only required to sample for TRC on days that the lagoon is discharging to Outfall 001. (4) Sampling must be conducted when the lagoon is discharging to Outfall 001. Ambient Monitoring and Reporting Requirements Monitoring must take place at a consistent location upstream and outside the influence of Outfall 001. As a minimum, upon the effective date of this permit, the following constituents shall be monitored at the frequency and with the type of measurement indicated. Table 3. Ambient Monitoring Requirements Parameter Units Sample Frequency Sample Type (1) Reporting Requirement RRV(2) Aluminum, dissolved mg/L 1/Quarter Grab Single Value 0.009 Fluoride mg/L 1/Quarter Grab Single Value 0.2 (1) See definitions in Part V of the permit for an explanation of terms. (2) Required reporting value. If reporting non-detects, analysis must achieve these or lower RRVs. 148 Part I Page 6 of 19 Permit No.: MT0030155 Reporting Requirements Load Calculations Effluent limitations or monitoring requirements that are expressed in terms of load (lb/day) must be based on total mass of the discharge in accordance with the definition of daily discharge in Part V of this permit. Monthly load reported on the DMR should be the arithmetic mean of the daily loading values for a calendar month calculated using the equation below. Daily Load �lbday�=Effluent Flow (mgd) • Concentration �mgL�• Conversion Factor (8.34 lb •LMgal •mg) Where: Effluent Flow = Effluent flow for date of sample collection. Concentration = Effluent concentration of pollutant for date of sample collection. If sample is below the detection limit, then the detection limit (not zero) must be used for load calculation. Maximum Daily Limit (MDL) The MDL or daily maximum is the single highest value of the daily discharge samples collected during a calendar month, as defined in Part V of the permit. If multiple samples are taken in a day, the daily discharge value is the arithmetic mean of all samples collected on that day. Average Monthly Limit (AML) The AML or monthly average is the arithmetic average or mean (except E. coli) of all the daily discharge samples collected during a calendar month, as defined in Part V of the permit. If only one sample is collected, then it is considered the monthly average and reported on the Discharge Monitoring Report. Special Reporting Requirements The permittee must notify DEQ in writing prior to changing any of the chemicals used in the treatment process including if the facility elects to use any of the optional chemicals listed in this fact sheet. 149 Part II Page 7 of 19 Permit No.: MT0030155 MONITORING, RECORDING AND REPORTING REQUIREMENTS Representative Sampling Samples taken in compliance with the monitoring requirements established under Part I of the permit shall be collected from the effluent stream prior to discharge into the receiving waters. Samples and measurements shall be representative of the volume and nature of the monitored discharge. Sludge samples shall be collected at a location representative of the quality of sludge immediately prior to use-disposal practice. Monitoring Procedures Monitoring must be conducted according to test procedures approved under Part 136, Title 40 of the Code of Federal Regulations, unless other test procedures have been specified in this permit. See Part I.C of this permit for any applicable sludge monitoring procedures. All flow-measuring and flow-recording devices used in obtaining data submitted in self-monitoring reports must indicate values within 10 percent of the acute flow being measured. Penalties for Tampering The Montana Water Quality Act provides that any person who falsifies, tampers with, or knowingly renders inaccurate, any monitoring device or method required to be maintained under this permit shall, upon conviction, be punished by a fine of not more than $25,000, or by imprisonment for not more than six months, or by both. Reporting of Monitoring Results Monitoring results must be reported within a Discharge Monitoring Report (DMR). Monitoring results must be submitted electronically (NetDMR) web-based application no later than the 28th day of the month following the end of the monitoring period. If no discharge occurs during the entire reporting period, “No Discharge” must be reported within the respective DMR. All other reports must be signed and certified in accordance with Part IV.G ‘Signatory Requirements’ of this permit and submitted to DEQ at the following address: Montana Department of Environmental Quality Water Protection Bureau PO Box 200901 Helena, Montana 59620-0901 Compliance Schedules Reports of compliance or noncompliance with, or any progress reports on interim and final requirements contained in any compliance schedule of the permit must be submitted to DEQ in either electronic or paper format and be postmarked no later than 14 days following each schedule date unless otherwise specified in the permit. 150 Part II Page 8 of 19 Permit No.: MT0030155 Additional Monitoring by the Permittee If the permittee monitors any pollutant more frequently than required by this permit, using approved analytical methods as specified in this permit, the results of this monitoring shall be included in the calculation and reporting of the data submitted in the Discharge Monitoring Report. Such increased frequency shall also be indicated. Records Contents Retention of Records The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by this permit, and records of all data used to complete the application for this permit, for a period of at least three years from the date of the sample, measurement, report or application. This period may be extended by request of the Department at any time. Data collected on site, copies of Discharge Monitoring Reports, and a copy of this MPDES permit must be maintained on site during the duration of activity at the permitted location. Twenty-Four Hour Notice of Noncompliance Reporting Any noncompliance which may seriously endanger health or the environment; b. Any unanticipated bypass which exceeds any effluent limitation in the permit (see Part III.G of this permit, "Bypass of Treatment Facilities"); or c. Any upset which exceeds any effluent limitation in the permit (see Part III.H of this permit, "Upset Conditions"). 151 Part II Page 9 of 19 Permit No.: MT0030155 A description of the noncompliance and its cause; b. The period of noncompliance, including exact dates and times; c. The estimated time noncompliance is expected to continue if it has not been corrected; and d. Steps taken or planned to reduce, eliminate, and prevent reoccurrence of the noncompliance. Other Noncompliance Reporting Instances of noncompliance not required to be reported within 24 hours shall be reported at the time that monitoring reports for Part II.D of this permit are submitted. The reports shall contain the information listed in Part II.I.2 of this permit. Inspection and Entry The permittee shall allow the head of the Department or the Director, or an authorized representative thereof, upon the presentation of credentials and other documents as may be required by law, to: 152 Part III Page 10 of 19 Permit No.: MT0030155 COMPLIANCE RESPONSIBILITIES Duty to Comply The permittee must comply with all conditions of this permit. Any permit noncompliance constitutes a violation of the Montana Water Quality Act and is grounds for enforcement action; for permit termination, revocation and reissuance, or modification; or for denial of a permit renewal application. The permittee shall give the Department advance notice of any planned changes at the permitted facility or of an activity which may result in permit noncompliance. Penalties for Violations of Permit Conditions The Montana Water Quality Act provides that any person who violates a permit condition of the Act is subject to civil or criminal penalties not to exceed $25,000 per day or one year in prison, or both, for the first conviction, and $50,000 per day of violation or by imprisonment for not more than two years, or both, for subsequent convictions. MCA 75-5-611(a) also provides for administrative penalties not to exceed $10,000 for each day of violation and up to a maximum not to exceed $100,000 for any related series of violations. Except as provided in permit conditions on Part III.G of this permit, “Bypass of Treatment Facilities” and Part III.H of this permit, “Upset Conditions”, nothing in this permit shall be construed to relieve the permittee of the civil or criminal penalties for noncompliance. Need to Halt or Reduce Activity not a Defense It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit. Duty to Mitigate The permittee shall take all reasonable steps to minimize or prevent any discharge in violation of this permit which has a reasonable likelihood of adversely affecting human health or the environment. Proper Operation and Maintenance The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the permittee to achieve compliance with the conditions of this permit. Proper operation and maintenance also includes adequate laboratory controls and appropriate quality assurance procedures. This provision requires the operation of back-up or auxiliary facilities or similar systems which are installed by a permittee only when the operation is necessary to achieve compliance with the conditions of the permit. However, the permittee shall operate, as a minimum, one complete set of each main line unit treatment process whether or not this process is needed to achieve permit effluent compliance. 153 Part III Page 11 of 19 Permit No.: MT0030155 Removed Substances Bypass of Treatment Facilities a. Anticipated bypass. If the permittee knows in advance of the need for a bypass, it shall submit prior notice, if possible at least ten (10) days before the date of the bypass. b. Unanticipated bypass. The permittee shall submit notice of an unanticipated bypass as required under Part II.I of this permit, “Twenty-Four Hour Reporting”. a. Bypass is prohibited, and the Department may take enforcement action against a permittee for a bypass, unless: (1) The bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; (2) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and (3) The permittee submitted notices as required under Part III.G.2 of this permit. b. The Department may approve an anticipated bypass, after considering its adverse effects, if the Department determines that it will meet the three conditions listed above in Part III.G.3.a of this permit. Upset Conditions 1. Effect of an upset. An upset constitutes an affirmative defense to an action brought for noncompliance with technology based permit effluent limitations if the requirements of 154 Part III Page 12 of 19 Permit No.: MT0030155 Part III.H.2 of this permit are met. No determination made during administrative review of claims that noncompliance was caused by upset, and before an action for noncompliance, is final administrative action subject to judicial review (i.e. Permittees will have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for noncompliance with technology-based permit effluent limitations). 2. Conditions necessary for a demonstration of upset. A permittee who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that: a. An upset occurred, and that the permittee can identify the cause(s) of the upset; The permitted facility was at the time being properly operated; c. The permittee submitted notice of the upset as required under Part II.I of this permit, “Twenty-Four Hour Notice of Noncompliance Reporting”; and d. The permittee complied with any remedial measures required under Part III.D of this permit, "Duty to Mitigate”. 3. Burden of proof. In any enforcement proceeding, the permittee seeking to establish the occurrence of an upset has the burden of proof. 155 Part IV Page 13 of 19 Permit No.: MT0030155 GENERAL REQUIREMENTS Planned Changes The permittee shall give notice to the Department as soon as possible of any planned physical alterations or additions to the permitted facility. Notice is required only when: 1. The alteration or addition could significantly change the nature or increase the quantity of pollutant discharged. This notification applies to pollutants which are not subject to effluent limitations in the permit. 2. There are any planned substantial changes to the existing sewage sludge management practices of storage and disposal. The permittee shall give the Department notice of any planned changes at least 180 days prior to their implementation. Anticipated Noncompliance The permittee shall give advance notice to the Department of any planned changes in the permitted facility or activity which may result in noncompliance with permit requirements. Permit Actions This permit may be modified, revoked and reissued, or terminated for cause. The filing of a request by the permittee for a permit modification, revocation and reissuance, or termination, or a notification of planned changes or anticipated noncompliance, does not stay any permit condition. Duty to Reapply If the permittee wishes to continue an activity regulated by this permit after the expiration date of this permit, the permittee must apply for and obtain a new permit. The application must be submitted at least 180 days before the expiration date of this permit. Duty to Provide Information The permittee shall furnish to the Department, within a reasonable time, any information which the Department may request to determine whether cause exists for modifying, revoking and reissuing, or terminating this permit, or to determine compliance with this permit. The permittee shall also furnish to the Department, upon request, copies of records required to be kept by this permit. Other Information When the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or any report to the Department, it shall promptly submit such facts or information with a narrative explanation of the circumstances of the omission or incorrect submittal and why they weren’t supplied earlier. 156 Part IV Page 14 of 19 Permit No.: MT0030155 Signatory Requirements All applications, reports or information submitted to the Department or the EPA shall be signed and certified. 1. All permit applications shall be signed by either a principal executive officer or ranking elected official. 2. All reports required by the permit and other information requested by the Department shall be signed by a person described above or by a duly authorized representative of that person. A person is considered a duly authorized representative only if: a. The authorization is made in writing by a person described above and submitted to the Department; and b. The authorization specified either an individual or a position having responsibility for the overall operation of the regulated facility or activity, such as the position of plant manager, operator of a well or a well field, superintendent, position of equivalent responsibility, or an individual or position having overall responsibility for environmental matters for the company. (A duly authorized representative may thus be either a named individual or an individual occupying a named position.) 3. Changes to authorization. If an authorization under Part IV.G.2 of this permit is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of Part IV.G.2 of this permit must be submitted to the Department prior to or together with any reports, information, or applications to be signed by an authorized representative. 4. Certification. Any person signing a document under this section shall make the following certification: “I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.” Penalties for Falsification of Reports The Montana Water Quality Act provides that any person who knowingly makes any false statement, representation, or certification in any record or other document submitted or required to be maintained under this permit, including monitoring reports or reports of 157 Part IV Page 15 of 19 Permit No.: MT0030155 compliance or noncompliance shall, upon conviction be punished by a fine of not more than $25,000 per violation, or by imprisonment for not more than six months per violation, or by both. Availability of Reports Except for data determined to be confidential under 40 CFR Part 2, all reports prepared in accordance with the terms of this permit shall be available for public inspection at the offices of the Department. As required by the Clean Water Act, permit applications, permits and effluent data shall not be considered confidential. Oil and Hazardous Substance Liability Nothing in this permit shall be construed to preclude the institution of any legal action or relieve the permittee from any responsibilities, liabilities, or penalties to which the permittee is or may be subject under Section 311 of the Clean Water Act. Property Rights The issuance of this permit does not convey any property rights of any sort, or any exclusive privilege. Severability The provisions of this permit are severable, and if any provision of this permit, or the application of any provision of this permit to any circumstance, is held invalid, the application of such provision to other circumstances, and the remainder of this permit, shall not be affected thereby. Transfers This permit may be automatically transferred to a new permittee if: 1. The current permittee notifies the Department at least 30 days in advance of the proposed transfer date; 2. The notice includes a written agreement between the existing and new permittees containing a specific date for transfer of permit responsibility, coverage, and liability between them; 3. The Department does not notify the existing permittee and the proposed new permittee of an intent to revoke or modify and reissue the permit. If this notice is not received, the transfer is effective on the date specified in the agreement mentioned in Part IV.M.2 of this permit; and 4. Required annual and application fees have been paid. 158 Part IV Page 16 of 19 Permit No.: MT0030155 Fees The permittee is required to submit payment of an annual fee as set forth in ARM 17.30.201. If the permittee fails to pay the annual fee within 90 days after the due date for the payment, the Department may: Reopener Provisions This permit may be reopened and modified (following proper administrative procedures) to include the appropriate effluent limitations (and compliance schedule, if necessary), or other appropriate requirements if one or more of the following events occurs: 159 Part V Page 17 of 19 Permit No.: MT0030155 DEFINITIONS 1. “Act” means the Montana Water Quality Act, Title 75, chapter 5, MCA. 2. “Administrator” means the administrator of the United States Environmental Protection Agency. 3. “Acute Toxicity” occurs when 50 percent or more mortality is observed for either species (See Part I.C of this permit) at any effluent concentration. Mortality in the control must simultaneously be 10 percent or less for the effluent results to be considered valid. 4. "Annual Average Load" means the arithmetic mean of all 30-day or monthly average loads reported during the calendar year for a monitored parameter. 5. “Arithmetic Mean” or “Arithmetic Average” for any set of related values means the summation of the individual values divided by the number of individual values. 6. “Average Monthly Limitation” (AML) means the highest allowable average of daily discharges over a calendar month, calculated as the sum of all daily discharges measured during a calendar month divided by the number of daily discharges measured during that month. 7. “Average Weekly Limitation” (AWL) means the highest allowable average of daily discharges over a calendar week, calculated as the sum of all daily discharges measured during a calendar week divided by the number of daily discharges measured during that week. 8. "BOD5" means the five-day measure of pollutant parameter biochemical oxygen demand. 9. "Bypass" means the intentional diversion of waste streams from any portion of a treatment facility. 10. “CBOD5” means the five-day measure of pollutant parameter carbonaceous biochemical oxygen demand. 11. “Composite samples” means a sample composed of four or more discrete aliquots (samples). The aggregate sample will reflect the average quality of the water or wastewater in the compositing or sample period. Composite sample may be composed of constant volume aliquots collected at regular intervals (simple composite) or flow proportioned. 12. “Daily Discharge” means the discharge of a pollutant measured during a calendar day or any 24-hour period that reasonable represents the calendar day for purposes of sampling. For pollutants with limitations expressed in units of mass, the daily discharge is calculated as the total mass of the pollutant discharged over the day. For pollutants with limitations expressed in other units of measurement, the daily discharge is calculated as the average measurement of the pollutant over the day. 13. "Daily Maximum Limit"(MDL) means the maximum allowable discharge of a pollutant during a calendar day. Expressed as units of mass, the daily discharge is cumulative mass discharged over the course of the day. Expressed as a concentration, it is the arithmetic average of all measurements taken that day. 14. "Department" means the Montana Department of Environmental Quality (DEQ). Established by 2-15-3501, MCA. 160 Part V Page 18 of 19 Permit No.: MT0030155 15. "Director" means the Director of the Montana Department of Environmental Quality. 16. “Discharge” means the injection, deposit, dumping, spilling, leaking, placing, or failing to remove any pollutant so that it or any constituent thereof may enter into state waters, including ground water. 17. "EPA" means the United States Environmental Protection Agency. 18. “Federal Clean Water Act” means the federal legislation at 33 USC 1251, et seq. 19. “Geometric Mean” means the value obtained by taking the Nth root of the product of the measured values. 20. "Grab Sample” means a sample which is taken from a waste stream on a one-time basis without consideration of flow rate of the effluent or without consideration for time. 21. “Indirect discharge” means the introduction of pollutants into a POTW from any non- domestic source regulated under Section 307(b), (c) or (d) of the Federal Clean Water Act. 22. “Industrial User” means a source of Indirect Discharge. 23. “Instantaneous Maximum Limit” means the maximum allowable concentration of a pollutant determined from the analysis of any discrete or composite sample collected, independent of the flow rate and the duration of the sampling event. 24. "Instantaneous Measurement” for monitoring requirements, means a single reading, observation, or measurement. 25. "Interference" means a discharge which, alone or in conjunction with other contributing discharges Inhibits or disrupts the POTW, its treatment processes or operations, or its sludge processes, use or disposal; and Therefore causes a violation of any requirement of the POTW's MPDES permit (including an increase in the magnitude or duration of a violation) or causes the prevention of sewage sludge use or disposal in compliance with the following statutes and regulations: Section 405 of the Clean Water Act; 40 CFR Part 503 - Standards for the Use and Disposal of Sewage Sludge; Resource Conservation and Recovery Act (RCRA); 40 CFR Part 258 - Criteria for Municipal Solid Waste Landfills; and/or any State regulations regarding the disposal of sewage sludge. 26. “Maximum daily discharge limitation” means the highest allowable daily discharge. 27. “Minimum Level” (ML) of quantitation means the lowest level at which the entire analytical system gives a recognizable signal and acceptable calibration point for the analyte, as determined by the procedure set forth at 40 CFR 136. In most cases the ML is equivalent to the Required Reporting Value (RRV) unless otherwise specified in the permit. (ARM 17.30.702(21)) 28. "Mixing zone" means a limited area of a surface water body or aquifer where initial dilution of a discharge takes place and where certain water quality standards may be exceeded. 29. "Nondegradation" means the prevention of a significant change in water quality that lowers the quality of high-quality water for one or more parameters. Also, the prohibition of any 161 Part V Page 19 of 19 Permit No.: MT0030155 increase in discharge that exceeds the limits established under or determined from a permit or approval issued by the Department prior to April 29, 1993. 30. "Pass through" means a discharge which exits the POTW into waters of the State of Montana in quantities or concentrations which, alone or in conjunction with other discharges, is a cause of a violation of any requirement of the POTW's MPDES permit (including an increase in the magnitude or duration of a violation). 31. "POTW" means a publicly owned treatment works. 32. “Regional Administrator” means the administrator of Region VIII of EPA, which has jurisdiction over federal water pollution control activities in the state of Montana. 33. "Severe property damage" means substantial physical damage to property, damage to the treatment facilities which causes them to become inoperable, or substantial and permanent loss of natural resources which can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production. 34. "Sewage Sludge" means any solid, semi-solid or liquid residue generated during the treatment of domestic sewage and/or a combination of domestic sewage and industrial waste of a liquid nature in a treatment works. Sewage sludge includes, but is not limited to, domestic septage; scum or solids removed in primary, secondary, or advanced wastewater treatment processes; and a material derived from sewage sludge. Sewage sludge does not include ash generated during the incineration of sewage sludge or grit and screenings generated during preliminary treatment of domestic sewage in a treatment works. 35. “TIE” means a toxicity identification evaluation. 36. "TMDL" means the total maximum daily load limitation of a parameter, representing the estimated assimilative capacity for a water body before other designated uses are adversely affected. Mathematically, it is the sum of wasteload allocations for point sources, load allocations for non-point and natural background sources, and a margin of safety. 37. “TRE” means a toxicity reduction evaluation. 38. "TSS" means the pollutant parameter total suspended solids. 39. "Upset" means an exceptional incident in which there is unintentional and temporary noncompliance with technology-based permit effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation. 162 This page intentionally left blank. 163 164 This page intentionally left blank. 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 Contractor Orientation Checklist Name of Project Manager: Work Site(s) And Location(s): Applicable Date(s): Contractor: Contractor’s Representative: Water Treatment Plant Representative: City of Bozeman: Date Representative’s Signature/ Comments Check Safety Performance of Contractor. Provide Safety and Hazard Information Ensure Safety Practices (entry and exit of contractors in process areas) Verify Contractor acts responsibly. Verify Contractor’s documentation of employee training. Contractor: Training of Employees in accordance with safety procedures Employees know hazards & applicable emergency actions of WTP Inform WTP staff of hazards it finds during its work. Work to be completed: ____________________________________________________________________________________________________________________________________________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ Document provided by Contractor Date Received By: Document provided by WTP Date Received By: 180 This page intentionally left blank. 181 Contractor Safety Policy for Chemicals Water Treatment Plant will: A plant representative, the Superintendent or Assistant Superintendent, will meet with the contractor and their employees to explain the hazards that are associated with working on and near the chemical process before any work begins. This will include: -Review contractor’s safety performance and programs. -Explain the MSDS with particular attention paid to the exposure limits, required PPEs, first aid, and chemical characteristics of the specific chemical. -Explain how the system works, the amount of chemical on site, what can happen if the chemical is released by a puncture, rupture, or process is otherwise compromised. -What to do in an emergency. Including emergency exit routes, showers, eyewash stations, and ventilation systems, and where to find plant personnel. -Inform contractor of the proper PPE they need to perform the work. Contractor will provide these PPEs. Extra PPEs will be made available to contractor’s employees. -Plant personnel and the contractor will both go over the Contractor Orientation checklist before any work can begin. -Plant personnel will be available to answer any questions from the contractor and employees. -Keep an employee injury and illness log. -At least one (1) designated plant personnel will monitor contractor’s work when working on or near the chemical process equipment and activities. Designee will monitor the hazardous process areas to aid contractor and help ensure their safety. If necessary, Seepex pump piping can be drained or flushed with finished water. This should only be done if work has to be done on the feed lines. ONLY to be done by plant personnel following proper procedures. The Contractor will: -Ensure contract employees are trained in safe work practices. -Instruct contract employees on the potential hazards of working on and around the chlorine process. 182 -Provide contract employees with the appropriate PPE. -Instruct contract employees about emergency actions. -Document contract employee training through JHAs or safety tailgate sessions and provide the WTP designee with the documentation of this training. -Enforce safety rules throughout the duration of the work. -Require subcontractors to follow same rules as the contractor. -Abide by all facility rules such as no smoking, no firearms, etc. Information Exchange In order to facilitate clear, effective, and timely communication the WTP and contractor will both designate a representative through which all communications and documents will travel. The representatives will also jointly perform all walk throughs before work starts, during the work, and after the work is completed. Water Treatment Plant will: -Designate a representative as the contact for all contractor communications. This person will be familiar with all aspects of the work to be done by the contractor. The designee will communicate the safety and health hazards associated with the process to the contractor. -Will work directly with contractor’s representative and all contacts will go through this person. -Perform pre-start walk throughs and ensure the process area is clean and good housekeeping practices have been performed. -Maintain record of all documents received from the contractor and given to the contractor. -Ensure the Contractor Orientation Checklist is filled out completely and in a timely manner. Contractor will: -Designate a representative to coordinate safety and health issues and communicate them to the WTP representative. -Provide documentation of safety training and any other necessary documents to the WTP representative. 183 -Receive and maintain all documents provided by the WTP representative. - Ensure the Contractor Orientation Checklist is filled out completely and in a timely manner. - Perform pre-start walk throughs and ensure the process area is clean and good housekeeping practices have been performed. -Inform WTP representative of any hazards that arise during the course of contractor’s work. -Keep WTP representative informed of work through contractor representative. -Know who to call and what to do in the case of an emergency. For Large Projects: When projects are contracted out to an engineering firm, the consulting engineering firm is responsible for the Contractor Safety aspects. The consulting engineer will develop their own safety specifications and protocols for the contractor. The contractor is observed and communicates with the consulting engineer that is onsite when work is being done. The Water Treatment Personnel have very little to do with this aspect of the work. 184 This page intentionally left blank. 185 City of Bozeman Water Treatment Plant Confined Space Program Provided as a requirement by OSHA’s Confined Space Standard, 29 CFR1910.146 City of Bozeman Revised 03/08/2022 186 2 187 3 1910.146 Confined Space Program By definition, a confined space:  Is large enough for an employee to enter fully and perform assigned work;  Is not designed for continuous occupancy by the employee; and  Has a limited or restricted means of entry or exit.  These spaces may include underground vaults, tanks, storage bins, pits and diked areas, vessels, silos and other similar areas. By definition, a permit-required confined space has one or more of these characteristics:  Contains or has the potential to contain a hazardous atmosphere;  Contains a material with the potential to engulf someone who enters the space;  Has an internal configuration that might cause an entrant to be trapped or asphyxiated by inwardly converging walls or by a floor that slopes downward and tapers to a smaller cross section; and/or  Contains any other recognized serious safety or health hazards. OSHA’s standard for confined spaces (29 CFR 1910.146) contains the requirements for practices and procedures to protect employees in general industry from the hazards of entering permit spaces. Employers in general industry must evaluate their workplaces to determine if spaces are permit spaces. If a workplace contains permit spaces, the employer must inform exposed employees of their existence, location and the hazards they pose. This can be done by posting danger signs such as “DANGER—PERMIT-REQUIRED CONFINED SPACE— AUTHORIZED ENTRANTS ONLY” or using an equally effective means. If employees are not to enter and work in permit spaces, employers must take effective measures to prevent them from entering these spaces. If employees are expected to enter permit spaces, the employer must develop a written permit space program and make it available to employees or their representatives. 188 4 1910.146 Confined Space Program Table of Contents I. Objective II. Background III. Assignment of Responsibility A. Employer B. Program Manager C. Entry Supervisors D. Attendants E. Rescue Team F. Entrants/Affected Employees IV. Training A. Training Frequency B. General Training C. Specific Training D. Verification of Training V. Identification of Hazards and Evaluation of Confined Spaces A. Survey B. Hazard Reevaluation C. Pre-Entry Hazard Assessment D. Hazard Controls VI. Entry Permits A. Key Elements of Entry Permits B. Permit Scope and Duration VII. Entry Procedures A. Prior to Entry B. Opening a Confined Space C. Atmospheric Testing D. Isolation and Lockout/Tagout Safeguards E. Ingress/Egress Safeguards F. Warning Signs and Symbols VIII. Emergency Response A. Emergency Response Plan B. Retrieval Systems and Methods of Non-Entry Rescue IX. Contractor Policy X. Entry Permit XI. List of Confined Spaces in the Water Treatment Plant 189 5 Confined Space Program For City of Bozeman Water Treatment Plant I. OBJECTIVE The purpose of City of Bozeman Water Treatment Plant’s Confined Space Program is to set procedures that will ensure workers safe entry into confined spaces and permit-required confined spaces to perform routine tasks associated with their employment. This procedure is designed to provide the minimum safety requirements in accordance with the Occupational Safety and Health Administration’s (OSHA) Confined Space Standard, 1910.146. II. BACKGROUND A confined space is defined as any location that has limited openings for entry and egress, is not intended for continuous employee occupancy, and is so enclosed that natural ventilation may not reduce air contaminants to levels below the threshold limit value (TLV). Examples of confined spaces include: manholes, stacks, pipes, storage tanks, trailers, tank cars, pits, sumps, hoppers, and bins. Entry into confined spaces without proper precautions could result in injury, impairment, or death due to: A. an atmosphere that is flammable or explosive; B. lack of sufficient oxygen to support life; C. contact with or inhalation of toxic materials; or D. general safety or work area hazards such as steam or high pressure materials. III. ASSIGNMENT OF RESPONSIBILITY A. Employer In administering this Confined Space Program, City of Bozeman Water Treatment Plant will: 1. Monitor the effectiveness of the program. 2. Provide atmospheric testing and equipment as needed. 3. Provide personal protective equipment as needed. 4. Provide training to affected employees and supervisors. 5. Provide technical assistance as needed. 6. Preview and update the program on at least an annual basis or as needed. B. Program Manager Superintendent is responsible for managing the Confined Space Program, and shall: 1. Ensure that a list of confined spaces at all City of Bozeman Water Treatment Plant worksites is maintained. 2. Ensure that canceled permits are reviewed for lessons learned. 190 6 3. Ensure training of personnel is conducted and documented. 4. Coordinate with outside responders. 5. Ensure that equipment is in compliance with standards. 6. Ensure that the Superintendent or designee in charge of confined space work shall: a. Ensure requirements for entry have been completed before entry is authorized. b. Ensure confined space monitoring is performed by personnel qualified and trained in confined space entry procedures. c. Ensure a list of monitoring equipment and personnel qualified to operate the equipment is maintained. d. Ensure that the rescue team has simulated a rescue in a confined space within the past twelve (12) months. e. Know the hazards that may be faced during entry, including the mode (how the contaminant gets into the body), signs or symptoms, and consequences of exposure. f. Fill out a permit. g. Determine the entry requirements. h. Require a permit review and signature from the authorized Entry Supervisor. i. Notify all involved employees of the permit requirements. j. Post the permit in a conspicuous location near the job. k. Renew the permit or have it reissued as needed (a new permit is required every shift). l. Determine the number of Attendants required to perform the work. m. Ensure all Attendant(s) know how to communicate with the entrants and how to obtain assistance. n. Post any required barriers and signs. o. Remain alert to changing conditions that might affect the conditions of the permits (i.e., require additional atmospheric monitoring or changes in personal protective equipment). p. Change and reissue the permit, or issue a new permit as necessary. q. Ensure periodic atmospheric monitoring is done according to permit requirements. r. Ensure that personnel doing the work and all support personnel adhere to permit requirements. s. Ensure the permit is canceled with the work is done. t. Ensure the confined space is safely closed and all workers are cleared from the area. C. Entry Supervisors Superintendent or designee shall serve as the Entry Supervisor(s), and shall be qualified and authorized to approve confined space entry permits. The Entry Supervisor(s) shall be responsible for: 191 7 1. Determining if conditions are acceptable for entry. 2. Authorizing entry and overseeing entry operations. 3. Terminating entry procedures as required. 4. Serving as an Attendant, as long as the person is trained and equipped appropriately for that role. 5. Ensuring measures are in place to keep unauthorized personnel clear of the area. 6. Checking the work at least twice a shift to verify and document permit requirements are being observed (more frequent checks shall be made if operations or conditions are anticipated that could affect permit requirements). 7. Ensuring that necessary information on chemical hazards is kept at the worksite for the employees or rescue team. 8. Ensuring a rescue team is available and instructed in their rescue duties (i.e., an onsite team or a prearranged outside rescue service). 9. Ensuring the rescue team members have current certification in first aid and cardiopulmonary resuscitation (CPR). D. Attendants Superintendent or designee shall function as an Attendant(s) and shall be stationed outside of the confined workspace. The Attendant(s) shall: 1. Not enter the Confined Space at any time. 2. Be knowledgeable of, and be able to recognize potential confined space hazards. 3. Maintain a sign-in/sign-out log with a count of all persons in the confined space, and ensure all entrants sign in and out. 4. Monitor surrounding activities to ensure the safety of personnel. 5. Maintain effective and continuous communication with personnel during confined space entry, work, and exit. 6. Order personnel to evacuate the confined space if he/she: a. observes a condition which is not allowed on the entry permit; b. notices the entrants acting strangely, possibly as a result of exposure to hazardous substances; c. notices a situation outside the confined space which could endanger personnel; d. notices a hazard within the confined space that has not been previously recognized or taken into consideration; e. must leave his/her work station; or f. must focus attention on the rescue of personnel in some other confined space that he/she is monitoring. 7. Immediately summon the Rescue Team if crew rescue becomes necessary. 192 8 8. Keep unauthorized persons out of the confined space, order them out, or notify authorized personnel of an unauthorized entry. E. Rescue Team (Bozeman Fire Department) Primary Rescue Team is the Bozeman Fire Department and they are responsible for their own training. F. Entrants/Affected Employees Employees who are granted permission to enter a confined space shall: 1. Remain attached to the Life Line unless it is unsafe to do so. 2. Read and observe the entry permit requirements. 3. Remain alert to the hazards that could be encountered while in the confined space. 4. Properly use the personal protective equipment that is required by the permit. 5. Immediately exit the confined space when: a. they are ordered to do so by an authorized person; b. they notice or recognize signs or symptoms of exposure; c. a prohibited condition exists. 6. Alert Attendant(s) when a prohibited condition exists and/or when warning signs or symptoms of exposure exist. IV. TRAINING City of Bozeman Water Treatment Plant shall provide training so that all employees whose work is regulated by this Confined Space Program acquire the understanding, knowledge, and skills necessary for the safe performance of their duties in confined spaces. A. Training Frequency Responsible Person shall provide training to each affected employee: 1. before the employee is first assigned duties within a confined space; 2. before there is a change in assigned duties; 3. when there is a change in permit space operations that presents a hazard for which an employee has not been trained; and 4. when City of Bozeman Water Treatment Plant has reason to believe that there are deviations from the confined space entry procedures required in this program, or that there are inadequacies in the employee’s knowledge or use of these procedures. 193 9 The training shall establish employee proficiency in the duties required in this program, and shall introduce new or revised procedures, as necessary, for compliance with this program. B. General Training All employees who will enter confined spaces shall be trained in entry procedures. Personnel responsible for supervising, planning, entering, or participating in confined space entry and rescue shall be adequately trained in their functional duties prior to any confined space entry. Training shall include: 1. Explanation of the general hazards associated with confined spaces. 2. Discussion of specific confined space hazards associated with the facility, location, or operation. 3. Reason for, proper use, and limitations of personal protective equipment and other safety equipment required for entry into confined spaces. 4. Explanation of permits and other procedural requirements for conducting a confined space entry. 5. A clear understanding of what conditions would prohibit entry. 6. Procedures for responding to emergencies. 7. Duties and responsibilities of the confined space entry team. 8. Description of how to recognize symptoms of overexposure to probable air contaminants in themselves and co-workers, and method(s) for alerting the Attendant(s). Refresher training shall be conducted as needed to maintain employee competence in entry procedures and precautions. C. Specific Training 1. Training for atmospheric monitoring personnel shall include proper use of monitoring instruments, including instruction on the following: a. proper use of the equipment; b. calibration of equipment; c. sampling strategies and techniques; and d. exposure limits (PELs, TLVs, LELs, UELs, etc.). 2. Training for Attendants shall include the following: a. procedures for summoning rescue or other emergency services; and b. proper utilization of equipment used for communicating with entry and emergency/rescue personnel. 3. Training for Emergency Response Personnel will be the responsibility of their agency (Bozeman Fire Department). 194 10 D. Verification of Training Periodic assessment of the effectiveness of employee training shall be conducted by Superintendent or designee. Training sessions shall be repeated as often as necessary to maintain an acceptable level of personnel competence. V. IDENTIFICATION OF HAZARDS AND EVALUATION OF CONFINED SPACES A. Survey Superintendent or designee shall ensure a survey of the worksite is conducted to identify confined spaces. This survey can be partially completed from initial and continuing site characterizations, as well as other available data (i.e., blueprints and job safety analyses). The purpose of the survey is to develop an inventory of those locations and/or equipment at City of Bozeman Water Treatment Plant that meet the definition of a confined space. This information shall be communicated to personnel, and appropriate confined space procedures shall be followed prior to entry. The initial surveys shall include air monitoring to determine the air quality in the confined spaces. The potential for the following situations shall be evaluated by Superintendent or designee: 1. flammable or explosive potential; 2. oxygen deficiency; and 3. presence of toxic and corrosive material. B. Hazard Reevaluation The Superintendent or designee shall identify and reevaluate hazards based on possible changes in activities or other physical or environmental conditions that could adversely affect work. A master inventory of confined spaces shall be maintained. Any change in designation of a confined space will be routed to all affected personnel by Superintendent or designee. C. Pre-Entry Hazard Assessment A hazard assessment shall be completed by Superintendent or designee prior to any entry into a confined space. The hazard assessment should identify: 1. the sequence of work to be performed in the confined space; 2. the specific hazards known or anticipated; and 3. the control measures to be implemented to eliminate or reduce each of the hazards to an acceptable level. 195 11 No entry shall be permitted until the hazard assessment has been reviewed and discussed by all persons engaged in the activity. Personnel who are to enter confined spaces shall be informed of known or potential hazards associated with said confined spaces. D. Hazard Controls Hazard controls shall be instituted to address changes in the work processes and/or working environment. Hazard controls must be able to either control the health hazards by eliminating the responsible agents, reduce health hazards below harmful levels, or prevent the contaminants from coming into contact with the workers. The following order of precedence shall be followed in reducing confined space risks. 1. Engineering Controls Engineering controls are those controls that eliminate or reduce the hazard through implementation of sound engineering practices. Ventilation is one of the most common engineering controls used in confined spaces. When ventilation is used to remove atmospheric contaminants from a confined space, the space shall be ventilated until the atmosphere is within the acceptable ranges. Ventilation shall be maintained during the occupancy if there is a potential for the atmospheric conditions to move out of the acceptable range. When ventilation is not possible or feasible, alternate protective measures or methods to remove air contaminants and protect occupants shall be determined by Superintendent or his designee prior to authorizing entry. When conditions necessitate and can accommodate continuous forced air ventilation, the following precautions shall be followed: a. Employees shall not enter the space until the forced air ventilation has eliminated any hazardous atmosphere. b. Forced air ventilation shall be directed so as to ventilate the immediate areas where an employee is or will be present within the space. c. Continuous ventilation shall be maintained until all employees have left the space. d. Air supply or forced air ventilation shall originate from a clean source. 2. Work Practice (Administrative) Controls Work practice (administrative) controls are those controls which eliminate or reduce the hazard through changes in the work practices (i.e., rotating workers, reducing the amount of worker exposure, and housekeeping). 3. Personal Protective Equipment (PPE) 196 12 If the hazard cannot be eliminated or reduced to a safe level through engineering and/or work practice controls, PPE should be used. Superintendent or designee shall determine the appropriate PPE needed by all personnel entering the confined space, including rescue teams. PPE that meets the specifications of applicable standards shall be selected in accordance with the requirements of the job to be performed. VI. ENTRY PERMITS The Confined Space Entry Permit is the most essential tool for assuring safety during entry in confined spaces with known hazards, or with unknown or potentially hazardous atmospheres. The entry permit process guides the supervisor and workers through a systematic evaluation of the space to be entered. The permit should be used to establish appropriate conditions. Before each entry into a confined space, an entry permit will be completed by Superintendent or designee. The Superintendent or designee will then communicate the contents of the permit to all employees involved in the operation, and post the permit conspicuously near the work location. A standard entry permit shall be used for all entries. A. Key Elements of Entry Permits A standard entry permit shall contain the following items: 1. Space to be entered. 2. Purpose of entry. 3. Date and authorized duration of the entry permit. 4. Name of authorized entrants within the permit space. 5. Means of identifying authorized entrants inside the permit space (i.e., rosters or tracking systems). 6. Name(s) of personnel serving as Attendant(s) for the permit duration. 7. Name of individual serving as Entry Supervisor, with a space for the signature or initials of the Entry Supervisor who originally authorized the entry. 8. Hazards of the permit space to be entered. 9. Measures used to isolate the permit space and to eliminate or control permit space hazards before entry (i.e., lockout/tagout of equipment and procedures for purging, ventilating, and flushing permit spaces). 10. Acceptable entry conditions. 11. Results of initial (pre-entry) and periodic tests performed, accompanied by the names or initials of the testers and the date(s) when the tests were performed. 12. Rescue and emergency services that can be summoned, and the means of contacting those services (i.e., equipment to use, phone numbers to call). 13. Communication procedures used by authorized entrants and Attendant(s) to maintain contact during the entry. 14. Equipment to be provided for compliance with this Confined Space Program (i.e., PPE, testing, communications, alarm systems, and rescue). 197 13 15. Other information necessary for the circumstances of the particular confined space that will help ensure employee safety. 16. Additional permits, such as for hot work, that have been issued to authorize work on the permit space. B. Permit Scope and Duration A permit is only valid for one shift. For a permit to be renewed, the following conditions shall be met before each reentry into the confined space: 1. Atmospheric testing shall be conducted and the results should be within acceptable limits. If atmospheric test results are not within acceptable limits, precautions to protect entrants against the hazards should be addressed on the permit and should be in place. 2. Superintendent or his designee shall verify that all precautions and other measures called for on the permit are still in effect. 3. Only operations or work originally approved on the permit shall be conducted in the confined space. A new permit shall be issued, or the original permit will be reissued if possible, whenever changing work conditions or work activities introduce new hazards into the confined space. Superintendent or designee shall retain each canceled entry permit for at least one (1) year to facilitate the review of the Confined Space Entry Program. Any problems encountered during an entry operation shall be noted on the respective permit(s) so that appropriate revisions to the confined space permit program can be made. VII. ENTRY PROCEDURES When entry into a confined space is necessary, either the Entry Supervisor or Superintendent or designee may initiate entry procedures, including the completion of a confined space entry permit. Entry into a confined space shall follow the standard entry procedure below. A. Prior to Entry The entire confined space entry permit shall be completed before a standard entry. Entry shall be allowed only when all requirements of the permit are met and it is reviewed and signed by an Entry Supervisor. The following conditions must be met prior to standard entry: 1. Affected personnel shall be trained to establish proficiency in the duties that will be performed within the confined space. 2. The internal atmosphere within the confined space shall be tested by Superintendent or designee with a calibrated, direct-reading instrument. 3. Personnel shall be provided with necessary PPE as determined by the Entry Supervisor. 198 14 4. Atmospheric monitoring shall take place during the entry. If a hazardous atmosphere is detected during entry: a. personnel within the confined space shall be evacuated by the Attendant(s) or Entry Supervisor until the space can be evaluated by Superintendent or designee to determine how the hazardous atmosphere developed; and b. controls shall be put in place to protect employees before reentry. B. Opening a Confined Space Any conditions making it unsafe to remove an entrance cover shall be eliminated before the cover is removed. When entrance covers are removed, the opening shall be promptly guarded by a railing installed where appropriate, temporary cover, or other temporary barrier that will prevent anyone from falling through the opening. This barrier or cover shall protect each employee working in the space from foreign objects entering the space. If it is in a traffic area, adequate barriers shall be erected. C. Atmospheric Testing Atmospheric test data is required prior to entry into a confined space. Atmospheric testing is required for two distinct purposes: (1) evaluation of the hazards of the permit space, and (2) verification that acceptable conditions exist for entry into that space. If a person must go into the space to obtain the needed data, then Standard Confined Space Entry Procedures shall be followed. Before entry into a confined space, Superintendent or designee shall conduct testing for hazardous atmospheres. The internal atmosphere shall be tested with a calibrated, direct-reading instrument for oxygen, flammable gases and vapors, and potential toxic air contaminants, in that order. Testing equipment used in specialty areas shall be listed or approved for use in such areas by Superintendent or designee. All testing equipment shall be approved by a nationally recognized laboratory, such as Underwriters Laboratories or Factory Mutual Systems. 1. Evaluation Testing The atmosphere of a confined space should be analyzed using equipment of sufficient sensitivity and specificity. The analysis shall identify and evaluate any hazardous atmospheres that may exist or arise, so that appropriate permit entry procedures can be developed and acceptable entry conditions stipulated for that space. Evaluation and interpretation of these data and development of the entry procedure should involve a technically qualified professional (i.e., consultant, certified industrial hygienist, registered safety engineer, or certified safety professional). 2. Verification Testing 199 15 A confined space that may contain a hazardous atmosphere shall be tested for residues of all identified or suspected contaminants. The evaluation testing should be conducted with specified equipment to determine that residual concentrations at the time or testing and entry are within acceptable limits. Results of testing shall be recorded by the person performing the tests on the permit. The atmosphere shall be periodically retested (frequency to be determined by Superintendent or designee) to verify that atmospheric conditions remain within acceptable entry parameters. 3. Acceptable Limits The atmosphere of the confined spaces shall be considered to be within acceptable limits when the following conditions are maintained: a. oxygen: 19.5 percent to 23.5 percent; b. flammability: less than 10 percent of the Lower Flammable Limit (LFL); and c. toxicity: less than recognized American Conference of Governmental Industrial Hygienists (ACGIH) exposure limits or other published exposure levels [i.e., OSHA Permissible Exposure Limits (PELs) or National Institute of Occupational Safety and Health (NIOSH) Recommended Exposure Limits (RELs)]. D. Isolation and Lockout/Tagout Safeguards All energy sources that are potentially hazardous to confined space entrants shall be secured, relieved, disconnected, and/or restrained before personnel are permitted to enter the confined space. Equipment systems or processes shall be locked out and/or tagged out as required by the City of Bozeman Water Treatment Plant’s Lockout/Tagout Program [which complies with OSHA’s 29 CFR 1910-147 and American National Standards Institute (ANSI) Z244.1-1982, Lockout/Tagout of Energy Sources] prior to permitting entry into the confined space. In confined spaces where complete isolation is not possible, Superintendent or designee shall evaluate the situation and make provisions for as rigorous isolation as practical. Special precautions shall be taken when entering double-walled, jacketed, or internally insulated confined spaces that may discharge hazardous material through the vessel’s internal wall. Where there is a need to test, position, or activate equipment by temporarily removing the lock or tag or both, a procedure shall be developed and implemented to control hazards to the occupants. Any removal of locks, tags, or other protective measures shall be done in accordance with the City of Bozeman Water Treatment Plant’s Lockout/Tagout Program. E. Ingress/Egress Safeguards 200 16 Means for safe entry and exit shall be provided for confined spaces. Each entry and exit points shall be evaluated by Superintendent or designee to determine the most effective methods and equipment that will enable employees to safely enter and exit the confined space. All entrants will be required to wear a harness and lifeline when ascending or descending the ladders. The lifeline may be attached to the ladder once the entrant is at the bottom of the ladder. Appropriate retrieval equipment or methods shall be used whenever a person enters a confined space. Use of retrieval equipment may be waived by the Superintendent or designee if use of the equipment increases the overall risks of entry or does not contribute to the rescue. The requirement of retrieval equipment for climbing ladders in the confined space will not be waived. A mechanical device shall be available to retrieve personnel from vertical confined spaces greater than five (5) feet in depth. F. Warning Signs and Symbols All confined spaces that could be inadvertently entered shall have signs identifying them as confined spaces. Signs shall be maintained in a legible condition. The signs shall contain a warning that a permit is required before entry. Accesses to all confined spaces shall be prominently marked. VIII. EMERGENCY RESPONSE A. Emergency Response Plan Superintendent or designee shall maintain a written plan of action that has provisions for conducting a timely rescue of individuals within a confined space, should an emergency arise. The written plan shall be kept onsite where the confined space work is being conducted. All affected personnel shall be trained on the Emergency Response Plan. B. Retrieval Systems and Methods of Non-Entry Rescue Retrieval systems shall be available and ready when an authorized person enters a permit space, unless such equipment increases the overall risk of entry, or the equipment would not contribute to the rescue of the entrant. Retrieval systems shall have a chest or full- body harness and a retrieval line attached at the center of the back near shoulder level or above the head. If harnesses are not feasible, or would create a greater hazard, wristlets may be used in lieu of the harness. The retrieval line shall be firmly fastened outside the space so that rescue can begin as soon as anyone is aware that retrieval is necessary. A mechanical device shall be available to retrieve personnel from vertical confined spaces more than five (5) feet deep. IX. CONTRACTOR POLICY 201 17 A. Contractors Hired Directly Contractors hired directly by the Water Treatment Plant Superintendent will be subject to our Confined Space Entry Program and Policies. The Contractors will be briefed on the potential dangers, atmospheres, etc of the confined space they will be entering by the Superintendent or one of his designees. Examples of contractors would be electricians, SCADA programmers, and furnace repairmen. B. Contractors Hired Through Consulting Engineers Contractors who are hired as a result of the Water Treatment Plant using a consulting engineer are not subject to the Water Treatment Plant Confined Space Program. These contractors will be subject to the safety plan written into the contract by the consulting engineer. The consulting engineer will be responsible for enforcement and compliance in this situation. 202 18 Water Treatment Plant Permit Required Confined Spaces: 1) Lyman Creek—the two (2) Pressure Reducing Valve (PRV) Vaults. 2) Sourdough Bypass—the old vault and new vault with valves in them by the Sourdough tank. 3) The influent head tower in the South East Corner of Area A. 4) The filtrate tower in the North West corner of Area B. 5) The 8 ft diameter filtrate conduit. 6) The DAF feed wet well 7) All Chemical Containment areas in all the chemical storage rooms and tote room. 8) The chemical spill tank 9) The CIP tanks and all chemical bulk tanks. 10) The screening vault in the Hyalite Intake Building Located on Hyalite Canyon Road. Confined Spaces that DO NOT Require Entry Permits: 1) All the Floc tanks and Sedimentation tanks in Area A. Special Precautions: 1) There will be at least two (2) people present whenever anyone enters a sedimentation basin or floc tank 2) Entrant has to be visible to the attendant at all times and in communication with them. 3) When working in the floc/sed basins, the life ring and Sheppard hook will be within easy reach of the attendant at all times. 203 204 This page intentionally left blank. 205 206 This page intentionally left blank. 207 Sourdough WTP Interim Optimization 00 91 13.1 - 1 Addendum No. 1 Bozeman, Montana 00 91 13 .1 - ADDENDUM NO. 1 March 28, 2025 TO BOZEMAN SOURDOUGH WTP INTERIM OPTIMIZATION CITY OF BOZEMAN, MONTANA ENGINEER’S PROJECT NUMBER: P05097-2024-008 This Addendum No. 1 forms part of the Contract Documents and modifies the original Bidding Documents as noted below. All provisions of the Contract Documents not in conflict with this Addendum shall remain in full force. Acknowledge receipt of this Addendum in the space provided on the Bid Form and on the outside of the Bid Envelope. Failure to do so may subject the Bidder to disqualification. This addendum consists of four (4) pages and eleven (11) attachments. SECTION 00 21 13 – INSTRUCTIONS TO BIDDERS REPLACE the bidder’s checklist on page 12 of the Instructions to Bidders with the Bidder’s Checklist reissued by Addendum 1 (this addendum) and enclosed as an attachment. SECTION 00 73 00 – SUPPLEMENTARY CONDITIONS: ADD the following REPORT of Existing Equipment to Paragraph D of SC-5.03 • SEEPEX Fluoride Transfer Pump Technical Data o (Provided to facilitate identification of weights when sizing new wall supports.) ADD the following Owner Safety Programs to SC-7.12.C: • Water Treatment Plant Contractor Orientation Checklist • Water Treatment Plant Chemical Safety Policy for Contractors • Water Treatment Plant Confined Space Program ADD the following Owner Responsibilities immediately after Paragraph 9.12 SC-9.13 Owner operates under its Montana Pollutant Discharge Elimination System Permit No.: MT0030155. Contractor shall work with Owner to coordinate construction activities so that Contractor’s Activities do not cause process disruptions that result in discharge permit violations. 208 Sourdough WTP Interim Optimization 00 91 13.1 - 2 Addendum No. 1 Bozeman, Montana SECTION 00 73 01 – FORMS OF THE SUPPLEMENTARY CONDITIONS REPLACE the table in Part 1 of Section 00 73 01 – Forms of the Supplementary Conditions with the following table and add the respective PDF documents (attached to this Addendum 1) to Appendix A. 00 73 00 – SUPPLEMENTARY CONDITIONS 00 73 00.05 RECORD DRAWINGS FOR SOURDOUGH WTP 00 73 00.29 MONTANA POLLUTANT DISCHARGE ELIMINATION SYSTEM PERMIT NO. MT0030155 ISSUED IN ADDENDUM 1 00 73 14 Bozeman’s Non-Discrimination & Equal Pay Affirmation City of Bozeman 00 73 44 Montana Prevailing Wage Rate Determination ISSUED IN ADDENDUM 1 00 73 73 Owner’s Contractor Orientation Checklist ISSUED IN ADDENDUM 1 00 73 74 Owner’s Safety Policy for Chemicals ISSUED IN ADDENDUM 1 00 73 75 Owner’s WTP Confined Space Program ISSUED IN ADDENDUM 1 SECTION 40 05 35 – HIGH-DENSITY POLYETHYLENE PROCESS PIPE: ADD: o SECTION 40 05 35 – HIGH- DENSITY POLYETHYLENE PROCESS PIPE  Hereby issued by Addendum 1 (this addendum) and enclosed as an attachment.  This section generally applies to the HDPE process piping modifications in Bid Package B. SECTION 40 05 58 – PROCESS VALVES REPLACE the following Spec Section with the revised copy issued with Addendum 1. • SECTION 40 05 58 – PROCESS VALVES  Revised Spec Section included specifications for Air Release Valves. RECORD DRAWINGS: The RECORD DRAWINGS identified in SC-5.03 Subsurface and Physical Conditions are made available for Download from QuestCDN as attachements to Addendum 1 (this addendum). 209 Sourdough WTP Interim Optimization 00 91 13.1 - 3 Addendum No. 1 Bozeman, Montana Bidder’s attention is particularly directed to the following pages in these record drawins: Sheet 000A01 – depicting the nearest exit to the stairwell leading to improvements in bid package a. The floor opening found between VERTICAL grid lines “K” & “L” and HORIZONTAL GRID LINES “10” & “11” and cut by section J1|000A12 opens to the stairwell which appears in bid package A. This will help determine distance required to transport demolished materials to the nearest exit. Sheet 300S09 – Section AA – depicting the 4” galvanized steel vehicle rated (H10) Grating situated above portions of improvements in Bid Package B. Bidder should be prepared to make modifications to 4” galvanized grating schematically depicted in Construction Detail 4 | P202. Sheet 300S05 – Section B – depicting the 2” aluminum grating situated above portions of improvements in Bid Package B. Bidder should be prepared to make modifications to 2” aluminum grating schematically depicted in Construction Detail 4 | P202. Sheet 700D05 – depicting the fluoride transfer pumps and associated chemical feed piping unobstructed by the existing containment curb in Bid Package A. Sheet 200E03 – depicting the Electrical Cable Trays and equipment around the Influent Head Tower. Also see photo copied below for additional context. 210 Sourdough WTP Interim Optimization 00 91 13.1 - 4 Addendum No. 1 Bozeman, Montana CHANGES TO PROJECT DRAWINGS: REPLACE respective pages of the Construction Drawings with the following sheets, reissued by this addendum (Addendum 1). • SHEET GEN | P002 – Schedules • SHEET BPB | P201 – Membrane Backwash Recycle Demolition Plan and Section • SHEET BPB | P202 – Membrane Backwash Recycle Improvements Plan and Section • SHEET SD | P501 – Process Details ATTACHMENTS: • 00 21 13 – Bidder’s Checklist Clarifications • 00 73 00.05 – Bity of Bozeman Hyalight Sourdough Water Treatment Plant 2015 Record Drawings • 00 73 00.29 – City of Bozeman Discharge Permit MT0030155 • 00 73 44 – Montana Prevailing Wage Rate Determination • 00 73 73 – Water Treatment Plant Contractor Orientation Checklist • 00 73 74 – Water Treatment Plant Chemical Safety Policy for Contractors • 00 73 75 – Water Treatment Plant Confined Space Program • 40 05 35 – High Density Polyethylene Process Pipe • 40 05 58 – Process Valves • Project Drawings - Addendum 1 • SEEPEX Fluoride Transfer Pump Technical Data I hereby certify that this Addendum was prepared by me or under my direct supervision, and that I am duly registered as a Professional Engineer under the laws of the State of Montana. Brian J Viall, PE Registration Number 51168-PE END OF ADDENDUM NO. 1 CL N L NRO AIS M O NTANA PR O FES E N GEEBRIAN J. VIALL I No. 51168 PE IDESNE 03/28/2025 211 Sourdough WTP Interim Optimization 00 91 13.2 - 1 Addendum No. 2 Bozeman, Montana SECTION 00 91 13 .2 - ADDENDUM NO. 2 March 31, 2025 BOZEMAN SOURDOUGH WTP INTERIM OPTIMIZATION CITY OF BOZEMAN, MONTANA ENGINEER’S PROJECT NUMBER: P05097-2024-008 This Addendum No. 2 forms part of the Contract Documents and modifies the original Bidding Documents as noted below. All provisions of the Contract Documents not in conflict with this Addendum shall remain in full force. Acknowledge receipt of this Addendum in the space provided on the Bid Form and on the outside of the Bid Envelope. Failure to do so may subject the Bidder to disqualification. This addendum consists of one (1) page and one (1) attachment. SECTION 00 11 13 – ADVERTISEMENT FOR BIDS REPLACE the first paragraph of the Advertisement for Bids with the following paragraph, extending the date of bid opening to April 10, 2025. ADVERTISEMENT FOR BIDS | Amended Notice CITY OF BOZEMAN BOZEMAN, MONTANA SOURDOUGH WTP INTERIM OPTIMIZATION General Construction Sealed Bids for the construction of the Sourdough Water Treatment Plant Interim Optimization in Bozeman will be received by City of Bozeman (Owner), at the office of the City Clerk located at 121 N Rouse, Suite 202, Bozeman, MT 59771-1230 or mailed to P.O. Box 1230, Bozeman, MT 59771-1230 until April 10, 2025 at 2:30 PM local time. At that time the Bids received will publicly opened and read aloud. ATTACHMENTS: • 00 11 13 – Advertisement for Bids | Amended Notice I hereby certify that this Addendum was prepared by me or under my direct supervision, and that I am duly registered as a Professional Engineer under the laws of the State of Montana. Brian J Viall, PE Registration Number 51168-PE END OF ADDENDUM NO. 2 CL N L NRO AIS M O NTANA PR O FES E N G EEBRIAN J. VIALL I No. 51168 PE IDESNE 03/31/2025 212 This page intentionally left blank. 213 ADDENDUM 2. Sourdough WTP Interim Optimization 00 11 13 – 1 Ad for Bids Bozeman, Montana Amended Notice ADVERTISEMENT FOR BIDS | Amended Notice CITY OF BOZEMAN BOZEMAN, MONTANA SOURDOUGH WTP INTERIM OPTIMIZATION General Construction Sealed Bids for the construction of the Sourdough Water Treatment Plant Interim Optimization in Bozeman will be received by City of Bozeman (Owner), at the office of the City Clerk located at 121 N Rouse, Suite 202, Bozeman, MT 59771-1230 or mailed to P.O. Box 1230, Bozeman, MT 59771-1230 until April 10, 2025 at 2:30 PM local time. At that time the Bids received will publicly opened and read aloud. Project Description: The Project includes furnishing all labor, skill, equipment, and construction materials to improve safety, accessibility, operational efficiency, and process functionality at the Bozeman WTP. The scope includes: 1. BID PACKAGE A: Fluoride Transfer Pump Spill Containment Improvements: Modifications to the fluoride transfer pump containment area to enhance operator accessibility, safety, and movement during maintenance. Work is defined in the Construction Drawings and Specifications. 2. BID PACKAGE B: Membrane Backwash Recycle Improvements: Installing cross-connection process piping and valves to redirect backwash waste directly to the recycle lift station, bypassing the DAFT feed wet well. Work is defined in the Construction Drawings and Specifications. 3. BID PACKAGE C: Pretreatment Basin Underflow Baffle Curb Modifications: Removing a concrete curb from underflow baffles to streamline sludge cleaning operations in the pretreatment basin. Work is defined in the Construction Drawings and Specifications. 4. BID PACKAGE D: Headtower Recycle Flow Improvements: Improve discharge piping at the headtower to better integrate recycle flows with raw water streams, to improve reuse water capture and treatment. Work is defined in the Construction Drawings and Specifications. Bids are requested for the following Contract: • Contract No. 1 – General Construction Owner anticipates that the Project’s total bid price will be approximately $204,999.00. Contractors will be given approximately 260 days to complete the project – the Contract Times can be found in the Agreement. Issuing Office The Issuing Office for the Bidding Documents is: AE2S – Bozeman; 1288 North 14th Ave Unit 103; Bozeman, Montana 59715; (406-219-2633). All Bids must be in accordance with the Bidding Documents on file with the City of Bozeman’s (Owner’s) Engineering Department, located at 20 E. Olive St. 1st floor; Bozeman, MT 59715 OR the office of Advanced Engineering & Environmental Servies, Inc. (AE2S -Bozeman (Engineer) at 1288 North 14th Ave Unit 103, Bozeman, MT 59715. 214 ADDENDUM 2. Sourdough WTP Interim Optimization 00 11 13 – 2 Ad for Bids Bozeman, Montana Amended Notice Examination of Bidding Documents: Information and Bidding Documents for the Project can be found at the following designated website: www.ae2s.com > “Project Bidding” Quest CDN #: 9458601 Bidding Documents may be downloaded from the designated website for a fee of $25.00. Prospective Bidders are urged to register with the designated website as a plan holder, even if Bidding Documents are obtained from a plan room or source other than the designated website in either electronic or paper format. The designated website will be updated periodically with addenda, lists of registered plan holders, reports, and other information relevant to submitting a Bid for the Project. All official notifications, addenda, and other Bidding Documents will be offered only through the designated website and its registered plan holders. Neither Owner nor Engineer will be responsible for Bidding Documents, including addenda, if any, obtained from sources other than the designated website. Bidding Documents may also be examined at the following locations: Builders Exchanges in Billings, MT; Bozeman, MT; Great Falls, MT; Helena, MT; and Missoula, MT. All Work shall be done according to the Bidding Documents. Pre-Bid Conference A pre-bid conference for the Project will be held on March 26th at 2:00 PM at Sourdough Water Treatment Plant; 7024 Sourdough Canyon Rd; Bozeman, MT 59715. Attendance at the pre-bid conference is encouraged but not required. Bid Security Bid security shall be furnished in accordance with Instruction to Bidders. Instructions to Bidders. For all further requirements regarding bid submittal, qualifications, procedures, and contract award, refer to the Instructions to Bidders that are included in the Bidding Documents. CONTRACTOR and any of the CONTRACTOR’S subcontractors bidding or doing work on this project will be required to be registered with the Montana Department of Labor and Industry (DLI). Forms for registration are available from the DLI, PO Box 8011, 1805 Prospect, Helena, Montana 59604-8011. Information on registration can be obtained by calling (406) 444-7734. CONTRACTOR is not required to have registered with the DLI prior to bidding on this project, but must have registered prior to execution of the Construction Agreement. All laborers and mechanics employed by CONTRACTOR or subcontractors in performance of the construction work shall be paid wages at rates as may be required by the laws of Gallatin County and the state of Montana. City of Bozeman is an Equal Opportunity Employer. Discrimination in the performance of any agreement awarded under this project 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 discrimination shall apply to the hiring and treatment of the submitting entity’s employees and to all subcontracts. 215 ADDENDUM 2. Sourdough WTP Interim Optimization 00 11 13 – 3 Ad for Bids Bozeman, Montana Amended Notice In addition, pursuant to City Commission Resolution 5169, the entity awarded a contract under this project 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. Rights Reserved The City of Bozeman reserves the right to reject any and all Bids, to waive irregularities and informalities, to postpone the award of the contract for a period not to exceed sixty (60) days, and to Award the Contract to the Lowest responsive and responsible Bidder which is in the best interest of the Owner. The Work must be completed in accordance with the dates outlined in the Agreement. Non- Discrimination In submitting its bid, the bidder 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 in the performance of work performed for the City of Bozeman, if a contract is awarded to it, and also recognizes the eventual contract, if awarded, will contain a provision prohibiting discrimination as described above and that this prohibition shall apply to the hiring and treatment of the bidders employees and to all subcontracts it enters into in the performance of the agreement with the City of Bozeman. The City of Bozeman is an Equal Opportunity Employer. Published at Bozeman, Montana this 2nd day of April 2025. This Advertisement is issued by: Owner: City of Bozeman By: Mike Maas, MPA Title: City Clerk Date: March 31, 2025 Re-published April 5, 2025; Newspaper: Bozeman Daily Chronicle 216 This page intentionally left blank. 217 Memorandum REPORT TO:City Commission FROM:Matt Workman, Interim Street Superintendent Nicholas Ross, Director of Transportation and Engineering SUBJECT:Authorize the City Manager to Sign a Notice of Award to Bergkamp Incorporated for a Purchase Agreement for a 2025 Spray Injection Pothole Truck and a 2025 Flameless Pothole Patch Truck MEETING DATE:May 13, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign a Notice of Award to Bergkamp Incorporated for a Purchase Agreement for a 2025 Spray Injection Pothole Truck and a 2025 Flameless Pothole Patch Truck. STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:This item is for procurement of STR112 and STR127 in the approved FY25-29 Capital Improvement Program and FY25 Biennium Budget. The equipment is a replacement of the Streets Division 2005 Freightliner Thermolay Patch Truck and 2014 Durapatcher Trailer Unit. These two pieces of equipment are used for Pothole Patching, Small Mill and Overlays, Cold Seam Repairs, Block Cracking, Fatigue/Crocodile Cracking, Edge Cracking, Rutting, Raveling and Multiple other distresses that are present through out the City. Bergcamp Incorporated was the only Bidder with a Bid Price of $673,279.80. UNRESOLVED ISSUES:None ALTERNATIVES:As Suggested by the Commission. FISCAL EFFECTS:The FY25 Biennium Budget included $620,000 in the Street Maintenance Fund for Item STR112 and STR127. The Bid Price is $53,279.80 over what was budgeted. The Division has found operational improvement that will not require procurement of a Portable Emulsion Tank (STR110) for $58,000 and savings from this item will cover the additional costs of STR112 and STR127. Attachments: Purchase Agreement Notice of Award Bid Specification 218 Attachement A - Warranty Report compiled on: May 1, 2025 219 220 221 222 223 224 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives the day and year first above written. CITY OF BOZEMAN SELLER By___________________________ By____________________________ Chuck Winn, Acting City Manager Print Name: Scott Heller Print Title: Territory Sales Manager APPROVED AS TO FORM: By________________________________ Greg Sullivan, City Attorney 225 NOTICE OF AWARD Dated: May 1, 2025 TO: Bergkamp Incorporated ADDRESS: 3040 Emulsion Dr, Salina, KS 67401 CONTRACT FOR: One New or Current Model Year 2025 Spray Injection Pothole Truck & One New or Current Model Year 2025 Flameless Pothole Patch Truck. You are notified that your Bid opened on April 24th, 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: One New or Current Model Year 2025 Spray Injection Pothole Truck & One New or Current Model Year 2025 Flameless Pothole Patch Truck. The Contract Price of your Contract is: Six Hundred Seventy-Three Thousand Two Hundred Seventy-Nine Dollars and Eighty Cents (673,279.80 CITY OF BOZEMAN, MONTANA BY: (CITY MANAGER) BY: (CITY CLERK) DATE: 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 Memorandum REPORT TO:City Commission FROM:Greg Sullivan, City Attorney SUBJECT:Authorize Mayor to Sign Employment Agreement with Chuck Winn for City Manager Appointment MEETING DATE:May 13, 2025 AGENDA ITEM TYPE:Agreement - Legal RECOMMENDATION:Authorize the Mayor to sign the employment agreement with Chuck Winn for the City Manager position. 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: This item authorizes the Mayor, on behalf of the City Commission, to enter into an employment agreement with Chuck Winn to serve as the Bozeman City Manager. This agreement terminates the Interim Employment Agreement with Mr. Winn the Commission entered into in 2024. The agreement is based on the contract used by the Commission for previous city managers. The Bozeman Charter establishes the role of city manager. See Charter at Article III. Section 3.01 of the Charter requires the Commission, by a majority vote of its total membership, to appoint a city manager. Chuck Winn has continuously served and been employed by the City since October 1, 1984, serving the City first as a firefighter, then the City's fire chief, and eventually an assistant city manager. Chuck currently serves as the City's interim city manager. UNRESOLVED ISSUES:None identified. ALTERNATIVES:None recommended. FISCAL EFFECTS:The employment agreement details the compensation and benefits provided to the city manager which are included in the current adopted budget. 256 Attachments: City Manager Winn Employment Agreement 4 30 25 for Commission.pdf Report compiled on: May 5, 2025 257 Employment Agreement between the City of Bozeman and Chuck Winn Page 1 of 9 EMPLOYMENT AGREEMENT EFFECTIVE DATE: This Agreement is dated as of ________, __, 2025 (the “Effective Date”) PARTIES: EMPLOYER City of Bozeman Bozeman City Commission 121 North Rouse Avenue Bozeman, MT 59715 EMPLOYEE Chuck Winn Bozeman, MT 5971 RECITAL The City has extended an offer of employment to Employee subject to the terms and conditions set forth in this Agreement. Employee accepts employment on the terms, covenants, and conditions set forth in this Agreement. AGREEMENT In consideration of the foregoing recitals and the covenants and promises contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the City and Employee agree as follows: 258 Employment Agreement between the City of Bozeman and Chuck Winn Page 2 of 9 ARTICLE I. INTERPRETATION Unless a clear contrary intention appears, as used in this Agreement (a) the singular includes the plural and vice versa, (b) reference to any document means such document as amended from time to time, (c) “include” and “including” means including without limiting the generality of any description preceding such term, (d) the word “or” is not exclusive, unless otherwise expressly stated, (e) the terms “hereof,” “herein,” “hereby,” and derivative or similar words refer to this entire Agreement, and (f) headings are for convenience only and do not constitute a part of this Agreement. ARTICLE II. DUTIES AND AUTHORITY The City agrees to employ Employee as City Manager to perform the functions and duties specified in Section 3.04 of the Bozeman City Charter, the Bozeman Municipal Code, Montana state law, and the City Manager’s class specification, and to perform other legally permissible and proper duties and functions as assigned by the City Commission. ARTICLE III. FULL-TIME BEST EFFORTS. Employee recognizes he serves at the pleasure of the Bozeman City Commission and also that Employee must devote Employee’s full professional time and attention to the performance of Employee’s obligations under this Agreement, and must at all times faithfully, industriously, and to the best of Employee’s ability, experience and talent perform all of Employee’s obligations under this Agreement. Until this Agreement is terminated, Employee shall not be employed or engaged by any other person or firm other than the City and, unless otherwise authorized in writing by the City Commission, shall not engage in any consulting, advising, or other similar work or business. ARTICLE IV. TERM, TERMINATION, AND SEVERANCE. 4.1 Term. This Agreement is effective on the Effective Date. The term of this Agreement shall be deemed to have begun on the Effective Date and shall continue for an indefinite period as set forth in Section 3.01 of the City Charter. The Parties agree this Agreement is retroactive to January 1, 2025, for purposes of compensation under Article VI. Employee currently serves as the Interim City Manager under the Interim Appointment Agreement entered between Employee and the City dated April 24, 2024. This Agreement terminates the Interim Appointment Agreement between the Parties. 4.2 Termination. (a) This Agreement and the Employee’s employment shall terminate immediately: (i) upon Employee’s death; 259 Employment Agreement between the City of Bozeman and Chuck Winn Page 3 of 9 (ii) upon the City ceasing to conduct its business; (iii) if the City removes the Employee pursuant to Section 3.02 of the City Charter; (iv) upon Employee providing 90 days’ written notice of resignation to the City; or (v) Employee may immediately terminate this Agreement if the City, citizens or City Commission acts to amend any provisions of the Bozeman Municipal Code and/or City Charter pertaining to the City Manager’s role, powers, duties, authority, or responsibilities that substantially changes the City of Bozeman’s form of government. (b) Upon termination of Employee’s employment, the City shall have no further obligation to Employee except as specifically provided under this Agreement; provided, however, that: (i) Termination of Employee’s employment shall not affect Employee’s right to receive earned but unpaid salary through the date of termination; (ii) Termination of Employee’s employment shall not affect Employee’s right to be paid for accrued but unpaid leave in accordance with state and federal law; and (iii) Employee shall be eligible to pay for continued health insurance as permitted by federal law. (c) Upon termination of Employee’s employment under this Agreement, Employee shall return to the City all equipment and property, including without limitation, files, notes, records, proprietary information, electronic equipment, keys, credit cards, and the like, owned by the City and used by Employee. 4.3 Grounds for Termination. Notwithstanding the procedural requirements of Section 3.02 of the City Charter or the provisions of Section 4.2, Employee agrees reasonable job-related grounds for termination of the Employee by the City Commission include: (a) Failure to satisfactorily perform job duties, disruption of City operations, or conduct which is prejudicial to the City or City Commission; (b) Violation of the residency requirement as provided for in Section 7.3; (c) Conviction of or plea of guilty or no contest to a felony; (d) Conviction of or plea or guilty or no contest to a misdemeanour which: (i) the act or failure to act occurs in the course and scope of the Employees duties; 260 Employment Agreement between the City of Bozeman and Chuck Winn Page 4 of 9 or (ii) the act or failure to act negatively affects the credibility of the Employee to sufficiently discharge his duties; (e) Adjudication by a forum of competent jurisdiction that the Employee violated the City or State codes of ethics; (f) Repeated and protracted unexcused absences from the Employee’s office or duties; (g) Knowingly falsifying records or documents or knowingly making false statements related to the City’s activities or businesses; (h) Violation of any City policy regarding drugs or alcohol; (i) Any wilful, grossly negligent, or negligent misapplication or misuse, direct or indirect, by Employee of public or other funds or other property, real, personal, or mixed owned by or entrusted to the City, any agency or corporation thereof, or the Employee in the Employee’s official capacity; or (j) If the City, citizens, or Montana Legislature substantially changes the authority, role, powers, duties, or responsibilities of the City Manager or changes the form of government of the City of Bozeman. 4.4 Severance. Except as otherwise stated herein, if Employee is terminated pursuant to this Article IV, severance will be as follows: A. Severance Pay. Amount of severance pay is equal to twelve (12) months of the Employees’ base pay at the time of termination. The amount shall be paid in a lump sum unless otherwise agreed to by the City and Employee. The amount shall be subject to all applicable state and federal withholdings. B. Retirement Contribution. The City will contribute to the Employee’s deferred compensation account an amount equal to eighteen percent (18%) of the severance pay subject to applicable IRS limits. C. Payout of Accrued Leave. Employee shall be entitled to payouts of all accrued leave pursuant to State law. D. Exceptions. If Employee is terminated pursuant to Section 3.04 of the Charter for any of the reasons in Section 4.3(a-i) or if Employee terminates employment pursuant to Section 4.2(d), Employee is not entitled to any severance under this section, except for leave payouts pursuant to State law. Notwithstanding the above, if Employee resigns voluntarily after request of the City Commission at a duly noticed public meeting or if Employee’s employment is terminated pursuant to Section 4.3.(j), Employee is entitled to severance. 261 Employment Agreement between the City of Bozeman and Chuck Winn Page 5 of 9 ARTICLE V. PERFORMANCE REVIEW AND WORK PLAN 5.1 Performance Review. The City shall review the performance of the Employee annually no later than December 31st of each year. 5.2 Work Plan. Beginning on January 1, 2026, and each year thereafter, the Employee must work with the City Commission to develop for City Commission approval a Work Plan identifying specific goals, implementation strategies, and major City projects and work assignments. The Work Plan should be approved by the City Commission on or before March 1 of each year. The Employee shall be evaluated, in part, regarding the implementation of the Work Plan. ARTICLE VI. COMPENSATION 6.1 Base Salary. The City shall pay Employee a base salary of $269.335.12 (two hundred sixty-nine thousand three hundred thirty five dollars and twelve cents) per year, payable in installments in conjunction with the City’s standard pay procedures. 6.2 COLA. Commencing on the first payroll of fiscal year 2026, (July, 2025 pay period), and for each fiscal year thereafter, the City agrees to increase the base salary of Employee by the June U.S. Consumer Price Index for All Urban Consumers for All Items. 6.3 Merit Wage Adjustments. The City Commission reserves the right to, but is not required to, make a merit-based adjustments to the base salary. Any merit-based adjustment must be approved by a vote of the City Commission. The percentage of the merit increase may not exceed the average of what has been approved and budgeted for eligible non-represented employees in the applicable fiscal year. ARTICLE VII. BENEFITS 7.1 Health Insurance. The Employee shall be entitled to participate in any plans, arrangements, or distributions offered by the City pertaining to or in connection with any health, dental, and vision insurance which the City adopts for the employees of the City. The Employee will be subject to all the rules of the City’s plans providing insurance, including without limitation, rules regarding participation. 7.2 Transportation Expenses. The City agrees to pay to the Employee, during the term of this Agreement, the sum of Five Hundred Sixty-Two Dollars and seventy-five cents ($562.75) per month as reimbursement for transportation related expenses. The amount shall be increased annually by 3% commencing with the first payroll of calendar year 2026 and increased again by 3% with the first payroll of every January thereafter. The Employee is prohibited from using City vehicles or from seeking reimbursement for transportation expenses except as may be authorized in advance pursuant to Article VIII. 262 Employment Agreement between the City of Bozeman and Chuck Winn Page 6 of 9 7.3 Residency Requirement. The Employee agrees to maintain residence within the Gallatin County. 7.4 Retirement. The City will provide Employee the same retirement program through the Montana Public Employees Retirement Administration as is provided to other employees of the City. In addition, the City shall contribute an amount equal to eighteen percent (18%) of the employee's base annual salary as a monthly contribution to an eligible MissionSquare 401(a) plan. For purposes of this section, base annual salary shall be calculated in the same manner as all other non-represented City employees. In addition, the City shall contribute the amount of two thousand dollars ($2,000.00) per month to an eligible MissionSquare 457 deferred compensation plan. 7.5. Vacation Leave; Sick Leave. Employee shall accrue twenty-four (24) days of vacation leave each year and twelve (12) days of sick leave each year, subject to the qualifying periods and all policies other than accrual rates as set forth in the City’s Employee Handbook. From calendar year to calendar year, the Employee is entitled to carry over up to three (3) times the annual vacation accrual. There will be no limit on the accrual of sick leave credits. Entitlement to and usage of other leave shall be in accordance with the City’s Employee Handbook. 7.6 Personal Leave. In addition, Employee shall be entitled to two (2) personal days per year and three (3) personal days in non-general election years. These personal leave days must be used in whole-day increments. If the Employee does not use them by December 31st of each year, these personal leave days expire. ARTICLE VIII. BUSINESS EXPENSES 8.1 Business Expenses. In addition to the transportation expenses provided for in Section 7.2, the City shall reimburse Employee for any business-related expenses including transportation expenses as those may be related to travel outside of Gallatin County and incurred in the course of the Employee’s official duties. Such expenses may only be reimbursed pursuant to City policy in the same manner as reimbursements for other employees. The Finance Director is authorized to disburse reimbursement upon receipt of duly executed expense or petty cash vouchers, receipts, statements, or personal affidavits reflecting such expenses. 8.2 Professional Development. In addition to the transportation expenses provided for in Section 7.2, City agrees to budget for and pay for travel and subsistence expenses of Employee for short courses, institutes and seminars that are deemed by the Commission as necessary for the Employee’s professional development and for the good of the City. This includes but is not limited to annual dues for membership in and attending the annual conferences of the International City/County Management Association (ICMA) and the regional chapter of ICMA, membership and conferences of the Montana League of Cities and Towns (MLCT), and at least one (1) additional professional conference per year of the Employee’s choosing. 8.3 Local Civic Clubs and Organizations. The City acknowledges the value of having Employee participate and be directly involved in local civic clubs or organizations. 263 Employment Agreement between the City of Bozeman and Chuck Winn Page 7 of 9 Accordingly, the City shall pay for the reasonable membership fees and/or dues to enable the Employee to become an active member in local civic clubs or organizations. ARTICLE IX. HOLDING OFFICE. City Commission approval is required before the Employee agrees to hold office in any professional, business, or civic organization. ARTICLE X. HOURS OF WORK The City recognizes that Employee must devote a great deal of time outside normal office hours on business for the City. To that end, Employee shall be allowed to establish an appropriate work schedule. ARTICLE XI. OUTSIDE ACTIVITIES The City recognizes that certain outside consulting or teaching opportunities provide indirect benefits to the City and the community. According, Employee may elect to accept limited teaching, consulting or other business opportunities with the understanding that such arrangements shall not constitute interference with nor a conflict of interest with Employee’s responsibilities under this Agreement. ARTICLE XII. INDEMNIFICATION Under Montana Code Annotated section 2-9-305, the City will indemnify, immunize and prove a defense to Employee if Employee is civilly sued for action taken within the scope of Employee’s employment. Employee recognizes the City may determine certain conduct for which a claim is alleged or served against the Employee occurred outside the scope of employment and thus such claim will not be subject to indemnification by the City. Further, the City agrees that notwithstanding termination of employment the City’s obligation to indemnify Employee shall continue beyond Employee’s service to the City as long as litigation is pending. The City agrees to pay Employee’s reasonable consulting fees and travel expenses when Employee serves as a witness, advisor, or consultant to the City regarding pending litigation. ARTICLE XIII. BONDING The City shall bear the full cost of any fidelity or other bonds required of the Employee under any law or ordinance. 264 Employment Agreement between the City of Bozeman and Chuck Winn Page 8 of 9 ARTICLE XIV. MISCELLANEOUS. 14.1 Governing Law. This Agreement shall be governed by the laws of the State of Montana. 14.2 Severability. The invalidity of any provision of this Agreement or portion of a provision shall not affect the validity of any other provision of this Agreement or the remaining portion of the applicable provision. 14.3 Counterparts and Electronic Signatures. This Agreement and any amendments to this Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one agreement. 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. 14.4 Notices. All notices required or permitted under this Agreement shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified; (ii) when sent by confirmed electronic mail if sent during normal business hours of the recipient, if not, then on the next business day; (iii) upon receipt, if sent by registered or certified mail or nationally recognized overnight courier. All notices shall be sent to the City or Employee at the address set forth on the first page of this Agreement, to the Employee’s City office, or at such other address as either party may designate by notice pursuant to this Section. 14.5 Entire Agreement. The terms of this Agreement express and constitute the entire agreement between the parties pertaining to the subject matter of this Agreement and supersede all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties. No supplement, modification, waiver or termination of this Agreement shall be binding, unless executed in writing by the party to be bound. 14.6 Assignment. This Agreement and all rights, entitlements, duties and obligations arising from it shall not be assignable in whole or in part by Employee except with the prior written consent of the City. 14.7 Public Document. This Agreement is a public document and shall be available for inspection by the public. 14.8 Review and Modification. The parties agree to review this Agreement on or before December 31 every two years commencing in December of 2025. Should either party desire to modify this Agreement at any time, the party wishing to amend this Agreement shall serve notice of proposed modifications in writing to the other party. The parties have executed this Agreement effective as the Effective Date. #### End of Agreement Except for Signatures #### 265 Employment Agreement between the City of Bozeman and Chuck Winn Page 9 of 9 THE CITY: ____________________________________ Terence Cunningham, Mayor Attest: ____________________________________ Mike Maas, City Clerk EMPLOYEE: ____________________________________ Chuck Winn 266 Memorandum REPORT TO:City Commission FROM:David Fine, Economic Development Manager Brit Fontenot, Economic Development Director SUBJECT:Authorize the City Manager to Sign a Release of Temporary Construction Easement at 621 W. Mendenhall St MEETING DATE:May 13, 2025 AGENDA ITEM TYPE:Agreement - Legal RECOMMENDATION:Authorize the City Manager to sign Release of Temporary Construction Easement at 621 W. Mendenhall St. STRATEGIC PLAN:2.2 Infrastructure Investments: Strategically invest in infrastructure as a mechanism to encourage economic development. BACKGROUND:The City acquired construction easements from property owners to facilitate the N. 7th Ave. lighting and streetscape project. The project was completed in 2020 and the property owner has requested the release of the easement. Staff recommends the release of the easement. UNRESOLVED ISSUES:None at this time. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:None at this time. Attachments: Release of Temp. Constr. Ease.(84768954.1)-c.docx Report compiled on: May 1, 2025 267 Page 1 of 2 WHEN RECORDED RETURN TO: Fredrikson & Byron, P.A. Attn: Justin G. Hughes 304 E Front Ave.; Ste. 400 Bismarck, ND 58504-5639 Space above line for recorder’s use only RELEASE OF TEMPORARY CONSTRUCTION EASEMENT For good and valuable consideration, receipt of which is hereby acknowledged, the undersigned, City of Bozeman, Montana, a municipal corporation of the State of Montana, with offices at 121 North Rouse Avenue, Bozeman, Montana 59715, hereby releases and discharges the Temporary Construction Easement granted by Eckroth Plaza Montana, LLC, a North Dakota limited liability company having a mailing address of 1655 N Grandview Ln, Ste. 102, Bismarck, ND 58503-0877, and recorded in the Gallatin County, Montana Clerk and Recorder’s office on September 13, 2017, as Instrument No. 2592639, which easement encumbers the real property in Gallatin County, Montana legally described as follows: Lot 20, Tracy’s 2nd Addition, Block E, Situated in the NE1/4 of Section 12, Township 2 South, Range 5 East, Principal Meridian, Gallatin County, Montana and the Gallatin County, Montana Clerk and Recorder’s office is authorized to discharge and release said Temporary Construction Easement of record. Date:______________ 2024 [REST OF PAGE INTENTIONALLY BLANK. SIGNATURES FOLLOW.] 268 Page 2 of 2 City of Bozeman, Montana A municipal corporation of the State of Montana By:________________________________ Its:_________________________________ STATE OF MONTANA ) ) ss COUNTY OF GALLATIN ) On this day of __________________, 2024, before me, the undersigned, a notary public within and for said county and state, personally appeared ____________________________ in his/her capacity as _______________________________ of the City of Bozeman, a municipal corporation of the State of Montana, known to me to be the person whose name is subscribed to the within instrument, and acknowledged that he/sheexecuted the same on behalf of said municipal corporation for the purposes herein contained. _____________________________ Notary Public 269 Memorandum REPORT TO:City Commission FROM:Scott McMahan, IT Director SUBJECT:Authorize City Manager to Sign a Kenyon Site License Agreement between the City of Bozeman and Gallatin County MEETING DATE:May 13, 2025 AGENDA ITEM TYPE:Agreement - Property RECOMMENDATION:Authorize City Manager to sign the Kenyon Site License Agreement between the City of Bozeman and Gallatin County. STRATEGIC PLAN:1.3 Public Agencies Collaboration: Foster successful collaboration with other public agencies and build on these successes. BACKGROUND:Gallatin County houses a number of radio system components in the City's shelter at the Kenyon tank site. The City wanted to memorialize the agreement of said use and share the costs of operating the site in a more equitable fashion. UNRESOLVED ISSUES:None ALTERNATIVES:Do not enter into the agreement and leave things as they currently are. FISCAL EFFECTS:Will reduce the costs incurred by the City in operation of the Kenyon site. Attachments: 250228 Kenyon Site License Agmt_final SIGNED.pdf Report compiled on: April 28, 2025 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 Memorandum REPORT TO:City Commission FROM:Scott McMahan, IT Director SUBJECT:Authorize the City Manager to Sign a Professional Services Agreement and Statement of Work with AVI Systems, Inc. for Audio Visual Consulting and Design Services MEETING DATE:May 13, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign Professional Services Agreement and Statement of Work with AVI Systems, Inc. for Audio Visual Consulting and Design Services STRATEGIC PLAN:1.2 Community Engagement: Broaden and deepen engagement of the community in city government, innovating methods for inviting input from the community and stakeholders. BACKGROUND:The City wants to improve stability, reliability and functionality of the audio and visual technologies in the Commission room to better serve the boards, commission and the general public. UNRESOLVED ISSUES:None ALTERNATIVES:Keep using the system we have that is becoming less reliable as it ages. FISCAL EFFECTS:Up to $42,169.72 Attachments: AVI RSA 1342261 - City of Bozeman - Commission Room Design and Spec 4-28-2025.pdf PSA with AVI for AV Design Services.docx Report compiled on: April 29, 2025 285 Printed on April 09, 2025 Page 1 of 7 1342261 Retail Sales Agreement Reference Number: 1342261 Date: April 09, 2025 Prepared By: Mark Hunt Phone: (406)969-3336 Email: mark.hunt@avisystems.com City of Bozeman - Commission Room Design and Spec AVI Systems Inc. 655 E 54th Street North, Sioux Falls, SD 57104 Phone: (605)782-4141 Fax: (605)782-4142 COMPANY PROJECT SITE INVOICE TO City of Bozeman PO Box 1230 Attn: Finance Bozeman, MT 59771 City of Bozeman 121 North Rouse Ave Bozeman, MT 59771 City of Bozeman PO Box 1230 Attn: Finance Bozeman, MT 59771 Contact: Scott McMahan Phone: (406)582-2321 Email: smcmahan@bozeman.net Account Number: COB0019 Contact: Scott McMahan Phone: (406)582-2321 Email: smcmahan@bozeman.net Account Number: COB0019 Contact: Scott McMahan Phone: (406)582-2321 Email: smcmahan@bozeman.net Account Number: COB0019 COMMENTS PRODUCTS AND SERVICES SUMMARY Development/Design/Travel/PM $37,324.75 Bid Spec document $4,845.00 Grand Total $42,169.75 Unless otherwise specified. The prices quoted reflect a discount for a cash payment (i.e., check, wire transfer) made by Customer in full within the time stated for payment on each invoice. Discount only applies to new items included on the invoice, and only applies if the balance on the invoice is paid in full. All returned equipment is subject to a restocking charge. The prices are valid for 15 days and may be locked in by signing this Retail Sales Agreement. AVI’s prices/rates provided in this quote and/or agreement do not reflect any applicable tariffs imposed by foreign or domestic governmental authorities. AVI’s prices are subject to change should applicable tariffs result in any price increase to the equipment purchased under this agreement. Overdue balances are subject to a finance charge of 1.5% per month, or interest at the highest rate permitted by applicable law. In the event AVI must pursue collection of unpaid invoices, Customer agrees to pay all of AVI's costs of collection. INVOICING AND PAYMENT TERMS Customer and AVI have agreed on the payment method of CHECK. Payment must be remitted by stated method. To the extent Customer seeks to use of any payment methods other than stated, and that payment method results in an increased transaction cost to AVI, the new payment must be approved in writing, and the Customer shall be responsible for paying the increased transaction cost to AVI associated with the change in payment method. Payments shall be made 30 days from invoice date. So long as the invoice has been sent and the Customer's payment is made within the terms work will continue. 286 Printed on April 09, 2025 Page 2 of 7 1342261 AVI will invoice per the estimated payment schedule noted below, subject to modification due to executed change orders. Unless otherwise specified, all items quoted (goods and services) as well as applicable out of pocket expenses (permits, licenses, etc.) are invoiced in summary. Estimated Payment 1 $ 16,867.90 40% Total Project Estimate Deposit, Due on Signature - No Tax Collected Estimated Payment 2 $ 16,867.90 80% Total Project Estimate (including any change orders) Paid by/Due on Equipment Delivery (plus tax on Payment 1 and 2) Estimated Payment 3 $ 8,433.95 Remaining 20% Total - On AVI Notice of substantial completion of original job as bid Customer is to make payments to the following "Remit to" address: AVI Systems PO Box 842607 Kansas City, MO 64184-2607 If Payment Method is ACH: Customer must make all payments in the form of bank wire transfers or electronic funds transfers through an automated clearinghouse with electronic remittance detail, in accordance with the payment instructions AVI Systems provides on its invoice to Customer. A monthly summary of detailed equipment received is available upon request. Equipment received may be different than equipment billed based on agreed billing method. TAXES AND DELIVERY Unless stated otherwise in the Products and Services Summary above, AVI will add and include all applicable taxes, permit fees, license fees, and delivery charges to the amount of each invoice. Taxes will be calculated according to the state law(s) in which the product(s) and/or service(s) are provided. Unless Customer provides a valid tax exemption certificate for any tax exemption(s) claimed, AVI shall invoice for and collect all applicable taxes in accordance with state law(s), and Customer will be responsible for seeking a tax credit/refund from the applicable taxing authority. AGREEMENT TO QUOTE AND DOCUMENTS CONSTITUTING YOUR CONTRACT WITH AVI Customer hereby accepts the above quote for goods and/or services from AVI. When duly executed and returned to AVI, AVI's Credit Department will check Customer's credit and approve the terms. AGREED AND ACCEPTED BY AVI Systems, Inc. Company Company Signature Signature Printed Name Printed Name Date Date 287 Printed on April 09, 2025 Page 3 of 7 1342261 CONFIDENTIAL INFORMATION The company listed in the "Prepared For" line has requested this confidential price quotation, and shall be deemed "Confidential Information" as that term is defined in the T&Cs. This information and document is confidential and is intended solely for the private use of the customer identified above. Customer agrees it will not disseminate copies of this quote to any third party without the prior written consent of AVI. Sharing a copy of this quote, or any portion of the Agreement with any competitor of AVI is a violation of this confidentiality provision. If you are not the intended recipient of this quote (i.e., the customer), you are not properly in possession of this document and you should immediately destroy all copies of it. PRODUCTS AND SERVICES DETAIL PRODUCTS: Model # Mfg Description Qty Price Extended AVI SERVICES Project Management $544.00 Travel Expense $1,170.00 Meetings $242.25 Engineering & Drawings $38,275.50 Travel $1,938.00 Sub-Total: AVI SERVICES $42,169.75 Total: $42,169.75 288 Printed on April 09, 2025 Page 4 of 7 1342261 SERVICES TO BE PROVIDED ENGINEERING SERVICES ENGINEERING ABSTRACT: Facilitate collaboration between the IT Department, the City Clerk, and City Administration to develop a system design that will provide minimum specifications to support City functions (without Charter or Gallatin County) as follows: • Rough order of magnitude costs to replace/upgrade all existing Commission Room equipment to serve these requirements, with opportunities to expand as needs emerge. • Develop a system design that builds from the baseline specifications noted above, while adding Charter into the mix (no Gallatin County) • Develop a system design that builds from the baseline specifications noted in the first bullet, while adding integration with Gallatin County (no Charter) • Develop a system design that builds from the baseline specification noted in the first bullet, while adding BOTH Charter & Gallatin County into the mix • Summary report describing pros/cons for each of the four options, along with ROM cost estimates for each option • Bid Specifications Document if the City of Bozeman chooses to exercise this option • Project Specifications Document ENGINEERING SERVICES TO BE PROVIDED AVI Systems will work with the City of Bozeman and any related design professionals selected (architects, engineers, etc.) to provide initial and ongoing audiovisual systems design and engineering support for this project to upgrade the city council chambers and optionally the broadcast equipment. AVI Systems strongly encourages the fostering of a truly open, cooperative “design team” approach, with team members bringing unique, valuable insight from their special perspective to the team. The goal of these services is as follows: • Understand clearly the current and future AV needs of the Customer. • Provide accurate construction documents for the implementation of the AV-related infrastructure. • Provide an overall AV plan that will allow for the procurement of appropriate AV equipment and installation, complete with system diagrams, ensuring correct integration of the equipment. • Compile the data gathered during the engineering process into an Integration Agreement for a turnkey installation of all AV systems, with the added value of a seamless integration process. The Design Process can be modified at any time per the direction of the Customer – otherwise, it shall follow this general outline: • AV Program Review / Verification – The AVI Systems design team will obtain from the Customer the operational specifications desired for the audio and video systems within the designated facility. Additional facility information will be required, including the building’s electrical and structural infrastructure, as well as the physical sizes of each room or space. Using compatible AutoCAD drawings, the integration of desired AV systems within available spaces will be visualized. During this initial design phase, various equipment options, with an eye toward future expandability while maintaining current value, will be suggested. • Budget Verification – The AVI Systems design team will create a project scope compiled from the information received from the Customer. AVI Systems will generate cost estimates for the various systems as outlined above and compare these budget estimates to any initial AV budgets. This process will reaffirm the exact direction that engineering resources should target in the next phase. • Initial Design – During this phase, AVI Systems will begin applying the above-defined systems in detail to the various areas of the Customer facility. Further communications between the Customer and the other design team members, as various options are explored, will be necessary at this time. Typical deliverables from this phase would include the following drawings and/or documents. o Preliminary AV Technical Power, Conduit Plans, and Riser Drawings o Preliminary AV Video Flow o Preliminary AV Audio Flow o Preliminary AV Control Flow o Preliminary AV Rack Layouts o Preliminary Equipment Lists o Preliminary Budget Estimates Submittal of the above for the various rooms will be a progressive process, with most critical drawings being submitted first, allowing construction details to be available on an as-needed basis. During this process (modifications to the preliminary plans, due to a variety of considerations: architectural/aesthetic considerations, budget reviews, etc.), electronic exchange of AutoCAD drawings between all the team members will facilitate a quick exchange of updates. Specific design freeze dates will be established with all parties to facilitate timely submittals and help manage the Customer’s end cost. All changes are to be reviewed and approved by all parties. Final Systems Design – The changes made in the previous phase to the preliminary designs will be updated and regenerated as “final” construction documents. AVI Systems will typically work from background drawings from an architect under contract to the 289 Printed on April 09, 2025 Page 5 of 7 1342261 Customer, entering AV-specific data and returning these back to the architect (or other Customer retained design professional) for integration into final construction documents. Project Specifications Document – The final audiovisual systems designs will be compiled into a written project technical specifications document with equipment lists and any pricing not already included in the quote for complete integration. This document will include the following system diagrams and documents. • AV Floor Plan and Elevations detailing locations of AV devices • AV Video Flow • AV Audio Flow • AV Control Flow • System infrastructure requirements, including cable and termination specifications • System operational and post-operational requirements • Project Scope of Work • Project costs Project Timeline – the development and design phases are expected to follow the following timeline based on the initial understanding of the requirements. • Needs Analysis – 8-hours – AVI will meet on-site and meet with the stakeholders and end-users to discuss historical use, issues, needs and wants, along with future requirements. • Conceptual Design – 40-hours – AVI will create a narrative that describe each system, and the functionality required that meets the requirements of the city. • Design Specifications – 16~24-hours – AVI will document the functional specifications for the approval of all stakeholders and key any personnel. • Construction Documentation – 40~60-hours – AVI will create system drawings that include all schematic plans showing all system components, their placement, including all functional flow diagrams for signal, network, power, etc. During these phases, AVI will conduct remote meetings (TEAMS) both scheduled and ad-hoc to bring each milestone to completion. Meetings may take anywhere from 15-minutes to 2-hours depending on the phase. Documentation may be shared visually as well as emailed for review. All timelines are estimated and may fluctuate depending on factors beyond the control of either party. Drawings Sample: 290 Printed on April 09, 2025 Page 6 of 7 1342261 291 Printed on April 09, 2025 Page 7 of 7 1342261 292 Version 5 18 23 Professional Services Agreement for AV Consulting and Design Services Page 1 of 12 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, AVI Systems, Inc. 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 _____ day of ______________, 202_, 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 293 Version 5 18 23 Professional Services Agreement for AV Consulting and Design Services Page 2 of 12 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. All undisputed payments shall be due and payable to Contractor within thirty (30) days of the City's receipt of a proper invoice. Notwithstanding anything to the contrary stated herein, if the City does not pay the Contractor through no fault of the Contractor, within ten (10) business days from the time payment should be made as provided in this Agreement, the Contractor may, without prejudice to any other available remedies or being considered in default under this Agreement, upon ten(10) additional business days’ notice to the City, stop the Work of this Agreement until payment of the amount owing has been received. The Agreement Sum shall, by appropriate modification, be increased by the amount of the Contractor’s reasonable costs of demobilization, delay, and remobilization. 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. 294 Version 5 18 23 Professional Services Agreement for AV Consulting and Design Services Page 3 of 12 Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. Contractor shall post a legible statement of all wages and fringe benefits to be paid to the Contractor’s employees and the frequency of such payments (i.e., hourly wage employees shall be paid weekly). Such posting shall be made in a prominent and accessible location at the Contractor’s normal place of business and shall be made no later than the first day of services provided under this Agreement. Such posting shall be removed only upon expiration or termination of this Agreement. In performing the services under this Agreement, Contractor shall give preference to the employment of bona fide residents of Montana, as required by §18-2-403, MCA, as such term is defined by §18-2-401(1), MCA. When making assignments of work, Contractor shall use workers both skilled in their trade and specialized in their field of work for all work to which they are assigned. Pursuant to §§18-2-403 and 18-2-422, MCA, Contractor shall pay wages, fringe benefits, and expenses, including travel allowances as set forth in the current Montana Prevailing Wage Rate for Non Construction Services in effect and applicable to Gallatin County, Montana, which schedule is incorporated herein. Contractor shall pay all hourly wage employees on a weekly basis. Violation of the requirements set forth in the above State of Montana schedule of prevailing wage rates may subject the Contractor to the penalties set forth in §18-2-407, MCA. Contractor shall maintain payroll records during the term of this Agreement and for a period of three (3) years following termination of this Agreement. The Contractor shall ensure that any person, firm or entity performing any portion of the services under this Agreement for which the contractor, subcontractor or employer is responsible, is paid the applicable standard prevailing rate of wages. In the event that, during the term of this Agreement, any labor problems or disputes of any type arise or materialize which in turn cause any services to cease for any period of time, Contractor specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. 295 Version 5 18 23 Professional Services Agreement for AV Consulting and Design Services Page 4 of 12 Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes and for any claims regarding underpaid prevailing wages. 7.Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including reasonable attorney’s fees and the reasonable 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 obligationsshall 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. 296 Version 5 18 23 Professional Services Agreement for AV Consulting and Design Services Page 5 of 12 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. In addition to and independent from the above, Contractorshall 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 297 Version 5 18 23 Professional Services Agreement for AV Consulting and Design Services Page 6 of 12 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 thirty (30) days 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 thirty (30) days 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 298 Version 5 18 23 Professional Services Agreement for AV Consulting and Design Services Page 7 of 12 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. 10.Limitation on Contractor’s Damages; Time for Asserting Claim: a.In the event of a claim for damages, including reasonable, documented costs incurred due to delays, disruptions, or changes caused by the City,Contractor waives any right to consequentialor punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages.. 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 Scott McMahanor 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. 299 Version 5 18 23 Professional Services Agreement for AV Consulting and Design Services Page 8 of 12 b.Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be Josh Grant or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. c.Notices:All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12.Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13.Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14.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, 300 Version 5 18 23 Professional Services Agreement for AV Consulting and Design Services Page 9 of 12 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, 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 301 Version 5 18 23 Professional Services Agreement for AV Consulting and Design Services Page 10 of 12 shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 17.Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 18. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 19.Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 20.Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable 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. 302 Version 5 18 23 Professional Services Agreement for AV Consulting and Design Services Page 11 of 12 22.Dispute Resolution: a.Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b.If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 23.Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 24.Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 25.Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 26.Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 27.Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 28.No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 29.Counterparts: This Agreement may be executed in counterparts, which together 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 303 Version 5 18 23 Professional Services Agreement for AV Consulting and Design Services Page 12 of 12 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 5 years. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF,the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. CITY OF BOZEMAN, MONTANA AVI Systems, Inc. CONTRACTOR (Type Name Above) By________________________________By__________________________________ Chuck Winn, Interim City Manager Josh Grant Print Name: Josh Grant Print Title: Regional Vice President APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 304 Memorandum REPORT TO:City Commission FROM:Nic Focken, Parking Manager Benjamin Bailey, Neighborhood Services and Code Compliance Program Manager SUBJECT:Authorize the City Manager to Sign an Amendment One SkiData Inc. for the Bridger Garage Server Upgrade MEETING DATE:May 13, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign Amendment One SkiData Inc. for the Bridger Garage server upgrade. STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:Attached is Amendment One with SkiData Inc. The revised Scope of Service, attached as Exhibit A, is the addition of Travel & Labor. As indicated in the Scope of Service, this results in an added cost of $5,000.00 (five thousand dollars) for 16 hours labor, airfare, 2 days lodging, rental car, per diem. UNRESOLVED ISSUES:If this amendment fails to pass consent, the server upgrade cannot proceed, and the Bridger Parking Garage will lose access to its basement gates ALTERNATIVES:As directed by the City Commission. FISCAL EFFECTS:$5,000.00. The project is included in the adopted FY25 budget, and the Parking Department has some savings from FY25. Attachments: First SaaS Amendment SkiData.pdf SKIDATA AMENDMENT_EXHIBIT A_TRAVEL LABOR.pdf Report compiled on: May 1, 2025 305 First Amendment to Software as a Services Agreement for SkiData Inc. FY 2025 – FY 2025 Page 1 of 2 FIRST AMENDMENT TO SOFTWARE AS A SERVICE AGREEMENT THIS FIRST AMENDMENT TO THE SOFTWARE AS A SERVICE AGREEMENT FOR SkiData Inc. dated November 2024 (the “Agreement”) is made and entered into this day of , 2025, by and between the CITY OF BOZEMAN, MONTANA, a self governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and SkiData Inc. hereinafter referred to as “Contractor.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree to amend the Agreement as follows: 1. New Travel & Labor Cost: The revised Scope of Service, attached as Exhibit A, is the addition of Travel & Labor. As indicated in the Scope of Service, this results in an added cost of $5,000.00 (five thousand dollars) for 16 hours labor, airfare, 2 days lodging, rental car, per diem. 2. Agreement still valid. All remaining terms and provisions of the Agreement remain valid. 306 First Amendment to Software as a Services Agreement for SkiData Inc. FY 2025 – FY 2025 Page 2 of 2 **** 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 SkiData Inc. By By Chuck Winn, City Manager Print Name: Aaron Siebert Title: Vice President APPROVED AS TO FORM By Greg Sullivan, Bozeman City Attorney 307 Commercial in Confidence SKIDATA INC – 04/22/2025 Page 1 of 16 PROJECT INFORMATION PROJECT NAME: BRIDGER GARAGE - SAAS BUSINESS UPGRADE WITH SERVER CO1 - TRAVEL & LABOR SKIDATA CONTACT: STEVEN PALESTINO ACCOUNT NAME: BRIDGER GARAGE PHONE NUMBER: (612) 456-9283 PROPOSAL #: 281096 E-MAIL ADDRESS:STEVEN.PALESTINO@SKIDATA.COM SKIDATA PROPOSAL ISSUE DATE: 04/22/2025 VALID UNTIL: 05/22/2025 Exibit A 308 Commercial in Confidence SKIDATA INC – 04/22/2025 Page 2 of 16 PROJECT LOCATION BILL TO INFORMATION BRIDGER GARAGE 26 E MENDENHALL ST BOZEMAN, MONTANA 59715 BRIDGER GARAGE 26 E MENDENHALL ST BOZEMAN, MONTANA 59715 SOLUTION SUMMARY CHANGE ORDER FOR TRAVEL AND LABOR. INVESTMENT SUMMARY EQUIPMENT: $ 2,600 EQUIPMENT WARRANTY TERM: 12 MONTHS SOFTWARE: $ 0 PROJECT DATES FREIGHT: $ 0 FREIGHT SURCHARGE: $ 0 PROJECT DATES TARIFF SURCHARGE: $ 0 PREVAILING WAGE NO ESTIMATED SALES TAX: $ 0 TAX EXEMPT NO ESTIMATED LABOR TAX: $ 0 ESTIMATED FREIGHT TAX: $ 0 ANNUAL LICENSING FEES INCLUDED: $ 0 SUB-CONTRACTED TOTAL: $ 0 WAGE OR INSURANCE PREMIUMS: $ 0 PROJECT SERVICES/LABOR $ 2,400 TOTAL SYSTEM INVESTMENT: $ 5,000 PAYMENT SCHEDULES OF VALUES # PAYMENT DESCRIPTION % $ AMOUNT 1 PROJECT PAYMENT - UPON SUBSTANTIAL COMPLETION A FINAL INVOICE WILL BE ISSUED 100% $ 5,000 Exibit A 309 Commercial in Confidence SKIDATA INC – 04/22/2025 Page 3 of 16 PROJECT SERVICES # PROJECT SERVICE NAME TOTAL PRICE 1 LABOR $ 2,400 PROPOSAL STATEMENT OF WORK SCOPE OF WORK: • CHANGE ORDER FOR TRAVEL AND LABOR • 16 HOURS LABOR (2 DAYS LABOR) • AIRFARE • 2 DAYS LODGING, CAR RENTAL, PER DIEM LOCATION: BRIDGER GARAGE - SAAS BUSINESS UPGRADE WITH SERVER CO1 - TRAVEL & LABOR SYSTEM COMPONENTS # BUNDLE NAME UNIT PRICE QTY EXTENDED PRICE 1 DAILY TRAVELING EXPENSES - CAR RENTAL DAILY TRAVELING EXPENSES FOR CAR RENTAL. PRICE PER DAY $ 300.00 2 $ 600 2 DAILY TRAVELING EXPENSES - AIRFARE DAILY TRAVELING EXPENSES FOR AIRFARE. PRICE PER ROUND TRIP $1,000.00 1 $ 1,000 3 DAILY TRAVELING EXPENSES - HOTEL DAILY TRAVELING EXPENSES FOR HOTEL. PRICE PER NIGHT $ 400.00 2 $ 800 4 PER DIEM ALLOWANCE FOR MEALS ON INSTALLS REQUIRING TRAVEL $ 100.00 2 $ 200 Exibit A310 USA - Rev. 4/2025 Confidential SKIDATA INC – 04/22/2025 Page 4 of 16 1. This Proposal is subject to the Terms and Conditions attached hereto. 2. By signing the Proposal, Customer accepts both the Proposal and the applicable Terms and Conditions, which collectively form the agreement (“Agreement”) between Customer and SKIDATA (each individually a “Party”, jointly the “Parties”). 3. All terms of any purchase order or similar ordering document provided by Customer, including but not limited to pre- printed terms or references to links whether inconsistent, similar, or in addition to this Agreement or any portion of the Agreement are expressly rejected. 4. This Agreement becomes effective on the last date of signature (“Effective Date”). 5. If this Proposal is not signed within thirty (30) calendar days from the date of the Proposal, all pricing, service terms, project dates are subject to change and/or rescoping, at SKIDATA’s sole discretion. AGREED UNIVERSAL SKIDATA SIGNATURE: \s1\ SIGNATURE: \s3\ PRINTED NAME: \proposalsigner_1_\ PRINTED NAME: TITLE: \proposalsignertitle_1_\ TITLE: ORGANIZATION: \proposalsignerorg_1_\ ORGANIZATION: ADDRESS: ADDRESS: DATE SIGNED: \d1\ DATE SIGNED: \d3\ Exibit A311 USA - Rev. 4/2025 Confidential SKIDATA INC – 04/22/2025 Page 5 of 16 General Terms and Conditions 1. Scope. 1.1 These General Terms and Conditions (“Terms”) apply to non-subscription products. If products are provided on a subscription basis, SKIDATA’s Mobility Suite Subscription Terms and Conditions apply. 1.2 Customer has requested SKIDATA to provide hardware, software, consumables, or some combinations thereof (collectively “Product(s)”) and/or installation and maintenance services (“Services”) as defined in SKIDATA’s proposal (“Proposal”). Products and Services are collectively referred to as “Works”. SKIDATA agrees to provide the materials, equipment, and services for Customer as described herein and, in the Proposal. Customer is solely liable for any necessary permits from public authorities or other third parties required before SKIDATA is obligated to provide the Services. 2. Invoices. Unless expressly listed in the applicable Proposal, invoices are due Net 30 days from the date of the invoice. Without the consent of SKIDATA, Customer is not authorized to set-off, offset, withhold, or deduct payments or taxes from any amounts due or invoiced. License fees may be invoiced separately from other services based upon activation occurrence or similar variable events. Use of the goods or services may be subject to additional transaction fees as outlined in the Proposal schedule of values and which Customer agrees to pay. All recurring fees payable hereunder will be subject to upward adjustment on each January 1st beginning the year succeeding the Effective Date by an amount proportionate to inflation for the preceding 12-month period. The adjustment shall be based on the percentage change in the index known as the Consumer Price Index (CPI) for All Urban Consumers, U.S. city average, all expenditures except food and energy as published by the United States Bureau of Labor Statistics. 3. Default. 3.1 If Customer defaults under this Agreement SKIDATA may do any or all of the following: (a) require Customer to pay SKIDATA, on demand: (i) an administrative late charge of twenty-five USD ($25.00) for each invoice that includes past due fees and/or charges, (ii) all invoiced payments and other fees and charges then due and past due, if any, (iii) all payments to become due in the future through the remainder of the term, and/or (iv) interest on the amounts specified in clauses “ii” and “iii” at the lower of 1.5% per month or the highest rate permitted by law, from the date of demand to the date paid, (b) suspend its performance under this Agreement or under any other agreement between the Parties immediately upon written notice, (c) terminate the Agreement with immediate effect, if such default remains uncured for more than thirty (30) days, after receipt of a written notice of default, and (d) exercise any other remedy available to SKIDATA at law or in equity together with all costs, including attorney’s fees and expenses, incurred in the enforcement and collection of overdue payments. (e) Both the Customer, on its own, and any party of whom Customer is acting on behalf, shall be jointly and severally liable for any payment obligations under this Agreement. SKIDATA may seek payment from either or both parties, at its sole discretion, without waiving its rights or remedies against the other. 3.2 If SKIDATA fails to perform any material obligation under this Agreement, and such default remains uncured for more than thirty (30) days, Customer may do any of the following: (a) terminate this Agreement pursuant to section 9 herein and require SKIDATA to refund all amounts remaining or credited for Work not performed at time of termination; or (b) exercise any other remedy available to Customer at law or in equity. 3.3 Customer hereby grants to SKIDATA, a lien, security interest and right of set off as security for all obligations to SKIDATA, whether now existing or hereafter arising upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of SKIDATA or any entity under the control of SKIDATA (including a SKIDATA affiliate) or in transit to any of them. “Affiliate” shall mean any person that controls, is controlled by, or is under common control with a legal entity, where “control” means the ability to direct, directly or indirectly, or cause the direction of the management and policies of an entity, whether through the ownership of voting securities or otherwise. At any time after the occurrence and during the continuance of an uncured default, without demand or notice, SKIDATA may set off the Exibit A 312 USA - Rev. 4/2025 Confidential SKIDATA INC – 04/22/2025 Page 6 of 16 same or any part thereof and apply the same to any payment obligations of Customer even though unmatured and regardless of the adequacy of any other collateral securing the obligations. ANY AND ALL RIGHTS TO REQUIRE SKIDATA TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF UNIVERSAL ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. 3.4 A Party’s delay or omission in exercising any of its rights pursuant to this section does not constitute a waiver to enforce such rights. 4. Prices, Taxes and Expenses. 4.1 Prices are in US dollars and may be net of any taxes. Unless otherwise provided in the Proposal, Customer shall pay all prices, costs, expenses, taxes, duties, fees, or other charges of any nature (including, but not limited to, consumption, gross receipts, import, property, sales, stamp, turnover, use, or value-added taxes, and all items of withholding, deficiency, penalty, addition to tax, interest, or assessment related thereto, imposed by any governmental authority on Customer or SKIDATA or SKIDATA’s subcontractors) in relation to the performance of this Agreement (“Contract Sum”). If Customer is required to deduct or withhold taxes, Customer shall pay additional amounts so that SKIDATA receives the full price under the Agreement without reduction for Customer taxes. Within one (1) month of payment, Customer shall provide to SKIDATA all official receipts from the applicable governmental authority for deducted or withheld taxes. Except as otherwise specified in the Proposal and subject to Customer’s prior written approval, Customer shall reimburse SKIDATA for all reasonable out-of-pocket expenses incurred by SKIDATA in connection with the performance of the Services. Expenses may include travel, lodging, and meals and are reimbursed based on supporting, itemized receipts or invoices. SKIDATA will use commercially reasonable efforts to travel as efficiently and cost effectively as possible given timing and travel requirements. 4.2 In the event that any new tariffs, duties, import/export restrictions, or other governmental charges are imposed, modified, or increased after the effective date of this Agreement, and such changes materially affect the cost of goods sold under this Agreement, the affected Party shall notify the other Party in writing within thirty (30) days of becoming aware of the change. The Parties shall negotiate in good faith to equitably adjust the pricing, delivery terms, or other relevant provisions of this Agreement to fairly allocate the impact of such tariff changes. If the Parties are unable to reach a mutually acceptable resolution within thirty (30) days of the initial notice, either party shall have the right to terminate this Agreement with thirty (30) days’ written notice, without liability, except for obligations incurred prior to termination. This clause shall apply to all orders placed but not yet fulfilled at the time of the tariff change and shall remain in effect throughout the term of this Agreement. 5. Shipment. Unless otherwise specified in the Proposal, Products will be shipped EXW (facilities of any SKIDATA supplier), according to the Incoterms in its latest version. Customer is responsible for paying all actual charges associated with the shipment including all export and import duties, or other related costs. Any shipping dates provided by SKIDATA for any Product are estimates only. SKIDATA will use commercially reasonable efforts to meet requested delivery times. SKIDATA reserves the right to make deliveries in advance of the delivery schedule, in installments and allocate the delivery of Products among its Universals. Delay in delivery of one installment will not entitle Customer to cancel other installments. SKIDATA has the right to effect partial deliveries of consumables in case of production limitations. Customer must accept excess deliveries or short deliveries of up to ten (10%) percent of the ordered Consumable(s). Customer authorizes SKIDATA to choose the appropriate manner and means of all shipping of Products if a carrier is not designated in advance. If Products delivered do not correspond in quantity, type or price to those itemized in the shipping invoice or documentation, Customer shall notify SKIDATA within ten (10) calendar days after receipt. Failure by Customer to timely inform SKIDATA of any non-conforming Products shall waive any claims related therein and constitute acceptance. 6. Transfer of Title. Title to hardware and consumables will pass to Customer upon final payment for all invoices related to the Agreement. Title to software, either stand-alone or embedded into Product remains with SKIDATA or the applicable licensors. Customer’s rights and obligations related to software are stipulated in these Terms or in the license agreement between Customer and the applicable licensors. 7. Risk of Loss. Risk of loss will pass to Customer upon delivery. If any Product cannot be shipped to or received by Customer when ready due to any cause attributable to Customer, SKIDATA may ship the Products to a storage facility (including storage at the place of manufacture or repair) or to an agreed freight forwarder. If SKIDATA places Products or equipment into storage, the following will apply: (a) risk of loss immediately passes to Customer and delivery is deemed to have occurred; (b) any amounts otherwise payable to SKIDATA upon delivery or shipment will be due; (c) all expenses and charges incurred by SKIDATA related to the storage shall be payable by Customer upon submission of SKIDATA’s invoices; and (d) when shipment Exibit A313 USA - Rev. 4/2025 Confidential SKIDATA INC – 04/22/2025 Page 7 of 16 is possible and upon payment of all amounts due, SKIDATA shall release Products to Customer for delivery. If repair services are to be performed on Products at SKIDATA’s facility, Customer shall be responsible for, and shall retain risk of loss of such Products at all times, except that SKIDATA shall be responsible to the extent such damage is caused by SKIDATA’s gross negligence. 8. Term; Termination. 8.1 The Agreement becomes effective on the last date of signature (“Effective Date”) and continues until termination or completion of the Parties’ obligations arising out of the Agreement. 8.2 Notice of termination must be provided in writing to us.ar.contracts@skidata.com with a copy pursuant to the Notice provision herein. Failure to provide notice of termination as required herein shall result in Customer’s continued payment obligations under this agreement. 8.3 Either Party may terminate the Agreement with immediate effect if the other Party breaches any material terms or conditions of the Agreement and the breach remains un-cured for thirty (30) calendar days after receipt of written notice of the breach. In addition to the foregoing, SKIDATA may terminate the Agreement with advanced written notice of ten (10) calendar days if Customer becomes insolvent, enters bankruptcy, reorganization, experiences a change in control or other similar proceedings, admits in writing its inability to pay debts, or attempts or makes an assignment for the benefit of creditors. 8.4 The use of the Works may require Customer to enter into a separate stand-alone agreement with 3rd party providers, including but not limited to payment processors. Customer agrees that in the event Customer is unable to successfully contract for these necessary services prior to installation, this Agreement may terminate. 8.5 In the event that Customer terminates this Agreement as set forth herein, SKIDATA shall immediately turn over to Customer any and all Customer documents in the possession of SKIDATA relating to the Work. SKIDATA shall remove all SKIDATA owned equipment and materials from the project location specified in the Proposal and shall cease all work under the Agreement. Customer shall pay to SKIDATA all amounts owing for work performed to the date of termination. In the event that Customer terminates this Agreement prior to installation but after any equipment or materials has been manufactured, SKIDATA shall be entitled to retain any deposit as partial compensation and any costs related to or arising out of the termination including any restocking fees. 9. Commencement and Completion of Work. 9.1 Promptly after the Effective Date, SKIDATA shall provide Customer with a Schedule of Values setting the payment schedule for deposits, milestones, periodic payments, and project completion. In the event of a delay or suspension of service necessitating an adjustment in the schedule, SKIDATA will provide Customer with an updated project schedule upon request, together with an updated schedule of values. The warranty under Section 11 shall commence upon substantial completion. “Substantial Completion” is defined as the moment when the Work has been fully installed, commissioned, and is ready for use in accordance with SKIDATA’s written scope of work, even if punch-list items remain unresolved. For projects where the Work is executed in multiple phases, locations, or on a per-product basis, the warranty for each phase, location, or product shall commence upon its individual substantial completion, as determined exclusively by SKIDATA. 9.2 The Work, including performance under Section 11 Warranty, is to be performed between the hours of the day as approved and directed by SKIDATA together with Customer (e.g. 9:00 am to 5:00 pm). Any Work performed outside this time frame will be billed on a time and material basis. Time will be calculated in thirty (30) minute intervals with a minimum of one (1) hour for Work performed during covered hours and two (2) hours for any Work performed outside of covered hours. Customer agrees to pay all costs and expenses invoiced by SKIDATA for work performed as defined herein. 9.3 If Customer or any third party attributable to Customer causes a delay or suspension in performance of the Work for more than thirty (30) days from the initial scheduled date, SKIDATA may submit an amended schedule of values, pricing scheme, or Proposal to reflect the most accurate cost of goods and services. Customer acknowledges and agrees that any such delay in performance caused by Customer or any third party attributable to Customer may result in an increase in the Contract Sum and hereby accepts the risk and agrees to pay such adjusted costs. 9.4 The Customer shall ensure that all necessary system requirements are met at the time of delivery of the Works. SKIDATA will have no liability for the nonfunctioning of Products due to Customer’s failure to meet system requirements. For standalone, ongoing or multi-phase projects where the Works are delivered in stages, Customer shall immediately but no later than fourteen (14) calendar days ("Inspection Period") after Substantial Completion (i) inspect the Works for defects and Exibit A 314 USA - Rev. 4/2025 Confidential SKIDATA INC – 04/22/2025 Page 8 of 16 (ii) report any defects in writing to SKIDATA with a detailed description of the defect ("Objection Notice"). Failure to inspect or report within the Inspection Period shall result in acceptance of the completed phase, and any claims related to the condition, quality, or specifications of the Works, except for claims based on latent defects that could not have been reasonably discovered during the Inspection Period. Final acceptance of the entire project, including all Products and Services, will occur after the final phase is completed and inspected under the same terms. Acceptance of the Works shall constitute a waiver of any rights to withhold payment, make deductions, or claim offsets against SKIDATA, except as otherwise expressly provided in this Agreement. 10. Changes in Work. 10.1 Any and all changes to the Work, the Services, extra work, modifications, schedule changes, price adjustments to the fee for the Services and substitution of materials requests, must be documented by a written change order initiated by either Party. 10.2 All requests for additional performance or modification shall specify the exact nature of the changes to the scope of the Work and shall state the resulting increase or decrease of the contract sum, and any resulting change to the approved project schedule or completion date. All change orders must be signed by both parties and incorporated and made a part of the Agreement by reference. The obligations of SKIDATA shall not be adversely affected by the issuance of such change orders, additions, or deductions. 10.3 If the Parties are unable to agree to a revised fee, either Party may terminate this Agreement upon written notice. 11. Warranty, Remedies and Disclaimers. 11.1 Hardware. SKIDATA warrants that the hardware (i) is free from any material defects under normal use and service, wear and tear excepted, at time of delivery and (ii) substantially conforms with the Product documentation. The warranty period is twelve (12) months from the date of Substantial Completion. 11.2 Software. SKIDATA warrants that the software substantially conforms with the functionalities and characteristics described in the Product documentation. Customer acknowledges and accepts that it is technically impossible to produce software that is absolutely free of any defect and that the software, either stand-alone or embedded in the hardware, is provided by SKIDATA "as-is" and "with all faults”. SKIDATA makes no representations or warranties of any kind concerning the safety, suitability, inaccuracies, typographical errors, or other harmful components of the software. The warranty period is twelve (12) months from the date of Substantial Completion. 11.3 Services. SKIDATA warrants that at the time of performance the Services will be performed in a workmanlike and professional manner consistent with generally accepted industry standards. SKIDATA 11.4 Consumables and Spare Parts. SKIDATA warrants that Consumables and Spare Parts are free of material defects at time of delivery and substantially conform with the Product documentation. After delivery, Customer shall be responsible for the storage of all consumables in the original packaging and at the proper environmental conditions. SKIDATA is not liable for any printing or design errors if Customer released the respective proofs. The warranty period is twelve (12) months from the date of delivery to Customer. 11.5 At SKIDATA’s sole discretion, SKIDATA shall be entitled to conduct on-site support or remote support (access to Customer’s devices including Customer’s network(s), computers, or servers). Upon request and at the expense of SKIDATA, Customer shall ship defective SKIDATA Materials to SKIDATA’s designated location. Customer shall provide all necessary cooperation in the inspection and remediation of any claimed defects. SKIDATA shall fulfill its warranty obligations within a reasonable period of time. At SKIDATA’s sole discretion, SKIDATA shall repair, replace, grant a price reduction or refund the price paid for the defective SKIDATA Material or Service. Replaced parts become the property of SKIDATA. If the inspection reveals that there is no claim under the existing warranty, Customer shall bear all costs incurred in accordance with SKIDATA’s price list valid at the time of the inspection. For warranty-repaired Products and Services, the warranty period is the remainder of the initial warranty period or ninety (90) days, whichever is greater in duration. 11.6 On-site repairs will be carried out during regular business hours. Should repairs be required outside of these hours, they will incur additional charges, calculated on a time and materials basis. 11.7 SKIDATA provides the Services to Customer under the terms of this Agreement with the understanding that technology may evolve, and SKIDATA Materials may become obsolete over time. Should any hardware or software provided by SKIDATA become obsolete or unsupported by the manufacturer or licensor during the Term of this Agreement, SKIDATA Exibit A 315 USA - Rev. 4/2025 Confidential SKIDATA INC – 04/22/2025 Page 9 of 16 shall not be liable for the continued performance, functionality, or support of such hardware or software. In the event of obsolescence, SKIDATA may, at its sole discretion, offer replacement hardware or software that meets or exceeds the specifications and functionality of the obsolete product, subject to availability and upon agreement by both parties. Any replacement or upgrade may be subject to additional costs, which Customer agrees to bear. 11.8 The warranty according to this section is void if Customer or Customer’s end-user: (a) does not observe conditions for assembly, commissioning, storage or use of the Product; (b) allows third parties not authorized by SKIDATA’s written consent to carry out repairs, changes, maintenance, or other servicing of the Product; (c) uses the Product with components not certified by SKIDATA; (d) uses equipment (including but not limited to networks, supply lines, cabling) that does not function properly or supplies insufficient power to the Product; (e) does not carry out required site preparation or maintenance in a timely fashion; (f) is in default with the Agreement with particular respect to payment; (g) incurs damage to the Product as a result of accidents, power surge, or electromagnetic field; (h) if defects or damages are attributable to third-party components, internet/network disruptions, software viruses, inclement weather, chemical influences, a Force Majeure Event, vandalism, or any other acts or omissions of Customer or third parties; or (i) copies, publishes, transmits and/or distributes the Products and related content. 11.9 SKIDATA DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY ARISING OUT OF OR RELATING TO THIRD-PARTY MANUFACTURED PRODUCTS AND COMPONENTS. UNIVERSAL ACKNOWLEDGES AND AGREES THAT THERE ARE NO WARRANTIES OF ANY KIND EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, OTHER THAN THE MANUFACTURERS’ WARRANTIES REFERRED TO HEREIN. 12. Third-party Products. 12.1 The use of the Works may require 3rd party manufactured or provided products, services or accessories and/or other system requirements (”3rd Party Components“) in order to work in accordance with design specifications. The corresponding requirements are described in the documentation for the respective product. These 3rd Party Components may be supplemented or modified by SKIDATA at its sole discretion, however, Customer is responsible for obtaining, installing, maintaining, and operating any 3rd Party Components. For certain 3rd party Components, additional agreements may apply, which shall be observed by Customer. SKIDATA is not authorized and makes no guarantees or representations as to any 3rd party provided component or products. SKIDATA shall not be liable for damages or losses caused solely by 3rd Party Components. All costs and fees for 3rd Party Components shall be borne by Customer in addition unless otherwise agreed herein. 12.2 To the extent Customer wishes to obtain or use - in addition to the Works – 3rd party manufactured or provided products, services or accessories and integrate such 3rd Party Products into the Solution, Customer shall be solely responsible for ensuring all compatibility and compliance with this Agreement. In such cases, SKIDATA expressly disclaims any and all liability whatsoever without exception arising out of or related to in whole or in part to such 3rd party products. 12.3 The use of the Works may require Customer to enter into a separate stand-alone agreement with 3rd party providers, including but not limited to payment processors. Customer agrees that in the event Customer is unable to successfully contract for these necessary services prior to installation, this Agreement may terminate. 13. Software License. 13.1 Subject to the payment of the Contract Sum, SKIDATA grants Customer a non-exclusive, non-transferable, non- sublicensable right to use SKIDATA Intellectual Property Rights in the software limited to the term within the Proposal for use as part of Universals regular course of business within the territory specified in the Proposal and only in combination with the SKIDATA Product it is made for. Customer acknowledges, that even if software is made available to Customer on a physical data carrier, (a) SKIDATA remains the owner of the software and all Intellectual Property Rights relating thereto and (b) the source code is not part of the Agreement. 13.2 Software updates, service packs, hot fixes, and patches (collectively, "Updates") may be provided to Customer, as such are available, including at SKIDATA option to comply with the applicable laws, regulations and/or compatibility requirements such as security-related and operational standards developed by ISO or the PCI Security Standards Council, LLC. Software upgrades including new releases or versions of software (collectively, "Upgrades") may be offered to Customer, as such are available. Customer acknowledges that, according to the respective release planning, older versions of software may no longer be supported after the expiry of a certain period. SKIDATA is not obliged to provide Updates and/or Upgrades to Customer. Costs for installation of Updates and Upgrades shall be borne by Customer and are not included in the license fee, Exibit A316 USA - Rev. 4/2025 Confidential SKIDATA INC – 04/22/2025 Page 10 of 16 unless otherwise provided in the Proposal. Customer acknowledges, that Updates and Upgrades may alter the system requirements, and it may be necessary to install the respective predecessor Updates/Upgrades, third-party components and additional or altered hardware. Respective costs shall be borne by Customer and are not included in the license fee. Nothing in the Agreement requires Customer to install Updates or Upgrades but SKIDATA recommends their immediate installation. In case of non-installation of offered Updates or Upgrades, this could possibly endanger the security and operability of software and related systems and even infringe third-party licenses or laws; all consequences of non-installation are at the sole risk of Customer. Customer acknowledges and agrees that in the event Customer does not install Updates and/or Upgrades (a) SKIDATA is not liable for damages resulting from the non-installation and (b) warranty claims regarding the effected systems will automatically become void. 13.3 Customer is solely responsible for performing a backup of files and data before installing any Updates and Upgrades. SKIDATA is not liable for lost files, lost information or lost data and related damages. To the extent Customer is allowed to exchange hardware, Customer undertakes to fully and irretrievably remove software from the exchanged equipment and provide evidence for such removal. 13.4 Without the written consent of SKIDATA Customer shall not himself or allow any third party to: (a) reverse engineer, decompile, disassemble or otherwise reduce the software to any human perceivable form; (b) modify, adapt, translate or create derivative works based upon the software, the written materials accompanying the software, or any part thereof; (c) combine the software with any kind of open-source-software; (d) remove or manipulate copyright notices and other signs on the software copies; (e) use or permit the software to be used to perform services for third parties; (f) make or use any copies of the software, even if the software has been merged or included with other software, or any accompanying materials for any purpose other than as agreed in the Agreement; or (g) publish, transmit and/or distribute the Software Services and related content. If Customer creates a back-up copy in accordance with these Terms, Customer shall include all copyright notices and/or proprietary notices that are affixed to or appearing in the original copy. SKIDATA and persons authorized by SKIDATA are entitled to execute an audit by examining the systems, computers, books, records, and accounting records of Customer during normal business hours as far as they are connected to SKIDATA software. 14. Service Level Agreement (SLA). 14.1 For Cloud-Based Services the following availability is agreed: Availability 99.5% during the observation period 14.2 “Cloud-Based Services" are applications, information technology infrastructure components, monitoring, storage, or other internet-based functions that enable access from external service providers over the internet or other wide area networks. Cloud-Based Services will be provided together with on-premises servers to support information backup in the event of an interruption or disruption in service. 14.3 The observation period during which the availability shall be calculated is one calendar month. 14.4 SKIDATA will use commercially reasonable efforts to achieve the agreed availability and to provide the Cloud- Based Services in accordance with the standards of the hosting industry (the "Service Standards"). In the event of an interruption, disruption or error which results in a failure to meet the Service Standards and/or the agreed availability (collectively referred to as "Interruption"), SKIDATA shall make reasonable efforts, taking into consideration the causes and Customer’s technical environment, to resume Cloud-Based Services. 14.5 A period during which the Cloud-Based Services are unavailable due to an Interruption (a "Downtime") shall be calculated from the time SKIDATA becomes aware of an Interruption until the time SKIDATA restores availability. For avoidance of doubt, Downtime begins when Customer notifies SKIDATA of the Interruption. 14.6 SKIDATA shall have the right to monitor the Cloud-Based Services directly or through the service providers to ensure the accuracy of availability as determined solely by SKIDATA. Upon fourteen (14) days’ notice, Customer shall be entitled to request a copy of the availability report for the Solution covered under this Agreement. 14.7 Access to the Cloud-Based Services may be temporarily unavailable for reasons beyond SKIDATA's control such as, but not limited to, connection problems, server and/or network downtime. Such limitation of access to the Cloud-Based Exibit A317 USA - Rev. 4/2025 Confidential SKIDATA INC – 04/22/2025 Page 11 of 16 Services does not constitute a Downtime and shall not be considered an Interruption under this Agreement. 14.8 SKIDATA is entitled to block access to Customer's data, delete Customer's data and restrict or terminate reports, batch jobs and/or processes if (a) Customer's data violates this Agreement, (b) Customer uses excessive computer resources that affect the performance of the Cloud-Based Services for other participants, or (c) Customer's Data constitutes a security risk or could cause other serious damage. SKIDATA will use commercially reasonable efforts to inform Customer thereof. 15. Limitation of Liability. EXCLUDING CLAIMS FOR PERSONAL INJURY OR DEATH, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFIT OR REVENUE, LOSS OF OR USE OF DATA, OPERATIONAL EFFICIENCY, INJURY TO REPUTATION OR LOSS OF UNIVERSALS, ARISING UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION OR THEORY OF RELIEF, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDING CLAIMS FOR PERSONAL INJURY OR DEATH, ANY LIABILITY FOR DIRECT DAMAGES ARISING UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THEORY OF RELIEF, IS LIMITED TO THE PURCHASE PRICE OF THE PRODUCT THAT GIVES RISE TO THE CLAIM, OR IN THE CASE OF SERVICES, THE TOTAL AMOUNT PAID OR TO BE PAID FOR THE SERVICES THAT GIVES RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. 16. Indemnification. 16.1 SKIDATA shall indemnify, defend and hold harmless Customer, its officers, directors, employees, agents and Affiliates (“Customer Indemnities”) from and against any third-party claims, demands, actions, proceedings, lawsuits, costs, expenses, fees (including, without limitation, reasonable attorneys’ fees), judgments, settlements, penalties, (“Claim(s)”) directly arising out of the following: (a) a SKIDATA manufactured Product provided to Customer under the Agreement infringes any US (i) patent, (ii) copyright, (iii) trademark or (iv) trade secret; (b) the gross negligence or reckless misconduct of SKIDATA in connection with the performance of its obligations under the Agreement which result in an injury to persons or property; and (c) SKIDATA’s violation of applicable laws or regulations. 16.2 SKIDATA shall only indemnify Customer Indemnities from and against Claims, if Customer (a) promptly notifies SKIDATA in writing of the Claim, (b) makes no admission of liability, prejudicial statement, settle, compromise, or consent to the entry of any judgment with respect to any pending or threatened Claim and does not otherwise take any position adverse to SKIDATA, (c) gives SKIDATA sole authority to control the defense and settlement of the Claim, and (d) provides SKIDATA full disclosure and reasonable assistance as required to defend the Claim. Customer’s counsel will have the right to participate in the defense of the Claim at Customer’s own expense without setoff, reimbursement, or payment whatsoever from SKIDATA. 16.3 In the event a Claim is made under this section which in SKIDATA’s reasonable opinion is determined to be legitimate, SKIDATA at its discretion and sole expense will do the following: (a) secure for Customer the right to continue the use of the alleged infringing Product, (b) replace the alleged infringing Product with a substantially equivalent non-infringing Product, or (c) modify the alleged infringing Product to be non-infringing. In the event SKIDATA is unable to perform the options previously listed (a) through (c), Customer shall return the concerned Products to SKIDATA and SKIDATA shall refund Customer the amount paid for such item. 16.4 Customer acknowledges and agrees that SKIDATA has no indemnification obligations if: (a) any Product was in accordance with Customer’s sole design or specifications, (b) Customer or any third party attributable to Customer alter the Product and the Claim would not have occurred absent such alteration, (c) Customer or any third party attributable to Customer combine the Product with materials not supplied or approved by SKIDATA and the Claim would not have occurred absent such combination, (d) Customer continues to use the Product after receiving written notice from SKIDATA to stop using the Product, (e) the Claim arises out of Customer’s use of the Product in violation of this Agreement. In no case will SKIDATA be liable for any Claims arising out of Customer’s negligent, reckless, or willful conduct. 16.5 Customer shall indemnify, defend and hold harmless SKIDATA, its officers, directors, employees, agents, and Affiliates (“SKIDATA Indemnities”) for any and all expenses, including reasonable attorney’s fees, incurred by SKIDATA Indemnities in connection with any litigation, administrative action or government investigation involving Customer in which SKIDATA Indemnities are (i) obligated to provide testimonial, documentary or other evidence under any order, subpoena or other formal process or (ii) otherwise obligated under applicable law to take any action where failure to take such action could reasonably be expected to expose SKIDATA Indemnities to liability of any kind. Customer shall also indemnify, defend Exibit A 318 USA - Rev. 4/2025 Confidential SKIDATA INC – 04/22/2025 Page 12 of 16 and hold harmless SKIDATA Indemnities from and against all losses, costs, expenses, obligations, liabilities, and damages, including interest, regulatory and other fines, penalties, reasonable attorneys’ fees and costs that result or arise from Customer’s violation of any applicable law(s). 16.6 SECTION 14, THE INFRINGEMENT SECTION IS SKIDATA’s ENTIRE LIABILITY AND UNIVERSAL’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO UNIVERSAL’S INABILITY TO USE THE PRODUCTS OR ANY PORTION OF THE PRODUCT DUE TO ANY CLAIM. 17. SKIDATAT’s Intellectual Property. 17.1 “Intellectual Property” means any and all information developed by SKIDATA in relation to Works or otherwise and includes trademarks, copyrights, service marks, trade names, logos, domain names, designs, emblems, insignia, fascia, slogans, videos, applications, know-how, information, patents, trade secrets, standards, specifications, techniques, teaching methods, schemes and materials, management methods, standard operational procedures, drawings, architectural plans and layouts, equipment standards, training manuals, user manuals, books and catalogues, handbooks, curricula, advertising and marketing material including leaflets, brochures, posters, stickers and flyers, and other material(s) and/or creation(s) irrespective of the medium and format (including inter-alia through a web platform), whether or not registered or capable of registration and all other proprietary rights whatsoever, whether owned by or available to SKIDATA now or in future, anywhere in the world. 17.2 “Intellectual Property Rights” means (i) all possible rights, benefits, title or interest in or to Intellectual Property, anywhere in the world (whether registered or not) including all rights provided by international treaties and conventions, rights of distribution, reproduction and all other exploitation rights, (ii) any goodwill in relation to or in connection with Intellectual Property, (iii) any licenses, permissions and grants in connection with Intellectual Property; (iv) applications, extensions and renewals for registered Intellectual Property and the right to apply for them in any part of the world, (v) the right to obtain and hold appropriate registrations for Intellectual Property, (vi) causes of action in the past, present or future, related thereto including the rights to damages and profits, due or accrued, arising out of past, present or future infringements or violations thereof and the right to sue for and recover the same. 17.3 SKIDATA and/or its licensors are exclusively entitled to all Intellectual Property. For the avoidance of doubt, SKIDATA retains all right, title and interest in any pre-existing or new Intellectual Property which may be used in performance of the Agreement, including any modifications or improvements made during the performance of the Services. To the extent Intellectual Property is embodied in any deliverable, SKIDATA grants Customer a non-exclusive, royalty-free, non-transferable, non-sublicensable, license to use such Intellectual Property as is necessary to use the deliverable for Customer's general business purposes in accordance with this Agreement. 17.4 Customer warrants and represents that it has the intellectual property rights, including but not limited to, lithographs, print layouts, writings, or fonts of any kind, provided by Customer for performance of the Works. To the fullest extent available under the law, Customer expressly indemnifies and holds SKIDATA Indemnities harmless in respect of any claims or proceedings arising out of intellectual property infringement by Customer. 18. Data Protection; Consumer Privacy Laws; Remote Access Support. 18.1 Customer´s Data shall remain the property of Customer. To the extent SKIDATA has access to Customer’s data or devices, SKIDATA may collect, forward, and use Customer’s data for (a) fulfilment of this Agreement, (b) improvement of product and services, and (c) billing or general Customer service purposes. SKIDATA may transfer such data to affiliated companies, or third parties commissioned to process data for SKIDATA insofar as it is related to performance or to make improvements to the Solution. The Customer acknowledges and accepts that SKIDATA uses certain software (called "Connected Asset Management" or "CAM") for the purpose of improving service quality, which collects system data – such as, but not limited to, topology, Hardware and Software version and serial numbers, status of the Software, and time of installation – from Customer. 18.2 In order to troubleshoot and diagnose any potential issues with the product and services, Customer agrees to allow SKIDATA remote access to Customer’s devices including Customer’s network(s), computers, or servers. Remote access shall be conducted only through SKIDATA’s authorized software solutions. Any Customer provided remote access software is Exibit A 319 USA - Rev. 4/2025 Confidential SKIDATA INC – 04/22/2025 Page 13 of 16 specifically rejected and shall not be utilized at any time. 18.3 SKIDATA may make backup copies of Customer’s Data, the transaction history, and other relevant information at SKIDATA’s own discretion to comply with applicable laws and regulations. However, SKIDATA is not otherwise obliged to preserve Customer Data outside the terms of this Agreement. Any retention of Customer Data and associated risk of loss, other than as outlined below shall be at Customer’s sole risk. In the event Customer desires a backup copy of Customer Data for Customer’s personal use, Customer may request a backup copy be provided at Customer’s cost and Customer shall be responsible for retention and protection of any and all copies. 18.4 SKIDATA shall store Customer’s Data for the period agreed in the Documentation. The Storage of Customer’s Data beyond the period stipulated in the Documentation requires a separate agreement between the Parties. SKIDATA backup copies of Customer’s Data serve exclusively to restore the Solution in the event of a system failure, sabotage, or other damaging event which may otherwise render the Solution unusable. SKIDATA backup copies are not used as data storage and therefore will not extend the storage period stated in the Documentation. After expiry of the storage period stipulated in the Documentation, SKIDATA is entitled to dispose of Customer’s Data without consulting Customer. Customer acknowledges and agrees that SKIDATA may take anonymization measures instead of deleting Customer’s Data. In this occasion SKIDATA shall carefully anonymize Customer´s Data so that it can no longer be associated with Customer; and SKIDATA may use this anonymized information to improve its services. 18.5 Customer acknowledges and agrees, that SKIDATA is entitled to compile and retain Aggregate Data and Analytics Data for purposes of (a) operating, maintaining, analyzing and improving existing Cloud Based Services and (b) researching and developing new Cloud Based Services. "Aggregate Data" means anonymized information and data collected or submitted in the course of accessing and using the Cloud Based Services by Customer. "Analytics Data" means the analysis of the use of Cloud Based Services by Customer. SKIDATA owns all rights in and to Aggregate Data and Analytics Data, provided that such Aggregate Data and Analytics Data are anonymized in such a manner that neither Customer nor any end user can be identified. 18.6 After termination of the Agreement, Customer may choose whether to have its Customer, sales, access and revenue data (or in certain cases invoice data): (a) handed over in machine readable format; (b) remain stored with SKIDATA for a reasonable fee; or (c) be irrevocably deleted or anonymized. 18.7 Not more than once per quarter, SKIDATA shall provide Customer with a data export of its sales, access and invoice data in a readable format free of charge upon written request. The costs for data exports in excess of this shall be charged to Customer on a time and material basis. 18.8 Both Parties will comply with all applicable industry standards concerning privacy, data protection, confidentiality and information security, including, without limitation, the then-current Payment Card Industry Data Security Standard of the PCI Security Standards Council (the PCI-DSS); ISO/IEC 27001; and all applicable federal, state, and local laws, rules, and regulations, as the same may be amended or supplemented from time to time, pertaining in any way to the privacy, confidentiality, security, management, disclosure, reporting, and any other obligations related to the possession or use of Personal Information, including without limitation, the Gramm-Leach-Billey Act (“GLBA"), 15 U.S.C. §§ 6801-6827, and all regulations implementing GLBA; the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., as amended by the Fair and Accurate Credit Transactions Act ("FACTA"), and all regulations implementing FCRA and FACTA; the Controlling the Assault of Non-Solicited Pornography and Marketing Act )CAN-SPAM"); security breach notification laws (such as Cal. Civ. Code §§ 1798.29, 1798.802 - 1798.84 ); laws imposing minimum security requirements (such as 201 Mass. Code Reg. 17.00); laws requiring the secure disposal of records containing certain Personal Information (such as N.Y. Gen. Bus. Law § 399-H). 19. Confidentiality. 19.1 "Confidential Information” means information disclosed by one Party to the other Party either directly or indirectly, in writing, orally or by drawings or inspection of samples, equipment or facilities; including without limitation (a) information identified by the disclosing Party, in writing or orally, as confidential at the time of disclosure; (b) information relating to the disclosing Party’s technologies, products, solutions and services used, provided and/or owned by the disclosing Party; and (c) the content and terms of the Agreement. Confidential information does not include information that (i) is known to the receiving Party before receipt from the disclosing Party, directly or indirectly, without an obligation of confidentiality to the disclosing Party, (ii) is legally obtained by the receiving Party from a third party without an obligation of confidentiality Exibit A 320 USA - Rev. 4/2025 Confidential SKIDATA INC – 04/22/2025 Page 14 of 16 to the disclosing Party, (iii) is or becomes publicly known or otherwise ceases to be confidential without violation of this section by the receiving Party, (iv) is independently developed by the receiving Party, or (v) is required to be disclosed in order to comply with a judicial order or decree, request of an arbitral court, provided that the receiving Party shall use its best efforts to maintain the confidentiality of the Confidential Information, e.g. by asserting in such action any applicable privileges, and shall, immediately after gaining knowledge or receiving notice of such action, notify the disclosing Party thereof and give both Parties the opportunity to seek any other legal remedies so as to maintain such Confidential Information in confidence. Communication of information to financial institutions and their professional advisors in the context of the assignment of receivables do not constitute a breach of confidentiality. 19.2 The receiving Party agrees not to use any Confidential Information for any reason except to the extent necessary in connection with the Agreement. The receiving Party agrees that it will take all reasonable measures to protect the secrecy of and avoid disclosure and use of Confidential Information of the disclosing Party in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have any such Confidential Information, which measures shall include the highest degree of care that the receiving Party utilizes to protect its own Confidential Information of a similar nature, but in any event not less than a reasonable degree of care. The receiving Party will not disclose any Confidential Information of the disclosing Party to third parties, except to its Affiliates, employees, officers, directors, consultants, attorneys, accountants and other advisors who are required to have the information in order to carry out discussions and activities under this Agreement (“Representatives”). As an express condition to any disclosure of Confidential Information, the receiving Party will advise its Representatives who have access to the disclosing Party’s Confidential Information of their confidentiality obligations under this Agreement and will ensure that they are bound by obligations of confidentiality to the same extent that the receiving Party is bound under this section. The receiving Party shall be liable to the disclosing Party for all breaches by the persons who will be given access to the Confidential Information by the receiving Party. The receiving Party agrees to notify the disclosing Party promptly in writing of any misuse or misappropriation of Confidential Information of the disclosing Party that may come to the receiving Party’s attention. Upon written request by the disclosing Party, the receiving Party will promptly return all Confidential Information, including copies, to the disclosing Party. 20. Force Majeure. 20.1 Neither Party will be responsible for any failure to perform (other than performance of any obligation to make any payment) or delay in performing its obligations under the Agreement or for damages or losses resulting therefrom, due to causes which are unavoidable and beyond the reasonable control of a Party to the extent it causes such Party to be unable to comply with any or all its obligations under the Agreement. 20.2 Such circumstances may include but are not limited to the following (each a “Force Majeure Event”): natural disasters, pandemics, epidemics, diseases, acts or threats of terrorism, cyber-attacks, outbreak of viruses, fire, flood, explosion or other similar or dissimilar acts of God, acts of war, hostilities (whether war be declared or undeclared), strikes or other matter beyond the reasonable control of the Party claiming benefit under this section, embargo or other acts of governmental or quasi-governmental restrictions or intervention, political instability, public disorder, discontinuity of internet, satellite access or other distribution network access or other similar or dissimilar events (and in the case of SKIDATA, scarcity of personnel and/or raw materials, accidental destruction of substantial goods at SKIDATA’s premises, disruption to SKIDATA’s manufacturing, sourcing and/or delivery process, or any of the foregoing occurring to SKIDATA’s suppliers, subcontractors and/or agents). 20.3 If a Force Majeure Event occurs, then the Party affected will as soon as reasonably practicable notify the other Party in writing of the nature and likely duration of the Force Majeure Event and take all reasonable steps to reduce its effect (but without incurring unreasonable additional costs). 20.4 If the Force Majeure Event continues for more than one month, the Parties shall use their reasonable efforts to amend the Agreement in such a way that it allows the performance thereof. If despite said reasonable efforts no agreement can be found for the amendment of the Agreement and the Force Majeure Event subsists for more than two additional months, then either Party shall be entitled to terminate the Agreement immediately upon written notice to the other Party with no further obligation or liability other than for amounts due and payable hereunder prior to the date of this termination. 21. Insurance. Each Party shall provide and maintain at its own expense the following insurance against liability arising in any Exibit A 321 USA - Rev. 4/2025 Confidential SKIDATA INC – 04/22/2025 Page 15 of 16 way from the Agreement: (a) commercial general liability insurance (including but not limited to contractual liability insurance) in a sum no less than $1,000,000 for any one occurrence and (b) workers’ compensation in compliance with the laws of the state(s) wherein the operations will occur, with employers liability insurance in the reasonable amount for each accident, and for each employee. All insurance policies will be issued by companies licensed or authorized to transact business in the state(s) where operations will occur. On a Party’s request, the other Party shall provide such Party with a certificate of insurance from the other Party’s insurer evidencing the insurance coverage specified in this section. The certificate of insurance shall name the other Party as an additional insured. Each Party shall provide the other Party with 30 days advance written notice in the event of a cancellation or material change in its insurance policy. 22. Miscellaneous. 22.1 Governing Law and Dispute Resolution. Except for any equitable relief and claims for payment, any dispute, controversy or claim arising out of or in relation to the Agreement, including the validity, invalidity, breach or termination, will be resolved by arbitration in New York under the Commercial Arbitration Rules of the American Arbitration Association (AAA). The tribunal will consist of a single arbitrator to be chosen under the AAA rules. The language of the arbitration will be English. The award will be final and binding on the Parties and will also include legal fees, costs of arbitration and all related matters. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The Agreement is governed by the laws of the State of New York, without regard to its choice of law provisions. The courts of New York County, New York, shall have exclusive jurisdiction over any litigation. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply to this Agreement. 22.2 Subcontracting. SKIDATA is permitted to subcontract the performance of all or any portion of the Services to any subcontractor that has the requisite skill and expertise to complete the work. If Customer requires its choice of subcontractor, Customer shall (i) verify provision of adequate insurances of the types and values SKIDATA requires, and (ii) indemnify SKIDATA from and against any claim or allegation that arises from Customer’s requested subcontractor’s performance of services or presence in SKIDATA’s facility. 22.3 Entire Agreement. This Agreement (a) is a final, complete, and exclusive statement of the agreement and understanding of the Parties with respect of the subject matter hereof, (b) constitutes the entire agreement of the Parties with respect to the subject matter hereof, and (c) supersede, merge, and integrate herein any prior and contemporaneous negotiations, discussions, representations, understandings, and agreements between any of the Parties, whether oral or written, with respect to the subject matter hereof. 22.4 Conflicting Terms. All terms of any purchase order or similar ordering document provided by Customer, including but not limited to pre-printed terms or references to links whether inconsistent, similar, or in addition to this Agreement or any portion of the Agreement are expressly rejected. Any other additional or inconsistent terms or conditions in a purchase order or course of dealings between the Parties or usage of trade are expressly disclaimed and rejected. This Agreement shall control and take precedence over any previously or subsequently executed agreements or understandings regarding the subject matter of this Agreement. 22.5 Assignment. Customer shall not assign or transfer this Agreement or any of its rights or obligations hereunder, to any other person or entity, whether by written agreement, operation of law or otherwise, without the prior written consent of SKIDATA. Any purported assignment or transfer by Customer without SKIDATA’s prior written consent will be void. SKIDATA may freely assign this Agreement, including any of its rights hereunder, and it may freely delegate its obligations hereunder, in each case to any of its Affiliates and/or to any person or entity that acquires SKIDATA or all or substantially all of SKIDATA’s assets related to the products and services provided under this Agreement. In addition, SKIDATA may also freely assign or transfer any receivables from Customer under this Agreement. This Agreement is binding upon, and inures to the benefit of, the Parties and their respective successors and permitted assigns. 22.6 Amendment. This Agreement can be amended or modified if, and only if, such amendment is in writing and is signed by each Party. 22.7 Waiver. No failure or delay by any Party in exercising any of such Party’s rights, powers, or privileges hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder or otherwise. Exibit A 322 USA - Rev. 4/2025 Confidential SKIDATA INC – 04/22/2025 Page 16 of 16 22.8 Survivability. The terms and conditions of the Agreement which by sense and content are intended to survive, including payment, warranties and disclaimers, confidentiality, indemnification, and limitation of liability, shall survive the expiration or termination of the Agreement. No claims arising out of this Agreement shall be brought more than two years after the completion or termination of this Agreement. 22.9 Severability. If any portion or provision of the Agreement is to any extent determined to be illegal, invalid, or unenforceable by a court of competent jurisdiction, then the remainder of the Agreement, and the application of such portion or provision in circumstances other than those as to which it is so determined to be illegal, invalid, or unenforceable, as applicable, will not be affected thereby. 22.10 Contra Proferentem. Each Party acknowledges that it has been represented by counsel under this Agreement or had the opportunity to consult with counsel. Accordingly, any rule of applicable law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting party has no application and is expressly waived. 22.11 Authority to Sign. The individual(s) executing this Amendment on behalf of each party is/are authorized to execute this Agreement on behalf of said party. Each party has taken all actions required by law to approve the execution of this Agreement. 22.12 Interpretation. Titles, captions, and headings included herein are for convenience of reference only and are not to affect the meaning, construction, or interpretation hereof or of any provision hereof. 22.13 Attorney’s Fees. In the event of any litigation, arbitration or any judicial proceeding arising as a result of the breach of the Agreement, the Party prevailing in such litigation or judicial proceeding will be entitled to collect the costs and expenses of bringing or defending such litigation or proceeding, including reasonable attorneys' fees, from the Party not prevailing. 22.14 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be considered an original but altogether constitute the same instrument. Acceptance of this Agreement may be made in electronic form showing the signatures of both parties. The Parties agree that electronic signatures are legally valid, effective, and enforceable. 22.15 Compliance with Applicable Laws. Each Party covenants and agrees to comply with all applicable state, local, and federal laws during the Term of this Agreement and thereafter as may be applicable. 22.16 Trade Compliance. The Customer confirms that it will do its utmost to act in compliance with Economic Sanctions and Export Control Laws, and that neither the Customer, nor, so far as the Customer is aware, any agents or other persons acting on behalf of any of the foregoing is, or has been, listed on any US, EU, UN or UK sanction list. The Customer shall not sell, export or re-export, the product, directly or indirectly, to Russia, Belarus, Iran, North Korea, Syria or occupied parts of Ukraine. The Customer shall undertake its best efforts to ensure that the purpose of this section is not violated by any third parties further down the commercial chain. Any violation by the Customer of this clause constitutes a material breach of an essential element of this Agreement, and SKIDATA, its officers, directors, employees, agents and Affiliates shall be entitled to appropriate remedies, including, but not limited to: (1) termination of this Agreement; (2) a penalty of [25%] of the total value of this Agreement or price of the goods exported, whichever is higher; and (3) indemnification of SKIDATA, ASSA ABLOY Group and its officers, directors, employees, agents and Affiliates. 22.17 Non-Discrimination. Each Party agrees that it will not discriminate on the basis of race, color, national origin, disability, age, or military service in its administration of policies, programs, services and activities, or in employment. 22.18 Notices. All notices to be given in connection with this Agreement shall be in writing and shall be effective when delivered to SKIDATA or Customer, as may be the case, at their respective addresses set forth in this Agreement. Date of delivery shall be, as applicable, (1) when delivered, if personally delivered (2) forty-eight (48) hours after posting, if sent by certified mail, return receipt requested, postage prepaid, and (3) the next business day after deposit with the courier company, if sent by overnight courier. Exibit A 323 Memorandum REPORT TO:City Commission FROM:Brian Heaston, Senior Engineer Shawn Kohtz, Director of Utilities SUBJECT:Authorize the City Manager to Sign a Task Order 2 with Hydrosolutions Inc to Provide a Valuation Update for the City's Cash-in-Lieu of Water Rights MEETING DATE:May 13, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign Task Order 2 with Hydrosolutions Inc to Provide a Valuation Update for the City's Cash-in-Lieu of Water Rights. STRATEGIC PLAN:6.1 Clean Water Supplies: Ensure adequate supplies of clean water for today and tomorrow. BACKGROUND:Resolution 4095, passed in 2008, establishes the City’s cash-in-lieu water rights (CILWR) valuation at $6,000/acre-foot. The valuation was set at the market rate the City was paying for municipal water rights in Hyalite Reservoir at that time. The CILWR valuation has not been updated since passage of resolution 4095. The demand for municipal water rights in the Gallatin Valley has increased since 2008 placing an upward trend on the price a water right holder can command in a transactional setting. An update to the CILWR valuation is necessary to ensure the City’s CILWR revenues keep pace with increasing municipal water right values. Payment of CILWR is an authorized means of compliance under the City’s water adequacy code, Sec. 38.410.130 Bozeman Municipal Code. The water adequacy policy requires new municipal water demands associated with a proposed development to be offset by the development applicant prior to development approval. The City restricts the use of revenues received through CILWR payments to acquire useable municipal water rights. Water rights purchased using CILWR augment the City’s legal water supply portfolio. The CILWR tool has enabled the City to secure a legal water supply that has reliably sustained market-driven growth and development since the water adequacy policy was established in 1984. Attached to this memorandum is Task Order 2 which provides a valuation update for the City’s CILWR. This task order is being authorized under the master task order professional services agreement with Hydrosolutions Inc. Hydrosolutions is under contract to provide professional water rights consulting services on an as-needed basis. Hydrosolutions will subcontract 324 with WestWater Research to perform a municipal water right market analysis to evaluate municipal water right values for comparable communities in Montana and other western states. WestWater Research is an industry leader in municipal water right valuations. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:Task Order 2 will be funded by the CILWR account within the Water Enterprise Fund. The negotiated fee for the task order scope amounts to $43,910. The CILWR account balance is adequate to cover this expense. Attachments: Task Order 2_Hydrosolutions_Combined.pdf Report compiled on: May 1, 2025 325 Exhibit A to Professional Services Master Task Order Agreement TASK ORDER NUMBER 2 Issued under the authority of Professional Services Master Task Order Agreement between the City of Bozeman and HydroSolutions Inc. for: Professional Water Right and Hydrogeology Consulting Services. This Task Order is dated May 13 , 2025 between City of Bozeman (City) and HydroSolutions (Contractor). The following representatives have been designated for the work performed under this Task Order: City: Brian Heaston, P.E. Contractor: Russ Radliff SCOPE OF WORK: (attach additional sheet(s) as required) Cash-In-Lieu of Water Rights Valuation Update, see attached Task Order 2 Scope of Work COMPENSATION: Contractor shall be reimbursed on a Time & Material basis not to exceed $43,910.00. Contractor shall invoice no more often than monthly for services provided in the prior month. The provisions of the Professional Services Master Task Order Agreement and any Special Terms and Conditions and/or Exhibits or Attachments to this Task Order shall govern the Work. IN WITNESS WHEREOF, the parties authorized to commit resources of the companies have executed this Task Order: City of Bozeman Contractor By: By: Title: Interim City Manager Title: President Date: Date: 326 HELENA: 406.443.6169 | 303 Clarke St. | Helena, MT 59601| BILLINGS: 406.655.9555 | 2912 7th Ave N. | Billings MT, 59101 www.hydrosi.com MEMORANDUM Date: March 19, 2025 To: Brian Heaston, PE, Senior Engineer, City of Bozeman From: HydroSolutions Inc Subject: Task Order 2 Scope of Work, Cash-In-Lieu of Water Rights Valuation Update In accordance with our Professional Services Master Task Order Agreement, dated November 19, 2024, HydroSolutions Inc (HydroSolutions) presents this Task Order 2 scope of work. BACKGROUND The City of Bozeman (City) adopted Commission Resolution No. 4095 on March 17, 2008. This resolution established a valuation for Cash-In-Lieu of Water Rights (CIL) at a fee of $6,000.00 per acre-foot of water. As described in the resolution it is the City’s policy for property owners of new or annexed property developments to acquire usable water rights equal to the average annual volume of water consumption of the fully developed property. If property owners are unable to provide such water rights, the resolution provides a cash-in-lieu of fee that is to be paid to the City. The fee will be used to acquire water rights for improvements to the water system which will create additional water supply capacity. The resolution states that the cash-in- lieu of water rights fee shall be reviewed at least bi-annually, and when necessary, updated by the City Commission. SCOPE OF WORK Per your request, the purpose of this Task Order is to provide a basis for the City Commission to update the CIL. The scope of work for this Task Order includes the following: 1. Project management, communications, review of existing information, and a meeting with you to further focus research efforts and gather specific data and information. 2. Management and oversight of subconsultant WestWater Research LLC (WestWater). WestWater is an economic consulting firm specializing in water market research, pricing, advisory, and trading; and has experience with CIL programs in municipalities in the Western U.S. WestWater’s proposal is attached which details their proposed scope of services, budget, and deliverables. Our role with WestWater will be to provide context of the local conditions in the water market, existing and proposed water regulations, and water supplies; coordinate and review all WestWater’s work products; and to serve as the conduit between them and the City. 3. Conduct limited independent research of water right values and escalation rates appropriate for the Bozeman area. Research areas may include the following: a. Comparable water right sales through communications with other consultants and entities (e.g. Gallatin Water Trust, sub-consultant) 327 HydroSolutions PSA | Task Order 2 Scope of Work 2025.03.19 | Page 2 b. Escalation of City municipal water consumption fees c. Changes in real estate prices in the Bozeman area. This could be done through consultation with a realtor or real estate appraiser. d. Increase in cost of ditch shares from local irrigation companies or irrigation districts. e. Cost for water right mitigation in other developing areas in Montana (e.g. Grass Valley French Ditch Company in the Missoula area) f. Discussions with State agencies (e.g. Montana DNRC) g. Other areas directed by you. 4. Reporting. Reporting includes preparation of a memorandum presenting a summary of the research completed and our professional opinion of an updated CIL fee. Draft and final versions of the memorandum will be provided. Our memorandum will provide an assessment of WestWater’s analysis and recommendations, which will be provided in a separate memorandum. 5. Presentation of findings to the City Commission. ASSUMPTIONS AND LIMITATIONS This scope of work includes the following assumptions and limitations: • The City will provide internal documents, reports, and information useful and necessary for completing this work. • Only the most useful research areas will be pursued and reported. • The level of effort expended will be based on the approved Task Order budget. BUDGET A summary of HydroSolutions’ budget by scope item number is provided below: Scope Item Unit Number Total Scope Item 1. Review and Meetings hour 18 $ 2,934.00 Scope Item 2. WestWater-Management hour 12 $ 1,956.00 Scope Item 3. Conduct Research hour 36 $ 5,868.00 Scope Item 4. Reporting hour 34 $ 5,542.00 Scope Item 4. Presentation to Commission hour 15 $ 2,625.00 Sub Total $18,925.00 WestWater Research subconsultant each 1 $24,985.00 Total for Task Order $43,910.00 SCHEDULE The City has requested that this Task Order be completed four months after execution of the Task Order. Attachments: 1. WestWater Research, Proposal-Bozeman Cash-in-Lieu Review and Update, March 17, 2025. 328 Main Office 3858 N Garden Center Way #205 Boise, ID 83703 California 2012 H St. #100 Sacramento, CA 95811 Northwest 20522 NE 116th Cir. Brush Prairie, WA 98606 Southwest 4747 N 7th St. #412 Phoenix, AZ 85014 Rocky Mountain 205 S Meldrum St, Fort Collins, CO 80521 Proposal Background & Purpose The City of Bozeman, Montana (City) requires that developers either dedicate adequate water rights to supply any new development or pay a cash-in-lieu (CIL) fee, which essentially allows developers to buy into the City’s existing water rights portfolio. The cash-in-lieu rate was set by the City of Bozeman in 2008 at $6,000 per acre-foot (AF) and has not been updated in the intervening years.1 An appropriately determined CIL can serve to finance the cost of acquiring new water rights and ensure cost recovery for the existing water rights portfolio. The City maintains an on-call water rights consulting contract with HydroSolutions, to whom they expressed an interest in updating the CIL. HydroSolutions has requested a proposal from WestWater Research, LLC (WestWater) to lead the CIL revision effort. The City has requested that the updated CIL be based exclusively on raw water supply and should therefore not consider any costs associated with raw water storage or conveyance infrastructure. WestWater is uniquely qualified and well positioned to conduct the CIL revision. WestWater has extensive experience and familiarity with Montana’s water markets, and routinely analyzes supply, demand, competition, and price trends for clients in the Gallatin Valley and surrounding areas. In recent years WestWater has completed CIL revisions for two of Colorado’s largest and fastest growing municipalities and conducted multiple valuations of water rights in Montana’s Gallatin Valley. The contents of this proposal are organized as follows: • Scope of Services • Deliverables • Timeline • Project Budget 1 Bozeman City Commission Resolution No. 4095 To: Russ Radliff, HydroSolutions From: WestWater Research, LLC Date: March 17, 2025 Re: Proposal – Bozeman Cash-In-Lieu Review & Update 329 Proposal – Bozeman Cash-In-Lieu Review & Update Page 2 Scope of Services The following tasks are proposed to revise the City’s CIL. Task 1: Project Meetings & Coordination (Including Project Kickoff Call) WestWater will participate in a project kickoff call with HydroSolutions and City staff to discuss the CIL revision project and obtain relevant information and inputs to support the work. This call will also serve to resolve any outstanding questions regarding the timeline, deliverable expectations, and to discuss and refine the approach. Additional meetings will be scheduled, as needed, between HydroSolutions and WestWater to provide research updates and address questions as they arise. Task 2: Review Current CIL Methodology & Background Documentation Prior to the kickoff call, WestWater will review background information on regional water markets, regional water supply charges, and any documentation provided by the City supporting the current CIL determination. Additionally, WestWater will review industry best practices (such as the American Water Works Association Manual for Water Supply Practices) and any state or local regulations affecting water supply rate setting. WestWater will rely on its record of past water rights and storage transactions to gage pricing trends, transaction structures, and overall market activity. Task 3: Water Market Assessment Appropriately pricing the CIL is inextricably tied to the regional water rights market. WestWater will assess the regional water market to develop an understanding of water right sales and market prices, and assess municipal CIL fees across the region by analyzing the following: • Water Regulation: Existing regulations impacting new water uses, water rights, and CIL fees will be presented to provide context for the demand and availability associated with existing water rights and regional CIL fees. The assessment includes a review of regional water supplies, the local regulatory management of water rights, regional CIL fee structure and pricing levels, and the challenges for new water right applicants in the region. • Water Supply and Demand Analysis: WestWater will provide an analysis of regional water supply and demand conditions to understand the location, type, and extent of future water supply needs and shortages. The water supply and demand analysis will utilize state and local water plan reports and any publicly available datasets. The objective is to understand and characterize regional market demand for new water supplies, particularly for new home development, based on available information. Task 4: Determination of an Updated CIL WestWater will revise the City’s CIL to meet contemporary and projected home development and water market conditions. Carrying out this task will entail the following steps: Valuation of the City’s Existing Water Portfolio For each of the City’s raw water rights, WestWater will assess the current value and yield assignment in terms of cost recovery and reliability. The current fair market value of the portfolio will be estimated based on the comparable sales approach. WestWater maintains Waterlitix™, the largest database of water rights transactions in the western U.S., including Montana. Beyond this database, WestWater will conduct additional market research to identify additional transactions within the 330 Proposal – Bozeman Cash-In-Lieu Review & Update Page 3 market region. Past prices paid will be adjusted using current price indices and an appropriate interest rate for assurance of full cost recovery. Price Perspective for Acquisition of New Water Rights or Supplies WestWater will estimate current and near-future price expectations for water right acquisitions. This price perspective will be based on the water market assessment conducted for Task 3 and WestWater’s regional water rights appraisal experience, relying primarily on the comparable sales approach, as described above. Selection of CIL Calculation Approach In collaboration with HydroSolutions and the City, an overall CIL determination approach will be selected. There are many accepted practices and methodologies for development of a cost-based system development charge like the CIL fee. The American Water Works Association’s (AWWA) Manual of Water Supply Practices, M1 (M1 Manual) describes three basic, common approaches for calculation of fees like the CIL: the buy-in approach, the incremental cost approach, and a combined approach.2 The M1 Manual describes these approaches primarily in the context of water system infrastructure, but the approaches are equally applicable to raw water supply expenditures, such as water rights acquisitions. The language in the definitions below has therefore been adapted to more cleanly fit the City’s request that only raw water supply be considered in CIL determination. • The buy-in approach is based on the value of the existing water supply portfolio. This approach is often used where the portfolio’s existing firm yield is sufficient to serve existing customers and reasonably anticipated growth. The resulting fee is equivalent to acquiring a unit of capacity within the system. This approach ensures cost recovery of the past expenditures incurred to develop the existing portfolio—generally resulting in a lower CIL reflective of past prices paid. • The incremental cost approach is centered around the cost of expanding the existing water supply portfolio to serve future customers. This approach is often used when the portfolio’s existing firm yield has limited or no capacity for new development and new or incremental capacity is required to serve new development. The resulting fee is representative of the per- unit cost of future capacity. This approach captures the expense of expanding the portfolio based on anticipated acquisitions in the near- and medium-term—generally resulting in a higher CIL reflective of current and forecasted fair market value. • The combined approach is exactly as it sounds, acknowledging that new development will use a combination of existing and future water supply portfolio holdings. This approach is best used where some capacity is available, but new or incremental capacity is required in in the foreseeable future. This approach blends the two former approaches and generally returns a CIL falling within the edge conditions created by the buy-in and incremental cost approaches. 2 https://store.awwa.org/M1-Principles-of-Water-Rates-Fees-and-Charges-Seventh-Edition 331 Proposal – Bozeman Cash-In-Lieu Review & Update Page 4 WestWater will prepare supporting information and cursory projections for each approach to be shared with HydroSolutions and the City to aid in the decision process. WestWater has generally recommended the combined approach for its implicit balance between cost recovery and future price expectations, but selection of the appropriate approach is situationally specific and will depend on the City’s current portfolio and water rights financing and budgeting goals. CIL Fee Determination WestWater will calculate an updated CIL for the City based on the findings of the portfolio valuation and acquisitions price perspective exercises described above. The calculation of the updated CIL will employ industry best practices and rely on sound financial and economic principles. Such elements include: • Defensible – The generally accepted approaches for CIL fee development are bounded by those methods based on cost recovery (low end) and those based on current replacement value (high end), both of which are acceptable and economically sound. • Proportional – The concept of rough proportionality means that the fees assessed to an individual property are roughly consistent with that property’s expected impact on the water system. With regards to raw water supply, this is implicitly satisfied if the CIL is charged on a unit basis (such as per-AF) and the unit requirement is tied to anticipated demand (i.e., three AF per acre of developable land). • Financially Sustainable – At minimum, a CIL fee should recover past water expenditures in real (i.e., inflation-adjusted) dollars. Additionally, some portion of debt service related to a water asset acquisition should be recovered through the CIL. From an economic standpoint, opportunity costs might be considered. There is an opportunity cost to the City in tying up significant capital in water acquisitions and this cost can be recovered by an approximation of the City’s cost of capital for the duration of an asset’s holding. The opportunity cost can be approximated by the interest-earning potential of the capital tied up in the water asset. • Competitive – The fee should balance cost recovery and future price expectations to return a fee competitive with regional peers and attractive to developers. Additional Considerations In general, the CIL determination methodology should be conceptually consistent with any related development fees, such as a plant investment fee (PIF) for water infrastructure, though this is not strictly necessary. If the CIL is to be updated annually or periodically, it should be consistent and predictable, while staying ahead of new development (water demand). This scope of work does not include the development of a dynamic model for transfer to HydroSolutions or the City to accommodate such updates. Task 5: Draft & Final Deliverables Preparation WestWater will prepare a draft report summarizing the analysis outlined in the preceding tasks. The report will identify the updated CIL and provide the supporting calculations and assumptions. 332 Proposal – Bozeman Cash-In-Lieu Review & Update Page 5 WestWater will be available for an online meeting, if requested by HydroSolutions, to present and discuss the results of the analysis. Deliverables A draft report summarizing the analysis and findings of the project will be delivered to HydroSolutions in PDF format for their review and comment. WestWater will address any requested changes and provide a final report to HydroSolutions. Timeline WestWater plans to provide a draft deliverable to HydroSolutions within 10 weeks after notice to proceed. A final deliverable will be submitted to HydroSolutions within 2 weeks of receiving comments and requested changes. Project Budget The proposed total project budget for completion of all tasks is $24,985 (see Table 1 below). This budget was developed using WestWater’s standard hourly billing rates (Table 2). This work is proposed as a fixed-fee project. Table 1. Proposed Project Budget for Water Assets Valuation Project Tasks Cost Contract Administration $390 Task 1: Project Meetings & Coordination (Including Project Kickoff Call) $3,840 Task 2: Review Current CIL Methodology & Background Documentation $3,160 Task 3: Water Market Assessment $4,925 Task 4: Determination of an Updated CIL $8,690 Task 5: Draft & Final Deliverables Preparation $3,980 Total Project Budget $24,985 333 Proposal – Bozeman Cash-In-Lieu Review & Update Page 6 Table 2. 2025 Professional Rates & Services Personnel Hourly Rate† Chief Executive Officer $650 Regional Directors, Principals, Chief Operating Officer $400–$500 Senior Associates $250–$350 Associates & Subject Area Directors $195–$275 Analysts, GIS Analysts, & Data Management $135–$185 Administrative and Support Staff $130 Expert Witness‡ $600 † Rates increase 5–10% annually, effective on the first day of each calendar year. ‡ Expert witness rates are billed at $600 per hour for deposition and trial days with a minimum of 8 hours per day billing. Table 3. 2025 Project-Related Expenses Expense Description Airfare Actual expense based on an economy class ticket for the most direct route and economical carrier based on availability with target minimum five (5) day advance purchase. Hotels Actual rates based on the standard single room. Rental Car Actual rates based on a standard, midsize car. Mileage Seventy cents ($0.70) per mile. Data Actual cost plus a 15% administrative fee. Reproduction Actual costs. Other Expenses Other standard and customary expenses such as business-related phone calls, postage and delivery charges, or incidentals will be fully reimbursed at cost. Subcontractor Fee Administrative management fee of 15% on subcontractor work managed by WestWater. 334 Memorandum REPORT TO:City Commission FROM:Bob Murray, Project Engineer Nick Ross, Director of Transportation and Engineering SUBJECT:Authorize the City Manager to Sign a Task Order Number 11 for the Right of Way Acquisition Project with Sanbell for Properties Necessary to Construct Fowler Avenue from Durston to Oak MEETING DATE:May 13, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign Task Order Number 11 for the Right of Way Acquisition Project with Sanbell for properties necessary to construct Fowler Avenue from Durston to Oak. STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:Attached is a copy of Task Order Number 11 with Sanbell for the Right of Way Acquisition Project under Professional Services Agreement for Streets and Utilities Land Agent Service FY2021-FY2022. This task order includes acquisition services for three parcels along Fowler Avenue between Durston and Oak. A previous task order included initial contacts and negotiations on the parcel on the northwest corner of Fowler and Durston. Under this task order, the consultant will provide all necessary services to complete the acquisition and obtain the necessary easements on this property. The design of the project has progressed to the point that the final alignment and limits of construction of the roundabout at Fowler and Durston is set. This has identified the need for an easement on the open space parcel in the southeast corner of the intersection. The consultant will perform all necessary services to obtain that easement under this task order. Finally, a previous task order included the acquisition services for the largest parcel between Durston and Oak. That acquisition has progressed to the point of making an offer to purchase the necessary property for the project. In order to make that offer, an updated appraisal must be completed because the current one is over a year old. The costs for the updated appraisal are included in this task order. 335 UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:The proposed fee for this scope of work is paid on a time and materials basis with a total cost not to exceed amount of $21,500.00. The fee is within the budget approved in the FY25 Operating Budget. Attachments: COB Term ROW TO#11 Fowler Acquisition 042925.pdf Report compiled on: May 1, 2025 336 April 29, 2025 Mr. Bob Murray, PE City of Bozeman 20 East Olive Street Bozeman MT 59715 Reference: City of Bozeman Land Agent Services FY 2021 - FY 2022 Project Scope of Work – Task Order No. #11 Fowler Avenue-Additional R/W Services Dear Mr. Murray: The following is a proposal for Sanbell - Rocky Mountain to provide services for your project referenced above and as described in the Overview section to follow. If this proposal is acceptable to you, please execute this agreement by signing and dating the signature page. This agreement, along with the attached Terms and Conditions, establishes the terms of the contract between City of Bozeman (hereinafter “Client”) and Sanbell – Rocky Mountain (hereinafter “Sanbell”). The attached Terms and Conditions are expressly incorporated into and made part of the contract between the Client and Sanbell. The Professional Services Agreement for Streets and Utilities Land Agent Service FY 2021-FY 2022master services agreement is expressly incorporated into and made part of the contract between the Client and Sanbell. Project Overview We understand the City of Bozeman is planning on reconstructing portions of Fowler Avenue in the near future. As part of the final right-of-way (R/W) acquisition process, the City has requested additional land agent services be provided. To facilitate the improvements, two parcels require permanent R/W acquisition to be acquired (northwest and southeast corners of Fowler Avenue and Durston Road) and one parcel requires an updated appraisal report (the Anderson Property, north of Fowler Avenue and Durston Road). Sanbell will provide professional R/W acquisition services for Fowler Avenue utilizing their R/W acquisition subconsultant, Clear Route Real Estate. Sanbell currently holds a term contract with the City of Bozeman to complete R/W acquisition activities and will utilize Clear Route Real Estate to complete the acquisition tasks. Hogan Real Estate Group has been retained to prepare the updated appraisal report for the Anderson Property, contracting as a subconsultant for Sanbell. 337 Mr. Bob Murray, PE April 29, 2025 Page 2 Scope of Work Sanbell will provide the following services as part of the basic scope of work: Phase 1 – Clear Route R/W Acquisition Tasks for TO#11 Fowler Avenue Clear Route will provide R/W acquisition services to Sanbell and the City of Bozeman to complete the scope of work detailed below: 101. Project Research This task of the project consists of preliminary R/W activities to obtain pertinent project information. Subtasks under Item 1 will include the following: • Obtain and review available preliminary design plans and project documentation • Coordination meeting with the project team members • Obtain current deeds and ownership information for two (2) parcels of land at the northwest and southeast corners of Fowler Avenue and Durston Road 102. Initial Property Owner Contact This task of the project consists of initiating coordination efforts with affected property owners. Subtasks under Item 2 will include the following: • Compile contact information • Initiate contact with owner of two (2) parcels of land • Conduct pre-acquisition meeting with affected property owners 103. R/W Mapping and Exhibits This task of the project consists of the preparation of R/W exhibits to acquire property interests. Subtasks under Item 3 will include the following: • Sanbell is under contract to design the project and will provide proposed permanent easement and temporary construction permit exhibits for two (2) parcels, as needed • Clear Route will prepare graphical figures for affected properties to be attached to R/W agreements for affected parcels • Review of exhibits and figures 338 Mr. Bob Murray, PE April 29, 2025 Page 3 104. Title Commitments This task of the project consists of the preparation of title commitments by a licensed title company. Subtasks under Item 4 will include the following: • Title commitments will be secured for two (2) parcels requiring permanent easement acquisition with compensation • Team coordination 105. Appraisals and Valuations This task of the project consists of the preparation of appraisal and valuation documents to value the property rights to be acquired. Subtasks under Item 5 will include the following: • Waiver valuations will be completed for two (2) parcels by Clear Route for simple easement and construction permit acquisitions • One (1) full appraisal narrative will be prepared for the Anderson Property by a licensed appraisal subconsultant (Hogan Appraisals) • Review appraisals are not included in this scope of services • Team coordination • QA/QC of valuation documents 106. Prepare Contracts This task of the project consists of the preparation of offer packages to acquire R/W, including agreements, deeds, easements, exhibits, figures, and correspondence letters. Subtasks under Item 6 will include the following: • Permanent easements and temporary construction permits adjacent to Durston Road will be prepared for and acquired on two (2) parcels at the northwest and southeast corners of Fowler Avenue and Durston Road • Prepare acquisition documents including R/W agreements, maps, and project information • Prepare acquisition cost details and summary • QA/QC of documents 339 Mr. Bob Murray, PE April 29, 2025 Page 4 107. Acquisitions This task of the project consists of conducting the acquisition meetings with affected property owners and modifying the initial offer packages based on owner/client meetings. Subtasks under Item 7 will include the following: • Conduct acquisition meetings with two affected property owner (minimum of 5 meetings each owner) • Acquisition efforts for the Anderson Property are not included in this scope • Prepare final acquisition documents for two affected parcels • Prepare final acquisition costs for two affected parcels • QA/QC of documents 108. Title Clearing and Closing This task of the project consists of coordinating and completing the title closing process with the title company. Subtasks under Item 8 will include the following: • Title insurance will be provided for the acquisition of personal property rights for two (2) affected parcels • Prepare final title transfer documents and schedule closing dates • Obtain mortgage releases, clear taxes, and leans, as required • Submittal of two completed R/W acquisition offer packages to the City of Bozeman for review and execution • Team coordination • Attend closing meeting 109. Final Submittal and Closeout This task of the project consists of activities to finalize and submit executed R/W acquisition and title transferring documents. Subtasks under Item 9 will include the following: • Prepare a R/W acquisition project submittal packet • Deliver completed title transfer documents • Project closeout 340 Mr. Bob Murray, PE April 29, 2025 Page 5 110. Project Administration This task of the project consists of the activities to manage the project requirements, deliverables, and tasks. Subtasks under Item 10 will include the following: • Project status updates • Budget and schedule monitoring and planning • Invoicing and billing Phase 2 – Hogan Appraisal Tasks for TO#11 Fowler Avenue Hogan Real Estate Appraisal Group will provide professional services to complete the scope of work detailed below: 201. Appraisal Update for Anderson Parcel Hogan will update the appraisal for the Anderson parcel. The appraisal will address the right-of-way the City needs to acquire and the newly created parcels the owner will retain. The two newly created remainder tracts will be valued assuming annexation/subdivision is complete and be used to deduct from the value of the entire subject property value as appraised. Phase 3 – Sanbell Project Administration Sanbell will provide professional services to administer this task order and manage both subconsultants. Scope of Work Exclusions Any services not discussed in the scope of work section of this proposal are excluded from the contract. Sanbell assumes no responsibility to perform any services not specifically listed in the scope of work. If the Client and Sanbell agree in writing by an amendment to this agreement, Sanbell will provide additional services as requested by the Client. The above notwithstanding, Sanbell shall have the right but not the obligation to provide, without advance authorization from the Client, other services made necessary by the default of the contractor or Client, or by deficiencies, delays, or defects in the work provided by the contractor. Sanbell shall provide written notice of the provision of such services as soon as reasonably possible. Project Schedule Sanbell and the Client will work cooperatively to develop a proposed schedule for initiation and delivery of the project scope of work. This schedule shall include 341 Mr. Bob Murray, PE April 29, 2025 Page 6 reasonable allowances for performance of services by Sanbell and by Client’s consultants (those not under contract with Sanbell), review and approval times as required by the Client, and review and approval times required by all public authorities having jurisdiction over the project. This schedule shall be adjusted as the project progresses, allowing for changes in scope, character, or size of the project requested by the Client, or for delays or other causes beyond Sanbell’s reasonable control. Fees and Billing Arrangements Invoice and Billing: Sanbell will bill for these services on a Time and Material basis for Phase 1 and Fixed Fee basis for Phase 2 and Phase 3 as indicated below. For Phase 1, Clear Route will bill its services on a time-and-materials basis with a total cost not to exceed $ 16,750.00. See detailed fee table below. Right-of-Way Acquisition 101. Project Research $475.00 102. Initial Property Owner Contact $375.00 103. R/W Mapping and Exhibits $600.00 104. Title Commitments $1,800.00 105. Appraisals and Valuations $3,300.00 106. Prepare Contracts $1,500.00 107. Acquisitions $6,750.00 108. Title Clearing and Closing $750.00 109. Final Submittal and Closeout $600.00 110. Project Administration $600.00 Total $16,750.00 For Phase 2, Hogan Real Estate Appraisal Group will bill its services on a fixed fee basis with a total cost of $ 3,650.00. For Phase 3, Sanbell will bill its service to administer the task order and both subconsultants on a fixed fee basis for a total cost of $ 1,100.00. The total fee for Task Order #11 will not exceed $ 21,500.00. Sanbell will submit monthly invoices to the Client for work accomplished during the preceding invoice period. That invoice period will typically be approximately 30 days and will follow a calendar month schedule. For services provided on a fixed fee basis, the amount of each monthly invoice will be determined on the “percentage of completion method” whereby Sanbell will estimate the percentage of the total scope of work accomplished during the invoicing period. 342 Mr. Bob Murray, PE April 29, 2025 Page 7 Monthly invoices shall include, separately listed, any charges for services for which time charges and/or unit costs shall apply. Such invoices shall also include, separately listed, any charges for consultants retained by Sanbell, and reimbursable costs. Such invoices shall be submitted by Sanbell as soon as possible after the end of the month in which the work was accomplished and shall be due and payable by the Client upon receipt. The Client agrees that the monthly invoice from Sanbell is correct, conclusive, and binding on the Client unless the Client, within 20 working days from the date of receipt of such invoice, notifies Sanbell in writing of alleged inaccuracies, discrepancies, errors in the invoice, or the need for additional backup. Expiration of Proposal: If the Client does not provide Sanbell with a signed copy of this proposal within 30 days from the proposal date on the first page, the offer to perform services as described herein will expire and be revoked. Should that occur, Sanbell will gladly work with the Client to provide a renewed proposal with updated terms, fees, and conditions as required. Entire Agreement: This agreement, including the attached Terms and Conditions which are incorporated into and made part of this contract, constitutes the entire agreement between Sanbell and Client. It supersedes all prior communications, understandings, and agreements, whether oral or written. It shall become effective after being signed and dated by both parties and upon each page being initialed by Sanbell. Any amendment or modification to this contract must be written and executed by both Sanbell and Client. Conclusion Bob, we look forward to working with you on this very important project. Feel free to call me at 406-922-4311 or 406-570-5758 if you have any questions regarding this proposal. Otherwise, if it meets your approval, please initiate the City of Bozeman professional services agreement process. Thank you. Sincerely, Chris Naumann Associate Principal Project Manager 343 Mr. Bob Murray, PE April 29, 2025 Page 8 I hereby authorize SANBELL to proceed as described above and, by my signature, acknowledge and agree to the Terms and Conditions attached to and made part of this contract. Moreover, an electronic or faxed copy of my signature shall be as effective as any original: By Client Title Date By Sanbell Title Date CN/tg Enc. O:2025_COB TO#11 Fowler Acquisition 042925 344 Memorandum REPORT TO:City Commission FROM:Ellie Staley, Downtown Bozeman Partnership SUBJECT:A Resolution, Authorizing the City Manager to Sign Change Order 6 with Constructive Solutions, Inc. for the Downtown Alley Enhancement Pilot Project MEETING DATE:May 13, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Adopt a Resolution, Authorizing the City Manager to Sign Change Order 6 with Constructive Solutions, Inc. for The Downtown Alley Enhancement Pilot Project. STRATEGIC PLAN:4.4 Vibrant Downtown, Districts & Centers: Promote a healthy, vibrant Downtown, Midtown, and other commercial districts and neighborhood centers – including higher densities and intensification of use in these key areas. BACKGROUND:This amendment for Change Order 6 contains provisions to increase net cost by $29,177.10 for the following additions and deletions to original scope; field measure garage and updates to architectural drawings, add west end bike rack and concrete pad, updated art fixtures to align with electrical capacity, removal of bench installation. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:None. Attachments: Alley Change Orders 6 Combined For City.pdf Resolution_XXX_May_2025_Change_Order_6.pdf _First_Am_Dwtwn_Alley_Enhance_Agmt_final- COMBINED_PDF.pdf 23564-CO-4 Combined.pdf Report compiled on: April 25, 2025 345 CHANGE ORDER No. 06 EFFECTIVE DATE April 14, 2025 CONTRACTOR Constructive Solutions, Inc OWNER's Contract No. OWNER City of Bozeman Contract: 2023 Alley Improvement Project Project: 2023 Alley IImprovement Project ENGINEER City of Bozeman ENGINEER's Contract No. CHANGE IN CONTRACT PRICE: CHANGE IN CONTRACT TIMES: Original Contract Price $298,513.28 Original Contract Times: Substantial Completion: Ready for final payment: (days or dates) Net Increase (Decrease) from previous Change Orders No. 1 to 5 : $ 26,387.50 Substantial Completion: Ready for final payment: (days) Contract Price prior to this Change Order: $ 324,900.78 Contract Times prior to this Change Order: (days or dates) Net increase (decrease) of this Change Order: $ 29,177.10 Net increase (decrease) this Change Order: (days) Contract Price with all approved Change Orders: $ 354,077.88 Contract Times with all approved Change Orders: Contractor certifies and agrees that there are no additional costs or claims for extra work, additional time, delays or omitted items, of any nature whatsoever, associated with the subject change order items, except as identified and set forth herein and unless expressly stated otherwise in the Change Order. And further, that the price agreed-upon herein represents the full cost and value for the subject work performed and the materials supplied under the terms of the contract and that the work quantities and value were properly determined and are correct. CONTRACTOR (Authorized Signature) Date RECOMMENDED BY: APPROVED BY: Date OWNER (Authorized Signature) Date (ENGINEER - Signature) Prepared by the Engineers Joint Contract Documents Committee and endorsed by The Associated General Contractors of America and the Construction Specifications Institute. Page 1 of 1 for CSI 04/21/25 Substantial Completion: Ready for final payment Substantial Completion: 06/30/2025 Rea d y for f in al pay m ent: days or 07/30/2025dates) Substantial Completion: Ready for final payment: DATE OF ISSUANCE April 14, 2025 Net change from previous Change Orders You are directed to make the following changes in the Contract Documents: Description: Field Measure Garage And Update Architectural Drawings Reason for Change: Provided Garage Drawings Did Not Match Field Conditions Description: Add West End Pad Bike Racks Reason for Change: Addition To Original Scope Description: Remove Installation Of BenchesReason for Change: Deletion From Original Scope Description: Upgrade Light Fixtures Reason for Change: Change In Art Installation 346 Version February 2023 RESOLUTION 2025-XXX A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, WHEREAS, The City Commission did, on February 13, 2024, authorize the First Amendment to Construction Agreement for The Downtown Alley Enhancement Pilot Project with Constructive Solutions, Inc.; and WHEREAS, Section 7-5-4308, Montana Code Annotated, provides that any such alterations for modification of the specifications and/or plans of the contract be made by resolution; and WHEREAS, it has become necessary in the prosecution of the work to make date modifications to the specifications and/or plans of the contract. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, that the proposed modifications to The Downtown Alley Enhancement Pilot Project, as contained in the Change Order 6, including changes to the original project scope with an increase cost of $29,177.10, attached hereto: be and the same are hereby approved; and the City Manager is hereby authorized and directed to execute the contract change order for and on behalf of the City; and the City Clerk is authorized and directed to attest such signature., to wit: PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 13th Day of May, 2025. 347 Version February 2023 ___________________________________ Terence Cunningham Mayor ATTEST: ___________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 348 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 1 of 23 FIRST AMENDMENT TO CONSTRUCTION AGREEMENT This Construction Agreement is made and entered into this _____ day of ____________, 202__ (“Effective Date”), by and between the BOZEMAN DOWNTOWN URBAN RENEWAL DISTRICT, an agency of the CITY OF BOZEMAN, MONTANA, a self- governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and, CONSTRUCTIVE SOLUTIONS, INC., hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” Recitals A. The City issued an Invitation to Bid for the construction project known as Downtown Bozeman Alley Enhancement Pilot Project (“Construction Project”) pursuant to the requirements of all applicable statutes, rules, regulations, and ordinances. B. The City analyzed all responses to the Invitation to Bid received pursuant to its standard practices and the requirements of all applicable statutes, rules, regulations, and ordinances. C. Upon the full execution of this Construction Agreement, the City will issue the Notice of Award, attached as Exhibit A, to Contractor. In consideration of the covenants, agreements, representations, and warranties contained herein, the Parties agree as follows: Agreement 1. Work to be Performed: a. A description of the work to be performed including asphalt coatings, visual enhancements via murals and sculpture installation, lighting improvements, landscape and hardscape improvements, site furnishings, signage, and miscellaneous other items in and around the alley between North Tracy Avenue and North Black Avenue within the City of DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697A February 4 13th DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 349546 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 2 of 23 Bozeman (the “Construction Project”) and Contractor’s duties is set forth in the Scope of Services attached hereto as Exhibit B and by this reference made a part hereof. The City’s Notice of Award is attached here as Exhibit A. A part of the Construction Project includes the installation of commissioned murals and sculptures (“Artwork”), which is detailed in Artwork Scope of Services, attached Exhibit C. When the term “Artwork” is specifically used in this Agreement, it explicitly excludes any other work described in paragraph 1(a) of this Construction Agreement. Contractor and the City are jointly responsible for the approval of all selected Artwork that will be installed as part of the Construction Project. The following constitute the Construction Documents and are made a part of this Agreement as if incorporated herein: • This Agreement; • All required insurance; • The Contractor’s Nondiscrimination and Gender Pay Affirmation; • The Scope of Services; • Artwork Scope of Services; • The Notice of Award; • The Drawings, Plans, and Specifications; • Artwork Plans and Drawings; • Transfer and Assignment of Copyright for Public Artwork; and • 1990 Visual Artists’ Rights Act Waiver. Where a provision of any other portion of the Construction Documents conflicts with this Agreement, the terms and conditions of this Agreement shall control. All work under this Agreement that is subject to the Montana Public Works Standard Specifications or the City’s Modifications to the same must comply with such standards. b. Prior to the commencement of any work on the Construction Project, Contractor’s representatives and City’s representatives shall hold a meeting to establish a working understanding among the parties as to the scope of the Construction Project and duties of the Contractor. At this meeting, Contractor and City shall resolve any outstanding issues related to the plans, designs, drawings, and specifications. If the parties are unable to resolve these issues and the City fails, refuses, or is unable to approve the same, no work shall commence on the Construction Project until such issues are resolved. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 350547 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 3 of 23 c. Except as provided elsewhere in this Agreement, Contractor shall furnish all the labor, materials, equipment, tools, and services necessary to perform and complete the Construction Project. d. During work on the Construction Project, and as part of the final completion of the Construction Project, Contractor shall clean up the Project site, including the removal and satisfactory disposal of all waste, garbage, excess materials, and equipment, and the performance of any other work necessary to restore the site to at least as good order and condition as at the commencement of the Construction Project. 2. City-Supplied Materials: The City may supply materials from time to time in furtherance of the Construction Project. 3. Time of Performance: a. Contractor shall begin the Construction Project after receiving a Notice to Proceed from City and shall complete the Construction Project no later than August 31, 2024. Time is of the essence of completion of all work and each phase of the Construction Project. b. The City’s Representative must develop a Construction Schedule in consultation with the Contractor. Contractor’s construction plan, methods of operation, materials used, and individuals and subcontractors employed (collectively “Contractor’s Resources”) are subject to the City’s approval at all times during the term of this Agreement and must be such as to ensure the completion of the work in compliance with the deadlines set in the Construction Schedule during the term of this Agreement. In the event the City determines the Contractor’s Resources are inadequate to meet the approved Construction Schedule, the City may order the Contractor to accelerate its performance to give reasonable assurances of timely completion and quality results. Acceleration under this section shall not be deemed a Change Order as defined in Section 5b below and the Contractor shall receive no equitable adjustment for such acceleration. Nothing in this section shall be interpreted to relieve the Contractor of its duties and responsibilities to plan for and complete the work in a timely manner according to the Construction Schedule. 4. Liquidated Damages: If the Construction Project is not completed within the time provided by this Agreement, the City may deduct for each day the Construction Project remains uncompleted the sum of Five Hundred Dollars ($500.00) from the compensation hereinafter specified and retain that sum as payment for liquidated damages sustained by reason of the Contractor’s failure to complete the Construction Project on time. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 351548 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 4 of 23 5. Compensation: a. City shall pay to Contractor, and Contractor shall accept as full payment for the performance of this Agreement and the Construction Project, the amount of Two Hundred Ninety-Eight Thousand Five Hundred Thirteen Dollars and Twenty-Eight Cents ($298,513.28). Monthly progress payments and final payment will be made only in accordance with the terms of a completed Compensation Schedule to be approved by the City’s Representative. All invoices must be submitted to the City’s Representative. b. If work not included within the original Construction Documents is requested by City, such additional work and the related compensation shall be agreed to in writing by both parties prior to commencement of the additional work (“Change Order”). c. City shall retain five percent (5%) of the total amount of compensation to be paid to the Contractor to ensure compliance with the terms and conditions of this Agreement and the timely completion of the Construction Project and any and all “punch list” items (“Retainage Amount”). The Retainage Amount shall be paid to Contractor thirty (30) days after the City’s final acceptance of the portion of work for which a separate price is stated in the specifications for the Construction Project. e. Upon acceptance of final payment and for other good and valuable consideration, Contractor shall and hereby does release and forever discharge City, its officers, agents, and employees of and from any and all claims, demands, actions, causes of action, obligations, and liabilities of every kind and character whatsoever, in law and in equity, whether now known or in the future discovered, arising from or related to this Agreement or the Construction Project that Contractor may have or assert against City, its officers, agents, and employees. 6. Inspection and Testing: a. City has the right to inspect and test any and all work performed by Contractor on the Construction Project. Contractor shall allow City and its agents access to the Construction Project at all times and shall provide every reasonable facility for the purpose of such inspection and testing, including temporarily discontinuing portions of the work or uncovering or taking down portions of the finished work. Any inspection and testing performed by the City and its agents is for the sole benefit of the City and shall not relieve the Contractor of its duty, responsibility, and obligation to ensure that the work strictly complies with the Agreement terms and conditions and all applicable laws and building and safety codes. City’s inspection and testing shall not be deemed or considered acceptance by the City of any portion of the Construction Project. City’s inspection and DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 352549 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 5 of 23 testing shall not serve to nullify, amend, or waive any warranties provided by the Contractor under this Agreement. b. Contractor shall, without charge, replace any material or correct any work found by the City or its agents to be defective or otherwise not in compliance with the terms and conditions of this Agreement. In the event Contractor fails to replace or correct any defective work or materials after reasonable written notice by the City to do so, the City may take such corrective action, either with its own materials and employees or by retaining any third party to do so, and deduct the cost and expense of such corrective action from the Contractor’s compensation. 7. Partial Utilization of Construction Project: City shall have the right to use or occupy any portion of the Construction Project that City and Contractor mutually agree is substantially completed and constitutes a separately functioning and usable part of the Construction Project for its intended purpose without significant interference with Contractor’s performance of the remaining portions of the Construction Project. In the event City takes possession of any portion of the Construction Project, such possession shall not be deemed an acceptance of the Construction Project, in whole or in part. City’s use of any portion of the Construction Project shall not be grounds for extensions of any construction deadlines or a change in the Contractor’s compensation. Contractor’s warranties shall run from the completion of the total Construction Project and not from the date the City may take possession of selected portions of the Construction Project. 8. Related Work at the Site: Nothing in this Agreement shall prevent or preclude City, through its own employees or by contract with any third party, from performing other work related to the Construction Project at the construction site; provided such related work is not otherwise addressed in this Agreement and provided such related work does not otherwise interfere with Contractor’s performance of this Agreement or the completion of the Construction Project. Contractor shall afford any City employee, agent or representative, or any third party under contract with the City to perform the related work, proper and safe access to the construction site, a reasonable opportunity for the introduction and storage of materials and equipment, the opportunity to perform the related work, and shall properly coordinate the Contractor’s work on the Construction Project with the related work. 9. Contractor’s Warranties: Contractor represents and warrants as follows: a. Unless otherwise specified by the terms of this Agreement, all materials and equipment used by Contractor on the Construction Project shall be new and where not otherwise specified, of the most suitable grade for their intended uses. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 353550 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 6 of 23 b. All workmanship and materials shall be of a kind and nature acceptable to the City. c. All equipment, materials, and labor provided to, on, or for the Construction Project must be free of defects and nonconformities in design, materials, and workmanship for a minimum period beginning with the commencement of the work on the Construction Project and ending one (1) year from the final completion and acceptance by the City of the Construction Project, regardless of whether such equipment, materials, or labor were supplied directly by Contractor or indirectly by Contractor’s subcontractors or suppliers. Other express warranties on materials that provide for a warranty period longer than one year apply for the period of that express warranty and are not reduced by this provision. Upon receipt of City’s written notice of a defective or nonconforming condition during the warranty period, Contractor shall take all actions, including redesign and replacement, to correct the defective or nonconforming condition within a time frame acceptable to the City and at no additional cost to the City. Contractor shall also, at its sole cost, perform any tests required by City to verify that such defective or nonconforming condition has been corrected. Contractor warrants the corrective action taken against defective and nonconforming conditions for a period of an additional one (1) year from the date of City’s acceptance of the corrective action. d. Contractor and its sureties are liable for the satisfaction and full performance of all warranties. e. Contractor shall give its personal attention to the faithful prosecution of the completion of the Construction Project and Contractor, or its duly authorized representative assigned to serve as the Construction Project Manager, shall be personally present at the site of the Construction Project during working hours for the term of this Agreement until the completion of the Construction Project. f. Contractor shall have a complete, accurate, and up-to-date set of construction plans, drawings, and specifications on site at all times. g. Contractor has examined all available records and made field examinations of the site of the Construction Project. Contractor has knowledge of the field conditions to be encountered during the Construction Project. Contractor has knowledge of the types and character of equipment necessary for the work, the types of materials needed and the sources of such materials, and the condition of the local labor market. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 354551 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 7 of 23 h. Contractor is responsible for the safety of the work and shall maintain all lights, guards, signs, temporary passages, or other protections necessary for that purpose at all times. i. All work must be performed at Contractor’s risk, and Contractor shall promptly repair or replace all damage and loss at its sole cost and expense regardless of the reason or cause of the damage or loss; provided, however, should the damage or loss be caused by an intentional or negligent act of the City, the risk of such loss shall be placed on the City. j. Contractor is responsible for any loss or damage to materials, tools, or other articles used or held for use in the completion of performance of the Construction Project. k. Contractor’s performance must be without damage or disruption to any other work or property of the City or of others and without interference with the operation of existing machinery or equipment. l. Title to all work, materials, and equipment covered by any payment of Contractor’s compensation by City, whether directly incorporated into the Construction Project or not, passes to City at the time of payment, free and clear of all liens and encumbrances. m. Contractor, at its expense and in consultation with the City, will arrange for the preparation and installation of the Artwork on or before September 30, 2024. As further delineated in paragraph 18, the City retains the right to repair, remove, or un-install the Artwork at any time. Contractor bears the risk of loss for the Artwork up and until the title of the Artwork transfers to the City. n. For one-year from installation, Contractor expressly warrants that its installation of the Artwork will be free from any defects related to installation. If, during the one-year warranty period, any defect occurs, upon receiving written notice from the City, Contractor agrees to repair, replace, or pay the City the reasonable cost of repairing or replacing the Artwork. Contractor acknowledges and agrees that the choice between repairing, replacing, or paying the City is solely within the City’s discretion and authority. 10. Delays and Extensions of Time: If Contractor’s performance of this Agreement is prevented or delayed by any unforeseen cause beyond the control of the Contractor, including acts or omissions of the City, Contractor shall, within ten (10) days of the commencement of any such delay, give the City written notice thereof. Further, Contractor shall, within ten (10) days of DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 355552 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 8 of 23 the termination of such delay, give the City written notice of the total actual duration of the delay. If the City is provided with these required notices and if the City determines that the cause of the delay was not foreseeable, was beyond the control of the Contractor, and was not a result of the fault or negligence of the Contractor, then the City will determine the total duration of the delay and extend the time for performance of the Agreement accordingly. Unless the delay is caused by the intentional interference of the City with the Contractor’s performance, Contractor shall make no claim for damages or any other claim other than for an extension of time as herein provided by reason of any delays. 11. Suspension: a. The City may, by written notice to the Contractor and at its convenience for any reason, suspend the performance of all or any portion of the work to be performed on the Construction Project (“Notice of Suspension”). The Notice of Suspension shall set forth the time of suspension, if then known to the City. During the period of suspension, Contractor shall use its best efforts to minimize costs associated with the suspension. b. Upon Contractor’s receipt of any Notice of Suspension, unless the notice requires otherwise, Contractor shall: (1) immediately discontinue work on the date and to the extent specified in the Notice of Suspension; (2) place no further orders or subcontracts for materials, services, or equipment; (3) promptly make every reasonable effort to obtain suspension upon terms satisfactory to City of all orders, subcontracts, and rental agreements to the extent that they relate to the performance of the work suspended; and (4) continue to protect and maintain the Project, including those portions on which work has been suspended. c. As compensation for the suspended work, Contractor will be reimbursed for the following costs, reasonably incurred, without duplication of any item, and to the extent that such costs directly resulted from the suspension: (1) a standby charge paid during the period of suspension which will be sufficient to compensate Contractor for keeping, to the extent required in the Notice of Suspension, Contractor’s organization and equipment committed to the Project in standby status; (2) all reasonably incurred costs for the demobilization of Contractor’s and subcontractor’s crews and equipment; (3) an equitable amount to reimburse Contractor for the cost to protect and maintain the Project during the period of suspension; and (4) an equitable adjustment in the cost of performing the remaining portion of the work post-suspension if, as a direct result of the suspension, the cost to Contractor of subsequently performing the remaining work on the Construction Project has increased or decreased. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 356553 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 9 of 23 d. Upon receipt of written notice by the City to resume the suspended work (“Notice to Resume Work”), Contractor shall immediately resume performance of the suspended work as to the extent required in the Notice to Resume Work. Any claim by Contractor for time or compensation described in Section 11(c) shall be made within fifteen (15) days after receipt of the Notice to Resume Work and Contractor shall submit a revised Construction Schedule for the City’s review and approval. Contractor’s failure to timely make such a claim shall result in a waiver of the claim. e. No compensation described in Section 11(c) shall be paid and no extension of time to complete the Construction Project shall be granted if the suspension results from Contractor’s non-compliance with or breach of the terms or requirements of this Agreement. 12. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the Construction Project (“Termination Notice Due to Contractor’s Fault”). The City may then take over the Construction Project and complete it, either with its own resources or by re-letting the contract to any other third party, and may immediately take possession of and use such materials, appliances, tools, and equipment as may be on the site and which may be necessary for the completion of the Construction Project. b. In the event of a termination pursuant to this Section 12, Contractor shall be entitled to payment only for those services Contractor actually rendered. In the case of a lump sum or unit price contract, Contractor shall not be entitled to any further payment until the Construction Project has been completed. Upon completion of the Construction Project, if the unpaid balance of the Contractor’s compensation exceeds the cost to the City of completing the work, including all costs paid to any subcontractors or third parties retained by the City to complete the Construction Project and all administrative costs resulting from the termination (“City’s Cost for Completion”), such excess shall be paid to the Contractor. If the City’s Cost for Completion exceeds the unpaid balance of the Contractor’s compensation, then Contractor and its sureties shall be liable for and shall pay the difference, plus interest at the rate applicable to court judgments, to the City. c. Any termination provided for by this Section 12 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 357554 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 10 of 23 d. In the event of termination under this Section 12, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 13. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease work on the Construction Project, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease work on the Construction Project, discontinue placing orders for materials, supplies, and equipment for the Construction Project, and make every reasonable effort to cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed, in progress, or in transit to the construction site. c. In the event of a termination pursuant to this Section 13, Contractor is entitled to payment only for those services Contractor actually rendered and materials actually purchased or which Contractor has made obligations to purchase on or before the receipt of the Notice of Termination for City’s Convenience, and reasonably incurred costs for demobilization of Contractor’s and any subcontractor’s crews. It is agreed that any materials that City is obligated to purchase from Contractor will remain the City’s sole property. d. The compensation described in Section 13(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 14. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 358555 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 11 of 23 waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within ten (10) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 15. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Ellie Staley or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be Rob Evans or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 359556 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 12 of 23 16. Locating Underground Facilities: Contractor shall be responsible for obtaining and determining the location of any underground facilities, including but not limited to, the location of any pipelines or utility supply, delivery, or service lines in accordance with the provisions of §69-4-501, et seq., Montana Code Annotated (MCA). Contractor shall make every effort to avoid damage to underground facilities and shall be solely responsible for any damage that may occur. If City personnel assume responsibility for locating any underground facilities, this fact shall be noted in writing prior to commencement of such location work. 17. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, pay all fees and charges in connection therewith, and perform all surveys and locations necessary for the timely completion of the Construction Project. 18. Ownership of Artwork. The City shall be the legal owner of the Artwork once it is installed. Until installation and title transfers, Contractor remains the owner of the Artwork. See paragraph 9 of this Construction Agreement for Artwork-specific warranties which apply only to the Artwork and not to the Construction Project in its entirety. For the Artwork, the Parties agree to sign a Transfer and Assignment of Copyright for Public Artwork, attached as Exhibit D, prior to the City’s acceptance of the Artwork. In addition, as required by the U.S. Copyright Act, and as set forth in paragraph 24(d) of this Agreement, Contractor and its sub-contractors which are providing murals and other artwork related to the Artwork agree to sign, prior to the City’s acceptance of the Artwork, a 1990 Visual Artists’ Rights Act Waiver (“Waiver”), attached as Exhibit E. Contractor and its applicable subcontractors acknowledge that by signing the Waiver, they are agreeing to voluntarily waive all rights to attribution and integrity with respect to the Artwork, and any and all claims that may arise under the Visual Artists Rights Act of 1990 (“VARA”), 17 U.S.C. §§ 106(A) and 113(d) or any other local, state, or federal law that conveys the same or similar “moral rights,” as defined by VARA, with respect to the Artwork. Contractor agrees to provide Exhibit D and Exhibit E to its subcontractors for the Artwork. Contractor must return executed copies to the City at the time title transfers. Once the Transfer of Copyright for Public Artwork is executed, the City will become copyright owner and take title in and to the Artwork, and any and all drawings, sketches, models, and any other documents or materials created by the Contractor in furtherance of the Artwork. The Contractor agrees to deliver to the City all such materials within five (5) working days of title transfer. 19. Maintenance, Repairs, and Alterations of the Artwork. The City recognizes that due to the nature of the Artwork, maintenance is essential. Upon transfer of the title of Artwork and legal ownership passes to the City, as set forth in paragraph 18, the City retains full discretion and responsibility to maintain and protect the Artwork. The City retains the sole right to determine DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 360557 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 13 of 23 whether, when, and to what extent any repairs to the Artwork will occur. The City is not obligated to provide the Contractor or any of its subcontractors for the Artwork notice before undertaking any repairs or modifications to the Artwork. However, the City shall endeavor to notify the Contractor of any proposed alteration of the Artwork. Contractor is responsible for maintaining a current contact person and contact information to receive such notice. If Contractor receives such notice from the City, it is responsible for notifying its subcontractors for the Artwork. The City is under no obligation to provide notice to the Contractor if the Contractor fails to maintain such contact information with the City. Because the Artwork is attached to the City’s property, Contractor agrees to indemnify, defend, and hold harmless the City against any and all liability, damage, loss, or expense, including reasonable attorneys’ fees and expenses of litigation, incurred by the City for any and all claims raised under the Visual Artists Rights Act. Should the City determine that the removal or extraction of the Artwork is necessary, Contractor retains first priority to reclaim physical possession of the Artwork. In such an instance, Contractor is responsible for all associated costs of such removal. 20. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non- discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 21. Nondiscrimination and Equal Pay: Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. Contractor shall not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 361558 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 14 of 23 Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 22. Intoxicants; DOT Drug and Alcohol Regulations: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, upon the site of the Construction Project. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 23. Labor Relations: a. Contractor shall post a legible statement of all wages and fringe benefits to be paid to the Contractor’s employees and the frequency of such payments (i.e., hourly wage employees shall be paid weekly). Such posting shall be made in a prominent and accessible location at the site of the Construction Project and shall be made no later than the first day of work. Such posting shall be removed only upon the final completion of the Construction Project and the termination of this Agreement. b. In performing the terms and conditions of this Agreement and the work on the Construction Project, Contractor shall give preference to the employment of bona fide residents of Montana, as required by §18-2-403, MCA, and as such, term is defined by §18-2-401(1), MCA. When making assignments of work, Contractor shall use workers both skilled in their trade and specialized in their field of work for all work to which they are assigned. c. Pursuant to §18-2-403 and §18-2-422, MCA, Contractor shall pay wages, benefits, and expenses in conformance with the current version of the Prevailing Wage Rates for Highway Construction Services as published by the Montana Department of DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 362559 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 15 of 23 Labor and Industry and which are applicable to Gallatin County. Contractor shall pay all hourly wage employees on a weekly basis. Violation of the requirements to pay applicable prevailing wage rates may subject the Contractor to the penalties set forth in §18-2-407, MCA. Contractor shall maintain payroll records and provide certified copies to the City. Contractor shall maintain such payroll records during the term of this Agreement, the course of the work on the Construction Project, and for a period of three (3) years following the date of final completion of the Construction Project and termination of this Agreement. d. In the event that, during the term of this Agreement and throughout the course of Contractor’s performance of the Construction Project, any labor problems or disputes of any type arise or materialize which in turn cause any work on the Construction Project to cease for any period of time, Contractor specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific steps Contractor shall take to resume work on the Construction Project shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the work on the Construction Project to resume and be completed within the time frames set forth in the Construction Schedule at no additional cost to City. b. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. 24. Subcontractors: a. Contractor may employ subcontractors for any work on the Construction Project. Contractor shall provide City with a list of all subcontractors employed. b. Contractor remains fully responsible for the acts and omissions of any subcontractor, just as Contractor is for its own acts and omissions, and Contractor shall remain fully responsible and liable for the timely completion of the Construction Project. c. Contractor is solely liable for any and all payments to subcontractors. Contractor shall hold all payments received from the City in trust for the benefit of subcontractors, and all such payments shall be used to satisfy obligations of the Construction Project before being used for any other purpose. Contractor shall make any payments due to any subcontractor within seven (7) days of Contractor’s receipt of payment, including a proportional part of the retainage Contractor has received from the DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 363560 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 16 of 23 City. In the event of a dispute regarding any subcontractor’s invoice, Contractor shall promptly pay the undisputed amount to the subcontractor and notify the subcontractor in writing of the amount in dispute and the reasons for the dispute. Any withholding of payment must comply with the requirements of §28-2-2103, MCA. In the event Contractor is unwilling or unable to make timely and proper payment to any subcontractor, City may elect to withhold any payment otherwise due to Contractor and upon seven (7) days’ written notice to Contractor, may pay subcontractor by direct or joint payment. d. Contractor will require any subcontractors hired for the Construction Project to sign a Transfer and Assignment of Copyright for Public Artwork and a 1990 Visual Artists’ Rights Act Waiver. 25. Indebtedness and Liens: Before City may make any final payment to Contractor, Contractor shall furnish City with satisfactory proof that there are no outstanding debts or liens in connection with the Construction Project. If the Contractor allows any indebtedness to accrue to subcontractors or others during the progress of the work, and fails to pay or discharge the same within five (5) days after demand, then City may either withhold any money due to Contractor until such indebtedness is paid or apply the same towards the discharge of the indebtedness. If any lien or claim is filed or made by any subcontractor, material supplier, or any other person, the Contractor shall immediately notify the City and shall cause the same to be discharged of record within thirty (30) days after its filing. 26. Hazard Communication: Contractor shall comply with all hazard communication requirements dictated by the Environmental Protection Agency, the Montana Department of Agriculture, OSHA, Hazard Communications Standard, 29 CFR 1910.1200, and applicable City ordinances. Contractor shall supply a chemical list, the associated material safety data sheets (MSDS), and other pertinent health exposure data for chemicals that the Contractor’s, subcontractor’s or the City’s employees may be exposed to while working on City property during the course of the Construction Project. One copy of this documentation must be delivered to City to the attention of the City’s Representative. This documentation must be delivered before work involving these chemicals may commence. 27. Accounts and Records: During the term of this Agreement and for two (2) years following the City’s final acceptance of the Construction Project, Contractor shall maintain accounts and records related to the Construction Project. Upon reasonable notice, City shall have the right to inspect all such accounts and records, including but not limited to, Contractor’s records, books, correspondence, instructions, drawings, specifications, field and site notes, receipts, invoices, bills, contracts, or other documents relating to the Construction Project. 28. Indemnification; Insurance; Bonds: DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 364561 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 17 of 23 a. Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of and expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents; or (iii) the negligent, reckless or intentional misconduct of any other party. b. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the indemnitee(s) which would otherwise exist as to such indemnitee(s). c. Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. d. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. e. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. f. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 365562 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 18 of 23 g. These obligations shall survive termination of this Agreement and the services performed hereunder. h. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in subsection (a) of this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as shown below: • Workers’ Compensation – not less than statutory limits; • Employers’ Liability - $1,500,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability (bodily injury and property damage) - $1,500,000 per occurrence; $3,000,000 annual aggregate; • Products and Completed Operations – $3,000,000; • Automobile Liability - $1,500,000 property damage/bodily injury; $2,000,000 annual aggregate (all owned, hired, non-owned vehicles); • Builder’s Risk/Property Insurance at least as broad as that provided by the ISO special causes of loss form (CP10 30) naming at a minimum the City in an amount equal to greater of Contractor’s compensation or full replacement value of the work (covering at a minimum all work, buildings, materials and equipment, whether on site or in transit, loss due to fire, lightening, theft, vandalism, malicious mischief, earthquake, collapse, debris removal, demolition occasioned by enforcement of laws, water damage, flood if site within a flood plain, repair or replacement costs, testing and start-up costs) on an all risk coverage basis. • Owner’s and Contractor’s Protective Liability: one policy designating the City (including its agents, representatives, employees, and officers) as the insured and another independent policy designated the City’s Representative (including its consultants, consultants, agents and employees) as the insured on the declarations with both policies covering: (i) operations performed by the Contractor under this Agreement for the City; and (ii) the City’s and City’s Representatives acts or omissions, including negligent acts, in connection with its general supervision of the work of the Contractor’s and its subcontractors - $1,000,000 per occurrence; $3,000,000 aggregate; DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 366563 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 19 of 23 • Contractual Liability Insurance (covering the Contractor’s indemnity obligations described in this Agreement) - $1,000,000 per occurrence $3,000,000 aggregate The amounts of insurance provided shall be exclusive of defense costs. The City of Bozeman shall be endorsed as an additional or named insured on a primary non- contributory basis on both the Commercial General and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. i. Required Bonds. Contractor shall make, execute, purchase, maintain and deliver to City performance and payment bonds in an amount at least equal to the Contractor’s compensation under this Agreement, conditioned that the Contractor shall faithfully perform of all of Contractor’s obligations under this Agreement and pay all laborers, mechanics, subcontractors, material suppliers and all persons who supply the Contractor or Contractor’s subcontractors with provisions, provender, material, or supplies for performing work on the Construction Project. All bonds must be obtained with a surety company that is duly licensed and authorized to transact business within the state of Montana and to issue bonds for the limits so required. The surety company must have a Best’s Financial Strength Rating of A, as rated by the A. M. Best Co., or an equivalent rating from a similar rating service. All bonds must remain in effect throughout the life of this Agreement and for a minimum of one (1) year following the date of expiration of Contractor’s warranties. A certified copy of the agent’s authority to act must accompany all bonds signed by an agent. If the surety on any bond furnished by Contractor is declared bankrupt or becomes insolvent or its right to do business within the state of Montana is terminated, Contractor shall promptly notify City and shall within twenty (20) days after the event giving rise to such notification, provide another bond with another surety company, both of which shall comply with all requirements set forth herein. Bond Types and Amounts: 1. Performance Bond Equal to Contractor’s compensation amount 2. Labor and Materials Bond Equal to Contractor’s compensation amount DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 367564 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 20 of 23 29. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. Contractor understands that all contractors or subcontractors working on a publicly funded project are required to pay or have withheld from earnings a license fee of one percent (1%) of the gross contract price if the gross contract price is Five Thousand Dollars ($5,000) or more. This license fee is paid to the Montana Department of Revenue. 30. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute shall be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 31. Survival: Contractor’s indemnification and warranty obligations shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 32. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 33. Waiver: A waiver by City of any default or breach by Contractor of any covenants, terms, or conditions of this Agreement does not limit City’s right to enforce such covenants, terms, or conditions or to pursue City’s rights in the event of any subsequent default or breach. 35. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 36. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 368565 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 21 of 23 37. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 38. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 39. Amendments: This Agreement may not be modified, amended, or changed in any respect except by a written document signed by all parties. 40. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 41. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 42. Assignment: Contractor may not assign this Agreement in whole or in part without the prior written consent of the City. No assignment will relieve Contractor of its responsibility for the performance of the Agreement and the completion of the Construction Project. Contractor may not assign to any third party other than Contractor’s subcontractors on the Construction Project, the right to receive monies due from City without the prior written consent of City. 43. Authority: Each party represents that it has full power and authority to enter into and perform this Agreement and the person signing this Agreement on behalf of each party has been properly authorized and empowered to sign this Agreement. 44. Independent Contractor: The parties agree and acknowledge that in the performance of this Agreement and the completion of the Construction Project, Contractor shall render services as an independent contractor and not as the agent, representative, subcontractor, or employee of the City. The parties further agree that all individuals and companies retained by Contractor at all times will be considered the agents, employees, or independent contractors of Contractor and at no time will they be the employees, agents, or representatives of the City. 45. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained therein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 369566 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 22 of 23 46. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 370567 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 23 of 23 IN WITNESS WHEREOF, Contractor and City have caused this Agreement to be executed, effective on the date written above, and intend to be legally bound thereby. CITY OF BOZEMAN, MONTANA CONTRACTOR By: _______________________________ By: Jeff Mihelich, City Manager Print Name: Title: APPROVED AS TO FORM: By: _______________________________ Greg Sullivan, City Attorney DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697A Constructive Solutions Inc. Rob Evans President XXXXXXXXXXXXXXXXXXXXXXXXXXXX Acting City Manager, Chuck Winn DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 371568 -1- Ex. C: Artwork Scope of Services Agreement EXHIBIT C: ARTWORK SCOPE OF SERVICE AGREEMENT CLIENT CONTACT: CONTRACTOR CONTACT: City of Bozeman 121 N. Rouse Ave. Bozeman, Montana 59715 Constructive Solutions Inc. 111 South Grand Ave. Room 223 Bozeman MT, 59715 Primary Contact: Ellie Staley, 406-581-3827 Primary Contact: Rob Evans, 406-570-5048 Term: February 13, 2024 to September 30, 2024 Project Overview: Downtown Alley Enhancement Pilot Project. Visual enhancements via murals and sculpture installations in and around the alley between North Tracy Avenue and North Black Avenue within the City of Bozeman, as specified in the contract documents. Service Details: Two murals are planned for the south (rear) elevation of the existing parking garage in the locations shown on the attached exhibit. Each brick canvas will be a maximum of 430 square feet (approximately 33 feet in height x 13 feet in width – see appendix). The murals relate to the adventure and exploration theme. Artwork may be figurative or abstract and may be paint, vinyl wrap, or other durable materials designed for outside. An artist fee of $6,000- $12,000/mural will be provided. Three sculptures are planned for the south (rear) elevation of the existing parking garage in the general locations shown on the attached exhibit. Some flexibility is expected for exact size and placement. The sculptures relate to the adventure and exploration theme. Artwork may be figurative or abstract and may be constructed of a variety of materials if said materials are durable and designed to be located outside. An artist fee of $10,000-$15,000/sculpture will be provided. Additional Services: N/A DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 372569 -2- Ex. C: Artwork Scope of Services Agreement City of Bozeman Constructive Solutions Inc. Signature: __________________________ Signature: _________________________ Printed: __________________________ Printed: _________________________ Title: __________________________ Title: _________________________ Date: __________________________ Date: _________________________ DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 373570 Exhibit D: Clarke Transfer and Assignment of Copyright - Page 1 of 4 - EXHIBIT D TRANSFER AND ASSIGNMENT OF COPYRIGHT 1. Parties. This Transfer and Assignment of Copyright (“Assignment”) made this __________ (“Effective Date”) is by and between: Assignor. Kelsey Clarke, with a mailing address of 303 N. 9th Ave., Bozeman, MT 59715 (“Assignor”), and Assignee. Bozeman Downtown Urban Renewal District, an agency of the City of Bozeman, with a mailing address of 121 N. Rouse Ave., Bozeman, MT 59771 (“Assignee”). The Assignor and the Assignee are each referred to herein as a “Party” and collectively as the “Parties.” 2. Transfer and Assignment of Authored Projects. The Assignor, through this Assignment, transfers assigns to the Assignee of all the Assignor’s interest in: a. The following registered copyrighted Artwork (“Artwork”): i. Copyright #1 • Author Name: Kelsey Clarke • Title of Artwork 1: Birds Eye View ii. Copyright #2 • Author Name: Kelsey Clarke • Title of Artwork 2: On the Horizon iii. Copyright #3 • Author Name: Kelsey Clarke • Title of Artwork 3: Fish Eye Lens b. All the usual rights granted to the owner of a copyright under federal law, including but not limited to the right to reproduce, publish, adapt, modify, distribute, create derivative Projects on, display, publicize, and transmit each Project; c. The right to register, as well as applications for registrations of each Project, with the U.S. Copyright Office, including any and all renewals and extensions; d. The income, royalties, and damages due to the Assignor in regards to each Project, including damages for past or future infringements and misappropriations for each Project; e. The right to sue for past, present, and future infringements and misappropriations for each Project. 3. Assignment Purchase. Payment for the Assignment is included in the amount due and as set forth in the Construction Agreement and incorporated Construction Documents. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 374571 Exhibit D: Clarke Transfer and Assignment of Copyright - Page 2 of 4 - 4. Further Use of Project. This Assignment is exclusive. Unless otherwise specified in the Construction Agreement or its corresponding exhibits, once the effective date has passed, the Assignor may not make any further use of the Project or derivatives without written, authorized consent from the Assignee and further may not challenge the Assignee’s use or ownership of the Artwork or the validity of the Artwork. 5. Authorship. In relation to authorship rights, following the effective date of this Agreement, the Assignor maintains the right to be identified as the rightful author of the Artwork whenever the Artwork are reproduced, published, or otherwise publicly displayed. The authorship rights conferred in this section must be read in conjunction with the Waiver of Proprietary Rights. 6. Warranty. Assignor warrants and represents that: a. the Artwork is an original work of authorship; b. the Assignor is the legal owner of the Artwork; c. the Artwork does not infringe on any existing copyright; d. Assignor has not entered into any other assignments, transfers, licenses, contracts, or mutual understandings in conflict with the terms and obligations of this Construction Agreement; e. There are no claims currently pending or threatened, nor does Assignor have any reason to believe that any claims will be brought or threatened in the future against Assignor’s right, ownership, or interest in the Artwork. 7. Documentation. The Assignor will provide all documentation relating to the Artwork for the Assignee’s record-keeping needs, assertion of rights, or for any other use. They will likewise sign any additional agreements or complete any other lawful action reasonably necessary for a successful filing of the assignment with the United States government. 8. Integration and Modification. This document contains the entire Assignment between the Parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Agreement may be considered valid or binding. This Assignment may not be modified except by written agreement signed by both parties. 9. Dispute Resolution a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 375572 Exhibit D: Clarke Transfer and Assignment of Copyright - Page 3 of 4 - b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Assignment. 10. No Third-Party Beneficiary. The terms and provisions of this Assignment are intended solely for the benefit of each Party and their respective successors and assigns. It is not the Parties’ intent to confer third party beneficiary rights upon any other person or entity. 11. Choice of Law. This Assignment shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 12. Non-Waiver. A waiver by any Party of any default or breach by the other Party of any terms or conditions of this Assignment does not limit the other Party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 13. Severability. If any portion of this Assignment is held to be void or unenforceable, the balance of the Assignment shall continue in effect. 14. Counterparts. This Assignment may be executed in counterparts, which together constitute one instrument. 15. Assignment and Delegation. Assignor may not subcontract or assign rights to any other individual or corporation not listed in this Assignment. 16. Entire Agreement. This document constitutes the entire Assignment between the Parties. No modification or amendment of this Assignment shall be effective unless in writing and signed by both Parties. 17. Execution. The Assignor and the Assignee each represent and warrant to the other that each person executing this Assignment on behalf of each party is duly authorized to execute and deliver this Assignment on behalf of that party. 18. Consent to Electronic Signatures. The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. Assignor’s Signature: _________________________ Date: ________________ DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 376573 Exhibit D: Clarke Transfer and Assignment of Copyright - Page 4 of 4 - Print Name: _________________________ Kelsey Clarke Assignee’s Signature: _________________________ Date: ________________ Print Name: _________________________ Ellie Staley, Downtown Urban Renewal District DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 377574 Exhibit D: Dzintars Transfer and Assignment of Copyright - Page 1 of 3 - EXHIBIT D TRANSFER AND ASSIGNMENT OF COPYRIGHT 1. Parties. This Transfer and Assignment of Copyright (“Assignment”) made this __________ (“Effective Date”) is by and between: Assignor. Kelsey Dzintars, with a mailing address of 1504 Rainbow Road, Bozeman, MT 59715 (“Assignor”), and Assignee. Bozeman Downtown Urban Renewal District, an agency of the City of Bozeman, with a mailing address of 121 N. Rouse Ave., Bozeman, MT 59771 (“Assignee”). The Assignor and the Assignee are each referred to herein as a “Party” and collectively as the “Parties.” 2. Transfer and Assignment of Authored Projects. The Assignor, through this Assignment, transfers assigns to the Assignee of all the Assignor’s interest in: a. The following registered copyrighted Artwork (“Artwork”): i. Copyright #1 • Author Name: Kelsey Dzintars • Title of Artwork 1: “Adventure and Exploration” East Mural, Downtown Bozeman Alley Enhancement Project b. All the usual rights granted to the owner of a copyright under federal law, including but not limited to the right to reproduce, publish, adapt, modify, distribute, create derivative Projects on, display, publicize, and transmit each Project; c. The right to register, as well as applications for registrations of each Project, with the U.S. Copyright Office, including any and all renewals and extensions; d. The income, royalties, and damages due to the Assignor in regards to each Project, including damages for past or future infringements and misappropriations for each Project; e. The right to sue for past, present, and future infringements and misappropriations for each Project. 3. Assignment Purchase. Payment for the Assignment is included in the amount due and as set forth in the Construction Agreement and incorporated Construction Documents. 4. Further Use of Project. This Assignment is exclusive. Unless otherwise specified in the Construction Agreement or its corresponding exhibits, once the effective date has passed, the Assignor may not make any further use of the Project or derivatives without written, authorized consent from the Assignee and further may not challenge the Assignee’s use or ownership of the Artwork or the validity of the Artwork. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 378575 Exhibit D: Dzintars Transfer and Assignment of Copyright - Page 2 of 3 - 5. Authorship. In relation to authorship rights, following the effective date of this Agreement, the Assignor maintains the right to be identified as the rightful author of the Artwork whenever the Artwork are reproduced, published, or otherwise publicly displayed. The authorship rights conferred in this section must be read in conjunction with the Waiver of Proprietary Rights. 6. Warranty. Assignor warrants and represents that: a. the Artwork is an original work of authorship; b. the Assignor is the legal owner of the Artwork; c. the Artwork does not infringe on any existing copyright; d. Assignor has not entered into any other assignments, transfers, licenses, contracts, or mutual understandings in conflict with the terms and obligations of this Construction Agreement; e. There are no claims currently pending or threatened, nor does Assignor have any reason to believe that any claims will be brought or threatened in the future against Assignor’s right, ownership, or interest in the Artwork. 7. Documentation. The Assignor will provide all documentation relating to the Artwork for the Assignee’s record-keeping needs, assertion of rights, or for any other use. They will likewise sign any additional agreements or complete any other lawful action reasonably necessary for a successful filing of the assignment with the United States government. 8. Integration and Modification. This document contains the entire Assignment between the Parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Agreement may be considered valid or binding. This Assignment may not be modified except by written agreement signed by both parties. 9. Dispute Resolution a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Assignment. 10. No Third-Party Beneficiary. The terms and provisions of this Assignment are intended solely for the benefit of each Party and their respective successors and DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 379576 Exhibit D: Dzintars Transfer and Assignment of Copyright - Page 3 of 3 - assigns. It is not the Parties’ intent to confer third party beneficiary rights upon any other person or entity. 11. Choice of Law. This Assignment shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 12. Non-Waiver. A waiver by any Party of any default or breach by the other Party of any terms or conditions of this Assignment does not limit the other Party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 13. Severability. If any portion of this Assignment is held to be void or unenforceable, the balance of the Assignment shall continue in effect. 14. Counterparts. This Assignment may be executed in counterparts, which together constitute one instrument. 15. Assignment and Delegation. Assignor may not subcontract or assign rights to any other individual or corporation not listed in this Assignment. 16. Entire Agreement. This document constitutes the entire Assignment between the Parties. No modification or amendment of this Assignment shall be effective unless in writing and signed by both Parties. 17. Execution. The Assignor and the Assignee each represent and warrant to the other that each person executing this Assignment on behalf of each party is duly authorized to execute and deliver this Assignment on behalf of that party. 18. Consent to Electronic Signatures. The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. Assignor’s Signature: _________________________ Date: ________________ Print Name: _________________________ Kelsey Dzintars Assignee’s Signature: _________________________ Date: ________________ Print Name: _________________________ Ellie Staley, Downtown Urban Renewal District DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 380577 Nall Waiver of Proprietary Rights - Page 1 of 3 - EXHIBIT E WAIVER OF PROPRIETARY RIGHTS 1. Parties. This Waiver of Proprietary Rights (“Waiver”) made this __________ (“Effective Date”) is by and between: Assignor. Stella Nall (“Assignor”), with a mailing address of 1752 S. 14th Street W, Missoula, MT 59801; and Assignee. Bozeman Downtown Urban Renewal District, an agency of City of Bozeman, with a mailing address of 121 N. Rouse Ave., Bozeman, MT 59771 (“Assignee”). The Assignor and the Assignee are each referred to herein as a “Party” and collectively as the “Parties.” 2. Description of Assignor’s Authored Projects. The Assignor, through this Assignment, transfers assigns to the Assignee of all the Assignor’s interest in the following Artwork: a. Artwork 1: • Author Name: Stella Nall • Title of Project: Baáchuuashe • Located at: West Mural 1, refer to final plans 3. Waiver. Assignor voluntarily waives all rights to attribution and integrity with respect to the Artwork, as described in the Construction Agreement and corresponding exhibits, and any and all claims as may arise under the Visual Artists Rights Act of 1990, 17 U.S.C. §§106A and 113(d) (”VARA”), or any other local, state, foreign or international law that conveys the same or similar rights (“moral rights laws” as defined by VARA), with respect to the Artwork, its display, removal from display, exhibition, installation, conservation, storage, study, alteration and any other activities conducted by the Assignee, its officers, employees, agents, contractors, licensees, successors or assigns. If the Artwork is incorporated into a building such that the Artwork cannot be removed from the building or structure, and alternation, distortion, destruction, or other modification (collectively, “modification”) of the Artwork occurs, Assignor-Author waives any and all such claims under any moral rights laws arising out of or against any current or future owners of the Assignee, and its agents, officers and employees, for modification of the Artwork. 4. Assignor’s Right to Accreditation and Promotion. Assignor retains the right to reproduce, publish, or display the Artwork in Assignor’s portfolios, websites, galleries, design periodicals, or any other media or exhibit for the purpose of recognition of creative excellence or professional advancement, and to be credited with Assignor’s Authorship of the Artwork. 5. Right to Modify. The Assignee has the absolute right and retrains the sole discretion to distort, mutilate, or other modification including, but not limited to, DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 381578 Nall Waiver of Proprietary Rights - Page 2 of 3 - change, destroy, remove, relocate, move, replace, transport, repair or restore the Artwork, in whole or in part. The Assignee is not required to provide the Assignor with any notice of modification. 6. Third Party Claims. The Assignee has no obligation to pursue claims against third parties for modifications or damage to the Artwork done without the Assignee’s authorization. However, the Assignee may pursue claims against third parties for modifications or damage or to restore the Artwork if the Artwork was modified without the Assignee’s authorization. In the event that the Assignee pursues such a claim, it shall notify the Assignor, who must cooperate with the Assignee’s efforts to pursue such claims. 7. Authorship. If the Assignee modifies the Artwork without the Assignor’s consent in a manner that is prejudicial to Assignor’s reputation, Assignor retains the right to disclaim Authorship of the Artwork in accordance with 17 U.S.C. § 106A(a)(2) and as set forth in section 3 of this Waiver. 8. Notice. As required under the U.S. Copyright Act, the Assignee must provide notice if it wishes to remove the Project from a part of the building and the removal can occur without destruction or modification of the Project. Assignee is required to keep the Assignor informed of its updated mailing address. 9. Integration and Modification. This document contains the entire agreement between the parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Waiver may be considered valid or binding. This Waiver may not be modified except by written agreement signed by both parties. 10. Dispute Resolution a. Any claim, controversy, or dispute between the Parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in Gallatin County, Montana. 11. No Third-Party Beneficiary. The terms and provisions of this Wavier are intended solely for the benefit of each Party and their respective successors and assigns. It is not the Parties’ intent to confer third party beneficiary rights upon any other person or entity. 12. Choice of Law. This Waiver shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 382579 Nall Waiver of Proprietary Rights - Page 3 of 3 - Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 13. Non-Waiver. A waiver by either Party of any default or breach by the other Party of any terms or conditions of this Waiver does not limit the other Party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 14. Severability. If any portion of this Waiver is held to be void or unenforceable, the balance of the Assignment shall continue in effect. 15. Counterparts. This Waiver may be executed in counterparts, which together constitute one instrument. 16. Assignment and Delegation. Assignor may not subcontract or assign rights to any other individual or corporation not listed in this Waiver. 17. Entire Agreement. This document constitutes the entire Waiver between the Parties. No modification or amendment of this Waiver shall be effective unless in writing and signed by both Parties. 18. Execution. The Assignor and the Assignee each represent and warrant to the other that each person executing this Waiver on behalf of each party is duly authorized to execute and deliver this Waiver on behalf of that party. 19. Consent to Electronic Signatures. The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. Assignor’s Signature: _________________________ Date: ________________ Print Name: _________________________ Stella Nall Assignee’s Signature: _________________________ Date: ________________ Print Name: _________________________ Ellie Staley, Downtown Urban Renewal District DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 383580 Clarke Waiver of Proprietary Rights - Page 1 of 4 - EXHIBIT E WAIVER OF PROPRIETARY RIGHTS 1. Parties. This Waiver of Proprietary Rights (“Waiver”) made this __________ (“Effective Date”) is by and between: Assignor. Kelsey Clarke (“Assignor”), with a mailing address of 303 N. 9th Ave., Bozeman, MT 59715; and Assignee. Bozeman Downtown Urban Renewal District, an agency of City of Bozeman, with a mailing address of 121 N. Rouse Ave., Bozeman, MT 59771 (“Assignee”). The Assignor and the Assignee are each referred to herein as a “Party” and collectively as the “Parties.” 2. Description of Assignor’s Authored Projects. The Assignor, through this Assignment, transfers assigns to the Assignee of all the Assignor’s interest in the following Artwork: a. Artwork 1: • Author Name: Kelsey Clarke • Title of Project: Birds Eye View • Located at: Parking Garage b. Artwork 2: • Author Name: Kelsey Clarke • Title of Project: On the Horizon • Located at: Parking Garage c. Artwork 3: • Author Name: Kelsey Clarke • Title of Project: Fish Eye Lens • Located at: Parking Garage 3. Waiver. Assignor voluntarily waives all rights to attribution and integrity with respect to the Artwork, as described in the Construction Agreement and corresponding exhibits, and any and all claims as may arise under the Visual Artists Rights Act of 1990, 17 U.S.C. §§106A and 113(d) (”VARA”), or any other local, state, foreign or international law that conveys the same or similar rights (“moral rights laws” as defined by VARA), with respect to the Artwork, its display, removal from display, exhibition, installation, conservation, storage, study, alteration and any other activities conducted by the Assignee, its officers, employees, agents, contractors, licensees, successors or assigns. If the Artwork is incorporated into a building such that the Artwork cannot be removed from the building or structure, and alternation, distortion, destruction, or other modification (collectively, “modification”) of the Artwork occurs, Assignor-Author waives any DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 384581 Clarke Waiver of Proprietary Rights - Page 2 of 4 - and all such claims under any moral rights laws arising out of or against any current or future owners of the Assignee, and its agents, officers and employees, for modification of the Artwork. 4. Assignor’s Right to Accreditation and Promotion. Assignor retains the right to reproduce, publish, or display the Artwork in Assignor’s portfolios, websites, galleries, design periodicals, or any other media or exhibit for the purpose of recognition of creative excellence or professional advancement, and to be credited with Assignor’s Authorship of the Artwork. 5. Right to Modify. The Assignee has the absolute right and retrains the sole discretion to distort, mutilate, or other modification including, but not limited to, change, destroy, remove, relocate, move, replace, transport, repair or restore the Artwork, in whole or in part. The Assignee is not required to provide the Assignor with any notice of modification. 6. Third Party Claims. The Assignee has no obligation to pursue claims against third parties for modifications or damage to the Artwork done without the Assignee’s authorization. However, the Assignee may pursue claims against third parties for modifications or damage or to restore the Artwork if the Artwork was modified without the Assignee’s authorization. In the event that the Assignee pursues such a claim, it shall notify the Assignor, who must cooperate with the Assignee’s efforts to pursue such claims. 7. Authorship. If the Assignee modifies the Artwork without the Assignor’s consent in a manner that is prejudicial to Assignor’s reputation, Assignor retains the right to disclaim Authorship of the Artwork in accordance with 17 U.S.C. § 106A(a)(2) and as set forth in section 3 of this Waiver. 8. Notice. As required under the U.S. Copyright Act, the Assignee must provide notice if it wishes to remove the Project from a part of the building and the removal can occur without destruction or modification of the Project. Assignee is required to keep the Assignor informed of its updated mailing address. 9. Integration and Modification. This document contains the entire agreement between the parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Waiver may be considered valid or binding. This Waiver may not be modified except by written agreement signed by both parties. 10. Dispute Resolution a. Any claim, controversy, or dispute between the Parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 385582 Clarke Waiver of Proprietary Rights - Page 3 of 4 - may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in Gallatin County, Montana. 11. No Third-Party Beneficiary. The terms and provisions of this Wavier are intended solely for the benefit of each Party and their respective successors and assigns. It is not the Parties’ intent to confer third party beneficiary rights upon any other person or entity. 12. Choice of Law. This Waiver shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 13. Non-Waiver. A waiver by either Party of any default or breach by the other Party of any terms or conditions of this Waiver does not limit the other Party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 14. Severability. If any portion of this Waiver is held to be void or unenforceable, the balance of the Assignment shall continue in effect. 15. Counterparts. This Waiver may be executed in counterparts, which together constitute one instrument. 16. Assignment and Delegation. Assignor may not subcontract or assign rights to any other individual or corporation not listed in this Waiver. 17. Entire Agreement. This document constitutes the entire Waiver between the Parties. No modification or amendment of this Waiver shall be effective unless in writing and signed by both Parties. 18. Execution. The Assignor and the Assignee each represent and warrant to the other that each person executing this Waiver on behalf of each party is duly authorized to execute and deliver this Waiver on behalf of that party. 19. Consent to Electronic Signatures. The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 386583 Clarke Waiver of Proprietary Rights - Page 4 of 4 - Assignor’s Signature: _________________________ Date: ________________ Print Name: _________________________ Kelsey Clarke Assignee’s Signature: _________________________ Date: ________________ Print Name: _________________________ Ellie Staley, Downtown Urban Renewal District DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 387584 -1- Exhibit B: Scope of Services Agreement EXHIBIT B: SCOPE OF SERVICE AGREEMENT CLIENT CONTACT: CONTRACTOR CONTACT: Downtown Bozeman Partnership 222 East Main Street, Suite 302 Bozeman, Montana 59715 Constructive Solutions Inc. 111 S. Grand Ave. Suite 223 Bozeman, MT 59715 Primary Contact: Ellie Staley, ellie@downtownbozeman.org Primary Contact: Rob Evans, team@constructivesolutionsmt.com Term: August 22, 2023 to September 30, 2024. Project Overview: Downtown Alley Enhancement Pilot Project. Enhancement Asphalt coating, visual enhancements via murals and sculpture installations, lighting improvements, landscape and hardscape improvements, site furnishings, signage, and miscellaneous other items in and around the alley between North Tracy Avenue and North Black Avenue within the City of Bozeman, as specified in the contract documents. Service Details: Notes: 1. Costs for mobilization, insurance, bonding, taxes, traffic control, etc. are incidental. Costs for these items are to be included in the other bid item costs. No separate bid items are provided 2. There is a bid item for miscellaneous work provided below. We have assigned a cost of $15,000 to help cover any extra work that may be needed/required on the project. Extra work items must be pre-approved by the City Engineer. ITE M DESCRIPTION ESTIMATED QUANTITY UNIT UNIT PRICE TOTAL PRICE 1 Asphalt Protective Coating StreetBond Durashield 3,653 SF 2 Rock Bark 300 SF 3 Asphalt Protective Coating - River StreetBond MMA 4,040 SF 4 Curved Bench with Back 2 EA 5 Bench 1 EA DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 388585 -2- Exhibit B: Scope of Services Agreement 6 Concrete Path 44 SF 7 Sculpture & Brackets 3 EA 8 String Light & Frame 249 LF 9 LED Wall Wash Light 4 EA 10 LED Wall Mount Light 7 EA 11 Bike Rack 3 EA 12 Entry Wayfinding Sign & Brackets 2 EA 13 Painted Mural & Anti-Graffiti Coating 800 SF 14 Vinyl Art Wrap 2,795 SF 15 Historic Plaque 5 EA 16 Tree Pruning 2 EA 17 Landscape Planting & Related Irrigation System Repairs/Retrofits Per Plans 18 Clean/Power Wash Trash Receptacle Alcove 2 EA 19 Holiday Lights Per Plans 20 Miscellaneous 1 Unit $15,000 Additional Services: or Name City of Bozeman Contract Signature: Signature : Printed: Printed: Title: Title: Date: Date: DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 389586 NOTICE OF AWARD Dated: August 9, 2023 TO: Constructive Solutions Inc. ADDRESS: 111 South Grand Ave. Suite 223, Bozeman, MT 59715 CONTRACT FOR: The Downtown Alley Enhancement Pilot Project You are notified that your Bid opened on July 17th, 2023 for the above Contract has been considered. You are the apparent Successful Bidder and have been awarded a Contract for the: The Contract Price of your Contract is: $298,513.28 Two (2) copies of each of the proposed Contract Documents have been signed and One copy accompanies this Notice of Award for your records. CITY OF BOZEMAN, MONTANA BY: __________________________________ (CITY MANAGER) BY: ___________________________________ (CITY CLERK) DATE: _______________________________ DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 390587 Exhibit D: Nall Transfer and Assignment of Copyright - Page 1 of 3 - EXHIBIT D TRANSFER AND ASSIGNMENT OF COPYRIGHT 1. Parties. This Transfer and Assignment of Copyright (“Assignment”) made this __________ (“Effective Date”) is by and between: Assignor. Stella Nall, with a mailing address of 1752 S. 14th Street W., Missoula, MT 59801 (“Assignor”), and Assignee. Bozeman Downtown Urban Renewal District, an agency of the City of Bozeman, with a mailing address of 121 N. Rouse Ave., Bozeman, MT 59771 (“Assignee”). The Assignor and the Assignee are each referred to herein as a “Party” and collectively as the “Parties.” 2. Transfer and Assignment of Authored Projects. The Assignor, through this Assignment, transfers assigns to the Assignee of all the Assignor’s interest in: a. The following registered copyrighted Artwork (“Artwork”): i. Copyright #1 • Author Name: Stella Nall • Title of Artwork 1: Baáchuuashe b. All the usual rights granted to the owner of a copyright under federal law, including but not limited to the right to reproduce, publish, adapt, modify, distribute, create derivative Projects on, display, publicize, and transmit each Project; c. The right to register, as well as applications for registrations of each Project, with the U.S. Copyright Office, including any and all renewals and extensions; d. The income, royalties, and damages due to the Assignor in regards to each Project, including damages for past or future infringements and misappropriations for each Project; e. The right to sue for past, present, and future infringements and misappropriations for each Project. 3. Assignment Purchase. Payment for the Assignment is included in the amount due and as set forth in the Construction Agreement and incorporated Construction Documents. 4. Further Use of Project. This Assignment is exclusive. Unless otherwise specified in the Construction Agreement or its corresponding exhibits, once the effective date has passed, the Assignor may not make any further use of the Project or derivatives without written, authorized consent from the Assignee and further may not challenge the Assignee’s use or ownership of the Artwork or the validity of the Artwork. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 391588 Exhibit D: Nall Transfer and Assignment of Copyright - Page 2 of 3 - 5. Authorship. In relation to authorship rights, following the effective date of this Agreement, the Assignor maintains the right to be identified as the rightful author of the Artwork whenever the Artwork are reproduced, published, or otherwise publicly displayed. The authorship rights conferred in this section must be read in conjunction with the Waiver of Proprietary Rights. 6. Warranty. Assignor warrants and represents that: a. the Artwork is an original work of authorship; b. the Assignor is the legal owner of the Artwork; c. the Artwork does not infringe on any existing copyright; d. Assignor has not entered into any other assignments, transfers, licenses, contracts, or mutual understandings in conflict with the terms and obligations of this Construction Agreement; e. There are no claims currently pending or threatened, nor does Assignor have any reason to believe that any claims will be brought or threatened in the future against Assignor’s right, ownership, or interest in the Artwork. 7. Documentation. The Assignor will provide all documentation relating to the Artwork for the Assignee’s record-keeping needs, assertion of rights, or for any other use. They will likewise sign any additional agreements or complete any other lawful action reasonably necessary for a successful filing of the assignment with the United States government. 8. Integration and Modification. This document contains the entire Assignment between the Parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Agreement may be considered valid or binding. This Assignment may not be modified except by written agreement signed by both parties. 9. Dispute Resolution a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Assignment. 10. No Third-Party Beneficiary. The terms and provisions of this Assignment are intended solely for the benefit of each Party and their respective successors and DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 392589 Exhibit D: Nall Transfer and Assignment of Copyright - Page 3 of 3 - assigns. It is not the Parties’ intent to confer third party beneficiary rights upon any other person or entity. 11. Choice of Law. This Assignment shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 12. Non-Waiver. A waiver by any Party of any default or breach by the other Party of any terms or conditions of this Assignment does not limit the other Party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 13. Severability. If any portion of this Assignment is held to be void or unenforceable, the balance of the Assignment shall continue in effect. 14. Counterparts. This Assignment may be executed in counterparts, which together constitute one instrument. 15. Assignment and Delegation. Assignor may not subcontract or assign rights to any other individual or corporation not listed in this Assignment. 16. Entire Agreement. This document constitutes the entire Assignment between the Parties. No modification or amendment of this Assignment shall be effective unless in writing and signed by both Parties. 17. Execution. The Assignor and the Assignee each represent and warrant to the other that each person executing this Assignment on behalf of each party is duly authorized to execute and deliver this Assignment on behalf of that party. 18. Consent to Electronic Signatures. The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. Assignor’s Signature: _________________________ Date: ________________ Print Name: _________________________ Stella Nall Assignee’s Signature: _________________________ Date: ________________ Print Name: _________________________ Ellie Staley, Downtown Urban Renewal District DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 393590 Dzintars Waiver of Proprietary Rights - Page 1 of 4 - EXHIBIT E WAIVER OF PROPRIETARY RIGHTS 1. Parties. This Waiver of Proprietary Rights (“Waiver”) made this __________ (“Effective Date”) is by and between: Assignor. Kelsey Dzintars (“Assignor”), with a mailing address of 1504 Rainbow Road, Bozeman, MT 59715; and Assignee. Bozeman Downtown Urban Renewal District, an agency of City of Bozeman, with a mailing address of 121 N. Rouse Ave., Bozeman, MT 59771 (“Assignee”). The Assignor and the Assignee are each referred to herein as a “Party” and collectively as the “Parties.” 2. Description of Assignor’s Authored Projects. The Assignor, through this Assignment, transfers assigns to the Assignee of all the Assignor’s interest in the following Artwork: a. Artwork 1: • Author Name: Kelsey Dzintars • Title of Project: Downtown Bozeman Alley Enhancement Project • Located at: Downtown Bozeman Parking Garage, East Panel (Black St.) 3. Waiver. Assignor voluntarily waives all rights to attribution and integrity with respect to the Artwork, as described in the Construction Agreement and corresponding exhibits, and any and all claims as may arise under the Visual Artists Rights Act of 1990, 17 U.S.C. §§106A and 113(d) (”VARA”), or any other local, state, foreign or international law that conveys the same or similar rights (“moral rights laws” as defined by VARA), with respect to the Artwork, its display, removal from display, exhibition, installation, conservation, storage, study, alteration and any other activities conducted by the Assignee, its officers, employees, agents, contractors, licensees, successors or assigns. If the Artwork is incorporated into a building such that the Artwork cannot be removed from the building or structure, and alternation, distortion, destruction, or other modification (collectively, “modification”) of the Artwork occurs, Assignor-Author waives any and all such claims under any moral rights laws arising out of or against any current or future owners of the Assignee, and its agents, officers and employees, for modification of the Artwork. 4. Assignor’s Right to Accreditation and Promotion. Assignor retains the right to reproduce, publish, or display the Artwork in Assignor’s portfolios, websites, galleries, design periodicals, or any other media or exhibit for the purpose of recognition of creative excellence or professional advancement, and to be credited with Assignor’s Authorship of the Artwork. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 394591 Dzintars Waiver of Proprietary Rights - Page 2 of 4 - 5. Right to Modify. The Assignee has the absolute right and retrains the sole discretion to distort, mutilate, or other modification including, but not limited to, change, destroy, remove, relocate, move, replace, transport, repair or restore the Artwork, in whole or in part. The Assignee is not required to provide the Assignor with any notice of modification. 6. Third Party Claims. The Assignee has no obligation to pursue claims against third parties for modifications or damage to the Artwork done without the Assignee’s authorization. However, the Assignee may pursue claims against third parties for modifications or damage or to restore the Artwork if the Artwork was modified without the Assignee’s authorization. In the event that the Assignee pursues such a claim, it shall notify the Assignor, who must cooperate with the Assignee’s efforts to pursue such claims. 7. Authorship. If the Assignee modifies the Artwork without the Assignor’s consent in a manner that is prejudicial to Assignor’s reputation, Assignor retains the right to disclaim Authorship of the Artwork in accordance with 17 U.S.C. § 106A(a)(2) and as set forth in section 3 of this Waiver. 8. Notice. As required under the U.S. Copyright Act, the Assignee must provide notice if it wishes to remove the Project from a part of the building and the removal can occur without destruction or modification of the Project. Assignee is required to keep the Assignor informed of its updated mailing address. 9. Integration and Modification. This document contains the entire agreement between the parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Waiver may be considered valid or binding. This Waiver may not be modified except by written agreement signed by both parties. 10. Dispute Resolution a. Any claim, controversy, or dispute between the Parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in Gallatin County, Montana. 11. No Third-Party Beneficiary. The terms and provisions of this Wavier are intended solely for the benefit of each Party and their respective successors and assigns. It is not the Parties’ intent to confer third party beneficiary rights upon any other person or entity. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 395592 Dzintars Waiver of Proprietary Rights - Page 3 of 4 - 12. Choice of Law. This Waiver shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 13. Non-Waiver. A waiver by either Party of any default or breach by the other Party of any terms or conditions of this Waiver does not limit the other Party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 14. Severability. If any portion of this Waiver is held to be void or unenforceable, the balance of the Assignment shall continue in effect. 15. Counterparts. This Waiver may be executed in counterparts, which together constitute one instrument. 16. Assignment and Delegation. Assignor may not subcontract or assign rights to any other individual or corporation not listed in this Waiver. 17. Entire Agreement. This document constitutes the entire Waiver between the Parties. No modification or amendment of this Waiver shall be effective unless in writing and signed by both Parties. 18. Execution. The Assignor and the Assignee each represent and warrant to the other that each person executing this Waiver on behalf of each party is duly authorized to execute and deliver this Waiver on behalf of that party. 19. Consent to Electronic Signatures. The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. Assignor’s Signature: _________________________ Date: ________________ Print Name: _________________________ Kelsey Dzintars Assignee’s Signature: _________________________ Date: ________________ Print Name: _________________________ Ellie Staley, Downtown Urban Renewal District DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 396593 Dzintars Waiver of Proprietary Rights - Page 4 of 4 - DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 397594 DOWNTOWN BOZEMAN ALLEY ENHANCEMENT PILOT PROJECT Final Artwork Plans and Drawings Date: 1/23/2024 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 398595 Final Artwork Plans and Drawings | Date: 1/23/2024 5'5'5'5'5'30'-8"1050 20 N 1 L201 1" = 10'-0" Parking Garage Elevation ENTRY WAYFINDING SIGNAGE NOTVISIBLE IN ELEVATION VIEW. SEE L500, DETAIL 1 FOR CONCEPTUAL SIGN CHARACTER AND PLACEMENT EXISTING TRASH RECEPTACLE ALCOVE EXISTING TREE TO REMAIN. TREE TO BE WRAPPED WITH HOLIDAYLIGHTS. SEE LIGHTING SCHEDULE, SHEET L001. EXISTING TRASH RECEPTACLE ALCOVE HISTORIC PLAQUELOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT APPROXIMATESCULPTURE LOCATION (EXACT LOCATION TO BE COORDINATED W/CITYOF BOZEMAN. VINYL ART WRAP HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUELOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUETO BE MOUNTED AT 5' HEIGHT ALL GREY PANELS TO BE VINYL ART WRAP ALL GREY PANELS TO BE VINYL ART WRAP ALL GREY PANELS TO BE VINYL ART WRAP EXISTING WALL LIGHTEXISTING WALL LIGHT EXISTING WALL LIGHT EXISTING WALL LIGHT EXISTING WALL LIGHT LED WALL WASH LIGHTS. SEE L400 LED WALL MOUNT LIGHT. SEE L400 APPROXIMATE SCULPTURELOCATION. (EXACT LOCATION TO BE COORDINATED W/ CITY OF BOZEMAN LED WALL MOUNT LIGHT. SEE L400 LED WALL MOUNT LIGHT, SEE L400 LED WALL WASH LIGHTS. SEE L400 APPROXIMATE SCULPTURE LOCATION. (EXACT LOCATION TO BE COORDINATED W/ CITY OF BOZEMAN West Mural (1) Artist: Stella Nall West Mural (1) Colors: this fur pattern will be present on the whole being,I just don’t like to render all of it for sketches because it is quite time consuming :-) It is characteristic of mypainting, and was inspired by the back stitching of beadwork. Title: Baáchuuaashe(baáchuu 'berry' + áashi 'river', the Crow name for Bozeman Statement: As an artist I am driven by three primary forces: to process my experiences, to connect with others, and to advocate for change. Through this mural I hope to direct thought towards our relationship with the earth, and to celebrate the plants and animals that we share it with. My work often features imaginary creatures which tell a story. This happy creature’s belly is full of berries which are all edible and native to this area. I included this imagery to give thanks for the abundance of nature which we are so fortunate to live in and around, and the joy and nourishment which it provides us. By naming this Bozeman-being the Apsáalooke (Crow) name for this land, Baáchuuaashe, I hope to honor my ancestors who traveled here before us, to share our language, and to cele-brate the active presence of Indigenous members of the Bozeman community today. Growing up in Bozeman, I didn’t see very much Native American artwork, and it was discouraging to my goals of becoming a professional artist. I am excited to help provide more public Indigenous art for our community, and hope to help encourage future generations to continue working to make Bozeman an inclusive place for everyone. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 399596 5'5'5'5'5'30'-8"1050 20 N 1 L201 1" = 10'-0" Parking Garage Elevation ENTRY WAYFINDING SIGNAGE NOTVISIBLE IN ELEVATION VIEW. SEE L500, DETAIL 1 FOR CONCEPTUAL SIGN CHARACTER AND PLACEMENT EXISTING TRASH RECEPTACLE ALCOVE EXISTING TREE TO REMAIN. TREE TO BE WRAPPED WITH HOLIDAYLIGHTS. SEE LIGHTING SCHEDULE, SHEET L001. EXISTING TRASH RECEPTACLE ALCOVE HISTORIC PLAQUELOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT APPROXIMATESCULPTURE LOCATION (EXACT LOCATION TO BE COORDINATED W/CITYOF BOZEMAN. VINYL ART WRAP HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUELOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUETO BE MOUNTED AT 5' HEIGHT ALL GREY PANELS TO BE VINYL ART WRAP ALL GREY PANELS TO BE VINYL ART WRAP ALL GREY PANELS TO BE VINYL ART WRAP EXISTING WALL LIGHTEXISTING WALL LIGHT EXISTING WALL LIGHT EXISTING WALL LIGHT EXISTING WALL LIGHT LED WALL WASH LIGHTS. SEE L400 LED WALL MOUNT LIGHT. SEE L400 APPROXIMATE SCULPTURELOCATION. (EXACT LOCATION TO BE COORDINATED W/ CITY OF BOZEMAN LED WALL MOUNT LIGHT. SEE L400 LED WALL MOUNT LIGHT, SEE L400 LED WALL WASH LIGHTS. SEE L400 APPROXIMATE SCULPTURE LOCATION. (EXACT LOCATION TO BE COORDINATED W/ CITY OF BOZEMAN East Mural (2) Artist: Kelsey Dzintars East Mural (2) Final Artwork Plans and Drawings | Date: 1/23/2024 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 400597 Bird sculpture to be shifted up to meet 30' clearance requirement for dumpster pads. Final Artwork Plans and Drawings | Date: 1/23/2024 5'5'5'5'5'30'-8"1050 20 N 1 L201 1" = 10'-0" Parking Garage Elevation ENTRY WAYFINDING SIGNAGE NOTVISIBLE IN ELEVATION VIEW. SEE L500, DETAIL 1 FOR CONCEPTUAL SIGN CHARACTER AND PLACEMENT EXISTING TRASH RECEPTACLE ALCOVE EXISTING TREE TO REMAIN. TREE TO BE WRAPPED WITH HOLIDAYLIGHTS. SEE LIGHTING SCHEDULE, SHEET L001. EXISTING TRASH RECEPTACLE ALCOVE HISTORIC PLAQUELOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT APPROXIMATESCULPTURE LOCATION (EXACT LOCATION TO BE COORDINATED W/CITYOF BOZEMAN. VINYL ART WRAP HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUELOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUETO BE MOUNTED AT 5' HEIGHT ALL GREY PANELS TO BE VINYL ART WRAP ALL GREY PANELS TO BE VINYL ART WRAP ALL GREY PANELS TO BE VINYL ART WRAP EXISTING WALL LIGHTEXISTING WALL LIGHT EXISTING WALL LIGHT EXISTING WALL LIGHT EXISTING WALL LIGHT LED WALL WASH LIGHTS. SEE L400 LED WALL MOUNT LIGHT. SEE L400 APPROXIMATE SCULPTURELOCATION. (EXACT LOCATION TO BE COORDINATED W/ CITY OF BOZEMAN LED WALL MOUNT LIGHT. SEE L400 LED WALL MOUNT LIGHT, SEE L400 LED WALL WASH LIGHTS. SEE L400 APPROXIMATE SCULPTURE LOCATION. (EXACT LOCATION TO BE COORDINATED W/ CITY OF BOZEMAN Sculptures (3 sculptures) Artist: Kelsey Clark Extracted Topography Elements on the full Elevation of the Parking Garage “Fish Eye lens” animates the hyalite Reservoir and surrounding water elements “On the horizon” Animates the Downtown Bozeman street-scape “Birds Eye View” Animates the Bridger mountain range NOTES 1) Sculptures and mounting details will be closely coordinated with the City of Bozeman to ensure required clearances are maintained. 30 feet of vertical clearance to be maintained over dumpster tip pads. 2) Prior to installation, the DBP will provide the City a structural engineer report with mounting details, elevations, and height for review and approval. See the following pages for the preliminary design. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 401598 Alley Ways are highly underused public corridors that have the potential for unexpected interaction and adventures. The objective of this art-scape is to turn this underutilized space into an interactive journey through the Bozeman Landscape. The Sculptures revitalize THE alley, Leading the public to possible adventures in the area, and inspiring further exploration. Against the backdrop of the tall buildings, limited light and muted tones, the contrasting bright colors of the sculptures enliven the alley and catches the public’s attention. The three sculptures protrude from the wall making them more visible and encouraging the public to explore the corridor. From far away only the shapes of the animals are recognizable, Acting as a prelude to the elements they represent. Each sculpture was designed in a way to look as if it was leaping out of each animal’s corresponding landscape feature. As the public approaches the sculptures, their place in the Bozeman topography becomes recognized and a spark for exploration is ignited. GallatinThe CORRIDOR DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 402599 Each sculpture corresponds to a backdrop displaying a significant and recognizable feature of the Gallatin Valley. If a map was placed over the Elevation of parking garage the backdrops correlate to the exact geographic location in relation to each other. Upon approaching these the sculptures the Backdrops become more recognizable and the connection to the Landscape becomes more realized. This Idea can be strengthened by providing access to a visual graphic of the full map at both ends of the alleyway. This Provides a plan of action to explore the areas experienced in the art-scape. These Backdrops were designed to enhance the Art, but also to incorporate a Barrier to limit access to the sculptures. The openings in the facade of the parking garage Allow access to climb or vandalize the sculptures. The backdrop blends a functional safety element into a Key feature of the art piece. This addition brings depth to the artistic concept and adds another layer of complexity To the experience through the Alley. Functional art! Bozeman’s unique culture would not be the same without its breathtaking mountains, rivers and valleys. This art sculpture strives to empower the public with a better understanding of possibilities of adventure and exploration in this area. This project aims to revitalize the downtown area by creating a visually appealing art-scape that is informative and intrigues the public to activate this unused space. Once immersed in the alley, the public is able to interact with bozeman in a unique and playful way that connects them to this beautiful landscape. -Metallic Weaver DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 403600 Map Placement on the Full Elevation of the Parking Garage Extracted Topography Elements on the full Elevation of the Parking Garage “Fish Eye lens” animates the hyalite Reservoir and surrounding water elements “On the horizon” Animates the Downtown Bozeman street-scape “Birds Eye View” Animates the Bridger mountain range All of the extracted backdrop’s locations correlate directly to a map of the Gallatin Valley giving a scale and reference to the highlighted topography elements. Once the map is removed a perceptual phenomenon occurs called “Filling-in at the blind spot”, where the visual system fills the informational void with surrounding visual attributes. Once the relationship of the landscape to the art sculptures is realized, the public actively uses their imagination to fill in the adventure they desire. Bird sculpture to be shifted up to meet 30' clearance requirement for dumpster pads. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 404601 14’6’17’ 4”North Alley Elevation Scale reference South Alley Elevation close up Semi truck with maximum height allowed in Montana These Views display the relative size and location of the sculptures to each other, the ground and activity in the alley. 3’10”9’5”30' of clearance required to be maintained over dumpster pads. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 405602 Front Elevation DIMENSIONS: 92”h x 64”w x 56”d WEIGHT: 600 LBS (generous and rounded up) Material: Mild Steel Finish: Golden yellow Powder coat Description: The “Birds Eye View” is a large Hawk sculpture that brings attention to the possibilities of Mountain adventures in the Bozeman area. This figure brings attention to prominent topography elements, viewing them just like a bird soaring through the air. The Bird is positioned to look as if it was flying out of the Bridger range topography By Sacajawea Peak. The Sculpture is colored to match the topography elements of the wall backdrop, visually emphasizing the possible terrain exploration in this area. The lattice Slate design of the bird is composed of 2-d parts to create The 3-d shape of the sculpture. This method mimics the 2-d graphics of the backdrop and gives the illusion that the graphics are FLYING of the wall and morphing into the shape of the Bird. The Landscape backdrop camouflages a steel metal mesh screen, inhibiting access to the sculpture. By strengthening the connection of the 2-d world to the 3-d world, the possible adventure in the bozeman terrain can be realized through “Birds Eye View”. Steel Mesh Screen Topography backdrop Sculpture Bird sculpture to be shifted up to meet 30' clearance requirement for dumpster pads. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 406603 Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel topography 1/4” steel plate welded to the sculpture and bolted to the concrete (wing mount) Topography lines cut out of 14 g steel and bolted To the concrete and Steel mesh Screen Black cut vinyl elevation call outs Black powder coated 14 g steel mountain peak call outs bolted to the steel topography Left Lower Corner Orthographic view DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 407604 slat design adds to the rigidity of the structure and allows for wind to pass through Topography lines cut out of 14 g steel and bolted To the concrete and Steel mesh Screen Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel topography Black cut vinyl elevation call outs Black powder coated 14 g steel mountain peak call outs bolted to the steel topography 1/4” steel plate welded to the sculpture and bolted to the concrete (Tail mount) Right Lower Corner Orthographic view DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 408605 Front View Bottom View 22”10.25”56”1/4” steel plate welded to the sculpture and bolted to the concrete. Topography ELEVATION LINES cut out of 14 g steel and bolted to the concrete AND MESH SCREEN Black cut vinyl elevation call outs Black powder coated 14 g steel mountain peak call outs bolted to the steel topography Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel topography 45.75”92”64” DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 409606 West View East View 1/4” steel plate bolted to concrete (Wing Mount) 10 g steel plate welded to the 1/4’ wall plate steel plate (thicker steel plate used for stronger wall connection) 14 G steel plate BOLTED together (thiner steel plate used to reduce weight) 1/4” steel plate bolted to concrete (tail mount) 10 g steel plate welded to the 1/4’ wall plate steel plate (thicker steel plate used for stronger wall connection) 14 G steel plate BOLTED together (thiner steel plate used to reduce weight) 56”45.75”92”Steel screen bolted to the concrete topography backdrop bolted to the concrete and screen DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 410607 DIMENSIONS: 35”W x 112.25”h x 39.75”D WEIGHT: 750 LBS (generous and rounded up) Material: Mild Steel Finish: Rusted Copper colored powder coat Description: “On the Horizon” is a large bobcat sculpture that brings attention to the possibilities of Urban adventure in the Bozeman area. This figure represents the methods of exploring the downtown area on the ground level, just like how a bobcat would explore the wilderness. The Sculpture is positioned to look as if it was Climbing out of the streets of bozeman, reaching for further exploration in this area. Amongst the Downtown background display, the exact location of the alley in relation to all three sculptural elements is highlighted, emphasizing the public’s connection to the landscape and bringing a level of personal relation to the sculpture. THE ROADS ARE THE VEINS OF adventure, SHOWING HOW TO ACCESS areas of exploration. The Sculpture is colored to match the road graphic elements of the Steel wall background, visually emphasizing the possible urban exploration in this area and sparking inspiration to explore. The Copper color connects the man-made roads of the landscape to the industrial copper industry, WHICH has shaped many towns in Montana. The lattice Slate design is composed of 2-d parts to create The 3-d shape of the sculpture. This method mimics the 2-d graphics and gives the illusion that the graphics are CLIMBING of the wall and morphing into the shape of the Bobcat. The Landscape backdrop camouflages a steel metal mesh screen, inhibiting access to the sculpture. By strengthening the connection of the 2-d world to the 3-d world, the urban adventure can be realized through “on the horizon”. Front Elevation Steel Mesh Screen Topography backdrop Sculpture DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 411608 Right Lower Corner Orthographic view Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel topography 11/4” steel plate fabricated to look like a rock, welded to the sculpture and bolted to the concrete (Front feet MOUNT) 1/4” steel plate fabricated to look like a rock, welded to the sculpture and bolted to the concrete (LEFT FOOT MOUNT) Roads cut out of 14 g steel and bolted To the concrete and Steel mesh Screen Black cut vinyl street call outs Black powder coated 14 g steel urban area call outs bolted to the steel topography Slat design adds to the rigidity of the structure and allows for wind to pass through DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 412609 Left Lower Corner Orthographic view Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel BACKGROUND 1/4” steel plate fabricated to look like a rock, welded to the sculpture and bolted to the concrete (Front feet mount) ROAD lines cut out of 14 g steel and bolted To the con- crete and Steel mesh Screen Black cut vinyl road call outs 1/4” steel plate fabricated to look like a rock, welded to the sculpture and bolted to the concrete (left foot mount) Slat design adds to the rigidity of the structure and allows for wind to pass through DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 413610 Front View Bottom View 22”10.25”Roads cut out of 14 g steel and bolted to the concrete AND MESH SCREEN Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel topography Black cut vinyl Road call outs 1/4” steel plate fabricated to look like a rock, welded to the sculpture and bolted to the concrete (Front feet and Left foot mount) 39.75”50”35”112.25”DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 414611 1/4” steel plate bolted to concrete (tail mount) 10 g steel plate welded to the 1/4’ wall plate steel plate (thicker steel plate used for stronger wall connection) 10 g steel plate welded to the 1/4’ wall plate steel plate (thicker steel plate used for stronger wall connection) 14 G steel plate BOLTED together (thiner steel plate used to reduce weight) 39.75”50”112.25”Steel screen bolted to the concrete road backdrop bolted to the concrete and screen West View East View DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 415612 DIMENSIONS: 72.5”h x 71“w X 55”d WEIGHT: 500 LBS (generous and rounded up) Material: Mild Steel Finish: Teal Blue Powder coat Description: The “Fish eye Lens” is a large trout fish sculpture that brings attention to the possibilities of water adventure in the Bozeman area. This figure represents the Hyalite area on the water level, just like how a fish would ex- plore the rivers and lakes. The Fish is positioned to look as if it was leaping out of hyalite Reservoir (a prominent and recognizable water element of this area). The Sculpture is colored to match the water graphic elements of the steel wall background, visually emphasizing the possible aquatic exploration in this area. The lattice Slate design is composed of 2-d parts to create The 3-d shape of the sculpture. This method mimics the 2-d graphics and gives the illusion that the graphics are leaping of the wall and morphing into the shape of the fish. The Land- scape back drop camouflages a steel metal mesh screen, inhibiting access to the sculpture. By strengthening the connection of the 2-d world to the 3-d world the water adventure can be realized through the fish eye Lens. Front Elevation Steel Mesh Screen Topography backdrop Sculpture DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 416613 Right Lower Corner Orthographic view Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel RIVERS 1/4” steel plate welded to the sculpture and bolted to the concrete (NOSE AND TAIL MOUNT) RIVERS cut out of 14 g steel and bolted To the concrete and Steel mesh Screen Black cut vinyl RIVER call outs Slat design adds to the rigidity of the structure and allows for wind to pass throughBlack powder coated 14 g steel LAKE call outs bolted to the steel AQUATIC BACKDROP DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 417614 Left Lower Corner Orthographic view Slat design adds to the rigidity of the structure and allows for wind to pass through 1/4” steel plate welded to the sculpture and bolted to the concrete (NOSE AND TAIL MOUNT) Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel RIVERS Black cut vinyl RIVER call outs RIVERS cut out of 14 g steel and bolted To the concrete and Steel mesh Screen DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 418615 22”10.25”Black powder coat- ed 14 g steel lake call outs bolted to the steel aquatic background Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel rivers 1/4” steel plate welded to the sculpture and bolted to the concrete (NOSE AND TAIL MOUNT) Black cut vinyl river call outs RIVERS cut out of 14 g steel and bolted To the concrete and Steel mesh Screen 55”44.75”71”72.5”Front View Bottom View DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 419616 10 g steel plate welded to the 1/4’ wall plate steel plate (thicker steel plate used for stronger wall connection) 14 G steel plate BOLTED together (thiner steel plate used to reduce weight) 14 G steel plate BOLTED together (thiner steel plate used to reduce weight) 1/4” steel plate bolted to concrete (Nose Mount) 1/4” steel plate bolted to concrete (tail Mount) 55”44.75”72.5”Steel screen bolted to the concrete River backdrop bolted to the concrete and screen West View East View DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 420617 Change Order Order#: 04 Project: To: Downtown Bozeman Partnership 222 East Main Street Suite 302 Bozeman MT 59715 0 Alley Improvement Project 222 East Main Street Suite 302 Bozeman MT 59715 298,513.28 The contractor agrees to perform and the owner agrees to pay for the following changes to this contract. Requested Amount of Change 26,387.50 License: The original Contract Sum was Plans Attached 324,900.78 Contractor: Owner: Date: Date: Negative changes will lower the overall contractprice requiring no additional payment by owner. Order Date: Ordered By: Customer Order: 04/14/2025 Net change by previous Change Orders The Contract Sum prior to this Change Order The Contract Sum will be changed by this Change Order The new Contract Sum including this Change Order will be The Contract Time will be changed by 354,077.88 23564 29,177.10 29,177.10 Days 47565 Constructive Solutions, Inc. P.O. Box 11529 Bozeman MT 59719406-404-1560 Specifications Attached AmountDescription of Work 3,225.00 384.00 1,675.00 2,975.00 1,800.00 1,600.00 1,600.00 1,400.00 800.00 1,200.00 600.00 -540.00 Clarify Mural Size and Location Field Measure Garage And Update Architectural Drawings Due to Provided Garage Drawings Did Not Match Field Conditions Electrician Site Visit to Confirm No NW Energy Conflicts For Mural Sizing West End Concrete and Bike Racks Concrete Materials and Consumables Additional Bike Rack Including Shipping From Italy Site Prep and Excavation and Move Rock Concrete Prep (doweling, placing gravel and rebar) Place and Finish Concrete Assemble / Install Bike Racks Site Protection and Cleanup Mobilization Production Management Benches Not Being Installed Lighting Improvements Upgraded Mural Lights Removal of Original Mural Lights Upgraded Sculpture Lights Removal of Original Sculputre lighting Lighting Engineering And Design 9,797.60 -1,308.00 3,912.50 -1,044.00 1,100.00 421 Memorandum REPORT TO:City Commission FROM:Jennifer A. Giuttari, Assistant City Attorney Greg Sullivan, City Attorney SUBJECT:A Resolution, Adopting the Bozeman Ethics Handbook, 5th Edition MEETING DATE:May 13, 2025 AGENDA ITEM TYPE:Administration RECOMMENDATION:Having reviewed and considered the updates made to the Bozeman Ethics Handbook, I move to approve a Resolution, adopting the Bozeman Ethics Handbook - 5th edition. 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:In June 2024, the Board of Ethics established a work plan. The Board's work plan contains five areas: 1. Revise the City's Ethics Handbook; 2. Adopt an ordinance on procedural changes for ethics complaints and procedures (completed Feb. 2025); 3. Conduct a mock trial; 4. Perform a substantive review of the Code of Ethics; and 5. Meet with board chairs regarding changes. Pursuant to 2.03.600.A.11, BMC, the Board of Ethics must develop and submit to the City Commission for its approval an ethics handbook for the use of all public servants and the public. The Ethics Handbook revision is part of the Board's above-listed work plan, and changes to the Handbook include edits for clarity and style, updating citations to the Bozeman Municipal Code in light of revisions to the Code of Ethics since the last publication of the Handbook. The City Attorney's Office worked with the City Clerk's Office and the Human Resources Department in revising and updating the Handbook. On February 26, 2025, the Board of Ethics reviewed and considered the updates made to the Handbook, and voted to recommend the City Commission adopt the revised City of Bozeman Ethics Handbook - 5th edition. Adoption of this Resolution memorializes the Commission's adoption of the 422 City of Bozeman Ethics Handbook - 5th edition. UNRESOLVED ISSUES:None. ALTERNATIVES:As identified by the City Commission. FISCAL EFFECTS:None. Attachments: Ethics Handbook Resolution.pdf Exhibit A: Bozeman Ethics Handbook - 5th ed.final.pdf Report compiled on: April 17, 2025 423 Version February 2023 Page 1 of 2 Resolution Adopting Bozeman Ethics Handbook 5th edition RESOLUTION #### A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, ADOPTING THE BOZEMAN ETHICS HANDBOOK 5th EDITION. WHEREAS, the Bozeman Code of Ethics sets forth standards of ethical conduct to assist public officials and employees by establishing guidelines for conduct, fostering the development and maintenance of a tradition of responsible, accountable and effective public service, and to prohibit conflict between public duty and private interest; and WHEREAS, the Bozeman Charter requires that City officials, board members, and employees must take an oath to uphold the state and city ethics codes; WHEREAS, pursuant to 2.03.600.A.11, the Board of Ethics must develop and submit to the City Commission for its approval an ethics handbook for the use of all public servants and the public; and WHEREAS, in July 2010, the City Commission approved the first version of the City of Bozeman Ethics Handbook; and WHEREAS, the purpose of the Ethics Handbook, which was initially created in collaboration with the Montana State University Extension Local Government Center, is to educate citizens and train employees and public officials in best practices for, and legal requirements about, the Code of Ethics; and WHEREAS, since the first version, the Ethics Handbook has been periodically updated to reflect changes to the Code of Ethics; and WHEREAS, on February 26, 2025, in light of recent code changes, the Board of Ethics reviewed and considered updates made to the Bozeman Ethics Handbook – 5th edition, and voted to recommend the City Commission adopt the City of Bozeman Ethics Handbook – 5th edition. 424 Version February 2023 Page 2 of 2 Resolution Adopting Bozeman Ethics Handbook 5th edition NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, to wit: Section 1 The 2025 Bozeman Ethics Handbook – 5th edition, attached as Exhibit A and incorporated into this Resolution, is adopted. Section 2 This Resolution shall be in full force and effect upon passage. PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the _____ day of ___________________, 20____. ___________________________________ Terry Cunningham Mayor ATTEST: ___________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 425 Ethics Handbook 5th edition Approved by the Board of Ethics on February 26, 2025 Approved by the City Commission on May 13, 2025 426 Page | 2 By: Bozeman City Commission Bozeman Board of Ethics Bozeman City Attorney’s Office Bozeman City Clerk’s Office Bozeman Human Resources Department City of Bozeman P.O. Box 1230 121 North Rouse Bozeman, MT 59771 www.bozeman.net Copyright © 2025 427 Page | 3 This Ethics Handbook is produced by the Bozeman Board of Ethics to educate citizens and train employees and public officials in ethical best practices and legal requirements. In addition, this Handbook details specific ethical requirements and provides guidance on obtaining information and filing ethics complaints. The City Code of Ethics required by Section 7.01 of the Bozeman Charter and is codified in Chapter 2 Article 3, Division 4 of the Bozeman Municipal Code. City of Bozeman’s Core Values Integrity Be honest, hardworking, reliable, and accountable to the public. Leadership Take initiative, lead by example, and be open to innovative ideas. Service Work unselfishly for our community and its citizens. Teamwork Respect others, welcome citizen involvement, and work together to achieve the best result. Disclaimer: This Handbook is not meant to serve as an authoritative legal guide for municipal and state ethics laws. For specific legal direction regarding the City of Bozeman Code of Ethics and the Montana Code of Ethics, see the full state statutes, the City’s municipal code, and consult with the City Attorney’s Office or the City’s Human Resources Department. 428 Page | 4 Table of Contents 1. What Are Ethics and Why Are They Important for Local Governments? .. 5 2. Why Have an Ethics Handbook? ........................................................ 5 3. Who Is This Handbook Written For? ................................................... 6 4. What is the Board of Ethics and What are its Responsibilities? .............. 6 5. Why are Employees and Officials Required to take an Annual Ethics Training? ............................................................................................. 7 6. What are the Standards of Conduct? ................................................. 8 7. Can Employees or Officials Use City Resources for Personal Gain? ......... 8 8. What if an Employee or Official has a Conflict of Interest? .................... 9 9. Can Employees or Officials Disclose Confidential Information? .............. 9 10. Can Employees or Officials Accept Gifts? ....................................... 10 11. Do Employees or Officials Have to File Financial Disclosure Statements? ...................................................................................... 15 12. What Are the Post-Employment Policies for Employees or Officials? .. 15 13. Are there Restrictions on Ex Parte Communications? ....................... 16 14. What is the City Whistle Blower Policy? ......................................... 17 15. What State Laws Apply to Ethics in Local Government? ................... 18 16. What are the Penalties for Violating the Code of Ethics? .................. 20 17. Are there Additional Resources on Ethics in Local Government? ........ 20 18. What is the Process to Seek Advice About the City Code of Ethics? ... 22 19. How Can an Ethics Complaint be Filed? ......................................... 22 429 Page | 5 1. What Are Ethics and Why Are They Important for Local Governments? Ethics are commonly defined as the rules of conduct that govern how a society differentiates between good and bad, and between right and wrong. In practice, ethics guide individuals in identifying the correct course of action in how decisions are made. For Bozeman, the role of ethics is significant for maintaining public trust and ensuring fairness. A goal of the City’s ethics program is to preserve the public’s confidence that government policies and decisions are made in the proper channels of the government structure and that the public has confidence in the integrity of its city government. (2.03.460, BMC). Many local governments, including the City of Bozeman, have created laws that outline a code of ethics specifying the conduct of all government employees and officials. Additionally, an ethics code, as is the case for Bozeman, is designed to guarantee that procedural requirements are followed so all government actions are not only fair, but also appear fair. 2. Why Have an Ethics Handbook? This Handbook was created as a result of the citizen established Bozeman City Charter (effective Jan. 1, 2008), and through ordinances adopted by the City Commission to establish the Code of Ethics. Section 7.01(a) of the Bozeman Charter states, “the use of public office for private gain is prohibited” and the Charter requires the City to implement an ordinance addressing ethical matters such as conflict of interest, accepting gifts, use of confidential information, and public disclosure. The Charter also requires the City to establish a Board of Ethics. Among the many responsibilities of the Board, it must create an “ethics handbook for the use of all public servants and the public.” (2.03.600.A.13, BMC). Although not part of the Code of Ethics, the Core Values of the City can also be considered supportive of the Charter and the Code of Ethics. The City Commission Resolution establishing the core values states: “Integrity, leadership, service, and teamwork are the core values of our organization and provide a framework for our employees, community volunteers, and citizens,” (Resolution No. 3832). In addition to the City Code of Ethics, Article XIII, Part XII, Section 4 of the Montana Constitution requires the Montana Legislature to adopt a code of 430 Page | 6 ethics prohibiting conduct between public duty and private interest and which applies to local government officials and employees. The Legislature has done so in adopting the Montana Code of Ethics. (2-2-101, et seq., Montana Code Annotated). The Legislature has declared “The holding of public office or employment is a public trust, created by the confidence that the electorate reposes in the integrity of judicial officers, public officers, legislators, and public employees.” (2-2-103(1), MCA). More specific information about the State Code of Ethics is detailed in Section 14 of this Handbook. 3. Who Is This Handbook Written For? This Handbook is written for all persons interested in the operation of Bozeman City government including Bozeman citizens, City employees, and elected and appointed City officials. This Handbook addresses legal requirements and best practices for the ethical conduct of City employees and officials as they undertake their public duties. For specific ethics questions, City employees and officials should contact their immediate supervisor or department director, the Human Resources Department, or the City Attorney. 4. What is the Board of Ethics and What are its Responsibilities? The City Code of Ethics details the responsibilities of a three-member Board of Ethics (“The Board”). The Board is made up of individuals who are residents of Bozeman but not “elected officials of the City, full-time appointed City officials whether exempt or nonexempt, or City employees.” (2.03.580.A, BMC). Board members are appointed by the City Commission to staggered terms and do not receive compensation. Some responsibilities of the Board include but are not limited to: • Evaluate all aspects of the City Code of Ethics to ensure the public and all public servants have a reasonable opportunity and are encouraged to participate in the process; • Develop a plan to educate public servants and the public about their rights, duties, and responsibilities; • Submit an annual report of summary decisions and recommended actions regarding ethical practices or policies; and • Arrange for annual training and education for all board members; and Conduct hearings as needed (2.03.600, BMC). 431 Page | 7 The Board does not have authority to reverse or modify a prior action, or to proscribe a future action of the mayor, city commission, or an officer or employee of the City. (2.03.620, BMC). This includes budgetary, personnel, contractual, administrative, and legislative matters. The Board was created to ensure the public and all public servants have a reasonable opportunity and are encouraged to participate in any process for regularly evaluating the City Code of Ethics. 5. Why are Employees and Officials Required to take an Annual Ethics Training? According to Section 7.01(b) of the City Charter, City officials, board members, and employees must take an annual training on both the state and City ethics codes. To meet this requirement, the Board works with the City’s Ethics Team (a diverse group of City employees) to develop ongoing training and education programs to help employees and officials understand the State and City ethics codes and their ethical responsibilities. The long- term goal of the Board is to continually evolve the ethics training program so participants can expand their understanding year after year. The curriculum for the training varies each year and is generally based in discussion regarding real and fictious scenarios. The annual ethics training is mandatory for all public officials and City employees. If an employee does not comply with the annual ethics training, they may be subject to disciplinary action, up to and including termination. There are also consequences if appointed and elected officials, including board and committee members, fail to attend the required annual ethics training. In September of 2012, with the City Commission’s adoption of Ordinance No. 1833, the Ethics Code was amended to include a statement that the City Clerk must forward to the Commission annually a list of appointed officials who fail to take the required training. (2.03.600.A.12(b), BMC and the Charter). The Commission may remove an appointed official for failing to attend the training. In addition, the City Charter at Section 7.01(b) states, “City officials, board members, and employees shall take an oath to uphold the state and city ethics codes.” A signed statement verifying that the employee or official has received this Handbook and will not knowingly violate the Ethics Code is required for all employees and board members and serves as the required oath. 432 Page | 8 Additional ethics resources in addition to the annual training are available to City employees and officials and can be obtained via the City’s ethics website or by contacting the City Clerk’s office (see Section 19 of this Handbook for details on contacting the Clerk’s office and Section 17 for further resources). 6. What are the Standards of Conduct? Standards of conduct consist of ethics rules that apply to all City employees and officials. These rules are designed to provide specific guidance for City employees and officials as they fulfill their public duties. This section of the City Code of Ethics states, among other rules, that officials and employees must: • Act morally and honestly in discharging their responsibilities; • Discharge their duties impartially and fairly; • Devote necessary time and effort to the successful functioning of their agency; and • Not use their position to secure any financial interest or personal interest, improperly influence any other official or employee in the performance of official duties, or act in a private capacity on matters they are directly responsible for (2.03.490, BMC). Standards of conduct are necessarily broad as they are general principles for behavior. Application of these principles to every day circumstances is the duty of each employee and official. 7. Can Employees or Officials Use City Resources for Personal Gain? City officials and employees are entrusted with public resources such as money, purchasing authority, equipment, and access to confidential information. The temptation to use resources and knowledge for personal gain can be significant, especially when equipment, such as a vehicle, is entrusted to an employee. As the Charter prohibits the use of public office for private gain, the City Code of Ethics clearly states employees and officials are not permitted the use of City-owned vehicles, equipment, material, or the use of other City resources for personal use. In addition, a City employee or official is prohibited from using a City automobile to travel to or from home, except when such use is for the benefit of the City, as in the case of an employee on-call outside of the employee’s working hours. (2.03.500, BMC). The City also has related policies and procedures that are available to 433 Page | 9 all City employees and public officials, including a specific vehicle use policy (see Administrative Order 2007-03), and an IT use policy (see Administrative Order 2020-04). 8. What if an Employee or Official has a Conflict of Interest? The Code of Ethics contains several provisions related to conflicts of interest. (2.03.520, BMC). Many of the ethics rules established in the City Code of Ethics provide general principles required of employees and officials while others provide specific direction. The conflict of interest section provides both specific rules required of an employee or official when confronted with a potential conflict, and general principles which can provide guidance if a situation is not covered by a specific rule. A conflict of interest can be either financial or personal. In general, no City official or employee shall take or influence official action if they have a financial or personal interest in any transaction or matter with the City without full public disclosure (further detailed in Section 11 of this handbook). (2.03.520.C, BMC). A financial interest is defined as any interest (such as ownership, a contractual relationship, or a business relationship), which will result in a monetary or other material benefit that has a value of more than fifteen dollars, other than an employee’s or official’s salary or compensation. (2.03.470.A.6, BMC). A personal interest is any interest that would affect the action of the individual other than a financial interest. (2.03.470.A.10, BMC). Clearly, it is better to avoid conflicts of interest than determine how to manage one after it arises. If a City official or employee has a conflict of interest, the individual should first review the specific language in the Code. If the Code does not provide specific direction, the employee or official should speak with their supervisor, the Human Resources Department, or the City Attorney (see Section 17 of this handbook). 9. Can Employees or Officials Disclose Confidential Information? Article II, Section 10 of the Montana Constitution provides an express right to privacy: “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.” Confidential information held by the City is broader than information private to an individual. 434 Page | 10 Considering this constitutional right, and while balancing open government laws in Montana, the protection of confidential information is a public duty. To fulfill this obligation, City officials or employees are not, without legal authority, permitted to disclose confidential information concerning personnel, property, government, or affairs of the City. (2.03.530.A, BMC). Confidential information is defined as any information which is not available to the general public and which is obtained only by reason of an individual’s position with the City. (2.03.470.A.3, BMC). City officials and employees are also not permitted to use confidential information to advance their own financial or personal interest or the financial or personal interests of another person. (2.03.530.B, BMC). Finally, City employees and officials must use their best judgment to determine if information is confidential. If so, employees and officials are under obligation to protect those confidences. If an employee or official is uncertain whether information is confidential, the employee or official must contact their supervisor, the Human Resources Department, or the City Attorney. 10. Can Employees or Officials Accept Gifts? The purpose of an ethics provision on the acceptance of gifts is to ensure that public office is not used for private gain or to influence or reward a person for taking official action. There are times, however, when the acceptance of gifts, gratuities, or favors are in the public interest, such as when the acceptance of a gift assists in establishing effective relationships between the City and the public, acceptance of awards for public service, and attending public events in an official capacity. To address these concerns, in 2012, the Board of Ethics and City Commission adopted Ordinance 1833, which revised the gift provision in the City Code of Ethics. This was done because, in limited circumstances, there are legitimate governmental interests that allow an employee or official to accept a gift without such acceptance being considered the use of public office for private gain or to influence or reward. (2.03.540, BMC). In addition, in 2021, the City Commission adopted Ordinance 2092 recognizing certain items provided an employee or official because of their position as employees or officials do not constitute gifts. These include benefits provided by the City as an employer, discounts on good or services provided by a labor union or professional organization, and certain educational scholarships. (2.03.540.F.5-8, BMC). 435 Page | 11 Asking the following questions step by step may help you determine whether a gift can be accepted under the City Code of Ethics and if so, whether a public disclosure statement must be filed: 1. Does the gift, gratuity, or favor fall within any of the following categories? (2.03.540(F), BMC). a. Items or services provided to an employee or official in their private capacity and without relationship to their employment or official position; b. A prize received upon a random drawing at an event where the official or employee attends in their capacity as an employee or official, the drawing is open to all attendees, and receipt of the prize does not place the official or employee under obligation; c. An award publicly presented to an employee or official in recognition of public service; d. Compensation for officiating at a ceremony; e. Benefits provided by the City as an employer beyond salary and employment-related benefits, and which are available to all City employees; f. Discounts on goods or services, or other benefits provided by a labor union to its members who are employees of the City if: • The benefits are generally available throughout the state or the country to the same category of union member; and • The benefit is not offered to influence an employee to depart from the faithful and impartial discharge of a person’s public duties or to reward the person for official action taken; 436 Page | 12 g. Discounts on goods or services or other benefits provided by an employee’s professional organization if: • The benefit is generally available throughout the state or the country to the same category of professional organization member; and • The benefit is not offered to influence an employee to depart from the faithful and impartial discharge of a person’s public duties or to reward the person for official action taken; h. Educational scholarships provided by a private entity affiliated with the City or with an employee’s labor union or professional organization, including but not limited to a private corporation, foundation, and non- profit organization, to an employee because of their professional status or category if: • The benefit is not offered to influence an employee to depart from the faithful and impartial discharge of a person’s public duties or to reward the person for official action taken; and • The City does not purchase goods or services from the private entity. YES – The above items are NOT considered gifts. This item is not a gift, gratuity, or favor according to City code. NO – Go on to step 2. 2. Would the gift, gratuity, or favor tend to improperly influence (or appear to others to improperly influence) a reasonable person in the person’s position to depart from the faithful and impartial discharge of the person’s public duties? YES – STOP –It is unlawful to accept the gift regardless of its value. NO – it would not improperly influence or appear to influence. Go on to step 3. 437 Page | 13 3. Do you know or would a reasonable person in that position know the gift, gratuity, or favor is primarily for the purpose of rewarding for official action taken (or appear to others as a reward for official action taken)? YES – STOP – It is unlawful to accept something as a reward for an official action. NO – It is not and would not appear to be a reward for official action taken. Go on to step 4. 4. Does the gift, gratuity or favor have a value of $100 or more? YES – the value is less than $100 and would not tend to influence or reward. Go ahead and accept. NO – the value is more than $100. Go on to step 5. 5. Does the gift, gratuity, or favor have a value greater than $25 but less than $100 for an individual and is it provided incidental to and in conjunction with a public event where the official or employee’s attendance is in fulfillment of their official duties or is an educational or travel related expense incurred while representing the City? 438 Page | 14 YES – the value is greater than $25 but less than $100 and is provided incidental to and in conjunction with a public event in fulfillment of duties or is an educational or travel related expense incurred while representing the City, and would not tend to influence or reward. Go ahead and accept but only after filing a *public disclosure statement with the Board of Ethics that indicates the gift, its estimated value, the person or entity making the gift, the relationship to the employee or official, and the date of the gift. NO – the value is $100 or more. Go on to step 6. 6. Does the gift, gratuity, or favor involve accepting payment or reimbursement from a person or entity for necessary expenses such as travel, lodging, meals, and registration fees incurred while representing the City and does not place or appear to place the official or employee under obligation, clearly serves the public good, and is not lavish or extravagant? YES – it involves expenses incurred while representing the City, does not place me under obligation, serves the public good, is not lavish or extravagant and does not tend to influence or reward. Go ahead and accept but only after filing a *public disclosure statement with the Board of Ethics that indicates the gift, its estimated value, the person or entity making the gift, the relationship to the employee or official, and the date of the gift. NO – STOP – It is unlawful to accept a gift with a value of $100 or more that does not involve necessary expenses incurred while representing the City or that places one under obligation or does not serve the public good or is lavish or extravagant. * The City Clerk has gift disclosure forms available. Please note that Montana State Law (2-2-104, MCA) also has guidelines related to accepting gifts but since the City of Bozeman has narrower criteria, employees and officials must look to the City’s Code of Ethics for guidance. 439 Page | 15 If you are unsure whether you have interpreted the steps correctly or would like to verify whether or not you can lawfully accept a gift, gratuity, or favor, please check with your supervisor, the Human Resources Department, or the City Attorney. The City Attorney routinely advises employees and officials on a case-by-case basis regarding whether acceptance of a gift is lawful (for more information on contacting the City Attorney, see Handbook Section 17). 11. Do Employees or Officials Have to File Financial Disclosure Statements? Section 7.01(a) of the City Charter requires the “reasonable public disclosure of finances by officials with major decision-making authority over monetary expenditures and contractual and regulatory matters…”. The purpose behind the disclosure requirement is to ensure accountability and transparency in the management of public resources. The annual filing of a Financial Disclosure Statement is required for officials and employees who are determined to be “major financial decision makers.” Annually, the City Finance Director creates a list of individuals subject to the disclosure requirements are notified. (2.03.550.A.1, BMC). The City Clerk manages all the submitted disclosures. In addition, the Finance Department creates a list of vendors and service providers for each department who contract for services or materials greater than $2,500 each month or more than $10,000 per year. Each member of a department must disclose if they have an economic relationship with that vendor. (2.03.550.A.4, BMC). The Finance Department maintains this list of vendors. 12. What Are the Post-Employment Policies for Employees or Officials? The public may distrust actions taken by individuals who once worked for or represented the City when the knowledge gained in service to the City directly benefits the former employee or official. To balance these considerations, City employees and officials are subject to specific rules that apply to post-employment activities. As a rule, City employees and officials may not, for 12 months following the date they cease to be a public servant, make any formal or informal appearance before or negotiate with any decision maker regarding a transaction or matter which was under the public servant’s direct 440 Page | 16 responsibility or which the former public servant participated personally and substantially; without filing a public notice. (2.03.560.A.1, BMC). Public noticing requirements can be found in 2.03.570, BMC. In addition, during the first 12 months after separation from the City, no former official or employee may, without filing a proper disclosure, represent, act or appear on behalf of an individual or entity other than the City in connection with any transaction or matter which was under the former public servant’s direct responsibility or which the former public servant participated personally and substantially as a public servant. (2.03.560.A.2, BMC). Public noticing requirements can be found in 2.03.570, BMC. However, there may be times when, after a proper disclosure is made, involvement by the former employee or official would not be prohibited. The disclosure shall be made with the City Clerk and with the City Attorney. (2.03.570, BMC). In some instances, the public may not understand or be privy to these disclosures prior to a lawful action taking place. As a result, employees and officials who leave the City should be mindful of the long- term implications for the public trust when considering engaging in an activity subject to the Code of Ethics. In addition, City employees and officials may not use their former City title following separation from employment with the City unless the former public servant indicates the employment with the City was prior to the current employment. (2.03.560.B, BMC). 13. Are there Restrictions on Ex Parte Communications? Favoritism and bias in decision-making has the potential to negatively impact the public’s trust. When an official engages in discussions with individuals outside of the official public process, the public may view decisions involving those individuals with distrust. Ex parte communications are defined as private, one-sided communication between a decision-maker and a party or person while an issue involving the person is pending before that decision-maker. While the City Code of Ethics does not specifically address ex parte communications for employees and officials, these individuals must comply with established principles regarding 441 Page | 17 such communications, particularly for those individuals acting in a quasi- judicial capacity. The first principle regarding ex parte communication is to avoid it. If, however, an individual feels that they are involved in an ex parte communication that may negatively impact their ability to perform official duties, the individual must disclose the communication on the record, recuse themselves from participating in the discussion and action on the subject, and step away from their official seat on the board or committee. If the communication does not affect an official’s ability to impartially perform their duties, the official must still disclose the existence of the ex parte communication and state on the record that their decision will be based solely on the public record and not on the substance of the ex parte communication. Employees and officials should seek the advice of the City Attorney for general information on ex parte communication and when such communications occur. 14. What is the City Whistle Blower Policy? Transparent and fair practices are at the heart of the public’s trust in Bozeman’s government. When officials and employees violate this trust, the public should have the opportunity to actively report violations. Without such opportunity, the very premise upon which the Charter and City Code of Ethics are built will not be fulfilled. The Code of Ethics refers to “whistle blowing” as the “reporting of improper governmental action.” As such, the City has established Code of Ethics provisions that define and provide a procedure for reporting improper governmental conduct. (2.03.590, BMC). Every official and employee must refrain from improper governmental action. An improper governmental action includes any action taken by an official or employee during the performance of their duties that violates the standards of conduct in the Code of Ethics or Montana state law, or is intended to harass, intimidate, or retaliate against any other employee, official, or any member of the public. This principle is critical: No official or employee shall retaliate against any employee, official, or member of the public regarding an allegation of improper governmental action. (2.03.490.I, BMC). An improper governmental action also includes any action that violates a fiduciary duty to the City or its citizens or creates a danger to the public’s 442 Page | 18 health or safety. (2.03.470.A.8.a, BMC). To ensure the public is afforded the ability to “whistle blow,” the Code of Ethics specifically states that every City employee, official, or member of the public has the right to report in good faith, information concerning improper governmental action. (2.03.590.B, BMC). The City Code of Ethics further states that “each member of the public shall be treated courteously, impartially, and fairly. All employees and officials shall in the exercise of their official duties refrain from taking any action, making of any statement, or authoring any document that is intended to harass, intimidate, or retaliate against any member of the public.” (2.03.510, BMC). It is important to note that “improper governmental action” excludes personnel actions, including but not limited to: employee grievances, complaints, appointments, promotions, transfers, assignments, reassignments, reinstatements, restorations, reemployments, performance evaluations, reductions in pay, dismissals, suspensions, demotions, reprimands, violations of collective bargaining or civil service laws, or alleged violations of agreements with labor organizations under collective bargaining. (2.03.470.A.8.b, BMC). Finally, a properly authorized City program or budgetary expenditure does not become an improper governmental action because a person disagrees with the City’s policy or decision. (2.03.470.A.8.c, BMC). Members of the public who may want to discuss a potential whistle blowing action are encouraged to contact the City Attorney. One last note: reporting of improper governmental conduct does not require the filing of a formal ethics complaint. 15. What State Laws Apply to Ethics in Local Government? Montana ethics laws apply to local government officials and employees. Because of this, employees and officials must understand there are provisions of State law in addition to the City Code of Ethics that apply to employees and officials. For example, both State law and the City Code of Ethics prohibit conflict between public duty and private interest as required by the Constitution of Montana. (2-2-101, MCA). Montana law provides a number of rules of conduct for public officers and employees. (2-2-121, MCA 443 Page | 19 and 2-2-104, MCA). Employees and officials should familiarize themselves with these rules. Another important provision of State law applicable to employees and officials is the requirement that they may not receive a salary from two separate public employment positions that overlap for the hours being compensated. Employees and officials should familiarize themselves with other specific provisions and exceptions of State law that are detailed in the Montana Code Annotated. (2-2-104 (3)(a), MCA). Employees and officials must also disclose in writing the nature of any private interest that creates a conflict to the Commissioner of Political Practices at the address below. (2-2- 131, MCA): Montana Commissioner of Political Practices 1205 8th Ave P.O. Box 202401 Helena, MT 59620-2401 https://politicalpractices.mt.gov/ According to State law, a public employee (as defined by 2-2-102(8), MCA) may not within six months following the termination of employment, contract with or be employed by an employer who contracts with the State or any of its subdivisions involving matters with which the former employee was directly involved during employment. This provision does not absolve an employee from complying with the post-employment activities of the City Code of Ethics (see Section 11 of this Handbook). The prohibition on post- employment activity in the City Code of Ethics lasts for twelve months. Employees and officials are encouraged to familiarize themselves with 2-2- 201, MCA and 2-2-105(3), MCA. City employees and officials are also subject to State law regarding nepotism. Nepotism is defined as the “bestowal of political patronage by reason of relationship rather than of merit.” (2-2-301, MCA). It is unlawful to appoint a person who is related by blood (consanguinity) or marriage (affinity) to any position of “trust or emolument” (meaning any office or employment that results in compensation or privilege) within certain degrees of relationship. While State law related to nepotism applies only to these relationships, the appearance of favoritism with regards to friends or acquaintances of employees or officials can also be a hindrance to the public’s trust in Bozeman’s government. 444 Page | 20 State law also addresses the receipt of gifts. The City’s gift provision in the Code of Ethics is more stringent than State law so employees and officials must consult and comply with the City’s gift provision keeping in mind they are also required to comply with the State’s gift provision. (2-2-104(1)(b), MCA). Employees and officials should consult with the City Attorney for additional information on potential conflicts or exceptions to State requirements. 16. What are the Penalties for Violating the Code of Ethics? The rules of the State and City Codes of Ethics are enforced in a way that ensures public trust in City officials and employees. All employees and officials must understand that a violation of the City or State Code of Ethics may lead to disciplinary action, up to and including termination, removal from office, or even criminal sanctions. While there are provisions in State code for violations of state law, (2-2-144, MCA), a violation of the City Code of Ethics, in addition to termination or removal from office, could be prosecuted for official misconduct under 45-7-401, MCA. 17. Are there Additional Resources on Ethics in Local Government? The following is a partial list of additional resources for information on ethics in local government: City of Bozeman Board of Ethics c/o Office of the City Clerk 121 North Rouse P.O. Box 1230 Bozeman, MT 59771-1230 Tel: (406) 582-2320 agenda@bozeman.net Individual Board members can also be reached via bozeman.net email addresses. For current board member names and email addresses please see: bozeman.net/government/city- commission/ethics 445 Page | 21 Local Government Center Montana State University P.O. Box 172240 Bozeman, MT 59717 Tel: (406) 994-6694 msulocalgov@montana.edu www.msulocalgov.org Ethics Resource Center 2345 Crystal Drive, Suite 201 Arlington, VA 22202 Tel: (703) 647-2185 ethics@ethics.org www.ethics.org City Ethics, Inc. 4417 Beach Blvd., Suite 300 Jacksonville, FL 32207 info@cityethics.org www.cityethics.org Council on Governmental Ethics Laws P.O. Box 81237 Athens, GA 30608 Tel: (706) 548-7758 director@cogel.org www.cogel.org 446 Page | 22 18. What is the Process to Seek Advice About the City Code of Ethics? If a City employee or official has a question about a potential ethics issue, depending on the employee’s or official’s position and the nature of the issue, they should consult with their supervisor, the Human Resources Department, or seek the advice of the City Attorney. Any member of the public may also request a City Attorney opinion with respect to potential conflicts of interest of an employee or official. (2.03.630.A, BMC). Contact information is available below. Bozeman City Attorney’s Office Bozeman City Hall 121 North Rouse Ave. P.O. Box 1230 Bozeman, MT 59771-1230 Tel: (406) 582-2309 City of Bozeman Human Resource Department Bozeman City Hall 121 North Rouse Ave. P.O. Box 1230 Bozeman, MT 59771-1230 Tel: (406) 582-2300 humanresources@bozeman.net The public can also ask questions through the ASK BZN portal on the City’s website. 19. How Can an Ethics Complaint be Filed? Any member of the public may file a complaint with the Board of Ethics. (2.03.640, BMC). Written complaints must be filed with the City Clerk at the address below. City of Bozeman Board of Ethics C/o Office of the City Clerk 121 North Rouse P.O. Box 1230 447 Page | 23 Bozeman, MT 59771-1230 Tel: (406) 582-2320 comments@bozeman.net City of Bozeman - Ethics Individual Board members can also be reached via their bozeman.net email address. 448 Memorandum REPORT TO:City Commission FROM:Sarah Rosenberg, Planner/Historic Preservation Officer Chris Saunders, Community Development Manager Erin George, Director of Community Development SUBJECT:Approval of Bozeman Landmark Project Phase 1 Report, Application 22388 MEETING DATE:May 13, 2025 AGENDA ITEM TYPE:Citizen Advisory Board/Commission RECOMMENDATION:Consider the Motion: Having considered the Landmark Project Phase 1 Report, application 22388, all public comment, and information received, I move to approve the Phase 1 Report as submitted. STRATEGIC PLAN:1.1 Outreach: Continue to strengthen and innovate in how we deliver information to the community and our partners. BACKGROUND:The Historic Preservation Program began in the early 1980's when a comprehensive historic architecture survey of the "historic portion" of the city was conducted. Surveying over 3,000 properties provided the foundation to nominate ten National Historic Districts in subsequent years, adopt historic preservation regulations, and create the Neighborhood Conservation Overlay District (NCOD) in 1991. Since then, the current regulations in Section 38.340 of the Bozeman Municipal Code have been applied to new development and alterations within the historic districts or the NCOD via the Certificate of Appropriateness (COA) process. Reports evaluating the NCOD were prepared in both 2015 and 2019 that note the successes of the NCOD and the Historic Preservation program, but also recommend changes. The City issued an RFP in December 2022 seeking consultant assistance to conduct additional research and community engagement to inform and draft policy and regulation changes, including a local landmark nomination process, in line with the 2015 and 2019 reports and recent national trends. After a competitive procurement process, Community Planning Collaborative (CPC) was selected to assist with the project. The scope of the Bozeman Landmark Project included the following: Evaluate Section 38.340 of the Unified Development Code - where all things historic preservation and standards for the NCOD reside; Assess the review criteria and standards for certificate of appropriateness applications; Reevaluate the NCOD - determine the effectiveness of the district and its boundary and how it relates to the historic preservation program as a whole since this project is 449 looking at the entire city and not just the NCOD; Create a Landmark Program and nomination process which can identify places of importance that may not be recognized as significant at the National level and can establish its own locally-specific standards and regulations. The project is divided into two phases. This report is the final part of the first phase which outlines recommendations based on research, community engagement (which occurred in summer and early fall of 2024), and data analysis. The Phase 1 Report provides recommendations for the next steps in phase 2, including but not limited to changes to the code, creating a nomination process and criteria for landmarks, updating the NCOD Guidelines, and more. Recommendations are intentionally written in broad language, and Phase 2 (scheduled for summer/fall 2025) will involve additional public engagement and drafting the actual code amendments. The Historic Preservation Advisory Board (HPAB) discussed the Phase 1 report at their April 16 meeting (external link) and recommended approval with two amendments: moving the NCOD Guidelines updates to Phase 2, and moving the NCOD boundary adjustments to Future Recommendations. The Community Development Board discussed the report at their April 21 meeting (external link) and also recommended approval with the same two amendments suggested by HPAB. Staff and consultant Adrienne Burke will provide an in-depth presentation at City Commission's May 13 meeting. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the Commission. FISCAL EFFECTS:Funds for the project are included in the FY25-26 budget. Attachments: Phase 1 Report Appendices Report compiled on: May 5, 2025 450 1PB HISTORIC PRESERVATION POLICY & LOCAL LANDMARK PROJECT Phase 1 Recommendations Prepared for City of Bozeman, MT By April 4, 2025 451 32 ACKNOWLEDGEMENTS Table of Contents EXECUTIVE SUMMARY .....................................................................................................................7 OVERVIEW OF HISTORIC PRESERVATION IN BOZEMAN ..........................14 Bozeman History Overview .........................................................................................................................................15 Zoning and Land Use History ...................................................................................................................................19 Evolution of Historic Preservation in Bozeman .............................................................................................21 Further Plan Context .......................................................................................................................................................24 Montana State Legislation and Influence ........................................................................................................26 LANDMARK PROJECT COMMUNITY ENGAGEMENT EFFORTS .......30 RECOMMENDATIONS WITHIN PROJECT SCOPE (PHASE II) ...............36 Related to Chapter 38.340 ........................................................................................................................................37 Neighborhood Conservation Overlay District .............................................................................................44 Creation of Local Landmark Program ...............................................................................................................50 FUTURE RECOMMENDATIONS ............................................................................................56 Design Guidelines Update .........................................................................................................................................57 Historic Preservation Interface with Unified Development Code ..................................................58 Heritage or Landmark Trees .....................................................................................................................................59 Historic and Cultural Resource Survey Efforts .............................................................................................61 Historic Preservation Planning ................................................................................................................................64 Funding and Incentives ................................................................................................................................................66 Historic Preservation Program Support ...........................................................................................................69 Context Studies ..................................................................................................................................................................70 City Commission Mayor Terry Cunningham Deputy Mayor Joey Morrison Commissioner Jennifer Madgic Commissioner Douglas Fischer Commissioner Emma Bode Historic Preservation Advisory Board Chair Chelsea Holling Vice-Chair Linda Semones Elizabeth Darrow Jim Webster Michael Wiseman Ashley Wilson Allyson Brekke Commission Liaison Jennifer Madgic City Staff Sarah Rosenberg, AICP, Historic Preservation Officer Erin George, AICP, Community Development Director Chris Saunders, AICP, Community Development Manager To the residents of Bozeman - thank you for your valuable input and thoughtful guidance in shaping the Landmark Project plan. Your passion and commitment to preserving the community’s historic and cultural resources have been inspiring. We deeply appreciate your dedication to protecting Bozeman’s rich heritage for generations to come. Image Credits Historic Images: Museum of the Rockies Photo Archive Online, Pioneer Museum, Montana Historic Society, Gallatin History Museum, Bozeman Times, Montana State University Archives Miscellaneous Maps: City of Bozeman, CPC Project Team Sanborn Fire Insurance Company Maps: Library of Congress Miscellaneous Images: CPC Project Team or as otherwise noted in captions Illustrations: Sarah Marsom Project Team Community Planning Collaborative is an urban planning and historic preservation consulting practice whose purpose is to elevate the voices and culture of those traditionally excluded from urban planning, land use and zoning. CPC facilitates community-led, history-based planning solutions so that equitable outcomes are possible. | planningcollab.com Mulberry History Advisors is a woman-owned history and historic preservation consulting firm based in Richmond, VA. We help people shape the future by understanding the past. | mulberryhistory.com Sarah Marsom is a heritage resource consultant who specializes in identifying organizational deficiencies and coming up with creative solutions through strategic planning and community programming development that recognizes each community’s history is unique and each structure is distinct. | sarahmarsom.com Front Cover Artwork 1904 Bozeman Sanborn Fire Insurance Map. Credit: Library of Congress Hotel Baxter, Mountains, Sunset Hills Chinese Headstone, Story Mansion. Credit Sarah Marsom 452 54 Sunset Hills Cemetery Master Plan ......................................................................................................................72 Deconstruction Policy and Program ...................................................................................................................74 Legacy Business Program .........................................................................................................................................77 Archaeology ..........................................................................................................................................................................79 Education, Outreach, and Interpretation ..........................................................................................................80 IMPLEMENTATION .................................................................................................................................86 NEXT STEPS .................................................................................................................................................92 HISTORIC PRESERVATION POLICY & LOCAL LANDMARK PROJECT Phase 1 Recommendations 453 76 The City of Bozeman Historic Preservation Program began in the early 1980s when a comprehensive historic architecture survey of the “historic portion” of the city was conducted. This foundation led to the creation of ten National Historic Districts, historic preservation regulations, and the Neighborhood Conservation Overlay District (NCOD). Since then, the current preservation regulations in Section 38.340 of the Bozeman Municipal Code have been applied to new development, alterations, and demolition within the historic districts and the NCOD via the Certificate of Appropriateness (COA) process. The Bozeman Historic Preservation Policy & Local Landmark Program project (“Landmark Project”) centers on evaluating and revising the existing preservation policy. This project will: • Revise Section 38.340 of the Bozeman Municipal Code (BMC); • Fine-tune the review criteria and standards for COA applications; • Update the boundaries of the Neighborhood Conservation Overlay District where conflicts exist; • Create a local landmark nomination process, criteria and application form; • Update Historic Preservation Advisory Board responsibilities in BMC Section 2.05.860 and 2.05.930; and; • Make amendments to the existing Bozeman Guidelines for Historic Preservation & the Neighborhood Conservation Overlay District. Executive Summary Photo Credits: (Clockwise from left) Little Wolf (c.1820—1904) was a Northern Só’taeo’o Chief and Sweet Medicine Chief of the Northern Cheyenne who fought the war for the Bozeman Trail between 1866 and 1868. Credit: Montana Historical Society. The intersection of East Main Street and Bozeman Street circa 1970s. Properties built in the 1970s may be eligible as historic. Credit: Gallatin History Museum. Streetcars in downtown Bozeman, c.1895. Credit: Montana Historical Society. 454 98 The scope of this project includes a holistic approach to historic preservation. Preservation should not be treated as a stand-alone initiative. Rather, it should be a consideration in larger planning issues. Where applicable, the following icons will appear throughout the report to indicate where those planning issues and preservation intersect. Preservation and Planning Connections HOUSING PEOPLE RESILIENCE ECONOMICS OCTOBER 2023 NOVEMBER 2023 FEBRUARY 2024 JULY 2024 Consulting contract signed. Project kickoff; research and engagement begins. Continued outreach to community representatives and city staff. Community engagement and outreach events. Community survey launches. TIMELINE SEPTEMBER 2024 Community survey closes, having received 292 responses.OCTOBER – NOVEMBER 2024 Initial policy and program recommendations document prepared. Recommendations shared at HPAB, Community Development Board, and City Commission meetings. DECEMBER 2024 – MARCH 2025 SPRING 2025 Phase 1 deliverable report finalized. Phase 1 deliverable report presented to HPAB, Community Development Board, and City Commission for final adoption. The City of Bozeman engaged Community Planning Collaborative (CPC) in Fall 2023 to assist with the Landmark Project. The Landmark Project is split into two phases. The first phase has focused on research, data collection, and community engagement, which have been incorporated into the recommendations in this report. The second phase will implement some of the recommendations with code amendments as needed. This phase is intended to happen in spring and summer 2025 and wrap up during fall 2025. SUMMER – FALL 2025 Phase 2 policy development and code amendments based upon adopted recommendations. Bozeman combined a variety of active and passive community engagement strategies. Early efforts included consultations with city staff and community organizations, as well as an exploration of the area’s Indigenous history led by Dr. Shane Doyle. Engagement extended to Montana State University students, who researched and designed historic markers for sites of significance. These projects informed temporary marker installations and contributed to public events, such as Preservation Month activities and youth-focused initiatives at the Gallatin History Museum. Through open houses, roundtables, and tabling events at locations like farmers markets and parks, residents of all ages and backgrounds shared their stories, identified culturally significant locations, and expressed priorities for preservation. In parallel, a digital survey, supported by temporary signage, social media outreach, and translated materials, captured input from nearly 300 participants. These efforts ensured inclusivity and highlighted diverse aspects of Bozeman’s history, from Indigenous traditions to industrial development. The community’s robust feedback, gathered through events and surveys, shaped the program’s Initial Conversations document, which outlined potential policy recommendations and was reviewed by the Historic Preservation Advisory Board (HPAB), Community Development Board (CDB) and the City Commission. By fostering a sense of shared heritage through education, outreach, and active participation, this project has laid a foundation for preserving Bozeman’s cultural identity while aligning with community values. COMMUNITY ENGAGEMENT FOR THE LANDMARK PROJECT 455 1110 RECOMMENDATIONS WITHIN PROJECT SCOPE (PHASE 2) Related to Chapter 38.340: Overlay District Standards • Certificate of Appropriateness (COA) Process and Application ◦ Certificate of Appropriateness - address standards, exemptions, application requirements, review procedures and criteria. Consider alternative name for Certificate of Appropriateness. ◦ Deviations - update section related to deviations from the underlying zoning requirements to include definitions for “historically appropriate,” clarify criteria, and make consistent with recent state law. ◦ Demolition section - update criteria, review process, documentation, two-year stay, “economic life remaining.” • Documentation requirements - update process for submitting state inventory. Create local historic/cultural resource inventory form. Neighborhood Conservation Overlay District • Address Neighborhood Conservation Overlay Boundaries (NCOD). • Make amendments to the existing Bozeman Guidelines for Historic Preservation & the Neighborhood Conservation Overlay District to correct outdated information. Local Landmark Program • Create local landmark nomination process. Historic Preservation Advisory Board • Update Historic Preservation Advisory Board Roles and Responsibilities. This project builds on the successes of the City of Bozeman’s existing preservation efforts. The City of Bozeman actively secures funding to support preservation efforts, including a 2009 Saving America’s Treasures Grant to restore the Story Mansion, digitizing property inventory forms from the 1984-1986 survey, and updating or creating new surveys for properties. The City’s GIS mapping system offers valuable technological tools like the Historic Architecture Inventory Map and digitized Sanborn maps. Recent inventory updates for historic structures and research on homes associated with the African American community add to the base of information about Bozeman’s history. Each May, Bozeman celebrates National Preservation Month with a themed lineup of events, such as scavenger hunts, tours, and speaker events, culminating in the Historic Preservation Awards, which honors projects, people, and places that highlight the city’s historic and cultural heritage. Above, from the top: 308 South Bozeman Avenue was built by Samuel Lewis in 1881 and listed on the National Register of Historic Places in 1999. Born in Haiti in 1835, Lewis settled in Bozeman in 1868 and was a Main Street barbershop owner and commercial real estate developer. Credit: Montana Historical Society The City’s Preservation Awards, given out during Preservation Month in May, are an excellent strategy to celebrate preservation in Bozeman and honor the efforts of historic preservation stewards. Credit: Sarah Rosenberg Below: The City’s GIS Division has uploaded historic Sanborn Fire Insurance Company maps that can be layered on contemporary aerials. This is an incredibly helpful and publicly accessible feature that helps show the evolution of buildings and development in Bozeman. Credit: City of Bozeman GIS Division Screenshot image of the Engage Bozeman website for the Landmark project. Credit: City of Bozeman 456 1312 FUTURE RECOMMENDATIONS Outside of Phase 2 Scope • Initiate complete update to the Bozeman Guidelines for Historic Preservation & the Neighborhood Conservation Overlay District as soon as possible. • Consider how historic preservation interfaces with the Unified Development Code update. • Consider Heritage Trees as part of the Urban Forestry Management Plan update. • Strategize historic and cultural resource survey efforts. • Consider a citywide historic preservation plan or equivalent chapter in a future Growth Policy update. • Explore options for preservation project funding and incentives. • Provide ongoing support for the historic preservation program. • Develop context studies. • Consider using Urban Renewal grants to incentive survey and documentation and adaptive reuse and rehabilitation for projects that align with URD goals. • Collaborate with the Parks and Recreation Department on a Sunset Hills Cemetery master plan update. • Consider adopting a deconstruction policy and program. • Consider creating a legacy business program. • Consider integrating archaeology into the historic preservation program. • Implement a more comprehensive education, outreach, and interpretation program. Project teams visits included visits across the City to understand the various types of historic and cultural resources in the community. Credit: Adrienne Burke Project team members Jacqueline Drayer, Adrienne Burke, and Sarah Marsom with Sarah Rosenberg, Bozeman Historic Preservation Officer, showing their heritage marker artwork created during community outreach in July 2024. Credit: Stephen Newport (From left to right) Project team members engage children at the Parks and Recreation Department’s summer camp in July 2024. Credit: Adrienne Burke Microballots available during community outreach gave participants a chance to show support for Bozeman’s heritage. Credit: Sarah Marsom 457 1514 The land now known as Bozeman, Montana, tells a multifaceted story shaped by millennia of human and natural activity. Indigenous nations, including the e Séliš (Bitterroot Salish), Qlispé (Pend d’Orreille), Ktunaxa (Kootenai), Pikuni (Blackfeet), Tsistsis’tas (Northern Cheyenne), Apsáalooke (Crow), Anishinaabe (Chippewa), Nehiyawak (Cree), Metis, Nakoda (Assiniboine), A’aninin (Gros Ventre), Dakota, Lakota, and others, used the area as a seasonal hunting and gathering ground, forging deep connections with the land. These tribes traded, allied, and evolved over centuries, leaving a profound legacy that predates Bozeman’s establishment. European contact began in the early 1800s with explorers like Lewis and Clark, followed by settlers who disrupted Indigenous ways of life. John Bozeman and others developed the Bozeman Trail in the 1860s, exploiting Indigenous routes to fuel gold rush migration and commerce. This incursion led to violent conflicts, the establishment of military forts, and ultimately the forced relocation of Indigenous peoples to reservations. Bozeman, founded in 1864 and incorporated in 1883, grew as an agricultural hub supported by irrigation, fertile land, and access to markets via wagon trails and later railroads. By the late 19th century, the city thrived on grain production, cattle ranching, and trade, becoming a stable community amidst the boom-and-bust cycles of other Montana towns. Many diverse groups contributed to its development, though racial and economic inequalities persisted. The 20th century brought modern growth and cultural shifts. Railroads, automobiles, and the arrival of Interstate 90 in 1966 transformed Bozeman into a regional center. Institutions like Montana State University, the Museum of the Rockies, Yellowstone National Park, and Big Sky Resort underscored its role in education, history, and tourism. However, this growth also reflected national challenges, including racial tensions and economic disparities. Bozeman’s population surged in recent decades, driven by tourism, outdoor recreation, and an evolving economy. Despite dramatic changes, the city remains tied to its history—a story of resourcefulness, resilience, and rapid transformation over centuries. BOZEMAN HISTORY OVERVIEW See Appendix A for a more detailed history. Overview of Historic Preservation in Bozeman Beginning this project with an introduction to the Indigenous culture of the Gallatin Valley was the appropriate foundation from which to start. Article X, Section 1(2) of the Montana Constitution states “The state recognizes the distinct and unique cultural heritage of the American Indians and is committed in its educational goals to the preservation of their cultural integrity.” The Montana Code §20-1-501(2)(a) states “every Montanan, whether Indian or non- Indian, be encouraged to learn about the distinct and unique heritage of American Indians in a culturally responsive manner.” While the Constitution and MCA provisions are related to the responsibility of educational institutions, the intent behind the language is valuable in considering updates to the City’s historic preservation program. Local governments can also play a role in helping elevate and educate regarding Native American cultural heritage. MONTANA’S CONSTITUTIONAL OBLIGATION REGARDING AMERICAN INDIAN CULTURAL HERITAGE spotlight Photo Credits: (Clockwise from left) Margaret Pickett Yellowtail of the Crow Agency, 1936. The Apsáalooke (Crow) people have connections to the Gallatin Valley since time immemorial. Credit: Museum of the Rockies. Pikuni camp c.1910 near Browning. The Pikuni (Blackfeet) people have connections to the Gallatin Valley since time immemorial. Credit: Museum of the Rockies. Credit: Montana Historical Society. This image of Story & Co. Millers reflects the agricultural, industrial, and railroad history of Bozeman. Credit: Montana Historical Society. 458 1716 Photo Credits: (from top) Historic Gallatin County High School. Credit: Montana Historical Society. Ladies Imperial Band, here in 1905, are a women’s history story in Bozeman. Credit: Museum of the Rockies. Ellen Theater 1935, downtown Bozeman. Credit: Museum of the Rockies. The Roundup Parade through downtown Bozeman. Credit: Museum of the Rockies. Photo Credits: (from top) The Bozeman Colored Women’s Club in 1924 illustrates the diverse heritage of Bozeman. Credit: Montana Historical Society. Millers Jewelry 1951, downtown Bozeman: Credit: Museum of the Rockies. Leora Hapner Home, c.1910. Credit: Museum of the Rockies. West Main Street in 2023. Credit: Ennis Davis, AICP 459 1918 Community events make a place special by uniting people and celebrating traditions, stories, and cultural expressions. They highlight intangible heritage by preserving and sharing customs, ensuring they remain meaningful for future generations. Bozeman’s Sweet Pea Festival is a community tradition connected to the city’s agricultural past. Today’s modern version of yesteryear’s Sweet Pea events maintains a cultural thread across time. THE SWEET PEA FESTIVAL (from top) One of the highlights of the historic Sweet Pea event was a parade with vehicles decorated with flowers. Credit: Montana State University Archives Sweet Pea parades took place at least until 1930. Credit: Museum of the Rockies Bozeman’s history of urban development through institutional planning and land use began with its incorporation in 1883. Unlike today, Bozeman in the late 1800s was divided into four wards represented by two aldermen. The first city officials, including Mayor John V. Bogert and eight aldermen, initiated early efforts to regulate the city’s physical and civic development. A street commissioner managed streets, alleys, and sidewalks, while a city engineer, appointed in 1885, handled surveying, platting, and public works projects. Early planning primarily focused on public works like roads, parks, and water infrastructure, with limited regulation for broader urban development. Public health and cleanliness were pressing concerns, leading to ordinances addressing nuisances such as maintaining clean barns and traversable sidewalks. Fire safety prompted building codes requiring fireproof materials for downtown construction. These regulations, though fragmented, laid the groundwork for modern land use governance. In 1922, Bozeman adopted its current charter from of government; it utilizes a city commission-city manager structure. The city engineer’s role remained integral, but was restructured to align with the evolving governance model. A significant milestone came in 1935 with the adoption of a zoning code, now substantially evolved and known as the Unified Development Code, which centralized regulations and introduced modern planning practices. The establishment of a joint City-County Planning Board in 1957 further professionalized planning efforts, leading to the city’s first community plan in 1958. Subsequent plans have guided Bozeman’s growth. In 1999, the joint city-county planning program was replaced by the Bozeman City Planning Office, with Gallatin County forming its own planning office. Today, the Planning Division and Historic Preservation functions operate within the Community Development Department. Bozeman is currently overhauling its Unified Development Code to address contemporary challenges, including zoning district consolidation. Historic preservation is guided by Chapter 2, Article 5 of the municipal code, which establishes the Historic Preservation Advisory Board, and Chapter 38, Article 3, Division 340, outlining standards for the Neighborhood Conservation Overlay District. These efforts reflect Bozeman’s commitment to balancing growth with heritage conservation. ZONING AND LAND USE HISTORY See Appendix B for more detailed information. spotlight 460 2120 Map illustrating the 19th century wards in Bozeman.. Credit: Ennis Davis, AICP The local community’s formal efforts to honor its history began nearly 50 years ago with the founding of the Gallatin Historical Society in 1977, followed by the opening of the Pioneer Museum (now Gallatin History Museum) in 1982. In 1978, architect John DeHaas, Jr. initiated the city’s first historic preservation effort by preparing a National Register nomination for the South Willson Historic District, laying the groundwork for future preservation initiatives. In 1983-1984, a comprehensive survey of nearly 4,000 properties, led by preservation architect James R. McDonald, established a foundational inventory of Bozeman’s historic resources, focusing on buildings then over 50 years old. This survey largely defined the boundaries of the Neighborhood Conservation Overlay District (NCOD) established in 1991, encompassing 3,100 properties, 8 historic districts, and more than 40 National Register-listed sites. Presently there are 10 historic districts and 48 National Register-listed sites. The creation of the Historic Preservation Advisory Board (HPAB) in 1985 formalized the City of Bozeman’s preservation efforts. The program originally relied exclusively on standards established by the Secretary of the Interior. Those were found to be difficult to use, therefore, the Bozeman Guidelines for Historic Preservation and the Neighborhood Conservation Overlay District were adopted in 2006. Besides subchapter 4-B, which was added in 2015 that addresses infill development in the B-3 zone district and Main Street Historic District, the guidelines have not been updated to reflect evolving standards and trends in planning and historic preservation best practices. Preservation efforts have concentrated on architectural integrity, while cultural and historical significance remain underexplored. The City of Bozeman also became a Certified Local Government (CLG) in 1986. This is a program with the State Historic Preservation Office that aims to bring attention to local preservation issues and support communities with a historic preservation program. Bozeman receives an annual CLG grant to support efforts to help reach its preservation goals. Subsequent surveys have re-evaluated some historic resources within the NCOD. Between 2015 and 2021, surveys of the B-3 Downtown District, B-2M Midtown District, and adjacent areas identified hundreds of properties eligible for the National Register, many from the mid-20th century that were previously overlooked or did not meet the 50 year age mark that is often used to classify historic structures. Between 2015 and 2021, surveys of the B-3 Downtown District, B-2M Midtown District, and adjacent areas identified hundreds of properties eligible for the National Register. Many were from the mid-20th century that were previously overlooked or did not meet the 50 year age mark often used to classify historic structures. Along with the overlooked histories and stories that are not reflected in existing inventories, Bozeman continues to develop new history every day which illustrates the need for program and data updating on an ongoing basis. Today, Bozeman’s preservation efforts are managed by the Community Development Department. As historic resources age and technology advances, EVOLUTION OF HISTORIC PRESERVATION IN BOZEMAN See Appendix D for more detailed information. 461 2322 HISTORIC PRESERVATION IN BOZEMAN 1977 Gallatin Historical Society Founded 1978 First National Register nomination prepared in Bozeman for the South Willson Historic District (now part of Bon Ton Historic District) 1984–1986 Comprehensive survey conducted of Bozeman buildings 1985 Historic Preservation Advisory Board and Historic Preservation Officer staff position created 1986 City of Bozeman becomes a Certified Local Government 1991 Neighborhood Conservation Overlay District established 2006 Bozeman creates city-specific design guidelines for historic properties 2008 Consultant recommends re-evaluation of Bozeman’s historic resources 2015–2022 City conducts three surveys of specific areas within the NCOD 2023 Bozeman begins the process of reimagining its historic preservation ordinance and creation of a local landmark program What does historic preservation mean to you? ANSWERS FROM LANDMARK PROJECT COMMUNITY SURVEY (July - September 2024) “It gives the community a sense of place and identity.“ “A living window into Bozeman’s heritage” “Appreciation for the character of my community “ “Respecting that our past matters and is significant“ “Maintaining a connection to our history” “Acknowledging the past while recognizing the future“ “ Celebrating the acknowledgement of the past and learning from the past to understand the present and develop a positive future.” “Proud past, promising future with our shared values and roots” “Culture” “Keeps the character of the city” “The continuation of a culture’s important objects for future generations to venerate.” “Truth” 462 2524 GALLATIN COUNTY Historic preservation is always connected to larger issues in federal, state and city planning and services. In order to put together this report, other reports and initiatives were reviewed. These include: FURTHER PLAN CONTEXT (From top) Cover of Bozeman’s Community Plan, 2020. Cover of Bozeman’s Climate Plan, 2020. Cover of Montana Post-World War II Architectural Survey and Inventory, 2020. Credit: City of Bozeman Updating the City’s historic preservation policy must also take into account other initiatives and regulations, including Urban Renewal Districts, zoning districts, design standards, and additional adopted plans. Historic preservation does not have to be seen as in opposition to these other efforts; rather, it can complement them and help provide additional context. PLAN OR POLICY CONNECTION TO HISTORIC PRESERVATION 2024-2026 City Commission Priorities 2025: City Affordable Housing Ordinance 2024: Bozeman Local Food Systems Plan and Mapping Project 2023: City Parks, Recreation and Active Transportation Plan 2021: UDC Affordable Housing Assessment 2020: Bozeman Community Plan 2020: Bozeman Climate Plan A Well-Planned City: Rework and restore a new historic preservation policy – including trees and landmarks Potential to complement adaptive reuse efforts with existing buildings. Encourages future agricultural preservation planning and building relationships with members of the Indigenous people’s community to strengthen connections to the region’s diverse agricultural heritage. Promotes stewardship, protection and enhancement of natural resource areas, trees and sensitive lands and the design of parks that reflect their unique neighborhoods. Includes recommendations to support and work with partner organizations to increase long-term affordable housing supply and housing preservation initiatives. Promotes stewardship, protection and enhancement of natural resource areas, trees and sensitive lands and the design of parks that reflect their unique neighborhoods. Includes policies that support vibrant and resilient neighborhoods, encouraging compact development, context-sensitive infill development in historic areas, mitigation for existing properties to facilitate climate and hazard resilience, and support of construction waste diversion and reuse of building materials. PLAN OR POLICY CONNECTION TO HISTORIC PRESERVATION 2017: Sunset Hills Cemetery Twenty- Year Plan 2016: Bozeman Urban Forestry Management Plan 2024: Envision Gallatin (County Growth Policy) 2023: Gallatin Valley Sensitive Lands Protection Plan 2020: Gallatin County Hazard Mitigation & Community Wildfire Protection Plan 2023-2027: Montana Historic Preservation PlanGallatin County Hazard Mitigation & Community Wildfire Protection Plan (2020) 2010: Montana Post World War II Architectural Survey and Inventory Plan provides recommendations and guidance for short-term and long-term planning for perpetual care of the future historic cemetery. Recommends using Montana’s Big Tree Program as a way to increase awareness of heritage trees and creating a heritage tree program to increase awareness for legacy trees. Provides historic overview of Gallatin County, identifies “heritage” as one of the plan’s three overarching themes recognizing the County’s cultural and historic significance especially Indigenous culture and contributions and agricultural heritage as well as natural heritage. Acknowledges Gallatin Valley’s Indigenous heritage and living legacy, agricultural heritage, and Tribal partnerships. References historic values of a community that includes historic sites and buildings, historic structures as related to the economy, and historic structures at Montana State University. SHPO priorities through 2027 include seeking and securing preservation funding and incentives, historic preservation promotion and education, increasing diversity in the field, documenting and evaluating Montana’s cultural resources. This project identified, documented, and evaluated select properties from Montana’s post-war period. It helps provide guidance in understanding mid-century architecture in the state. Bozeman sites surveyed include the Billion Dealership and several buildings on the campus of Montana State University. CITY OF BOZEMAN PLAN OR POLICY CONNECTION TO HISTORIC PRESERVATION STATE OF MONTANA PLAN OR POLICY CONNECTION TO HISTORIC PRESERVATION 463 2726 Preservation is addressed in Montana state law in the Montana State Antiquities Act (§§ 22-3-421 to 22-3-442, MCA). Local governments have a fair amount of flexibility with regards to local historic preservation programs. However, recent changes to Montana’s laws in the 2023 legislative session as well as the 2025 legislative session are affecting how local governments handle land use planning and historic preservation. For example, the Montana Land Use & Planning Act, passed in 2023 and effective as of the date of these phase 1 recommendations,, changes how local governments handle land use decisions by requiring all permit and design reviews to be conducted administratively by city staff. Decisions must be factually supported and consistent with state and locally adopted standards and criteria. Montana’s State Historic Preservation Office (SHPO) maintains a relationship with local governments through the Certified Local Government (CLG) program. Bozeman is a CLG and receives a small amount of grant funding from SHPO via a contractual agreement. Additionally, SHPO creates the Montana Historic Preservation Plan, which provides helpful guidance for preservation activities across the state. “It is vital for Indigenous people living here today to guide the inclusion of their cultures, foods, and Indigenous food sovereignty into City initiatives and educational programming. As the City explores how to authentically recognize the heritage of the Indigenous peoples for whom this valley is ancestral territory, it needs to take an intentional approach to building relationships, listening, and partnerships. As one project participant cautioned, ‘Do not reach out if you are not serious about putting in the time, offering space, giving those voices a seat at the table.’” – City of Bozeman Local Food Systems Preliminary Mapping Project (2024) MONTANA STATE LEGISLATION AND INFLUENCE spotlight • The 2019 NCOD Policy Direction report focused on gathering community input to refine the existing NCOD and strengthen the city’s historic preservation program. Key findings from the extensive community engagement process revealed widespread support for the NCOD’s goals, but also a desire for more flexibility and clarity in its implementation. The report recommended creating two distinct programs within the NCOD, one for historic preservation and one for neighborhood character, and developing three sets of design standards and guidelines tailored to different areas of the city. It also emphasized the need to phase in a local historic preservation program, expand incentives for historic property owners, and streamline the NCOD review process to make it more understandable and transparent for all stakeholders. Cover of Final NCOD Policy Direction Report from July 2019. Credit: City of Bozeman The Historic Preservation Policy and Local Landmark Project is a continuation of these prior reports, building on community support demonstrated for historic preservation. This project will implement the recommended local historic preservation program and provide a roadmap for further defining NCOD policy as suggested in the 2019 report in particular. Support for surveying and other programmatic preservation efforts is outlined in more detail in this report. PRIOR NEIGHBORHOOD CONSERVATION OVERLAY DISTRICT REPORTS (2015 AND 2019) • The 2015 NCOD report concluded that the existing NCOD boundary should be phased out and replaced with a combination of historic districts and design overlay districts. The report identified several key issues with the current policy, including a lack of up-to-date information on historic properties, rising housing costs, and a restrictive zoning code that made infill development challenging. It recommended prioritizing updates to historic property inventories, conducting a parking study, and revising the design guidelines to be more context-sensitive and flexible, particularly by expanding the use of ground-floor ADUs and simplifying the process for obtaining deviations from existing standards. See Appendix C for summaries of the 2015 and 2019 reports. Cover of Neighborhood Conservation Overlay District Report from December 2015. Credit: City of Bozeman 464 2928 Landmark Project Community Engagement Efforts Learning what makes Bozeman unique is at the core of the Bozeman Landmark Project. Since the Bozeman Landmark Project kicked off in November 2023, the project team has worked alongside City of Bozeman staff to implement passive and active engagement strategies to understand what the community’s priorities are for a local landmark program. See Appendix D for more detailed information on community engagement efforts. Engagement by the numbers 292 30 16 Full Community Surveys Completed Social Media Posts Across Accounts 20+ Temporary Heritage Markers Installed 224 Micro-surveys Completed Community Events Held or Attended 13 City Advisory Board Meetings to Date 16 Engage Bozeman Project Page news updates Project team members table at the Downtown Crazy Days event in July 2024. Credit: Adrienne Burke Landmark Project open house event at Fire Station 3 in July 2024. Credit: Adrienne Burke Even canine residents were interested in the Landmark Project. Credit: Adrienne Burke A temporary marker encouraging participation in the Bozeman Landmark Program. Credit: Sarah Marsom 465 3130 NOVEMBER 2023: PROJECT KICKOFF The consulting team visited Bozeman to meet with city staff and community organizations. Conversations focused on understanding Bozeman’s current preservation efforts, city programs, and community priorities. The kickoff included a historical overview from Dr. Shane Doyle, who provided insight into the Indigenous history and living culture of the Gallatin Valley. SPRING 2024: STUDENT ENGAGEMENT AT MONTANA STATE UNIVERSITY Professor Sarah Church engaged her students in a project to research and design historic markers for significant sites in Bozeman. Sarah Rosenberg provided a guest lecture to guide students in connecting historical research with community narratives. The students’ projects contributed to community engagement and the development of temporary historic markers. MAY 2024: YOUTH ACTIVITIES Youth activity sheets were launched at the Gallatin History Museum and during Preservation Month events. The activities encouraged intergenerational conversations about local history.A make your own marker worksheet. Credit: Sarah Marsom Dr. Shane Doyle gives the Landmark project team an overview of the Indigenous history and living culture of the Gallatin Valley, November 2023. Credit: Sarah Marsom JULY 2024: COMMUNITY ENGAGEMENT EVENTS The project team held various touchpoint events to engage the community and gather feedback: • Temporary historic markers, featuring selected MSU student projects, were installed throughout the city to share Bozeman’s history and promote the online survey. • Open Houses/Pop-Ups at locations like the Bozeman Fire Station and Beall Park allowed informal conversations with residents. • Focus Group Conversations with seniors, youth, and cultural community representatives provided structured dialogue to explore preservation priorities. • Tabling Events at the Farmers Market and Crazy Days festival reached a broader audience, with over 200 residents voting to prioritize preservation efforts. • The team hosted a Storytelling Signage Event at the Bozeman Library, where community members used art activities to share personal stories about Bozeman’s history. Sarah Rosenberg promotes the Bozeman Landmark Project at Catapalooza at MSU in August 2024. Credit: City of Bozeman July 2024 Storytelling Signage Event at the Bozeman Library. Credit: Stephen Newport 466 3332 Word cloud illustrating responses from the Landmark Project community survey in June - September 2024. Credit: CPC Team JULY – SEPTEMBER 2024: DIGITAL SURVEY PROMOTION The Bozeman Landmark Project digital survey was promoted through social media, temporary markers, and fliers placed around the city. The survey was translated into Spanish to ensure accessibility for Bozeman’s Latino community. It gathered input from 292 community members, providing valuable insights into preservation priorities. AUGUST – OCTOBER 2024: COMMUNITY ENGAGEMENT EVENTS CONTINUE Sarah Rosenberg and other city staff attended additional tabling events at Lunch on the Lawn and the Farmers Market in August, September, and October 2024, as well as neighborhood association meetings, to further promote the digital survey and raise awareness about the project. OCTOBER 2024: INITIAL CONVERSATIONS DOCUMENT RELEASED The consulting team analyzed research and community feedback to date to create an Initial Guidance document with suggestions for dialogue around potential policy and program recommendations. This document was shared with the public to solicit additional feedback. The document was discussed in detail with HPAB and the Community Development Board for further input. NOVEMBER 2024: CITY COMMISSION GUIDANCE The Initial Guidance Document was presented to the City Commission for feedback and direction. Information from public feedback on the report and board discussion was included for consideration into this final report. JANUARY 2025: HISTORIC PRESERVATION ADVISORY BOARD SURVEY Members of the HPAB took part in a survey sharing their thoughts about HPAB roles and responsibilities. Key Themes from Community Survey Responses Protection of Historic Structures: People value preserving buildings, homes, and landmarks. Cultural Heritage: Residents place a strong emphasis on the cultural significance of places. Neighborhood Identity: Maintaining the character and feel of neighborhoods is critical. Balancing Growth and Preservation: There’s a concern about balancing new developments with the protection of historic areas. Connection to the Past: People see historic preservation as a way to connect with and honor the past. Preservation Beyond Buildings: The responses also mention preserving natural landscapes and cultural traditions. Historic Buildings: The loss of historic structures, especially those designed by architect Fred Willson, was repeatedly highlighted. Gentrification Concerns: Many respondents expressed frustration about old homes and affordable housing being replaced with luxury condos that don’t align with Bozeman’s character or provide housing for locals. Community and Identity Loss: There’s a sense that Bozeman is losing its unique character and community-oriented feel. People miss the small-town charm, affordable places, and gathering spaces that fostered a sense of belonging. Preservation vs. Development: A recurring theme is frustration with the lack of preservation efforts. People feel that developers and city officials do not adequately prioritize preserving Bozeman’s history and character. Infographic summarizing results from the Landmark Project community survey in July - September 2024. Credit: City of Bozeman 467 3534 Map illustrating the location of Landmark Project community engagement sites in 2024. Various photos from July 2024 engagement activities. Credit: CPC Project Team The community survey included the option for people to map locations they think should be preserved and/or celebrated. Sites include areas around the City and even outside City limits. This is a sample map showing sites closer to downtown. Credit: City of Bozeman/CPC Project Team 468 3736 Recommendations within Project Scope (Phase II) Sanborn Fire Insurance Company Map of Bozeman, 1904. Credit: Library of Congress RELATED TO CHAPTER 38.340 PURPOSE OF CHAPTER 38.340 Stimulate the restoration and rehabilitation of structures, and all other elements contributing to the character and fabric of residential neighborhoods and commercial or industrial areas. New construction is invited and encouraged, as long as preservation is emphasized and new construction enhances and contributes to the aesthetic character and function of the property and the surrounding neighborhood or area. Contemporary design is encouraged as an acknowledged fact of the continuing developmental pattern of a dynamic, changing community. CERTIFICATE OF APPROPRIATENESS (COA) PROCESS AND APPLICATION RECOMMENDATIONS Certificate of Appropriateness application is required for exterior alterations, demolitions, and new construction of properties within the NCOD. New construction is invited and encouraged, as long as preservation is emphasized and new construction enhances and contributes to the aesthetic character and function of the property and the surrounding neighborhood or area Recommendations for the COA process and application: • Consider a different name for Certificate of Appropriateness. Some municipalities call them Certificate of Approval, while others use more general names such as Historic Preservation Permit. • Require COA applications for properties outside of NCOD if they are in a historic district or are individually listed on the National Register or as a Local Landmark. • Further define architectural appearance design guidelines to consider. Clarify elements that can be codified versus those best suited for design guidelines and when other code framework should be applied (i.e. Unified Development Code, Article 5). • Expand COA exceptions outlined in 38.340.040.A.1 especially for properties that are not within historic districts. • Differentiate minor vs. major projects and what process applies. • Clarify definition of historic structure in 38.700.090. DEVIATIONS FROM UNDERLYING ZONING REQUIREMENTS (38.340.070) Much of historic Bozeman was developed before modern zoning, subdivision, and construction regulations. As a result, some buildings and properties within the NCOD do not conform to current zoning standards. To support restoration, rehabilitation, and compatible new construction that enhances the district’s historic character, certain deviations from zoning requirements may be permitted. Recommended changes to the deviation section include: • Add a definition of “historically appropriate.” • Establish clearer criteria, requirements, and public notice (if required) for deviations. • Make review of deviations administrative, to comply with recent state law (Montana Land Use & Planning Act). 469 3938 Preservation Brief 16: The Use of Substitute Materials on Historic Building Exteriors was updated by the National Park Service in October 2023. This document provides guidance on the use and applicability of non-historic materials when reviewing projects under the Secretary of the Interior’s Standards for Rehabilitation. This document can provide insight into requests for alternate materials during the COA process. NATIONAL PARK SERVICE SUBSTITUTE MATERIALS BRIEF spotlight 1 16 PRESERVATIONBRIEFS The Use of Substitute Materials on Historic Building Exteriors John Sandor, David Trayte, and Amy Elizabeth Uebel National Park ServiceU.S. Department of the Interior Technical Preservation Services The Secretary of the Interior's Standards for Rehabilitation generally require that deteriorated distinctive architectural features of a historic property be repaired rather than replaced. Standard 6 of the Standards for Rehabilitation further states that when replacement of a distinctive feature is necessary, the new feature must “match the old in composition, design, color, texture, and other visual properties, and, where possible, materials” (emphasis added). While the use of matching materials to replace historic ones is always preferred under the Standards for Rehabilitation, the Standards also purposely recognize that flexibility may sometimes be needed when it comes to new and replacement materials as part of a historic rehabilitation project. Substitute materials that closely match the visual and physical properties of historic materials can be successfully used on many rehabilitation projects in ways that are consistent with the Standards. The flexibility inherent in the Standards for Rehabilitation must always be balanced with the preservation of the historic character and the historic integrity of a building, of which historic materials are an important aspect. Any replacement work reduces the historic integrity of a building to some degree, which can undermine the historic character of the property over time. With limited exceptions, replacement should only be considered when damage or deterioration is too severe to make repair feasible. When needed replacement is made with a material that matches the historic material, the impact on integrity can be minimal, especially when only a small amount of new material is needed. When a substitute material is used for the replacement, the loss in integrity can sometimes, although not always, be greater than that of a matching material. Also, whether historic or substitute material, there is a point where the amount of replacement can become excessive and the building’s historic integrity is diminished to an unacceptable degree, regardless of the material used—that is, a loss of authenticity and the physical features and characteristics closely associated with the property’s historic significance. The term substitute materials is used to describe building materials that have the potential to match the appear-ance, physical properties, and related attributes of historic materials well enough to make them alternatives for use in current preservation practice when historic materials require replacement. Compelling reasons to use a substitute material instead of the historic material include the unavailability or poor performance of the historic material, or environmental pressures or code-driven requirements that necessitate a change in material. When using a substitute material for replacement it is critical that it match the historic material in all of its visual and physical properties to preserve the historic character of the building and minimize the impact on its integrity. Substitute materials can be cost-effective, permit the ac-curate visual duplication of historic materials, and provide improved durability. While the behavior of traditional, his-toric materials is generally well understood, the behavior of newer materials can be less established and sometimes less predictable. Substitute materials are most successful when the properties of both the original material and the substitute are thoroughly understood by all those involved in the design and construction process. The architect must be adept at the selection of substitute materials and their incorporation into architectural plans and specifications. The contractor or tradesperson in the field must also be experienced with their use. This Preservation Brief provides general guidance on the use of substitute materials as replacement materials for distinctive features on the exterior of historic buildings. Due to the ever-evolving product market for construction materials, this Brief does not provide specifications for substitute materials. This guidance should be used in conjunction with qualified professionals who are knowledgeable in current construction and historic preservation practices. CATEGORY NOTES NUMBER OF APPLICATIONS Commercial Development Residential Development Demolition* Deviation** Major Projects – New Construction, Large Exterior Alterations Minor Projects – Storefront Remodels, Window and Door Replacement, Minor Improvements Add new dwelling – new unit, accessory dwelling or single family home All other residential COA 50 buildings total 7 of 12 reviewed by City Commission 25 54 91 345 39 12 566 Certificate of Appropriateness Applications: 2019-2025 TOTAL APPLICATIONS * Not all demolition applications have resulted in a demolition of a structure (i.e. COA expired, denied, still in review). See demolition section below for more details. **Deviations greater than 20% or more than one deviation request require City Commission review. CERTIFICATE OF APPROPRIATENESS Community Development A Certificate of Appropriateness (COA) is a certification that the design of a project is appropriate within the neighborhood or area in which it is located. COA approval is required for any alteration, demolition or new construction in the Neighborhood Conservation Overlay District (NCOD). COA approval may be required in conjunction with site plan review, planned unit development and/or conditional use/special use permit review. COA approval is required before the issuance of building permits. There are three types of COA applications: 1.Neighborhood Certificate of Appropriateness (NCOA) - residential properties within the NCOD 2.Commercial Certificate of Appropriateness (CCOA) - commercial properties within the NCOD 3.Demolition Certificate of Appropriateness (DEM) - demolition of a structure within the NCOD CodeReferenceUDC 38.340 Overlay District Standards Deviations from underlying zoning requirements Many structures within the NCOD do not conform to contemporary zoning standards. In order to encourage restoration and rehabilitation activity that would contribute to the overall historic character of the community, deviations from underlying zoning requirements. A deviation can be granted administratively or by the City Commission if there is more than a 20% change in the standard or more than two deviations is request. Per BMC 38.340.070, the criteria for granting deviations from the underlying zoning requirements: 1.Modifications must be more historically appropriate for the building and site in question and the adjacent properties. 2.Modifications will have minimal adverse effects on abutting properties or the permitted uses. 3.Modifications must assure the protection of the public health, safety and general welfare. Process Overview This flow chart visually describes the COA process for all development proposals in the NCOD. The application is reviewed for adequacy against the Unified Development Code (UDC), Design Objectives Plan and the COA standards. Dependent on the scope of the project, your application will be routed and reviewed by the Development Review Committee (DRC) or other advisory boards if deemed necessary. If your COA is part of a subsequent application (i.e. site plan), please see the Development Review Process handout for process overview. Below is the process for an independent COA application that does not require a deviation or public hearing. If an application is not complete or requires revisions to comply with the code, this timeline will be extended. START HERE 1 INTAKE Digitally submit your application through the Planning website. 2 ACCEPTABILITY REVIEW Application is checked over. Project is formally submitted. Planner assigned reviews it to determine if all related information on checklist is acceptable. 3 PROJECT REVIEW Planner and any other advisory boards review project to determine adequacy. If project needs more information, it will require revisions/corrections. 4 PUBLIC NOTICE If a notice is required (i.e. new dwelling within NCOD), a public notice period is conducted. 5 FINAL REVIEW Staff report is prepared, public notice ends and public comment is reviewed and considered. WEEK ONE WEEKTHREE -FOUR WEEK FIVE WEEK SIX 6 DECISION The City makes decision and determines approval of project. Once approved, a building permit can be applied for with the Building Division. WEEK SEVEN City of Bozeman Department of Community Development \ 20 East Olive, Bozeman, MT 59715 \ www.bozeman.net/planning \ 406.582.2260 Page 1 of 2 The City’s current COA approval process. This information is available online and is a good way to communicate process with the community. Fact sheets like this one are very helpful in making preservation requirements more accessible. Credit: City of Bozeman 470 4140 DEMOLITION (38.340.080-110) A multipronged demolition policy is vital to ensuring that historic buildings are preserved when they are structurally sound, and that there is suitable motivation to maintain them in the first place. A demolition policy must balance the need to ensure buildings and structures are safe, preserved when possible, and not excessively cumbersome to use and maintain. Defining each of these elements is frequently the cause of substantial disagreement among professionals. Preservation of older, if not necessarily historic, buildings is often environmentally favorable due to the embodied energy of existing buildings versus the carbon required to demolish and redevelop sites. However, if such buildings are dilapidated or in poor repair, they can contribute to blight in the area. Demolition policies vary widely by municipality. The most successful include: a clear way to determine threats to human health and safety, balance economic and historic considerations, incentives for reuse of materials, meaningful disincentives for illegal demolition, and mitigation. LIMITATIONS OF DEMOLITION POLICIES Local government historic preservation policies play a crucial role in regulating demolition within designated historic districts and for landmarked structures. However, these policies are limited by property rights considerations and broader legal frameworks. While cities can impose review processes, delay periods, and incentives to encourage preservation, they generally cannot permanently prevent demolition. The fundamental principle of property rights in the United States, reinforced by state and federal laws, ensures that property owners retain the ability to make decisions about their properties, including the right to demolish structures under certain conditions. As a result, one of the main functions of a demolition policy is to require a level of review prior to demolition. This allows for a process to occur that adds criteria and procedure for evaluating demolition requests. In addition, local governments often rely on policy tools such as demolition delays, economic hardship reviews, and negotiated alternatives rather than outright bans. This balancing act between preservation and property rights illustrates the challenges cities face in enforcing long-term historic protection while respecting property rights. BOZEMAN DEMOLITION DATA: 2018-2024 The number of demolitions since 2018 generally reflects an increase over time, corresponding to increased development pressure in Bozeman. The majority of approved demolitions are for non-contributing structures. Non-contributing means that the structure does not fall within the historic period of significance or has been substantially altered. A contributing or eligible structure is a historic structure that is either listed on the National Register of Historic Places, eligible to be listed on the National Register of Historic Places individually, or as a contributing building to an existing or potential historic district. Some demolitions fell under the unsafe provision of the code that is outlined in 38.340.110. As noted later in the report, routine surveying and/or ways to get updated inventory forms is very important in helping identify eligible contributing historic resources. 2018 1 2019 5 5 2020 5 2021 4 2022 7 2023 10 2024 5 37 8 27 9 YEAR NUMBER OF CONTRIBUTING NON-CONTRIBUTING UNSAFE PROVISION* DEMOLITIONS /ELIGIBLE 1 - Residence, contri- buting to potential historic district 1 4 considered unsafe 2 - Residential, contri- buting to potential historic district 3 - 2 commercial, 1 residential 4 - 2 commercial, 2 residential 2 - 1 residential structure contributing to Cooper Park Historic District; Hospital individually eligible 5 - Residential 2 - 1 eligible, 1 noncontributing 3 - 1 residential contributing to Cooper Park Historic District, 2 eligible commercial buildings 7 - 5 residential, 2 commercial 2 - Noncontributing3 - Residential 2 - 1 residential contributing to North Tracy Historic District; 1 group living contributing to potential historic district 10 - 7 residential; 1 commercial; 2 industrial 1 - Noncontributing , residential TOTAL BUILDINGS DEMOLISHED PENDING *Per 38.340.110, “The demolition of unsafe properties/structures may be subject to the public nuisance abatement provisions of chapter 16, article 2 of this code. Upon the chief building official’s determination that the property is unsafe and declaration of a public nuisance if the property owner does not resolve the unsafe condition, the review authority must give final approval on a COA, which may be initiated by the city, and the demolition permit will be issued so the city may abate a nuisance.” Demolition by neglect ordinances are legal measures aimed at preventing the gradual deterioration of historic properties due to prolonged neglect by property owners. While these policies are common across the country, the state of Montana has not adopted the International Property Maintenance Code and precludes municipalities in the state from doing so. If that changes at some point in the future, Bozeman should consider how property maintenance regulations or demolition by neglect provisions could help preservation efforts. This presents challenges for documenting properties for demolition as well as larger survey efforts. As part of Phase 2, a less complex, local inventory form will be created that helps capture basic locational and architectural information, general history, and photographs. This option will allow documentation of properties in a more economically feasible manner. The demolition of Deaconess Hospital in 2022 is a source of sadness for many in Bozeman. In earlier days of the Deaconess, photos show a party for babies born c. 1920s and the hospital in 1936. This Deaconess Hospital was demolished in the 1960s. Credit: Museum of the Rockies DEMOLITION BY NEGLECT 471 4342 Bozeman’s current demolition policy was adopted in 2015. The following recommendations to section 38.340.080-110 will further strengthen and clarify requirements around Bozeman’s existing demolition policy. The full extent of the code language in the demolition section will be part of Phase 2. Below is a list of overarching suggestions on what is recommended to be revised and altered: Demolition or movement of a historic structure or site • Apply demolition policy to sites in the NCOD as well as other landmarks and historic districts outside of the NCOD that would be considered historic structures. • Clarify review criteria, including the following: ◦ Alter economic viability provision (38.340.080.C.2) with clearer standards and process on how to determine economic viability and hardship subject to State Statute. ◦ Revise code exception language. ◦ Clarify the two-year stay demolition provision and guidance on the proceedings required at the end of the two years. ◦ Create additional criteria for the early termination clause for the applicant. Demolition or movement of all structures – historic or non-historic • Add documentation provisions for demolition proposals that require updated inventory forms if the form is more than 10 years old with initial submittal. • If housing will be demolished, evaluate whether the city can have the same number or more of housing units constructed in the replacement project consistent with design guidelines and site plan standards. • Create standards for movement of all structures. Demolition of unsafe structures • Require demolition of unsafe structure standards to only apply for historic structures. • Add standard requirements for information needed to determine that the property is unsafe. DOCUMENTATION AND ADMINISTRATIVE PROCEDURES – INVENTORY FORMS (38.340.120) There are over 3,000 properties that have historic inventory forms in the City of Bozeman. Most of these are located within the NCOD and were completed in the 1980s. These valuable forms act as a comprehensive record of a property’s historical significance and document a place’s cultural heritage. While there have been some efforts to update these inventory forms, most of them are out of date. While the City will continue to update these forms over time, this will take a lot of time and financial resources to accomplish. There are also hundreds of properties that have never had an inventory form completed. Presently, only demolition permits for properties within the NCOD require an updated or recent inventory form be submitted (38.340.120). It is recommended that the City expand documentation requirements through the following: • Require an updated inventory form if none is on file or an existing form is more than 10 years old for the following projects: ◦ Demolition of structures over 50 years old citywide ◦ Major modifications to structures that are in the NCOD, in historic districts, or individually listed on National Register or as a Local Landmark Requiring documentation of properties being demolished outside of the NCOD will take a more proactive approach on places that have not been inventoried or those that have inventory forms last completed in the 1980s. A building that was inventoried in 1986 might not have been considered historically significant, but decades later could be. This is common practice across many cities nationwide and allows for a much greater degree of building inventory than preservation survey and designation-focused efforts alone. Montana is unique in that the level of information required for a state A/ER inventory form is extensive. These forms must have “thorough architectural descriptions, histories of the properties, including title searches, significance statements, photography, and mapping/shape files” with an expectation that “properties will be inventoried in person and local research conducted at historical societies, city/county records, museums, and other organizations.” (Kate Hampton, Montana State Historic Preservation Office, February 2024) As a result, the cost per form can run from $1000-3500 per form depending on the complexity of the property. This presents a challenge for documenting properties for demolition as well as larger survey efforts. Bozeman could create a less complex local inventory form that could seek to capture basic locational and architectural information, general history, and photographs. This is a good option for documenting properties in a more economically feasible manner. MONTANA A/ER INVENTORY FORMS spotlight 472 4544SpringCreek90N17thAveN10thAveN15thAveN11thAveWBabcockStN14thAveWMainSt BozemanHighSchool&BridgerAlternativeHighSchool S15thAveS11thAveW KochSt WDickersonSt W StorySt S10thAveW KagyBlvd WAldersonSt BozemanCreek90 90LStEOakSt W PeachSt E GriffinDr NIdaAveWOakSt WTamarack St W GriffinDr StoryMill RdNBlackAveW VillardSt NTracyAveWBeall St EMendenhall St NBroadwayAveE Peach St NWallaceAveE Aspen St NChurchAveNBozemanAveBigGulchDr N3rdAveWMendenhallSt NWillsonAveELammeStN9thAveN5thAveWLammeSt CedarSt B o hart L n HillsideLn Baxter L nWCurtissSt WOliveSt WBabcockSt E Olive St EBabcock StN7thAveN7thAve Bridger Dr NRouseAveE Main St EMainSt Headlands StoryMillPark Story MillSpurTrail Bozeman F igginsCreekS3rdAveWDickerson St EKagyBlvd W StorySt SGrandAveWKochSt HighlandBlvdSRouseAveSWillsonAveKenyonDrEStory St Ellis St EGarfieldSt SBlackAveS9thAveS7thAveS7thAveS6thAveS4thAveS5thAveSChurchAveWKagyBlvd W CollegeSt WAldersonSt WGrant St W HayesSt Sunset HillsCemetery New HyaliteView SoftballComplex GallagatorLinear1Park BozemanDeaconessHospital Montana State University, Bozeman GIS, Montana State Library, Esri, TomTom, Garmin, SafeGraph,GeoTechnologies, Inc, METI/NASA, USGS, Bureau of Land Management, EPA, NPS, US Census Bureau, USDA,USFWS The current historic preservation program and related policies only apply to properties within the NCOD. While it has had many successes bringing awareness to neighborhood context and character and historic preservation, there have also been challenges such as how to differentiate between historic preservation and neighborhood character. There is no intention to eliminate the NCOD. However, using some guidance from the 2015 and 2019 NCOD Reports, updated survey data, further map analysis, and City Commission direction from the Initial Guidance Report, it is recommended to make some small adjustments to the boundary edge where conflicts exist. NEIGHBORHOOD CONSERVATION OVERLAY DISTRICT (NCOD) NCOD BOUNDARIES Current boundaries of the Neighborhood Conservation Overlay District and Historic Districts. Credit: City of Bozeman N12thAveN10thAveN11thAveJuniper St S11thAveS10thAveWCurtiss StS12thA veBozeman HighSchool&BridgerAlternativeHighSchool W Dickerson St W Story St S10thAveW Alderson St 3 14 6 8 197 Aasheim Gate Duck Pond BozemanCreekW Peach St W Tamarack St NBlackAveW Villard St NTracyAveW Beall St E Mendenhall StNGrandAve NWallaceAvePerkinsPlE Aspen St E Tamarack St NChurchAveN8t hAveN8thAveNBozemanAveN6thAveN4thAveN3rdAveN3rdAveW Mendenhall St NWillsonAveE BeallSt S7thAveS8thAveN5thAveE Lamme St W Aspen St W Lamme St NMontanaAveS9thAveSGrandAveSWillsonAveDurston Rd SWallaceAveSChurchAveSBlackAveW Curtiss St W Olive St W Babcock St SBozemanAveSTracyAveS6thAveN7thAveW Main St E Main St Northeast Midtown Bozeman W Dickerson St W Story St S3rdAveSTracyAveSGrandAveW Koch St SWillsonAveE Story St SBozemanAveS9thAveS4thAveS5thAveSChurchAveW College St W Alderson St W Hayes St GallagatorLinear1Park 9 Alumni Plaza 22 16MichaelP.MaloneCentenialMall Romney Oval 11 12 Plew Lot BozemanCreek Bogert ParkSouthCentral Cooper Park 90 B urlin gto n Northern RailroadNId aAveNBroadwayAveNPlumAveVillageDowntownPark Lindley Park KenyonDrPostDrKnolls Dr Sunset HillsCemetery Burke Park Knolls AtHillcrest Esri Community Maps Contributors, Montana State University, Bozeman GIS, Montana State Library, Esri, TomTom,Garmin, SafeGraph, GeoTechnologies, Inc, METI/NASA, USGS, Bureau of Land Management, EPA, NPS, US CensusBureau, USDA, USFWS Possible changes to the current NCOD boundary. Credit: City of Bozeman 473 4746 NORTH 7TH AVENUE RECOMMENDED BOUNDARY CHANGES The City Commission provided direction to remove North 7th Avenue from the NCOD on multiple occasions – during the adoption of the 2019 NCOD Policy Report and when providing input on the Initial Guidance Report for this project in November of 2024. Based on this feedback, the review of updated survey data, analysis of the underlying zone districts and the Midtown Urban Renewal District, and conversations with some property owners, it is recommended that not all of North 7th be removed, but small portions of it as follows: • Bozeman School District requests Whittier Elementary School to be removed. • Adjust boundary along Mendenhall back to North 5th due to lack of contributing structures. • Remove properties on corner of North 11th and Main Street due to lack of contributing structures. • 502 W. Mendenhall (American Indian Institute/Harris House) would still fall under Section 38.340 and COA review since it is on the National Register of Historic Places. N10thAveN11thAve191 N10thAveN11thAveS11thAveWOliveSt WBabcock St S12t hAveW Peach St N6thAveN4thAveN3rdAveN3rdAveN8thAveN9thAveN5thAveWShort St WAspen St NGrandAveDurston Rd N7thAveWestlake Park ChildrensMemorialGardens WestlakeCommunityGarden WhittierElementarySchool 191 WBeall St NGrandAveNGrandAveW Villard St N8thAveWMendenhallStN9thAve S7thAveS8thAveW LammeSt N5thAveS9thAveN3rdAveSGrandAveWOliveSt W Babcock St S6thAveS4thAveN7thAveW Main St BozemanSchoolDistrictProperty Midtown Bozeman Esri Community Maps Contributors, Montana State University, Bozeman GIS, Montana State Library, ©OpenStreetMap, Microsoft, Esri, TomTom, Garmin, SafeGraph, GeoTechnologies, Inc, METI/NASA, USGS, Bureau ofLand Management, EPA, NPS, US Census Bureau, USDA, USFWS Possible changes to North 7th Avenue NCOD boundary. Credit: City of Bozeman NORTHEAST RECOMMENDED BOUNDARY CHANGES • Remove City Shops Complex as it lacks historic significance. • Adjust boundary from Birch Street down to Tamarack due to buildings with lack of historic significance. • Simkins Hallin lumberyard property along Plum and Avocado to be removed because the majority of the property is outside of the NCOD. • It is likely that buildings in the M-1 zone district will not be repurposed for new use due to condition. B urlin gton N orthern R ailroad EOakSt BozemanCreek86 E Peach St NWallaceAvePerkinsPlE Cottonwood St E CottonwoodSt E Aspen St E Tamarack St NChurchAveE Fridley StNBozemanAveNBlackAveNRouseAveCityShopsComplex Bozeman PublicSafetyCenter Beall Park Northeast NBlackAvePerkinsPlE VillardSt NChurchAveNBozemanAveE Beall St NWallaceAveE Davis St NMontanaAveNRouseAveCity Hall HawthorneElementarySchool 90 BohartLn PearSt B urlingtonNorthernRailroadNId aAveNBroadwayAveNPlumAveFrontSt EFridley St EFridleySt NortheastNeighborhoodPocketPark NorthernPacificAdditionPark VillageDo w ntow n B lv dNBroadwayAveNPlumAveVillageDowntownPark Esri Community Maps Contributors, Montana State University, Bozeman GIS, Montana State Library, ©OpenStreetMap, Microsoft, Esri, TomTom, Garmin, SafeGraph, GeoTechnologies, Inc, METI/NASA, USGS, Bureau ofLand Management, EPA, NPS, US Census Bureau, USDA, USFWS Possible changes to northeast corner NCOD boundary. Credit: City of Bozeman 474 4948 SOUTHEAST RECOMMENDED BOUNDARY CHANGES • Remove Library and properties east from NCOD and align boundary to match up with property lines. • Residences to the south of South Bozeman and Dell Place lack historic significance related to the overall NCOD and were constructed between the 1990s and 2000s. Boundary line matches up with property lines. • Adjust boundary to remove any PLI property and parks from the NCOD if they are on the edges. 191 EMendenhall St SWallaceAveSChurchAveSBozemanAveE Olive St E Olive St E CurtissSt E Babcock St SRouseAveLindleyPlE Main St Alfred M.StiffProfessionalBuilding BogertPark Boz emanCreek E StorySt SBozemanAveE CollegeSt ButtonwoodAveE Koch St DellPlI ce PondRdSBlackAve SChur chAveBogart Pl Ice House Park BurkePark GallagatorLinear1Park Bogert Park 191 CypressAveE Olive St E Babcock St Golf WayE Main St BozemanPublicLibrary Lindley Park Lindley Park ButtonwoodAve Sunset HillsCemetery Esri Community Maps Contributors, Montana State University, Bozeman GIS, Montana State Library, ©OpenStreetMap, Microsoft, Esri, TomTom, Garmin, SafeGraph, GeoTechnologies, Inc, METI/NASA, USGS, Bureau ofLand Management, EPA, NPS, US Census Bureau, USDA, USFWS Possible changes to northeast corner NCOD boundary. Credit: City of Bozeman From top to bottom: Miami-Dade County, FL updated their historic preservation design guidelines in 2022. The guidelines are oriented in particular towards resiliency in the face of climate change effects in Miami. Credit: Miami-Dade County Design Guidelines for the La Alma Lincoln Park Historic Cultural District in Denver are available in English and Spanish. These guidelines were updated in 2022 after extensive community engagement and allow flexibility for characteristics important to the neighborhood. Credit: City of Denver All structures removed from the NCOD will be thoroughly documented. To adjust the NCOD boundary requires going through a Zone Map Amendment; notice is provided consistent with City requirements. In the future, if additional historic districts or other kinds of overlays are created with separate guidelines or standards, the NCOD may no longer be needed. This will be dependent on the implementation of the Local Landmark Program, future survey efforts, and updates to the Design Guidelines. DESIGN GUIDELINES The Bozeman Guidelines for Historic Preservation & the Neighborhood Conservation Overlay District (“HP Guidelines”) were adopted in January 2006 and amended in July 2015 to add Subchapter 4B. Design guidelines are tools that help provide guidance on alterations, new construction, demolition, and maintenance and serve as a suggestive guide and are not mandatory. In 2018, the city amended its zoning standards to include design requirements in all areas of the community that overlap with some elements of the HP Guidelines. While the HP Guidelines are still largely consistent with best practices in historic preservation, they should be updated to correct out-of-date references and improve usability. Updating the entire HP Guidelines are not part of this project scope, but in the interim, there will be amendments to the document to ensure they are consistent with the updated Unified Development Code until a larger update can take place. Recommendations for these amendments include: • Simplify how design guidelines apply to specific properties, how chapters apply, and the definition of each type of building evaluated. • Update any area that references old versions of the Secretary of the Interior Standards. • Update subchapter 4B for the B-3 Commercial Character Area to align with Article 5 of the UDC and any other related UDC changes. • Clarify residential, commercial, and mixed-use character areas with a map inserted into the guidelines. • Address zone edge transitions between residen- tial and commercial zoning as reflected in the upcoming UDC update. • The HP Guidelines should be referenced by title in the update to Chapter 38.340 and noted “as amended.” 475 5150 In recent years it has become increasingly common for municipalities to adopt local landmark programs that focus on cultural heritage when evaluating historic significance. Instead of just relying on the National Register of Historic Places standards, which has rigid requirements, these local programs can choose how to recognize what the community considers important to its heritage and culture. Broadening designation and review criteria can also help recognize people and places that have been historically excluded. The City of Bozeman does not currently have a citywide local landmark program. The code standards and design guidelines only apply to properties within the NCOD. In order to establish a Historic District or be individually listed as a Historic Landmark, the property must qualify for listing on the National Register of Historic Places. Establishing a local landmark program, as was also recommended in the 2019 NCOD report, will allow individual landmarks to be designated both within and outside the NCOD. A local landmark program will enable individual significant sites and districts across the city to be recognized, broadening the array of historic stories told in Bozeman. Landmark program policies must also include a process for appeals of COA decisions as well as a de-designation process. Appeals must follow state mandated land use appeals processes. There is an important difference at the local level, the landmark process can be made more accessible to members of the public wishing to nominate their properties. Buildings, structures, cultural landscapes, human-made landscape features, natural features, and more may all be designated under a local landmark program. Creating this program will require adding provisions to the code to implement it. There is a difference between historic landmarks/districts, overlay districts, and zoning districts. CREATION OF LOCAL LANDMARK PROGRAM Peets Hill could be considered a local landmark as a cultural landscape. Credit: Adrienne Burke Types of Districts NATIONAL REGISTER OF HISTORIC PLACES – DISTRICT OR INDIVIDUAL LOCAL LANDMARK DESIGNATION CONSERVATION OVERLAY DISTRICT ZONING DISTRICT Recognizes historic places and cultural heritage Established by Federal Government Voluntary, no regulation by itself, approved by the National Park Service via State Historic Preservation Office Bon Ton Historic District, Main Street Historic District, Baxter Hotel, Willson School Recognizes historic places and cultural heritage; may add extra rules to base zoning with special requirements Established by City Regulatory, but level may vary depending on type of designation Buildings, structures, cultural landscapes, natural features that might not qualify under National Register standards but are significant at the local level Adds extra rules to base zoning with special requirements Established by City, created by a Zone Map Amendment following state law criteria Regulatory, enforced by code and sets additional criteria Neighborhood Conservation Overlay District, Certificate of Appropriateness Regulates land uses and development Established by City, created by a Zone Map Amendment following state law criteria Regulatory, enforced by code Zone Districts – B-3 (Commercial) R-2 (Residential), REMU (Mixed Use) *Section 38.340.030 allows for properties to be added to the NCOD by the City Commission upon recommendation of the HPAB subject to the Section 38.260 Text and Map Amendment process. This provision also allows for removal from the NCOD. FEATURE PURPOSE CRITERIA ENFORCEMENT EXAMPLES 476 5352 Establishing a local landmark program requires categories, criteria, and a designation process. The recommended categories for a local landmark program in Bozeman are: 1. History/Historic Association: The landmark is associated with a historical person, event, period, social movement, group, or association that contributed significantly to the heritage, culture, or development of Bozeman. 2. Architecture: The landmark is associated with distinguishing characteristics of an architectural style, building type, or method of construction that is significant to Bozeman. It can also be the work of a major architect, builder, or craftsman whose works have influenced the evolution of their fields or are significant to the development of Bozeman. 3. Artistry: A landmark that displays artistic or aesthetic values that contribute significantly to the heritage and appearance of the neighborhood in Bozeman or promotes understanding and appreciation of the built or natural environment by means of distinctive physical characteristics or rarity. 4. Culture: The landmark is associated with an era of culture or heritage that allows an understanding of a community’s historically rooted beliefs, customs, and practices, how the site was used by past generations, or is a source of pride or cultural understanding. 5. Townscape or Landscapes: A landmark that represents an established and familiar feature of a geographic area due to its prominent location or physical characteristics. It represents a resource whether natural or human-made, which has historically or culturally contributed to the character of an area and to Bozeman. Examples could include trees, green or open space, waterways, settlement patterns, areas of industry, and methods of urban planning. 6. Archaeology: A landmark that yielded or may be likely to yield information significant to an understanding of historic or prehistoric events; cultures; and standards of living, building, and design. Criteria for potential landmark categories will be included in the Bozeman Municipal Code in Phase 2 of the project. Two criteria that are commonly found in landmark criteria include: • Integrity: Landmarks should possess sufficient integrity to convey or represent the qualities for the category. A property designated for architectural significance would have a different lens on integrity than cultural significance. • Age of landmark: The federal standard for classifying something historic is 50 years old. Municipalities can elect their own age standards; this may involve an evaluation that enough time has passed to provide perspective and evaluation of significance. Bacchus Pub, Hotel Baxter, c.1929. The interiors of properties are typically not regulated in local landmark programs. Credit: Museum of the Rockies DESIGNATION PROCESS As part of the creation of a local landmark program, a local landmark application will be developed along with an administrative manual that lays out the designation process. The following designation process is recommended: 1. Initiation of Nomination: Property owner, government agency, or community organization submits an application to nominate a landmark. Property owner consent is required. 2. City Review: The Historic Preservation Officer does initial review of application and works with applicant to ensure that all appropriate information is provided. 3. Notification of Nomination: Once application is deemed adequate, public notice is provided. 4. Historic Preservation Advisory Board Review: HPAB reviews the landmark nomination at a public meeting and makes a recommendation to the City Commission. 5. City Commission Adoption: City Commission would be the final decision authority to designate the landmark. POTENTIAL BENEFITS OF LOCAL LANDMARK PROGRAMS AND DESIGNATIONS: • Protection from Demolition or Unsympathetic Alterations – Local landmark status can ensure a review process before significant changes or demolitions can occur. The COA process helps provide additional review and regulatory benefits to the landowner that can help preserve these historic sites. • Zoning & Code Flexibility – Historic structures may qualify for adaptive reuse allowances or relaxed zoning regulations to encourage preservation. Section 38.340 already provides zoning relief and code flexibility through deviations for structures designated as historic or located within the NCOD. With the establishment of a Local Landmark Program and the further designation of historic properties, potential additional deviations will be explored. • Increased Property Values – Studies show that historic designation often stabilizes or increases property values over time. • Tourism & Economic Development – Landmark properties contribute to heritage tourism, attracting visitors and boosting local businesses. • Neighborhood Stability – Preservation efforts can enhance community identity and deter incompatible development. • Official Recognition – Landmark designation highlights a property’s historic significance and can enhance its cultural prestige. Additionally, landmarks could be recognized through a plaque program (funding allowing) and on the City’s website and mapping system. • Educational & Advocacy Opportunities – Owners can collaborate with historical organizations, host tours, and receive public recognition. • Promotion of Sustainable Development– Rehabilitating existing structures reduces landfill waste and conserves embodied energy. • Funding & Incentives – By being designated a local landmark, historic resources may be eligible for incentives, grants, or other benefits. See the Funding and Incentives section in “Future Recommendations” for additional information. 477 5554 Miami-Dade County, Florida’s historic preservation ordinance dates to 1981, which enables the County to designate local landmark properties and sites. Only one criterion has to be met to designate, and a site may be landmarked as associated with elements of the cultural, social, political, economic, scientific, religious, prehistoric, paleontological, or architectural history that have contributed to the history of the community. This is intentionally broad and has allowed for designation of sites associated with cultural heritage (vs. architectural heritage). The County currently oversees 141 individually designated historic sites, 46 archaeological sites and zones, and 8 historic districts. The nature of designation is included in the designation reports accompanying landmark applications. This determines what and how the property will be regulated for purposes of Certificate of Appropriateness review. MIAMI-DADE COUNTY’S LOCAL LANDMARK DESIGNATION PROGRAM spotlight The Liberty City Elks Lodge was designated for cultural significance. Because the property was not landmarked for architecture, limited character-defining features were noted for COA review in the designation report. Demolition also requires COA review. No other work requires a COA. HISTORIC PRESERVATION ADVISORY BOARD ROLES AND RESPONSIBILITIES (2.05.860, 2.05.930) The Historic Preservation Advisory Board is an appointed citizen advisory board made up of seven volunteers. Meeting on a monthly basis, HPAB focuses on promoting the historic preservation program through education, outreach, and policy direction. HPAB does not have any sort of review authority for development applications but upon request of the review authority (City Commission or Director of Community Development, depending on application type as identified in BMC 38.200.010 and as allowed by state law), may make recommendations regarding development applications. Members of the HPAB took a survey and discussed results at their January 15, 2025, meeting. This survey sought input from board members on their roles, responsibilities, and how they could shift in the future with the creation of a Local Landmark Program. While advisory boards have some limitations on their roles under Montana State Law, board members expressed interest in being more active and involved in larger policy projects that occur in the City. Based on the HPAB survey results and the Landmark Project team input, some recommendations for modifying their roles and responsibilities as outlined in 2.05.860 and 2.05.930 include: • Evaluate landmark nominations to make recommendations to City Commission • Participate in City policy and project discussions where appropriate and related to HPAB purpose • Encourage preservation of and education about cultural heritage Another preservation success is providing training for HPAB members. During Preservation Month in 2024, the National Alliance of Preservation Commissions visited Bozeman for Commission Assistance and Mentoring Program training. CAMP Trainers presented on “Why Preserve?” identifying and designating historic resources; preservation planning; resources of the recent past; conservation overlay districts; and diversity, equity, and inclusion in historic preservation. CAMP TRAINING MAY 2024 Members of the Bozeman Historic Preservation Advisory Board attend CAMP Training on May 11, 2024. Credit: Sarah Rosenberg spotlight HISTORIC PRESERVATION ADVISORY BOARD WORK PLANS The HPAB and City staff utilize a work plan to outline the board’s priorities for the upcoming two years. The 2022- 2024 Work Plan focuses on three key areas: education and outreach, historic resource survey and inventory, and preservation program development. The 2025-2027 Historic Preservation Advisory Board work plan is under development as of the writing of this report. Above: An Extreme History tour at Sunset Hills Cemetery. Credit: Sarah RosenbergBelow: Attendees at a Gallagator Tour held in partnership with Extreme History during Preservation Month. Credit: Sarah Rosenberg During Preservation Month 2024, the City partnered with Friends of Story Mansion for a cookie painting party where participants painted house cookies. Credit: Sarah Rosenberg The purpose of the Historic Preservation Advisory Board is to provide for an appointed citizen board for the city charged with establishing a local historic preservation program; integrating historic preservation into local, state and federal planning and decision-making processes; identifying, evaluating and protecting historic resources within Bozeman; and educating the general public about historic preservation. PURPOSE OF HISTORIC PRESERVATION ADVISORY BOARD IN BOZEMAN 478 5756 Sanborn Fire Insurance Company Map of Bozeman, 1904. Credit: Library of Congress Future Recommendations The following policy and program recommendations have been identified that are beyond the scope of this current Landmark Project. They are noted to ensure that historic preservation is considered in future updates and program advancements and aim to enhance preservation planning, community engagement, and the protection of historic and cultural resources. Through these strategies, Bozeman can further strengthen its connection to its heritage and history. The recommendations below are generally tied to the priority order outlined in the Implementation Chart as the end of this report. Many projects require funding, which should be a key consideration as the historic preservation program evolves. If the goal of the community and City Commission is to develop a more robust historic preservation program, it will require durable dedicated resources including staffing, funding, and maintenance. DESIGN GUIDELINES UPDATE The City should prioritize completing an update to the design guidelines as soon as possible. Existing design guidelines, with any updates, should remain in place until a full overhaul is completed. At that time, the old guidelines can be repealed, and the new guidelines can take effect. Recommendations for full design guidelines overhaul include, but are not limited to: • Expand period of significance to at least 1980 or 45 years from whenever the guidelines are updated. • Take into account any updates to The Secretary of the Interior’s Standards. • Create district-specific guidelines based on the different areas of the NCOD and local landmarks and districts. Emphasize resilience and sustainability through incorporating appropriate building materials. • Design guidelines should have a planned maintenance schedule and be updated at a minimum every 10 years, ideally concurrent with updated survey efforts. 479 5958 HISTORIC PRESERVATION INTERFACE WITH UNIFIED DEVELOPMENT CODE Community members expressed concern around the height, scale, and mass of new development adjacent to smaller-scale historic homes in particular. There is an inescapable tension between a desire to maintain an existing status quo and the need for communities to reflect the history they are experiencing today. Differences in construction practices, lending practices, and individual preferences cause new construction to differ from past construction styles. The disconnect between traditional zoning practice and local existing context has prompted frustration, confusion, and conflict in reaction to new development and historic properties and districts. New development continues to occur in Bozeman around areas like the downtown core, where commercial services and employment are located in walkable proximity to residential areas. Nevertheless, there are standards that could be put in place that would be more sensitive to historic structures and districts and still accommodate new development. The following should be evaluated in the current or a future UDC update: • Zone Edge transitions (38.320.060) ◦ Consider if adjustments to zone edge transition standards are warranted. • Historic Districts and Zone District Boundaries ◦ Consider how the existing built environment and historic districts relate to zoning district boundaries and planned future land uses. ◦ Evaluate the number of zone districts within one cohesive historic district ◦ These transitions could be cross-referenced in Section 38.340 and/or the design guidelines for coordination purposes. Supplemental guidance could be addressed in the updated design guidelines. Historic Martin Luther King, Jr. parsonage site on S. Jackson Street in Montgomery, AL with adjacent new construction. This demonstrates the disconnect that happens when buffers and transitions are not used adjacent to historic sites. Credit: Adrienne Burke HERITAGE OR LANDMARK TREES Throughout community engagement for the Landmark Project, numerous citizens voiced support for a heritage tree program that would help protect important trees in Bozeman. A heritage tree program was discussed at the Historic Preservation, Urban Parks and Forestry, and Sustainability board meetings. The City’s current Urban Forestry Management Plan (2016) includes language regarding heritage trees: • Use Montana’s Big Tree Program as a way to increase awareness of heritage trees • Create a heritage tree program to increase awareness for legacy trees The Forestry Division, housed in the City’s Parks & Recreation Department, is planning to kick off an update to its Urban Forestry Management Plan in summer 2025. The City Commission priorities for 2024 and 2025 (Resolution 5626) also references interest in exploring options for landmark trees: • Analyze City’s authority in declaring trees on private property as Landmark Trees • Include options in Urban Forestry Management Plan In most cases, local heritage tree programs are NOT run through historic preservation boards. Programs are typically managed by departments focused on parks, recreation, public works, or urban forestry. This is because these programs require arboricultural expertise for tree identification, maintenance, and enforcement. Tree protection and heritage tree policies are typically found in City codes related to site design, landscaping, or the environment. They are not usually found in historic preservation ordinances. There are sometimes collaborations between urban forestry divisions and historic preservation commissions. Historic preservation boards could play a role in heritage tree programs when trees are: located in a historic district, associated with historic properties or landmarks, or recognized as part of a cultural landscape (i.e., trees in cemeteries). In these cases, the preservation board might review tree removal or designation requests or work with urban forestry divisions to designate trees of historic significance. Designation would require consent of the property owner and there must be a process for withdrawing a designation. 480 6160 Fort Worth, TX has a legacy of honoring trees, hiring their first arborist in the 1920s and boasting Tree City USA designation, the longest running in Texas. Heritage trees can be nominated based on several criteria and nominations are reviewed annually. The City has created an ArcGIS Story Map to share existing heritage tree and process information. The Forestry Division of the City manages the program. FORT WORTH’S HERITAGE TREE PROGRAM Jerry Cashman with Cashman Nursery speaks during a Preservation Month tour in 2023. Credit: Sarah Rosenberg Fort Worth, TX has a heritage tree program that utilizes an ArcGIS Story Map to help share information about designated heritage trees in the city. Credit: City of Fort Worth, TX spotlight See Appendix E for full survey recommendations. HISTORIC AND CULTURAL RESOURCE SURVEY EFFORTS The initial 1984-1986 survey in Bozeman covered nearly 4,000 properties, primarily within the NCOD. Most of those surveys are now over 40 years old and don’t reflect current conditions or changes due to renovations and development. Resurveys in 2015, 2020, and 2021 documented about 300 additional sites, but resulted in no new designations. Additional survey work could assist in seeing additional sites added to the National Register of Historic Places or designated local landmarks. Past surveys primarily assessed pre-1930s buildings, neglecting landscapes and non-building features. Future efforts should modernize NCOD surveys, expand beyond the NCOD, and prioritize mid-20th century and culturally associated resources. Bozeman must clarify survey goals to ensure effective preservation, balancing designations with educational and celebratory uses. Survey efforts should extend to non-building resources such as signs, streetscapes, parks, cultural landscapes, and cemeteries. There is no requirement or maintenance standard to update survey forms and outdated inventory creates long-term challenges. In order to alleviate future situations where 2000+ inventory forms are out of date, the City must consistently dedicate funds for survey updates. A structured, transparent approach will ensure that Bozeman’s heritage is preserved for future generations. Prior NCOD report guidance suggests resurveying the NCOD, because inventory forms for the NCOD are out of date for certain areas, or areas have yet to be surveyed at all. The challenge is that prioritizing resurvey of the NCOD means areas outside the NCOD that also need survey would be further left behind unless a plan for concurrent surveying is developed. This is where a Citywide historic preservation plan could help establish priorities and strategy. 481 6362 In 2022, the City of Milwaukee’s Historic Preservation Commission kicked off an intensive level survey of the city’s houses of worship erected between 1920 and 1980. The survey specifically looked at this era to document sites that represented waves of immigration and cultural contributions beyond the city’s initial settlement. In 2020, Madison, WI released an Underrepresented Communities Historic Resource Survey Report. This survey evaluated resources related to the following communities and groups of people: First Nations, African American, Hmong, Latino/a, LGTBQ+, and women. MIDWEST SURVEY EFFORTS The City of Milwaukee’s survey of 20th century religious architecture documented a wide range of styles and religious traditions of city residents. Credit: City of Milwaukee spotlight Farmer threshing and farmhouse in rural Gallatin Valley scenes. Credit: Museum of the Rockies The accompanying map shows sites both in Bozeman outside of the NCOD and in Gallatin County that are associated with agriculture, green spaces, infrastructure, and oil that city staff wish to see surveyed. Credit: City of Bozeman GIS Department 482 6564 HISTORIC PRESERVATION PLANNING POTENTIAL CONSIDERATIONS FOR A BOZEMAN PRESERVATION PLAN In addition to the typical elements found in a preservation plan, the City of Bozeman could consider the following items in a Preservation Plan: • Use this report’s recommendations as a foundation for preservation planning. • Develop a preservation priority list based on community-identified areas to highlight significant places. • Consider integrating historic preservation into broader planning efforts such as the Bozeman Community Plan (Growth Policy), as is done with other community planning efforts. • Create a resilience and disaster planning preservation strategy for historic and cultural resources. • Explore ways to restore and optimize usage of existing historic City facilities such as Story Mansion, Beall Park, and the Lindley Center. A preservation plan is a long-range plan that can communicate, organize, and strengthen preservation efforts and coordinate with other community priorities. It can be a standalone document or part of another plan, and can be as broad as an entire city or as specific as a subarea. It creates an agenda for future preservation planning that can help prioritize protection of historic resources in a community and measure preservation’s progress. Preservation planning is a process that can: • Organize and strengthen preservation activities. • Define vision, goals, and priorities. • Proactively manage historic and cultural resources while preserving community character. • Guide the development and enhancement of a preservation program. • Balance historic preservation with competing land-use goals. • Integrate preservation with broader planning issues – housing, resilience, land conservation, cultural heritage, and economic development. • Foster community engagement and representation. The 2023 Des Moines, IA, Preservation Plan listened to the community and developed a plan based on three identified goals for the City’s historic preservation program - 1) Equitable and Inclusive 2) Community-Centered 3) Strategically Integrated. The goals, objectives, and actions detailed in the plan will guide the City for the next 10-20 years. This plan received the Commission of the Year award from the National Alliance of Preservation Commissions in 2024. DES MOINES, IA A July 2024 community engagement activity at the Farmer’s Market at Story Mansion. Cover of Reflect DSM: Des Moines Citywide Historic Preservation Plan, 2023. Credit: City of Des Moines spotlight 483 6766 See Appendix F for more information on funding and incentives. FUNDING AND INCENTIVES Historic preservation offers a range of incentives and resources to support the rehabilitation, adaptive reuse, and preservation of historic structures. However, most of these programs are designed for income-producing properties, nonprofits, and government-owned sites, leaving owner-occupied homes or other small residential properties with limited options. That is important for local governments and citizens to recognize, as locally established incentive programs could be created to close that gap. The Funding and Incentives appendix outlines a list of resources that currently exist to help private property owners preserve and restore a historic structure. The City of Bozeman has a few options to assist in preservation efforts. However, they could be further promoted. TAX ABATEMENT PROGRAM The City of Bozeman’s Tax Abatement Certificate of Appropriateness program rewards significant preservation efforts on properties listed on the National Register or located in historic districts. Promoting this program as an option is recommended. It has not been utilized much in the recent past, and the City should evaluate any barriers to use. PLANNED DEVELOPMENT ZONE Located in the Unified Development Code, Division 38.430, Planned Development Zone Districts allow for flexibility and encourage retention of historic buildings. This is a new program and to date, this option has not been utilized. PRESERVATION INCENTIVES A list of preservation and adaptive reuse incentive opportunities that the city could look into in the future: • Increase number of properties listed on the National Register of Historic Places ◦ Generally, Bozeman does not have many properties or neighborhoods on the National Register. Being on the National Register of Historic Places could allow contributing properties in these new historic districts or individually listed properties to tap into historic preservation tax credit and grant programs. • Overlap Incentives Programs: ◦ Overlap other federal, state and local economic incentives programs with preservation focused programs such as the National Register of Historic Places. This creates the opportunity to financially capital-stack adaptive reuse projects. • Permit process: ◦ Reducing bureaucratic hurdles and shortening approval times can make adaptive reuse projects more attractive. The YWCA Helena building was rehabilitated in 2016 to meet a critical social need with transitional housing and supportive services for homeless women and their children. $118,000 in Montana Historic Tax Credits and $470,000 in Federal Historic Tax Credits helped fund the $3 million rehabilitation project. ADAPTIVE REUSE AND HISTORIC TAX CREDITS YWCA Helena / The YWCA Helena building in Helena, MT. spotlight • Adaptive reuse: ◦ Adaptive reuse incentives, like tax credits, encourage repurposing existing buildings instead of demolition and new construction, promoting sustainability and economic revitalization. • Economic Development functions: ◦ Tax Increment Financing (TIF) grant programs provide funding for public or private projects by borrowing against the future increases in property-tax revenues to encourage preservation and adaptive reuse development projects. ◦ The City already uses a TIF program. However, applicability for adaptive reuse and restoration of existing structures could be revised. • Housing Tax Credits ◦ These offer financial benefits, like a percentage deduction from taxes, for projects involving the rehabilitation of historic structures or the repurposing of commercial buildings for residential use. 484 6968 The Astor, originally The Washington Building, was built in downtown Tacoma, WA in 1925. The property was recently rehabilitated into boutique-style apartments, bringing residents and vitality back to Tacoma’s urban core. Credit: Unico Properties ◦ Incentivizing maintenance is key; building partnerships with nonprofit organizations that offer home repair programs can support aging homes to remain safe and habitable. These partnerships can help fund essential repairs, such as roofing, plumbing, and energy efficiency upgrades, which might otherwise be unaffordable for homeowners. ◦ Explore historic property redevelopment programs with nonprofit partners. ◦ Implementing policies that promote alternatives to demolition, such as deconstruction or rehabilitation grants, can preserve existing housing stock while minimizing waste. The path to securing funding and incentives is not without challenges. Understanding the “capital stack”—the mix of funding sources and their impact on a project’s financial structure—is crucial. Eligibility requirements for tax credits and grants can also be restrictive, often requiring properties to be income-producing or publicly owned. Despite these hurdles, successful projects demonstrate the potential of these programs. For commercial and income-producing properties, tax credit programs provide significant benefits. The Federal Historic Rehabilitation Tax Credit allows a 20% income tax credit for rehabilitating properties listed on the National Register of Historic Places or listed as contributing to a locally designated district certified by the Secretary of the Interior, while Montana adds a state tax credit equal to 25% of the federal credit. City of Bozeman Department of Community Development20 East Olive, Bozeman, MT 59715 \\ www.bozeman.net/planning \\ 406-582-2260 \\ 1 Preserving Our Heritage: Listing Your Property on the National Register of Historic Places Updated 11/15 Preserving Our Heritage:Listing Your Property on the National Register of Historic Places WHAT IS THE NATIONAL REGISTER? The National Register of Historic Places is the Nation’s official list of cultural resources worthy of preservation and is part of a national program to coordinate and support public and private recognition of our historic places. Over 90,000 properties nationally, including hundreds of historic districts, have been listed in the National Register Collection since it’s inception in 1966. This important collection holds information on over one million individual resources—buildings, sites, districts, structures, and objects that are related to a wide variety of United States historical themes, from social movements to industrial technology to political and military history. Each individual resource provides a link to the country’s heritage at the national, state, and/or local level. The National Register is more than simply an honor roll of important prehistoric and historic properties, but rather seeks to foster a greater understanding of our history through the preservation of significant places, and by supporting and fostering public and private efforts to identify, evaluate and protect our cultural resources nationwide. In Bozeman, over 1,200 properties are listed on the National Register, some within the City’s ten distinct historic districts and some located outside the historic districts. Your home, if eligible for registration, might contribute to the fabric of our shared past. WHAT IS REQUIRED FOR NATIONAL REGISTER DESIGNATION? Properties must be nominated for National Register Designation and must be distinguished by having been evaluated according to uniform standards and historic criteria, which are applicable for historical importance at the local, state, or federal level. Basic significant criteria for an historic property or site include: ·An association with events that have made a significant contribution to the broad patterns of our history. ·An association with the lives of persons significant in our past. ·An embodiment of a significant architecturalstyle. · An ability to yield important data in prehistory or history. The most common criteria applied to National Register structures is whether the structure is an expression of significant architectural style, although the other criteria have been applicable in Bozeman. Usually, only cultural resources that have reached their level of significance of at least fifty years ago are eligible for listing on the National Register. Most importantly, for nomination, three key elements must be demonstrated regarding the significance of a property:·Historic significance – the overall importance of a property to the community, state and/or nation and is usually defined by the application of one or more of the four significant criteria listed previously. ·Historic integrity – demonstrated by the authenticity of a property through historic physical characteristics. ·Historic context – provides a framework for understanding the property by placing it in the proper theme, place and time. WHAT IS A NATIONAL REGISTER NOMINATION? Anyone can write a National Register nomination. The nomination itself is composed on the National Register of Historic Places Registration Form (available at www.nps.gov/ nr/publications/forms.htm). The form allows you to share the physical description of the property, information about its historical significance, dates of historic use, historic context, and a bibliography of references used in researching the property. Along with the form please include documentation consisting of photographs and maps. The City of Bozeman has been designated as a Certified Local Government by the Montana State Historic Preservation Office (SHPO), which means that the City will assist in the National Register nomination process through the Bozeman Historic Preservation Office. The SHPO will also assist by providing guidance to the applicant, providing National Register forms and instructional guides, by reviewing the nomination, and by advocating nomination of the property to the National Register. Please contact the City or the SHPO before completing a National Register Nomination form. WHY LIST MY PROPERTY ON THE NATIONAL REGISTER? Listing in the National Register contributes to preserving historic properties in a number of ways: ·Recognition that a property is of significance to the nation, the state, or the community. · Consideration in the planning for Federal or federally assisted projects. ·Eligibility for Federal tax benefits. The City already shares a fact sheet about the National Register program. Adding more information about tax credits specifically or creating a separate fact sheet about incentives would be a helpful outreach tool. Credit: City of Bozeman • Additional Considerations Sustaining a historic preservation program requires ongoing funding and staffing to ensure that historic resources are continuously documented and integrated into local planning efforts. Preservation is not a one- time effort, but an ongoing process that involves regular surveying of historic properties, updates to preservation plans and codes, and revisions to design guidelines to reflect evolving best practices. Without adequate funding, these essential activities fall by the wayside, leaving communities vulnerable to losing their historic character and cultural assets. Currently, the City of Bozeman has a Historic Preservation Officer (HPO) that is housed in the Community Development Department. The HPO acts as a staff liaison to HPAB, coordinates the historic preservation program, and helps in the development of local surveys, projects, and historic preservation planning documents. Along with ensuring the program acts accordingly with Certified Local Government status, the HPO also typically reviews planning development applications for properties within the NCOD. Since 2018, the City processed on average 80 Neighborhood Certificate of Appropriateness applications annually. Neighborhood COAs are applications reviewed for residential properties. The annual number of Commercial Certificate of Appropriateness applications is approximately 12 on average, and many of these applications are affiliated with site plan applications. With creation of a Local Landmark Program, COA applications and reviews will likely increase with the addition of local landmarks over time. This will impact the current staff workload and could generate the need for additional staff as the program grows. Many of the recommendations in this report that are beyond this project scope will necessitate ongoing funding to accomplish. For example, updating inventory forms averages $1000 per property and requires either staff or HPAB coordination. Investing in such initiatives with ongoing funding support will help the City honor its history while continuing to recognize historic preservation as a priority for the City and its residents. HISTORIC PRESERVATION PROGRAM SUPPORT 485 7170 Historic context studies can be understood as a narrative survey of a thematic historic preservation topic. In fact, these documents are often foundational in making choices about what resources to survey, evaluate, and treat as historic resources. Historic contexts are frequently the primary basis from which new landmark and district designations are proposed. They are particularly valuable in meeting Bozeman’s preservation needs because they can cover geographically disparate resources. Context Studies are also important because they provide the basis for evaluating potential historic resources’ integrity and identifying places that could be surveyed. It is increasingly understood that resources associated with underrepresented histories and time periods may not retain the high degree of integrity or architectural significance that other resources do. However, the point of the context study is to provide an opportunity to identify these important places and to further understand the history behind different groups of people or themed resources. These deeply researched documentation projects should be carried out by qualified historic preservation professionals. There are four context studies in particular that should be prioritized in Bozeman: • Native American history and communities, • Underrecognized communities, • Post World War II and mid-century modern resources, and • Agricultural history. In recognition of the city’s consideration of new land annexation, these may use as their focus part of or the entire Gallatin Valley, not only the city of Bozeman. See the appendix for more detail on the context studies. CONTEXT STUDIES See Appendix E for full context study recommendations. To recognize and honor those who have been part of Denver’s (CO) history, the City’s Landmark Preservation department launched an American Indian/Indigenous Peoples Historic Context Study in 2023. Supported by the National Park Service’s Underrepresented Community Grant, the project is the second in a series of historic contexts to explore the diverse ethnic and cultural history of Denver. The first was a Latino/Chicano Historic Context Study. DENVER INDIGENOUS PEOPLES’ CONTEXT STUDY Left: The City of San Francisco adopted the African American Citywide Historic Context Statement in early 2024 after extensive community engagement. Credit: City of San Francisco Below: Educational brochures from Fort Collins created after completion of context studies. Denver has created an outreach brochure during their in- progress Indigenous Peoples’ study. Boulder highlights historic neighborhoods. Credit: Cities of Boulder, Denver, and Fort Collins Denver’s Latino/ Chicano Historic Context Study was also published in Spanish. Credit: City of Denver Left: A Crow Village in the Yellowstone River Valley circa 1874-1881. Credit: Montana Historical Society spotlight 486 7372 In Bozeman, Sunset Hills is one of the most recognizable cemeteries. Owned by the City and managed by the Parks and Recreation Department, the cemetery has a 20-year plan in place that was adopted in 2017. This four-page plan helps guide portions of the cemetery’s care. It is recommended that the City develop a robust master plan to help address challenges like landscape management, conservation of monuments, space planning, community engagement, and making the cemetery accessible to everyone. In a growing city like Bozeman, planning ensures cemeteries are preserved while staying an important part of the community. SUNSET HILLS CEMETERY MASTER PLAN Sunset Hills Cemetery, November 2023. Credit: Adrienne Burke See Appendix G for additional information on cemetery preservation. Many cities across the U.S. have successfully implemented master plans for their historic cemeteries, ensuring their preservation and ongoing relevance. These master plans provide helpful best practice examples for similar efforts that Bozeman may wish to explore. Examples vary from small to larger cities and include: Austin, TX; Salt Lake City, UT; Pleasanton, CA; Cambridge, MA; Dayton, OR; Shaker Heights, OH; Salem, MA; Kennesaw, GA; Fernandina Beach, FL and others. CEMETERY MASTER PLANS Fairmount Cemetery in Denver encourages public use of the cemetery with a dog walking group, while also ensuring dog walker etiquette. Credit: Fairmount Cemetery “Cemeteries provide access points to social history and opportunities to learn and reflect. Cemeteries offer rich interpretive opportunities, exhibiting the tangible and intangible heritage of a community. The act of interpretation…can provide a critical avenue for the preservation and survival of cemeteries.” - Mary Breffle and Mary Margaret Fernandez, Historic Oakland Cemetery (Atlanta) from “Unearthing Buried Histories” in Storytelling in Museums (ed. Adina Langer), American Alliance of Museums, 2022. Graphic representation of one of the historic Chinese community member’s headstones at Sunset Hills. Credit: Sarah Marsom. spotlight Above: Cover of Brookside Cemetery Preservation Plan in Dayton, OR. Credit: City of Dayton, OR 487 7574 Bozeman’s 2020 Climate Plan includes language encouraging movement towards a circular economy and being a zero-waste community. Two policies support this: supporting construction waste diversion and encouraging the development of material markets. During the engagement process for this project, the project team met with the City’s Sustainability staff to discuss this topic. Deconstruction ordinances require that buildings slated for demolition be carefully dismantled to preserve salvageable materials. These policies align with historic preservation goals by promoting the reuse of historic architectural elements, such as old-growth wood, bricks, windows, and decorative features, that would otherwise be lost to the landfill. DECONSTRUCTION POLICY AND PROGRAM Benefits of Deconstruction Ordinances PRESERVES HISTORIC MATERIALS Communities can maintain connections to their architectural history, reduce waste, and provide opportunities for adaptive reuse in future construction projects. SUPPORTS ECONOMIC DEVELOPMENT GOALS Policies can be paired with workforce training programs, creating job opportunities in deconstruction and salvage industries. ENCOURAGES CONTEXT- SENSITIVE INFILL DEVELOPMENT Use of historic materials can ensure that new construction better reflects historic development of the community. PREVENTS RAPID LOSS OF HISTORIC BUILDINGS Deconstruction is a method to be proactive about preservation and reuse of materials, ensuring demolition is done in a methodical way. Creating a deconstruction program is not as simple as adopting an ordinance. Rather, it involves at a minimum addressing workforce training, a market for salvaged materials, and potential incentives for selective deconstruction. While Bozeman and the surrounding area does have some deconstruction services, there is lack of sufficient vendors and service locations to support a city-wide deconstruction ordinance. It is recommended that if the City is interested in pursuing a deconstruction program that they research best practices, engage with interested parties to inform recommendations, and create a program and associated policies. • The Butte Citizens for Preservation and Revitalization organization salvages historic architectural features from demolition projects and sells the materials from April to October. • The Missoula Redevelopment Agency has a demolition alternatives policy that encourages deconstruction for demolition projects that are requesting tax increment assistance. They offer a brief deconstruction resource guide and deconstruction and demolition recycling resources. DECONSTRUCTION IN MONTANA spotlight Building in the process of selective deconstruction. Credit: San Antonio Reuse, City of San Antonio Report on Value of Material Reuse completed for the City of San Antonio Office of Historic Preservation, 2021. Credit: City of San Antonio 488 7776 PROGRAM BUILDING TYPE HERITAGE COMPONENT MANAGEMENT OF PROGRAM Boulder, CO Residential and commercial None, includes all full structure removal and major remodeling projects City does not dictate where the reused materials go, requiring only that 75% of the materials from deconstruction are diverted from the landfill. Portland, OR Residential Anything on the historic register as well as structures older than 1940 that are not necessarily historic Requires certified deconstruction contractor, reuse of materials left up to contractors and private market. City doesn’t store materials. City offers grant program to help with deconstruction projects. San Antonio, TX Residential - single- family homes and multi-family up to eight units Built before 1960 and is designated historic or within a conservation district Material Innovation Center - Partnership between Office of Historic Preservation and Port San Antonio, offers hands-on training courses for deconstruction and rebuilding, material warehouse, and community tool library. There are a variety of communities across the country that have deconstruction ordinances that contain a heritage component specifying deconstruction methods for structures that were either of a certain age or possessed historic significance. A list of some of these programs is below: A Deconstruction and Salvage Initiative was adopted by the City of San Antonio, TX, in 2022. The ordinance requires all demolition permits for structures constructed prior to 1920 (regardless of zoning overlay) or prior to 1945 (designated or within a neighborhood conservation district) to be issued with proof of work to be performed by a Certified Deconstruction Contractor. Deconstruction must be documented and the property owner may re-use, sell, or donate salvage materials from a deconstruction site. DECONSTRUCTION IN SAN ANTONIO spotlight Legacy business programs are local ordinances created to recognize, protect, and support longstanding businesses that contribute to a city’s cultural heritage and social fabric. These programs aim to preserve small, independently owned businesses that are at risk of displacement due to rising rents, redevelopment, or gentrification. Businesses can hold as much historical and cultural value as buildings and landmarks, and they play a vital role in maintaining a city’s unique identity and sense of place. During community engagement, Bozeman citizens identified important local businesses, including Owenhouse Ace Hardware, Daniels Meat and Sausages, Cashman Nursery, and Pickle Barrel, as examples. Communities that have legacy business programs include: San Francisco, Santa Monica, and Pasadena, CA; Austin, TX; Atlanta, GA; Chicago, IL; Washington, D.C.; Missoula, MT; Phoenix, AZ; and Laurel, MD. Most legacy business ordinances include similar components:: LEGACY BUSINESS PROGRAM Cities create a registry of businesses that meet certain criteria such as age of business or cultural significance. Programs may offer grants, tax rebates, or rent subsidies to business or property owners. Programs may offer business assistance, such as help with marketing, succession planning, or permitting. Members of the public may be involved through nomination of businesses to the registry or program. Legacy businesses may receive recognition in the form of a physical marker, inclusion in marketing or branding efforts, or proclamation. REGISTRY OF BUSINESSES FINANCIAL INCENTIVES TECHNICAL SUPPORT COMMUNITY INVOLVEMENT RECOGNITION • Spearheaded by Missoula’s Historic Preservation Commission • Recognizes businesses serving the community for 50+ years • Tool for providing educational and promotional assistance to legacy businesses • Serves as promotion of Missoula’s diverse heritage that includes business • Outcomes envisioned: branding recognition, legacy business tours, walking maps MISSOULA’S LEGACY BUSINESS PROGRAM spotlight 489 7978 Above: In 2023, DC Preservation League (DCPL) launched a promotional and educational legacy business program designed to raise awareness of longstanding businesses in the District, such as Ben’s Chili Bowl with was established in 1958. Credit: Ben Schumin at Wikipedia Right: The Stockyard Cafe, although no longer in operation, is an example of a community business that held special significance to members of the community. Credit: Mark Shaiken Montana archaeology helps uncover the state’s rich history and the stories of the people who have lived on this land over thousands of years. Archaeologists study artifacts, structures, and other remains to learn about how people adapted to Montana’s landscapes, hunted, traded, and built their communities. Indigenous peoples thrived in the region long before European contact. Many groups frequented the area at different times, including the Séliš (Bitterroot Salish), Qlispé (Pend d’Oreille), Ktunaxa (Kootenai), Pikuni (Blackfeet), Tsistsis’tas (Northern Cheyenne), Apsáalooke (Crow), Anishinaabe (Chippewa), Nehiyawak (Cree), Métis, Nakoda (Assiniboine), A’aninin (Gros Ventre), Dakota, Lakota, and other Indigenous people. Archaeologists have found campsites, tools, and rock art that reveal how these groups lived and interacted with the land. The arrival of Europeans in the 19th century brought major changes. Archaeological research on trading posts, forts, and settlements highlights the relationships and conflicts between Indigenous peoples and newcomers. Montana’s history also includes diverse groups like Chinese immigrants and African Americans who migrated to Bozeman in the latter part of the 19th century. Excavations of their homes and artifacts could offer a glimpse into their daily lives and contributions. By preserving and studying these sites, Montana archaeology connects us to the past, deepening our understanding of the state’s diverse heritage and inspiring appreciation for its cultural legacy. Partnership with the Tribal Historic Preservation Offices would be essential in development of any archaeological program in Bozeman. Potential archaeology action items: • Obtain archaeological predictive model maps to better understand probability of archaeological resources in the City, being mindful of protecting archaeological information for security and preservation reasons. • Explore options for creating an archaeological resource protection ordinance. • Honor and celebrate the archaeological heritage of the City through education and learning opportunities. ARCHAEOLOGY Above: The Mountain Time Arts installation outside City Hall adjacent to Bozeman Creek speaks to Indigenous experiences and recognizes the legacy of Tribal communities. Credit: Sarah Rosenberg. Right: Example of an archaeological predictive model map in Minnesota. Credit: Minnesota Department of Transportation 490 8180 See Appendix H for full education, outreach, and interpretation recommendations. EDUCATION, OUTREACH, AND INTERPRETATION Education and outreach are essential to historic preservation, fostering an engaged community that values both tangible and intangible heritage. Beyond protecting buildings and landmarks, preservation connects people to the stories, traditions, and cultural practices that shape their identity. The proposed Bozeman Landmark Program aims to enhance historic preservation by demystifying the designation process. Additional educational activities could also be incorporated to broaden public participation and understanding. Active strategies could include: • Hosting educational events during Preservation Month, typically held in May when it is recognized nationally, such as public meetings and workshops on historic designations. • Hands-on education opportunities, like cleaning historic headstones or trail maintenance, can engage the community in preserving public spaces. • Preservation pop-ups at local events can further promote the program, distributing resources and encouraging participation. • Homeowner education on preserving historic homes, social history, foodways, agricultural practices, and urban planning history. Passive strategies could include: • Developing educational resources, such as short guides that provide context on historic sites, preservation processes, and handouts on owning a historic structure. It is recommended that at least two new resources be released annually, ideally during Preservation Month. • Self-guided tours, both digital and physical, could highlight significant sites and storytelling themes, such as the Fred Willson property group. • Regular social media posts promoting events, meetings, and preservation tips. • Physical fliers at public locations. • Explore creating a local landmark signage program to enhance cultural storytelling. • Send out regular newsletters. By combining active and passive strategies, the Historic Preservation Program could create a more inclusive, informed, and engaged community, ultimately strengthening the city’s preservation efforts and celebrating its cultural heritage. The Medicine Wheel installation on Peets Hill is officially unveiled. Credit: Kurt Wehde via Gallatin Valley Land Trust Manistee, MI, has created eight self guided tours, which cover 150+ sites, and cover 150+ miles of road/trails. These guides are available digitally and physically; additional storytelling connected to the guides is found across the community on permanent interpretive signage. These materials were created through collaboration between Manistee County Visitors Bureau, Manistee County Historical Museum, the Little River Band of Ottawa Indians, and the City of Manistee. Developing storytelling materials through partnerships has ensured diversified distribution of materials and dynamic storytelling, which respects and honors a range of cultural histories. Bozeman has previously had self-guided heritage tour brochures. Dusting these off for updates and adding a digital component would be an easy way to support heritage tourism and educational opportunities for the community. SELF-GUIDED TOURS AND INTERPRETIVE HERITAGE TRAILS Bozeman Women’s Heritage Trail (1994) Booklet. Credit: Staudohar, Banks, Peavym, Smith, and Strahn (Photo by Adrienne Burke) African American Heritage Trail marker in St. Petersburg, FL. This marker is part of a larger trail in the Deuces neighborhood. Credit: Adrienne Burke Previous Bozeman tour brochures could be updated; accompanying digital versions or ArcGIS Storymaps could expand the educational experience. Credit: Historic Preservation Board of Gallatin County (n.d.); Bozeman Convention and Visitors Bureau (2005/2007) spotlight 491 8382 The “Ghost Rivers” installation in Baltimore, MD, provides artistic interpretation of landscape features that have been lost due to city development; the artist Bruce Willen creates “ghost rivers” to showcase the streams that are hidden below structures, but still impact local’s lives through flooded basements. Artistic endeavors to educate the public and interpret the past can present unique opportunities to help people see what once was or to be inspired by what still exists. ghostrivers.com GHOST RIVERS spotlight The Ghost Rivers project incorporates physical markers and digital components to highlight non-visible waters on the landscape. Credit: Public Mechanics via Colossal In January 2020, Missoula approved the Downtown Heritage Interpretive Plan. This is not a historic preservation plan. Rather, it focuses on using heritage interpretation in Downtown Missoula to preserve sense of place, communicate about Missoula’s heritage, build awareness of the city’s heritage, provide a resource for partners, support the Downtown Master Plan and the City’s Growth Policy. MISSOULA DOWNTOWN HERITAGE INTERPRETIVE PLANspotlight Bozeman is already engaging in heritage education in a unique way by including historic facts on trash cans downtown. Credit: Adrienne Burke Cover of the 2020 Missoula Downtown Heritage Interpretive Plan. Credit: City of Missoula 492 8584 Above: Brochures highlighting neighborhood and architectural history in New Orleans; Portland, ME; and Macon, GA. Credits: Preservation Resource Center of New Orleans, Greater Portland Landmarks, and Visit Macon (photos by Adrienne Burke) Left: A heritage storytelling signs event at the Bozeman Library held in July 2024 is a form of education, outreach, and community engagement. Credit: Stephen Newport This page intentionally left blank. 493 8786 Recommendations within Project Scope (Phase 2) Action Steps Responsible Party Partners Timeline Resources Needed Progress Metrics Revise Chapter 38.340 (Overlay District Standards) Draft ordinance, map analysis and creation Planning Division Consultant, GIS Department, City Attorney’s Office, HPAB, CD Board, City Commission Fall 2025 Staff time, GIS assistance, public engagement Adoption of updated code language Create local historic/cultural resource inventory form Identify best practices, create and implement local historic/cultural resource form Planning Division Consultant, HPAB Fall 2025 Staff time Implementation of local inventory form and use for documentation Update boundaries of Neighborhood Conservation Overlay District (NCOD) Identify any boundary updates and justification, Zone Map Amendment Planning Division Consultant, City Attorney’s Office, HPAB, CD Board, City Commission Fall 2025 Staff time, public engagement Adoption of updated NCOD boundaries Make amendments to the existing Bozeman Guidelines for Historic Preservation & the Neighborhood Conservation Overlay District to address immediate concerns Draft guideline language update, coordinate with current UDC updates as needed Planning Division City Attorney’s Office, HPAB, CD Board, City Commission Fall 2025 Staff time, public engagement Adoption of updated guidelines language Create local landmark program in Chapter 38.340 Develop criteria for local landmark program, establish application and review process, create administrative manual and application Planning Division Consultant, City Attorney’s Office, HPAB, CD Board, City Commission Fall 2025 Staff time, public engagement Adoption of updated code language, number of local designations; number of properties in a local district taking advantage of federal historic preservation tax credits Modify Historic Preservation Advisory Board responsibilities in Chapter 2.05.860 and 2.05.930 Draft code language proposal Planning Division Consultant, City Attorney’s Office, HPAB, City Commission Fall 2025 Staff time, public engagement Adoption of updated code language Future Recommendations Action Steps Responsible Party Partners Timeline* Resources Needed Progress Metrics Initiate complete update to the Bozeman Guidelines for Historic Preservation & the Neighborhood Conservation Overlay District Identify needed changes, develop RFP for design guidelines update, proceed with RFP process and select consultant, develop and implement community engagement strategy Planning Division Future Consultant, HPAB, City Commission Short-Term Staff time, public engagement, funding Adoption and implementation of updated guidelines Historic Preservation Interface with Unified Development Code Discuss districts and zone edge transitions with UDC project team, advisory boards and City Commission Planning Division UDC Consultant, City Attorney’s Office, HPAB, CD Board, City Commission Short-Term Staff time, public engagement Separate project (UDC) adoption 1 Implementation 494 8988 Consider Heritage Trees as part of Urban Forestry Management Plan update Research best practices and allowable options under Montana state law, create criteria for heritage tree designation, draft plan language, determine whether future code amendment needed Forestry Division Planning Division, City Attorney’s Office, Urban Parks and Forestry Board, Sustainability Board, HPAB, GIS Department, City Commission Short-Term Staff time, public engagement, potential funding Implementation of heritage tree program, number of designated heritage trees Strategize historic and cultural resource survey efforts Identify survey priorities, determine survey process, develop RFP for consultant assistance if needed, complete surveys Planning Division Future Consultant, HPAB, City Commission Ongoing Staff time, funding Updated historic and cultural resource surveys, surveys completed for areas that have never been surveyed before, survey priorities completed Consider a citywide historic preservation plan or equivalent chapter in a future Growth Policy update Develop RFP, proceed with RFP process and select consultant, develop and implement community engagement strategy Planning Division Future Consultant, HPAB, CD Board, City Commission Mid to Long-Term Staff time, public engagement, funding Creation and adoption of a historic preservation plan or chapter Explore options for preservation project funding and incentives Identify existing barriers, research best practices, identify local incentives, implement incentives, develop any needed applications Planning Division City Attorney’s Office, HPAB, City Commission, Development Community, partners in historic preservation (i.e. nonprofits, state agencies, historic societies, etc.) Ongoing Staff time, public engagement, potential funding Number of projects completed utilizing funding or incentives Ongoing support for the historic preservation program Continue to include funding for historic preservation staff and initiatives in future City budgets, demonstrate need and impact CD Director, City Manager, City Commission HPAB Ongoing Staff time, funding Budget dollars in each biennial budget, historic preservation initiatives funded Develop context studies Develop RFP for consultant assistance or determine opportunities for partnerships to complete, develop community engagement strategy, complete studies Planning Division Future Consultant, HPAB, City Commission, partners in historic preservation (i.e. nonprofits, state agencies, historic societies, etc.) Mid-Term Staff time, public engagement, funding Completed context studies, number of local designations based on context studies Consider using URD grants to incentivize survey and documentation and adaptive reuse and rehabilitation for projects that align with URD goals Research best practices, develop criteria incentivizing reuse of historic or existing buildings, coordinate with URD programs, promote opportunities, implement program Planning Division Economic Development, CD Board, Urban Renewal Boards, HPAB, City Commission, Development Community Mid-Term Staff time, funding Increased number of historic or existing buildings preserved or reused within the Urban Renewal Districts Collaborate with the Parks and Recreation Department on a Sunset Hills Cemetery master plan update Convene working group, research best practices, develop RFP for creation of master plan (if consultant desired), select consultant, identify community engagement strategy, develop plan Parks and Recreation Department Future Consultant, Planning Division, HPAB, partners in historic preservation (i.e. nonprofits, state Mid-Term Staff time, public engagement, funding Approval and implementation of Sunset Hills Cemetery Master Plan 2 495 9190 agencies, historic societies, etc.) Consider adopting a deconstruction policy and program Research best practices, engage with industry partners to inform recommendations, and create a program and associated policies Sustainability Planning Division, City Attorney’s Office, HPAB, Sustainability Board, City Commission, Contractors, Development Community, industry partners Mid to Long-Term Staff time, public engagement, potential funding, training, salvage market Implementation of deconstruction program and policy, number of construction materials diverted from landfills and reused, number of contractors trained to do deconstruction, number of places for salvage Consider creating a legacy business program Research best practices, create program, promote through public outreach Economic Development Department Planning Division, HPAB, City Commission, Bozeman Chamber of Commerce Mid to Long-Term Staff time, public engagement, potential funding Number of businesses designated as legacy businesses, number of legacy businesses that stay in operation for a determined period of time after being designated Consider integrating archaeology into the historic preservation program Research best practices, research allowable options under Montana law, partner with experts or find consultant to develop an archaeology ordinance or program Planning Division HPAB, MSU, SHPO Long-Term Staff time, public engagement, funding Implementation of archaeology ordinance and/or program Implement a more comprehensive education, outreach and interpretation program Research best practices, develop materials, host events, utilize social media and traditional media, establish partnerships for co-outreach opportunities, continue existing programs like Preservation Month and Awards Planning Division HPAB, Communications, partners in historic preservation (i.e. nonprofits, state agencies, historic societies, etc.) Mid-Term/Ongo ing Staff time, public engagement, funding Number of educational/outreach programs developed, number of people engaging with content and programs Continue existing partnerships with internal departments and external organizations Continue regular coordination, share updates and resources regarding historic and cultural resources Planning Division Other City Departments, HPAB, partners in historic preservation (i.e. nonprofits, state agencies, historic societies, etc.) Ongoing Staff time Number of routine meetings established, number of coordinated projects that include historic and cultural resources *Timeline: o Short-Term – This action is already underway or scheduled, and resources (funding, staffing) are available or likely to be obtained soon. o Mid-Term – This action may be dependent on other actions to begin first; may not be as time sensitive and/or resources (funding, staffing, partners) need to be identified or secured. o Long-Term – The action is a longer-term priority, it may need to begin after other mid-term actions and requires additional resources (funding, staffing, partners) for implementation. o Ongoing – No set timeline, but this action involves feasible periodic tasks to keep momentum for achieving historic preservation goals. 3 496 9392 Phase II of this project includes working on suggested amendments to Chapter 38.340 and supporting creation of the local landmark program. This effort is expected to happen after City Commission approval of this report and continue through Fall 2025. Community engagement will continue, and in-person formal presentations to HPAB, the Community Development Board, and the City Commission will occur. The following tasks are part of Phase II: Code Amendments and Design Guidelines • Draft amendments to Section 38.340, Overlay District Standards, and Section 38.220.090, Certificate of Appropriateness; additional application requirements, review procedures, and review criteria. • Draft amendments to Chapter 2, Article 5, Division 6 – Historic Preservation Advisory Board, which outlines the roles and duties of the Historic Preservation Advisory Board. • Draft amendments to the Bozeman Guidelines for Historic Preservation and Neighborhood Conservation Overlay District as outlined in this report. Draft Local Landmark Program Administrative Manual and Associated Materials • In coordination with staff, Phase I feedback, and any additional community outreach and engagement, draft an administrative manual including application process, selection criteria, and review standards. • Create process and procedures to implement the program including a local landmark application form, local historic/cultural resource inventory form, and community outreach materials to introduce the program. Next Steps 497 94 ©2025 Community Planning Collaborative www.planningcollab.com info@planningcollab.com (904) 577-0255 498 1PB APPENDICES Historic Preservation Policy & Local Landmark Project Prepared for City of Bozeman, MT By April 4, 2025 499 32 APPENDICES ...............................................................................................................................................89 A Historic Overview of Bozeman ................................................................................................................3 B Bozeman Planning and Land Development History .............................................................10 C Summary of 2015 and 2019 NCOD Reports ..............................................................................13 D Community Engagement Summary...................................................................................................17 E Survey and Context Study Recommendations .......................................................................52 F Funding and Incentives ..............................................................................................................................58 G Historic Cemetery Preservation ...........................................................................................................64 H Education, Outreach, and Interpretation Recommendations.........................................67 I Resources and Best Practice Examples .......................................................................................72 Table of Contents APPENDIX A HISTORIC OVERVIEW OF BOZEMAN 500 54 Appendix A Historic Overview of Bozeman For additional context on Bozeman’s history, see the historic narrative included in the Belonging in Bozeman plan adopted December 19, 2023 and the background provided in the 2020 Community Plan Appendix C adopted November 17, 2020. The land known today as Bozeman has been shaped by everything from animals, plants, hunting, trading, dispossession, commerce, organizing, agriculture, and tourism. It tells a complex story of the west, at times mirroring narratives of Indigenous, Montana, and United States history. At other times, like any place’s story, a true understanding of Bozeman diverges from general histories into a specific set of stories. It is a widespread human practice to geographically relocate in search of resources, safety, and social well-being. For thousands of years before today’s 20.91 square miles was incorporated as the city of Bozeman, that land and much of what is now known as southwest Montana was a common hunting ground for many 9. The Séliš (Bitterroot Salish), Qlispé (Pend d’Orreille), Ktunaxa (Kootenai), Pikuni (Blackfeet), Tsistsis’tas (Northern Cheyenne), Apsáalooke (Crow), Anishinaabe (Chippewa), Nehiyawak (Cree), Metis, Nakoda (Assiniboine), A’aninin (Gros Ventre), Dakota, Lakota, and other peoples long historically resided on lands throughout Montana. The land now called Bozeman was part of a much larger area in which many tribes hunted and gathered sustenance seasonally. Rather than living here long term, they arrived to seek beavers, bison, and other flora and fauna. Indigenous people’s seasonal time in this area allowed them not only to forge relationships between their nations, but with the land and its plant and animal inhabitants. Tribal nations were not stagnant or alike. Over time, tribes such as the Apsáalooke, Pikuni, and A’aninin moved into the state in the 1600s and 1700s, while the Qlispé, Séliš, and Ktunaxa trace their ancestral birthplace to the region. Allegiances and alliances formed and waned. Nations were connected by trade. The arrival of European American settlers forever changed these dynamics. In 1805 Lewis and Clark and the Corps of Discovery set foot on the land known today as Montana. They may have been preceded in the Gallatin Valley by European trappers and fur traders in the late 1700s. Clark’s group traversed land several miles from present-day Bozeman. In the decades that followed, European Americans returned, attempting passage through these lands or to settle. Their arrival and different expectations about land practices created conflict with Indigenous people. The 1851 Fort Laramie Treaty was signed by 21 chiefs of Indigenous nations, demonstrating the widespread desire for peace. Although largely achieved for the next 13 years, white land demands soon created tension that erupted into hostility between Indigenous nations. Although the treaty required the United States federal government to protect Indigenous resources, including from damage to tribal hunting grounds by settlers on the Oregon Trail, the US failed to do so, breaking the treaty. In 1863, John Bozeman and John Jacobs used Indigenous trails to lay out the Bozeman Trail and “led the first wagon train of emigrants through the Gallatin Valley to gold mines in Alder Gulch the following year. At the crossing of what we now call Bozeman Creek, Bozeman, William Beall, and Daniel Rouse platted a town to supply emigrants.” Bozeman’s calculated opportunity to grow his personal fortune set off a chain reaction. Indigenous nations retaliated against the incursions, so the US then constructed Fort Ellis. From this fort and Fort Parker, the US undertook a violent effort to secure the land for itself, ultimately forcing Indigenous inhabitants onto Reservations. Nelson Story, who would become Bozeman’s first millionaire, added to his net worth by supplying flour to both forts. The Bozeman Trail created wealth for John Bozeman when gold was found west of the valley. Some of those who trekked across it rushing for gold made a return trip. They became farmers or started businesses in the new town of Bozeman, established in 1864. The city was incorporated in 1883. From the 1860s-1980s, Bozeman would serve as the commercial hub for an agricultural county. By the 1880s, settlers had dramatically changed the landscape of the Gallatin Valley. With Bozeman situated on arable land, newcomers were plowing fields, destroying beaver dams, and killing bison at an unsustainable pace. Early irrigation efforts transformed the land. The irrigation systems developed by early settlers are one of the longest continuously used human creations in the valley. These new residents did not view themselves as connected to the plants and animals and land, as the Indigenous nations did. Although settlers did not live with it the way Indigenous custodians had, they recognized the abundance of water in the Gallatin Valley. This would be part of the area’s key to agricultural success, combined with wagon and later rail access to customers. Bozeman was an important outpost for miners from Virginia City, Helena, and Bannack. The mining economy was changing these areas forever, sometimes with environmental impacts that were not understood at the time. Bozeman, unlike so many boom and bust Montana towns of the late 1800s, would succeed in establishing a stable economy and resident base that allowed it to grow long after the heyday of other towns. Bozeman’s location in an agriculturally prosperous area was important to its economy for more than 100 years. Wheat, potatoes, and vegetables were also important early crops. Farms also raised cattle, horses, and sheep. Wheat, along with oats and barley, were produced in great quantities here in the late 1800s. This led to the development of flour mills and other grain 501 76 production facilities in Bozeman. Flour mills encouraged construction of railroads through the area in 1883 providing more rapid access to goods and people and continuing the development of the area. More than 168 people lived in the city by 1870. Many of the white men who contributed to the exploration and colonization of Bozeman are regionally well-known: John Bozeman, William Beall, Nelson Story and Daniel Rouse among them. Men comprised almost 75% of the population in 1870, and 65% a decade later. While often not recognized, women, Black, and immigrants played important roles in Bozeman’s success and development. The majority of 19th century residents were white Americans, but early Bozeman was diverse. Its inhabitants included Black residents and immigrants from Germany, China, Haiti, and other nations. In the early years of Bozeman, its small size resulted in relative racial and economic integration, although this would change as the 19th century came to a close. Early Black residents typically arrived from the southern US. The town’s agricultural and trade focus may explain why they were a small group relative to other Montana settlements. In 1870 Bozeman had 13 Black residents; the number grew to 23 in 1880. It climbed to somewhere between 30- 50 residents by the 1910s. Early Black leaders include Lizzie Williams, Samuel Lewis, and Mary and Richard McDonald. The McDonalds, formerly enslaved in Missouri, arrived in 1864. Richard’s successful freight hauling business allowed him to build the first two story home in Bozeman at 308 South Tracy. . Bozeman’s large immigrant population was also distinguished by business owners like the Germans who founded the Speith and Krug Brewery and Chin Ah Ban, a Chinese businessman who owned multiple restaurants, and successful developer Samuel Lewis from Haiti. However, most immigrants and Black residents performed service work. Almost 20% of Bozeman’s inhabitants were immigrants in 1870. Germans were the most numerous, while there were about a dozen Chinese immigrants – and others. Main Street developed as the center of commerce and was where most of the city’s major buildings were erected prior to the arrival of rail in 1883. The first brick building in Bozeman was constructed here in 1872. During this early period of Bozeman history, Main Street was a crucial site of trade and supplies and an entry point to the region’s mines. In the final decades of the 1800s, Bozeman grew and gained new institutions. The arrival of the railroad in 1883 began to transform the city. Not only did commercial construction boom on Main Street, but residential development accelerated. The Women’s Christian Temperance Union was founded in 1884. Montana State University was established in 1893. Ten years later the Bozeman Library opened. The city even made a bid to become the Montana capital, although leaders surely knew that it would not be selected over the larger and wealthier cities vying for that honor. Many of the areas now seen as historic areas were platted during the competition for the capital to make the City appear larger and more desirable on paper. The incremental buildout of these platted areas contributed to the diverse architecture of these areas. During this time, white supremacy became more overt. Chinese laundries were accused of taking jobs from “worthy white women” while trade unions barred Black men from joining. It was impossible to win: Chinese business success was blamed for taking white women’s domestic jobs, while Black men found it hard to leave a similar class of jobs due to their exclusion. Chinese residents were assaulted in public, while the Ku Klux Klan’s 1926 picnic lecture at the Bozeman Hot Springs surely chilled Black residents. By 1900, the city’s 3,419 residents were no longer so geographically connected. There was increasing economic disparity, which manifested in the physical construction of the city. Neighborhoods south of Main Street received investment, attracting wealthy residents. Lacking the same, north Bozeman’s character became working class. Wealthy Main Street business owners moved from their homes north of Main Street to places like the area now known as Bon Ton Historic District (though that neighborhood had begun to develop in the 1880s). Today, the North Tracy Avenue Historic District is one of few areas north of Main Street with a concentration of buildings that retain a high degree of integrity. Development in the early 1900s continued to cluster around what today forms Bozeman’s downtown core. A group of local builders including Elmer Bartholomew, J. A. Bartholomew, William Cline, George Dier, Guy Ensinger, Ora E. Long, A. J. Moe, and A. J. Svokmoe played an outsize role in constructing the now historic neighborhoods of Bozeman. Architect Fred Wilson was a prolific designer in the city from 1910 through the 1950s. It is common for Montana communities of this period to have a large number of buildings designed by a single architect. Wilson’s hundreds of buildings included the county courthouse, most schools built 1910-1950, commercial buildings, and residences. Typical of the era, he was skilled in designing in the array of popular revival styles, but also designed-then contemporary Craftsman homes. During the early 1900s, white and Black women organized for widespread change and local resources – though often through their own organizations. White women Mary Alderson and Belle Chrisman were respectively essential to securing women’s suffrage in Montana in 1914 and establishing the Bozeman Library in 1903. Melinda Rich, Sarah Tracy, Emma Wilson, and Rosa Beall were all socially prominent white members of the Women’s Christian Temperance Union. 502 98 Mollie, Belle, and Melissa McDonald founded the Sweet Pea Study Club, Bozeman’s chapter of the Montana Federation of Colored Women’s Clubs. The local club did everything from organizing for civil rights legislation to securing money for Black students to attend college. Leisure gained importance in the early 1900s and some of it had a distinctive Bozeman character. The first Bozeman Roundup was held in August 1919. That tradition continues today. Department stores and theatres were constructed downtown, sometimes in new styles, such as Art Deco in the 1930s. Although the city continued to grow (its population was 6,183 by 1920), it was small compared to the then-growing Butte (pop: 41,611), Great Falls (pop: 24,121), Billings (pop: 15,100), and Anaconda (pop: 11,668). Helena and Missoula were also more populous than Bozeman. Bozeman continued to develop and modernize throughout the late 1930s through 1950s. Development expanded further afield from downtown, while infill in the historic core grew to include modern amenities such as service stations and garages in mid-century modern style. During World War II the city hosted the Army Air Corps training facility. Like so many places throughout the country, Bozeman experienced a postwar surge in population and construction. Bozeman’s population went from 6,855 in 1930 to 8,665 in 1940. By 1950, it was 11,325, a 30% increase from the prior U.S. Census. During this period, automobile culture shaped Bozeman just as its early wagon and rail connections did. Commercial airline service began in 1947. Motels for visitors motoring into town popped up on major streets. Drive in theaters flourished. During the 1960s, the turbulence and change sweeping across the United States had somewhat muted effects in Bozeman. At Montana State University, far more students enrolled during this decade, particularly at the graduate level. Although the student body was fairly conservative, in the wake of President Kennedy’s assassination, some liberalizing occurred. This could be seen in changes to student policy. As the decade progressed, there was certainly concern over the Vietnam War, but no flashpoints that led to major events like elsewhere in America. The city’s population ticked up to 13,361 in 1960. Interstate 90 arrived in 1966, supporting tourism. Housing was created further from downtown, facilitated by widespread car use. In the 1970s, two major institutions opened: the Museum of the Rockies and Big Sky Resort (about 50 miles south of Bozeman). The museum was established in 1957, the brainchild of Butte physician Caroline McGill and historian Merrill Burlingame. For about 15 years, its collections were housed on part of MSU’s campus. Ground broke on its future home in 1971. Big Sky Resort opened in 1973, attracting upscale skiers to the area. The Sweet Pea Festival began in 1978. The annual creative celebration continues today. Back on MSU’s campus, female faculty won their case against the university for discrimination under the Civil Rights Act of 1964. The population exploded in 1970 to 18,670 - a 40% increase from the prior US Census. Development continued to expand. Growth continued in the 1980s, initially perhaps locally fueled in part by cattle and grain prices and a generally prospering Montana economy. Skating rinks, restaurants, and shops opened. The population reached 21,645 in 1980. When the economy went bust in the state as it did nationally, falling natural and agricultural resources prices affected the city. Arguably, some struggling farmers may have transitioned to more urban lifestyles. Development slowed somewhat in the second half of the decade. Much of the city’s early efforts to preserve its history began during this decade, perhaps fueled in part by the recent changes and growth in Bozeman. These are detailed in the section “Evolution of Historic Preservation in Bozeman.” Also notable, MSU’s Native American studies program grew, becoming a national leader. The city’s only unsolved murder occurred in 1985, when MSU student Randy Church was shot while closing up the Pizza Hut at 2300 W Main Street. As the 1980s closed, the city was being defined increasingly by its diverse modern economy. Agriculture remained important, but tourism had gained a new prominence that would only accelerate in Bozeman. Shops catering to visitors, especially winter sports enthusiasts increasingly dotted downtown. Already in the 1990s, residents and newspapers alike noted the dramatic changes in the city. The North 19th Avenue interchange opened in 1995, and with it came substantial development west of downtown. The population continued to grow, doubling between 2000 and 2020. Infrastructure changes and the need for more housing resulted in both new housing on the outskirts of Bozeman and infill development around downtown. During the past 20 years, Bozeman has become somewhat more racially diverse. The average Bozeman resident earned $45,037 in 2020, far more than the US average. In 2000, that figure was $32,156. While the city has changed significantly in the past 20 years, what is apparent in studying its history is that the Gallatin Valley has been a place of rapid and dramatic changes for 200 years. Population explosion is not new here, nor is changing industry. Whether colonists displaced Indigenous hunters, miners flocked to purchase potatoes, or tourists arrived in town, industrious men and women have long sought to enhance their lives in Bozeman. Yet, time after time, city residents and leaders have also looked back, seeking to remember what came before. 503 1110 Appendix B Bozeman Planning and Land Development History The city’s history of intentionally developing its community through planning and land use formally dates to 1883. In that year, the city incorporated, which meant that its first mayor (John V. Bogert) and eight aldermen took office. Together, they began regulating life throughout the city, including how it was to be physically developed. Unlike today, Bozeman in the late 1800s was divided into four wards represented by two aldermen. A street commissioner was appointed in 1883 to preside over streets, alleys, and sidewalks – as well as keep them in good repair. Two years later, a city engineer was hired to preside over matters related to survey, platting, drawings, and other information related to public works. Planning and land use in their modern forms were not yet practiced during this era. While city employees practiced early versions of this work with a focus on public works such as roads, parks, water works, bridges, and sometimes public buildings, other development was not so comprehensively regulated. Instead, a hodgepodge of regulations attempted to deal with many issues that eventually became consolidated in land use and zoning governance. For instance, public health and cleanliness were issues that affected Bozeman and virtually every other American city during this time. Without contemporary land use regulations to keep denser urban development separate from agricultural activities, the fledgling city quickly needed to ensure that such places did not become filthy and disease-causing. On April 9, 1883, the city’s 5th ordinance decreed that barns, corrals, and other animal housing must be kept clean or the offender would be “…deemed guilty of maintaining a nuisance.” The next ordinance focused on clean and traversable sidewalks. Both ordinance, and most others targeting nuisances were punishable by fines. Fire limits and associated building codes were developed at the same time and focused on downtown. Ordinance 16 required the use of fireproof building material unless a special permit was approved. These fines were substantially higher than those for nuisances, underscoring the threat posed by violation. These ordinances are not the only relevant legislation related to early land use and zoning efforts, but provide a picture of the decentralized method of managing these needs. As the city and state grew, governance changed and processes were formalized. In 1922, the city adopted a city commission/city manager form of government, which remains in use today. The mayor acts as chair and four commissioners are elected at large. This replaced ward APPENDIX B BOZEMAN PLANNING AND LAND DEVELOPMENT HISTORY 504 1312 representation. Also in 1922, the Office of the City Engineer was reorganized with all departments under the Commissioner-Manager Plan. The office’s duties did not meaningfully change. In 1935, the city adopted a modern zoning code, creating what is today known as the Unified Development Code. It began the process of standardizing and concentrating all relevant regulation in one place. Centralization helped pave the way for modern planning practices. In 1957, the city created a joint City-County Planning Board under the authorization of the 1947 Revised Codes of Montana. This absorbed the city engineer’s activities and added others. The following year, the first community plan was created. Six more have been developed since. In 1999, this Planning Board was disbanded and was replaced with the Bozeman City Planning Office. (Gallatin County created its own planning office at the same time.) Today, the Planning Division and Historic Preservation are both part of the Community Development Department, along with the Development Center and Building Division. Responding to 21st century issues with the existing development regulations, the city is presently completing a total overhaul of the Unified Development Code, which includes zoning regulations. This includes a consolidation of zoning districts. However, it does not include any changes to the NCOD regulations. The two city codes that guide Bozeman historic preservation efforts today are Chapter 2, Article 5, Division 6 of the Bozeman Municipal Code, which provides for the establishment of the Historic Preservation Advisory Board and Chapter 28, Article 3, Division 38.340, which creates the overlay district standards for the Neighborhood Conservation Overlay District. APPENDIX C SUMMARY OF 2015 AND 2019 NCOD REPORTS 505 1514 Appendix C Summary of 2015 and 2019 Reports The 2015 NCOD Audit was initiated because of substantial reinvestment in the NCOD area since its creation in 1991. This reinvestment led to questions about how to best balance the sometimes conflicting goals of historic preservation, affordable housing, and infill development within the district. The report’s key findings were: ● A lack of comprehensive and up-to-date information about historic properties in the district was making it difficult to effectively apply the existing NCOD Design Guidelines. ● Affordability was becoming a major issue within the NCOD, as housing costs were rising faster than incomes. ● Infill development was proving to be difficult and expensive, due in part to the restrictive nature of the zoning code. The 2015 report recommended that the city: ● Remove the NCOD boundary within 5 years and replace it with a combination of historic districts and design overlay districts (DODs). ● Prioritize updates to existing historic property inventories. ● Conduct a comprehensive parking study. ● Develop design guidelines specific to the unique characteristics of each of the eight National Register historic districts within the NCOD. ● Consider expanding the use of ground-floor ADUs. ● Change the term “Deviations” to “Permissible Modifications” and allow for greater flexibility in their use. ● Continue or expand implementation of affordable housing incentives, such as waiving impact fees. ● Better align zone districts with historic districts to reduce conflict The report also included an implementation matrix outlining the steps necessary to put these recommendations into action. Overall, the 2015 NCOD Audit presented a vision for a more nuanced and flexible approach to managing growth and development within the NCOD. The report acknowledged the importance of preserving Bozeman’s historic character while also recognizing the need to address contemporary challenges such as affordability and infill development. 2019 NCOD Final Policy Direction Summary The key findings from the community outreach portion of the 2019 NCOD study are: ● The community supports the NCOD’s goals, but they would like to see some changes to how it’s implemented. ● The community is very passionate about historic preservation and they would like to see more done to protect Bozeman’s historic resources. ● There is a desire for more flexibility and innovation in the NCOD’s design guidelines, particularly north of Main Street. ● There is a need for more clarity and transparency in the NCOD review process. ● The community wants more information about development projects and they want to be more involved in the review process. The 2019 report recommended that the city: ● Create two programs within the NCOD, one focused on historic preservation and the other on neighborhood character. ● Do not significantly change the NCOD boundary, but remove North 7th and move the boundary to Front Street. ● Create three sets of design standards and guidelines, one for each of the following areas: north of Downtown, south of Downtown, and Downtown. ● Phase in a local historic preservation program, which would provide more protection for historic properties that don’t qualify for the National Register of Historic Places. ● Explore a variety of incentives for historic property owners, such as tax breaks and grants. ● Allow the Historic Preservation Advisory Board (HPAB) to make recommendations on historic projects. ● Create historic preservation standards and guidelines.● Study the B-3 transition zone to see if there are ways to better protect residential neighborhoods from the impacts of commercial development. ● Explore adjusting the historic district boundaries to better align with existing zone districts. ● Consider aligning zone district allowances with neighborhood character. ● Ensure the NCOD review process is understandable and streamlined. ● Strengthen existing project information channels and make it easier for the public to find information about development projects. 506 1716 ● Develop a plan to have public meetings with impacted neighbors before development applications are reviewed. ● The report also included a work plan that categorized these recommendations into short-, mid-, and long-term goals. Overall, the 2019 report was a comprehensive review of the NCOD and its impact on the Bozeman community. The report’s recommendations were based on extensive community outreach and data analysis. The report’s work plan provided a roadmap for implementing these recommendations in a timely and efficient manner. APPENDIX D COMMUNITY ENGAGEMENT SUMMARY 507 1918 Appendix D Community Engagement Summary 1 Summary: Landmark Program Project Community Engagement Efforts Learning what makes Bozeman unique is at the core of the Bozeman Landmark Program. This requires looking beyond the visual character. Since the Bozeman Landmark Program kicked off in November 2023, the project team has worked alongside City of Bozeman staff to implement passive and active engagement strategies to understand what the community’s priorities are for a local landmark program. In November 2023, the consulting team visited the City of Bozeman for conversations with city staff from various departments and local community organizations to develop an understanding of the preservation program’s efficacy as it currently operates, active city programs/initiatives, and community organization priorities. The project started with an overview of the Gallatin Valley and Bozeman’s Indigenous history and living culture from Dr. Shane Doyle along with a tour of Bozeman. Additional conversations were had virtually between November 2023- September 2024 to assist in the development of the summer 2024 engagement programs and the digital survey. During the Spring 2024 semester at Montana State University, students were engaged by Professor Sarah Church to research and conceptualize historic markers for sites of significance in Bozeman. Sarah Rosenberg provided a guest lecture to guide the students and empower them to define significance based on their connections to the community. Students selected sites, researched the history of the site, wrote historic marker text, and designed a historic marker that they thought would captivate a pedestrian. Consultants utilized the student projects in two ways: 1) As contributions to the community facilitation focused on identifying sites of significance 2) To assist in the development of temporary historic markers, which were installed across town. A sampling of student locations and text were utilized to help tell stories of Bozeman’s past and promote the Bozeman Landmark Program survey. Youth activity sheets were created and offered at the Gallatin History Museum beginning in May 2024, as well as at the Historic Preservation Advisory Board’s annual Preservation Month activities. The youth activities included a make your own marker worksheet, with prompts to encourage multi generational conversations, and a Bird’s Eye view coloring sheet of the city inspired by archival images of the community. Youth were encouraged to share their historic 2 marker to be awarded Downtown Dollars, which were generously provided by Downtown Bozeman Partnership. In July, the community showed up to parks, a fire station, the farmers market, the library, city hall, etc. to participate in different Bozeman Landmark Program touchpoint events. People shared stories about their family, specific buildings, environmental features, community events, and more from the City’s history. Utilizing different event formats, the active engagement strategies sought to reach a range of community members. ● Open Houses/Pop-Ups: Events at Bozeman Fire Station 3 and Beall Park provided an opportunity for people to drop-in and learn about the Bozeman Landmark Program in an informal conversational setting. Attendees contributed answers to questions on posters, pinned places of significance on maps, and had conversations with the project team and other city staff. The conversational setting allowed in depth conversations as well as for program questions to be answered. Their answers to questions, contributions to the map, as well as one-on-one conversational topics were all recorded as contributions to the research and policy development. ● Round Tables: Bozeman Senior Center members, Bozeman Parks & Recreation Summer Camp attendees, and Bozeman Historic Narrative participants all had the opportunity to express their perspectives on the Bozeman Landmark Program through facilitated conversations. The round tables reached people who were previously engaged with city preservation efforts, youth, and seniors who live in the city. The different demographics assisted in identifying locations of cultural value to the community, concerns about the city’s future, in addition to helping explore functional preservation strategies for the Bozeman Landmark Program. These structured conversations also allowed in depth exploration of specific topics to address certain policy questions, such as sustainability and local landmark review processes... ● Tabling: Participating in Bozeman’s Farmers Market and Crazy Days were opportunities to reach community members who may not intentionally seek out a Pop-Up or Round Table. These presented unique opportunities to introduce people to the Bozeman Landmark Program, as well as offer an opportunity to participate in an informal vote on if preservation should be a priority for Bozeman. Over 200 City of Bozeman residents voted at the tabling events in support of Bozeman prioritizing preservation efforts. 508 2120 3 The July engagement activities concluded with a storytelling signage event hosted at the Bozeman Library. Attendees stretched their creative muscles in different directions to tell various stories of Bozeman’s past through visual pieces of Gallatin Valley’s story such as the Sunset Hills cemetery, the Northern Pacific Depot, Peets Hill, and the significance of sweet peas. Hosting events in Bozeman’s public structures enabled the touchstone events to meet people where they are - through happenstance or intentional attendance. Sarah Rosenberg, Associate Planner and Historic Preservation Officer for the City of Bozeman, tabled additional events after the consulting team concluded their visit to further promote the Bozeman Landmark Program survey and educate the public on past preservation efforts. Simultaneous to community engagement events, the Bozeman Landmark Program launched a digital survey, which was promoted through social media posts on the City of Bozeman’s Facebook and Twitter, as well as 20+ temporary “micro-story” markers, and fliers installed at key places throughout the city. Capitalizing on Bozeman’s active community, signage was installed at city and county parks and in front of municipal buildings. The locations were dispersed across the city to help ensure all regions of the city were aware of the Bozeman Landmark Program. These temporary markers told “micro-stories” about the Sweet Pea Society, tribal nations who have inhabited the valley since long before Bozeman was a city, the canning industry, city development, etc. The markers simultaneously told a story of Bozeman’s past using archival images alongside a brief history associated with the images and encouraged participation in the Bozeman Landmark Program survey via a QR code. By showcasing a variety of stories of Bozeman’s past the markers strived to help inspire community members to perceive preservation in a broad context. All promotional materials and in person activities encouraged participation in the online survey. The online survey was completed by 292 individuals. Community members were able to identify specific areas of Bozeman’s history (physical or intangible), which they perceive as a preservation priority, in addition to expressing their personal needs as residents and their larger views of preservation needs in the city. Their responses guided the policy research based on the expressed priorities of the community members. The community members represented a well-balanced geographic range of residents, as well as gender and age. Fliers, handouts, and 4 the online survey were all translated into Spanish in an effort to be accessible to Bozeman’s Latino population. People used their time and energy to share their connections to Bozeman’s cultural heritage - physical, intangible, and ephemera, through survey participation, event attendance, one-on-one conversations, facilitated conversations, and visiting the Bozeman Landmark Program booth at events. The robust feedback is integral to the development and growth of the Bozeman Landmark Program, while also affirms that preservation is a part of the Bozeman community value system. In October 2024, the consulting team analyzed research and community feedback to create an Initial Guidance document with suggestions for dialogue around potential policy and program recommendations. The intent of this document was to conduct a “temperature check” on the direction of the project. This document was shared with the public to solicit additional feedback. The document was discussed in detail with the Historic Preservation Advisory Board and the Community Development Board for further input. The Initial Guidance document was presented to the City Commission in November 2024 for feedback and direction. Information from public feedback on the document and Board discussion was included for consideration into this final report. Community Survey Results The following are summaries of information recorded by the 292 respondents to the Landmark Program survey. Historic and Cultural Sites to Protect in Bozeman Neighborhoods & Districts 1. N. Black/N. Bozeman (Historically African American neighborhood) 2. Jandt Neighborhood 3. Downtown Bozeman 4. North and South Side Historic Neighborhoods 5. Bon Ton Historic District 6. North Tracy Historic District Community Survey Results 509 2322 5 7. Cooper Park Historic District 8. South Willson Avenue (Notable for mature trees and historic homes) 9. Northeast Neighborhood (Including Beall Park and surrounding homes) 10. Historic Homes around MSU Campus Notable Buildings and Landmarks 1. Story Mansion and Grounds 2. Samuel Lewis Home (308 S Bozeman) 3. George Harrison Black Architect Home (322 N Tracy) 4. Old Brothel (234 E Mendenhall – now Extreme History Project) 5. Bogert Park Band Pavilion and Pool 6. The Baxter Hotel 7. The Bozeman Hotel 8. Union Hall on Mendenhall 9. The Willson Building 10. Ellen Theater 11. Emerson Cultural Center 12. Gallatin Labor Temple 13. Northern Pacific Train Depot 14. Ag Depot 15. The Crystal Bar 16. Carnegie Library Building 17. The Sapphire Motel & RSVP Motel 18. Old Grain Elevators near Story Mill 19. Red Light District Buildings 20. Stockyard Café 21. Western Café Building 22. Live from the Divide Building 23. Lerkind Mansion 24. First National Bank/U.S. Bank Building (Historic Restoration Example) Historic Parks, Trails, and Natural Features 1. Peets Hill (Burke Park) 6 2. Lindley Park 3. Cooper Park 4. Bogert Park 5. Gallagator Trail 6. Highland Glen Trails 7. Bozeman Creek and Mandeville Creek 8. Sunset Hills Cemetery 9. Valley of Flowers (Indigenous Cultural Landscape) 10. Beall Park 11. Southside Park 12. Story Mill Park 13. Main to Mountains Trail System Industrial and Agricultural Sites 1. Story Mill 2. Misco Mill 3. Bon Ton Mill 4. Old Stockyards 5. Manufacturing/Industrial District Buildings 6. Kirk Homestead 7. Homestead next to Museum of the Rockies 8. Remaining Open Spaces and Farmlands Recurring Themes and Concerns About Places to Protect ● Preserve the character of Downtown Bozeman. Many people want to protect Main Street from overdevelopment, particularly from national chains that would alter its historic character. ● Protect Historic Homes and Neighborhoods. There’s significant concern about older homes being demolished and replaced with large, modern developments that disrupt the historic fabric of the neighborhoods. 510 2524 7 ● Maintain Public Parks and Green Spaces. Parks like Lindley Park, Peets Hill, and Cooper Park are considered vital to the community's character and should be protected from overdevelopment. ● Highlight Indigenous and Agricultural History. People expressed interest in preserving the cultural landscapes and agricultural heritage of Bozeman, including historic trails and farmland. ● Preserve Unique Features like Neon Signs, Barns, and Small Historic Businesses. There’s an emphasis on retaining quirky, iconic landmarks like the Lewis & Clark Motel neon sign, old barns, the Crystal Bar, and historic local businesses. Top Places People Miss in Bozeman 1. Old Bozeman Deaconess Hospital ○ One of the most frequently mentioned. People feel its demolition was a significant loss to Bozeman's historic fabric. Many mentioned that its facade or parts of the building should have been preserved. The hospital had been a community landmark, and its removal made way for development that many see as unaffordable luxury condos. 2. Opera House ○ The original Opera House (also referred to as the City Hall/Opera House) was located on Main Street and is remembered fondly. People lament its loss as part 8 of Bozeman’s cultural history. Its demolition took away a vital community and cultural space. 3. Lehrkind Brewery ○ This historic brewery in the northeast neighborhood was often mentioned. People saw it as a unique and iconic part of Bozeman’s industrial and cultural past. It was valued for its architecture and community use before being demolished. 4. Story Mansion ○ People recall the original Story Mansion that once stood on Main Street (now replaced by the Willson School). It’s remembered as an architectural and cultural loss. 5. Heebs Grocery Store ○ Heebs was a beloved, locally owned grocery store in downtown Bozeman now relocated at Highland Blvd.. People miss having a walkable, neighborhood grocery store that served locals. Its absence is felt as downtown becomes more oriented toward tourists and luxury services. 6. Bungalow Drug ○ A nostalgic memory for many, this small, local pharmacy was part of Bozeman’s downtown charm. Its closure is seen as part of the broader trend of losing small, locally owned businesses in favor of chain stores. 7. Medical Arts Center ○ A historic part of the healthcare system in Bozeman, this building was torn down and replaced with newer developments. People miss its presence as part of the historic downtown landscape. 8. Armory ○ The original Armory building was a beloved community space before being redeveloped into a hotel. People lament the loss of the building's original purpose as a gathering space for local arts and community events. 9. Cottonwood Wetlands and Open Spaces ○ Beyond buildings, many people mentioned missing the open spaces, farmlands, and wetlands around Bozeman that have been replaced by urban sprawl, car dealerships, and luxury developments. 10. Bite of Bozeman (Event) ○ Several respondents mentioned missing the original Bite of Bozeman event. They feel that community festivals like this have changed significantly over time, 9 becoming more commercialized and less inclusive. 511 2726 ^ƵƌǀĞLJZĞƐƉŽŶƐĞƐ ϭ͘ tŚĂƚĚŽĞƐŚŝƐƚŽƌŝĐƉƌĞƐĞƌǀĂƚŝŽŶŵĞĂŶƚŽLJŽƵ͍ Ă͘ tƌŝƚƚĞŶƌĞƐƉŽŶƐĞ͕ƐĞĞdžĐĞůĚŽĐƵŵĞŶƚ Ϯ͘ ŽLJŽƵŚĂǀĞĂŶƵŶĚĞƌƐƚĂŶĚŝŶŐŽĨǁŚĂƚƚŚĞŝƚLJŽĨŽnjĞŵĂŶŚŝƐƚŽƌŝĐƉƌĞƐĞƌǀĂƚŝŽŶƉƌŽŐƌĂŵĂŶĚƐƚĂĨĨĚŽĞƐ͍   ϯ͘ Do you have an understanding of what the Bozeman’s Historic Preservation Advisory Board does?   512 2928 ϰ͘ Have you ever participated in the City of Bozeman’s Preservation month activities?   ϱ͘ ,ĂǀĞLJŽƵĞǀĞƌƌĞĂĐŚĞĚŽƵƚƚŽƚŚĞŝƚLJŽĨŽnjĞŵĂŶĨŽƌĂƐƐŝƐƚĂŶĐĞƌĞŐĂƌĚŝŶŐĂŚŝƐƚŽƌŝĐƉƌŽƉĞƌƚLJŽƌƚŚĞŚŝƐƚŽƌŝĐ ƉƌĞƐĞƌǀĂƚŝŽŶƉƌŽŐƌĂŵ͍/ĨLJĞƐ͕ǁŚĂƚƚLJƉĞŽĨĂƐƐŝƐƚĂŶĐĞĚŝĚLJŽƵƌĞƋƵĞƐƚ͍͍ Ă͘ tƌŝƚƚĞŶƌĞƐƉŽŶƐĞŝŶdžĐĞůĚŽĐƵŵĞŶƚ   513 3130 ϲ͘ ŽLJŽƵŽǁŶŽƌůŝǀĞŝŶĂďƵŝůĚŝŶŐƚŚĂƚŝƐϰϬнLJĞĂƌƐŽůĚ͍   ϳ͘ ŝĚLJŽƵŝŶƚĞŶƚŝŽŶĂůůLJĐŚŽŽƐĞƚŽůŝǀĞŝŶĂϰϬнLJĞĂƌŽůĚďƵŝůĚŝŶŐ͍   514 3332 ϴ͘ tŚĂƚǁĞƌĞƚŚĞƚŽƉƚŚƌĞĞĨĂĐƚŽƌƐŝŶƐĞůĞĐƚŝŶŐLJŽƵƌƉůĂĐĞŽĨƌĞƐŝĚĞŶĐĞ͍ Ă͘ tƌŝƚƚĞŶƌĞƐƉŽŶƐĞŝŶdžĐĞůĚŽĐƵŵĞŶƚ   ϵ͘ /ĨLJŽƵŽǁŶĂďƵŝůĚŝŶŐďƵŝůƚďĞĨŽƌĞϭϵϴϬ͕ǁŚĂƚǁŝůůŚĞůƉŝŶŵĂŝŶƚĂŝŶŝŶŐͬƐƚĞǁĂƌĚŝŶŐƚŚĂƚƉƌŽƉĞƌƚLJ͍   515 3534 ϭϬ͘ tŚĂƚĚŽLJŽƵƚŚŝŶŬƐŚŽƵůĚďĞƉƌĞƐĞƌǀĂƚŝŽŶƉƌŝŽƌŝƚŝĞƐĨŽƌƚŚĞ/ƚLJŽĨŽnjĞŵĂŶ͍ Ă͘ tƌŝƚƚĞŶƌĞƐƉŽŶƐĞƐŝŶdžĐĞůĚŽĐƵŵĞŶƚ    ϭϭ͘ tŚĂƚŝƐĂƉůĂĐĞ;ďƵŝůĚŝŶŐ͕ƉĂƌŬ͕ƐŝŐŶ͕ůĂŶĚƐĐĂƉĞ͕ĞƚĐ͘ͿƚŚĂƚLJŽƵďĞůŝĞǀĞƐŚŽƵůĚĂůǁĂLJƐďĞĂƉĂƌƚŽĨŽnjĞŵĂŶ͍ Ă͘ tƌŝƚƚĞŶƌĞƐƉŽŶƐĞƐŝŶdžĐĞůĚŽĐƵŵĞŶƚĂŶĚŵĂƉƐŚŽǁƐƉŝŶƉŽŝŶƚƌĞƐƵůƚƐ  ϭϮ͘ ƌĞƚŚĞƌĞĂŶLJďƵŝůĚŝŶŐƐ͕ƉůĂĐĞƐ͕ŽƌĞǀĞŶƚƐƚŚĂƚĂƌĞŶŽůŽŶŐĞƌƉĂƌƚŽĨŽnjĞŵĂŶƚŚĂƚLJŽƵŵŝƐƐ͍ Ă͘ tƌŝƚƚĞŶƌĞƐƉŽŶƐĞƐŝŶdžĐĞůĚŽĐƵŵĞŶƚ  ϭϯ͘ What aspects of Bozeman’s evolution related to history concern you? Ă͘ tƌŝƚƚĞŶƌĞƐƉŽŶƐĞƐŝŶdžĐĞůĚŽĐƵŵĞŶƚ   516 3736 ϭϰ͘ Do you believe Bozeman’s past contributes to Bozeman’s quality of life   ϭϱ͘ ƐŽnjĞŵĂŶĞǀŽůǀĞƐǁŝƚŚƚŝŵĞĂŶĚƐŚŝĨƚŝŶŐĐŽŵŵƵŶŝƚLJŶĞĞĚƐ͕ĚŽLJŽƵďĞůŝĞǀĞƚŚĞƌĞŝƐĂǀĂůƵĞƚŽƌĞƚĂŝŶŝŶŐŽůĚĞƌ ďƵŝůĚŝŶŐƐĂŶĚͬŽƌŚŝƐƚŽƌŝĐƉůĂĐĞƐĂŶĚƐƉĂĐĞƐ͍   517 3938 ϭϲ͘ If you believe historic places and heritage should be apart of Bozeman’s future, why is that? Ă͘ tƌŝƚƚĞŶƌĞƐƉŽŶƐĞƐŝŶdžĐĞůĚŽĐƵŵĞŶƚ ĞŵŽŐƌĂƉŚŝĐZĞƐƉŽŶƐĞƐ 518 4140  KƚŚĞƌ͗ƐƚƵĚĞŶƚ͕ĂƌƚŝƐƚ͕ƚĞĂĐŚĞƌ͕ƐĞƌǀŝĐĞǁŽƌŬĞƌ  519 4342   ΎΎƚƚŚĞďĞŐŝŶŶŝŶŐŽĨƚŚĞƐƵƌǀĞLJ͕ƚŚĞĂŐĞƌĂŶŐĞϯϱͲϰϰǁĂƐŵŝƐƐŝŶŐΎΎ 520 4544   521 4746  ŝƐĂďŝůŝƚŝĞƐ͗ƉŚLJƐŝĐĂů–ϵ͖ďůŝŶĚ–ϭ͖ŶĞƵƌŽĚŝǀĞƌŐĞŶƚ–ϰ͖ŽƚŚĞƌ–Ϯ  522 4948  Historic Preservation Survey Map Esri, NASA, NGA, USGS, Bozeman GIS, Montana State Library, Esri,TomTom, Garmin, SafeGraph, METI/NASA, USGS, Bureau of Land 10/4/2024 0 2 41mi 0 3.5 71.75 km 1:185,254 523 5150 Event Date What Community Engagement Plan November 1, 2023 Developed Community Engagement Plan for project Kick off November 9, 2023 Launched Engage Bozeman page Historic Preservation Advisory Board Meeting November 15, 2023 Introduced project to HPAB Stakeholder Meetings November 15, 2023 Met with different stakeholder groups: Dr. Shane Doyle, Extreme History, Gallatin History Museum, Mountain Time Arts, Downtown Bozeman Partnership, Gallatin Valley Land Trust, HRDC Internal staff meetings December 8, 11, 15, 19, Meetings with different city departments: Economic 20, 21, 2024 Development, Legal, Sustainability, Communications, Planning, Building, Parks and Recreation, GIS Historic Preservation Advisory Board Meeting February 21, 2024 Update of project to HPAB Inner Neighborhood Council Meeting May 9, 2024 Presentation to INC on project Engage Bozeman project update June 25, 2024 Announce engagement opportunities on Engage Bozeman page Historic Preservation Advisory Board Meeting July 11, 2024 Update of project and launch community engagement Launched project survey July 12, 2024 Launched project survey both in English and Spanish City Commision Meeting July 16, 2024 Special presentation to City Commission on project Posted flyers and signs around town July 16-20, 2024 Posted flyers and signs around town about project and community engagement events Open House July 17, 2024 Open house on project Senior Focus Group July 18, 2024 Small focus group with senior citizens to gather input Cultural Focus Group July 18, 2024 Small focus group with community members who specialize in cultural heritage Open House July 18, 2024 Open house on project Cultural Focus Group July 19, 2024 Small focus group with community members who specialize in cultural heritage Youth/Teen Focus Group July 19, 2024 Small focus group with youth and teens to gather input Main Street Tabling July 19, 2024 Tabled at Summer Crazy Days to get input on project Farmers Market Tabling July 20, 2024 Tabled at Farmers Market to get input on project Make your own historic marker July 20, 2024 Workshop for all ages to partake in an activity that relates to project Farmers Market Tabling July 23, 2024 Tabled at Farmers Market to get input on project Lunch on the Lawn July 24, 2024 Tabled at Lunch on the Lawn at the Emerson to get input on project Engage Bozeman project update July 26, 2024 Project update about survey and more engagement events Engage Bozeman project update July 30, 2024 Project update on engagement events Lunch on the Lawn July 31, 2024 Tabled at Lunch on the Lawn at the Emerson to get input on project Design Professional Meeting August 20, 2024 Presented project virtually to group of design and development professionals Historic Preservation Advisory Board Meeting August 21, 2024 Update of project Catapalooza at Montana State University August 23, 2024 Table at MSU’s Catapalooza to get input on project Engage Bozeman project update August 30, 2024 Project update about survey and more engagement events Farmers Market Tabling September 3, 2024 Table at Farmers Market to get input on project Community Engagement Community Development Board September 9, 2024 Presented project to Community Development Board to get input on project Sustainability Board September 11, 2024 Presented project to Sustainability Advisory Board to get input on project Engage Bozeman project update September 12, 2024 Project update that survey is about to close Historic Preservation Advisory Board Meeting September 18, 2024 Presentation dedicated to educating board members on project content Engage Bozeman project update September 23, 2024 Link to HPAB meeting and written content for education purposes to the public on overlay districts Cooper Park Neighborhood Association Meeting October 3, 2024 Presentation on project to the Cooper Park Neighborhood Association Engage Bozeman project update October 10, 2024 Posting about summary of survey results Launch Initial Guidance Report October 11, 2024 Launched the initial guidance report for phase 1 - outlines repliminary recommendations Historic Preservation Advisory Board Meeting October 16, 2024 Work session with HPAB to gather input on initial guidance report Community Development Board Meeting October 21, 2024 Work session with board to gather input on initial guidance report City Commission Meeting November 19, 2024 Work session with Commission to gather input on initial guidance report Engage Bozeman project update November 25, 2024 Project update on Phase 1 upon conclusion of board and City Commission meetings Historic Preservation Advisory Board Meeting January 15, 2025 HPAB meeting to discuss roles and responsibilities for input on Phase 2 work Engage Bozeman project update February 5, 2025 Project update on Phase 1 report release 524 5352 APPENDIX E SURVEY AND CONTEXT STUDY RECOMMENDATIONS Appendix E Survey and Context Study Recommendations Bozeman undertook a comprehensive survey of its historic resources in 1984-1986. This survey inventoried nearly 4,000 properties in an area that roughly corresponds to the Neighborhood Conser- vation Overlay District (NCOD) and led to the creation of eight historic districts and over 40 National Register listed sites. It remains foundational to city preservation and evaluation efforts today. These survey efforts focused mainly on the built environment and although some of the buildings have been resurveyed, the vast majority of the forms are extremely out of date. Furthermore, the buildings that do have survey forms date to the 1930s and earlier. While the City has conducted resurveys in 2014, 2015, 2020, 2021, and 2022, there are still thousands of properties and areas that require survey and resurvey. Survey needs are wide-ranging. There is a need to continue to resurvey the NCOD, to move forward with designation recommendations from resurvey, and to begin survey efforts beyond the NCOD including non-building resources and landscapes. Recommendations for survey are broken out into several categories: general recommendations; ar- eas to survey; and time periods, resource themes, and resource types meriting special attention. General Recommendations Before moving forward with any of the recommendations that follow, Bozeman should determine its purpose in conducting surveys and make sure that the appropriate resources are allocated to com- plete them. Bozeman may wish to look to the example of communities in Colorado that create survey plans to help guide their efforts. • Visit History Colorado for more information on survey plans. • The City of Lakewood, Colorado shares their survey plans online. Bozeman’s code does not dictate the purpose of surveys, and no new designations have resulted from past resurveys. The purpose is important to determine in order to proceed with useful invest- ments of time and resources. Survey is traditionally the basis for designation efforts, however, there are myriad creative ways to celebrate Bozeman’s historic and cultural resources with the knowledge gleaned from survey. It may be that the city wishes to proceed with designation efforts in some cases, and with celebratory and educational efforts in others. 525 5554 Once that is determined, it would greatly benefit the city both to conduct a comprehensive resurvey of the NCOD and to begin to expand efforts beyond the NCOD. Comprehensive survey and re-survey should be undertaken systematically. The decision about what areas to survey first, later, and last should be based upon a transparent logic that is communicated to residents. This could be a simple linear geographic method with a set start and end location but alternatively could prioritize any of the following: areas seeing the greatest development pressures, areas representing specifically defined histories, or areas with underrepresented resource types. Areas to Survey The following areas should be considered for survey and resurvey. The list below is a result of com- munity input from the survey done as part of the Local Landmark Project, Historic Preservation Advi- sory Board recommendations, and windshield surveys. This list is not exhaustive of all of the places that could or should be surveyed. An expanded list of places that were mentioned can be found in the community survey results appendix. ● Northeast neighborhood ● Midcentury and Post War neighborhoods: o Thompson Addition (East Kagy Blvd and South 3rd) o Lindley Park neighborhood o Capitol Hill Subdivision (south of College) o University Subdivision o Karps and Violett Addition (east of North 7th) o Jandt Neighborhood ● Gallatin County Fairgrounds ● Portions of the NCOD that were never surveyed: ○ South of Garfield ○ Tamarack and Aspen Street ○ South Black Avenue and Tracy Avenue past Harrison Street ● Northern Pacific/Story Mill Historic District ● Kirk Homestead ● Bozeman Creek ● Areas under development pressure, which includes the edges of most existing historic dis- tricts, and the NCOD ● Existing historic district expansions and revisit noncontributing sites for potential significance. Bozeman, like most cities, preserves buildings primarily through their inclusion in historic districts, rather than individual landmarks. Survey corresponds well with this method of preservation, because it allows an entire swath of land to be efficiently documented. However, there are several resources the community or city staff wishes to see individually assessed. This may be accomplished through survey or individual assessment of a particular site. Resource Themes and Periods Meriting Special Focus Several broad themes and time periods merit special survey focus in Bozeman. They include: • Agricultural history – land, farmhouses, utilitarian buildings and structures • Underrepresented histories of groups like women, Native Americans, immigrants, LGBTQ+, Black communities, Jewish communities • Midcentury and Post War Architecture • Montana State University’s Influence • Railroad history In 2008, a Bozeman Historic Resource Survey Report was developed that updated the original con- text report from the 1984-1986 survey to expand the time period to 1970. This report provided addi- tional background and context to Bozeman’s history in terms of development, physical growth, and architectural trends. This report helps set a foundation to expanding the period of significance that should be surveyed. Resource Types Meriting Special Focus To date, survey in Bozeman has focused on the built environment. However, future survey efforts should also look into other resource types that are significant to the community, as explained below. Signs Maintaining historic signs is a great way to connect a changing landscape to its multi-layered history. The City of Bozeman already has a process to recognize historic or culturally significant signs through Section 38.560.170 of the Unified Development Code. However, it is important to survey these signs outside of this process. Signs such as the Cat’s Paw sign, Sapphire Motel sign, ghost signs, and the Baxter Hotel sign are just some of the few that exemplify Bozeman’s sign landscape. Streetscape Streetscapes offer a subtle, but vibrant way of understanding how previous generations lived. Fea- tures of streetscapes include pavement, lighting, and street trees. Surveying streetscapes like South 8th Avenue that was constructed when Bozeman was vying to be Montana’s capitol can illustrate how it has changed over time but still remains a substantial streetscape in Bozeman’s history. Parks Several parks were identified by the community and city staff as survey priorities. Another approach to the inclusion of this landscape feature, which has repeatedly been cited as a community priority in past and other concurrent planning efforts, is to conduct a citywide park survey. Parks, particular- ly those that were developed with minimal ground disturbance near water, are potentially significant sites for archaeological discovery. While archaeology was infrequently mentioned by the community, Native American history has been a focus of interest, and archaeology is one way of making this 526 5756 historical connection. Preservation of green spaces also ties in with city priorities from other recently adopted plans. Cultural Landscapes Cultural landscapes are historically significant geographic areas that show evidence of human inter- action with the physical environment. They are increasingly preserved throughout the United States and are more common in the west. The National Park Service categorizes cultural landscapes into historic designed landscapes, historic vernacular landscapes, historic sites, and ethnographic land- scapes. Each has particular reasons for significance which may impact how it should be preserved. Cultural landscapes can be an excellent way to document agricultural history, as they demonstrate the relationship between a building and other features on the land. They are also a strong method for preserving sites with cultural and spiritual significance to indigenous tribal nations. Cultural land- scapes may even be a suitable way to commemorate seasonal forms of cultural heritage, such as the city’s iconic Christmas spider tradition. Cemeteries Cemeteries are a significant part of any community. There is demonstrated interest in preserving and understanding the histories connected to Sunset Hills Cemetery, Bozeman’s only municipal cemetery. Cemetery survey should include condition assessment and mapping the location of graves. Depend- ing on the condition of older graves, this may necessitate the use of ground penetrating radar. Survey need not be limited to the municipal cemetery; cultural histories are likely to be expanded upon in connection with all of the cemeteries in Bozeman. Context Study Recommendations To start implementing the use of context studies in Bozeman, the following are recommended: Native American Context Study The City acknowledges the deep connections Indigenous peoples have maintained with regional lands for countless generations. The cultural landscapes and sites within what is today the City of Bozeman have been nurtured and sustained by Indigenous communities since time immemorial, and their stewardship continues today. This region is home to many Indigenous nations, including the Séliš (Bitterroot Salish), Qlispé (Pend d’Oreille), Ktunaxa (Kootenai), Pikuni (Blackfeet), Tsistsis’tas (Northern Cheyenne), Apsáalooke (Crow), Anishinaabe (Chippewa), Nehiyawak (Cree), Métis, Nako- da (Assiniboine), A’aninin (Gros Ventre), Dakota, Lakota, and other Indigenous people who have deep ties to these lands. A Native American context study should ideally be produced in collaboration with the Tribal Historic Preservation Offices of multiple tribes whose ancestors hunted on the land now called Bozeman. This context study should be as inclusive of Tribal nations as possible, since Bozeman was not the tradi- tional land of a single tribe, but an important source of food for many co-stewards of the land. Underrecognized Communities Context Study Underrecognized communities should also be documented with context studies. This will likely neces- sitate the development of several studies: women in Bozeman, immigrant history in Bozeman, Black history in Bozeman, and religious minorities in Bozeman. Some of these may be able to be com- bined, but as contexts are intended to describe historical development patterns that allow a particular resource’s significance to be understood, avoid excessive grouping of different histories. However, naturally some overlap will occur. For example, any of these contexts should include women’s history, but any one focused primarily on another topic will not cover all women’s contributions to the city on its own. It may also be worthwhile to consider what other themes arise from these studies: LGBTQ+ history, the history of brothels, and entrepreneurial history may well connect deeply with several of these underrepresented contexts. Post-World War II and Mid-Century Architectural Context Study A context study of post World War II and mid-century modern resources will serve to fill the long-run- ning gap in understanding Bozeman’s built environment after the year 1933. The Montana Post World War II Architectural Survey and Inventory identifies several relevant styles of buildings found in Bozeman: Art Deco, Googie, and mid-century modern. It may also be appropriate to document early postmodern construction, perhaps with a construction end date of 1980. Although these buildings are disparate in appearance and span approximately 40 years of construction, they share a philosophical optimism, interest in the connection between building and setting, a relationship to automobiles and associated infrastructure, and use of modern, high-tech materials. Agricultural History Context Study An agricultural history context study will serve to highlight the industry that shaped the development of Bozeman. It begins with Indigenous presence on the land, colonization, and continues into the present day. In light of the increasing urbanization and suburbanization of historically agricultural land, a study of the agricultural landscape will identify extant historically significant agricultural resources as development moves beyond downtown Bozeman. Collaboration with THPOs and Gallatin County will allow for more nuanced study and documentation of the multifaceted agricultural practices in the region over time and by different populations. 527 5958 APPENDIX F FUNDING AND INCENTIVES Appendix F Funding and Incentives There are multiple resources and incentives that can help private property owners preserve, adaptive- ly reuse or rehabilitate historic structures. However, the majority of these programs are NOT available to private, owner-occupied single-family home properties. Incentives for Residential Properties The following potential incentives can apply to commercial properties as well but are options for as- sisting with privately-owned residential property. ● Building Code ○ There is some flexibility with the building code when rehabilitating historic structures. These can include variances to compliance with the Americans with Disability Act. For information on how the building code can impact a project, contact the Bozeman Build- ing Division. ● City of Bozeman Tax Abatement Certificate of Appropriateness (Division 3 – Tax Abatement, Section 2.06.350) ○ The intent and purpose of the Tax Abatement Program is to encourage the appropriate rehabilitation, restoration, and preservation of historic properties which otherwise would not have been so carefully preserved. Tax abatement is to reward extraordinary efforts in preservation and not minimal compliance with mandatory standards. ○ Tax abatement programs can be used for both income producing properties and pri- vately owned historic homes. This program offers a five year “abatement” of increased property taxes for projects which satisfy the Secretary of the Interior’s Standards. This program offers an additional one-year abatement during the construction period and is limited to 100% of the increase in taxable value of the work done to rehab or restore a property. ○ Certification happens during the Certificate of Appropriateness review process. Only properties that do not receive any other tax exemption or special evaluation qualify. A property must be individually listed on the National Register of Historic Places, be at least 50 years of age and located in an established NRHP district, or determined to be eligible for individual listing in the NRHP. ○ The City Commission is the final decision authority on granting tax abatement by reso- lution. 528 6160 Incentives for Income-Producing and Commercial Property and Nonprofit or Government Owned Property ● Historic Building Rehabilitation Tax Credit Programs ○ The State of Montana SHPO is the statewide facilitator for both the Federal and State Historic Rehabilitation Income Tax Credit Programs. These credits offer income tax credits for the rehabilitation of income-producing properties listed in the Nation- al Register of Historic Places or listed as contributing to a locally designated district certified by the Secretary of the Interior. Both programs incentivize the revitalization of income-producing historic real estate and level the playing field when redevelopment exceeds the cost of new construction. The Federal tax credit uses a three-part appli- cation to award successful applicants an income tax credit equal to 20% of their rehab investment. The State of Montana’s income tax credit is equal to 25% of the amount an owner claims under the Federal program. Those wishing to claim the state credit must first be certified for credits under the Federal program. ○ The majority of historic structures in Bozeman aren’t eligible for the Federal and State Historic Building Rehabilitation Tax Credit Programs. Recommend designation of additional sites to the National Register of Historic Places or listed as contributing to a locally designated district certified by the Secretary of the Interior in order for owners of revenue producing properties to take advantage of these programs. ● New Market Tax Credits ○ The New Markets Tax Credit (NMTC) program was created as part of the Community Renewal Tax Relief Act of 2000 passed during the Clinton administration with the intent to improve business development in economically distressed areas of the country. NMTCs can be used in the rehabilitation of historic buildings, combined with both the federal historic tax credit (HTC), state HTCs or other incentives. The taxpayer is eligi- ble to claim a tax credit equal to 5 percent of its equity investment in the Community Development Entities (CDEs) for each of the first three years and a 6 percent credit for each of the next four years (39% total). Combining the credits does however add sig- nificant complications to the organizational structure; it is essential to have a solid and experienced team of historic consultants, accountants and attorneys. ● Opportunity Zones ○ Designed to encourage long-term private investments in low-income communities, Opportunity Zones provide a federal tax incentive for taxpayers who reinvest unreal- ized capital gains into “Opportunity Funds,” which are specialized vehicles dedicated to investing in low-income areas called “Opportunity Zones. Excluding the campus of Montana State University, the entire southwest section of Bozeman (Census Tract 11.02) is a federally designated Opportunity Zone. This is a financial incentive avail- able for all forms of development, including historic preservation and adaptive reuse in Census Tract 11.02. ● Montana Historic Preservation Grant Program ○ The Montana Historic Preservation Grant (MHPG) Program is a state-funded program created in 2019, designed to support public or private entities with the preservation of historic sites, including internal or external “brick-and-mortar” improvements that ad- dress infrastructure, building renovation, maintenance, or building code issues through grant funding. Eligible applicants may apply for funding up to $500,000 per eligible project. A 20% match of the total project cost is required for applications. Historic sites will be considered eligible if one of the below criteria is met: ■ Structure or site is listed on National, State, or Local Historic Registry ■ Structure or site contributes to a historic district ■ A structure more than 50 years old and has documented significance to the history of a Montana community or region ● Historic Preservation Grant Programs ○ The National Trust for Historic Preservation provides a list of different grant programs, however, most are awarded to nonprofit organizations and public agencies. ○ Preserve Montana, a statewide nonprofit whose mission is to protect Montana’s histor- ic places, traditional landscapes, and cultural heritage, provides a list of resources on funding, grants, historic tax credits and more. ● Tax Increment Financing (TIF) Grant Programs ○ Tax Increment Financing (TIF) is a way for certain districts to use property tax revenue to fund new development. It works by separating taxable value into base and incre- ment values, so that revenue from the base value continues to go to the regular taxing jurisdiction, but as taxes increase over the years, that growth—the increment—goes to the TIF to pay for development activities within the TIF district. There are six Urban Renewal Districts (URDs) using Tax Increment Financing (TIF) within the City of Boze- man: ■ Downtown Urban Renewal District ■ Midtown Urban Renewal District ■ Northeast Urban Renewal District ■ South Bozeman Technology District ■ North Park Urban Renewal District ■ Pole Yard Urban Renewal District While not directly associated with historic preservation and adaptive reuse, it is possi- ble for these types of projects to be eligible for associated grant programs, if the loca- tion is within URD boundaries and the development project aligns with the objectives and purpose of that URD. Examples include: ■ The Downtown URD Residential Incentive Program is intended to assist with smaller, more affordable units. The overall intent and purpose of the Down- town URD emphasizes the preservation of Bozeman’s historical character as a “working” downtown. Objectives of this plan shall be accomplished by incen- 529 6362 tives whenever possible. Additional Downtown URD grant programs include streetscape assistance, fiber infrastructure, life-safety, technical assistance, and art enhancement/CPTED grants. Contact Downtown Bozeman Partnership for more information. ■ Midtown URD Technical Assistance Grants (TAG) grants support current or potential developers, property owners, and tenants with technical assistance during the preliminary phases of possible redevelopment projects. This pro- gram facilitates navigating code requirements, assessing the feasibility of sites and building designs, and preparing for the planning application and approval process. ■ The Midtown Urban Renewal Board sponsored the creation of streamlined form-based zoning districts to ease the implementation of the community vision for Midtown. Community Commercial – Mixed (B-2M) Zoning features allowable ground floor residential, reduced parking requirements, and a robust mix of uses. For more information on the Midtown, Pole Yard, North Park, South Boz- eman Technology, or Northeast Urban Renewal contact the City of Bozeman Economic Development Office Urban Renewal Program Manager. ● City of Bozeman Rebates & Incentives ○ The City of Bozeman offers a number of sustainability rebates, tax credits, and financ- ing options that might be available for residential properties or businesses. These include Inflation Reduction Act incentives related to climate action, building and electri- fication incentives, and income-restricted rebate for electrification for residential. ● Development Regulations (Land Use & Zoning) ○ The proposed Bozeman Development Code provides additional flexibility that could further incentivize market rate adaptive reuse of existing properties. ○ Planned Development Zoning (PDZ) allows development regulation flexibility for proj- ects that: ■ Create distinct neighborhoods with quality urban design and mutually support- ive uses; and ■ Support implementation of community plans and goals; and ■ Provide community benefits through the creation of affordable housing, inclu- sion of environmentally sustainable design features, and retention of historic structures; and ■ Protect and promote the health, safety, and general welfare of the community. Funding and Incentives Challenges ● Understanding the real estate capital stack ○ It is important to know and understand your project’s budget, proforma or capital stack prior to pursuing outside funding and incentives opportunities. The capital stack is a tool for understanding sources of capital in a real estate deal and how the deal’s structure influences the investor’s potential return. Incentive programs, including historic tax credits and grants, can be sources of capital included in a project’s capital stack. ● Understanding Federal and State Historic Tax Credit Eligibility Requirements ○ The Federal Historic Preservation Tax Incentives program encourages private sector investment in the rehabilitation and re-use of historic buildings. Eligible buildings must be privately-owned, income producing and listed on the National Register of Historic Places or be certified as contributing to the significance of a “registered historic district.” ● Understanding Federal Grant Program Eligibility Requirements ○ In general, a grant supports a project through government funding. Typically, to be eligible for a grant, the project applicant would need to be a state government, local government, nonprofit, educational institution, and/or Federally Recognized Indian Tribe, Alaskan Native, and Native Hawaiian Organization as defined by 54 USC 300300. ● Financial resources for owner-occupied residential properties ○ Only properties individually listed on the National Register of Historic Places (NRHP), at least 50 years of age and located in an established NRHP historic district are eligible for the City of Bozeman Tax Abatement Certificate of Appropri- ateness program. 530 6564 APPENDIX G HISTORIC CEMETERY PRESERVATION Appendix GHistoric Cemetery Preservation Preserving historic cemeteries is important for a variety of reasons including: ● maintaining cultural, historical, and artistic legacies, ● providing educational opportunities, ● supporting genealogical research, and ● contributing to the heritage and identity of communities. Protecting historic cemeteries reflects a recognition of the importance of our shared history and the people who shaped it. Before working in a historic cemetery, reach out to the owner of the cem- etery first before doing any work to get permission. For Sunset Hills, this is the City of Bozeman, but other cemeteries may be privately owned. If you cannot locate the owner, reach out to the City. One way you can help historic cemeteries is working on the landscaping. If you decide to tackle landscaping in a historic cemetery, there are a few things to keep in mind. The priorities are keeping participants safe and being as gentle as possible to avoid damaging any headstones or plots. ● Work with an archaeologist or preservationists to understand best practices in landscaping for cemeteries in Bozeman. ● Regional archaeologists can also provide guidance on grave goods that may have been used with burials and should be left in place. ● Check the stability of headstones and other features before removing or trimming any adjacent landscaping. ● Avoid using heavy equipment and use manual tools and smaller equipment instead. ● Avoid using weed wackers close to headstones. Use manual tools instead. ● Do not attempt to do tree work without professionals. Another way you can help take care of historic cemeteries is cleaning headstones. More advanced headstone work such as resetting stones and repairing damaged stones is best left to professionals. 531 6766 Cemetery Headstone Cleaning DO DON’T (all of these can damage stones) ● Use soft brushes or toothbrushes ● Use water ● Use D/2 Biological Solution ● Use metal or abrasive brushes ● Use bleach ● Pressure wash ● Make gravestone rubbings Always make sure the stone you are working with is stable before attempting to clean. If it does not seem stable, move on to another stable headstone. General cleaning process: ● First gently brush away any dirt or debris from the stone using a soft, dry brush. ● Wet the stone with water. ● If using D/2 Biological Solution, spray the stone. Water alone can be very effective, how- ever. ● Using a soft brush, start at the top of the stone and gently clean in a circular manner, working towards the bottom. ● Clean the stone with water again. ● Stone cleaning is complete, until next time. APPENDIX H EDUCATION, OUTREACH, AND INTERPRETATION RECOMMENDATIONS 532 6968 Appendix HEducation, Outreach, and Interpretation Recommendations Education and outreach around historic preservation is vital to fostering an informed and engaged community that values its cultural heritage. Historic preservation goes beyond safeguarding build- ings and landmarks—it’s about connecting people to the stories, traditions, and identities that shape a place. Effective education empowers individuals to take an active role in protecting their shared history and can make preservation more relatable and accessible. By cultivating understanding and appreciation for historic sites and their significance, communities like Bozeman can ensure that their heritage remains a vibrant and celebrated part of their collective future. Education and interpretation are also key tools in helping celebrate intangible heritage like cultural practices, traditions, knowledge, and expressions passed down through generations that are not physical objects. This could include oral histories, performing arts, rituals, social practices, foodways, events, traditional craftsmanship, and knowledge related to nature and the environment. It represents the living traditions and cultural identity of a community. Because intangible heritage is not easy to regulate like a building, education and interpretation can be a way for historic preservation programs to still address this heritage. This is where government preservation programs can borrow from the field of public history. As the Bozeman Landmark Program considers the best strategies to support proactive preserva- tion, as well as demystify the application process, and help people understand “what is historic,” the program has an opportunity to build upon the preexisting Preservation Month (May) programming to develop active and passive strategies that support community needs throughout the year. Active strat- egies are defined by an interactive element with the public and passive strategies are materials that can be dispersed through digital and physical means. Active strategies could include: ● Historic Preservation Advisory Board (HPAB) Meetings: ○ HPAB could expand what they offer during their meetings such as hosting guest lec- tures. ● Preservation Month ○ Preservation Month is recognized nationally every May, and on an annual basis, HPAB hosts a variety of events to the public. As this tradition continues it is recommended that feedback is collected from previous attendees to identify preferred styles of educa- tional events, understand what topics attendees would like to learn more about, and to find the right balance of events. ● Public Events ○ Historic Designations - HPAB has pursued historic designations of sights of signif- icance, for example Fred Willson Multiple Property Group. Public events could be hosted at the beginning and at the conclusion of such pursuits. The public events could do the following: ■ Raise awareness for historic designation process ■ Raise awareness for HPAB roles ■ Empower attendees to pursue historic designations for sites they view as signif- icant ■ Educate the public on the significance and history or specific themes, spaces, and people ■ Celebrate the successful pursuit of a historic designation. ○ Hands-On Preservation Education - the City of Bozeman manages a variety of historic spaces from the Sunset Hills Cemetery to Peets Hill to Beall Recreation Center and beyond. Utilizing city structures as a learning lab, event attendees could learn how and why preservation maintenance is performed and occasionally be able to assist in pro- active preservation of publicly owned spaces. For example, the public could be invited to learn about how to clean historic headstones or they could help with litter pick up on trails to learn about the different strategies of trail maintenance. Hands-On Preserva- tion Education opportunities can empower people to be connected to publicly owned spaces and learn how the City of Bozeman leads preservation through their actions. ○ Preservation Pop-Ups ■ HPAB members and City of Bozeman staff are encouraged to host tables at events, which may increase awareness of the Bozeman Landmark Program by distributing educational resources, kids activities, and promotion of Bozeman Landmark Program events and HPAB meetings. Recommended content focus areas for active engagement include: ● Exploring how residents can be a preservationist (in a variety of ways) ● Social history, the everyday relatable moments from the past ○ Foodways - historic and current ○ Agricultural history ○ Household ways of life ● Homeowner education ○ Strategies to maintain your home to assist its long-term preservation needs ○ Strategies to restore deteriorating elements of homes - ex: old windows ● Environmental spaces and cultural landscapes ● Urban Planning history - transportation, city development, infrastructure ○ Rail history ○ Aviation ○ Roadways ○ City growth 533 7170 ● Cultural cornerstones ○ Community events ○ History of outdoor recreation - camping, hiking, fishing, etc. Passive strategies could include: ● Educational Resources: ○ Historic Preservation Advisory Board (HPAB) members and staff are encouraged to develop educational resources that reflect areas of expressed interest by the public through inquiries. ■ Educational resources should be pithy documents similar to the National Park Service’s Preservation Briefs, but with local examples of historic places and projects. The educational resources should be approximately 1-2 pages in length with visuals and they can reference documents like the aforementioned briefs for additional information. The intention of these educational resources are to do the following: ● Provide a better understanding of Bozeman’s historic places - their con- text, their materials, their designations, etc. ● Provide a better understanding of Bozeman’s HPAB’s work ● Provide a better understanding of the City of Bozeman’s role in historic preservation ■ At least two educational resources should be developed on an annual basis to be launched as a part of Preservation Month activities digitally and in person ○ Relaunch self-guided tour series (digital and/or physical) ■ Develop self-guided tours for residents and visitors that provide opportunities for individuals/groups to learn more about sites that have been designated and/ or have been determined eligible for designation ● The HPAB should utilize the Fred Willson multiple property group histor- ic designation to develop the first self-guided tour. ● Additional self guided tours should be developed based on preexisting self guided tours (review and edit as needed) and based on emerging storytelling themes of priority. ● Historic Designations: ○ The Historic Preservation Advisory Board (HPAB) should continue to lead the research, development, and writing of historic designations for properties that have been deter- mined to have significance. HPAB should utilize the data collected from the Summer 2024 preservation survey to assist in the selection of future preservation designation priorities. It is recommended that a new designation project should be identified and pursued approximately every 2-3 years. In addition to the labor necessary to success- fully pursue a historic designation, the aforementioned active engagement to amplify the work done and utilize the HPAB labor as an educational opportunity. ● Social Media Posts: ○ The Bozeman Landmark Program should social media posts should: ■ Post regularly in advance of public advisory board meetings ■ Promote the annual historic preservation awards ■ Provide educational posts ○ HPAB members could be assigned a month to write a social media post. The post is recommended to highlight a history that has been designated, as an opportunity to elevate awareness of designated properties. ○ Physical Fliers ○ In addition to social media posts to promote public events related to the Bozeman Landmark Program, it is recommended that physical promotional fliers are placed in City Hall, at the Bozeman Library, and municipal owned locations that have bulletin boards. HPAB members are encouraged to place physical fliers in other community board locations. ● Signage - It is recommended that HPAB perform and create an assessment of existing heri- tage interpretation signs in Bozeman - location, materials communicated, owners of signage, etc. This assessment of existing signage should build upon survey materials which identified cultural cornerstones in facilitated meetings, survey results, and MSU student work. The as- sessment performed will do the following and could help support creation of a local landmark signage program: ○ Develop a map of existing marker locations. ○ Identify storytelling themes that currently exist in signage and emerged through the aforementioned community engagement. ○ Assess potential priority locations for storytelling signage based on pedestrian visibility. ○ Develop a design guideline for interpretive signage and strategy for location assess- ment, content development, and long-term maintenance. ○ Seek funding for fabrication and installation. Cultivating an understanding of cultural significant spaces is an impactful proactive preservation strat- egy, and installing signage is an opportunity for community collaboration/education. 534 7372 APPENDIX I RESOURCES AND BEST PRACTICE EXAMPLES Appendix I Resources and Best Practice Examples Beyond the Built Environment ● Aspen, Colorado ○ Aspen Grove Cemetery Studies● Deadwood, South Dakota○ City of Deadwood Archaeology● Glenview, Illinois○ Heritage Tree Program● Minneapolis, Minnesota○ Heritage Tree Program ● St. Paul, Minnesota○ Daylighting Buried Water● Tucson, Arizona ○ Archaeology of Downtown, Fort Lowell, and Court Street Cemetery● National○ Trails on Indigenous Property Businesses ● Missoula, MT○ Legacy Business Registry ● Boston, Massachusetts ○ Legacy Business Program● Detroit, Michigan ○ Legacy Business Project● Los Angeles, California○ Legacy Business Program● Pasadena, California ○ Legacy Business Program● San Francisco, California ○ Legacy Business Program● National ○ Small Business Anti-Displacement Toolkit 535 7574 Designations ● Altadena, California● Altadena Heritage Area Program ● Denver, Colorado● Cultural District Designation ● Conservation Overlay Districts ● Franklin, North Carolina● Noquisiyi Cultural District● Indianapolis, Indiana ● Conservation Districts ● Minneapolis, Minnesota○ Minneapolis Cultural Districts● New York City, New York ○ HOW CAN HISTORIC PRESERVATION BE MORE INCLUSIVE? LEARNING FROM NEW YORK CITY’S HISTORIC DISTRICTS● Washington D.C.● Historic Landmark and Historic District Protection Act of 1978 Equity ● Los Angeles, California○ Sustainable Little Tokyo ● New York City, New York○ LPC launches Equity Framework● Montana (statewide) ○ Essential Understandings Regarding Montana Indians○ Montana Indians - Their History and Location● San Francisco, California ○ Historic Preservation Commission Resolution No. 1127 Centering Preservation Planning on Racial and Social Equity● National ○ NAPC Forum Preservation Equity Resource List ○ INDIGENOUS KNOWLEDGE Understanding and Implementation○ National Alliance of Tribal Historic Preservation Officers Housing ● Cincinnati, Ohio○ Over the Rhine Affordable Housing/HP project● Michigan (statewide)○ The Missing Middle Mixtape ● Tulsa, Oklahoma○ PRO Housing Grant ● National ○ ACHP Housing + HP Policy Statement (Draft) Investment - Grants, Loans, Redevelopment Programs ● Austin, Texas ○ Heritage Preservation Grants● Aurora, Illinois○ Historic Preservation Grant Program● Berlin, Wisconsin ○ Revolving Loan Fund● Eugene, Oregon○ Historic Loan Program ● Fort Collins, Colorado○ Landmark Rehabilitation 0% Loan Program● Galveston, Texas ○ HOME Investment Partnership● Green River, Utah○ Epicenter Fix it First Loan Program ● Lakota Land, South Dakota○ Regenerative Community Development● Marysville, Ohio○ Community Reinvestment Area Program (CRA)● Macon Georgia○ 25-year Economic Impact Report on Revolving Loan Fund Program● Missoula, Montana○ North Missoula Community Development Corporation ● New York, New York○ New York City Historic Properties Fund● Rapid City, South Dakota ○ Revolving Loan Fund○ Downtown Facade Loan● Seattle, Washington ○ Incentives for Historic Properties in Seattle● Sioux Falls, South Dakota○ Historic Preservation Loan Program ● Spokane, Washington○ Historic Preservation Façade Improvement Grant● Saint Paul, Minnesota ○ Homeowner Rehab Loan Program● Wasatch County, Utah○ Revolving Loan Fund● National○ Preservation Basics: Preservation Revolving Funds 536 7776 Mapping/ Surveying ● Lakewood, Colorado○ Survey Plans● Manzanar, California ○ Manzanar Close Up Map● Milwaukee, Wisconsin○ Redlining and Plat GIS Map Layers ● Montana (statewide)○ Tribal Territories● Ohio (statewide)○ Ohio Modern - Preserving Our Recent Past● St.Louis, Missouri○ Mid Century Modern Survey● National○ East at Main Street Planning ● Austin, Texas○ Equity Based Preservation Plan ● Colorado (statewide)○ 2020 Statewide Preservation Plan● Des Moines, Iowa ○ Historic Preservation Plan● Michigan (statewide)○ Predevelopment Assistance for Growth & Advancement ● Washington (statewide)○ Preservation Plan (2021-2026): Inhabiting our History Sustainability ● Portland, Oregon● Deconstruction Ordinance ● San Antonio, Texas● Deconstruction Ordinance ● Los Angeles, California ● Citywide Adaptive Reuse Ordinance ● Milwaukee, Wisconsin● Deconstruction Ordinance● Rhode Island (statewide) ● Best Practices for Adaptive Reuse● Salt Lake City, Utah● Adaptive Reuse Ordinance Storytelling ● Baltimore, Maryland○ Baltimore Buried These Streams - Now An Artist Is Bringing One Back● Chillicothe, Missouri ○ City Murals● Manistee County, Michigan○ Self Guided Historic Tours ● Missolula, Montana○ Downtown Heritage Interpretation Plan● Nassau County, Florida ○ Bicentennial Celebration● Philadelphia, Pennsylvania○ Treasure Philly● Spokane, Washington○ Heritage Tours● Virginia City, Montana ○ Walking Tour Maps● Wheeling, West Virginia ○ Historical Neighborhood Signs 537 78 ©2025 Community Planning Collaborative www.planningcollab.com info@planningcollab.com (904) 577-0255 538 Memorandum REPORT TO:City Commission FROM:Greg Sullivan, City Attorney Chuck Winn, City Manager SUBJECT:Work Session on Tenant Right to Counsel Commission Priority MEETING DATE:May 13, 2025 AGENDA ITEM TYPE:Policy Discussion RECOMMENDATION:Provide direction to City Manager and City Attorney's Office STRATEGIC PLAN:3.3 Friendly Community: Ensure Bozeman continues to welcome diversity through policies and public awareness. BACKGROUND:See the attached memorandum for background information on this work session. UNRESOLVED ISSUES:To be discussed during work session. ALTERNATIVES:To be discussed during work session. FISCAL EFFECTS:To be discussed during work session and after direction from Commission. Attachments: TRC Commission 5 13 25 Work Session Memo Final .pdf Report compiled on: May 6, 2025 539 Page 1 of 6 To: Bozeman City Commission Fr: Bozeman City Attorney’s Office (Greg Sullivan and Anna Saverud) Date: May 7, 2025 RE: Memorandum for May 13, 2025, City Commission Work Session on Tenant Right to Counsel Priority I. Introduction In January of 2023, the City Commission, pursuant to Resolution 5626 (adopted August 6, 2024), established a priority to develop a tenant right to counsel program. This priority was adopted pursuant to the “Safe Welcoming Community” priority of the City’s Strategic Plan. The tenant right to counsel (TRC) priority includes researching, analyzing, and developing program options and “funding and program option discussion at Commission pending positive legal review.” This work session will provide an opportunity for the City Manager and the City Attorney’s Office, to present results of their preliminary work in fulfillment of this Commission priority and to create the framework for a Commission discussion on how to best implement this Commission priority. At the conclusion of the work session, we ask the Commission to provide direction on the following: • Does the Commission want to move forward with a Tenants Right to Counsel program? • If so, identify the goals of the program and identify the scope of the program including participant eligibility requirements and breadth of representation (See Section VII, below). • What type of community engagement does the Commission desire the City conduct? Will this involve engagement with tenants, landlords, and the public and if so the timing of the engagement in relation to program development? II. Right to Counsel Overview Under the federal and state constitutions, those accused of certain crimes are afforded a right to counsel if a potential criminal sentence implicates the accused’s constitutionally protected liberty interests. The same applies in post-conviction and habeas corpus proceedings. Except in limited circumstances, there is no corresponding constitutional right to counsel in civil proceedings. In Montana, the Montana Supreme Court recognizes a constitutional right to counsel in certain civil proceedings including involuntary commitments, dependency and neglect cases including the potential for involuntary adoption proceedings, some juvenile proceedings, and cases involving 540 Page 2 of 6 the developmentally disabled. Less common proceedings but those in which the Montana Legislature has created a statutory right to counsel include paternity determination, witness in a grand jury proceeding, a minor who petitions for a waiver of a right to abortion, and for persons subject to guardianship or conservatorship proceedings. Neither the federal constitution nor the Montana constitution enumerate a right to counsel for tenants involved in disputes with a landlord. Further the Supreme Court of the United States has not found housing to be a fundamental right. Neither Congress nor the Montana Legislature have legislatively created a right to counsel in landlord tenant issues. III. Basics of the Montana Residential Landlord Tenant Act (MRLTA) Under Montana law, the relationship between a landlord and a tenant is governed primarily by any written agreement between the tenant and the owner1. In addition, Montana statutory law defines the scope of the tenant and landlord relationship. See Title 70, chpts. 24, 25, and 33, MCA. The Montana Residential Landlord and Tenant Act (MRLTA) is found at Title 70, chapter 24, MCA. A detailed description of the rights and duties of property owners and tenants under the MRLTA is beyond the scope of this memorandum and work session.2 Nevertheless, we provide a few key points regarding the aspects of the MRLTA which could include legal counsel for a tenant. While the MRLTA provides remedies available to tenants or landlords, many tenant and landlord disputes involve the following categories: • Eviction proceedings initiated by the landlord (claims for possession); and • Issues related to payment of rent or the return of security deposits. The most frequent claim brought from Bozeman landlords in the last two years was for possession, with a failure to pay rent as the primary factor supporting the complaint. We will discuss more about the number of landlord/tenant filings within the city during 2023 and 2024 and what we can, and cannot, glean from the raw numbers during the work session. For evictions proceedings, an owner may seek eviction for damage to the property, failure of the tenant to pay rent, a tenant’s violation of lease terms, failure of tenant to maintain the premises, or the tenant’s abandonment of the property, among others. A tenant may bring claims under the MRLTA failure of the landlord to deliver or maintain the premises, purposeful or negligent failure to provide essential services, unlawful ouster, exclusion, or diminution of services, among others. 1 See Title 70, chapter 24, part 2, MCA. 2 For more information on the MRLTA, please visit this link from the Montana Legal Services Association. The Montana Judicial Branch has forms and guides to assist landlords and tenants. Also, MontPIRG publishes the Montana Tenant-Landlord Guide. 541 Page 3 of 6 Generally, most landlord/tenant cases related to properties within the city limits appear to be actions brought by landlords to recover possession of the property and damages related to pay due rent. Generally, to recover possession of the property from the tenant, a landlord must first provide notice to a tenant the rental agreement is terminated. Then, if the property is not vacated, or if the tenant vacates but does not pay all rent owed, the landlord may assert a claim in for possession, rent, and actual damages for the tenant’s breach of the rental agreement. See 70-24- 417, MCA. For Bozeman residents, these claims are brought in Gallatin County Justice Court. A landlord who brings a possession claim must serve the complaint on the tenant. According to the MRLTA, an action “must be heard within 10 business days after the tenant’s appearance or the answer date stated in the summons…” If a rental agreement is terminated for a tenant’s actions “that creates a reasonable potential that the premises may be damaged or destroyed or that neighboring tenants may be injured…” the action must be heard within five business days after the case is transmitted to the district court.” In addition, a hearing on damage for breach of the rental agreement must be heard within 45 days after the claim of possession and rent has been adjudicated. Certainly, there are other procedural considerations related to the operation of the MRLTA. IV. Bozeman’s Authority to Establish a Right to Counsel Program In Montana, the City of Bozeman, even considering its self-government powers, is limited in its authority regarding the scope of a right to counsel program. To create a “right” to counsel in a landlord and tenant dispute that would require a court overseeing the dispute to pause the legal process and allow time for a tenant to obtain counsel, Bozeman would have to adopt an ordinance that would require a court to insert a right to counsel into the procedures established in the MRLTA litigation. A “right” would create a corresponding obligation on the City to provide counsel for those who qualify. In Gallatin County, MRLTA cases are litigated in the Gallatin County Justice Court pursuant to State law including the MRLTA and the rules of procedure in the Justice Court. 7-1-111(13), MCA, prohibits the City from exercising “any power that applies to or affects landlords [] when that power is intended to [] regulate their activities with regard to tenants beyond that which is provided in Title 70, chapters 24, 25, and 33…”. In addition, the same subsection denies the City any power to “deviate from or add to the exclusive application of the provisions of: [] the Montana Residential Landlord and Tenant Act of 1977, Title 70, chapter 24…”3 While we have no definitive law on whether a tenant “right” to counsel program would be prohibited under 7-1-111(13), any program that would attempt to directly intervene into the procedures provided for in the MRLTA would most likely be deemed to violate this prohibition. If the City were to establish a program to provide funding for a tenant to voluntarily access 3 In addition, 7-1-111(1), MCA, prohibits a local government from exercising “any power that applies to or affects any private or civil relationship, except as incident to the exercise of any independent self-government power.” There is limited law in Montana as to the scope of this prohibition. 542 Page 4 of 6 counsel without requiring the Justice Court to recognize the right or requiring the Justice Court to deviate from the procedures provided in the MRLTA, such voluntary program would most likely not be subject to the statutory prohibition. V. TRC Programs in Other Jurisdictions According to the National Coalition for a Civil Right to Counsel, 19 cities, two counties and five states have enacted a TRC program. The Local Eviction Prevention Policy and Program Tool from the National League of Cities describes hundreds of other programs working to reduce the number of evictions in their communities through programs including, but not limited to, access to counsel programs, emergency rental assistance programs, education campaigns, etc. We suggest the city be mindful that the underlying legal authority to establish a TRC program differs from jurisdiction to jurisdiction as do funding opportunities. Some programs exist pursuant to state enabling legislation while others may be established pursuant to local ordinance where the locality has authority to address procedures to be followed in landlord/tenant disputes. Others establish a “right” that does not seek to address the legal procedures for eviction (possession) but rather establish a “right” to obtain counsel through the municipality’s program which is formally recognized by the municipality. Stated another way, the key difference between a TRC program and other programs funding access to counsel or financial assistance is a TRC can establish a codified obligation that a city provide counsel for eligible tenants. These “right” to counsel programs differ from what is described above in Section IV regarding assertion of authority over the procedures of the MRLTA in that they do not to purport to interfere the statutory process; instead, they create a “right” for a tenant to obtain counsel through the municipalities program. We recognize there is a demonstrable impact implementing some form of eviction protection program including TRC in reducing the number of evictions. See here for various evaluations including cost-benefit analyses and pilot program results. The work session will include a discussion of the scope and eligibility of various programs around the country and as well as how cities are funding their programs. VI. Considerations of a TRC Program for Bozeman In developing a program, there are numerous questions the Commission should consider when addressing the scope of the services to be provided under a TRC program and in determining the qualifications of a tenant to receive services. We provide the following for the Commission to consider in determining the goals and scope of a program: • Would the program provide services for all a tenant’s rights under the MRLTA? • Would the program provide services to a tenant to defend against any claim made by landlord against the tenant under the MRLTA? • Would the program only cover claims made under the MRLTA or be broader to provide services outside of or to avoid MRLTA claims? For example, under the MRLTA a 543 Page 5 of 6 landlord who has terminated a lease and evicted a tenant can file an action under the MRLTA for possession. Would the program apply prior to the notice of termination, only upon notice of termination, or only once a claim has been filed by the landlord in Justice Court? • Would the program provide services to tenants who are at risk of violating provisions of a lease or the MRLTA? For example, would the program provide services to assist a tenant in negotiating payment of past-due rent to avoid termination of the lease? • Would the program cover situations where a tenant feels the landlord has not delivered possession of the property to the tenant or where the tenant alleges a landlord is in violation of the landlord’s duty to maintain the premises or provide essential services, such as heat or running water? • Would the program cover unlawful or unreasonable entry, or unlawful ouster by the landlord? • Would the program cover counterclaims by a tenant regarding rent? • Would the program cover a tenant’s defense of a claim by the landlord for the tenant’s failure to maintain the premises? • Would the program cover a tenant’s defense of a landlord’s claim the tenant abandoned the property? • Would the program cover claims by a tenant the landlord is retaliating against the tenant? • Would the program cover claims by tenants the landlord is wrongfully withholding a security deposit? • Are there income or other thresholds a tenant will need to demonstrate to qualify for assistance in the program? • Would tenants who are eligible for legal services through existing program, such as ASMSU Legal Services, also be eligible for the City program? • Will the program have limitations on the scope of services such as if services are provided for a claim brought by a landlord in Justice Court would the services also include any appeals? • Will there be a co-pay requirement for the tenant? • If a tenant is successful in an action and is awarded attorney fees, must the tenant, as a condition of receiving services under the program, return all awarded attorney fees to the program? • Would the program be available to a tenant only if the landlord is represented by counsel? • Should the program include collection of data to demonstrate the effectiveness of a program? • Are there any aspects of the landlord/tenant relationship the program should not cover? For example, if a landlord terminates a lease for violations of the lease for things such as having too many people living in the unit or having a pet where the lease prohibited the pet would the program cover these items? 544 Page 6 of 6 VII. Public Comment The City has received public comment on this item. It can be found here. Generally, the public comment is supportive of establishing a TRC program. We recognize the comments may highlight the need to clarify the scope and eligibility requirements of a program. VIII. Financing a TRC Program We have not yet fully evaluated options for how the City could finance a TRC program or estimated costs of a program. After the work session, and depending on direction from the Commission, we will then develop options for the funding of the program. Sources of funding may include the City’s general fund, private philanthropy, participation from other local governments, and federal grant opportunities through the Community Development Block Grants (CDBG) or the federal government’s Housing and Urban Development agency’s eviction protection grant program. In Montana, the Department of Commerce and Montana Legal Services Association use HUD funds to implement the Montana Eviction Intervention Project.4 IX. Next Steps: After the work session, and depending on direction from the Commission regarding goals, and components of a program, we suggest the following steps: • Take the Commission direction for goal, scope, and eligibility and discuss with related stakeholders how to best implement this Commission priority including but not limited to meeting with the Gallatin County Justices of the Peace, Montana Legal Services Association, legal counsel for ASMSU, the staff at the Self-Help Law Center, HRDC, Family Promise, and others. • Investigate additional funding sources to supplement the Commission’s budget allocation; • Develop a formal program for adoption by the Commission; and • Upon adoption of a program, implement a procurement process to seek the services of a law firm or non-profit entity to provide the program’s services. 4 Local non-profits have programs to assist tenants who are experiencing difficulties paying rent. HRDC has a program as does Family Promise. 545 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 1 of 23 FIRST AMENDMENT TO CONSTRUCTION AGREEMENT This Construction Agreement is made and entered into this _____ day of ____________, 202__ (“Effective Date”), by and between the BOZEMAN DOWNTOWN URBAN RENEWAL DISTRICT, an agency of the CITY OF BOZEMAN, MONTANA, a self- governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and, CONSTRUCTIVE SOLUTIONS, INC., hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” Recitals A. The City issued an Invitation to Bid for the construction project known as Downtown Bozeman Alley Enhancement Pilot Project (“Construction Project”) pursuant to the requirements of all applicable statutes, rules, regulations, and ordinances. B. The City analyzed all responses to the Invitation to Bid received pursuant to its standard practices and the requirements of all applicable statutes, rules, regulations, and ordinances. C. Upon the full execution of this Construction Agreement, the City will issue the Notice of Award, attached as Exhibit A, to Contractor. In consideration of the covenants, agreements, representations, and warranties contained herein, the Parties agree as follows: Agreement 1. Work to be Performed: a. A description of the work to be performed including asphalt coatings, visual enhancements via murals and sculpture installation, lighting improvements, landscape and hardscape improvements, site furnishings, signage, and miscellaneous other items in and around the alley between North Tracy Avenue and North Black Avenue within the City of DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697A February 4 13th DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 349546 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 2 of 23 Bozeman (the “Construction Project”) and Contractor’s duties is set forth in the Scope of Services attached hereto as Exhibit B and by this reference made a part hereof. The City’s Notice of Award is attached here as Exhibit A. A part of the Construction Project includes the installation of commissioned murals and sculptures (“Artwork”), which is detailed in Artwork Scope of Services, attached Exhibit C. When the term “Artwork” is specifically used in this Agreement, it explicitly excludes any other work described in paragraph 1(a) of this Construction Agreement. Contractor and the City are jointly responsible for the approval of all selected Artwork that will be installed as part of the Construction Project. The following constitute the Construction Documents and are made a part of this Agreement as if incorporated herein: • This Agreement; • All required insurance; • The Contractor’s Nondiscrimination and Gender Pay Affirmation; • The Scope of Services; • Artwork Scope of Services; • The Notice of Award; • The Drawings, Plans, and Specifications; • Artwork Plans and Drawings; • Transfer and Assignment of Copyright for Public Artwork; and • 1990 Visual Artists’ Rights Act Waiver. Where a provision of any other portion of the Construction Documents conflicts with this Agreement, the terms and conditions of this Agreement shall control. All work under this Agreement that is subject to the Montana Public Works Standard Specifications or the City’s Modifications to the same must comply with such standards. b. Prior to the commencement of any work on the Construction Project, Contractor’s representatives and City’s representatives shall hold a meeting to establish a working understanding among the parties as to the scope of the Construction Project and duties of the Contractor. At this meeting, Contractor and City shall resolve any outstanding issues related to the plans, designs, drawings, and specifications. If the parties are unable to resolve these issues and the City fails, refuses, or is unable to approve the same, no work shall commence on the Construction Project until such issues are resolved. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 350547 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 3 of 23 c. Except as provided elsewhere in this Agreement, Contractor shall furnish all the labor, materials, equipment, tools, and services necessary to perform and complete the Construction Project. d. During work on the Construction Project, and as part of the final completion of the Construction Project, Contractor shall clean up the Project site, including the removal and satisfactory disposal of all waste, garbage, excess materials, and equipment, and the performance of any other work necessary to restore the site to at least as good order and condition as at the commencement of the Construction Project. 2. City-Supplied Materials: The City may supply materials from time to time in furtherance of the Construction Project. 3. Time of Performance: a. Contractor shall begin the Construction Project after receiving a Notice to Proceed from City and shall complete the Construction Project no later than August 31, 2024. Time is of the essence of completion of all work and each phase of the Construction Project. b. The City’s Representative must develop a Construction Schedule in consultation with the Contractor. Contractor’s construction plan, methods of operation, materials used, and individuals and subcontractors employed (collectively “Contractor’s Resources”) are subject to the City’s approval at all times during the term of this Agreement and must be such as to ensure the completion of the work in compliance with the deadlines set in the Construction Schedule during the term of this Agreement. In the event the City determines the Contractor’s Resources are inadequate to meet the approved Construction Schedule, the City may order the Contractor to accelerate its performance to give reasonable assurances of timely completion and quality results. Acceleration under this section shall not be deemed a Change Order as defined in Section 5b below and the Contractor shall receive no equitable adjustment for such acceleration. Nothing in this section shall be interpreted to relieve the Contractor of its duties and responsibilities to plan for and complete the work in a timely manner according to the Construction Schedule. 4. Liquidated Damages: If the Construction Project is not completed within the time provided by this Agreement, the City may deduct for each day the Construction Project remains uncompleted the sum of Five Hundred Dollars ($500.00) from the compensation hereinafter specified and retain that sum as payment for liquidated damages sustained by reason of the Contractor’s failure to complete the Construction Project on time. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 351548 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 4 of 23 5. Compensation: a. City shall pay to Contractor, and Contractor shall accept as full payment for the performance of this Agreement and the Construction Project, the amount of Two Hundred Ninety-Eight Thousand Five Hundred Thirteen Dollars and Twenty-Eight Cents ($298,513.28). Monthly progress payments and final payment will be made only in accordance with the terms of a completed Compensation Schedule to be approved by the City’s Representative. All invoices must be submitted to the City’s Representative. b. If work not included within the original Construction Documents is requested by City, such additional work and the related compensation shall be agreed to in writing by both parties prior to commencement of the additional work (“Change Order”). c. City shall retain five percent (5%) of the total amount of compensation to be paid to the Contractor to ensure compliance with the terms and conditions of this Agreement and the timely completion of the Construction Project and any and all “punch list” items (“Retainage Amount”). The Retainage Amount shall be paid to Contractor thirty (30) days after the City’s final acceptance of the portion of work for which a separate price is stated in the specifications for the Construction Project. e. Upon acceptance of final payment and for other good and valuable consideration, Contractor shall and hereby does release and forever discharge City, its officers, agents, and employees of and from any and all claims, demands, actions, causes of action, obligations, and liabilities of every kind and character whatsoever, in law and in equity, whether now known or in the future discovered, arising from or related to this Agreement or the Construction Project that Contractor may have or assert against City, its officers, agents, and employees. 6. Inspection and Testing: a. City has the right to inspect and test any and all work performed by Contractor on the Construction Project. Contractor shall allow City and its agents access to the Construction Project at all times and shall provide every reasonable facility for the purpose of such inspection and testing, including temporarily discontinuing portions of the work or uncovering or taking down portions of the finished work. Any inspection and testing performed by the City and its agents is for the sole benefit of the City and shall not relieve the Contractor of its duty, responsibility, and obligation to ensure that the work strictly complies with the Agreement terms and conditions and all applicable laws and building and safety codes. City’s inspection and testing shall not be deemed or considered acceptance by the City of any portion of the Construction Project. City’s inspection and DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 352549 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 5 of 23 testing shall not serve to nullify, amend, or waive any warranties provided by the Contractor under this Agreement. b. Contractor shall, without charge, replace any material or correct any work found by the City or its agents to be defective or otherwise not in compliance with the terms and conditions of this Agreement. In the event Contractor fails to replace or correct any defective work or materials after reasonable written notice by the City to do so, the City may take such corrective action, either with its own materials and employees or by retaining any third party to do so, and deduct the cost and expense of such corrective action from the Contractor’s compensation. 7. Partial Utilization of Construction Project: City shall have the right to use or occupy any portion of the Construction Project that City and Contractor mutually agree is substantially completed and constitutes a separately functioning and usable part of the Construction Project for its intended purpose without significant interference with Contractor’s performance of the remaining portions of the Construction Project. In the event City takes possession of any portion of the Construction Project, such possession shall not be deemed an acceptance of the Construction Project, in whole or in part. City’s use of any portion of the Construction Project shall not be grounds for extensions of any construction deadlines or a change in the Contractor’s compensation. Contractor’s warranties shall run from the completion of the total Construction Project and not from the date the City may take possession of selected portions of the Construction Project. 8. Related Work at the Site: Nothing in this Agreement shall prevent or preclude City, through its own employees or by contract with any third party, from performing other work related to the Construction Project at the construction site; provided such related work is not otherwise addressed in this Agreement and provided such related work does not otherwise interfere with Contractor’s performance of this Agreement or the completion of the Construction Project. Contractor shall afford any City employee, agent or representative, or any third party under contract with the City to perform the related work, proper and safe access to the construction site, a reasonable opportunity for the introduction and storage of materials and equipment, the opportunity to perform the related work, and shall properly coordinate the Contractor’s work on the Construction Project with the related work. 9. Contractor’s Warranties: Contractor represents and warrants as follows: a. Unless otherwise specified by the terms of this Agreement, all materials and equipment used by Contractor on the Construction Project shall be new and where not otherwise specified, of the most suitable grade for their intended uses. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 353550 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 6 of 23 b. All workmanship and materials shall be of a kind and nature acceptable to the City. c. All equipment, materials, and labor provided to, on, or for the Construction Project must be free of defects and nonconformities in design, materials, and workmanship for a minimum period beginning with the commencement of the work on the Construction Project and ending one (1) year from the final completion and acceptance by the City of the Construction Project, regardless of whether such equipment, materials, or labor were supplied directly by Contractor or indirectly by Contractor’s subcontractors or suppliers. Other express warranties on materials that provide for a warranty period longer than one year apply for the period of that express warranty and are not reduced by this provision. Upon receipt of City’s written notice of a defective or nonconforming condition during the warranty period, Contractor shall take all actions, including redesign and replacement, to correct the defective or nonconforming condition within a time frame acceptable to the City and at no additional cost to the City. Contractor shall also, at its sole cost, perform any tests required by City to verify that such defective or nonconforming condition has been corrected. Contractor warrants the corrective action taken against defective and nonconforming conditions for a period of an additional one (1) year from the date of City’s acceptance of the corrective action. d. Contractor and its sureties are liable for the satisfaction and full performance of all warranties. e. Contractor shall give its personal attention to the faithful prosecution of the completion of the Construction Project and Contractor, or its duly authorized representative assigned to serve as the Construction Project Manager, shall be personally present at the site of the Construction Project during working hours for the term of this Agreement until the completion of the Construction Project. f. Contractor shall have a complete, accurate, and up-to-date set of construction plans, drawings, and specifications on site at all times. g. Contractor has examined all available records and made field examinations of the site of the Construction Project. Contractor has knowledge of the field conditions to be encountered during the Construction Project. Contractor has knowledge of the types and character of equipment necessary for the work, the types of materials needed and the sources of such materials, and the condition of the local labor market. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 354551 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 7 of 23 h. Contractor is responsible for the safety of the work and shall maintain all lights, guards, signs, temporary passages, or other protections necessary for that purpose at all times. i. All work must be performed at Contractor’s risk, and Contractor shall promptly repair or replace all damage and loss at its sole cost and expense regardless of the reason or cause of the damage or loss; provided, however, should the damage or loss be caused by an intentional or negligent act of the City, the risk of such loss shall be placed on the City. j. Contractor is responsible for any loss or damage to materials, tools, or other articles used or held for use in the completion of performance of the Construction Project. k. Contractor’s performance must be without damage or disruption to any other work or property of the City or of others and without interference with the operation of existing machinery or equipment. l. Title to all work, materials, and equipment covered by any payment of Contractor’s compensation by City, whether directly incorporated into the Construction Project or not, passes to City at the time of payment, free and clear of all liens and encumbrances. m. Contractor, at its expense and in consultation with the City, will arrange for the preparation and installation of the Artwork on or before September 30, 2024. As further delineated in paragraph 18, the City retains the right to repair, remove, or un-install the Artwork at any time. Contractor bears the risk of loss for the Artwork up and until the title of the Artwork transfers to the City. n. For one-year from installation, Contractor expressly warrants that its installation of the Artwork will be free from any defects related to installation. If, during the one-year warranty period, any defect occurs, upon receiving written notice from the City, Contractor agrees to repair, replace, or pay the City the reasonable cost of repairing or replacing the Artwork. Contractor acknowledges and agrees that the choice between repairing, replacing, or paying the City is solely within the City’s discretion and authority. 10. Delays and Extensions of Time: If Contractor’s performance of this Agreement is prevented or delayed by any unforeseen cause beyond the control of the Contractor, including acts or omissions of the City, Contractor shall, within ten (10) days of the commencement of any such delay, give the City written notice thereof. Further, Contractor shall, within ten (10) days of DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 355552 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 8 of 23 the termination of such delay, give the City written notice of the total actual duration of the delay. If the City is provided with these required notices and if the City determines that the cause of the delay was not foreseeable, was beyond the control of the Contractor, and was not a result of the fault or negligence of the Contractor, then the City will determine the total duration of the delay and extend the time for performance of the Agreement accordingly. Unless the delay is caused by the intentional interference of the City with the Contractor’s performance, Contractor shall make no claim for damages or any other claim other than for an extension of time as herein provided by reason of any delays. 11. Suspension: a. The City may, by written notice to the Contractor and at its convenience for any reason, suspend the performance of all or any portion of the work to be performed on the Construction Project (“Notice of Suspension”). The Notice of Suspension shall set forth the time of suspension, if then known to the City. During the period of suspension, Contractor shall use its best efforts to minimize costs associated with the suspension. b. Upon Contractor’s receipt of any Notice of Suspension, unless the notice requires otherwise, Contractor shall: (1) immediately discontinue work on the date and to the extent specified in the Notice of Suspension; (2) place no further orders or subcontracts for materials, services, or equipment; (3) promptly make every reasonable effort to obtain suspension upon terms satisfactory to City of all orders, subcontracts, and rental agreements to the extent that they relate to the performance of the work suspended; and (4) continue to protect and maintain the Project, including those portions on which work has been suspended. c. As compensation for the suspended work, Contractor will be reimbursed for the following costs, reasonably incurred, without duplication of any item, and to the extent that such costs directly resulted from the suspension: (1) a standby charge paid during the period of suspension which will be sufficient to compensate Contractor for keeping, to the extent required in the Notice of Suspension, Contractor’s organization and equipment committed to the Project in standby status; (2) all reasonably incurred costs for the demobilization of Contractor’s and subcontractor’s crews and equipment; (3) an equitable amount to reimburse Contractor for the cost to protect and maintain the Project during the period of suspension; and (4) an equitable adjustment in the cost of performing the remaining portion of the work post-suspension if, as a direct result of the suspension, the cost to Contractor of subsequently performing the remaining work on the Construction Project has increased or decreased. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 356553 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 9 of 23 d. Upon receipt of written notice by the City to resume the suspended work (“Notice to Resume Work”), Contractor shall immediately resume performance of the suspended work as to the extent required in the Notice to Resume Work. Any claim by Contractor for time or compensation described in Section 11(c) shall be made within fifteen (15) days after receipt of the Notice to Resume Work and Contractor shall submit a revised Construction Schedule for the City’s review and approval. Contractor’s failure to timely make such a claim shall result in a waiver of the claim. e. No compensation described in Section 11(c) shall be paid and no extension of time to complete the Construction Project shall be granted if the suspension results from Contractor’s non-compliance with or breach of the terms or requirements of this Agreement. 12. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the Construction Project (“Termination Notice Due to Contractor’s Fault”). The City may then take over the Construction Project and complete it, either with its own resources or by re-letting the contract to any other third party, and may immediately take possession of and use such materials, appliances, tools, and equipment as may be on the site and which may be necessary for the completion of the Construction Project. b. In the event of a termination pursuant to this Section 12, Contractor shall be entitled to payment only for those services Contractor actually rendered. In the case of a lump sum or unit price contract, Contractor shall not be entitled to any further payment until the Construction Project has been completed. Upon completion of the Construction Project, if the unpaid balance of the Contractor’s compensation exceeds the cost to the City of completing the work, including all costs paid to any subcontractors or third parties retained by the City to complete the Construction Project and all administrative costs resulting from the termination (“City’s Cost for Completion”), such excess shall be paid to the Contractor. If the City’s Cost for Completion exceeds the unpaid balance of the Contractor’s compensation, then Contractor and its sureties shall be liable for and shall pay the difference, plus interest at the rate applicable to court judgments, to the City. c. Any termination provided for by this Section 12 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 357554 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 10 of 23 d. In the event of termination under this Section 12, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 13. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease work on the Construction Project, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease work on the Construction Project, discontinue placing orders for materials, supplies, and equipment for the Construction Project, and make every reasonable effort to cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed, in progress, or in transit to the construction site. c. In the event of a termination pursuant to this Section 13, Contractor is entitled to payment only for those services Contractor actually rendered and materials actually purchased or which Contractor has made obligations to purchase on or before the receipt of the Notice of Termination for City’s Convenience, and reasonably incurred costs for demobilization of Contractor’s and any subcontractor’s crews. It is agreed that any materials that City is obligated to purchase from Contractor will remain the City’s sole property. d. The compensation described in Section 13(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 14. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 358555 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 11 of 23 waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within ten (10) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 15. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Ellie Staley or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be Rob Evans or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 359556 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 12 of 23 16. Locating Underground Facilities: Contractor shall be responsible for obtaining and determining the location of any underground facilities, including but not limited to, the location of any pipelines or utility supply, delivery, or service lines in accordance with the provisions of §69-4-501, et seq., Montana Code Annotated (MCA). Contractor shall make every effort to avoid damage to underground facilities and shall be solely responsible for any damage that may occur. If City personnel assume responsibility for locating any underground facilities, this fact shall be noted in writing prior to commencement of such location work. 17. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, pay all fees and charges in connection therewith, and perform all surveys and locations necessary for the timely completion of the Construction Project. 18. Ownership of Artwork. The City shall be the legal owner of the Artwork once it is installed. Until installation and title transfers, Contractor remains the owner of the Artwork. See paragraph 9 of this Construction Agreement for Artwork-specific warranties which apply only to the Artwork and not to the Construction Project in its entirety. For the Artwork, the Parties agree to sign a Transfer and Assignment of Copyright for Public Artwork, attached as Exhibit D, prior to the City’s acceptance of the Artwork. In addition, as required by the U.S. Copyright Act, and as set forth in paragraph 24(d) of this Agreement, Contractor and its sub-contractors which are providing murals and other artwork related to the Artwork agree to sign, prior to the City’s acceptance of the Artwork, a 1990 Visual Artists’ Rights Act Waiver (“Waiver”), attached as Exhibit E. Contractor and its applicable subcontractors acknowledge that by signing the Waiver, they are agreeing to voluntarily waive all rights to attribution and integrity with respect to the Artwork, and any and all claims that may arise under the Visual Artists Rights Act of 1990 (“VARA”), 17 U.S.C. §§ 106(A) and 113(d) or any other local, state, or federal law that conveys the same or similar “moral rights,” as defined by VARA, with respect to the Artwork. Contractor agrees to provide Exhibit D and Exhibit E to its subcontractors for the Artwork. Contractor must return executed copies to the City at the time title transfers. Once the Transfer of Copyright for Public Artwork is executed, the City will become copyright owner and take title in and to the Artwork, and any and all drawings, sketches, models, and any other documents or materials created by the Contractor in furtherance of the Artwork. The Contractor agrees to deliver to the City all such materials within five (5) working days of title transfer. 19. Maintenance, Repairs, and Alterations of the Artwork. The City recognizes that due to the nature of the Artwork, maintenance is essential. Upon transfer of the title of Artwork and legal ownership passes to the City, as set forth in paragraph 18, the City retains full discretion and responsibility to maintain and protect the Artwork. The City retains the sole right to determine DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 360557 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 13 of 23 whether, when, and to what extent any repairs to the Artwork will occur. The City is not obligated to provide the Contractor or any of its subcontractors for the Artwork notice before undertaking any repairs or modifications to the Artwork. However, the City shall endeavor to notify the Contractor of any proposed alteration of the Artwork. Contractor is responsible for maintaining a current contact person and contact information to receive such notice. If Contractor receives such notice from the City, it is responsible for notifying its subcontractors for the Artwork. The City is under no obligation to provide notice to the Contractor if the Contractor fails to maintain such contact information with the City. Because the Artwork is attached to the City’s property, Contractor agrees to indemnify, defend, and hold harmless the City against any and all liability, damage, loss, or expense, including reasonable attorneys’ fees and expenses of litigation, incurred by the City for any and all claims raised under the Visual Artists Rights Act. Should the City determine that the removal or extraction of the Artwork is necessary, Contractor retains first priority to reclaim physical possession of the Artwork. In such an instance, Contractor is responsible for all associated costs of such removal. 20. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non- discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 21. Nondiscrimination and Equal Pay: Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. Contractor shall not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 361558 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 14 of 23 Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 22. Intoxicants; DOT Drug and Alcohol Regulations: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, upon the site of the Construction Project. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 23. Labor Relations: a. Contractor shall post a legible statement of all wages and fringe benefits to be paid to the Contractor’s employees and the frequency of such payments (i.e., hourly wage employees shall be paid weekly). Such posting shall be made in a prominent and accessible location at the site of the Construction Project and shall be made no later than the first day of work. Such posting shall be removed only upon the final completion of the Construction Project and the termination of this Agreement. b. In performing the terms and conditions of this Agreement and the work on the Construction Project, Contractor shall give preference to the employment of bona fide residents of Montana, as required by §18-2-403, MCA, and as such, term is defined by §18-2-401(1), MCA. When making assignments of work, Contractor shall use workers both skilled in their trade and specialized in their field of work for all work to which they are assigned. c. Pursuant to §18-2-403 and §18-2-422, MCA, Contractor shall pay wages, benefits, and expenses in conformance with the current version of the Prevailing Wage Rates for Highway Construction Services as published by the Montana Department of DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 362559 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 15 of 23 Labor and Industry and which are applicable to Gallatin County. Contractor shall pay all hourly wage employees on a weekly basis. Violation of the requirements to pay applicable prevailing wage rates may subject the Contractor to the penalties set forth in §18-2-407, MCA. Contractor shall maintain payroll records and provide certified copies to the City. Contractor shall maintain such payroll records during the term of this Agreement, the course of the work on the Construction Project, and for a period of three (3) years following the date of final completion of the Construction Project and termination of this Agreement. d. In the event that, during the term of this Agreement and throughout the course of Contractor’s performance of the Construction Project, any labor problems or disputes of any type arise or materialize which in turn cause any work on the Construction Project to cease for any period of time, Contractor specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific steps Contractor shall take to resume work on the Construction Project shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the work on the Construction Project to resume and be completed within the time frames set forth in the Construction Schedule at no additional cost to City. b. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. 24. Subcontractors: a. Contractor may employ subcontractors for any work on the Construction Project. Contractor shall provide City with a list of all subcontractors employed. b. Contractor remains fully responsible for the acts and omissions of any subcontractor, just as Contractor is for its own acts and omissions, and Contractor shall remain fully responsible and liable for the timely completion of the Construction Project. c. Contractor is solely liable for any and all payments to subcontractors. Contractor shall hold all payments received from the City in trust for the benefit of subcontractors, and all such payments shall be used to satisfy obligations of the Construction Project before being used for any other purpose. Contractor shall make any payments due to any subcontractor within seven (7) days of Contractor’s receipt of payment, including a proportional part of the retainage Contractor has received from the DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 363560 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 16 of 23 City. In the event of a dispute regarding any subcontractor’s invoice, Contractor shall promptly pay the undisputed amount to the subcontractor and notify the subcontractor in writing of the amount in dispute and the reasons for the dispute. Any withholding of payment must comply with the requirements of §28-2-2103, MCA. In the event Contractor is unwilling or unable to make timely and proper payment to any subcontractor, City may elect to withhold any payment otherwise due to Contractor and upon seven (7) days’ written notice to Contractor, may pay subcontractor by direct or joint payment. d. Contractor will require any subcontractors hired for the Construction Project to sign a Transfer and Assignment of Copyright for Public Artwork and a 1990 Visual Artists’ Rights Act Waiver. 25. Indebtedness and Liens: Before City may make any final payment to Contractor, Contractor shall furnish City with satisfactory proof that there are no outstanding debts or liens in connection with the Construction Project. If the Contractor allows any indebtedness to accrue to subcontractors or others during the progress of the work, and fails to pay or discharge the same within five (5) days after demand, then City may either withhold any money due to Contractor until such indebtedness is paid or apply the same towards the discharge of the indebtedness. If any lien or claim is filed or made by any subcontractor, material supplier, or any other person, the Contractor shall immediately notify the City and shall cause the same to be discharged of record within thirty (30) days after its filing. 26. Hazard Communication: Contractor shall comply with all hazard communication requirements dictated by the Environmental Protection Agency, the Montana Department of Agriculture, OSHA, Hazard Communications Standard, 29 CFR 1910.1200, and applicable City ordinances. Contractor shall supply a chemical list, the associated material safety data sheets (MSDS), and other pertinent health exposure data for chemicals that the Contractor’s, subcontractor’s or the City’s employees may be exposed to while working on City property during the course of the Construction Project. One copy of this documentation must be delivered to City to the attention of the City’s Representative. This documentation must be delivered before work involving these chemicals may commence. 27. Accounts and Records: During the term of this Agreement and for two (2) years following the City’s final acceptance of the Construction Project, Contractor shall maintain accounts and records related to the Construction Project. Upon reasonable notice, City shall have the right to inspect all such accounts and records, including but not limited to, Contractor’s records, books, correspondence, instructions, drawings, specifications, field and site notes, receipts, invoices, bills, contracts, or other documents relating to the Construction Project. 28. Indemnification; Insurance; Bonds: DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 364561 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 17 of 23 a. Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of and expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents; or (iii) the negligent, reckless or intentional misconduct of any other party. b. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the indemnitee(s) which would otherwise exist as to such indemnitee(s). c. Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. d. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. e. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. f. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 365562 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 18 of 23 g. These obligations shall survive termination of this Agreement and the services performed hereunder. h. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in subsection (a) of this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as shown below: • Workers’ Compensation – not less than statutory limits; • Employers’ Liability - $1,500,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability (bodily injury and property damage) - $1,500,000 per occurrence; $3,000,000 annual aggregate; • Products and Completed Operations – $3,000,000; • Automobile Liability - $1,500,000 property damage/bodily injury; $2,000,000 annual aggregate (all owned, hired, non-owned vehicles); • Builder’s Risk/Property Insurance at least as broad as that provided by the ISO special causes of loss form (CP10 30) naming at a minimum the City in an amount equal to greater of Contractor’s compensation or full replacement value of the work (covering at a minimum all work, buildings, materials and equipment, whether on site or in transit, loss due to fire, lightening, theft, vandalism, malicious mischief, earthquake, collapse, debris removal, demolition occasioned by enforcement of laws, water damage, flood if site within a flood plain, repair or replacement costs, testing and start-up costs) on an all risk coverage basis. • Owner’s and Contractor’s Protective Liability: one policy designating the City (including its agents, representatives, employees, and officers) as the insured and another independent policy designated the City’s Representative (including its consultants, consultants, agents and employees) as the insured on the declarations with both policies covering: (i) operations performed by the Contractor under this Agreement for the City; and (ii) the City’s and City’s Representatives acts or omissions, including negligent acts, in connection with its general supervision of the work of the Contractor’s and its subcontractors - $1,000,000 per occurrence; $3,000,000 aggregate; DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 366563 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 19 of 23 • Contractual Liability Insurance (covering the Contractor’s indemnity obligations described in this Agreement) - $1,000,000 per occurrence $3,000,000 aggregate The amounts of insurance provided shall be exclusive of defense costs. The City of Bozeman shall be endorsed as an additional or named insured on a primary non- contributory basis on both the Commercial General and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. i. Required Bonds. Contractor shall make, execute, purchase, maintain and deliver to City performance and payment bonds in an amount at least equal to the Contractor’s compensation under this Agreement, conditioned that the Contractor shall faithfully perform of all of Contractor’s obligations under this Agreement and pay all laborers, mechanics, subcontractors, material suppliers and all persons who supply the Contractor or Contractor’s subcontractors with provisions, provender, material, or supplies for performing work on the Construction Project. All bonds must be obtained with a surety company that is duly licensed and authorized to transact business within the state of Montana and to issue bonds for the limits so required. The surety company must have a Best’s Financial Strength Rating of A, as rated by the A. M. Best Co., or an equivalent rating from a similar rating service. All bonds must remain in effect throughout the life of this Agreement and for a minimum of one (1) year following the date of expiration of Contractor’s warranties. A certified copy of the agent’s authority to act must accompany all bonds signed by an agent. If the surety on any bond furnished by Contractor is declared bankrupt or becomes insolvent or its right to do business within the state of Montana is terminated, Contractor shall promptly notify City and shall within twenty (20) days after the event giving rise to such notification, provide another bond with another surety company, both of which shall comply with all requirements set forth herein. Bond Types and Amounts: 1. Performance Bond Equal to Contractor’s compensation amount 2. Labor and Materials Bond Equal to Contractor’s compensation amount DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 367564 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 20 of 23 29. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. Contractor understands that all contractors or subcontractors working on a publicly funded project are required to pay or have withheld from earnings a license fee of one percent (1%) of the gross contract price if the gross contract price is Five Thousand Dollars ($5,000) or more. This license fee is paid to the Montana Department of Revenue. 30. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute shall be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 31. Survival: Contractor’s indemnification and warranty obligations shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 32. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 33. Waiver: A waiver by City of any default or breach by Contractor of any covenants, terms, or conditions of this Agreement does not limit City’s right to enforce such covenants, terms, or conditions or to pursue City’s rights in the event of any subsequent default or breach. 35. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 36. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 368565 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 21 of 23 37. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 38. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 39. Amendments: This Agreement may not be modified, amended, or changed in any respect except by a written document signed by all parties. 40. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 41. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 42. Assignment: Contractor may not assign this Agreement in whole or in part without the prior written consent of the City. No assignment will relieve Contractor of its responsibility for the performance of the Agreement and the completion of the Construction Project. Contractor may not assign to any third party other than Contractor’s subcontractors on the Construction Project, the right to receive monies due from City without the prior written consent of City. 43. Authority: Each party represents that it has full power and authority to enter into and perform this Agreement and the person signing this Agreement on behalf of each party has been properly authorized and empowered to sign this Agreement. 44. Independent Contractor: The parties agree and acknowledge that in the performance of this Agreement and the completion of the Construction Project, Contractor shall render services as an independent contractor and not as the agent, representative, subcontractor, or employee of the City. The parties further agree that all individuals and companies retained by Contractor at all times will be considered the agents, employees, or independent contractors of Contractor and at no time will they be the employees, agents, or representatives of the City. 45. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained therein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 369566 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 22 of 23 46. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697ADocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 370567 First Amend. to Construction Agreement for 2023 Downtown Bozeman Alley Enhancement Pilot Project Page 23 of 23 IN WITNESS WHEREOF, Contractor and City have caused this Agreement to be executed, effective on the date written above, and intend to be legally bound thereby. CITY OF BOZEMAN, MONTANA CONTRACTOR By: _______________________________ By: Jeff Mihelich, City Manager Print Name: Title: APPROVED AS TO FORM: By: _______________________________ Greg Sullivan, City Attorney DocuSign Envelope ID: 7F51E609-DAC2-4001-AD4D-3F3C9984697A Constructive Solutions Inc. Rob Evans President XXXXXXXXXXXXXXXXXXXXXXXXXXXX Acting City Manager, Chuck Winn DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 371568 -1- Ex. C: Artwork Scope of Services Agreement EXHIBIT C: ARTWORK SCOPE OF SERVICE AGREEMENT CLIENT CONTACT: CONTRACTOR CONTACT: City of Bozeman 121 N. Rouse Ave. Bozeman, Montana 59715 Constructive Solutions Inc. 111 South Grand Ave. Room 223 Bozeman MT, 59715 Primary Contact: Ellie Staley, 406-581-3827 Primary Contact: Rob Evans, 406-570-5048 Term: February 13, 2024 to September 30, 2024 Project Overview: Downtown Alley Enhancement Pilot Project. Visual enhancements via murals and sculpture installations in and around the alley between North Tracy Avenue and North Black Avenue within the City of Bozeman, as specified in the contract documents. Service Details: Two murals are planned for the south (rear) elevation of the existing parking garage in the locations shown on the attached exhibit. Each brick canvas will be a maximum of 430 square feet (approximately 33 feet in height x 13 feet in width – see appendix). The murals relate to the adventure and exploration theme. Artwork may be figurative or abstract and may be paint, vinyl wrap, or other durable materials designed for outside. An artist fee of $6,000- $12,000/mural will be provided. Three sculptures are planned for the south (rear) elevation of the existing parking garage in the general locations shown on the attached exhibit. Some flexibility is expected for exact size and placement. The sculptures relate to the adventure and exploration theme. Artwork may be figurative or abstract and may be constructed of a variety of materials if said materials are durable and designed to be located outside. An artist fee of $10,000-$15,000/sculpture will be provided. Additional Services: N/A DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 372569 -2- Ex. C: Artwork Scope of Services Agreement City of Bozeman Constructive Solutions Inc. Signature: __________________________ Signature: _________________________ Printed: __________________________ Printed: _________________________ Title: __________________________ Title: _________________________ Date: __________________________ Date: _________________________ DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 373570 Exhibit D: Clarke Transfer and Assignment of Copyright - Page 1 of 4 - EXHIBIT D TRANSFER AND ASSIGNMENT OF COPYRIGHT 1. Parties. This Transfer and Assignment of Copyright (“Assignment”) made this __________ (“Effective Date”) is by and between: Assignor. Kelsey Clarke, with a mailing address of 303 N. 9th Ave., Bozeman, MT 59715 (“Assignor”), and Assignee. Bozeman Downtown Urban Renewal District, an agency of the City of Bozeman, with a mailing address of 121 N. Rouse Ave., Bozeman, MT 59771 (“Assignee”). The Assignor and the Assignee are each referred to herein as a “Party” and collectively as the “Parties.” 2. Transfer and Assignment of Authored Projects. The Assignor, through this Assignment, transfers assigns to the Assignee of all the Assignor’s interest in: a. The following registered copyrighted Artwork (“Artwork”): i. Copyright #1 • Author Name: Kelsey Clarke • Title of Artwork 1: Birds Eye View ii. Copyright #2 • Author Name: Kelsey Clarke • Title of Artwork 2: On the Horizon iii. Copyright #3 • Author Name: Kelsey Clarke • Title of Artwork 3: Fish Eye Lens b. All the usual rights granted to the owner of a copyright under federal law, including but not limited to the right to reproduce, publish, adapt, modify, distribute, create derivative Projects on, display, publicize, and transmit each Project; c. The right to register, as well as applications for registrations of each Project, with the U.S. Copyright Office, including any and all renewals and extensions; d. The income, royalties, and damages due to the Assignor in regards to each Project, including damages for past or future infringements and misappropriations for each Project; e. The right to sue for past, present, and future infringements and misappropriations for each Project. 3. Assignment Purchase. Payment for the Assignment is included in the amount due and as set forth in the Construction Agreement and incorporated Construction Documents. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 374571 Exhibit D: Clarke Transfer and Assignment of Copyright - Page 2 of 4 - 4. Further Use of Project. This Assignment is exclusive. Unless otherwise specified in the Construction Agreement or its corresponding exhibits, once the effective date has passed, the Assignor may not make any further use of the Project or derivatives without written, authorized consent from the Assignee and further may not challenge the Assignee’s use or ownership of the Artwork or the validity of the Artwork. 5. Authorship. In relation to authorship rights, following the effective date of this Agreement, the Assignor maintains the right to be identified as the rightful author of the Artwork whenever the Artwork are reproduced, published, or otherwise publicly displayed. The authorship rights conferred in this section must be read in conjunction with the Waiver of Proprietary Rights. 6. Warranty. Assignor warrants and represents that: a. the Artwork is an original work of authorship; b. the Assignor is the legal owner of the Artwork; c. the Artwork does not infringe on any existing copyright; d. Assignor has not entered into any other assignments, transfers, licenses, contracts, or mutual understandings in conflict with the terms and obligations of this Construction Agreement; e. There are no claims currently pending or threatened, nor does Assignor have any reason to believe that any claims will be brought or threatened in the future against Assignor’s right, ownership, or interest in the Artwork. 7. Documentation. The Assignor will provide all documentation relating to the Artwork for the Assignee’s record-keeping needs, assertion of rights, or for any other use. They will likewise sign any additional agreements or complete any other lawful action reasonably necessary for a successful filing of the assignment with the United States government. 8. Integration and Modification. This document contains the entire Assignment between the Parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Agreement may be considered valid or binding. This Assignment may not be modified except by written agreement signed by both parties. 9. Dispute Resolution a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 375572 Exhibit D: Clarke Transfer and Assignment of Copyright - Page 3 of 4 - b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Assignment. 10. No Third-Party Beneficiary. The terms and provisions of this Assignment are intended solely for the benefit of each Party and their respective successors and assigns. It is not the Parties’ intent to confer third party beneficiary rights upon any other person or entity. 11. Choice of Law. This Assignment shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 12. Non-Waiver. A waiver by any Party of any default or breach by the other Party of any terms or conditions of this Assignment does not limit the other Party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 13. Severability. If any portion of this Assignment is held to be void or unenforceable, the balance of the Assignment shall continue in effect. 14. Counterparts. This Assignment may be executed in counterparts, which together constitute one instrument. 15. Assignment and Delegation. Assignor may not subcontract or assign rights to any other individual or corporation not listed in this Assignment. 16. Entire Agreement. This document constitutes the entire Assignment between the Parties. No modification or amendment of this Assignment shall be effective unless in writing and signed by both Parties. 17. Execution. The Assignor and the Assignee each represent and warrant to the other that each person executing this Assignment on behalf of each party is duly authorized to execute and deliver this Assignment on behalf of that party. 18. Consent to Electronic Signatures. The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. Assignor’s Signature: _________________________ Date: ________________ DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 376573 Exhibit D: Clarke Transfer and Assignment of Copyright - Page 4 of 4 - Print Name: _________________________ Kelsey Clarke Assignee’s Signature: _________________________ Date: ________________ Print Name: _________________________ Ellie Staley, Downtown Urban Renewal District DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 377574 Exhibit D: Dzintars Transfer and Assignment of Copyright - Page 1 of 3 - EXHIBIT D TRANSFER AND ASSIGNMENT OF COPYRIGHT 1. Parties. This Transfer and Assignment of Copyright (“Assignment”) made this __________ (“Effective Date”) is by and between: Assignor. Kelsey Dzintars, with a mailing address of 1504 Rainbow Road, Bozeman, MT 59715 (“Assignor”), and Assignee. Bozeman Downtown Urban Renewal District, an agency of the City of Bozeman, with a mailing address of 121 N. Rouse Ave., Bozeman, MT 59771 (“Assignee”). The Assignor and the Assignee are each referred to herein as a “Party” and collectively as the “Parties.” 2. Transfer and Assignment of Authored Projects. The Assignor, through this Assignment, transfers assigns to the Assignee of all the Assignor’s interest in: a. The following registered copyrighted Artwork (“Artwork”): i. Copyright #1 • Author Name: Kelsey Dzintars • Title of Artwork 1: “Adventure and Exploration” East Mural, Downtown Bozeman Alley Enhancement Project b. All the usual rights granted to the owner of a copyright under federal law, including but not limited to the right to reproduce, publish, adapt, modify, distribute, create derivative Projects on, display, publicize, and transmit each Project; c. The right to register, as well as applications for registrations of each Project, with the U.S. Copyright Office, including any and all renewals and extensions; d. The income, royalties, and damages due to the Assignor in regards to each Project, including damages for past or future infringements and misappropriations for each Project; e. The right to sue for past, present, and future infringements and misappropriations for each Project. 3. Assignment Purchase. Payment for the Assignment is included in the amount due and as set forth in the Construction Agreement and incorporated Construction Documents. 4. Further Use of Project. This Assignment is exclusive. Unless otherwise specified in the Construction Agreement or its corresponding exhibits, once the effective date has passed, the Assignor may not make any further use of the Project or derivatives without written, authorized consent from the Assignee and further may not challenge the Assignee’s use or ownership of the Artwork or the validity of the Artwork. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 378575 Exhibit D: Dzintars Transfer and Assignment of Copyright - Page 2 of 3 - 5. Authorship. In relation to authorship rights, following the effective date of this Agreement, the Assignor maintains the right to be identified as the rightful author of the Artwork whenever the Artwork are reproduced, published, or otherwise publicly displayed. The authorship rights conferred in this section must be read in conjunction with the Waiver of Proprietary Rights. 6. Warranty. Assignor warrants and represents that: a. the Artwork is an original work of authorship; b. the Assignor is the legal owner of the Artwork; c. the Artwork does not infringe on any existing copyright; d. Assignor has not entered into any other assignments, transfers, licenses, contracts, or mutual understandings in conflict with the terms and obligations of this Construction Agreement; e. There are no claims currently pending or threatened, nor does Assignor have any reason to believe that any claims will be brought or threatened in the future against Assignor’s right, ownership, or interest in the Artwork. 7. Documentation. The Assignor will provide all documentation relating to the Artwork for the Assignee’s record-keeping needs, assertion of rights, or for any other use. They will likewise sign any additional agreements or complete any other lawful action reasonably necessary for a successful filing of the assignment with the United States government. 8. Integration and Modification. This document contains the entire Assignment between the Parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Agreement may be considered valid or binding. This Assignment may not be modified except by written agreement signed by both parties. 9. Dispute Resolution a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Assignment. 10. No Third-Party Beneficiary. The terms and provisions of this Assignment are intended solely for the benefit of each Party and their respective successors and DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 379576 Exhibit D: Dzintars Transfer and Assignment of Copyright - Page 3 of 3 - assigns. It is not the Parties’ intent to confer third party beneficiary rights upon any other person or entity. 11. Choice of Law. This Assignment shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 12. Non-Waiver. A waiver by any Party of any default or breach by the other Party of any terms or conditions of this Assignment does not limit the other Party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 13. Severability. If any portion of this Assignment is held to be void or unenforceable, the balance of the Assignment shall continue in effect. 14. Counterparts. This Assignment may be executed in counterparts, which together constitute one instrument. 15. Assignment and Delegation. Assignor may not subcontract or assign rights to any other individual or corporation not listed in this Assignment. 16. Entire Agreement. This document constitutes the entire Assignment between the Parties. No modification or amendment of this Assignment shall be effective unless in writing and signed by both Parties. 17. Execution. The Assignor and the Assignee each represent and warrant to the other that each person executing this Assignment on behalf of each party is duly authorized to execute and deliver this Assignment on behalf of that party. 18. Consent to Electronic Signatures. The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. Assignor’s Signature: _________________________ Date: ________________ Print Name: _________________________ Kelsey Dzintars Assignee’s Signature: _________________________ Date: ________________ Print Name: _________________________ Ellie Staley, Downtown Urban Renewal District DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 380577 Nall Waiver of Proprietary Rights - Page 1 of 3 - EXHIBIT E WAIVER OF PROPRIETARY RIGHTS 1. Parties. This Waiver of Proprietary Rights (“Waiver”) made this __________ (“Effective Date”) is by and between: Assignor. Stella Nall (“Assignor”), with a mailing address of 1752 S. 14th Street W, Missoula, MT 59801; and Assignee. Bozeman Downtown Urban Renewal District, an agency of City of Bozeman, with a mailing address of 121 N. Rouse Ave., Bozeman, MT 59771 (“Assignee”). The Assignor and the Assignee are each referred to herein as a “Party” and collectively as the “Parties.” 2. Description of Assignor’s Authored Projects. The Assignor, through this Assignment, transfers assigns to the Assignee of all the Assignor’s interest in the following Artwork: a. Artwork 1: • Author Name: Stella Nall • Title of Project: Baáchuuashe • Located at: West Mural 1, refer to final plans 3. Waiver. Assignor voluntarily waives all rights to attribution and integrity with respect to the Artwork, as described in the Construction Agreement and corresponding exhibits, and any and all claims as may arise under the Visual Artists Rights Act of 1990, 17 U.S.C. §§106A and 113(d) (”VARA”), or any other local, state, foreign or international law that conveys the same or similar rights (“moral rights laws” as defined by VARA), with respect to the Artwork, its display, removal from display, exhibition, installation, conservation, storage, study, alteration and any other activities conducted by the Assignee, its officers, employees, agents, contractors, licensees, successors or assigns. If the Artwork is incorporated into a building such that the Artwork cannot be removed from the building or structure, and alternation, distortion, destruction, or other modification (collectively, “modification”) of the Artwork occurs, Assignor-Author waives any and all such claims under any moral rights laws arising out of or against any current or future owners of the Assignee, and its agents, officers and employees, for modification of the Artwork. 4. Assignor’s Right to Accreditation and Promotion. Assignor retains the right to reproduce, publish, or display the Artwork in Assignor’s portfolios, websites, galleries, design periodicals, or any other media or exhibit for the purpose of recognition of creative excellence or professional advancement, and to be credited with Assignor’s Authorship of the Artwork. 5. Right to Modify. The Assignee has the absolute right and retrains the sole discretion to distort, mutilate, or other modification including, but not limited to, DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 381578 Nall Waiver of Proprietary Rights - Page 2 of 3 - change, destroy, remove, relocate, move, replace, transport, repair or restore the Artwork, in whole or in part. The Assignee is not required to provide the Assignor with any notice of modification. 6. Third Party Claims. The Assignee has no obligation to pursue claims against third parties for modifications or damage to the Artwork done without the Assignee’s authorization. However, the Assignee may pursue claims against third parties for modifications or damage or to restore the Artwork if the Artwork was modified without the Assignee’s authorization. In the event that the Assignee pursues such a claim, it shall notify the Assignor, who must cooperate with the Assignee’s efforts to pursue such claims. 7. Authorship. If the Assignee modifies the Artwork without the Assignor’s consent in a manner that is prejudicial to Assignor’s reputation, Assignor retains the right to disclaim Authorship of the Artwork in accordance with 17 U.S.C. § 106A(a)(2) and as set forth in section 3 of this Waiver. 8. Notice. As required under the U.S. Copyright Act, the Assignee must provide notice if it wishes to remove the Project from a part of the building and the removal can occur without destruction or modification of the Project. Assignee is required to keep the Assignor informed of its updated mailing address. 9. Integration and Modification. This document contains the entire agreement between the parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Waiver may be considered valid or binding. This Waiver may not be modified except by written agreement signed by both parties. 10. Dispute Resolution a. Any claim, controversy, or dispute between the Parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in Gallatin County, Montana. 11. No Third-Party Beneficiary. The terms and provisions of this Wavier are intended solely for the benefit of each Party and their respective successors and assigns. It is not the Parties’ intent to confer third party beneficiary rights upon any other person or entity. 12. Choice of Law. This Waiver shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 382579 Nall Waiver of Proprietary Rights - Page 3 of 3 - Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 13. Non-Waiver. A waiver by either Party of any default or breach by the other Party of any terms or conditions of this Waiver does not limit the other Party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 14. Severability. If any portion of this Waiver is held to be void or unenforceable, the balance of the Assignment shall continue in effect. 15. Counterparts. This Waiver may be executed in counterparts, which together constitute one instrument. 16. Assignment and Delegation. Assignor may not subcontract or assign rights to any other individual or corporation not listed in this Waiver. 17. Entire Agreement. This document constitutes the entire Waiver between the Parties. No modification or amendment of this Waiver shall be effective unless in writing and signed by both Parties. 18. Execution. The Assignor and the Assignee each represent and warrant to the other that each person executing this Waiver on behalf of each party is duly authorized to execute and deliver this Waiver on behalf of that party. 19. Consent to Electronic Signatures. The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. Assignor’s Signature: _________________________ Date: ________________ Print Name: _________________________ Stella Nall Assignee’s Signature: _________________________ Date: ________________ Print Name: _________________________ Ellie Staley, Downtown Urban Renewal District DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 383580 Clarke Waiver of Proprietary Rights - Page 1 of 4 - EXHIBIT E WAIVER OF PROPRIETARY RIGHTS 1. Parties. This Waiver of Proprietary Rights (“Waiver”) made this __________ (“Effective Date”) is by and between: Assignor. Kelsey Clarke (“Assignor”), with a mailing address of 303 N. 9th Ave., Bozeman, MT 59715; and Assignee. Bozeman Downtown Urban Renewal District, an agency of City of Bozeman, with a mailing address of 121 N. Rouse Ave., Bozeman, MT 59771 (“Assignee”). The Assignor and the Assignee are each referred to herein as a “Party” and collectively as the “Parties.” 2. Description of Assignor’s Authored Projects. The Assignor, through this Assignment, transfers assigns to the Assignee of all the Assignor’s interest in the following Artwork: a. Artwork 1: • Author Name: Kelsey Clarke • Title of Project: Birds Eye View • Located at: Parking Garage b. Artwork 2: • Author Name: Kelsey Clarke • Title of Project: On the Horizon • Located at: Parking Garage c. Artwork 3: • Author Name: Kelsey Clarke • Title of Project: Fish Eye Lens • Located at: Parking Garage 3. Waiver. Assignor voluntarily waives all rights to attribution and integrity with respect to the Artwork, as described in the Construction Agreement and corresponding exhibits, and any and all claims as may arise under the Visual Artists Rights Act of 1990, 17 U.S.C. §§106A and 113(d) (”VARA”), or any other local, state, foreign or international law that conveys the same or similar rights (“moral rights laws” as defined by VARA), with respect to the Artwork, its display, removal from display, exhibition, installation, conservation, storage, study, alteration and any other activities conducted by the Assignee, its officers, employees, agents, contractors, licensees, successors or assigns. If the Artwork is incorporated into a building such that the Artwork cannot be removed from the building or structure, and alternation, distortion, destruction, or other modification (collectively, “modification”) of the Artwork occurs, Assignor-Author waives any DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 384581 Clarke Waiver of Proprietary Rights - Page 2 of 4 - and all such claims under any moral rights laws arising out of or against any current or future owners of the Assignee, and its agents, officers and employees, for modification of the Artwork. 4. Assignor’s Right to Accreditation and Promotion. Assignor retains the right to reproduce, publish, or display the Artwork in Assignor’s portfolios, websites, galleries, design periodicals, or any other media or exhibit for the purpose of recognition of creative excellence or professional advancement, and to be credited with Assignor’s Authorship of the Artwork. 5. Right to Modify. The Assignee has the absolute right and retrains the sole discretion to distort, mutilate, or other modification including, but not limited to, change, destroy, remove, relocate, move, replace, transport, repair or restore the Artwork, in whole or in part. The Assignee is not required to provide the Assignor with any notice of modification. 6. Third Party Claims. The Assignee has no obligation to pursue claims against third parties for modifications or damage to the Artwork done without the Assignee’s authorization. However, the Assignee may pursue claims against third parties for modifications or damage or to restore the Artwork if the Artwork was modified without the Assignee’s authorization. In the event that the Assignee pursues such a claim, it shall notify the Assignor, who must cooperate with the Assignee’s efforts to pursue such claims. 7. Authorship. If the Assignee modifies the Artwork without the Assignor’s consent in a manner that is prejudicial to Assignor’s reputation, Assignor retains the right to disclaim Authorship of the Artwork in accordance with 17 U.S.C. § 106A(a)(2) and as set forth in section 3 of this Waiver. 8. Notice. As required under the U.S. Copyright Act, the Assignee must provide notice if it wishes to remove the Project from a part of the building and the removal can occur without destruction or modification of the Project. Assignee is required to keep the Assignor informed of its updated mailing address. 9. Integration and Modification. This document contains the entire agreement between the parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Waiver may be considered valid or binding. This Waiver may not be modified except by written agreement signed by both parties. 10. Dispute Resolution a. Any claim, controversy, or dispute between the Parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 385582 Clarke Waiver of Proprietary Rights - Page 3 of 4 - may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in Gallatin County, Montana. 11. No Third-Party Beneficiary. The terms and provisions of this Wavier are intended solely for the benefit of each Party and their respective successors and assigns. It is not the Parties’ intent to confer third party beneficiary rights upon any other person or entity. 12. Choice of Law. This Waiver shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 13. Non-Waiver. A waiver by either Party of any default or breach by the other Party of any terms or conditions of this Waiver does not limit the other Party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 14. Severability. If any portion of this Waiver is held to be void or unenforceable, the balance of the Assignment shall continue in effect. 15. Counterparts. This Waiver may be executed in counterparts, which together constitute one instrument. 16. Assignment and Delegation. Assignor may not subcontract or assign rights to any other individual or corporation not listed in this Waiver. 17. Entire Agreement. This document constitutes the entire Waiver between the Parties. No modification or amendment of this Waiver shall be effective unless in writing and signed by both Parties. 18. Execution. The Assignor and the Assignee each represent and warrant to the other that each person executing this Waiver on behalf of each party is duly authorized to execute and deliver this Waiver on behalf of that party. 19. Consent to Electronic Signatures. The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 386583 Clarke Waiver of Proprietary Rights - Page 4 of 4 - Assignor’s Signature: _________________________ Date: ________________ Print Name: _________________________ Kelsey Clarke Assignee’s Signature: _________________________ Date: ________________ Print Name: _________________________ Ellie Staley, Downtown Urban Renewal District DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 387584 -1- Exhibit B: Scope of Services Agreement EXHIBIT B: SCOPE OF SERVICE AGREEMENT CLIENT CONTACT: CONTRACTOR CONTACT: Downtown Bozeman Partnership 222 East Main Street, Suite 302 Bozeman, Montana 59715 Constructive Solutions Inc. 111 S. Grand Ave. Suite 223 Bozeman, MT 59715 Primary Contact: Ellie Staley, ellie@downtownbozeman.org Primary Contact: Rob Evans, team@constructivesolutionsmt.com Term: August 22, 2023 to September 30, 2024. Project Overview: Downtown Alley Enhancement Pilot Project. Enhancement Asphalt coating, visual enhancements via murals and sculpture installations, lighting improvements, landscape and hardscape improvements, site furnishings, signage, and miscellaneous other items in and around the alley between North Tracy Avenue and North Black Avenue within the City of Bozeman, as specified in the contract documents. Service Details: Notes: 1. Costs for mobilization, insurance, bonding, taxes, traffic control, etc. are incidental. Costs for these items are to be included in the other bid item costs. No separate bid items are provided 2. There is a bid item for miscellaneous work provided below. We have assigned a cost of $15,000 to help cover any extra work that may be needed/required on the project. Extra work items must be pre-approved by the City Engineer. ITE M DESCRIPTION ESTIMATED QUANTITY UNIT UNIT PRICE TOTAL PRICE 1 Asphalt Protective Coating StreetBond Durashield 3,653 SF 2 Rock Bark 300 SF 3 Asphalt Protective Coating - River StreetBond MMA 4,040 SF 4 Curved Bench with Back 2 EA 5 Bench 1 EA DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 388585 -2- Exhibit B: Scope of Services Agreement 6 Concrete Path 44 SF 7 Sculpture & Brackets 3 EA 8 String Light & Frame 249 LF 9 LED Wall Wash Light 4 EA 10 LED Wall Mount Light 7 EA 11 Bike Rack 3 EA 12 Entry Wayfinding Sign & Brackets 2 EA 13 Painted Mural & Anti-Graffiti Coating 800 SF 14 Vinyl Art Wrap 2,795 SF 15 Historic Plaque 5 EA 16 Tree Pruning 2 EA 17 Landscape Planting & Related Irrigation System Repairs/Retrofits Per Plans 18 Clean/Power Wash Trash Receptacle Alcove 2 EA 19 Holiday Lights Per Plans 20 Miscellaneous 1 Unit $15,000 Additional Services: or Name City of Bozeman Contract Signature: Signature : Printed: Printed: Title: Title: Date: Date: DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 389586 NOTICE OF AWARD Dated: August 9, 2023 TO: Constructive Solutions Inc. ADDRESS: 111 South Grand Ave. Suite 223, Bozeman, MT 59715 CONTRACT FOR: The Downtown Alley Enhancement Pilot Project You are notified that your Bid opened on July 17th, 2023 for the above Contract has been considered. You are the apparent Successful Bidder and have been awarded a Contract for the: The Contract Price of your Contract is: $298,513.28 Two (2) copies of each of the proposed Contract Documents have been signed and One copy accompanies this Notice of Award for your records. CITY OF BOZEMAN, MONTANA BY: __________________________________ (CITY MANAGER) BY: ___________________________________ (CITY CLERK) DATE: _______________________________ DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 390587 Exhibit D: Nall Transfer and Assignment of Copyright - Page 1 of 3 - EXHIBIT D TRANSFER AND ASSIGNMENT OF COPYRIGHT 1. Parties. This Transfer and Assignment of Copyright (“Assignment”) made this __________ (“Effective Date”) is by and between: Assignor. Stella Nall, with a mailing address of 1752 S. 14th Street W., Missoula, MT 59801 (“Assignor”), and Assignee. Bozeman Downtown Urban Renewal District, an agency of the City of Bozeman, with a mailing address of 121 N. Rouse Ave., Bozeman, MT 59771 (“Assignee”). The Assignor and the Assignee are each referred to herein as a “Party” and collectively as the “Parties.” 2. Transfer and Assignment of Authored Projects. The Assignor, through this Assignment, transfers assigns to the Assignee of all the Assignor’s interest in: a. The following registered copyrighted Artwork (“Artwork”): i. Copyright #1 • Author Name: Stella Nall • Title of Artwork 1: Baáchuuashe b. All the usual rights granted to the owner of a copyright under federal law, including but not limited to the right to reproduce, publish, adapt, modify, distribute, create derivative Projects on, display, publicize, and transmit each Project; c. The right to register, as well as applications for registrations of each Project, with the U.S. Copyright Office, including any and all renewals and extensions; d. The income, royalties, and damages due to the Assignor in regards to each Project, including damages for past or future infringements and misappropriations for each Project; e. The right to sue for past, present, and future infringements and misappropriations for each Project. 3. Assignment Purchase. Payment for the Assignment is included in the amount due and as set forth in the Construction Agreement and incorporated Construction Documents. 4. Further Use of Project. This Assignment is exclusive. Unless otherwise specified in the Construction Agreement or its corresponding exhibits, once the effective date has passed, the Assignor may not make any further use of the Project or derivatives without written, authorized consent from the Assignee and further may not challenge the Assignee’s use or ownership of the Artwork or the validity of the Artwork. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 391588 Exhibit D: Nall Transfer and Assignment of Copyright - Page 2 of 3 - 5. Authorship. In relation to authorship rights, following the effective date of this Agreement, the Assignor maintains the right to be identified as the rightful author of the Artwork whenever the Artwork are reproduced, published, or otherwise publicly displayed. The authorship rights conferred in this section must be read in conjunction with the Waiver of Proprietary Rights. 6. Warranty. Assignor warrants and represents that: a. the Artwork is an original work of authorship; b. the Assignor is the legal owner of the Artwork; c. the Artwork does not infringe on any existing copyright; d. Assignor has not entered into any other assignments, transfers, licenses, contracts, or mutual understandings in conflict with the terms and obligations of this Construction Agreement; e. There are no claims currently pending or threatened, nor does Assignor have any reason to believe that any claims will be brought or threatened in the future against Assignor’s right, ownership, or interest in the Artwork. 7. Documentation. The Assignor will provide all documentation relating to the Artwork for the Assignee’s record-keeping needs, assertion of rights, or for any other use. They will likewise sign any additional agreements or complete any other lawful action reasonably necessary for a successful filing of the assignment with the United States government. 8. Integration and Modification. This document contains the entire Assignment between the Parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Agreement may be considered valid or binding. This Assignment may not be modified except by written agreement signed by both parties. 9. Dispute Resolution a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Assignment. 10. No Third-Party Beneficiary. The terms and provisions of this Assignment are intended solely for the benefit of each Party and their respective successors and DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 392589 Exhibit D: Nall Transfer and Assignment of Copyright - Page 3 of 3 - assigns. It is not the Parties’ intent to confer third party beneficiary rights upon any other person or entity. 11. Choice of Law. This Assignment shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 12. Non-Waiver. A waiver by any Party of any default or breach by the other Party of any terms or conditions of this Assignment does not limit the other Party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 13. Severability. If any portion of this Assignment is held to be void or unenforceable, the balance of the Assignment shall continue in effect. 14. Counterparts. This Assignment may be executed in counterparts, which together constitute one instrument. 15. Assignment and Delegation. Assignor may not subcontract or assign rights to any other individual or corporation not listed in this Assignment. 16. Entire Agreement. This document constitutes the entire Assignment between the Parties. No modification or amendment of this Assignment shall be effective unless in writing and signed by both Parties. 17. Execution. The Assignor and the Assignee each represent and warrant to the other that each person executing this Assignment on behalf of each party is duly authorized to execute and deliver this Assignment on behalf of that party. 18. Consent to Electronic Signatures. The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. Assignor’s Signature: _________________________ Date: ________________ Print Name: _________________________ Stella Nall Assignee’s Signature: _________________________ Date: ________________ Print Name: _________________________ Ellie Staley, Downtown Urban Renewal District DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 393590 Dzintars Waiver of Proprietary Rights - Page 1 of 4 - EXHIBIT E WAIVER OF PROPRIETARY RIGHTS 1. Parties. This Waiver of Proprietary Rights (“Waiver”) made this __________ (“Effective Date”) is by and between: Assignor. Kelsey Dzintars (“Assignor”), with a mailing address of 1504 Rainbow Road, Bozeman, MT 59715; and Assignee. Bozeman Downtown Urban Renewal District, an agency of City of Bozeman, with a mailing address of 121 N. Rouse Ave., Bozeman, MT 59771 (“Assignee”). The Assignor and the Assignee are each referred to herein as a “Party” and collectively as the “Parties.” 2. Description of Assignor’s Authored Projects. The Assignor, through this Assignment, transfers assigns to the Assignee of all the Assignor’s interest in the following Artwork: a. Artwork 1: • Author Name: Kelsey Dzintars • Title of Project: Downtown Bozeman Alley Enhancement Project • Located at: Downtown Bozeman Parking Garage, East Panel (Black St.) 3. Waiver. Assignor voluntarily waives all rights to attribution and integrity with respect to the Artwork, as described in the Construction Agreement and corresponding exhibits, and any and all claims as may arise under the Visual Artists Rights Act of 1990, 17 U.S.C. §§106A and 113(d) (”VARA”), or any other local, state, foreign or international law that conveys the same or similar rights (“moral rights laws” as defined by VARA), with respect to the Artwork, its display, removal from display, exhibition, installation, conservation, storage, study, alteration and any other activities conducted by the Assignee, its officers, employees, agents, contractors, licensees, successors or assigns. If the Artwork is incorporated into a building such that the Artwork cannot be removed from the building or structure, and alternation, distortion, destruction, or other modification (collectively, “modification”) of the Artwork occurs, Assignor-Author waives any and all such claims under any moral rights laws arising out of or against any current or future owners of the Assignee, and its agents, officers and employees, for modification of the Artwork. 4. Assignor’s Right to Accreditation and Promotion. Assignor retains the right to reproduce, publish, or display the Artwork in Assignor’s portfolios, websites, galleries, design periodicals, or any other media or exhibit for the purpose of recognition of creative excellence or professional advancement, and to be credited with Assignor’s Authorship of the Artwork. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 394591 Dzintars Waiver of Proprietary Rights - Page 2 of 4 - 5. Right to Modify. The Assignee has the absolute right and retrains the sole discretion to distort, mutilate, or other modification including, but not limited to, change, destroy, remove, relocate, move, replace, transport, repair or restore the Artwork, in whole or in part. The Assignee is not required to provide the Assignor with any notice of modification. 6. Third Party Claims. The Assignee has no obligation to pursue claims against third parties for modifications or damage to the Artwork done without the Assignee’s authorization. However, the Assignee may pursue claims against third parties for modifications or damage or to restore the Artwork if the Artwork was modified without the Assignee’s authorization. In the event that the Assignee pursues such a claim, it shall notify the Assignor, who must cooperate with the Assignee’s efforts to pursue such claims. 7. Authorship. If the Assignee modifies the Artwork without the Assignor’s consent in a manner that is prejudicial to Assignor’s reputation, Assignor retains the right to disclaim Authorship of the Artwork in accordance with 17 U.S.C. § 106A(a)(2) and as set forth in section 3 of this Waiver. 8. Notice. As required under the U.S. Copyright Act, the Assignee must provide notice if it wishes to remove the Project from a part of the building and the removal can occur without destruction or modification of the Project. Assignee is required to keep the Assignor informed of its updated mailing address. 9. Integration and Modification. This document contains the entire agreement between the parties and no statements, promises or inducements made by either party or agents of either party not contained in this written Waiver may be considered valid or binding. This Waiver may not be modified except by written agreement signed by both parties. 10. Dispute Resolution a. Any claim, controversy, or dispute between the Parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in Gallatin County, Montana. 11. No Third-Party Beneficiary. The terms and provisions of this Wavier are intended solely for the benefit of each Party and their respective successors and assigns. It is not the Parties’ intent to confer third party beneficiary rights upon any other person or entity. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 395592 Dzintars Waiver of Proprietary Rights - Page 3 of 4 - 12. Choice of Law. This Waiver shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. 13. Non-Waiver. A waiver by either Party of any default or breach by the other Party of any terms or conditions of this Waiver does not limit the other Party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 14. Severability. If any portion of this Waiver is held to be void or unenforceable, the balance of the Assignment shall continue in effect. 15. Counterparts. This Waiver may be executed in counterparts, which together constitute one instrument. 16. Assignment and Delegation. Assignor may not subcontract or assign rights to any other individual or corporation not listed in this Waiver. 17. Entire Agreement. This document constitutes the entire Waiver between the Parties. No modification or amendment of this Waiver shall be effective unless in writing and signed by both Parties. 18. Execution. The Assignor and the Assignee each represent and warrant to the other that each person executing this Waiver on behalf of each party is duly authorized to execute and deliver this Waiver on behalf of that party. 19. Consent to Electronic Signatures. The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. Assignor’s Signature: _________________________ Date: ________________ Print Name: _________________________ Kelsey Dzintars Assignee’s Signature: _________________________ Date: ________________ Print Name: _________________________ Ellie Staley, Downtown Urban Renewal District DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 396593 Dzintars Waiver of Proprietary Rights - Page 4 of 4 - DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 397594 DOWNTOWN BOZEMAN ALLEY ENHANCEMENT PILOT PROJECT Final Artwork Plans and Drawings Date: 1/23/2024 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 398595 Final Artwork Plans and Drawings | Date: 1/23/2024 5'5'5'5'5'30'-8"1050 20 N 1 L201 1" = 10'-0" Parking Garage Elevation ENTRY WAYFINDING SIGNAGE NOTVISIBLE IN ELEVATION VIEW. SEE L500, DETAIL 1 FOR CONCEPTUAL SIGN CHARACTER AND PLACEMENT EXISTING TRASH RECEPTACLE ALCOVE EXISTING TREE TO REMAIN. TREE TO BE WRAPPED WITH HOLIDAYLIGHTS. SEE LIGHTING SCHEDULE, SHEET L001. EXISTING TRASH RECEPTACLE ALCOVE HISTORIC PLAQUELOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT APPROXIMATESCULPTURE LOCATION (EXACT LOCATION TO BE COORDINATED W/CITYOF BOZEMAN. VINYL ART WRAP HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUELOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUETO BE MOUNTED AT 5' HEIGHT ALL GREY PANELS TO BE VINYL ART WRAP ALL GREY PANELS TO BE VINYL ART WRAP ALL GREY PANELS TO BE VINYL ART WRAP EXISTING WALL LIGHTEXISTING WALL LIGHT EXISTING WALL LIGHT EXISTING WALL LIGHT EXISTING WALL LIGHT LED WALL WASH LIGHTS. SEE L400 LED WALL MOUNT LIGHT. SEE L400 APPROXIMATE SCULPTURELOCATION. (EXACT LOCATION TO BE COORDINATED W/ CITY OF BOZEMAN LED WALL MOUNT LIGHT. SEE L400 LED WALL MOUNT LIGHT, SEE L400 LED WALL WASH LIGHTS. SEE L400 APPROXIMATE SCULPTURE LOCATION. (EXACT LOCATION TO BE COORDINATED W/ CITY OF BOZEMAN West Mural (1) Artist: Stella Nall West Mural (1) Colors: this fur pattern will be present on the whole being,I just don’t like to render all of it for sketches because it is quite time consuming :-) It is characteristic of mypainting, and was inspired by the back stitching of beadwork. Title: Baáchuuaashe(baáchuu 'berry' + áashi 'river', the Crow name for Bozeman Statement: As an artist I am driven by three primary forces: to process my experiences, to connect with others, and to advocate for change. Through this mural I hope to direct thought towards our relationship with the earth, and to celebrate the plants and animals that we share it with. My work often features imaginary creatures which tell a story. This happy creature’s belly is full of berries which are all edible and native to this area. I included this imagery to give thanks for the abundance of nature which we are so fortunate to live in and around, and the joy and nourishment which it provides us. By naming this Bozeman-being the Apsáalooke (Crow) name for this land, Baáchuuaashe, I hope to honor my ancestors who traveled here before us, to share our language, and to cele-brate the active presence of Indigenous members of the Bozeman community today. Growing up in Bozeman, I didn’t see very much Native American artwork, and it was discouraging to my goals of becoming a professional artist. I am excited to help provide more public Indigenous art for our community, and hope to help encourage future generations to continue working to make Bozeman an inclusive place for everyone. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 399596 5'5'5'5'5'30'-8"1050 20 N 1 L201 1" = 10'-0" Parking Garage Elevation ENTRY WAYFINDING SIGNAGE NOTVISIBLE IN ELEVATION VIEW. SEE L500, DETAIL 1 FOR CONCEPTUAL SIGN CHARACTER AND PLACEMENT EXISTING TRASH RECEPTACLE ALCOVE EXISTING TREE TO REMAIN. TREE TO BE WRAPPED WITH HOLIDAYLIGHTS. SEE LIGHTING SCHEDULE, SHEET L001. EXISTING TRASH RECEPTACLE ALCOVE HISTORIC PLAQUELOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT APPROXIMATESCULPTURE LOCATION (EXACT LOCATION TO BE COORDINATED W/CITYOF BOZEMAN. VINYL ART WRAP HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUELOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUETO BE MOUNTED AT 5' HEIGHT ALL GREY PANELS TO BE VINYL ART WRAP ALL GREY PANELS TO BE VINYL ART WRAP ALL GREY PANELS TO BE VINYL ART WRAP EXISTING WALL LIGHTEXISTING WALL LIGHT EXISTING WALL LIGHT EXISTING WALL LIGHT EXISTING WALL LIGHT LED WALL WASH LIGHTS. SEE L400 LED WALL MOUNT LIGHT. SEE L400 APPROXIMATE SCULPTURELOCATION. (EXACT LOCATION TO BE COORDINATED W/ CITY OF BOZEMAN LED WALL MOUNT LIGHT. SEE L400 LED WALL MOUNT LIGHT, SEE L400 LED WALL WASH LIGHTS. SEE L400 APPROXIMATE SCULPTURE LOCATION. (EXACT LOCATION TO BE COORDINATED W/ CITY OF BOZEMAN East Mural (2) Artist: Kelsey Dzintars East Mural (2) Final Artwork Plans and Drawings | Date: 1/23/2024 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 400597 Bird sculpture to be shifted up to meet 30' clearance requirement for dumpster pads. Final Artwork Plans and Drawings | Date: 1/23/2024 5'5'5'5'5'30'-8"1050 20 N 1 L201 1" = 10'-0" Parking Garage Elevation ENTRY WAYFINDING SIGNAGE NOTVISIBLE IN ELEVATION VIEW. SEE L500, DETAIL 1 FOR CONCEPTUAL SIGN CHARACTER AND PLACEMENT EXISTING TRASH RECEPTACLE ALCOVE EXISTING TREE TO REMAIN. TREE TO BE WRAPPED WITH HOLIDAYLIGHTS. SEE LIGHTING SCHEDULE, SHEET L001. EXISTING TRASH RECEPTACLE ALCOVE HISTORIC PLAQUELOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT APPROXIMATESCULPTURE LOCATION (EXACT LOCATION TO BE COORDINATED W/CITYOF BOZEMAN. VINYL ART WRAP HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUELOCATION, MIDDLE OF PLAQUE TO BE MOUNTED AT 5' HEIGHT HISTORIC PLAQUE LOCATION, MIDDLE OF PLAQUETO BE MOUNTED AT 5' HEIGHT ALL GREY PANELS TO BE VINYL ART WRAP ALL GREY PANELS TO BE VINYL ART WRAP ALL GREY PANELS TO BE VINYL ART WRAP EXISTING WALL LIGHTEXISTING WALL LIGHT EXISTING WALL LIGHT EXISTING WALL LIGHT EXISTING WALL LIGHT LED WALL WASH LIGHTS. SEE L400 LED WALL MOUNT LIGHT. SEE L400 APPROXIMATE SCULPTURELOCATION. (EXACT LOCATION TO BE COORDINATED W/ CITY OF BOZEMAN LED WALL MOUNT LIGHT. SEE L400 LED WALL MOUNT LIGHT, SEE L400 LED WALL WASH LIGHTS. SEE L400 APPROXIMATE SCULPTURE LOCATION. (EXACT LOCATION TO BE COORDINATED W/ CITY OF BOZEMAN Sculptures (3 sculptures) Artist: Kelsey Clark Extracted Topography Elements on the full Elevation of the Parking Garage “Fish Eye lens” animates the hyalite Reservoir and surrounding water elements “On the horizon” Animates the Downtown Bozeman street-scape “Birds Eye View” Animates the Bridger mountain range NOTES 1) Sculptures and mounting details will be closely coordinated with the City of Bozeman to ensure required clearances are maintained. 30 feet of vertical clearance to be maintained over dumpster tip pads. 2) Prior to installation, the DBP will provide the City a structural engineer report with mounting details, elevations, and height for review and approval. See the following pages for the preliminary design. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 401598 Alley Ways are highly underused public corridors that have the potential for unexpected interaction and adventures. The objective of this art-scape is to turn this underutilized space into an interactive journey through the Bozeman Landscape. The Sculptures revitalize THE alley, Leading the public to possible adventures in the area, and inspiring further exploration. Against the backdrop of the tall buildings, limited light and muted tones, the contrasting bright colors of the sculptures enliven the alley and catches the public’s attention. The three sculptures protrude from the wall making them more visible and encouraging the public to explore the corridor. From far away only the shapes of the animals are recognizable, Acting as a prelude to the elements they represent. Each sculpture was designed in a way to look as if it was leaping out of each animal’s corresponding landscape feature. As the public approaches the sculptures, their place in the Bozeman topography becomes recognized and a spark for exploration is ignited. GallatinThe CORRIDOR DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 402599 Each sculpture corresponds to a backdrop displaying a significant and recognizable feature of the Gallatin Valley. If a map was placed over the Elevation of parking garage the backdrops correlate to the exact geographic location in relation to each other. Upon approaching these the sculptures the Backdrops become more recognizable and the connection to the Landscape becomes more realized. This Idea can be strengthened by providing access to a visual graphic of the full map at both ends of the alleyway. This Provides a plan of action to explore the areas experienced in the art-scape. These Backdrops were designed to enhance the Art, but also to incorporate a Barrier to limit access to the sculptures. The openings in the facade of the parking garage Allow access to climb or vandalize the sculptures. The backdrop blends a functional safety element into a Key feature of the art piece. This addition brings depth to the artistic concept and adds another layer of complexity To the experience through the Alley. Functional art! Bozeman’s unique culture would not be the same without its breathtaking mountains, rivers and valleys. This art sculpture strives to empower the public with a better understanding of possibilities of adventure and exploration in this area. This project aims to revitalize the downtown area by creating a visually appealing art-scape that is informative and intrigues the public to activate this unused space. Once immersed in the alley, the public is able to interact with bozeman in a unique and playful way that connects them to this beautiful landscape. -Metallic Weaver DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 403600 Map Placement on the Full Elevation of the Parking Garage Extracted Topography Elements on the full Elevation of the Parking Garage “Fish Eye lens” animates the hyalite Reservoir and surrounding water elements “On the horizon” Animates the Downtown Bozeman street-scape “Birds Eye View” Animates the Bridger mountain range All of the extracted backdrop’s locations correlate directly to a map of the Gallatin Valley giving a scale and reference to the highlighted topography elements. Once the map is removed a perceptual phenomenon occurs called “Filling-in at the blind spot”, where the visual system fills the informational void with surrounding visual attributes. Once the relationship of the landscape to the art sculptures is realized, the public actively uses their imagination to fill in the adventure they desire. Bird sculpture to be shifted up to meet 30' clearance requirement for dumpster pads. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 404601 14’6’17’ 4”North Alley Elevation Scale reference South Alley Elevation close up Semi truck with maximum height allowed in Montana These Views display the relative size and location of the sculptures to each other, the ground and activity in the alley. 3’10”9’5”30' of clearance required to be maintained over dumpster pads. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 405602 Front Elevation DIMENSIONS: 92”h x 64”w x 56”d WEIGHT: 600 LBS (generous and rounded up) Material: Mild Steel Finish: Golden yellow Powder coat Description: The “Birds Eye View” is a large Hawk sculpture that brings attention to the possibilities of Mountain adventures in the Bozeman area. This figure brings attention to prominent topography elements, viewing them just like a bird soaring through the air. The Bird is positioned to look as if it was flying out of the Bridger range topography By Sacajawea Peak. The Sculpture is colored to match the topography elements of the wall backdrop, visually emphasizing the possible terrain exploration in this area. The lattice Slate design of the bird is composed of 2-d parts to create The 3-d shape of the sculpture. This method mimics the 2-d graphics of the backdrop and gives the illusion that the graphics are FLYING of the wall and morphing into the shape of the Bird. The Landscape backdrop camouflages a steel metal mesh screen, inhibiting access to the sculpture. By strengthening the connection of the 2-d world to the 3-d world, the possible adventure in the bozeman terrain can be realized through “Birds Eye View”. Steel Mesh Screen Topography backdrop Sculpture Bird sculpture to be shifted up to meet 30' clearance requirement for dumpster pads. DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 406603 Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel topography 1/4” steel plate welded to the sculpture and bolted to the concrete (wing mount) Topography lines cut out of 14 g steel and bolted To the concrete and Steel mesh Screen Black cut vinyl elevation call outs Black powder coated 14 g steel mountain peak call outs bolted to the steel topography Left Lower Corner Orthographic view DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 407604 slat design adds to the rigidity of the structure and allows for wind to pass through Topography lines cut out of 14 g steel and bolted To the concrete and Steel mesh Screen Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel topography Black cut vinyl elevation call outs Black powder coated 14 g steel mountain peak call outs bolted to the steel topography 1/4” steel plate welded to the sculpture and bolted to the concrete (Tail mount) Right Lower Corner Orthographic view DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 408605 Front View Bottom View 22”10.25”56”1/4” steel plate welded to the sculpture and bolted to the concrete. Topography ELEVATION LINES cut out of 14 g steel and bolted to the concrete AND MESH SCREEN Black cut vinyl elevation call outs Black powder coated 14 g steel mountain peak call outs bolted to the steel topography Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel topography 45.75”92”64” DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 409606 West View East View 1/4” steel plate bolted to concrete (Wing Mount) 10 g steel plate welded to the 1/4’ wall plate steel plate (thicker steel plate used for stronger wall connection) 14 G steel plate BOLTED together (thiner steel plate used to reduce weight) 1/4” steel plate bolted to concrete (tail mount) 10 g steel plate welded to the 1/4’ wall plate steel plate (thicker steel plate used for stronger wall connection) 14 G steel plate BOLTED together (thiner steel plate used to reduce weight) 56”45.75”92”Steel screen bolted to the concrete topography backdrop bolted to the concrete and screen DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 410607 DIMENSIONS: 35”W x 112.25”h x 39.75”D WEIGHT: 750 LBS (generous and rounded up) Material: Mild Steel Finish: Rusted Copper colored powder coat Description: “On the Horizon” is a large bobcat sculpture that brings attention to the possibilities of Urban adventure in the Bozeman area. This figure represents the methods of exploring the downtown area on the ground level, just like how a bobcat would explore the wilderness. The Sculpture is positioned to look as if it was Climbing out of the streets of bozeman, reaching for further exploration in this area. Amongst the Downtown background display, the exact location of the alley in relation to all three sculptural elements is highlighted, emphasizing the public’s connection to the landscape and bringing a level of personal relation to the sculpture. THE ROADS ARE THE VEINS OF adventure, SHOWING HOW TO ACCESS areas of exploration. The Sculpture is colored to match the road graphic elements of the Steel wall background, visually emphasizing the possible urban exploration in this area and sparking inspiration to explore. The Copper color connects the man-made roads of the landscape to the industrial copper industry, WHICH has shaped many towns in Montana. The lattice Slate design is composed of 2-d parts to create The 3-d shape of the sculpture. This method mimics the 2-d graphics and gives the illusion that the graphics are CLIMBING of the wall and morphing into the shape of the Bobcat. The Landscape backdrop camouflages a steel metal mesh screen, inhibiting access to the sculpture. By strengthening the connection of the 2-d world to the 3-d world, the urban adventure can be realized through “on the horizon”. Front Elevation Steel Mesh Screen Topography backdrop Sculpture DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 411608 Right Lower Corner Orthographic view Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel topography 11/4” steel plate fabricated to look like a rock, welded to the sculpture and bolted to the concrete (Front feet MOUNT) 1/4” steel plate fabricated to look like a rock, welded to the sculpture and bolted to the concrete (LEFT FOOT MOUNT) Roads cut out of 14 g steel and bolted To the concrete and Steel mesh Screen Black cut vinyl street call outs Black powder coated 14 g steel urban area call outs bolted to the steel topography Slat design adds to the rigidity of the structure and allows for wind to pass through DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 412609 Left Lower Corner Orthographic view Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel BACKGROUND 1/4” steel plate fabricated to look like a rock, welded to the sculpture and bolted to the concrete (Front feet mount) ROAD lines cut out of 14 g steel and bolted To the con- crete and Steel mesh Screen Black cut vinyl road call outs 1/4” steel plate fabricated to look like a rock, welded to the sculpture and bolted to the concrete (left foot mount) Slat design adds to the rigidity of the structure and allows for wind to pass through DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 413610 Front View Bottom View 22”10.25”Roads cut out of 14 g steel and bolted to the concrete AND MESH SCREEN Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel topography Black cut vinyl Road call outs 1/4” steel plate fabricated to look like a rock, welded to the sculpture and bolted to the concrete (Front feet and Left foot mount) 39.75”50”35”112.25”DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 414611 1/4” steel plate bolted to concrete (tail mount) 10 g steel plate welded to the 1/4’ wall plate steel plate (thicker steel plate used for stronger wall connection) 10 g steel plate welded to the 1/4’ wall plate steel plate (thicker steel plate used for stronger wall connection) 14 G steel plate BOLTED together (thiner steel plate used to reduce weight) 39.75”50”112.25”Steel screen bolted to the concrete road backdrop bolted to the concrete and screen West View East View DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 415612 DIMENSIONS: 72.5”h x 71“w X 55”d WEIGHT: 500 LBS (generous and rounded up) Material: Mild Steel Finish: Teal Blue Powder coat Description: The “Fish eye Lens” is a large trout fish sculpture that brings attention to the possibilities of water adventure in the Bozeman area. This figure represents the Hyalite area on the water level, just like how a fish would ex- plore the rivers and lakes. The Fish is positioned to look as if it was leaping out of hyalite Reservoir (a prominent and recognizable water element of this area). The Sculpture is colored to match the water graphic elements of the steel wall background, visually emphasizing the possible aquatic exploration in this area. The lattice Slate design is composed of 2-d parts to create The 3-d shape of the sculpture. This method mimics the 2-d graphics and gives the illusion that the graphics are leaping of the wall and morphing into the shape of the fish. The Land- scape back drop camouflages a steel metal mesh screen, inhibiting access to the sculpture. By strengthening the connection of the 2-d world to the 3-d world the water adventure can be realized through the fish eye Lens. Front Elevation Steel Mesh Screen Topography backdrop Sculpture DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 416613 Right Lower Corner Orthographic view Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel RIVERS 1/4” steel plate welded to the sculpture and bolted to the concrete (NOSE AND TAIL MOUNT) RIVERS cut out of 14 g steel and bolted To the concrete and Steel mesh Screen Black cut vinyl RIVER call outs Slat design adds to the rigidity of the structure and allows for wind to pass throughBlack powder coated 14 g steel LAKE call outs bolted to the steel AQUATIC BACKDROP DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 417614 Left Lower Corner Orthographic view Slat design adds to the rigidity of the structure and allows for wind to pass through 1/4” steel plate welded to the sculpture and bolted to the concrete (NOSE AND TAIL MOUNT) Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel RIVERS Black cut vinyl RIVER call outs RIVERS cut out of 14 g steel and bolted To the concrete and Steel mesh Screen DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 418615 22”10.25”Black powder coat- ed 14 g steel lake call outs bolted to the steel aquatic background Steel Mesh screen with a 10 g steel frame bolted to the concrete and steel rivers 1/4” steel plate welded to the sculpture and bolted to the concrete (NOSE AND TAIL MOUNT) Black cut vinyl river call outs RIVERS cut out of 14 g steel and bolted To the concrete and Steel mesh Screen 55”44.75”71”72.5”Front View Bottom View DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 419616 10 g steel plate welded to the 1/4’ wall plate steel plate (thicker steel plate used for stronger wall connection) 14 G steel plate BOLTED together (thiner steel plate used to reduce weight) 14 G steel plate BOLTED together (thiner steel plate used to reduce weight) 1/4” steel plate bolted to concrete (Nose Mount) 1/4” steel plate bolted to concrete (tail Mount) 55”44.75”72.5”Steel screen bolted to the concrete River backdrop bolted to the concrete and screen West View East View DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 420617 Name:Contractor #:Affirmation Form:Addendum 1 & 2 Acknowledged Non-Collusion Bid Bond:Base Bid Total: Western Municipal Construction 13329 Yes Yes Yes Yes $477,900.00 MJD Contracting, LLC 248582 Yes Yes Yes Yes $260,000.00 Mike Maas Griffin Nielsen City Clerk Water Resource Engineer WTP Interim Optimization These bids were opened and read before the undersigned at 2:30 pm on Thursday, April 10, 2025 Docusign Envelope ID: ED5D6485-F9CD-4683-96CE-E50F921E015E 9618 Bozeman Sourdough Water Treatment Plant Interim OptimizationCity of BozemanBozeman, MTAE2S Project No. P05097-2024-008Bid Opening Time 2:30 PM MDT Date Thursday, April 10, 2025ContractorAcknowledge Addenda 1-2Completed Bid FormBidder's Power of Attorney10% Bid BondSurety's Power of AttorneyNon-Discrimination AffirmationNon-Collusion AffidavitMT Contractor's License or commitment to obtainBozeman Business License or commitment to obtainSurety's Appointment from MT Commissioner of Securities & InsPackage ALump SumPackage BLump SumPackage CLump SumPackage DLump Sum Total Lump Sum Bid PricePackages A-D1MJD Contracting, LLCx x x x x x x x x x70,000.00$ 80,000.00$ 60,000.00$ 50,000.00$ 260,000.00$ 2Western Municipal, Inc.x x x x x x x x x x111,700.00$ 114,400.00$ 130,400.00$ 121,400.00$ 477,900.00$ Advanced Engineering and Environmental Services, LLC1288 North 14th Ave. Suite 103Bozeman, MT 59715Tel: 406-219-2633Brian J. Viall, PE Project Manager Docusign Envelope ID: ED5D6485-F9CD-4683-96CE-E50F921E015E 10619