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HomeMy WebLinkAbout06-03-25 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 Mayor Terry Cunningham (Maas) E. FYI F. Commission Disclosures G. Consent THE CITY COMMISSION OF BOZEMAN, MONTANA REGULAR MEETING AGENDA Tuesday, June 3, 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 Mayor Terry Cunningham. 1 G.1 Accounts Payable Claims Review and Approval (Edwards) G.2 Authorize the City Manager to Sign a Gallatin County Open Lands Grant on Behalf of the Downtown Bozeman Partnership(Grabinski) G.3 Authorize the City Manager to Sign a Professional Service Agreement with LONG Building Technologies to convert the existing Video Management software VRX to Milestone XProtect for the Public Safety Center(Arnado) G.4 Authorize the City Manager to Sign a Professional Service Agreement with LONG Building Technologies to upgrade and consolidate our existing Security Access Control Systems to the Lenel OnGuard platform(Arnado) G.5 Authorize the City Manager to Sign a Professional Services Agreement with LONG Building Technologies to upgrade and consolidate our existing Security Access Control Systems to the Lenel OnGuard platform for the Bozeman Public Safety Center.(Arnado) G.6 Authorize the City Manager to Sign a Professional Services Agreement with LONG Building Technologies for Sally Port and Entry Gate RFID (Radio Frequency Identification) Readers for the Bozeman Public Safety Center(Arnado) G.7 Authorize the City Manager to Sign a Professional Service Agreement with Jackson Contracting Group for Bogert Pool Renovation Preconstruction Services.(Miller) G.8 Authorize the City Manager to sign the Software as a Service Agreement with Pani Energy for Wastewater Operational AI Coaching software services.(Kohtz, Kercher) G.9 Authorize the City Manager to Sign a Professional Services Agreement with the Downtown Bozeman Partnership for the Administration of the Downtown Urban Renewal District for Fiscal Year 2026(Staley ) G.10 Authorize the City Manager to Sign a Professional Services Agreement with the Downtown Bozeman Partnership for the Administration of the Downtown Business Improvement District for Fiscal Year 2026(Cope) G.11 Authorize the City Manager to Sign a Professional Services Agreement and Statement of Work with AVI Systems, Inc. for Audio Visual Annual Support.(McMahan) G.12 Authorize the City Manager to sign a Professional Services Master Task Order Agreement with HDR for on-call engineering services for the City of Bozeman Water Treatment Division(Nielsen) G.13 Authorize the City Manager to sign a Professional Services Master Task Order Agreement with HDR for on-call engineering services for the City of Bozeman Water Reclamation Facility(Nielsen) G.14 Authorize the City Manager to Sign Amendment 001 to Professional Services Master Task Order Agreement with TD&H for Engineering Services(Miller) G.15 Authorize the City Manager to Sign Amendment 001 to Professional Services Master Task 2 Order Agreement with inContour for Landscaping Services(Miller) G.16 Authorize City Manager to Sign Amendment One to Stahly Professional Services Agreement for Bozeman Sports Park Phase 2(Jadin) G.17 Ratify the City Manager's signature on Amendment 001 of a Professional Services Agreement with Steelcase for Bozeman City Hall Phase 2 Furniture and Moving Services.(Miller) G.18 A Resolution, Authorizing the City Manager to Sign Change Order 6 with Constructive Solutions, Inc. for the Downtown Alley Enhancement Pilot Project(Staley) G.19 A Resolution Prescribing the Form and Terms of the Lease(s) and Installment Purchase Agreement and Property Schedules(Hodnett) H. Public Comment on Non-agenda Items Falling Within the Purview and Jurisdiction of the Commission I. Work Session I.1 Unified Development Code (UDC) Update Supplemental Engagement Phase 2 Report and Next Steps (Work Session) Continued from May 20, 2025(Saunders/George) J. FYI / Discussion K. Adjournment This is the time to comment on any matter falling within the scope of the Bozeman City Commission. There will also be time in conjunction with each agenda item for public comment relating to that item but you may only speak once per topic. Please note, the City Commission cannot take action on any item which does not appear on the agenda. All persons addressing the City Commission shall speak in a civil and courteous manner and members of the audience shall be respectful of others. Please state your name, and state whether you are a resident of the city or a property owner within the city in an audible tone of voice for the record and limit your comments to three minutes. Written comments can be located in the Public Comment Repository. Consider comment and data supporting possible modifications to the draft Unified Development Code and consider possible direction for future work sessions. 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 Mayor Terry Cunningham MEETING DATE:June 3, 2025 AGENDA ITEM TYPE:Administration RECOMMENDATION:Consider the Motion: I move to authorize the absence of Mayor Terry Cunningham. STRATEGIC PLAN:1.1 Outreach: Continue to strengthen and innovate in how we deliver information to the community and our partners. BACKGROUND:Mayor Cunningham notified the Commission 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:June 3, 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 June 4, 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:Jamie Grabinski, Grants Coordinator Aaron Funk, Controller Melissa Hodnett, Finance Director SUBJECT:Authorize the City Manager to Sign a Gallatin County Open Lands Grant on Behalf of the Downtown Bozeman Partnership MEETING DATE:June 3, 2025 AGENDA ITEM TYPE:Grant RECOMMENDATION:Authorize the City Manager to Sign a Gallatin County Open Lands Grant on Behalf of the Downtown Bozeman Partnership STRATEGIC PLAN:3.4 Active Recreation: Facilitate and promote recreational opportunities and active health programs and facilities. BACKGROUND:In April 2025, the Downtown Bozeman Partnership applied for the Gallatin County's Open Space Levy grant program to augment the funding stack for the I-Ho Pomeroy Pocket Park. The I-Ho Pomeroy Pocket Park is a joint effort between the City of Bozeman and the Downtown Bozeman Partnership to memorialize the life, heritage, and contribution of I-Ho Pomeroy. This grant is one of two grants received for the pocket park. UNRESOLVED ISSUES:None ALTERNATIVES:As identified by the City Commission FISCAL EFFECTS:Total expenditures funded by the grant are expected to be $75,000. Expenditures will be made in the Parks and Recreation fund and may require a future budget amendment. Attachments: Grant Award Agreement_Downtown Boz Part_2025.docx Report compiled on: May 22, 2025 6 Page 1 of 8 GRANT AWARD AGREEMENT FOR OTHER ELIGIBLE PROJECT GALLATIN COUNTY OPEN SPACE LEVY FUND FOR “OTHER ELIGIBLE PROJECT” FUNDING GRANT AWARD AGREEMENT 1. PARTIES AND CONTACT REPRESENTATIVES: This GALLATIN COUNTY OPEN SPACE LEVY FUND FOR OTHER ELIGIBLE PROJECT FUNDING GRANT AWARD AGREEMENT (this “GRANT AWARD AGREEMENT”), is made between GALLATIN COUNTY, 311 West Main, Bozeman, MT 59715 (“COUNTY”) AND DOWNTOWN BOZEMAN PARTNERSHIP, 222 E. Main, Suite 302, Bozeman, MT 59715 (“APPLICANT”), acting with and on behalf of CITY OF BOZEMAN, P.O. Box 1230, Bozeman, MT 59771 (“PROPERTY OWNER/(S)”) (together APPLICANT and PROPERTY OWNER/(S), are “GRANTEES”) (collectively COUNTY and GRANTEES, are “PARTIES”). COUNTY designates Sean O’Callaghan, Chief Planning Officer, 311 West Main, Bozeman, MT 59715, (406) 582-3130, sean.ocallaghan@gallatin.mt.gov as its contact representative. APPLICANT designates Ellie Stahly, 222 E. Main St., Suite 302, Bozeman, 59715, (406) 581-3827, ellie@downtownbozeman.org as its contact representative. PROPERTY OWNER/S designate John Henderson, P.O. Box 1230, Bozeman, MT 59771, (406) 582-2302, john.henderson@bozeman.net as its contact representative. 2. GRANT AWARD: The COUNTY awards to GRANTEES an award of grant funds from the Open Space Levy Fund for an Other Eligible Project in the amount of $75,000 (the “GRANT AWARD”). 3. STATEMENT OF WORK: GRANTEES shall complete the work and obligations as described in this GRANT AWARD AGREEMENT and set forth in the GALLATIN COUNTY OPEN SPACE LEVY FUNDING APPLICATION “OTHER ELIGIBLE PROJECTS” CATEGORY (“GRANTEE APPLICATION”) describing the project as approved, attached to this GRANT AWARD AGREEMENT as EXHIBIT A, and fully incorporated herein by reference, before the expiration or termination of this GRANT AWARD AGREEMENT. The COUNTY may compensate or reimburse GRANTEES for project expenses incurred prior to the execution of the GRANT AWARD AGREEMENT if included in the GRANTEE APPLICATION, but shall otherwise not be liable to compensate GRANTEE for any work or expenses performed prior to the execution of this GRANT AWARD AGREEMENT. The COUNTY shall have no liability to compensate or reimburse GRANTEES for the delivery of any goods or performance of any services that are not specifically set forth in this GRANT AWARD AGREEMENT. If the project that is the subject of GRANTEE APPLICATION involves work that is not located on public land or land dedicated to public use, GRANTEE acknowledges the 7 Page 2 of 8 GRANT AWARD AGREEMENT FOR OTHER ELIGIBLE PROJECT requirement that public access must be provided in the form of a long-term easement or land use license granting public access. GRANTEE shall record proof of such public access with the COUNTY Clerk and Recorder and furnish proof of such recordation to COUNTY. Payments to GRANTEES under the GRANT AWARD AGREEMENT may be withheld, in the sole discretion of the COUNTY, until adequate record(s) evidencing public access have been provided to COUNTY. 4. PAYMENTS TO GRANTEES: a. Maximum Amount: the maximum amount payable under this GRANT AWARD AGREEMENT is the GRANT AWARD amount, as determined by the COUNTY. If the project cannot be completed for the GRANT AWARD amount, GRANTEE agrees to provide any additional funds required for the successful completion of the project. Payments to GRANTEES are limited to the unpaid, obligated balance of the GRANT AWARD. The COUNTY shall not pay GRANTEES any amount that exceeds the GRANT AWARD amount as provided above in Section 2 of this GRANT AWARD AGREEMENT. b. Payment: GRANTEES shall submit to COUNTY proof of expenditures and any other requested documentation to support costs and expenditures, including detailed invoices. GRANTEES acknowledge that payment of GRANT AWARD is contingent upon COUNTY approval of GRANTEES’ submission. The COUNTY shall only reimburse allowable costs of project that are: reasonable and necessary to accomplish the project as set forth in the GRANTEE APPLICATION; and equal to the actual net cost to GRANTEES (e.g. the price paid minus any items of value received by GRANTEE that reduce the cost actually incurred). 5. TERM: The Parties’ respective performances under this GRANT AWARD AGREEMENT shall be effective as the date of execution by the Parties. The GRANT AWARD AGREEMENT shall terminate on April 29, 2028, unless sooner terminated or further extended in accordance with the terms of this GRANT AWARD AGREEMENT. Upon request of the APPLICANT, the Gallatin County Commission may, in its sole discretion, extend the term of this GRANT AWARD AGREEMENT. A request to extend the term of the GRANT AWARD AGREEMENT shall be provided in writing at least 30 calendar days prior to the termination date of the GRANT AWARD AGREEMENT and provide an explanation and rationale for the request and explain any delays. 6. EARLY TERMINATION IN THE PUBLIC INTEREST: The COUNTY is entering into this GRANT AWARD AGREEMENT to support the purpose of the Gallatin County Open Space Levy and the public interest. If the GRANT AWARD ceases to further the purposes of the Gallatin County Open Space Levy or public interest, as determined by the COUNTY, or 8 Page 3 of 8 GRANT AWARD AGREEMENT FOR OTHER ELIGIBLE PROJECT if funds used for this GRANT AWARD become unavailable, the COUNTY, in its sole discretion, may terminate this GRANT AWARD AGREEMENT in whole or in part by providing written notice to GRANTEES. If the COUNTY terminates this GRANT AWARD AGREEMENT, the COUNTY shall pay GRANTEE an amount equal to the percentage of the total reimbursement payable under this GRANT AWARD AGREEMENT that corresponds to the percentage of work satisfactorily completed, as determined by the COUNTY, less payments previously made. Additionally, the COUNTY, in its sole discretion, may reimburse GRANTEE for a portion of actual, out-of-pocket expenses not otherwise reimbursed under this GRANT AWARD AGREEMENT that are incurred by GRANTEES that are directly attributable to the uncompleted portion of GRANTEES’ obligations, provided that the sum of any and all reimbursements shall not exceed the maximum amount designated as the GRANT AWARD. 7. REPRESENTATIONS AND WARRANTIES: GRANTEES make the following specific representations and warranties, each of which was relied on by the COUNTY in entering into this GRANT AWARD AGREEMENT: a. Standard and Manner of Performance: GRANTEES shall perform all obligations under this GRANT AWARD AGREEMENT in accordance with the highest standards of care, skill, and diligence. b. Legal Authority: GRANTEES warrant they possess the legal authority to enter into this GRANT AWARD AGREEMENT and have taken all actions required by its procedures, by-laws, and/or applicable laws to exercise that authority, and to lawfully authorize its undersigned signatory to execute this GRANT AWARD AGREEMENT, or any part thereof, and bind GRANTEES to its terms. If requested by the COUNTY, GRANTEES shall provide the COUNTY with proof of GRANTEE’s authority to enter into this GRANT AWARD AGREEMENT within 15 days of receiving such request. c. Licenses, Permits, Etc.: GRANTEES represent and warrant that they have, and that at all times during the duration of this GRANT AWARD AGREEMENT, that they shall have and maintain, in GRANTEES’ sole expense, all licenses, certifications, approvals, insurance, permits, or other authorizations required by law to perform the obligations under this GRANT AWARD AGREEMENT. Additionally, all employees or agents of GRANTEES performing any services under this GRANT AWARD AGREEMENT shall hold all required licenses and certifications, if any, to perform their responsibilities. 8. BREACH OF AGREEMENT: In the event of a breach of the GRANT AWARD AGREEMENT, the aggrieved party shall give written notice of Breach of the GRANT AWARD AGREEMENT. If the notified party does not cure the breach, at its sole expense, within 30 days after the delivery of written notice, the party may exercise the remedies set forth in the GRANT AWARD AGREEMENT. 9 Page 4 of 8 GRANT AWARD AGREEMENT FOR OTHER ELIGIBLE PROJECT 9. COUNTY REMEDIES: If GRANTEES are in breach under any provision of this GRANT AWARD AGREEMENT and fails to cure such breach, the COUNTY, following the notice and cure period shall have all of the remedies listed in this section, in addition to all other remedies set forth in this GRANT AWARD AGREEMENT or as otherwise provided by law. The COUNTY may exercise any or all of the remedies available to it, in its discretion, concurrently or consecutively. a. Termination for Breach: In the event of GRANTEE’s uncured breach, the COUNTY may terminate the entire GRANT AWARD AGREEMENT or any part of the GRANT AWARD AGREEMENT. GRANTEE shall continue performance of this GRANT AWARD AGREEMENT to the extent not terminated, if any. To the extent specified in any termination notice, GRANTEE shall not incur further obligations or render further performance past the effective date of such notice, and shall terminate outstanding work with third parties. COUNTY shall only pay GRANTEE for accepted work received as of the date of termination. If, after termination by the COUNTY, the COUNTY agrees that GRANTEE was not in breach or that GRANTEE’S action or inaction was excusable, such termination shall be treated as a termination in the public interest, as set forth above. Notwithstanding any other remedial action by the COUNTY, GRANTEES shall remain liable to the COUNTY for any damages sustained by the COUNTY in connection with a breach by the GRANTEES, and the COUNTY may withhold payment to GRANTEE for the purpose of mitigating GRANTEE’S damages until such time as the exact amount of damages due to the COUNTY from GRANTEE is determined. COUNTY may withhold any amount that may be due GRANTEES as the COUNTY deems necessary to protect the COUNTY against loss including, without limitation, loss of outstanding liens and excess costs incurred by the COUNTY in procuring from third parties replacement work. b. Remedies Not Involving Termination: The COUNTY, in its discretion, may exercise one or more of the following additional remedies: i. Suspend Performance: Suspend GRANTEES’ performance with respect to all or any portion of the project pending corrective actions as specified by the COUNTY and COUNTY shall not be liable for costs incurred by GRANTEE after the suspension in performance. j. Withhold Payment: Withhold payment to GRANTEES until GRANTEES correct the work. 10 Page 5 of 8 GRANT AWARD AGREEMENT FOR OTHER ELIGIBLE PROJECT k. Deny Payment: Deny payment for work not performed, or that due to the GRANTEES’ actions or inactions, cannot be performed or if they were performed are reasonably of no value to the COUNTY; provided, that any denial of payment shall be equal to the value of the obligations or work not performed. l. Removal: Demand immediate removal of any GRANTEES’ employees, agents, or subcontractors from the work whom the COUNTY deems to be incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable or whose continued relation to this GRANT AWARD AGREEMENT is deemed by the COUNTY to be contrary to the public interest. 10. INDEPENDENT CONTRACTOR: GRANTEES shall perform their duties hereunder as independent contractors and not as an employee of COUNTY. Neither GRANTEES, nor any agent or employee of GRANTEES, shall be deemed to be an agent or employee of the COUNTY. GRANTEE shall not have authorization, express or implied, to bind the COUNTY to any agreement, liability, or understanding. 11. COMPLIANCE WITH LAW: GRANTEES shall comply with all applicable federal and State laws, rules, and regulations in effect or as hereafter established. 12. WAIVER AND INDEMNIFICATION: To the fullest extent permitted by law, GRANTEES waive any and all claims and recourse against COUNTY or its officers, agents, or employees, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance or any obligation under this GRANT AWARD AGREEMENT, except claims arising from the intentional acts or negligence of the COUNTY or its officers, agents, or employees. To the fullest extent permitted by law, GRANTEES will indemnify, hold harmless, and defend the COUNTY and its officers, agents, and employees against any claim, damage, liability, loss, expense, fee, action or charge (including liability where activity is inherently or intrinsically dangerous), including attorney’s fees (including fees of the County Attorney) arising out of GRANTEE’s acts, errors, omissions, or negligence or from GRANTEES failure to comply with the requirements of this GRANT AWARD AGREEMENT or any applicable law. In the event of an action filed against COUNTY resulting from GRANTEES’ performance under this GRANT AWARD AGREEMENT, COUNTY may elect to represent itself and incur all costs and expenses of suit. These obligations shall survive termination of this GRANT AWARD AGREEMENT. 13. CHOICE OF LAW AND VENUE: The Parties agree that this GRANT AWARD AGREEMENT shall be governed and interpreted according to the laws of the State of Montana. In the event of a dispute arising from or related to this GRANT AWARD AGREEMENT, venue shall be in the Eighteenth Judicial District of the State of Montana, in and for the County of Gallatin. 11 Page 6 of 8 GRANT AWARD AGREEMENT FOR OTHER ELIGIBLE PROJECT 14. INTERPRETATION: The Parties equally having been given an opportunity to review and have reviewed this GRANT AWARD AGREEMENT, the rule of construction providing that an agreement should be construed against the drafter will not be used in the interpretation of this GRANT AWARD AGREEMENT. Words shall be given plain meaning and effect. 15. GENERAL PROVISIONS: a. Assignment: The Parties, respectively, bind themselves, their successors, assigns and legal representatives to the other party with respect to all terms and conditions of this GRANT AWARD AGREEMENT. GRANTEES’ rights and obligations under this GRANT AWARD AGREEMENT are personal and may not be transferred or assigned without the prior, written consent of the COUNTY. Any assignment or transfer of GRANTEES’ rights and obligations approved by the COUNTY shall be subject to the provisions of this GRANT AWARD AGREEMENT. b. Captions: The captions and headings in this GRANT AWARD AGREEMENT are for convenience of reference only and shall not be used to interpret, define, or limit its provisions. c. Entire Understanding: This GRANT AWARD AGREEMENT and incorporated exhibits, represent the complete integration of all understandings between the Parties related to this GRANT AWARD. This GRANT AWARD AGREEMENT supersedes all prior negotiations, or representations, either written or oral. d. Modification: The Parties may modify this GRANT AWARD AGREEMENT by a properly executed formal amendment. e. Notice: Any notices under this GRANT AWARD AGREEMENT must be in writing and sent by personal delivery or certified mail to the Parties’ contact representatives. f. Severability: The invalidity or unenforceability of any provision of this GRANT AWARD AGREEMENT shall not affect the validity or enforceability of any other provision of this GRANT AWARD AGREEMENT, which shall remain in full force and effect, provided the Parties can continue to perform their obligations under the GRANT AWARD AGREEMENT in accordance with the intent of the GRANT AWARD. g. Survival of Certain GRANT AWARD AGREEMENT Terms: Any provision of this GRANT AWARD AGREEMENT that explicitly imposes an obligation on the Parties after termination or expiration of the GRANT AWARD AGREEMENT shall survive the termination 12 Page 7 of 8 GRANT AWARD AGREEMENT FOR OTHER ELIGIBLE PROJECT h. Non-Waiver: No waiver of any breach of this GRANT AWARD AGREEMENT will be held as a waiver of any other subsequent breach thereof. i. Remedies Cumulative: Any remedy provided herein will be taken and construed as cumulative, and the exercise of any one remedy by the Parties shall not be to the exclusion of any other remedy. j. Execution of GRANT AWARD AGREEMENT: The Gallatin County Clerk and Recorder will keep the original GRANT AWARD AGREEMENT. An exact unaltered copy of the original GRANT AWARD AGREEMENT has the same force and effect as the original. k. Attorney’s Fees: If it is necessary for Parties to bring an action to enforce the terms, covenants, or conditions of the GRANT AWARD AGREEMENT, the prevailing party shall be entitled to reasonable attorney fees to be set by the appropriate court, including fees of the Gallatin County Attorney. l. No Offer Express or Implied: Transmittal, delivery, or publication of this GRANT AWARD AGREEMENT shall not be construed as an offer express or implied. COUNTY shall not be bound to the GRANT AWARD AGREEMENT unless and until this GRANT AWARD AGREEMENT has been fully executed by the Parties. AGREED by: COUNTY COMMISSION ________________________________ CHAIR Date APPLICANT ________________________________ Date PROPERTY OWNER ________________________________ Date 13 Page 8 of 8 GRANT AWARD AGREEMENT FOR OTHER ELIGIBLE PROJECT EXHIBIT A 14 Memorandum REPORT TO:City Commission FROM:Jon Henderson Assistant City Manager David Arnado Facilities Superintendent SUBJECT:Authorize the City Manager to Sign a Professional Service Agreement with LONG Building Technologies to convert the existing Video Management software VRX to Milestone XProtect for the Public Safety Center MEETING DATE:June 3, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign a Professional Service Agreement with LONG Building Technologies to convert the existing Video Management software VRX to Milestone XProtect for the Public Safety Center STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:In November 2018, Bozeman voters approved the sale of bonds to fund the construction of the Bozeman Public Safety Center and the City moved into the building in July of 2022 The BPSC is the new home of the Bozeman Police Department, Fire Station #1, Municipal Courts, Prosecution and Victim Services. The Bozeman Public Safety Center was designed to include advanced security systems, including a video security camera recording and management system to control the security cameras throughout the building, audio and video from police interview rooms, body camera footage, and patrol car dash cameras. Currently the BPSC uses Lenel Magic Monitor to manage these recording devices, while other City facilities use the Axis camera client. Over the course of operations since the BPSC opened, operation deficiencies with Magic Monitor have been noted, especially regarding the integration of multiple video sources. This proposal to upgrade from Lenel Magic Monitor to Lenel XProtect will improve the operations and integration of our camera systems. “What we are replacing and why” The Lenel XProtect video management platform will upgrade our Lenel Magic Monitor system to an enterprise level software system which will be able to bi-directly integrate with the proposed Lenel OnGuard system, consolidating security camera and access control systems Citywide. “Why this is in the interest of the City” 15 This upgrade should address the operational deficiencies observed at the BPSC, while improving staff efficiency as Facilities staff will no longer need to update multiple redundant systems. The Lenel XProtect platform will position the City to be able integrate new buildings and systems as the City grows, while improving building security and emergency response efforts UNRESOLVED ISSUES:Not at this time ALTERNATIVES:As suggested by City Commission FISCAL EFFECTS:This contract will incur a fixed price of $17,741. to be paid from Facilities operating budget Attachments: PSA Long Building Technologies VRX to Milestone Conversion.pdf Exhibit A LONG Building Technologies VRX to Milestone XProtect.pdf Report compiled on: May 7, 2025 16 Version 5 18 23 Professional Services Agreement for Convert the existing VRX to Milestone XProtect Page 1 of 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 202__ (“Effective Date”), by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and, __LONG Building Technologies__, __2285 Deerfield Lane, Helena, MT 59601__, 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 ___1__ day of ______JULY______, 2026_, unless earlier terminated in accordance with this Agreement. 3. Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, 17 Version 5 18 23 Professional Services Agreement for Convert the existing VRX to Milestone XProtect Page 2 of 11 Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. 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 18 Version 5 18 23 Professional Services Agreement for Convert the existing VRX to Milestone XProtect Page 3 of 11 Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent 19 Version 5 18 23 Professional Services Agreement for Convert the existing VRX to Milestone XProtect Page 4 of 11 jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury per accident; and • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, and Automobile Liability policies. The insurance and required endorsements 20 Version 5 18 23 Professional Services Agreement for Convert the existing VRX to Milestone XProtect Page 5 of 11 must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. 21 Version 5 18 23 Professional Services Agreement for Convert the existing VRX to Milestone XProtect Page 6 of 11 b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be___David Arnado Facilities Superintendent_____ or such other individual 22 Version 5 18 23 Professional Services Agreement for Convert the existing VRX to Milestone XProtect Page 7 of 11 as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be _____________________ or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. 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. 23 Version 5 18 23 Professional Services Agreement for Convert the existing VRX to Milestone XProtect Page 8 of 11 13. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 15. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 16. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. 24 Version 5 18 23 Professional Services Agreement for Convert the existing VRX to Milestone XProtect Page 9 of 11 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. 22. Dispute Resolution: 25 Version 5 18 23 Professional Services Agreement for Convert the existing VRX to Milestone XProtect Page 10 of 11 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 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 26 Version 5 18 23 Professional Services Agreement for Convert the existing VRX to Milestone XProtect Page 11 of 11 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 ___Two 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 Long Building Technologies CONTRACTOR (Type Name Above) By________________________________ By__________________________________ Chuck Winn, City Manager Print Name: ___________________________ Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 27 28 29 30 31 32 33 34 Memorandum REPORT TO:City Commission FROM:Jon Henderson Assistant City Manager David Arnado Facilities Superintendent SUBJECT:Authorize the City Manager to Sign a Professional Service Agreement with LONG Building Technologies to upgrade and consolidate our existing Security Access Control Systems to the Lenel OnGuard platform MEETING DATE:June 3, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign a Professional Service Agreement With LONG Building Technologies to upgrade and consolidate our existing Security Access Control Systems to the Lenel OnGuard platform STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:The Bozeman Facilities Department manages access control systems for all City Facilities, including physical locks and keys as well as electronic locks activated by security badges. To manage and monitor electronic locks the Facilities Department uses Access Control Systems and currently is using Lenel S2 at our newer facilities, while older buildings use the AlarmLock system. Using these Access Control Systems, Facilities staff can remotely control access to doors for each staff member and track unauthorized access to secure areas. This proposal is to upgrade and consolidate our existing Access Control Systems to the Lenel OnGuard platform which will allow us to integrate Access Control and Security Systems Citywide into a single package with enhanced features. “What we are replacing and why” The AlarmLock and Lenel S2 systems in use at our buildings are not compatible with each other, which has required us to manage and update several systems anytime a change needs to be made. This results in staff inefficiencies and creates opportunities for discrepancies between the two systems. Integrating our existing AlarmLock system into the upgraded OnGuard platform will centralize our access control system into a platform that can integrate with other security and building systems. “Why this is in the interest of the City” Consolidating our existing Access Control systems into the upgrade to Lenel OnGuard will improve security at all City buildings by eliminating redundancy and bringing all security systems into the same platform. This upgrade will provide more security features and prepare us to bring additional buildings 35 into the system in the future. UNRESOLVED ISSUES:Not at this time ALTERNATIVES:As suggested by City Commission FISCAL EFFECTS:This contract will incur a fixed price of $26,052. to be paid from Facilities operating budget Attachments: PSA General LONG Alarm Lock integration into Lenel OnGuard.pdf Exhibit A LONG Building Technologies Alarm Lock into Lenel OnGuard.pdf Report compiled on: May 6, 2025 36 Version 5 18 23 Professional Services Agreement for Alarm Lock integration into Lenel OnGuard Page 1 of 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 202__ (“Effective Date”), by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and, ____________, _______________, 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 ___1__ day of __July__, 2026_, unless earlier terminated in accordance with this Agreement. 3. Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, 37 Version 5 18 23 Professional Services Agreement for Alarm Lock integration into Lenel OnGuard Page 2 of 11 Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. 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 38 Version 5 18 23 Professional Services Agreement for Alarm Lock integration into Lenel OnGuard Page 3 of 11 Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent 39 Version 5 18 23 Professional Services Agreement for Alarm Lock integration into Lenel OnGuard Page 4 of 11 jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury per accident; and • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, and Automobile Liability policies. The insurance and required endorsements 40 Version 5 18 23 Professional Services Agreement for Alarm Lock integration into Lenel OnGuard Page 5 of 11 must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. 41 Version 5 18 23 Professional Services Agreement for Alarm Lock integration into Lenel OnGuard Page 6 of 11 b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be ___David Arnado Facilities Superintendent____ or such other individual 42 Version 5 18 23 Professional Services Agreement for Alarm Lock integration into Lenel OnGuard Page 7 of 11 as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be _____________________ or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. 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. 43 Version 5 18 23 Professional Services Agreement for Alarm Lock integration into Lenel OnGuard Page 8 of 11 13. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 15. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 16. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. 44 Version 5 18 23 Professional Services Agreement for Alarm Lock integration into Lenel OnGuard Page 9 of 11 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. 22. Dispute Resolution: 45 Version 5 18 23 Professional Services Agreement for Alarm Lock integration into Lenel OnGuard Page 10 of 11 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 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 46 Version 5 18 23 Professional Services Agreement for Alarm Lock integration into Lenel OnGuard Page 11 of 11 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 _________Two 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 LONG BUILDING TECHNOLOGIES CONTRACTOR (Type Name Above) By________________________________ By__________________________________ CHUCK WINN, City Manager Print Name: ___________________________ Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 47 48 49 50 51 52 53 54 Memorandum REPORT TO:City Commission FROM:Jon Henderson Assistant City Manager David Arnado Facilities Superintendent SUBJECT:Authorize the City Manager to Sign a Professional Services Agreement with LONG Building Technologies to upgrade and consolidate our existing Security Access Control Systems to the Lenel OnGuard platform for the Bozeman Public Safety Center. MEETING DATE:June 3, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign a Professional Services Agreement with LONG Building Technologies to upgrade and consolidate our existing Security Access Control Systems to the Lenel OnGuard platform for the Bozeman Public Safety Center. STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:In November 2018, Bozeman voters approved the sale of bonds to fund the construction of the Bozeman Public Safety Center, the City moved into the building in July of 2022. The BPSC is the new home of the Bozeman Police Department, Fire Station #1, Municipal Courts, Prosecution and Victim Services. Housing emergency services and law enforcement agencies, the Bozeman Public Safety Center was designed to include advanced security systems including a centralized access control system to manage and track employee access to secured doors in the building. This system is essential to ensuring the safety of the public, staff, and criminal justice information. “What we are replacing and why” The current Access Control system at the Bozeman Public Safety Center uses Lenel S2 to monitor and manage door security, and this proposal is to upgrade our system to Lenel’s enterprise level software, Lenel OnGuard. The OnGuard system will enhance the features and capabilities of the access control system, including greater integration with other systems. OnGuard can be configured to directly integrate with alarm and emergency response systems, Human Resource and Enterprise Resource Planning systems, elevators and other building management systems. OnGuard will integrate with our existing access control systems at other buildings and will allow us to centralize our access control systems Citywide. 55 “Why this is in the interest of the City” Upgrading to Lenel OnGuard will improve the overall performance of our access control systems while preparing us to expand our security system capabilities for improved safety and emergency response in City Buildings. This system will allow us to eliminate redundant software, improving staff efficiency and preparing us to integrate future buildings. UNRESOLVED ISSUES:Not at this time ALTERNATIVES:As suggested by City Commission FISCAL EFFECTS:This contract will incur a fixed price of $28,447. to be paid from Facilities operating budget Attachments: PSA General LONG Access Control System to Lenel OnGuard.pdf Exhibit A LONG Building Technologies.pdf Report compiled on: May 6, 2025 56 Version 5 18 23 Professional Services Agreement for Upgrading the Access Control System to Lenel OnGuard Page 1 of 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 202__ (“Effective Date”), by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and, ____________, _______________, 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 __1___ day of _____July_____, 2026_, unless earlier terminated in accordance with this Agreement. 3. Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, 57 Version 5 18 23 Professional Services Agreement for Upgrading the Access Control System to Lenel OnGuard Page 2 of 11 Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. 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 58 Version 5 18 23 Professional Services Agreement for Upgrading the Access Control System to Lenel OnGuard Page 3 of 11 Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputesDa. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent 59 Version 5 18 23 Professional Services Agreement for Upgrading the Access Control System to Lenel OnGuard Page 4 of 11 jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury per accident; and • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, and Automobile Liability policies. The insurance and required endorsements 60 Version 5 18 23 Professional Services Agreement for Upgrading the Access Control System to Lenel OnGuard Page 5 of 11 must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. 61 Version 5 18 23 Professional Services Agreement for Upgrading the Access Control System to Lenel OnGuard Page 6 of 11 b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be ____David Arnado Facilities Superintendent___ or such other individual 62 Version 5 18 23 Professional Services Agreement for Upgrading the Access Control System to Lenel OnGuard Page 7 of 11 as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be _____________________ or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. 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. 63 Version 5 18 23 Professional Services Agreement for Upgrading the Access Control System to Lenel OnGuard Page 8 of 11 13. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 15. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 16. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. 64 Version 5 18 23 Professional Services Agreement for Upgrading the Access Control System to Lenel OnGuard Page 9 of 11 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. 22. Dispute Resolution: 65 Version 5 18 23 Professional Services Agreement for Upgrading the Access Control System to Lenel OnGuard Page 10 of 11 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 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 66 Version 5 18 23 Professional Services Agreement for Upgrading the Access Control System to Lenel OnGuard Page 11 of 11 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 __Two 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 LONG BUILDING TECHNOLOGIES CONTRACTOR (Type Name Above) By________________________________ By__________________________________ CHUCK WINN, City Manager Print Name: ___________________________ Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 67 68 69 70 71 72 73 74 Memorandum REPORT TO:City Commission FROM:Jon Henderson Assistant City Manager David Arnado Facilities Superintendent SUBJECT:Authorize the City Manager to Sign a Professional Services Agreement with LONG Building Technologies for Sally Port and Entry Gate RFID (Radio Frequency Identification) Readers for the Bozeman Public Safety Center MEETING DATE:June 3, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign a Professional Services Agreement with LONG Building Technologies for Sally Port and Entry Gate RFID (Radio Frequency Identification) Readers for the Bozeman Public Safety Center STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:In November 2018, Bozeman voters approved the sale of bonds to fund the construction of the Bozeman Public Safety Center, the City moved into the building in July of 2022. The BPSC is the new home of the Bozeman Police Department, Fire Station #1, Municipal Courts, Prosecution and Victim Services. The Public Safety Center was designed with a number of safety and security systems, including a secured parking area for police vehicles which is accessed through gates controlled by wireless sensors. “What we are replacing and why” The current Vehicle RFID (Radio-Frequency Identification) readers, designed for long range identification of vehicles accessing the North and South gates into the secure parking lot and Police Sally Port has suffers from reliability issues resulting in intermittent failures to detect vehicles. When the RFID readers fail to detect a vehicle, officers must manually override the gates which increased police response times. The current gate sensors will occasionally detect parked vehicles resulting in system errors. Additionally, the current system’s vehicle RFID antennas have a sealed battery which cannot be replaced which has incurred high costs for regular replacements. “Why this is in the interest of the City” This proposal will replace the existing RFID readers with an improved system by TagMaster, which will increase the reliability, range and sensitivity of the 75 readers. With the TagMaster system the vehicle RFID antennas no longer will require batteries or regular replacement, reducing future operating costs by approximately $800 annually. UNRESOLVED ISSUES:Not at this time ALTERNATIVES:As suggested by City Commission FISCAL EFFECTS:This contract will incur a fixed price of $20,707, to be paid from Facilities operating budget. Attachments: PSA Long Building Technologies RFID Readers.pdf Report compiled on: April 9, 2025 76 Version 5 18 23 Professional Services Agreement for Sally Port and Entry Gate RFID Readers Page 1 of 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 2025_ (“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, Long Building Technologies, 2285Deerfield Lane,Helena, MT 59601, 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 ____1_ day of ________July______, 2026_, unless earlier terminated in accordance with this Agreement. 3. Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, 77 Version 5 18 23 Professional Services Agreement for Sally Port and Entry Gate RFID Readers Page 2 of 11 Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. 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 78 Version 5 18 23 Professional Services Agreement for Sally Port and Entry Gate RFID Readers Page 3 of 11 Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent 79 Version 5 18 23 Professional Services Agreement for Sally Port and Entry Gate RFID Readers Page 4 of 11 jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury per accident; and • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, and Automobile Liability policies. The insurance and required endorsements 80 Version 5 18 23 Professional Services Agreement for Sally Port and Entry Gate RFID Readers Page 5 of 11 must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. 81 Version 5 18 23 Professional Services Agreement for Sally Port and Entry Gate RFID Readers Page 6 of 11 b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be ___________David Arnado Facilities Superintendent ______ or such 82 Version 5 18 23 Professional Services Agreement for Sally Port and Entry Gate RFID Readers Page 7 of 11 other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be Bryan Devereaux Security Account Executive 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. 83 Version 5 18 23 Professional Services Agreement for Sally Port and Entry Gate RFID Readers Page 8 of 11 13. Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 15. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 16. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. 84 Version 5 18 23 Professional Services Agreement for Sally Port and Entry Gate RFID Readers Page 9 of 11 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. 22. Dispute Resolution: 85 Version 5 18 23 Professional Services Agreement for Sally Port and Entry Gate RFID Readers Page 10 of 11 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 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 86 Version 5 18 23 Professional Services Agreement for Sally Port and Entry Gate RFID Readers Page 11 of 11 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 Two 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 LONG BUILDING TECHNOLOGIES CONTRACTOR (Type Name Above) By________________________________ By__________________________________ Chuck Winn, City Manager Print Name: ___________________________ Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 87 EXHIBIT A 88 LONG Building Technologies Office: 2285 Deerfield Lane, Helena, MT. 59601 Main: 406-797-7082| Website: www.LONG.com Project: Public Safety Building – City of Bozeman 901 N Rouse Ave Bozeman, MT 59715 Description: Replacement of the existing Police Sally Port and Entry Gates RFID Readers Prepared by: Bryan Devereaux Security Account Executive Email: bdevereaux@LONG.com Mobile: (406) 594-9825 89 Table of Contents Scope of work ............................................................................................................................................... 3 Clarifications ................................................................................................................................................. 4 Signature Page and Net Price ........................................................................................................................ 5 Terms and Conditions ................................................................................................................................... 6 90 To: David Arnado Date: 3/20/2025 Company: City of Bozeman Regarding: Replacement of the existing Police Sally Port and Entry Gates RFID Readers Thank you for the opportunity to submit a proposal for this project. LONG Building Technologies, Inc. (“LONG”) is committed to being the industry leader in providing a single resource for your security solutions. Our security system design is based upon providing the right hardware and technology to accommodate your needs today and into the future. LONG will provide you with the information required to make an educated investment decision. Scope of Work: • Remove and replace the existing vehicle RFID Readers. o Reader locations are North Gate, South Gate, and the Police Sally Port. • Aim and focus the new TagMaster Readers • Configure the new Readers to work with LenelS2. • Test and confirm proper operation. Scope Material: • (4) 152600 TagMaster UHF Readers • (150) NA1100A TagMaster UHF Vehicle Hang Tag (No Batteries Required) • (4) S1915-XT TagMaster Multipurpose Cable • (4) S1936 TagMaster Universal Mount • (4) S1734 TagMaster 24VDC Power Supplies 91 Clarifications: 1. RESPONSIBILITIES – To permit LONG Building Technologies (LONG) to properly perform the services included in this agreement, customer agrees to: A. To provide reasonable and timely access to all covered equipment and systems. B. To Allow LONG to install and commission equipment, with proper notice and coordination, during normal business hours, Monday through Friday 8:00AM to 5:00PM. C. This Quote is valid 60 days from the date sent. D. In the event of a significant increase in the cost of raw materials, labor, or other production expenses or government changes, such as tariff increases, the Seller shall have the right to adjust the price of the goods or services by an amount directly corresponding to such cost increase, provided that the Seller provides written notification to the Buyer with supporting documentation prior to implementing any price adjustment. 2. INCLUSIONS - It is understood that the following are the responsibility of LONG under this agreement. A. To provide above listed bill of materials. Delivered to the jobsite in agreement with project schedule. All material shall be new in box. B. To provide labor services to install, start up, commission, and warrant all LONG- provided material. 3. EXCLUSIONS – It is understood that the following are NOT the responsibilities of LONG under this agreement. A. No painting or patching is included. B. Day-to-day operation of the equipment. C. Inspection, alterations, or replacements required by insurance companies, municipal or Government authorities. D. LONG is not responsible for project delays caused by supply chain issues. E. Damage caused by acts of vandalism, fire, flood, terrorism, or other natural disasters not listed. F. Any additional material that is not listed in the Scope of Material. G. Any additional labor that is not listed in the Scope of Work. H. Any Damaged, Faulty, missing or broken: a. Fiber Optic Lines b. Wiring c. Network Cabling (Cat5/Cat6) d. Conduit, boxes, or fittings 92 Sincerely, Your building technology partner, LONG Building Technologies Bryan Devereaux bdevereaux@LONG.com (406) 594-9825 Customer Acceptance: On behalf of the owner and subject to Buyer’s conditions of acceptance set forth below, the undersigned hereby states: I have read the below Terms and Conditions, understand them fully, and agree to abide by them. I understand that payment for all equipment and installation changers is due pursuant to the terms of the agreement. I hereby certify that I am authorized by my company to sign this agreement. LONG Building Technologies is hereby authorized to perform the work as specified. Agreed To: Customer Name: Customer P.O. Number: P.O. Date ______________________________________ ____________________ ____________________ Customer Signature: Total net cost of the Project: $20,707 93 TERMS AND CONDITIONS OF SALE – Keyless Entry, CCTV, Fire Alarm, Intrusion Detection Systems. 94 Memorandum REPORT TO:City Commission FROM:Jon Henderson - Assistant City Manager David Arnado - Facilities Superintendent Shane Miller - Facilities Project Coordinator SUBJECT:Authorize the City Manager to Sign a Professional Service Agreement with Jackson Contracting Group for Bogert Pool Renovation Preconstruction Services. MEETING DATE:June 3, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign a Professional Service Agreement with Jackson Contracting Group for Bogert Pool Renovation Preconstruction Services. STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:On November 2nd, 2021, the voters of the City of Bozeman approved a bond to fund the renovation of several public recreation facilities, including the Bogert Outdoor Pool. The pool, located at 303 South Church Avenue, was built in 1938 and designed by Fred F. Willson and was extensively remodeled in the 1970s. Bogert Pool has a 25-yard pool and a shallow pool for children. The deep pool has a climbing wall, zip line, and small slide. The shallow pool has a slide for small children. The Bogert Pool Renovation project is to include but is not limited to structural repairs to pool, replacement of gutter drain system replacement of pool plaster, replacement of pool coping, replacement of CMU perimeter wall w/ fence, repair of concrete pool deck, repair of underground plumbing, and replacement of pool filter equipment. For this project the City Commission has authorized the use of the General Contractor / Construction Manager delivery method. With this method a General Contractor is selected before the completed design of the project, and will work alongside the project's Architects and Engineers to support assessing and developing construction plans and methods. This results in an alignment between the Architect and General Contractor which often results in fewer change orders or cost deviations, as well as an accelerated construction timeline compared to traditional delivery methods. On November 6, 2024, the City published a Request for Qualifications for General Contractor / Construction Manager services for this project. Statements of Qualifications received in response to this RFQ were evaluated by the project's selection committee, and Jackson Contracting Group was selected as the most qualified respondent. Jackson Contracting 95 Group was subsequently sent a Request for Proposal for a preconstruction services. Given the significant age and deteriorated condition of Bogert Pool, this service will evaluate project feasibility and evaluate means and methods of renovating the pool in conjunction with our selected Architect/Engineer, Cushing Terrell. Following the completion of the preconstruction services, Jackson Contracting Group will develop a price proposal for full project design including general contracting services which will be submitted as an amendment to this agreement. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:Funds are allocated into the approved City of Bozeman Bogert Pool Renovation Budget from the 2021 bond measure. Contract = $61,280.00 Attachments: Bogert Pool Renovation Project Jackson Contracting Group.pdf Report compiled on: May 12, 2025 96 Bogert Pool Renovation Project 1 CONTRACT BETWEEN CITY AND CONTRACTOR FOR Bogert Pool Renovation Project This CONTRACT is made as of: ___________, 2025 BETWEEN: Jackson Contractor Group 146 Laura Louise Lane Bozeman, MT 59718 P.O. Box 967 Missoula MT 59806 Hereinafter identified as the “CONTRACTOR” and: City of Bozeman P.O. Box 1230 121 N. Rouse Ave Bozeman, Montana 59771 hereinafter identified as the “OWNER”. WITNESSETH that the Contractor and the Owner, for the consideration hereinafter named, agree as follows: ARTICLE 1 – SCOPE OF WORK The Contractor shall perform all Work as shown in the Scope of Services and Contract Documents. ARTICLE 2- EFFECTIVE DATE, EXPIRATION DATE AND EXTENSION This Contract is eƯective upon the date of the final signature below. This Contract expires pursuant to terms outlined in the Contract Documents. ARTICLE 3 – CONTRACT SUM 97 Bogert Pool Renovation Project 2 The Owner shall pay the Contractor for performance of the Work, Subject to additions and/or deductions by Change Order or damages as provided in the Contract Documents, the contract Sum of: _________________$61,280.00__________________ ARTICLE 4– DESIGNATED REPRESENTATIVES Owner’s Designated Representative: Shane Miller, Facilities Project Coordinator 20 E Olive St P.O. Box 1230 Bozeman MT 59715 406-582-3232 smiller@bozeman.net Contractor’s Designated Representative: Rylan Oakland Director of Operations Jackson Contractor Group, Inc. P.O. Box 967 Missoula MT 59806 406-542-9150 rylano@jacksoncontractorgroup.com ARTICLE 5 – CONTRACT DOCUMENTS The Contract Documents, together with this Contract, form the entire Contract and Agreement between the Contractor and Owner. The Contract Documents consist of the Preconstruction Services Conditions, the GC/CM Request for Proposal including any scope of services, drawings or specifications associated therewith, the General Conditions of the Contract and the Nondiscrimination and Equal Pay AƯirmation. There are no understandings between the parties other than as set forth in the Contract Documents. All communications, either verbal or written, made prior to the date of this Contract are hereby abrogated and withdrawn unless specifically made a part of this Contract by reference. ARTICLE 6 – PREVAILING WAGE SCHEDULE The Contractor and all subcontractors at any tier or level must, as a minimum, pay the standard prevailing rate of wages schedule (including per diem, fringe benefits for health, 98 Bogert Pool Renovation Project 3 welfare, and pension contributions and travel allowance) in eƯect and as applicable to the district in which the Work is being performed. ARTICLE 7- INTOXICANTS Contractor must not permit or suƯer the introduction or use of any intoxicants, including alcohol or illegal drugs, upon the site of the Work. Contractor acknowledges it is aware of and will 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. Owner must have the right to request proof of such compliance and Contractor is obligated to furnish such proof. The Contractor is responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor must provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. ARTICLE 8 – GOVERNING LAW In the event of any mediation or litigation concerning any matter or dispute arising out of or related to the Contract, venue shall be the Eighteenth Judicial District in and Gallatin County, Montana. The Contract shall be interpreted and subject to the laws of the State of Montana. ARTICLE 9- CONSENT TO ELECTRONIC SIGNATURES The Parties have consented to execute this Contract electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. **** END OF CONTRACT EXCEPT FOR SIGNATURES **** EXECUTION OF THIS CONTRACT This Contract is entered into as of the day and year first written above: CONTRACTOR: OWNER: Jackson Contractor Group, Inc. CITY OF BOZEMAN By:____________________________ By:_____________________________ (signature) (signature) Rylan Oakland, Director of Operations Chuck Winn, Interim City Manager 99 Bogert Pool Renovation Project 4 100 Bogert Pool Renovation Project 5 PRE-CONSTRUCTION SERVICES CONDITIONS Bogert Pool Renovation Project 1. ARTICLE 1 – DEFINITIONS 1.1. BASIC DEFINITIONS – The terms below are expressly defined as follows: 1.1.1. Affiliate. Affiliate shall mean any subsidiary of General Contractor/Construction Manager (GC/CM), and any other entity in which GC/CM has a financial interest or which has a financial interest in GC/CM (including without limitation parent companies, related businesses under the same holding company, or any other business controlled by, under common control with, or which controls GC/CM). 1.1.2. Allowances. Allowances shall mean the allowance amounts shown in the Guaranteed Maximum Price (GMP) Supporting Documents, together with such further allowances as may be developed by the parties as the Project progresses. 1.1.3. Amendment. Amendment shall mean a written modification of this Contract (including without limitation any agreed change to the GMP), identified as an Amendment, and executed by GC/CM and the Owner. 1.1.4. Change Order. Change Order shall mean a written modification of this Contract identified and executed by the GC/CM and the Owner. Change Orders shall be issued only for Owner Scope Changes and unforeseen conditions. 1.1.5. Construction Manager (CM). CM shall have the meaning given herein below as GC/CM and CM/GC. 1.1.6. Construction Documents. Construction Documents shall include any plans, drawings and specifications that depict the scope of the Work. 1.1.7. Construction Phase. The Construction Phase shall mean the period commencing on the Owner's execution of a GMP Amendment or Early Work Amendment, together with the earlier of (i) issuance by Owner of a Notice to Proceed with any on-site construction or (ii) execution of a subcontract or issuance of a purchase order for materials or equipment required for the Work. 1.1.8. Construction Phase Services. Construction Phase Services shall mean all of the Work other than the Preconstruction Phase Services. 1.1.9. Contract Documents. Contract Documents include the pre-construction services conditions between Owner and Jackson Contracting, the Scope of Services, Drawings and Specifications created for this Project and any other exhibits attached to this document. 1.1.10. Design Development Documents. The Design Development Documents are a set of drawings and specifications that define the parameters of this project. 1.1.11. Early Work. Early Work shall mean Construction Phase Services authorized by Amendment that the parties agree should be performed in advance of establishment of the GMP. Permissible Early 101 Bogert Pool Renovation Project 6 Work shall be limited to: early procurement of materials and supplies; early release of bid or proposal packages for site development and related activities; and any other advance work related to critical components of the Project for which performance prior to establishment of the GMP will materially affect the critical path schedule of the Project. 1.1.12. Early Work Amendment. Early Work Amendment shall mean an Amendment to this Contract executed by and between the parties to authorize Early Work. 1.1.13. Guaranteed Maximum Cost for Reimbursable expenses for General Conditions Work (GMCR). Guaranteed Maximum Cost for General Conditions Work or GC Work shall mean that guaranteed maximum sum identified herein below. 1.1.14. General Conditions Work. General Conditions Work (“GC Work”) shall mean (i) that portion of the Work required to support construction operations that is not included within overhead or general expense but is called out as GC Work, and (ii) any other specific categories of Work approved in writing by the Owner as forming a part of the GC Work. GC Work is defined and submitted during the GC/CM solicitation phase and is described as Guaranteed Maximum Cost for Reimbursable (GMCR) expenses for General Conditions. 1.1.15. General Contractor/Construction Manager (GC/CM). GC/CM shall mean the entity contracted for by the Owner to provide Pre-Construction and Construction Services. Construction Manager/General Contractor (CM/GC) shall have the same meaning as GC/CM. GC/CM and CM/GC includes the term “Contractor”. 1.1.16. Guaranteed Maximum Price (GMP). GMP shall mean the Guaranteed Maximum Price of this Contract, as stated in dollars within the GMP Amendment, as determined herein below and as it may be adjusted from time to time pursuant to the provisions of this Contract. 1.1.17. GMP Amendment. GMP Amendment shall mean an Amendment to this Contract, issued and executed by and between the parties, to establish the GMP and identify the GMP Supporting Documents and Construction Documents for Construction Phase Services. 1.1.18. GMP Supporting Documents. GMP Supporting Documents shall mean the documents referenced in the GMP Amendment as the basis for establishing the GMP. The GMP Supporting Documents shall expressly identify the Plans and Specifications, assumptions, qualifications, exclusions, conditions, allowances, unit prices, and alternates that form the basis for the GMP. 1.1.19. Preconstruction Phase. The Preconstruction Phase shall mean the period commencing on the date of this Contract and ending upon commencement of the Construction Phase; provided that if the Owner and GC/CM agree, the Construction Phase may commence before the Preconstruction Phase is completed, in which case both phases shall proceed concurrently, subject to the terms and conditions of the Contract Documents. 1.1.20. Preconstruction Phase Services. Preconstruction Phase Services shall mean all services described herein below, including such similar services as are described in the Request for Proposals (RFP) and the GC/CM's RFP Response to the extent they are accepted by Owner, but excluding any Early Work. Early Work shall be considered part of Construction Phase Services. 1.1.21. Schematic Design Documents. Schematic Design Documents shall consist of drawings or other documents including a site plan, if appropriate, and preliminary building plans that develop concept design. 102 Bogert Pool Renovation Project 7 1.1.22. Scope Change. Scope Change shall mean only (i) changed site conditions not reasonably identifiable or inferable from information available to GC/CM at the time of execution of the GMP Amendment, (ii) significant Work modifications (including additions, substitutions, and deletions) not reasonably identifiable or inferable from the Documents at every phase of design, and (iii) application of Allowances and selection of alternates, all as approved by the Owner under this Contract beyond that identified or inferable from the GMP Supporting Documents (but in the case of Allowance items, the GMP will increase only if the cost to Owner of the Allowance items exceeds the total amount of the Allowances). 2. ARTICLE 2 – CONTRACT DOCUMENTS 2.1. Integration with General Conditions of the Contract for Construction. The requirements of these Pre- Construction Services Conditions are in addition to, and not in lieu of, the requirements of the General Conditions of the Contract for Construction, should the parties enter into the General Conditions of the Contract for Construction. 2.2. Contract Documents. Owner and the GC/CM agree to the terms of the Contract that are set forth in the Contract Documents as identified above. 2.3. Articles 3.1, 3.2, 11, 13, 14, and 15 of the “General Conditions of the Contract for Construction” also apply in their entirety to the Pre-Construction Services phase, should the parties enter into the General Conditions of the Contract for Construction. 3. ARTICLE 3 – SERVICES AND WORK OF THIS CONTRACT 3.1 Preconstruction Phase Services. The GC/CM agrees to provide all of the Preconstruction Phase Services described below on an ongoing basis in support of, and in conformance with, the time frames described in the Request for Proposals as updated by the Project Schedule throughout the course of design and as coordinated with the Owner and Architect/Engineer. The Preconstruction Phase shall end on or by September 30, 2025. If Preconstruction Phase continues beyond September 30, 2025 through no fault of the GC/CM, additional compensation for extended Preconstruction Services may be negotiated with the Owner. However, commencement of the Construction Phase shall not excuse GC/CM from completion of the Preconstruction Phase Services, if such services have not been fully performed at commencement of the Construction Phase. 3.2 The GC/CM shall provide the following services relating to design and construction tasks: 3.2.1 The GC/CM shall consult with, advise, assist, and provide recommendations to the Owner and the Architect/Engineer on all aspects of the planning and design of the Work. Owner acknowledges that the GC/CM is providing services in its capacity as a Contractor and not as a licensed design professional. 3.2.2 The GC/CM shall jointly schedule and attend regular meetings with the Architect/Engineer and Owner. The GC/CM shall consult with and advise the Owner and Architect/Engineer regarding site use and improvements, and the selection of materials, building systems and equipment. 3.2.3 The GC/CM shall provide recommendations on construction feasibility; actions designed to minimize adverse effects of labor or material shortages; time requirements for procurement, installation and construction completion; and/or factors related to 103 Bogert Pool Renovation Project 8 construction cost including estimates of alternative designs or materials, preliminary budgets and possible economic factors. 3.2.4 The GC/CM may be required to perform exploratory work as a part of the Work. The GC/CM must conduct any exploratory work in accordance with industry standards, and must not interrupt services, unless required for the exploratory work and explicitly approved by Owner on a case by case basis. GC/CM must consult and obtain approval from the Architect and Owner prior to commencing exploratory work. 3.2.5 The GC/CM shall provide continuous in-progress review of design documents, including the documents generally described in the industry as Schematic Design Documents, Design Development Documents, and Construction Documents and provide input and advice on completeness, clarity, construction feasibility, alternative materials, availability of trades and subcontractors, and availability of labor and materials. The GC/CM shall review Owner design review comments and provide input on resolution of design comments. Owner acknowledges that the GC/CM is providing services in its capacity as a Contractor and not as a licensed design professional. 3.3 The GC/CM shall provide the following services related to the Project schedule: 3.3.1 The GC/CM shall prepare and periodically update a preliminary Project schedule for the Architect/Engineer’s review and Owner review and approval. 3.3.2 The GC/CM shall coordinate and integrate the preliminary Project schedule with the services and activities of the Owner, Architect/Engineer, and GC/CM. As design proceeds, GC/CM shall update the preliminary Project schedule to indicate proposed activity sequences and durations, milestone dates for receipt and approval of pertinent information, preparation and advertising of all bid packages, submittal of a GMP proposal, preparation and processing of shop drawings and samples, project phasing, delivery of materials or equipment requiring long-lead time procurement, and Owner’s occupancy requirements showing portions of the Project having occupancy priority, provided that the date(s) of Substantial Completion shall not be modified without Owner’s prior written approval. If preliminary Project schedule updates indicate that previously approved schedules may not be met, the GC/CM shall make appropriate recommendations to the Owner and Architect/Engineer. 3.3.3 The GC/CM shall make recommendations to Architect/Engineer and Owner regarding the phased issuance of Plans and Specifications to facilitate phased construction of the Work, if such phased construction is appropriate for the Project, taking into consideration such factors as economics, time of performance, availability of labor and materials, and provisions for temporary facilities. 3.4 Provide the following services relating to cost estimating: 3.4.1 When Schematic Design Documents have been prepared by the Architect and approved by the Owner, the GC/CM shall prepare for the review of the Architect and approval of the Owner, a detailed estimate with supporting data. 3.4.2 When 100% Design Development Documents, have been prepared by the Architect and submitted for review by the Owner and the GC/CM, and approved by the Owner, the 104 Bogert Pool Renovation Project 9 GC/CM shall prepare for the review of the Architect and approval of the Owner, a detailed estimate with supporting data. During the preparation of the Design Development Documents, the GC/CM shall update and refine this estimate at appropriate intervals agreed to by the Owner, Architect and GC/CM. 3.4.3 When 50% Construction Documents have been prepared by the Architect and submitted for review by the Owner and the GC/CM, and approved by the Owner, the GC/CM shall prepare a detailed estimate with supporting data for review by the Architect and approval by the Owner. During the preparation of the Construction Documents, the GC/CM shall update and refine this estimate at appropriate intervals agreed to by the Owner, Architect and GC/CM. 3.4.4 If any estimate submitted to the Owner exceeds previously approved estimates or the Owner’s budget, the GC/CM shall make appropriate recommendations to the Architect and Owner. 3.4.5 GC/CM shall notify the Owner and the design team immediately if any construction cost estimate appears to be exceeding the construction budget. 3.5 Perform the following services relating to Subcontractors and suppliers: 3.5.1 The GC/CM shall seek to develop Subcontractor and supplier interest in the Project, and shall furnish to the Owner and Architect for their information a list of possible Subcontractors and suppliers, including suppliers who may furnish materials or equipment fabricated to a special design, from whom competitive bids, quotes, or proposals (collectively, "Offers") will be requested for each principal portion of the Work. Submission of such list is for information and discussion purposes only and not for prequalification. The receipt of such list shall not require the Owner or Architect to investigate the qualifications of proposed Subcontractors and suppliers, nor shall it waive the right of the Owner or Architect later to object to or reject any proposed Subcontractor, supplier, or method of procurement. 3.5.2 The GC/CM shall provide input to the Owner and the design team regarding current construction market bidding climate, status of key subcontract markets, and other local/national economic conditions. GC/CM shall determine the division of work to facilitate bidding and award of trade and subcontracts, considering such factors as bidding climate, improving or accelerating construction completion, minimizing trade jurisdictional disputes, and related issues. 3.5.3 The GC/CM shall recommend to the Owner and Architect/Engineer a schedule for procurement of long- lead time items which will constitute part of the Work as required to meet the Project schedule, which shall be procured by the GC/CM upon execution of either a GMP Amendment or Early Work Amendment covering such procurement, and approval of such schedule by the Owner. The GC/CM shall expedite the delivery of long- lead time items. The GC/CM shall investigate, plan, and utilize a “just-in-time” delivery methodology, if feasible. 3.6 The GC/CM shall work with the Owner in identifying critical elements of the Work that may require special procurement processes, such as prequalification of Offerors, subcontractors, or alternative contracting methods. 3.7 Construction Phase Services. 105 Bogert Pool Renovation Project 10 3.7.1 Upon execution of an Early Work Amendment or GMP Amendment/Contract, the GC/CM shall provide Construction Phase Services as provided in the Contract Documents, including without limitation providing and paying for all materials, tools, equipment, labor and services, and performing all other acts and supplying all other things necessary to perform and complete the Work, as required by the Contract Documents, and to furnish to Owner a Project in accordance with the Contract Documents, capable of being legally occupied and fully used for its intended purposes upon completion of the Contract (or, as to an Early Work Amendment, to furnish such Work as is described in the Early Work Amendment). Construction Phase Services shall include CM Services performed during the Construction Phase. 3.7.2 Notwithstanding any other references to Construction Phase Services in this Contract, this Contract shall include Preconstruction Phase Services only unless (i) the parties execute a GMP Amendment or (ii) the parties execute an Early Work Amendment. 3.7.3 The parties may execute one or more Early Work Amendments identifying specific Construction Phase Services that must be performed in advance of establishment of the GMP, without exceeding a not-to- exceed budget, a not-to-exceed guaranteed maximum price, or a fixed price ("Early Work Price") to be stated in such Amendment, with such Amendment. If the Early Work Price is a not-to-exceed budget, then GC/CM shall be obligated to perform the Early Work only to the extent that the Cost of Work thereof, together with the GC/CM Fee, does not exceed the Early Work Price; however if GC/CM performs Early Work with a cost in excess of the Early Work Price the GC/CM shall pay such excess cost without reimbursement unless cost overruns are caused by conditions that constitute a change within the Contract or to incorporate Work not included in the GMP Amendment. If one or more Early Work Amendments are executed, the GC/CM shall diligently continue to work toward development of a GMP Amendment acceptable to Owner, which shall incorporate the Early Work Amendments. If Owner thereafter terminates the Contract prior to execution of a GMP Amendment, the provisions of the General Conditions of the Contract for Construction shall apply. 3.7.4 Prior to commencement of any Construction Phase effort, and in any event not later than mutual execution of the GMP Amendment, GC/CM shall provide to Owner a full performance bond and a payment security bond in the amount of the GMP. If an Early Work Amendment is executed, GC/CM shall provide such bond in the amount of the Early Work Price under the Early Work Amendment. GC/CM shall provide to Owner additional or replacement bonds at the time of execution of any subsequent Early Work Amendment or GMP Amendment, in each case prior to execution of the Amendment and the supplying of any labor or materials for the prosecution of the Work covered by the Amendment, and in each case in a sufficient amount so that the total bonded sum equals or exceeds the total Early Work Price or the GMP, as the case may be. In the event of a Scope Change that increases the GMP, GC/CM shall provide to Owner an additional or supplemental bond in the amount of such increase prior to performance of the additional Work. 3.8 Construction Management (CM) Services. Throughout the Preconstruction Phase and Construction Phase of the Project, the GC/CM shall provide CM Services, generally consisting of coordinating and managing the building process as an independent contractor, in cooperation with the Owner, Architect/Engineer and other designated Project consultants (the "Construction Principals"). CM Services shall include, but are not limited to: 106 Bogert Pool Renovation Project 11 3.8.1 Providing all Preconstruction Phase Services described above; 3.8.2 Developing and delivering schedules, preparing construction estimates, performing constructability review, analyzing alternative designs, studying labor conditions, coordinating and communicating the activities of the Construction Principals throughout the Construction Phase to all Construction Principals; 3.8.3 Continuously monitoring the Project schedule and recommending adjustments to ensure completion of the Project in the most expeditious manner possible; 3.8.4 Working with the Owner and the Architect/Engineer to analyze the design, participate in decisions regarding construction materials, methods, systems, phasing, and costs, and suggest modifications to achieve the goals of providing the Owner with the Project within the budget, GMP and schedule; 3.8.5 Providing Value Engineering ("VE") services ongoing through the Project. GC/CM shall develop cost proposals, in the form of additions or deductions from the GMP, including detailed documentation to support such adjustments and shall submit such proposals to Owner for its approval. GC/CM acknowledges that VE services are intended to improve the value received by Owner with respect to cost reduction or life-cycle costs of the Project; 3.8.6 Holding and conducting periodic meetings with the Owner and the Architect/Engineer to coordinate, update and ensure progress of the Work; 3.8.7 Submitting monthly written report(s) to the Owner. Each report shall include, but shall not be limited to, Project updates including (i) actual costs and progress for the reporting period as compared to the estimate of costs; (ii) explanations of significant variations; (iii) work completed; (iv) work in progress; (v) changes in the work; and (vi) other information as determined to be appropriate by the Owner. Additional oral or written updates shall be provided to the Owner as deemed appropriate by the GC/CM or as requested by the Owner; 3.8.8 Maintaining a daily log containing a record of weather, Subcontractors working on the site, number of workers, Work accomplished, problems encountered, safety violations and incidents of personal injury and property damage, and other similar relevant data as the Owner may reasonably require. The log shall be available to the Owner and Architect/Engineer on request; 3.8.9 Developing and implementing a system of cost control for the Work acceptable to Owner, utilizing the same cost control processes and methods as previous projects, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes. The GC/CM shall identify variances between actual and estimated costs and report the variances to the Owner and Architect/Engineer at regular intervals; 3.8.10 Cooperating with any and all consultants hired by Owner; 3.8.11 At Owner's request, cooperating and performing warranty Work for the Project through the expiration date of the applicable warranty period, and cooperating with any third party for inspection Work; 107 Bogert Pool Renovation Project 12 3.8.12 Assisting Owner with start-up of the Project. Such start-up may occur in phases due to phased occupancy; 3.8.13 If applicable, incorporating commissioning and inspection agents' activities into the Project schedule and coordinating Subcontractors required to participate in the commissioning and inspection process; 3.8.14 Performing all other obligations and providing all other services set forth in the Contract Documents in order to fully and properly perform and complete the Work as required by the Contract. 4. ARTICLE 4 – CONTRACT SUM AND GMP 4.1 Contract Sum. Owner shall pay the GC/CM the "Contract Sum" which shall equal the sum of the Preconstruction Fee, Early Work Amendments, the GMP Amendment, plus any Change Orders as applicable. 4.2 The GMP shall be determined in accordance with the formula set forth below and as described in 4.5. The "Cost of the Work" is defined in Article 5. Costs in excess of the GMP shall be paid by the GC/CM without reimbursement by Owner. Changes to the GMP shall only be authorized by Amendment or Change Order. 4.2.1 GMP = [GC/CM Fee X (Guaranteed Maximum Cost for Reimbursable expenses for General Conditions GMCR + Estimated Cost of the Work (ECoW exclusive of the Contractor’s Contingency))] + GMCR + Estimated Cost of the Work (ECoW inclusive of the Contractor’s Contingency) 4.2.2 GC/CM Fee % <see table below> is calculated on the Estimated CoW (excluding GC/CM's % <see table below> Construction Contingency, or lump-sum Contingency as agreed between Owner and Contractor) + Guaranteed Maximum Cost for Reimbursable expenses for General Conditions GMCR. Estimated Cost of Work GC/CM Fee % $0-$2.5M 8% $2.5M-$5M 6.75% $5M-$7.5M 5.50% $7.5M-$10M 4.25% 4.2.3 The Contractor will be due GC/CM Fee on the Construction Contingency. 4.3 Preconstruction Fee. The Preconstruction Fee is a NTE (Not to Exceed) amount for all Pre- Construction Services and shall be payable to GC/CM on a Time & Material cost reimbursement basis up to a maximum sum of $61,280.00 (Sixty One Thousand Two Hundred Eighty Dollars), which shall cover constructability review, value engineering, cost estimating, development of GMP, and all other Preconstruction Phase Services, expenses, reimbursements, and costs. If GC/CM's costs for provision of Preconstruction Phase Services exceed the maximum Preconstruction Fee, GC/CM shall pay such additional cost without reimbursement. GC/CM shall not be entitled to any GC/CM Fee upon the Preconstruction Fee. Owner shall pay the Preconstruction Fee on a cost-reimbursement basis with each application for payment during the Preconstruction Phase. If the total actual Preconstruction Fee is less than the maximum 108 Bogert Pool Renovation Project 13 Preconstruction Fee used for initial calculation of the GMP as provided above, the GMP shall be reduced by the difference; provided that Owner may direct instead that any applied portion of the maximum Preconstruction Fee be applied to Construction Phase Services, in which case the GMP shall not be reduced by the portion so applied. Except to the extent the parties may expressly agree to the contrary in the GMP Amendment, no Preconstruction Fee or other fee, compensation or reimbursement shall be payable to GC/CM with respect to Preconstruction Services performed after execution of the GMP Amendment. 4.4 Establishment of GC/CM Fee; Adjustments to GC/CM Fee. 4.4.1 The "GC/CM Fee" shall be a fixed percentage of the Estimated Cost of Work identified in the GMP Amendment, and shall be calculated as a percentage <see table> of the Estimated Cost of the Work at the time of establishment of the GMP. In making such calculation, the Estimated Cost of the Work shall exclude the Preconstruction Fee, the GC/CM Fee itself, but shall include Allowances, selected alternates, Fixed Cost for GC Work, and GMCR’s. The GC/CM Fee is inclusive of overhead and profit and all other indirect or non- reimbursable costs. Owner shall pay the GC/CM Fee ratably with each application for payment during the Construction Phase. In the case of Early Work, the GC/CM Fee shall be the above percentage multiplied by the actual Cost of the Early Work. Estimated Cost of Work GC/CM Fee % $0-$2.5M 8% $2.5M-$5M 6.75% $5M-$7.5M 5.50% $7.5M-$10M 4.25% 4.4.2 Notwithstanding any provision to the contrary, and unless the parties agree in writing to the contrary, any Amendment or Change Order that increases or decreases the GMP shall adjust the GC/CM Fee then in effect by multiplying the percentage shown in 4.4.1 by the change in the Estimated Cost of the Work reflected in such approved Amendment or Change Order. For any Amendment or Change Order that increases or decreases the GMP by more than 15%, parties may negotiate a variance to the contract Fee percentage. In addition, if the Contract is terminated for any reason prior to full completion of the Work (including, without limitation, termination during or following performance of Early Work), the GC/CM Fee shall be limited to the total GC/CM Fee multiplied by the percentage of Work completed and accepted at the time of termination. The GC/CM Fee percentage shall not be subject to adjustment for any other reason, including, without limitation, schedule extensions or adjustments, Project delays, unanticipated costs, negligence, or unforeseen conditions. 4.5 Determination of GMP. 4.5.1 GC/CM shall deliver to Owner a proposed GMP and GMP Supporting Documents at a time designated by Owner during the Preconstruction Phase. If any actual subcontract 109 Bogert Pool Renovation Project 14 Offers are available at the time the GMP is being established, GC/CM shall use those subcontract Offers as a basis in establishing the GMP. 4.5.2 As the Plans and Specifications may not be developed to the stage of biddable construction documents at the time the GMP proposal is prepared, the GC/CM shall provide in the GMP for further development of the Plans and Specifications by the Architect/Engineer that is consistent with the Contract Documents and reasonably identifiable and inferable therefrom. Such further development does not include such things as changes in scope, systems, quantities, kinds and quality of materials, finishes or equipment, all of which, if required, shall be incorporated by Change Order or Amendment with a corresponding GMP adjustment, if any. 4.5.3 The GC/CM shall include with its GMP proposal a written statement of its basis (the "GMP Supporting Documents"), which shall include at a minimum: 4.5.3.1 A list of the Plans and Specifications, including all addenda thereto and the conditions of the Contract, which were used in preparation of the GMP proposal. 4.5.3.2 A list of Allowances and a statement of their basis. 4.5.3.3 A list of the clarifications and assumptions made by the GC/CM in the preparation of the GMP proposal to supplement the information contained in the Plans and Specifications. 4.5.3.4 The proposed GMP, including a statement of the estimated cost organized by trade categories, allowances, contingency, and other items and the associated fees that comprise the GMP. 4.5.3.5 The Date of Substantial Completion upon which the proposed GMP is based, and a schedule of the Construction Documents issuance dates upon which the date of Substantial Completion is based. 4.5.4 The GC/CM shall meet with the Owner and Architect/Engineer to review the GMP proposal and the written statement of its basis. If the Owner or Architect/Engineer discovers any inconsistencies or inaccuracies in the information presented, they shall promptly notify the GC/CM, who shall make appropriate adjustments to the GMP proposal, its basis or both. 4.5.5 Prior to the Owner's acceptance of the GC/CM's GMP proposal and issuance of a Notice to Proceed, the GC/CM shall not incur any cost to be reimbursed as part of the Cost of the Work, except as specifically provided in an Early Work Amendment. 4.5.6 The Owner shall authorize and cause the Architect/Engineer to revise the Plans and Specifications to the extent necessary to reflect the agreed-upon assumptions and clarifications contained in the GMP Amendment. Such revised Plans and Specifications shall be furnished to the GC/CM in accordance with schedules agreed to by the Owner, Architect/Engineer and GC/CM. The GC/CM shall promptly notify the Architect/Engineer and Owner if such revised Plans and Specifications are inconsistent with the agreed- upon assumptions and clarifications. 4.5.7 The GMP shall include in the Cost of the Work only those taxes which are enacted at the time the GMP or Early Work is established. If adjustment is necessary, a Change Order will be issued. 110 Bogert Pool Renovation Project 15 4.5.8 The Guaranteed Maximum Price shall include the GC/CM's contingency, a sum established for the GC/CM's use, with Owner approval, to cover costs which are reimbursable as Cost of the Work but which are not the basis for a Change Order. This contingency is not available for Owner-directed design or scope changes and unforeseen or differing site conditions. GC/CM Contingency costs will be reviewed monthly by the Owner for conformance with the Contract. 4.5.8.1 None of the following shall constitute a reimbursable Cost of the Work, or a change order, but maybe paid for out of the GC/CM Contingency. Contractor acknowledges they assume the risk if the following circumstances arise: 4.5.8.1.1 Means and methods or changes in means and methods; 4.5.8.1.2 Extensions of time for weather delays, with the exception of weather events outside of the normal or historical weather for the area, which shall be reimbursed as a Change Order. Contractor must provide data to support a claimed exception under this provision; 4.5.8.1.3 Extensions of time or delays for other than Owner-directed design or scope changes, unforeseen conditions, or differing site conditions, with the exception that, with Owner approval, GC/CM may be allowed to utilize contingency for schedule acceleration; 4.5.8.1.4 Damaged work or non-conforming work; 4.5.8.1.5 Out-of-sequence work; 4.5.8.1.6 Work or delays attributable to subcontractors and suppliers; or, 4.5.8.1.7 Delays or costs resulting from GC/CM decisions, management of the project, errors, omissions, or negligence. 4.5.8.1.8 Under no circumstances will any GC/CM Contingency be used for negligence or violations of law, building codes, or regulations. 4.5.8.2 Contractor shall include a contingency solely for the Contractor’s use during the course of the Work to cover unexpected or unanticipated costs that fall within the scope of the GMP and do not constitute a Change Order. Contractor’s Contingency shall not be used for Owner directed changes, scope changes, changes in regulation or law or unforeseen conditions. Costs associated with these items shall be added to the GMP via change order.4.5.8.3 All claims for extension(s) of contract time shall be subject to Paragraph 4.17. 4.5.9 The GC/CM shall work with the Architect/Engineer and Owner to identify and confirm components and systems not specifically shown but required for a complete, fully functional Project. Owner will direct the Architect/Engineer to complete the final Construction Documents in accordance with the Project scope agreed upon by all parties at the time the GMP is established. In so doing, Owner acknowledges that GC/CM is providing its services as a Contractor and not a design professional. 4.5.10 Notwithstanding the level of detail represented in the GMP Supporting Documents, the GC/CM shall represent and warrant, at the time that it submits the GMP that the GMP includes the entire cost of all components and systems required for a complete, fully functional facilities in accordance with the Project scope agreed upon by all parties at the time the GMP is established. 111 Bogert Pool Renovation Project 16 4.5.11 In developing the GMP, the GC/CM shall include and identify such allowances and clarifications within the GMP as may be necessary to pay for elements that are required for a complete, fully functional Project. 4.6 Cancellation of Construction Phase Services. The Owner reserves the sole right at any time, with or without cause, to terminate or cancel any or all pre-construction services and/or not pursue a GMP Amendment/Contract with the GC/CM. 4.7 Failure to Furnish an Acceptable GMP. If the GC/CM does not furnish a GMP acceptable to Owner within Owner's target GMP range, or if Owner determines at any time in its sole discretion that the parties may fail to reach a timely agreement on a GMP acceptable to Owner, Owner may terminate this Contract without liability, and the GC/CM shall not receive additional compensation beyond the Preconstruction Fee under this Contract and sums due under any executed Early Work Amendment. Termination under this provision shall proceed as a termination for Owner's convenience. GC/CM further agrees that Owner shall not be liable for any damages whether actual, consequential or otherwise, for termination of the Contract under this provision. 4.8 Acceptance of GMP. Upon acceptance of the GMP by Owner, the parties shall execute a GMP Amendment/Contract. 4.9 Owner Savings. If the sum of the remainder of the GC/CM Construction Contingency, plus the actual and final Cost of the Work, is less than the GMP, the savings shall accrue to the Owner. 4.10 Allowance Work. 4.10.1 GC/CM shall not perform any Allowance Work without prior written approval by Owner for the Allowance Work and the price thereof. 4.10.2 Owner shall be entitled to apply any Allowance line items that have not been fully expended to other line item Allowances that have been fully expended, without any resulting increase in the GMP. 4.10.3 If the total Cost of the Allowance Work exceeds the total Allowances within the GMP, GC/CM shall not perform any Allowance Work in excess of such amount until either (i) the parties agree that the additional Allowance work will be performed within the then- current GMP or (ii) a GMP Amendment or Change Order is executed to increase the GMP by the excess cost of the Allowance work. 4.10.4 The Contract Sum shall not include any Allowance items not identified in the GMP Amendment or the GMP Supporting Documents. 4.10.5 If at the Final Completion of the Project, any portion of the Allowance funds remains unexpended, the GMP shall be reduced by a corresponding amount via a Change Order or Amendment. 4.11 Reallocating Projected Cost Under-runs after Bid (Offer) Buyout. As soon as possible after the awarding of the Work to the primary Subcontractors, GC/CM shall review projected costs and provide the Owner with a buy-out status report showing any projected cost under-runs, reconciling accepted Offers and other reasonably anticipated costs, to the cost estimate used by GC/CM to establish the GMP. This report shall be updated on a monthly basis and until such time that the buyout is complete. GC/CM shall include with its report any underlying documentation requested by Owner used to develop or support such report. GC/CM shall also consider the reduced risk associated with known subcontracting costs, and the impact that 112 Bogert Pool Renovation Project 17 reduced risk has on the amount of the GC/CM’s Contingency. The parties shall negotiate in good faith to execute a Change Order transferring an appropriate portion of any projected cost under- runs to an Owner-controlled contingency fund, separate from the GC/CM Construction Contingency, to be held within the GMP to pay for additional costs arising from (a) any Owner- directed or approved change to the Work, (b) schedule changes that would otherwise entitle GC/CM to an increase in the GMP, (c) Allowance items after exhaustion of all Allowances, (d) selection by Owner of more expensive alternates than those used for calculation of the GMP, (e) Owner selection of substitutions that increase the Cost of the Work, or (f) any other costs which otherwise would entitle GC/CM to an increase in the GMP. Transfer of an appropriate portion of the under-runs to an Owner-controlled contingency shall occur no earlier than 60% construction completion as defined by the approved Schedule of Values and most recent Pay Application unless agreed to by both parties. Amount shall be held within the project GMP prior to this. Utilization of Contractor Contingency shall be utilized prior to utilization of any buy-out savings within the GMP, for which use shall be agreed to by Owner. 4.12 Notice to Proceed. If Construction Phase Services are added to the Contract, then a notice to proceed will be issued by the Owner to begin the designated or full Construction Phase Services (“Notice to Proceed”). It is anticipated that the Notice to Proceed will be issued on or about September 30, 2025, with the actual date to be provided in the GMP Amendment/Contract. A separate Notice to Proceed shall be issued for each Early Work Amendment, if any. 4.13 Completion of Project. The GC/CM shall achieve Substantial Completion of the entire Work not later than the date fixed in the Guaranteed Maximum Price Amendment. 4.14 Time is of the Essence. All time limits stated in the Contract Documents are of the essence. 4.15 Time Extensions. Notwithstanding provisions for Contract time extensions, Owner and GC/CM agree that timely completion of the Work is essential to the success of the Project, and that approval for time extension shall be granted only as a last resort. 4.15.1 GC/CM agrees to make reasonable effort to recover time from delays that are the GC/CM’s responsibility and shall not consider this as a compensable, Owner-directed, or forced acceleration. 4.15.2 If a compensable time extension is granted by the Owner, the GC/CM shall be limited to $(to be defined in the GMP Amendment) per day extended overhead (office and field). 4.16 Liquidated Damages. The GC/CM acknowledges that the Owner will sustain damages as a result of the GC/CM's failure to substantially complete the Project in accordance with the Contract Documents. These damages may include, but are not limited to delays in completion, use of the Project, engineering costs to complete the Project, and costs associated with Contract administration and use of temporary facilities. Liquidated damages also include construction administration expenses, including but not limited to costs of the Architect/Engineer, as a result of time extensions or delays for other than Owner-directed design or scope changes, weather delays, unforeseen conditions, or differing site conditions. The GC/CM and the Owner acknowledge that the actual amount of damages would be difficult to determine accurately and agree that that the following liquidated damages figure represents a reasonable estimate of such damages and is not a penalty: $1000.00 Per Day. 4.16.1 The GC/CM agrees to pay to the Owner the liquidated damage sums agreed to by the parties for each day of delay and further agrees that Owner may deduct such sums from 113 Bogert Pool Renovation Project 18 payments the Owner otherwise owes to GC/CM under the Contract. If such deduction does not result in payment to Owner of the assessed liquidated damages in full, GC/CM shall promptly pay any and all remaining sums due to the Owner upon demand. 4.17. Resolution of Claims, Disputes, and Controversies: 4.17.1. Either party may submit a Claim to the other party in accordance with the Contract. After submission of the Claim, the parties will attempt in good faith to resolve the Claim through negotiation. 4.17.2. Upon receipt of a Claim against the Contractor or at any time thereafter, the Owner may, but is not obligated to, notify the surety, if any, of the nature and amount of the Claim. If the Claim relates to a possibility of a Contractor’s default, the Owner may, but is not obligated to, notify the surety and request the surety’s assistance in resolving the controversy. 4.17.3. A Claim, subject to or related to liens or bonds shall be governed by applicable law regarding notices, filing deadlines, and resolution of such Claim prior to any resolution of such Claim, by mediation, or by arbitration, except for claims made by the Owner against the Contractor’s bonds. 4.17.4. Pending final resolution of a Claim including mediation, arbitration (if mutually agreed to by the Parties), or court proceedings, unless otherwise mutually agreed in writing, the Contractor shall proceed diligently with performance of the Contract and the Owner shall continue to make payments in accordance with the Contract on Work or amounts not in dispute. 5. ARTICLE 5 – COSTS OF THE WORK (REIMBURSABLE, INCLUDED IN THE GMP) 5.1 Cost of the Work. The term "Cost of the Work" shall mean the costs as described herein. The Cost of the Work shall include only those items necessarily and reasonably incurred by GC/CM in the proper performance of the Work and specifically identified in this Article, and only to the extent that they are directly related to the Project. 5.1.1 Labor Costs. 5.1.1.1 Wages paid for all labor and construction workers directly employed by the GC/CM in performance of the work. 5.1.1.2 Wages and salaries of the GC/CM's supervisory personnel (i) whether stationed at the site or district office, but only for that portion of time they are providing services related to the project, or (ii) engaged at factories, workshops or on the road, in expediting the production or transportation of materials or equipment required for the Work with Owner, or otherwise engaged and off the site when specifically related to the Project, in each case under this clause (iii) only with Owner's prior written approval, and only for that portion of their time directly required for the Work. 5.1.1.3 Cost of all benefits, taxes, insurance, contributions, assessments and benefits required by law or collective bargaining contracts and, for personnel not covered by such contracts, customary benefits such as Social Security, Medicare/Medicaid, sick leave, medical and health benefits, holidays, vacations and pensions, provided such costs are based on wages and salaries included in the Cost of the Work. 114 Bogert Pool Renovation Project 19 5.1.2 Subcontract Costs. GC/CM's actual payment to Subcontractors pursuant to GC/CM's contract with such Subcontractor for the Work on the Project. No amount paid by or payable to any such Subcontractor other than the fixed or cost reimbursement price of its subcontract shall be included in the Cost of the Work, unless otherwise approved in writing by Owner. 5.1.3 Costs of Materials, Supplies, and Equipment incorporated in the Work. 5.1.3.1 Costs, including transportation, of materials, supplies, and equipment incorporated or to be incorporated in the completed Work. 5.1.3.2 Costs for storage on or off site (including applicable insurance), inspection, and testing of materials, supplies and equipment unless specifically noted to be paid by the Owner. 5.1.3.3 Costs of materials in excess of those actually installed but required to provide reasonable allowance for waste and for spoilage. Unused excess materials, if any, shall be delivered to Owner at the completion of the Work or, at Owner's option, shall be sold by the GC/CM. Net amounts realized, if any, from such sales shall be credited to Owner as a deduction from the Cost of the Work. 5.1.4 Costs of Miscellaneous Equipment and Other Items; Equipment Rental Charges. 5.1.4.1 Costs, including transportation, installation, maintenance, dismantling, removal, and disposal, of materials, supplies, temporary facilities, machinery, equipment, and hand tools not customarily owned by the construction workers, which are provided by the GC/CM in the performance of the Work; and cost less salvage value on such items if not fully consumed, whether sold to others or retained by the GC/CM; provided that Owner at Owner's option may require that GC/CM deliver to Owner (at no charge) at the end of the Project any of such items procured for this Project. Cost for items previously used by the GC/CM shall mean fair market value. GC/CM shall charge no additional administrative or other mark-up for purchased items. 5.1.4.2 Rental charges for temporary facilities, machinery, equipment and hand tools not customarily owned by the construction workers, which are provided by the GC/CM at the site, whether rented from the GC/CM or others, and costs of transportation, installation, minor repairs and replacements, dismantling and removal thereof. Rates and quantities of equipment rented shall be according to industry standards, shall not exceed the standard rate paid at the place of the project, and shall not exceed acquisition costs, and for individual items exceeding $10,000, will be subject to Owner's prior approval. GC/CM shall deliver to Owner a list of published rates from time to time at Owner's request. For all items rented or leased, the GC/CM shall charge Owner only the rental charge incurred by GC/CM with no additional administrative or other mark-up. GC/CM shall make efforts and use its best skills and judgment to procure equipment in the most expeditious and economical manner consistent with the interest of the Owner. Efforts shall include, but not be limited to, providing Owner with a rent/buy analysis so that Owner may elect for GC/CM to procure the item in lieu of rental if the facility at issue is expected to be rented for six months or longer. Such 115 Bogert Pool Renovation Project 20 rent/buy analysis shall include, where available, a leasing rate commensurate with the expected term of rental of the facility at issue. 5.1.5 Costs of removal of debris from the site. 5.1.6 Cost of internet connection, long-distance telephone calls, postage and parcel delivery charges, telephone service at the site and reasonable petty cash expenses of the site office, computers and other supporting administrative equipment and furnishings, but only to the extent such costs are for the benefit of the Work. 5.1.7 That portion of the travel and subsistence expenses of the GC/CM's personnel determined by Owner to be reasonable and necessary incurred while traveling in discharge of duties connected with the Work. Main office staff travel shall not be reimbursed unless approved in advance by Owner. 5.1.8 Other Costs. 5.1.8.1 Premiums and deductibles for insurance directly attributable to this Contract. 5.1.8.2 Payment and Performance bonds. 5.1.8.3 Sales, use or similar excise taxes imposed by a governmental authority which are directly related to the Work and for which the GC/CM is liable. 5.1.8.4 Fees and assessments for the trade permits and for other permits, licenses and inspections for which the GC/CM is required by the Contract Documents to pay. Plan review fees, assessments, and impact fees are the responsibility of the Owner. 5.1.8.5 GC/CM deposits lost for causes other than the GC/CM's fault or negligence. 5.1.8.6 Costs of drawings, Specifications and other documents required to complete the Work, except as provided by Owner or Architect/Engineer. 5.1.8.7 Losses, expenses, or damages during construction and warranty that did not arise from the negligence or wrongful conduct of the GC/CM or its subcontractors. 5.1.8.8 Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by Owner. 5.1.9 Repairs to Damaged, Defective or Nonconforming Work. The Cost of the Work shall also include costs which are incurred by the GC/CM in taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property. 5.2 The Guaranteed Maximum Cost for Reimbursable expenses for General Conditions Work (GMCR). GC/CM shall be paid a maximum sum as agreed in the GMP Amendment, as payment for the GC Work, including all labor, materials, and direct and indirect costs thereof. To the extent any GC Work is otherwise described above in this Article, GC/CM’s compensation for the same is included in the Cost for GC Work and shall not otherwise be charged as Cost of the Work. The Cost for GC Work, less 5% retainage thereon, shall be paid in equal installments monthly over the number of months of the scheduled Construction Phase, commencing with the first progress billing after commencement of the scheduled Construction Phase. However, no adjustment in the 116 Bogert Pool Renovation Project 21 amount payable for General Conditions Work will be made if the actual construction period is shorter or longer than the number of months scheduled for the Construction Phase, unless the construction period is extended because of an Owner delay or due to unforeseeable conditions. Should the GC/CM spend less than planned on GMCR’s, the GC/CM retains that balance. 5.3 GC/CM Overhead. GC/CM shall be paid in accordance with these Conditions for items including home office overhead, and is part of the GC/CM Fee. 6. ARTICLE 6 – COSTS OF THE WORK (NOT REIMBURSABLE, INCLUDED IN THE GMP) 6.1 Costs Excluded from Cost of Work. The following shall not be included in the Cost of the Work: 6.1.1 Salaries and other compensation of the GC/CM's personnel stationed at the GC/CM's principal office or offices other than the site office except as allowed under Articles 5. 6.1.2 Expenses of the GC/CM's principal office and offices other than the site office. 6.1.3 Any overhead and general expenses, except as may be expressly included in Article 5. 6.1.4 GC/CM's capital expenses, including interest on the GC/CM's capital, employed for the Work. 6.1.5 Rental cost of machinery and equipment, except as provided in Article 5. 6.1.6 Costs due to the fault or negligence of the GC/CM, Subcontractors, suppliers, anyone directly or indirectly employed by any of them, or for whose acts any of them may be liable. 6.1.7 The cost of correction of any repair work, nonconforming or defective work, or warranty work in excess of the GMP. 6.1.8 Merit, safety, or other incentive payments, bonuses or awards, or any expenses in connection therewith. 6.1.9 Legal, mediation, or arbitration fees, costs, and expenses except as specifically provided in the Contract Documents. 6.1.10 Fines and penalties. 6.1.11 Except for Early Work, the cost of Preconstruction Phase Services. 6.1.12 The Cost of the Work for GC Work in excess of the Fixed Cost for GC Work unless such fixed costs are exceeded by other terms included in this Agreement. 6.1.13 Any costs in excess of the GMP. 7. ARTICLE 7 – CHANGES IN THE WORK 7.1 Price Adjustments. Adjustments to the Guaranteed Maximum Price required by changes in the Work shall be determined by agreement of the parties in writing. If the adjustment is based upon fixed pricing or unit pricing: 7.1.1 The overhead and profit markup for the GC/CM shall be limited to the GC/CM Fee adjustment except for self-performed packages that GC/CM is awarded on a competitive basis consistent with other Subcontract bid packages which may include overhead and profit associated with the self-performed work; 117 Bogert Pool Renovation Project 22 7.1.2 The increase or decrease in the Estimated Cost of the Work, other than for subcontract work, shall be calculated pursuant to Articles 5 and 6 above, instead of being based on GC/CM's direct costs; and, 7.1.3 In calculating adjustments to subcontracts, unless the parties agree otherwise, the change shall be limited to the Subcontractor's Direct Costs plus the supplemental mark- up provided in the General Conditions of the Contract for Construction, and shall not be modified by Articles 5 and 6 above. 7.2 Adjustments to GMP. Adjustments to the GMP after execution of the GMP Amendment may be made only (i) in the event of Scope Changes or (ii) as otherwise expressly provided in this Contract, and then only in accordance with the following procedure: 7.2.1 GC/CM shall review subsequent iterations of the Plans and Specifications as they are prepared to determine whether, in the opinion of GC/CM, they result in a Scope Change so that it can be determined if an adjustment to the GMP is warranted. 7.2.2 Changes to the GMP shall be initiated by written notice by one party to the other. GC/CM shall deliver any such GMP Change Request to Architect/Engineer and Owner’s Authorized Representative within thirty (30) days after event of any Scope Change if, in GC/CM's opinion, it constitutes grounds for adjustment of the GMP. Any GMP Change Request shall include a proposal as to the appropriate GMP adjustment with respect to the Scope Change at issue. 7.2.3 GC/CM shall submit its GMP Change Requests as soon as possible, and GC/CM shall not be entitled to claim a GMP increase unless GC/CM submitted a GMP Change Request to Owner’s Authorized Representative and to Architect/Engineer within the earlier of (a) thirty (30) Days after GC/CM has received the information constituting the basis for the claim, or (b) as to Work already solicited, prior to commencement of the portion of the Work for which GC/CM intends to claim a Scope Change; and (c) in any event, prior to GC/CM's signing of a Change Order for the Scope Change. 7.2.4 Owner may, at any time, direct a reduction in the scope of the project, which shall include Owner's basis for such request, and shall then form the basis of a deductive change order to the GMP which shall be negotiated in good faith between the Owner and Contractor. 7.2.4.1 During the development of the project budget and GMP, Contractor’s Contingency shall be no more than 8% at 100% Design Development stage of the documents, and 5% at the completion of 100% Construction Documents. 7.2.5 GC/CM shall work with Architect/Engineer to reconcile all differences in its GMP Change Request with Architect/Engineer within seven (7) days from the date of submission of the GMP Change Request. "Reconciled" means that the GC/CM and Architect/Engineer have verified that their assumptions about the various categories are the same, and that identifies the reason for differences in the GMP Change Request and the Architect/Engineer's position. GC/CM shall submit the Reconciled GMP Change Request to Owner, which submission shall be a condition to any GC/CM claim for a GMP increase. 118 Bogert Pool Renovation Project 23 7.2.6 If the Reconciled GMP Change Request is not acceptable to Owner, GC/CM agrees to work with the Owner and the Architect/Engineer to provide a GMP Change Request that is acceptable to Owner. 7.2.7 GC/CM agrees to make all records, calculations, drawings and similar items relating to GMP Change Request available to Owner and to allow Architect/Engineer and Owner access and opportunity to view such documents electronically or at GC/CM's offices. 7.2.8 GMP increases, if any, shall not exceed the increased Cost of the Work arising from the Scope Change (whether based on agreed fixed pricing, or the estimated Cost of the Work increase based on cost- reimbursable pricing), reconciled in accordance with the above provisions, as arising from the incident justifying the GMP increase, plus the GC/CM Fee and Gross Receipt Tax applicable to such change in the Cost of the Work. In the event of deductive change orders after the establishment of the GMP, GC/CM’s fee deduction shall be calculated as [Reduction in Cost of Work] * [0.5 * GC/CM Fee]. 7.2.9 Except as provided in this Article 7.2, adjustments to the GMP shall be reconciled in accordance with the General Conditions of the Contract for Construction. 7.2.10 Execution by Owner. If Architect/Engineer is the Owner’s Authorized Representative, then notwithstanding any provision in the Contract to the contrary, Architect/Engineer has no authority to execute Change Orders or Amendments on behalf of Owner, and only duly authorized personnel of Owner may do so. 8. ARTICLE 8 – SUBCONTRACTS AND OTHER CONTRACTS 8.1 General Subcontracting Requirements. 8.1.1 Other than Work performed by the GC/CM, the GC/CM shall subcontract the Work to Subcontractors other than the GC/CM and its Affiliates. 8.1.2 The GC/CM shall comply with the laws of the State of Montana and the City of Bozeman with regard to the procurement of subcontractors and suppliers. 8.2 GC/CM's Obligations under Subcontracts. 8.2.1 No use of a Subcontractor or supplier shall relieve the GC/CM of any of its obligations or liabilities under the Contract. Except as may expressly otherwise be provided in this Contract, the GC/CM shall be fully responsible and liable for the acts or omissions of all Subcontractors and suppliers including persons directly or indirectly employed by them. The GC/CM shall have sole responsibility for managing and coordinating the operations of its Subcontractors and suppliers, including the settlement of disputes with or between the GC/CM and any such Subcontractor or supplier. 8.2.2 The GC/CM shall include in each subcontract and require each Subcontractor to include in any lower tier subcontract, any provisions necessary to make all of the provisions of the Contract Documents, including the GC/CM’s project schedule, fully effective as applied to Subcontractors. GC/CM shall indemnify Owner for any additional cost based on a subcontractor claim which results from the failure of GC/CM to incorporate the provisions of this Contract in each subcontract. The GC/CM shall provide all necessary Plans, Specifications, Hazardous Materials reports and instructions to its suppliers and Subcontractors to enable them to properly perform their work. 119 Bogert Pool Renovation Project 24 8.2.3 Retainage from Subcontractors. Except with the Owner's prior approval, payments to Subcontractors shall be subject to retainage of no more than 5%. The Owner and the GC/CM shall agree upon a mutually acceptable procedure for review and approval of payments and retainage for Subcontractors. 8.3 Subcontractor Selection. 8.3.1 Unless otherwise provided in the Request for Proposals, this Article, and the direction of the Owner, the selection of all Subcontractors and suppliers shall be made by competitive offers in a manner that will not encourage favoritism, bias, or substantially diminish competition. 8.3.2 GC/CM shall submit to the Owner its proposed procurement documents for review and comment before they are issued for solicitation. GC/CM shall consider and respond to all Owner comments regarding any proposed offer packages. As offers are received, GC/CM shall submit to the Owner an offer comparison in a mutually agreeable form together with any specific back-up requested by Owner. The competitive process used to award subcontracts by the GC/CM may be monitored by the Owner; provided that such monitoring shall not excuse GC/CM from compliance with the subcontracting requirements of this Contract. GC/CM shall cooperate in all respects with Owner's monitoring. The Owner shall be advised in advance of and be given the opportunity to be present at offer openings, and GC/CM shall provide him or her with a summary or abstract of all Offers in form acceptable to the Owner, and copies of particular offers if requested, prior to GC/CM's selection of Offerors. Prior to opening offers, the GC/CM agrees to disclose in writing to Owner any financial interest it has in any such Subcontractor, supplier or other contracting party whenever such Subcontractor, supplier or contracting party intends to compete on any Project work, directly or indirectly, including whether such party is an Affiliate of GC/CM. GC/CM shall also disclose seven (7) days in advance if they will be providing an offer as a self-performed scope of work. 8.3.3 The following minimum requirements apply to the Subcontract solicitation process: 8.3.3.1 For procurements with an estimated value of more than $80,000, solicitations will be advertised by bids as required by 7-5-4302, MCA. The GC/CM shall obtain two written quotes or may advertise for bids for procurements over five thousand dollars ($5,000.00) up to eighty thousand dollars ($80,000.00). 8.3.3.2 All bid openings for Subcontracting and Self-Performed Work shall be open and available to the public, the Owner, and the Architect/Engineer, regardless of the bid opening location. 8.3.3.3 Unless specific other prior arrangement has been made with Owner, all offers will be written (hardcopy, email, or facsimile), and submitted to a specific location at a specific time. GC/CM shall time-stamp all offers as received. Subcontractors must be qualified to perform the Work for this Project by being appropriately registered and in compliance with all laws of the State of Montana. 8.3.3.4 If fewer than three (3) offers are submitted in response to any solicitation (inclusive of any offer submitted by GC/CM), prior written approval by Owner shall be required to accept the offer. Field Work and/or Subcontracting/Self- Performed Work by the GC/CM shall be competitively bid, with solicitations 120 Bogert Pool Renovation Project 25 advertised per MCA 7-5-4302, and subject to the same Owner review and oversight as all other competitively bid subcontractor scopes of work. 8.3.3.5 GC/CM may develop and implement a prequalification process for particular solicitations, followed by selection of successful offers among those offerors that GC/CM determines meet the prequalification standards, with Owner’s prior approval of such prequalification process. 8.3.3.6 GC/CM shall comply, and require Subcontractor compliance with, State of Montana Department of Labor & Industry prevailing wage rates as follows: 8.3.3.6.1 The Contractor and all subcontractors at any level or tier of the Work shall give preference to the employment of bona fide Montana residents in the performance of the Work and shall 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. (18-2-403, MCA) 8.3.3.6.2. The Commissioner of The Montana Department of Labor and Industry (DOLI) has established the standard prevailing rate of wages in accordance with 18-2-401 and 18-2-402, MCA. Contractor shall utilize the "State of Montana, Prevailing Wage Rates" in effect at the time of execution of the Contract. The Commissioner of the Montana DOLI has established the resident requirements in accordance with 18-2-409, MCA. The Contractor and all subcontractors at any level or tier of the Work shall direct any and all questions concerning prevailing wage and Montana resident issues for all aspects of the Work to DOLI. 8.3.3.6.3 The Contractor and all subcontractors at any tier or level of the Work, and as determined by the Montana DOLI, shall classify all workers in the project in accordance with the State of Montana, Prevailing Wage Rates. In the event the Contractor is unable to classify a worker in accordance with these rates he shall contact DOLI for a determination of the classification and the prevailing wage rate to be paid. 8.3.3.6.4 The Contractor and all subcontractors at any tier or level of the Work shall be responsible for obtaining wage rates for all workers prior to their performing any work on the project. The Contractor is required to pay and insure that its subcontractors at any tier or level and others also pay the prevailing wage determined by the DOLI, insofar as required by Title 18 of the MCA and the pertinent rules and standards of DOLI. 8.3.3.6.5. It is not the responsibility of the Owner to determine who classifies as a subcontractor, sub- subcontractor, material man, supplier, or any other person involved in any aspect of the Work at any tier or level. All such determinations shall be the sole responsibility of the Contractor, subcontractors, sub-subcontractors, material men, suppliers and others involved in the project at any tier or level. The Contractor, subcontractors, sub-subcontractors, material men, suppliers and others involved in the project shall defend, indemnify and hold harmless the Owner from all claims, attorneys’ fees, damages and/or awards involving prevailing wage or Montana resident issues. Any changes to wages or penalties for failure to pay the correct wages will be the sole responsibility of the Contractor and/or his subcontractors and no further charges or claims shall be made 121 Bogert Pool Renovation Project 26 to the Owner. If the parties mutually agree or an arbitrator or court determines that any change in wages is due and any part is attributable to the Owner, the Owner's sole liability shall be for the amount of wages ordered only and not for other expenses, charges, penalties, overhead, profit or other mark-ups. 8.3.3.6.6. In accordance with 18-2-422(1) MCA, each job classification’s standard prevailing wage rate, including fringe benefits, that the contractors and employers shall pay during construction of the project is included herein by both reference to DOLI’s “Building” or ‘Heavy/Highway” schedules, as applicable to the project, and as part of these Contract Documents. 8.3.3.6.7. The Contractor and every employer, including all subcontractors at any tier or level, is required by 18-2-422(2) MCA to maintain payroll records in a manner readily capable of being certified for submission under 18-2-423 MCA, for a period of not less than 3 years after the contractor's, subcontractor’s, or employer's completion of work on the project or the Final Acceptance by the Owner, whichever is later. 8.3.3.6.8. Each contractor is required by 18-2-422(3) MCA to post in a visible and accessible location a statement of all wages and fringe benefits in compliance with 18-2-423. 8.3.3.7 Owner may at its sole discretion, require GC/CM to re-solicit for Offers based on the same or modified documents. If GC/CM does receive a responsive offer within the initial solicitation, Owner shall be responsible for all cost and schedule overruns due to Owner directed re-solicitation except where cause of re- solicitation is the fault of the GC/CM. 8.3.3.8 GC/CM shall review all Offers and shall work with Offerors to clarify Offers, reduce exclusions, verify scope and quantities, and seek to minimize work subsequently awarded via the Change Order process. 8.3.3.9 The GC/CM will document any and all discussions, questions and answers, modifications and responses to or from any Offeror and ensure that the same are distributed to all Offerors, and Owner shall be entitled to inspect such documentation on request. 8.3.3.10 GC/CM shall determine the lowest Offer for each solicitation that meets GC/CM’s reasonable performance standards for the components of the Work at issue; provided that if GC/CM determines it is unable to execute a suitable subcontract with such Offeror, GC/CM may, with Owner’s prior approval, execute a subcontract with the second-lowest Offeror. This paragraph does not preclude the award of a sub-contract to any Offeror selected as part of a pre-qualification process. 8.3.4 With authorization by Owner, Work may be subcontracted on other than a low price basis, including without limitation, through competitive negotiation. As a condition to its authorization, Owner may require GC/CM's agreement to establish and implement qualification and performance criteria for Offerors, including a scoring system within requests for proposals. Examples include: where there are single fabricators of materials; 122 Bogert Pool Renovation Project 27 special packaging requirements for Subcontractor work; design-build work or, where an alternative contracting method can be demonstrated to clearly benefit Owner. 8.3.5 GC/CM shall notify Owner in writing in advance before award of any proposed Subcontract, which notice shall include summaries in a form acceptable to Owner of all Offers received for the Subcontract at issue. Owner reserves the right to disapprove any proposed Subcontractors, suppliers and Subcontract or supply contract awards, based on legal standards of responsibility. Owner shall not unreasonably disapprove any proposed Subcontractor or supplier and increased costs due to Owner's disapproval shall be cause for an increase in the GMP. 8.3.6 GC/CM's subcontracting records shall not be considered public records; provided, however, that Owner and other agencies of the State shall retain the right to audit and monitor the subcontracting process in order to protect the Owner's interests. 8.4 GC/CM Field Work, Subcontracted/Self-Performed Work by GC/CM. 8.4.1 With consent of the Owner, the GC/CM or its Affiliate may bid and compete for Field Work and/or Subcontracted/Self-Performed Work with its own forces. All field work and/or subcontracting/self-performed work by the GC/CM shall be competitively bid as provided in Article 8. 8.4.2 Except as provided in Article 8, any other portion of the Work proposed to be field work and/or subcontracted/self-performed by the GC/CM, including without limitation provision of any materials, equipment, or supplies, shall be subject to the provisions of Article 8. 8.4.3 When assembling and using bid packages, for those items for which the GC/CM intends to submit a competing Offer for Self-Performed Work and after approval by the Owner, such intent must be publicly announced with the solicitation for bids required by this Article, and the Owner notified in writing that this announcement has been made. Any GC/CM competing Offer shall be forwarded to the Owner prior to the bid opening. All Offers for this work shall be publicly available by GC/CM at an announced time, date, and place as all other offers. 8.4.4 For all field work and/or subcontracted/self-performed work, the GC/CM shall at a minimum provide separate project management, foremen, supervision, accounting, etc. as if it were any other separate subcontracting entity, unless prior written approval is granted by the Owner. The GC/CM is expressly prohibited from using the personnel, positions, general conditions costs, and overhead from directly supervising and managing any field work and/or subcontract/self-performed work, unless specific prior written approval is granted by the Owner. 8.5 Protests. GC/CM, acting as an independent contractor, shall include in the competitive process to award all subcontracts, a protest process for Subcontractors and suppliers that are competing Offerors, which process shall be subject to approval by Owner. GC/CM shall be solely responsible for resolving procurement protests of Subcontractors and suppliers. GC/CM shall indemnify, defend, protect and hold harmless Owner from and against any such procurement protests and resulting claims or litigation unless protest exists in whole or in part by the Owner’s actions, directions, or negligence, who shall then share its proportionate responsibility for claims or litigation. GC/CM shall act as an independent contractor, and not an agent of Owner, in connection with any procurement protest. The provisions of this Article are solely for the benefit of 123 Bogert Pool Renovation Project 28 Owner, and do not grant any rights or remedies (including third party beneficiary rights) to any Offer or other protester, in connection with any procurement protest or claim. To the extent that an order is issued by a court of competent jurisdiction that finds the City violated a legal standard of responsiveness in rejecting a subcontractor under its authority granted in section 8.3.5, Owner shall be responsible for owner’s own defense and indemnification. 9. ARTICLE 9 – RECORDS, ACCOUNTING, AUDITING 9.1 Accounting and Audit Access. The GC/CM shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Contract; the accounting and control systems shall be satisfactory to Owner. Owner and Owner's representatives, including the City of Bozeman’s accountants and auditors, shall be afforded reasonable and regular access to the GC/CM's records, books, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to this Contract, and the GC/CM shall preserve these for a period of three (3) years after final payment, or for such longer period as may be required by law. 9.2 Periodic and Final Audits. Owner may, at its discretion, perform periodic audits of the Cost of the Work and any other reimbursable costs associated with the Project. Owner agrees to provide reasonable notice to Contractor prior to performing an audit. Owner intends to conduct a final audit of reimbursable costs prior to the Contract closeout. The GC/CM shall cooperate fully with Owner in the performance of such audits. Disputes over audit findings or conclusions shall be subject to the process set forth in the General Conditions. 10. ARTICLE 10 – REPRESENTATIONS AND WARRANTIES 10.1 Representations. GC/CM represents and warrants to Owner as of the effective date of this Contract: 10.1.1 it is qualified to do business as a licensed general contractor under the laws of the State of Montana, and has all requisite corporate power and corporate authority to carry on its business as now being conducted; 10.1.2 it has full corporate power and corporate authority to enter into and perform the Contract and to consummate the transactions contemplated hereby; GC/CM has duly and validly executed and delivered the Contract to Owner and that the Contract constitutes the legal, valid and binding obligation of GC/CM, enforceable against GC/CM in accordance with its terms, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law); 10.1.3 GC/CM's execution and delivery of the Contract and the consummation of the transactions contemplated hereby will not conflict with or result in a material breach of any terms or provisions of, or constitute a material default under, (i) GC/CM's Articles of Incorporation or Bylaws; (ii) any note, bond, mortgage, indenture, license, lease, contract, commitment, agreement or other instrument or obligation to which GC/CM is a party or by which GC/CM may be bound; or (iii) any statute, order, writ, injunction, decree, rule or regulation applicable to GC/CM; 10.1.4 no material consent, approval, authorization, declaration or other order of, or registration or filing with, any court or regulatory authority or any third person is required for the valid 124 Bogert Pool Renovation Project 29 execution, delivery and performance of the Contract by GC/CM or its consummation of the transactions contemplated hereby; 10.1.5 there is no action, proceeding, suit, investigation or inquiry pending that questions the validity of the Contract or that would prevent or hinder the consummation of the transactions contemplated hereby; and, 10.1.6 the GC/CM's Senior Project Manager or Division Manager (if assigned by GC/CM) are duly appointed representatives and each has the authority to bind the GC/CM to any and all duties, obligations and liabilities under the Contract Documents and any Amendments or Change Orders thereto. 11. ARTICLE 11 – MISCELLANEOUS 11.1 Insurance/Indemnification: Contractor agrees to release, defend, indemnify, and hold harmless the Owner, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the Owner) 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 Owner, but only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them, or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss, or expense is caused in part by a party indemnified hereunder. 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 Owner 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 Owner. Should the Owner be required to bring an action against the Contractor to assert its right to defense or indemnification under this Contract or under the Contractor’s applicable insurance policies required below the Owner 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 Owner for a claim(s) or any portion(s) thereof. In the event of an action filed against Owner resulting from the Owner’s performance under this Contract, the Owner may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the Owner, 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 Contract except “responsibility for [Owner’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. 125 Bogert Pool Renovation Project 30 These obligations shall survive termination of this Contract and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the Owner without limit and without regard to the cause therefore and which is acceptable to the Owner and Contractor shall furnish to the Owner an accompanying certificate of insurance and accompanying endorsements in amounts not less than as shown below: Workers’ Compensation – not less than statutory limits; Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; Products and Completed Operations – $1,000,000; Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000 annual aggregate (all owned, hired, non-owned vehicles); Builder’s Risk/Property Insurance at least as broad as that provided by the ISO special causes of loss form (CP10 30) naming at a minimum the Owner in an amount equal to greater of Contractor’s compensation or full replacement value of the work (covering at a minimum all work, buildings, materials and equipment, whether on site or in transit, loss due to fire, lightening, theft, vandalism, malicious mischief, earthquake, collapse, debris removal, demolition occasioned by enforcement of laws, water damage, flood if site within a flood plain, repair or replacement costs, testing and start-up costs) on an all risk coverage basis. This insurance must include waivers of subrogation between the Owner and Contractor to the extent that damage to the Work or City Hall is covered by other insurance; Owner’s and Contractor’s Protective Liability: one policy designating the Owner (including its agents, representatives, employees, and officers) as the insured and another independent policy designated the Owner’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 Contract for the Owner; and (ii) the Owner’s and Owner’s Representatives acts or omissions, including negligent acts, in connection with its general supervision of the work of the Contractor’s and its subcontractors - $1,000,000 per occurrence; $2,000,000 aggregate; Contractual Liability Insurance (covering the Contractor’s indemnity obligations described in this Contract) - $1,000,000 per occurrence $2,000,000 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 Owner and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify Owner 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. 126 Bogert Pool Renovation Project 31 The Owner must approve all insurance coverage and endorsements prior to the Contractor commencing work. 11.2 Headings. The headings used in the Contract are solely for convenience of reference, are not part of the Contract and are not to be considered in construing or interpreting the Contract. 11.3 Merger. The Contract Documents constitute the entire contract between the parties. No waiver, consent, modification or change of terms of the Contract shall bind either party unless in writing and signed by both parties. Such waiver, consent, modification or change, if made, shall be effective only in the specific instance and for the specific purpose given. There are no understandings, agreements, or representations, oral or written, not specified herein regarding the Contract. GC/CM, by signature of its representative, hereby acknowledges that it has read the Contract, understands it and agrees to be bound by its terms and conditions. 11.4 Progress Payments. 11.4.1 Progress Payments. Based upon applications for payment submitted, Owner shall make progress payments on account of the Preconstruction Fee, Cost of the Work, , and GC/CM Fee, less 5% retainage, to the GC/CM as provided below and elsewhere in the Contract Documents. Retainage will not be withheld on Preconstruction Services. A progress payment shall not be considered acceptance or approval of any Work or waiver of any defects therein. 11.4.2 Percentage of Completion. Applications for payment shall show the percentage of completion of each portion of the Work as of the end of the period covered by the application for payment. The percentage of completion shall be the lesser of (i) the percentage of that portion of the Work which has actually been completed; or (2) the percentage obtained by dividing (a) the expense that has actually been incurred by the GC/CM on account of that portion of the Work for which the GC/CM has made or intends to make actual payment prior to the next application for payment by (b) the share of the GMP allocated to that portion of the Work in the Schedule of Values. 11.4.3 Calculation of Payment. Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: 11.4.3.1 Take that portion of the GMP properly allocable to completed Work as determined by multiplying the percentage of completion of each portion of the Work under the Schedule of Values by the share of the GMP allocated to that portion of the Work in the Schedule of Values. Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute shall be included; 11.4.3.2 Add that portion of the GMP properly allocable to materials and equipment delivered and suitably stored and otherwise in compliance with the General Conditions; 11.4.3.3 Add the GC/CM Fee. The portion of the GC/CM Fee payable shall be an amount that bears the same ratio to GC/CM Fee as the sum of the amounts in the two preceding Clauses bears to the Cost of the Work, but in no event causing the total GC/CM Fee payments to exceed the total GC/CM Fee, except as modified by the Amendments and Change Orders; 127 Bogert Pool Renovation Project 32 11.4.3.4 Subtract the aggregate of previous payments made by and retained by the Owner; 11.4.3.5 Subtract the shortfall, if any, indicated by the documentation required to substantiate prior applications for payment, or resulting from errors subsequently discovered by the Owner in such documentation; 11.4.3.6 Subtract any amounts for which the Owner has withheld or nullified payment as provided in the Contract Documents; and, 11.4.3.7 Subtract 5% retainage on the entire progress payment (with the exception of Pre- Construction Services). 12. ARTICLE 12 – CONTRACT ATTACHMENTS, APPENDICES, EXHIBITS Exhibit A – GC/CM Request for Proposal 128 Bogert Pool Renovation Project 33 Exhibit B – General Conditions of the Contract for Construction GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION Bogert Pool Reconstruction Project 1. ARTICLE 1 – GENERAL PROVISIONS 1.1. BASIC DEFINITIONS 1.1.1. CONTRACT DOCUMENTS. The Contract Documents consist of the Contract between Owner and Contractor (hereinafter the “Contract”), Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the Contract, other documents listed in the Contract and Modifications issued after execution of the Contract. A Modification is: (a) a written amendment to the Contract signed by both parties; (b) a Change Order; or (c) a Construction Change Directive. In the event of a conflict, discrepancy, contradiction, or inconsistency within the Contract Documents and for the resolution of same, the following order of hierarchy and control shall apply and prevail: 1)Contract; 2) Addenda including Scope of Services; 3) Supplementary General Conditions, if any; 4) General Conditions of the Contract for Construction; 5) Specifications; 6) Drawings 1.1.1.1. If a conflict, discrepancy, contradiction, or inconsistency occurs within or between the Specifications and the Drawings, resolution shall be controlled by the following: 1.1.1.1.1. As between figures, dimensions, or numbers given on drawings and any scaled measurements, the figures, dimensions, or numbers shall govern; 1.1.1.1.2. As between large scale drawings and small scale drawings, the larger scale drawings shall govern; 1.1.1.1.3. As between the technical specifications and drawings; the technical specifications shall govern. 1.1.1.1.4. Shop Drawings and Submittals: Shop drawings and other submittals from the Contractor, subcontractors, or suppliers do not constitute a part of the Contract Documents. 1.1.1.2. The Contractor acknowledges, understands and agrees that the Contract Documents cannot be changed except as provided herein by the terms of the Contract. No act(s), action(s), omission(s), or course of dealing(s) by the Owner with the Contractor shall alter the requirements of the Contract Documents and that alteration can be accomplished only through a written Modification process defined herein. 1.1.2. THE DRAWINGS. The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, intent, location, and dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams. 129 Bogert Pool Renovation Project 34 1.1.3. THE SPECIFICATIONS. The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services. 1.1.4. THE CONTRACT. The entire Contract for Construction is formed by the Contract Documents. The Contract represents the entire, complete, and integrated agreement between the Owner and Contract hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind between: (a) the Owner and any Subcontractor, Sub-subcontractor, or Supplier; or (b) between any persons or entities other than the Owner and Contractor. 1.1.5. THE WORK. The term “Work” means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to completely fulfill the Contract and the Contractor's obligations. The Work may constitute the whole or a part of the Project. Specifically, for this Project, the Work includes the purchase and installation of an artificial turf field. 1.1.6. THE PROJECT. The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a part and which may include construction by separate contractors. 1.1.7. NOTICE TO PROCEED. The term Notice to Proceed means formal written notice to begin performing specific services or acts including Construction Phase services or any other enumerated service or act set forth in the Contract. The Contract Time will commence to run on the day indicated in the Notice to Proceed. 1.1.8. SITE. The term Site refers to that portion of the property on which the Work is to be performed or which has been otherwise set aside for use by the Contractor. 1.1.9. PUNCH LIST. The term Punch List means, collectively, unfinished items of the construction of the Project, which unfinished items of construction are minor or insubstantial details of construction, mechanical adjustment or decoration remaining to be performed, the non- completion of which would not materially affect the use of the Project, and which are capable of being completed within thirty (30) days of Substantial Completion, subject to the availability of special order parts and materials. By mutual agreement of the Parties, the Punch List may also include other unfinished items that are not capable of being completed within thirty (30) days of Substantial Completion due to environmental conditions beyond the reasonable control of Contractor. 1.2. CORRELATION, INTER-RELATIONSHIP, AND INTENT OF THE CONTRACT DOCUMENTS 1.2.1. The intent of the Contract Documents is to include all items and all effort necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary and inter-related, and what is required by one shall be as binding as if required by all. Performance by the Contractor shall be required to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results. 130 Bogert Pool Renovation Project 35 1.2.2. Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. It is the Contractor’s responsibility to control the Work under the Contract. 1.2.3. Unless otherwise stated in the Contract Documents, words which have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. 1.3. CAPITALIZATION 1.3.1. Terms capitalized in these General Conditions include those which are: (a) specifically defined; and, (b) the titles of numbered articles and identified references to Paragraphs, Subparagraphs and Clauses in the document. 1.4. INTERPRETATION 1.4.1. In the interest of brevity the Contract Documents frequently omit modifying words such as "all" and "any" and articles such as "the" and "an," but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. 1.5. EXECUTION OF THE CONTRACT AND CONTRACT DOCUMENTS 1.5.1. The Contract shall be signed by the Owner and Contractor. Execution of the Contract by the Contractor constitutes the complete and irrevocable binding of the Contractor and his Surety to the Owner for complete performance of the Work and fulfillment of all obligations. By execution of the Contract, the Contractor acknowledges that it has reviewed and familiarized itself with all aspects of the Contract Documents and agrees to be bound by the terms and conditions contained therein. 1.5.2. Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become generally familiar with local conditions under which the Work is to be performed, and correlated personal observations with requirements of the Contract Documents. 1.5.3. The Contractor acknowledges that it has taken all reasonable actions necessary to ascertain the nature and location of the work, and that it has investigated and satisfied itself as to the general and local conditions which can affect the work or its cost, including but not limited to: (1) conditions bearing upon transportation, disposal, handling, and storage of materials; (2) the availability of labor, water, gas, electric power, phone service, and roads; (3) uncertainties of weather, river stages, tides, or similar physical conditions at the site; (4) the conformation, topography, and conditions of the ground; and, (5) the character of equipment and facilities needed for performance of the Work. The Contractor also acknowledges that it has satisfied itself as to the character, quality, and quantity of surface and subsurface materials or obstacles to be encountered insofar as this information is reasonably ascertainable from an inspection of the site, including any exploratory geotechnical work, as well as from the drawings and specifications made a part of this contract. Any failure of the Contractor to take the action described and acknowledged in this paragraph will not relieve the Contractor from responsibility for properly ascertaining and estimating the difficulty and cost of successfully performing the Work or for proceeding to successfully perform the Work without additional expense to the Owner. 131 Bogert Pool Renovation Project 36 1.5.4. The Owner assumes no responsibility for any conclusions or interpretations made by the Contractor based on the information made available by the Owner, nor does the Owner assume responsibility for any understanding reached or representation made by any of its officers, agents, or employees concerning conditions which can affect the Work unless that understanding or representation is expressly stated in the Contract Documents. 1.5.4.1. Performance of any portion of the Work, beyond that required for complying with the specifications and all other requirements of the Contract, shall be deemed to be for the convenience of the Contractor and shall be at the Contractor's sole expense. 1.5.4.2. There shall be no increase in the contract price or time allowed for performance which is for the convenience of the Contractor. 2. ARTICLE 2 – THE OWNER 2.1. THE CITY OF BOZEMAN 2.1.1. The Owner is the City of Bozeman and is the sole entity to be identified as Owner in the Contract and as referred to throughout the Contract Documents as if singular in number. The Owner shall designate in writing a representative who shall have express authority to bind the Owner with respect to all matters requiring the Owner’s approval or authorization. The term “Owner” means the Owner or the Owner’s authorized representative. 2.1.2. The observations and participations of the Owner or its authorized representative do not alleviate any responsibility on the part of the Contractor. The Owner reserves the right to observe the work and make comment. Any action or lack of action by the Owner shall not be construed as approval of the Contractor's performance. 2.1.3. The Owner reserves the right to require the Contractor, all sub-contractors and material suppliers to provide lien releases at any time. The Owner reserves the right to withhold progress payments until such lien releases are received for all work for which prior progress payments have been made. Upon the Owner’s demand for lien releases (either verbally or written), the Contractor, all sub-contractors and material suppliers shall provide such releases with every subsequent application for payment through Final Acceptance of the Project. 2.1.4. Except for permits and fees, including those required under Subparagraph 3.7.1, which are the responsibility of the Contractor under the Contract Documents, the Owner shall secure and pay for necessary approvals, easements, assessments and charges required for construction, use or occupancy of permanent structures or for permanent changes in existing facilities. 2.1.5. Information or services required of the Owner by the Contract Documents shall be furnished by the Owner with reasonable promptness. Any other information or services relevant to the Contractor's performance of the Work under the Owner’s control shall be furnished by the Owner after receipt from the Contractor of a written request for such information or services. 2.1.6. Unless otherwise provided in the Contract Documents, the Contractor will be furnished, free of charge, such copies of Drawings and Specifications as are reasonably necessary for execution of the Work. 132 Bogert Pool Renovation Project 37 2.1.7. Whenever the Contractor is required under the Contract to indemnify the Owner, “Owner” shall mean the City of Bozeman and the City of Bozeman’s officers, elected officials, employees, and agents. 2.2. OWNER’S RIGHT TO STOP WORK 2.2.1. If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents as required by Paragraph 12 or persistently fails to carry out Work in accordance with the Contract Documents, the Owner may issue a written order to the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated. However, the right of the Owner to stop the Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity. The issuance of a stop work order by the Owner as a result of Contractor’s failure to correct non- conforming work, shall not give rise to a claim by the Contractor or any subcontractor for additional cost, time, or other adjustment. 2.3. OWNER’S RIGHT TO CARRY OUT THE WORK 2.3.1. If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a seven-day period after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness, the Owner may after such seven-day period give the Contractor a second written notice to correct such deficiencies within a three- day period. If the Contractor within such three- day period after receipt of such second notice fails to commence and continue to correct any deficiencies, the Owner may, without prejudice to other remedies the Owner may have, correct such deficiencies. In such case an appropriate Change Order shall be issued deducting from payments then or thereafter due the Contractor the reasonable cost of correcting such deficiencies, including Owner's expenses and increased costs made necessary by such default, neglect, or failure. If payments then or thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to the Owner. 2.4. OWNER’S RIGHT TO PERSONNEL 2.4.1. The Owner reserves the right to have the Contractor and/or subcontractors remove person(s) and/or personnel from any and all work on the project with cause but without cost to the Owner. Such requests from the Owner may be made verbally or in writing directly with the Contractor. Cause may be, but not limited to, any of the following: incompetence, poor workmanship, poor scheduling abilities, poor coordination, disruption to the facility or others, poor management, causes delay or delays, disruption of the Project, will not strictly adhere to facility procedures and Project requirements either knowingly or unknowingly, insubordination, drug/alcohol use, possession of contraband, belligerent acts or actions, etc. The Contractor shall provide replacement person(s) and/or personnel acceptable to the Owner at no cost to the Owner. 2.4.2. Any issue or circumstance relating to or resulting out of this clause shall not be construed or interpreted to be interference with or impacting upon the Contractor’s responsibilities and liabilities under the Contract Documents. 2.4.3. Person(s) and/or personnel who do not perform in accordance with the Contract Documents, shall be deemed to have provided the Owner with cause to have such persons removed from any and all involvement in the Work. 133 Bogert Pool Renovation Project 38 2.4.4. The Contractor agrees to defend, indemnify and hold harmless the Owner from any and all causes of action, demands, claims, damages, awards, attorneys’ fees, and other costs brought against the Owner by any and all person(s) or personnel as a result of actions under this clause. 3. ARTICLE 3 – THE CONTRACTOR 3.1. GENERAL 3.1.1. The Contractor is Jackson Contractor Group, Inc, identified as such in the Contract and is referred to throughout the Contract Documents as if singular in number. The term “Contractor” means the Contractor or the Contractor's authorized representative. 3.1.2. Construction Contractor Registration: The Contractor is required to be registered with the Department of Labor and Industry under 39-9-201 and 39-9-204 MCA prior to the Contract being executed by the Owner. Contractor must demonstrate that it has registered or promises that it will register immediately upon notice of award and prior to the commencement of any work. The Owner will not execute a contract for construction nor issue a Notice to Proceed to a Contractor who is not registered per 39-9-401(a) MCA. It is solely the Contractor’s responsibility to ensure that all Subcontractors are registered in accordance with Title 39, Chapter 9, MCA. 3.1.3. The Owner’s engagement of the Contractor is based upon the Contractor’s representations that it: 3.1.3.1. has the requisite skills, judgment, capacity, expertise, and financial ability to perform the Work; 3.1.3.2. is experienced in the type of labor and services the Owner is engaging the Contractor to perform; 3.1.3.3. is authorized, licensed and registered to perform the type of labor and services for which it is being engaged in the State and locality in which the Project is located; 3.1.3.4. is qualified, willing and able to perform the labor and services for the Project in the manner and scope defined in the Contract Documents; and, 3.1.3.5. has the expertise and ability to provide labor and services that will meet the Owner’s objectives, intent and requirements, and will comply with the requirements of all governmental, public, and quasi-public authorities and agencies having or asserting jurisdiction over the Project. 3.1.4. The Contractor shall perform the Work in accordance with the Contract Documents, including the Scope of Services. Contractor agrees to attend a pre-construction conference with Owner, Engineer and GC/CM to discuss execution of the Scope of Services. 3.1.5. The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of the Owner in the Owner's administration of the Contract, or by tests, inspections or approvals required or performed by persons other than the Contractor. 3.1.6. Quality Control (i.e. ensuring compliance with the Contract Documents) and Quality Assurance (i.e. confirming compliance with the Contract Documents) are the responsibility of the Contractor. Testing, observations, and/or inspections performed or provided by the Owner are solely for the Owner’s own purposes and are for the benefit of the Owner. The Owner is not liable or responsible in any form or fashion to the Contractor regarding quality assurance or extent of 134 Bogert Pool Renovation Project 39 such assurances. The Contractor shall not, under any circumstances, rely upon the Owner’s testing or inspections as a substitute or in lieu of its own Quality Control or Assurance programs. 3.2. REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR 3.2.1. Since the Contract Documents are complementary and inter-related, before starting each portion of the Work, the Contractor shall carefully study and compare the various Drawings and other Contract Documents relative to that portion of the Work, shall take field measurements of any existing conditions related to that portion of the Work and shall observe any conditions affecting the Work. These obligations are for the purpose of facilitating construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents. However, any errors, inconsistencies or omissions discovered by the Contractor shall be reported promptly to the Owner. 3.2.2. If the Contractor believes that additional cost or time is involved because of clarifications or instructions issued by the Owner in response to the Contractor's notices or requests for information pursuant to Subparagraph 3.2.1, the Contractor shall make Claims as provided in Paragraph 4.3. If the Contractor fails to perform the obligations of Subparagraph 3.2.1, the Contractor shall pay such costs and damages to the Owner as would have been avoided if the Contractor had performed such obligations. 3.2.3. Except as otherwise expressly provided in this Contract, the Contractor assumes all risks, liabilities, costs, and consequences of performing any effort or work in accordance with any written or oral order (including but not limited to direction, instruction, interpretation, or determination) of a person not authorized in writing by the Owner to issue such an order. 3.2.4. Sufficiency of Contract Documents: The Contractor certifies, warrants and guarantees that it has received, carefully reviewed, and evaluated all aspects of the Contract Documents and agrees that said Documents are adequate, consistent, coordinated, and sufficient for constructing the Work requested, intended, conceived, and contemplated therein. 3.2.4.1 The Contractor further acknowledges its continuing duty to review and evaluate the Contract Documents during the performance of its services and shall immediately notify the Owner, Engineer or GC/CM of any problems, conflicts, defects, deficiencies, inconsistencies, errors, or omissions it discovers in the Contract Documents and the Work to be constructed; and, any variances it discovers between the Contract Documents and applicable laws, statutes, building codes, rules or regulations. 3.2.4.2 If the Contractor performs any Work which it knows or should have known due to its experience, ability, qualifications, and expertise in the construction industry, that involves problems, conflicts, defects, deficiencies, inconsistencies, errors, or omissions in the Contract Documents and the Work to be constructed and, any variances between the Contract Documents and applicable laws, statutes, building codes, rules or regulations, without prior written notification to the Owner and without prior authorization to proceed from the Owner, the Contractor shall be responsible for and bear the costs and delays (including costs of any delay) of performing such Work. 3.2.4.3 Any and all claims resulting from the Contractor’s failure, including those of any subcontractor or supplier, to carefully review, evaluate, and become familiar with all aspects of the Contract Documents shall be deemed void and waived by the Contractor. 135 Bogert Pool Renovation Project 40 3.2.5. Sufficiency of Site Conditions: The Contractor certifies, warrants and guarantees that it has visited, carefully reviewed, evaluated, and become familiar with all aspects of the site and local conditions at which the Project is to be constructed. The Contractor agrees that the Contract Documents are adequate, consistent, coordinated, and sufficient representation of the site and local conditions for the Work. 3.2.5.1 The Contractor certifies it has reviewed and become familiar with all aspects of the Environmental Assessments, the Site Survey and Geotechnical Report for the Project and has a full understanding of the information provided therein, prior to executing the Guaranteed Maximum Price Amendment. 3.2.5.2 If the Work involves modifications, renovations, or remodeling of an existing structure(s) or other man-made feature(s), the Contractor certifies, warrants and guarantees that it has reviewed, evaluated, and become familiar with all available as-built and record drawings, plans and specifications, and has thoroughly inspected and become familiar with the structure(s) or man-made feature(s). 3.2.5.3 Any and all claims resulting from the Contractor’s failure, including those of any subcontractor or supplier, to visit, carefully review, evaluate, and become familiar with all aspects of the Site, available geotechnical information, and local conditions at which the Project is to be constructed shall be deemed void and waived by the Contractor. 3.3. SUPERVISION AND CONSTRUCTION PROCEDURES 3.3.1. The Contractor shall supervise and direct the Work using the Contractor's best skill and attention recognizing that time and quality are of the essence of the Work. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters. It is the responsibility of and incumbent upon the Contractor to ensure, confirm, coordinate, inspect and oversee all Work (which is inclusive of but not limited to all submittals, change orders, schedules, workmanship, and appropriate staffing with enough competent and qualified personnel) so that the Work is not impacted in terms of any delays, costs, damages, or additional time, or effort on the Owner. If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures. If the Contractor determines that such means, methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the Owner and shall not proceed with that portion of the Work without further written instructions from the Owner. If the Contractor is then instructed to proceed with the required means, methods, techniques, sequences or procedures without acceptance of changes proposed by the Contractor, the Owner shall be solely responsible for any resulting loss or damage. The Contractor shall: review any specified construction or installation procedure; advise the Owner if the specified procedure deviates from good construction practice; advise the Owner if following the procedure will affect any warranties, including the Contractor's general warranty, or of any objections the Contractor may have to the procedure and shall propose any alternative procedure which the Contractor will warrant and guarantee. 3.3.2. The Contractor shall furnish management, supervision, coordination, labor and services that: (1) expeditiously, economically, and properly completes the Work; (2) comply with all 136 Bogert Pool Renovation Project 41 requirements of the Contract Documents; and, (3) are performed in a quality workmanlike manner and in accordance with the standards currently practiced by persons and entities performing or providing comparable management, supervision, labor and services on projects of similar size, complexity, cost, and nature to this Project. However, the standards currently practiced within the construction industry shall not relieve the Contractor of the responsibility to perform the Work to the level of quality, detail, and excellence defined and intended by the Contract Documents as interpreted by the Owner. 3.3.3. All services and labor rendered by the Contractor, including any subcontractors or suppliers, shall be performed under the immediate supervision at the site of persons possessing expertise and the requisite knowledge in the discipline or trade of service being rendered. The Contractor shall maintain such supervision and personnel at all times that the Contractor’s personnel, subcontractors, and/or suppliers are at the site. The Contractor shall never be absent from the site during performance of any portion of the Work by any entity under the supervision and direction of the Contractor. Full time attendance by the Contractor from Notice to Proceed through Final Acceptance is an explicit requirement of this Contract. 3.3.4. The Contractor shall be responsible to the Owner for acts, damages, errors, and omissions of the Contractor's employees, subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or on behalf of the Contractor or any of its Subcontractors. 3.3.5. The Contractor shall be responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work. 3.4. LABOR, WAGES, AND MATERIALS 3.4.1. Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, permits, licenses, goods, products, equipment, tools, construction equipment and machinery, water, heat, all utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work in accordance with the Contract Documents, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. 3.4.2. The Contractor may make substitutions only with the consent of the Owner in accordance with a Change Order. This opportunity to request substitutions does not negate or waive any requirement for the Contractor to follow any “prior approval” requirement nor obligate the Owner to approve any substitution request. 3.4.3. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. 3.4.4 Prevailing Wages and Montana Residents. 3.4.4.1. The Contractor and all subcontractors at any level or tier of the Work shall give preference to the employment of bona fide Montana residents in the performance of the Work and shall 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. (18-2-403, MCA) 137 Bogert Pool Renovation Project 42 3.4.4.2. The Commissioner of The Montana Department of Labor and Industry (DOLI) has established the standard prevailing rate of wages in accordance with 18-2-401 and 18-2-402, MCA. Contractor shall utilize the "State of Montana, Prevailing Wage Rates" in effect at the time of execution of the Contract. The Commissioner of the Montana DOLI has established the resident requirements in accordance with 18-2-409, MCA. The Contractor and all subcontractors at any level or tier of the Work shall direct any and all questions concerning prevailing wage and Montana resident issues for all aspects of the Work to DOLI. 3.4.4.3. The Contractor and all subcontractors at any tier or level of the Work, and as determined by the Montana DOLI, shall classify all workers in the project in accordance with the State of Montana, Prevailing Wage Rates. In the event the Contractor is unable to classify a worker in accordance with these rates he shall contact DOLI for a determination of the classification and the prevailing wage rate to be paid. 3.4.4.4. The Contractor and all subcontractors at any tier or level of the Work shall be responsible for obtaining wage rates for all workers prior to their performing any work on the project. The Contractor is required to pay and insure that its subcontractors at any tier or level and others also pay the prevailing wage determined by the DOLI, insofar as required by Title 18 of the MCA and the pertinent rules and standards of DOLI. 3.4.4.5. It is not the responsibility of the Owner to determine who classifies as a subcontractor, sub- subcontractor, material man, supplier, or any other person involved in any aspect of the Work at any tier or level. All such determinations shall be the sole responsibility of the Contractor, subcontractors, sub-subcontractors, material men, suppliers and others involved in the project at any tier or level. The Contractor, subcontractors, sub-subcontractors, material men, suppliers and others involved in the project shall defend, indemnify and hold harmless the Owner from all claims, attorneys’ fees, damages and/or awards involving prevailing wage or Montana resident issues. Any changes to wages or penalties for failure to pay the correct wages will be the sole responsibility of the Contractor and/or his subcontractors and no further charges or claims shall be made to the Owner. If the parties mutually agree or an arbitrator or court determines that any change in wages is due and any part is attributable to the Owner, the Owner's sole liability shall be for the amount of wages ordered only and not for other expenses, charges, penalties, overhead, profit or other mark-ups. 3.4.4.6. In accordance with 18-2-422(1) MCA, each job classification’s standard prevailing wage rate, including fringe benefits, that the contractors and employers shall pay during construction of the project is included herein by both reference to DOLI’s “Building” or ‘Heavy/Highway” schedules, as applicable to the project, and as part of these Contract Documents. 3.4.4.7. The Contractor and every employer, including all subcontractors at any tier or level, is required by 18-2-422(2) MCA to maintain payroll records in a manner readily capable of being certified for submission under 18-2-423 MCA, for a period of not less than 3 years after the contractor's, subcontractor’s, or employer's completion of work on the project or the Final Acceptance by the Owner, whichever is later. 3.4.4.8. Each contractor is required by 18-2-422(3) MCA to post in a visible and accessible location a statement of all wages and fringe benefits in compliance with 18-2- 423. 138 Bogert Pool Renovation Project 43 3.5. WARRANTY AND GUARANTEE 3.5.1. The Contractor warrants to the Owner that materials and equipment furnished under the Contract will be new and of good quality unless otherwise required or permitted by the Contract Documents, that the Work will be free from defects not inherent in the quality required or permitted, and that the Work will conform to the requirements of the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective and rejected. The Contractor's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. The Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. 3.5.2. The Contractor shall and does hereby warrant and guarantee all work, workmanship, and materials for the full warranty period as specified in the Contract Documents. The warranty period shall be defined as commencing with Substantial Completion (or with each Substantial Completion if there is more than one) of the Project, or any portion thereof, and continuing for one (1) calendar year from the date of Final Acceptance of the entire project by the Owner. The date of Final Acceptance shall be the date of the Owner’s signature on the final request for payment unless otherwise agreed upon in writing for the entire project or any portion thereof, by the Owner and Contractor. 3.5.3. In addition to the one (1) calendar year warranty and guarantee specified in this herein above, the Contractor warrants and guarantees all materials and workmanship for the roofing system for a period of two (2) calendar years from the date of Final Acceptance. This warranty shall cover all labor and materials for roof and roofing finish systems (e.g. flashing, terminations, parapet caps, etc.) repairs from moisture penetration and/or defects in workmanship. 3.5.4. Manufacturer and product warranties and guarantees, as provided by the manufacturer or as specified in the Contract Documents, are in addition to the Contractor’s warranty. 3.6. TAXES 3.6.1. The Contractor is responsible for and shall pay all sales, consumer, use, and similar taxes for the Work provided by the Contractor which are legally enacted when negotiations concluded, whether or not yet effective or merely scheduled to go into effect. 3.6.2. In compliance with 15-50-206 MCA, the Contractor will have 1% of his gross receipts withheld by the Owner from all payments due and sent to the Montana Department of Revenue. Each subcontractor who performs work greater than $5,000 shall have 1% of its gross receipts withheld by the Contractor and sent to the Montana Department of Revenue. The Contractor shall notify the Department of Revenue on the Department’s prescribed form. 3.7. PERMITS, FEES, AND NOTICES 3.7.1. Unless otherwise provided in the Contract Documents, the Contractor shall secure and pay for the building permit and other permits and governmental fees, licenses and inspections necessary for proper execution and completion of the Work which are customarily secured after execution of the Contract, including but not limited to, the building permit fee, sewer connection fee, and any required impact fees and which are legally required when negotiations concluded. 139 Bogert Pool Renovation Project 44 Electrical, Plumbing, and Mechanical permit fees shall be paid by Contractor, or related subcontractors responsible for these trades. 3.7.2. The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations and lawful orders of public authorities applicable to performance of the Work. 3.7.3. If the Contractor performs Work knowing it to be contrary to laws, statutes, ordinances, building codes, and rules and regulations, and does so without providing notice to the Owner, the Contractor shall assume responsibility for such Work and shall bear the costs attributable to correction. The Contractor shall be solely responsible to insure that all work it performs is in full compliance with all prevailing and applicable codes and regulations. 3.7.4. If the Contractor encounters conditions at the Site that are (a) subsurface or otherwise concealed physical conditions that differ materially from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature, that differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, the Contractor shall promptly provide written notice to the Owner, Engineer and GC/CM, before conditions are disturbed and in no event later than seven days after first observance of the conditions. The Owner will promptly investigate such conditions and, if the Owner determines that they differ materially and cause an increase or decrease in the Contractor’s cost of, or time required for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum or Contract Time, or both. If the Owner determines that the conditions at the Site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the Owner shall promptly notify the Contractor in writing, stating the reasons. 3.7.5. If, in the course of the Work, the Contractor encounters human remains or recognizes the existence of burial markers, archaeological sites or wetlands not indicated in the Contract Documents, the Contractor shall immediately suspend any operations that would affect them and shall notify the Owner, Engineer and GC/CM. Upon receipt of such notice, the Owner shall promptly take any action necessary to obtain governmental authorization required to resume the operations. The Contractor shall continue to suspend such operations until otherwise instructed by the Owner but shall continue with all other operations that do not affect those remains or features. Requests for adjustments in the Contract Sum and Contract Time arising from the existence of such remains or features may be made as provided in Section 4.2. 3.8. ALLOWANCES 3.8.1. The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. Items covered by allowances shall be supplied for such amounts and by such persons or entities as the Owner may direct. 3.8.2. Unless otherwise provided in the Contract Documents: 3.8.2.1. Allowances shall cover the cost to the Contractor of labor, materials and equipment delivered at the site and all required taxes, less applicable trade discounts; 3.8.2.2. Contractor's costs for overhead, profit for stated allowance amounts shall be included by the Contractor in the Contract Sum but not in the allowances; 3.8.2.3. Whenever costs are more than stated Owner allowances, the Contract Sum may be adjusted accordingly by Change Order if there is change in the scope of the Project 140 Bogert Pool Renovation Project 45 after submission of the pricing. The Contractor shall be responsible for documenting and informing the Owner, Engineer and GC/CM of any changes in the scope of the Project. If costs are less than stated Owner allowances, the Contract Sum shall be adjusted accordingly by Change Order. If there is a change in scope of the Project, the amount of the Change Order shall reflect the difference between actual costs and the allowances under Clause 3.8.2.1. 3.8.3. Materials and equipment under an allowance shall be selected by the Owner. 3.8.4. Contractor agrees that a contingency allowance, if any, is for the sole use of Owner to cover unanticipated costs. 3.9. CONTRACTOR’S PERSONNEL 3.9.1. The Contractor shall employ competent personnel, supervisors, project managers, project engineers, project superintendent, and all others who shall be assigned to the Work throughout its duration. All personnel assigned by the Contractor to the Work shall possess the requisite experience, skills, abilities, knowledge, and integrity to perform the Work. 3.9.2. The Contractor agrees that the employees shall be fully and completely engaged to the extent stipulated, for the duration of the Project, except for catastrophic events including but not limited to termination of employment, illness, accident, or death. 3.9.3. The superintendent and others as assigned shall be in attendance at the Project site during the performance of any and all Work. The superintendent shall represent the Contractor. All communications given to the Contractor’s personnel such as the project manager or the superintendent, whether verbal, electronic or written, shall be as binding as if given to the Contractor. 3.9.4. It is the Contractor’s responsibility to appropriately staff, manage, supervise and direct the Work which is inclusive of the performance, acts, and actions of his personnel and subcontractors. As such, the Contractor further agrees to indemnify and hold harmless the Owner, and to protect and defend Owner from and against all claims, attorneys’ fees, demands, causes of action of any kind or character, including the cost of defense thereof, arising in favor of or against the Owner, Contractor, their agents, employees, or any third parties on account of the performance, behavior, acts or actions of the Contractor’s personnel or subcontractors. 3.9.5. Prior to the commencement of any work, the Contractor shall prepare and submit a personnel listing and organizational chart in a format acceptable to the Owner which lists by name, phone number (including cell phone), job category, and responsibility the Contractor’s key/primary personnel who will work on the Project. The Contractor shall promptly inform the Owner in writing of any proposed replacements, the reasons therefore, and the name and qualifications of any proposed replacements. The Owner shall have the right to reject any proposed replacements without cost or claim being made by the Contractor. The chart shall be provided to the Owner, Engineer and GC/CM at the time of the pre-construction conference. 3.10. CONSTRUCTION SCHEDULES 3.10.1. The Contractor shall, promptly after being provided the Notice to Proceed with construction, prepare and submit for the Owner's information a Contractor's construction schedule for the Work. The schedule shall not exceed time limits current under the Contract Documents, shall be revised at appropriate intervals as required by the conditions of the Work 141 Bogert Pool Renovation Project 46 and per the requirements of the Contract Documents, shall be related to the entire Project to the extent required by the Contract Documents, and shall provide for expeditious and practicable execution of the Work. The Contractor’s schedule shall be in the “Critical Path Method” and shall show the Critical Path of the Work in sufficient detail to evaluate the Contractor’s progress. A request for time extension by the Contractor will not be allowed unless a change in the Work is approved by the Owner and materially affects the Critical Path. It is the Contractor’s responsibility to demonstrate that any time extensions requests materially affect the Critical Path. 3.10.2. The Contractor shall prepare and keep current a schedule of submittals which is coordinated with the Contractor's Construction Schedule and allows the Owner reasonable time to review submittals. 3.10.3. The Contractor shall perform the Work in accordance with the most recent schedule submitted to the Owner. 3.10.4. The Contractor's operations (including but not limited to the Contractor's forces employed, sequences of operations, and methods of operation) at all times during the performance of the contract shall be sufficient to insure the completion of the Work within the specified performance period. 3.10.5. The Critical Path Method Construction Schedule prepared by the Contractor must be in a form that is acceptable to the Owner. 3.10.5.1. The Schedule shall show the estimated progress of the entire Project through the individual time periods allowed for completion of each discipline, trade, phase, section, and aspect of the Work. The Contractor shall provide written reports of all logic and resource loading data with the Schedule and with all updates to the Schedule. 3.10.5.2. The Schedule shall show percent complete, progress to date, project work, and projected time to complete the work for all activities. The percent complete and minor schedule changes, including additions of activities, change orders, construction change directives, changes to sequences of activities and significant changes in activity demands must be shown by a revised Schedule. A written report providing details about the changes and what actions are anticipated to get the work completed in the contractual time period shall be submitted with the revised schedule. 3.10.5.3. The Construction Schedule shall include coordinate dates for performance of all divisions of the Work, including shipping and delivery, off-site requirements and tasks, so the Work can be completed in a timely and orderly fashion consistent with the required dates of Substantial Completion and Final Acceptance. 3.10.5.4. The Construction Schedule shall include: (i) the required commencement date, the required dates of Substantial Completion(s) and Final Acceptance for the complete Project and all phases (if any); (ii) any guideline and milestone dates required by the Owner or the Contract Documents; (iii) subcontractor and supplier schedules; (iv) a submittal schedule which allows sufficient time for review by Owner; (v) the complete sequence of all construction activities with start and completion dates; and, (vi) required decision dates. 3.10.5.5. By receiving, reviewing, and/or commenting on the Construction Schedule or any portion thereof (including logic), the Owner shall not assume any of the Contractor’s 142 Bogert Pool Renovation Project 47 responsibility or liability that the Schedule be coordinated or complete, or for timely and orderly completion of the Work. 3.10.5.6. Receiving, reviewing, and/or commenting on the Schedule, any portion thereof, or any revision thereof, does not constitute an approval, acknowledgement, or acceptance of any durations, dates, milestones, or performance indicated therein. 3.10.5.7. A printout of the Schedule’s logic showing all activities is required with the Schedule and with all updates to the Schedule. 3.10.6. The Contractor shall review and compare, at a minimum on a weekly basis, the actual status of the Work against its Construction Schedule. 3.10.7. The Contractor shall routinely, frequently, and periodically (but not less than monthly) update and/or revise its Construction Schedule to show actual progress of the Work through the date of the update or revision, projected level of completion of each remaining activity, activities modified since the previous update or revision, and major changes in scope or logic. The updated/revised Schedule shall be accompanied by a narrative report which: (a) states and explains any modifications of the critical path, if any, including any changes in logic; (b) defines problem areas and lists areas of anticipated delays; (c) explains the anticipated impact the change in the critical path or problems and delays will have on the entire Schedule and the completion of the Work; (d) provides corrective action taken or proposed; and, (e) states how problems or delays will be resolved in order to deliver the Work by the required phasing milestones (if any), Substantial Completion(s), and Final Acceptance dates. 3.10.8. Delay in Performance: If at any time the Contractor anticipates that performance of the Work will be delayed or has been delayed, the Contractor shall: (1) immediately notify the Owner, Engineer and GC/CM by separate and distinct correspondence of the probable cause and effect of the delay, and possible alternatives to minimize the delay; and, (2) take all corrective action reasonably necessary to deliver the Work by the required dates. Nothing in this paragraph or the Contract Documents shall be construed by the Contractor as a granting by the Owner of constructive acceleration. The results of failure to anticipate delays, or to timely notify the Owner of an anticipated or real delay, are entirely the responsibility of the Contractor whether compensable or not. 3.10.9. Early Completion: The Contractor may attempt to achieve Substantial Completion(s) on or before the date(s) required in the Contract. However, such early completion shall be for the Contractor’s sole convenience and shall not create any real or implied additional rights to Contractor or impose any additional obligations on the Owner. The Owner will not be liable for nor pay any additional compensation of any kind to the Contractor for achieving Substantial Completion(s) or Final Acceptance prior to the required dates as set forth in the Contract. 3.10.10. Float in Schedule. Any and all float time in the Contractor’s schedule, regardless of the path or activity, shall accrue to the benefit of the Owner and the Work, and not to the Contractor. Float also includes any difference shown between any early completion dates shown on the Contractor’s Schedule for any phasing milestone(s), Substantial Completion(s) or Final Acceptance and the dates or durations as required by the Contract Documents. 3.10.11. Modification of Required Substantial Completion(s) or Final Acceptance Dates: Modification of the required dates shall be accomplished only by duly authorized, accepted, and approved change orders stating the new date(s) with specificity on the change order form. All 143 Bogert Pool Renovation Project 48 rights, duties, and obligations, including but not limited to the Contractor’s liability for actual, delay, and/or liquidated damages, shall be determined in relation to the date(s) as modified. 3.11. DOCUMENTATION AND AS-BUILT CONDITIONS AT THE SITE 3.11.1. The Contractor shall maintain at the site for the Owner one record copy of the Drawings, Specifications, Addenda, Change Orders and other Modifications, in good order and accurately marked to record current field changes and selections made during construction, and one record copy of approved Shop Drawings, Product Data, Samples and similar required submittals. These shall be available to the Owner at any time and shall be delivered to the Owner upon completion of the Work. 3.11.2. The Owner shall not be required to process final payment until all documentation and data required by the Contract Documents is submitted to and approved by the Owner including, but not limited to, the As-Built Drawings. The Owner will not process any final request for payment until the Owner has received and verified that the Contractor has performed the requirements pertaining to the as-built drawings. 3.11.3. The as-built drawings shall be neatly and clearly marked during construction to record all deviations, variations, changes, and alterations as they occur during construction along with such supplementary notes and details necessary to clearly and accurately represent the as-built condition. 3.12. SHOP DRAWINGS, PRODUCT DATA AND SAMPLES 3.12.1. Definitions: 3.12.1.1. Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub-subcontractor, manufacturer, supplier or distributor to illustrate some portion of the Work. 3.12.1.2. Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. 3.12.1.3. Samples are physical examples which illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. 3.12.2. Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required by the Contract Documents the way by which the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. 3.12.3. The Contractor shall review, and approve Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents within sixty (60) calendar days of being issued the Notice To Proceed unless noted otherwise and shall do so in such sequence as to cause no delay in the Work or in the activities of the Owner or of separate contractors. Any submittal that, in the opinion of the Owner, is incomplete in any area or detail may be rejected and returned to the Contractor. It is the responsibility of and incumbent upon the Contractor to ensure and confirm that all submittals are complete, accurate, and in conformance to the Contract Documents prior to submission. 144 Bogert Pool Renovation Project 49 3.12.4. By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents and guarantees to the Owner that the Contractor has determined and verified materials, field measurements and field construction criteria related thereto, or will do so, and has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents. 3.12.5. The Contractor shall perform no portion of the Work for which the Contract Documents require submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective submittal has been approved. Should the Contractor, Subcontractors or Sub- subcontractors install, construct, erect or perform any portion of the Work without approval of any requisite submittal, the Contractor shall bear the costs, responsibility, and delay for removal, replacement, and/or correction of any and all items, material, and /or labor. 3.12.6. The Work shall be in accordance with approved submittals except that the Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by the Owner’s approval of Shop Drawings, Product Data, Samples or similar submittals unless the Contractor has specifically informed the Owner, Engineer and GC/CM in writing of such deviation at the time of submittal and: (1) the Owner has given written approval to the specific deviation as a minor change in the Work; or, (2) a Change Order or Construction Change Directive has been issued authorizing the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples or similar submittals by the Owner's approval thereof. 3.12.7. The Contractor shall direct specific attention, in writing or on re-submitted Shop Drawings, Product Data, Samples or similar submittals, to revisions other than those requested by the Owner on previous submittals. In the absence of such written notice the Owner's approval of a re- submission shall not apply to such revisions. 3.12.8. The Contractor shall not be required to provide professional services which constitute the practice of architecture or engineering, unless such services are specifically required by the Contract Documents for a portion of the Work or unless the Contractor needs to provide such services in order to carry out the Contractor's responsibilities for construction means, methods, techniques, sequences and procedures. The Contractor shall not be required to provide professional services in violation of applicable law. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor by the Contract Documents, the Owner will specify all performance and design criteria that such services must satisfy. The Contractor shall cause such services or certifications to be provided by a properly licensed design professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional's written approval when submitted to the Owner. The Owner shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals, provided the Owner has specified to the Contractor all performance and design criteria that such services must satisfy. Pursuant to this subparagraph, the Owner will review, approve or take other appropriate action on submittals only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Contractor shall not be responsible for the accuracy of the performance or design criteria required by the Contract Documents but shall be responsible and held liable for review and verification of all performance or design criteria as required by Paragraph 3.2. 145 Bogert Pool Renovation Project 50 3.12.9. Unless noted otherwise in the Contract Documents, the Contractor shall submit to the Owner within sixty (60) days from the date of the Notice To Proceed a minimum of six (6) complete copies of all shop/setting drawings, schedules, cut sheets, products, product data, and samples required for the complete Work, or as specified within the Contract Documents. Copies shall be reviewed, marked, stamped and approved on each and every copy by the Contractor prior to submission to the Owner or they shall be returned without review or action. The Owner shall review with reasonable promptness, making corrections, rejections, or other actions as appropriate. The Owner’s approval or actions on shop/setting drawings, schedules, cut sheets, products, product data, or samples shall not relieve the Contractor from responsibility for, nor deviating from, the requirements of the plans and specifications. Any deviations from the plans and specifications requested or made by the Contractor shall be brought promptly to the attention of the Owner, Engineer and GC/CM. 3.12.10. Cost for Re-Submissions: the Contractor is responsible for ensuring that all shop drawings, product data, samples, and submittals contain all information required by the Contract Documents to allow the Owner to take action. The Contractor shall pay the Owner’s cost of reviewing any submittal item exceeding two reviews for the same item. Such costs shall be deducted from the contract sum by Change Order. 3.13. USE OF SITE 3.13.1. The Contractor shall confine operations at the site to areas permitted by law, ordinances, permits and the Contract Documents and shall not unreasonably encumber the site with materials or equipment. Only materials and equipment which are to be used in the Work shall be brought to and stored on the Project Site by the Contractor. 3.13.2. The Contractor shall not damage, endanger, compromise or destroy any part of the Project or the site, including but not limited to work performed by others, monuments, stakes, bench marks, survey points, utilities, existing features or structures. The Contractor shall be fully and exclusively responsible for and bear all costs and delays (including and costs of delay) for any damage, endangerment, compromise, or destruction of any part of the Project or site. 3.13.3. The Contractor shall coordinate his operations with the Owner, Engineer and GC/CM in order that the Owner will have maximum use of existing facilities surrounding the area of the Work, as agreed upon, at all times during normal working hours. Contractor further agrees to coordinate his operations so as to avoid interference with the Owner’s normal operations to as great an extent as possible. 3.13.4. Except as may be specifically provided in the Contract Documents, the Contractor shall provide all necessary temporary facilities, including power, water, sanitation, scaffolding, storage, and reasonable security. If Owner makes any such facilities available to Contractor, it is without representation or warranty as to their adequacy for Contractor's use, and Contractor shall indemnify, defend, and hold Owner harmless from and against any claims arising out of Contractor's use of such facilities. 3.13.5. The Contractor shall ensure that the Work, at all times, is performed in a manner that affords reasonable access, both vehicular and pedestrian, to the site of the Work and all adjacent areas. The Work shall be performed, to the fullest extent reasonably possible, in such a manner that public areas adjacent to the site of the Work shall be free from all debris, building materials and equipment likely to cause hazardous conditions. Without limitation of any other provision of the Contract Documents, Contractor shall not interfere with the occupancy or beneficial use of (1) 146 Bogert Pool Renovation Project 51 any areas and buildings adjacent to the site of the Work or (2) the Building in the event of partial occupancy, without prior approval of the Owner. 3.13.6. The Contractor shall, for the duration of this Agreement, maintain all areas used by it in performance of the contract free from excessive dust as reasonably determined and directed by the Owner, and shall comply with the OSHA standards and those of all other regulatory agencies, statutes and laws. Industry accepted methods of dust control suitable for the areas involved will be permitted, where such is in compliance with the foregoing and with the approval of the Owner. No separate payment will be made for dust control beyond what may be previously approved by Owner as a General Condition Cost or as included in as a subcontract package item. 3.13.7. The Contractor shall perform all work in strict conformity with all applicable laws, rules and regulations relating to pollution of any land, stream, and the atmosphere. The Contractor shall, at its expense, provide suitable facilities to prevent the introduction of any substances or materials onto the land, or into any stream, river, lake or other body of water including groundwater. 3.13.8. The Contractor shall not permit or suffer the introduction or use of tobacco or any intoxicants, including alcohol or illegal drugs, upon the Project site. 3.13.9. In the event that any items of archeological or historical value are discovered by Contractor or any of its Subcontractors or any of their representatives or employees, the Contractor shall immediately notify the Owner, Engineer and GC/CM and await Owner’s decision before proceeding with any work. Any item found shall not be the Contractor’s property and shall be promptly delivered to the Owner. 3.14. CUTTING AND PATCHING 3.14.1. The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. 3.14.2. The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of the Owner or separate contractors by cutting, patching or otherwise altering such construction, or by excavation. The Contractor shall not cut or otherwise alter such construction by the Owner or a separate contractor except with written consent of the Owner and of such separate contractor; such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the Owner or a separate contractor the Contractor's consent to cutting or otherwise altering the Work. 3.15. WORK HOURS, CLEAN UP, AND SITE CONTROL 3.15.1. Work will be performed in accordance with the Contract Documents and the Bozeman Municipal Code or other applicable law governing the Contractor’s performance of the Work. No delays resulting from compliance with applicable laws or regulations may form the basis for any claim by the Contractor for delay damages or additional compensation or for any extensions of the Contract Time. Daily work hours shall be limited to those stipulated by Bozeman Municipal Code section 16.06.090. Normal work hours for Owner’s testing agencies shall be defined as Monday through Friday, 8:00 a.m. to 5:00 p.m. except State or Federal holidays. Contractor shall provide a minimum of 24 hours’ notice to Owner for any testing or inspection that Contractor requires of Owner or Owner’s designated representatives outside of normal business hours and shall be responsible for payment of same to the appropriate party for off-hours Work. The 147 Bogert Pool Renovation Project 52 Contractor must notify the Owner as soon as possible if Work must be performed outside such times in the interest of the safety and protection of persons or property at the Site or adjacent thereto, or in the event of an emergency. In no event shall the Contractor permit Work to be performed at the Site without the presence of the Contractor’s superintendent or person responsible for the protection of persons and property at the Site and compliance with all applicable laws and regulations, if different from the superintendent. 3.15.2. The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract during performance of the Work and at the direction of the Owner. Contractor must keep tools, construction equipment, machinery and surplus materials suitably stored when not in use. At completion of the Work, the Contractor shall remove from and about the Project waste materials, rubbish, the Contractor's tools, construction equipment, machinery and surplus materials. 3.15.3. The Contractor must comply with the Bozeman Municipal Code (Chpt. 16, Article 6) (Noise) and any successor or substitute provisions covering the regulation of noise. It is the duty of the Contractor to familiarize itself with those provisions and perform the Work in compliance with those provisions. 3.15.4. If the Contractor fails to clean up in a manner reasonably satisfactory to the Owner within forty-eight (48) hours after notice or as otherwise required by the Contract Documents, the Owner may clean the Site and back charge the Contractor for all costs associated with the cleaning. 3.16. ACCESS TO WORK 3.16.1. The Contractor shall provide the Owner access to the Work at all times wherever located. 3.17. ROYALTIES, PATENTS AND COPYRIGHTS 3.17.1. The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of copyrights and patent rights and shall hold the Owner harmless from loss on account thereof. 3.18. INDEMNIFICATION 3.18.1. To the fullest extent permitted by law, the Contractor shall indemnify, defend, and hold harmless the Owner and Owner’s agents and employees (the “Indemnitees”) from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, liabilities (including liability where activity is inherently or intrinsically dangerous), or damages of whatever kind or nature connected therewith occasioned by, growing or arising out of or resulting from or in any way related to (a) the negligent, reckless, or intentionally wrongful acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable; provided that the Contractor shall not be required to indemnify the Indemnitees to the extent damages arise out of bodily injury to persons or damage to property caused by or resulting from negligence of the Owner, its agents, officers, or employees, Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist as to an Indemnitee. 3.18.2. Contractor’s indemnity under this Section 3.18 shall be without regard to and without any right to contribution from any insurance maintained by Owner. 148 Bogert Pool Renovation Project 53 3.18.3. In claims against any person or entity indemnified under this Paragraph 3.18 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under Subparagraph 3.18.1 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers' compensation acts, disability benefit acts or other employee benefit acts. 3.18.4. Contractor’s obligations under this Section 3.18 shall survive termination of the Contract and completion of the Project. 4. ARTICLE 4- ADMINISTRATION OF THE CONSTRUCTION CONTRACT 4.1 OWNER’S ADMINISTRATION OF THE CONSTRUCTION CONTRACT 4.1.1. The Owner will provide administration of the Contract as described in the Contract Documents throughout the complete duration of the project. 4.1.2. The Owner will organize a pre-construction conference between the parties to discuss design and construction of the project, including timelines and costs. 4.1.3. The Owner will visit the site at intervals appropriate to the stage of the contractor’s operations to: (1) become generally familiar with the progress and quality of the portion of the Work Completed; and (2) to determine in general if the Work is being performed in a manner indicating that the Work, when fully completed will be in accordance with the Contract Documents. However, the Owner will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Contractor’s Work. The Owner will neither have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences or procedures, for the safety of any person involved in the work or for the safety precautions and programs in connection with the Work, since these are solely the Contractor’s rights and responsibilities under the Contract Documents. 4.1.4. The Owner will not be responsible for the Contractor’s failure to perform the Work in accordance with the requirements of the Contract Documents. The Owner will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or any other persons or entities performing portions of the Work. 4.1.5. Communications Facilitating Contract Administration. Communications by and with Subcontractors and material suppliers shall be through the Contractor to the Owner. Communications by and with separate contractors shall be through the Owner to the Contractor. 4.1.6. The Owner will review and certify the amounts due the Contractor. 4.1.7. The Owner will have authority to reject Work that does not conform to the Contract Documents. Whenever the Owner considers it necessary or advisable, the Owner will have authority to require inspection or testing of the Work in accordance with the General Conditions and any applicable technical specification requirements, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Owner nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Owner to the contractor, Subcontractors, material and equipment suppliers, their agents or employees or other persons or entities performing portions of the Work. 149 Bogert Pool Renovation Project 54 4.1.8. The Owner will review and approve or take other appropriate action upon the Contractor’s submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. Unless otherwise agreed to by the parties, the Owner’s action will be taken within seven (7) days or such shorter period as is necessary to cause no delay in the Work of in the activities of the Owner, Contractor or separate contractors, while allowing sufficient time to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions of installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Owner’s review of the Contractor’s submittals shall not relieve the Contractor of the obligations under Paragraphs 3.3, 3.5, and 3.12. The Owner’s review shall not constitute approval of safety precautions or unless otherwise specifically stated by the Owner, of any constructions means, methods, techniques, sequences or procedures. The Owner’s approval of a specific item shall not indicate approval of an assembly of which the item is a component. 4.1.9. The Contractor will prepare Change Orders and Construction Change Directives for Owner’s approval. The Contractor will investigate and make recommendations regarding concealed and unknown conditions as provided in Section 3.7.4. 4.1.10. The Owner will conduct inspections to determine the date or dates of Substantial Completion and the date of Final Acceptance, will receive written warranties and related documents required by the Contract and assembled by the Contractor. 4.1.11. The Owner’s observations or inspections do not alleviate any responsibility on the part of the Contractor. The Owner reserves the right to observe and inspect the work and make comment. Action or lack of action following observation or inspections is not to be construed as approval of Contractor’s performance. 4.2 CLAIMS AND DISPUTES 4.2.1. Definition. A Claim is a written demand or assertion by one of the parties seeking, as a matter of right, adjustment or interpretation of Contract terms, payment of money, extensions of time or other relief with respect to the terms of the Contract. The term "Claim" also includes other disputes, controversies, and matters in question between the Owner and Contractor arising out of or relating to the Contract. Claims must be initiated by written notice. The responsibility to substantiate Claims shall rest solely with the party making the Claim. 4.2.1.1. Time Limits on Claims. Claims by either party must be initiated within 21 calendar days after occurrence of the event giving rise to such claim. The following shall apply to the initiation of a claim: 4.2.1.1.1. A written notice of a claim must be provided to the Owner within 21 calendar days after the occurrence of the event or the claim is waived by the claiming party and void in its entirety. 4.2.1.1.2. Claims must be initiated by separate, clear, and distinct written notice within the 21 calendar day time frame to the Owner and must contain the notarized statement in Sub-Paragraph 4.3.1.5 when the claim is made by the Contractor. Discussions in any form with the Owner, whether at the site or not, do not constitute initiation of a claim. Notes in project meeting minutes, email 150 Bogert Pool Renovation Project 55 correspondence, change order proposals, or any other form of documentation does not constitute initiation of a claim. The written notice must be a separate and distinct correspondence provided in hardcopy to the Owner and must delineate the specific event and outline the causes and reasons for the claim whether or not cost or time have been fully determined. Written remarks or notes of a generic nature are invalid in their entirety. Comments made at progress meetings, project site visits, inspections, emails, voice mails, and other such communications do not meet the requirement of providing notice of claim. 4.2.1.1.3. Physical Injury or Physical Damage. Should the Owner or Contractor suffer physical injury or physical damage to person or property because of any error, omission, or act of the other party or others for whose acts the other party is legally and contractually liable, claim will be made in writing to the other party within a reasonable time of the first observance of such physical injury or physical damage but in no case beyond 30 calendar days of the first observance. The notice shall provide sufficient detail to enable the other party to investigate the matter. The provisions of this paragraph shall not be construed as a substitute for or a waiver of the provisions of any applicable statute of limitations or repose. In all such cases, the indemnification provisions of the Contract shall be effectual and the Contractor’s insurance shall be primary and in full effect. 4.2.1.2. All Claims must contain sufficient justification and substantiation with the written notice or they may be rejected without consideration by the Owner with no additional impact or consequence to the Contract Sum, Contract Time, or matter(s) in question in the Claim. 4.2.1.3. If additional compensation is claimed, the exact amount claimed and a breakdown of that amount into the following categories shall be provided with each and every claim: 4.2.1.3.1. Direct costs (as listed in Subparagraph 7.3.9.1 through 7.3.9.5); 4.2.1.3.2. Indirect costs (as defined in Paragraph 7.2.5); and, 4.2.1.3.3. Consequential items (i.e. time extensions, credits, logic, reasonableness, impacts, disruptions, dilution) for the change. 4.2.1.4. If additional time is claimed the following shall be provided with each and every claim: 4.2.1.4.1.The specific number of days and specific dates for which the additional time is sought; 4.2.1.4.2. The specific reasons, causes, and/or effects whereby the Contractor believes that additional time should be granted; and, 4.2.1.4.3. The Contractor shall provide analyses, documentation, and justification of its claim for additional time in accordance with the latest Critical Path Method schedule in use at the time of event giving rise to the claim. 4.2.1.5. With each and every claim, the Contractor shall submit to the Owner a notarized statement containing the following language: 151 Bogert Pool Renovation Project 56 “Under penalty of law (including perjury and/or false/fraudulent claims against the State), the undersigned, (Name) (Title) Of_________________(Company) hereby certifies, warrants, and guarantees that this claim made for Work on this Contract is a true statement of the costs, adjustments and/or time sought and is fully documented and supported under the contract between the parties. _____________ __________ (Signature) (Date)” 4.2.2. Continuing Contract Performance. 4.2.2.1. Pending final resolution of a Claim except as otherwise agreed in writing or as provided in Subparagraph 9.7.1 and Article 14, the Contractor shall proceed diligently with performance of the Contract and the Owner shall continue to make payments in accordance with the Contract Documents on the portion of the Work not involved in a Claim. 4.2.3. Claims for Cost or Time for Concealed or Unknown Conditions. 4.2.3.1. If conditions are encountered at the site which are: (a) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents; or, (b) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then notice by the observing party shall be given to the other parties promptly before conditions are disturbed. 4.2.3.2. The Owner will promptly investigate such conditions and, if they differ materially and cause an increase or decrease in the Contractor's cost of, or time required for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum or Contract Time, or both. If the Owner determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the Owner shall so notify the Contractor in writing, stating the reasons. Claims by either party in opposition to such determination must be made within 21 days after the date of the Owner’s decision. 4.2.3.3. If the conditions encountered are materially different, the Contract Sum and Contract Time shall be equitably adjusted. 4.3.3.4. Nothing in this paragraph shall relieve the Contactor of its obligation to adequately and sufficiently investigate, research, and examine the site, the site survey, topographical information, and the geotechnical information available whether included by reference or fully incorporated in the Contract Documents. 152 Bogert Pool Renovation Project 57 4.2.4. Claims for Additional Cost. 4.2.4.1. If the Contractor wishes to make Claim for an increase in the Contract Sum, written notice as provided herein shall be given before proceeding to execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property arising under Paragraph 10.4. 4.2.4.2. If the Contractor believes additional cost is involved for reasons including but not limited to: (a) a written interpretation from the Owner; (b) an order by the Owner to stop the Work solely for the Owner’s convenience or where the Contractor was not at least partially at fault;(c) a written order for a minor change in the Work issued by the Owner; (d) failure of payment by the Owner per the terms of the Contract; (e) termination of the Contract by the Owner; or, (f) other reasonable grounds, Claim must be filed in accordance with this Paragraph 4.2. 4.2.5. Claims for Additional Time 4.2.5.1. If the Contractor wishes to make Claim for an increase in the Contract Time, written notice as specified in these General Conditions shall be provided along with the notarized certification. The Contractor's Claim shall include an estimate of cost and of probable effect of delay on progress of the Work. In the case of a continuing delay for the same event or cause only one Claim is necessary. However, separate and distinct written notice is required for each separate event. 4.2.5.2. Weather Delays: 4.2.5.2.1. If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time, could not have been reasonably anticipated, and had an adverse effect on the scheduled construction activities. 4.2.5.2.2. Inclement or adverse weather shall not be a prima facie reason for the granting of an extension of time, and the Contractor shall make every effort to continue work under prevailing conditions. The Owner may grant an extension of time if an unavoidable delay occurs as a result of inclement/severe/adverse weather and such shall then be classified as a “Delay Day”. Any and all delay days granted by the Owner are and shall be non-compensable in any manner or form. The Contractor shall comply with the notice requirements concerning instances of inclement/severe/adverse weather before the Owner will consider a time extension. Each day of inclement/severe/adverse weather shall be considered a separate instance or event and as such, shall be subject to the notice requirements. 4.2.5.2.3. An “inclement”, “severe”, or “adverse” weather delay day is defined as a day on which the Contractor is prevented by weather or conditions caused by weather resulting immediately there from, which directly impact the current controlling critical-path operation or operations, and which prevent the Contractor from proceeding with at least 75% of the normal labor and equipment force engaged on such critical path operation or operations for at least 60% of the total daily time being currently spent on the controlling operation or operations. 153 Bogert Pool Renovation Project 58 4.2.5.2.4. The Contractor shall consider normal/typical/seasonal weather days and conditions caused by normal/typical/seasonal weather days for the location of the Work in the planning and scheduling of the Work to ensure completion within the Contract Time. No time extensions will be granted for the Contractor’s failure to consider and account for such weather days and conditions caused by such weather for the Contract Time in which the Work is to be accomplished. 4.2.5.2.5. A “normal”, “typical”, or “seasonal” weather day shall be defined as weather that can be reasonably anticipated to occur at the location of the Work for each particular month involved in the Contract Time. Each month involved shall not be considered individually as it relates to claims for additional time due to inclement/adverse/severe weather but shall consider the entire Contract Time as it compares to normal/typical/seasonal weather that is reasonably anticipated to occur. Normal/typical/seasonal weather days shall be based upon U.S. National Weather Service climatic data for the location of the Work or the nearest location where such data is available. 4.2.5.2.6. The Contractor is solely responsible to document, prepare and present all data and justification for claiming a weather delay day. Any and all claims for weather delay days shall be tied directly to the current critical-path operation or operations on the day of the instance or event which shall be delineated and described on the Critical- Path Schedule and shall be provided with any and all claims. The Contractor is solely responsible to indicate and document why the weather delay day(s) claimed are beyond those weather days which are reasonably anticipated to occur for the Contract Time. Incomplete or inaccurate claims, as determined by the Owner, may be returned without consideration or comment. 4.2.5.3. Where the Contractor is prevented from completing any part of the Work with specified durations or phases due to delay beyond the control of both the Owner and the Contractor, an extension of the contract time or phase duration in an equal amount to the time lost due to such delay shall be the Contractor’s sole and exclusive remedy for such delay. 4.2.5.4. Delays attributable to and/or within the control of subcontractors and suppliers are deemed to be within the control of the Contractor. 4.2.5.5. In no event shall the Owner be liable to the Contractor, any subcontractor, any supplier, Contractor’s surety, or any other person or organization, for damages or costs arising out of or resulting from: (1) delays caused by or within the control of the Contractor which include but are not limited to labor issues or labor strikes on the Project, federal, state, or local jurisdiction enforcement actions related directly to the Contractor’s Work (e.g. safety or code violations, etc.); or, (2) delays beyond the control of both parties including but not limited to fires, floods, earthquakes, abnormal weather conditions, acts of God, nationwide material shortages, actions or inaction by utility owners, emergency declarations by federal, state, or local officials enacted in the immediate vicinity of the project, or other contractors performing work for the Owner. 4.2.6. Claims for Consequential Damages. 154 Bogert Pool Renovation Project 59 4.2.6.1. The Contractor and Owner waive Claims against each other for consequential damages arising out of or relating to this Contract. This mutual waiver includes: 4.2.6.1.1. damages incurred by the Owner for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and, 4.2.6.1.2. damages incurred by the Contractor for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, income, and for loss of profit. 4.2.6.2. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination in accordance with Article 14. Nothing contained in this waiver of consequential damages shall be deemed to preclude an award of liquidated or actual damages, when applicable, in accordance with the requirements of the Contract Documents. 4.3. RESOLUTION OF CLAIMS, DISPUTES, AND CONTROVERSIES 4.3.1. Either party may submit a Claim to the other party in accordance with the Contract. After submission of the Claim, the parties will attempt in good faith to resolve the Claim through negotiation. 4.3.2 Upon receipt of a Claim against the Contractor or at any time thereafter, the Owner may, but is not obligated to, notify the surety, if any, of the nature and amount of the Claim. If the Claim relates to a possibility of a Contractor's default, the Owner may, but is not obligated to, notify the surety and request the surety's assistance in resolving the controversy. 4.3.3. A Claim subject to or related to liens or bonds shall be governed by applicable law regarding notices, filing deadlines, and resolution of such Claim prior to any resolution of such Claim, by mediation, or by arbitration, except for claims made by the Owner against the Contractor’s bonds. 4.3.4. Pending final resolution of a Claim including mediation, arbitration (if mutually agreed to by the Parties), or court proceedings, unless otherwise mutually agreed in writing, the Contractor shall proceed diligently with performance of the Contract and the Owner shall continue to make payments in accordance with the Contract on Work or amounts not in dispute. 4.4. MEDIATION 4.4.1. Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived as provided for in Subparagraphs 4.3.6, 7.2.6, 7.3.8, 9.10.4 and 9.10.5 shall, 30 days after submission of the Claim to the Owner, be subject to mediation as a condition precedent to the institution of legal or equitable proceedings by either party. 4.4.2. The parties shall endeavor to resolve their Claims by mediation administered by a Dispute Resolution Board established pursuant to the Dispute Resolution Board Foundation’s Practice and Procedural Manual. The parties must enter into a separate agreement establishing, among others, the scope of work of the DRB, the responsibilities of the parties, the time for completion of the DRB’s process, payment to DRB members, and whether the decision or findings of the DRB will be binding or admissible in other proceedings. The parties may, by mutual agreement, submit to mediation administered by a neutral third party mediator in 155 Bogert Pool Renovation Project 60 accordance with American Arbitration Association procedures in effect on the date the Claim is made in lieu of a DRB. 4.4.3. The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. 5. ARTICLE 5 – SUBCONTRACTORS 5.1. DEFINITION 5.1.1. A Subcontractor is a person or entity who has a direct or indirect contract at any tier or level with the Contractor or any Subcontractor to the Contractor to perform a portion of the Work at the site. The term "Subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor. 5.2. AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK 5.2.1. Unless otherwise stated in the Contract Documents, the Contractor, as soon as practicable after award of the Contract and in no instance later than (30) days after award of the Contract, shall furnish in writing to the Owner, and if applicable, the Engineer and GC/CM, the names of persons or entities (including those who are to furnish materials or equipment fabricated to a special design) proposed for each principal portion of the Work. The Owner will promptly reply to the Contractor in writing stating whether or not the Owner, after due investigation, has reasonable objection to any such proposed person or entity. 5.2.2. The Contractor shall not contract with a proposed person or entity to which the Owner has made reasonable and timely objection. The Contractor shall not be required to contract with anyone to whom the Contractor has made reasonable objection. 5.2.3. If the Owner has reasonable objection to a person or entity proposed by the Contractor, the Contractor shall propose another to whom the Owner has no reasonable objection. If the proposed but rejected Subcontractor was reasonably capable of performing the Work, the Contract Sum and Contract Time shall be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall be issued before commencement of the substitute Subcontractor's Work. However, no increase in the Contract Sum or Contract Time shall be allowed for such change unless the Contractor has acted promptly and responsively in submitting names as required. 5.2.4. The Contractor shall not change a Subcontractor, person or entity previously selected if the Owner makes reasonable objection to such substitute. 5.3. SUBCONTRACTUAL RELATIONS 5.3.1. By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of the 156 Bogert Pool Renovation Project 61 Subcontractor's Work, which the Contractor, by these Documents, assumes toward the Owner. Each subcontract agreement shall preserve and protect the rights of the Owner under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow to the Subcontractor, unless specifically provided otherwise in the subcontract agreement, the benefit of all rights, remedies and redress against the Contractor that the Contractor, by the Contract Documents, has against the Owner. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub-subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor will be bound, and, upon written request of the Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontract agreement which may be at variance with the Contract Documents. Subcontractors will similarly make copies of applicable portions of such documents available to their respective proposed Sub-subcontractors. 5.3.2. Upon written request by the Owner, the Contractor shall require its subcontractors to provide to it performance and payment securities for their portion of the Work in the types and form defined in statute (18-2-201 and 18-2-203 MCA) for all sub-contractual agreements. 5.3.3. The Contractor shall prepare a Subcontractors’ and Suppliers’ chart in a format acceptable to the Owner which lists by name, all contact information, job category, and responsibility the Contractor’s Subcontractors (at all tiers or levels) and Suppliers with a pecuniary interest in the Project of greater than $5,000.00. The chart shall be provided to the Owner at the time of the pre-construction conference but no less than 30 days after receiving the Notice to Proceed for construction. 5.3.4. All Contractors and Subcontractors to this contract must comply with all Montana Department of Labor and Industry requirements, regulations, rules, and statutes. 5.3.5. In compliance with state statutes, the Contractor will have the 1% Gross Receipts Tax withheld from all payments. Each "Public Contractor" includes all Subcontractors with contracts greater than $5,000 each. The Contractor and all Subcontractors will withhold said 1% from payments made to all Subcontractors with contracts greater than $5,000.00 and make it payable to the Montana Department of Revenue. The Contractor and all Subcontractors shall also submit documentation of all contracts greater than $5,000.00 to the Montana Department of Revenue on the Department’s prescribed form. 5.4. CONTINGENT ASSIGNMENT OF SUBCONTRACTS 5.4.1. Each subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner provided that: 5.4.1.1. assignment is effective only after termination of the Contract by the Owner for cause pursuant to Paragraph 14.2 and only for those subcontract agreements which the Owner accepts by notifying the Subcontractor and Contractor in writing; and, 5.4.1.2. assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the Contract. 5.4.2. Upon such assignment, if the Work has been suspended for more than 30 days as a result of the Contractor’s default, the Subcontractor's compensation shall be equitably adjusted 157 Bogert Pool Renovation Project 62 for increases in cost resulting from the suspension. Such adjustment shall be at the expense of the Contractor. 5.4.3. The Contractor shall engage each of its subcontractors and suppliers with written contracts that preserve and protect the rights of the Owner and include the acknowledgement and agreement of each subcontractor and supplier that the Owner is a third-party beneficiary of their sub-contractual and supplier agreements. The Contractor’s agreements shall require that in the event of default by the Contractor or termination of the Contractor, and upon request of the Owner, the Contractor’s subcontractors and suppliers will perform services for the Owner. 5.4.4. Construction Contractor Registration: All Subcontractors at any tier or level are required to be registered with the Department of Labor and Industry under 39-9-201 and 39-9-204 MCA prior to the Contract being executed by the Owner. Subcontractors shall demonstrate to the Contractor that it has registered or promises that it will register immediately upon notice of award and prior to the commencement of any work. 6. ARTICLE 6 – CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 6.1. OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS 6.1.1. The Owner reserves the right to perform construction or operations related to the Project with the Owner's own forces, and to award separate contracts in connection with other portions of the Project or other construction or operations on the site under Conditions of the Contract identical or substantially similar to these including those portions related to insurance. If the Contractor claims that delay or additional cost is involved because of such action by the Owner, the Contractor shall make such Claim as provided in Paragraph 4.3. 6.1.2. When separate contracts are awarded for different portions of the Project or other construction or operations on the site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate Owner-Contractor Agreement. 6.1.3. The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall participate with other separate contractors and the Owner in reviewing their construction schedules when directed to do so. The Contractor shall make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement. The construction schedules shall then constitute the schedules to be used by the Contractor, separate contractors and the Owner until subsequently revised. 6.1.4. Unless otherwise provided in the Contract Documents, when the Owner performs construction or operations related to the Project with the Owner's own forces, the Owner shall be deemed to be subject to the same obligations and to have the same rights which apply to the Contractor under the Conditions of the Contract, including, without excluding others, those stated in Article 3, this Article 6 and Articles 10, 11 and 12. 6.2. MUTUAL RESPONSIBILITY 6.2.1. The Contractor shall afford the Owner and separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities, 158 Bogert Pool Renovation Project 63 and shall connect and coordinate the Contractor's construction and operations with theirs as required by the Contract Documents. 6.2.2. If part of the Contractor's Work depends for proper execution or results upon construction or operations by the Owner or a separate contractor, the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Owner apparent discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results. Failure of the Contractor so to report shall constitute an acknowledgment that the Owner's or separate contractor's completed or partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not then reasonably discoverable. 6.2.3. The Contractor shall reimburse the Owner for costs the Owner incurs which are payable to a separate contractor because of delays, improperly timed activities or defective construction of the Contractor. The Owner shall be responsible to the Contractor for costs incurred by the Contractor because of a separate contractor’s delays, improperly timed activities, damage to the Work or defective construction. 6.2.4. The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed construction or to property of the Owner or separate contractors as provided in Subparagraph 10.2.5. 6.2.5. The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Subparagraph 3.14. 6.2.6. If a Subcontractor or separate contractor initiates legal or other proceedings against the Owner on account of damage alleged to have been caused by the Contractor or its employees, agents, or subcontractors, the Owner shall notify the Contractor who shall defend such proceedings at its own expense, and if judgment or award against the Owner arises therefrom, the Contractor shall pay or satisfy it and shall reimburse the Owner for attorneys’ fees and court or other costs which the Owner has incurred over and above those paid for directly by the Contractor. 6.3. OWNER'S RIGHT TO CLEAN UP 6.3.1. If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish, the Owner may clean up and determine the responsibility of those involved and allocate the cost accordingly. 7. ARTICLE 7 – CHANGES IN THE WORK 7.1. GENERAL 7.1.1. Changes in the Work may be accomplished after execution of the Contract, and without invalidating the Contract, by Change Order, Construction Change Directive, or order for a minor change in the Work subject to the limitations stated in this Article 7 and elsewhere in the Contract Documents. 7.1.2. A Change Order shall be based upon agreement among the Owner and Contractor; a Construction Change Directive is determined by the Owner or Engineer and may or may not be agreed to by the Contractor; an order for a minor change in the Work may be issued by the Owner alone. 159 Bogert Pool Renovation Project 64 7.1.3. Changes in the Work shall be performed under applicable provisions of the Contract Documents and the Contractor shall proceed promptly, unless otherwise provided in the Change Order, Construction Change Directive, or order for a minor change in the Work. 7.1.4. No act, omission, or course of dealing, shall alter the requirement that Change Orders or Construction Change Directives shall be in writing and signed by the Owner, and that Change Orders and Construction Change Directives are the exclusive method for effecting any adjustment to the Contract. The Contractor understands and agrees that neither the Contract Sum nor the Contract Time can be changed by implication, oral agreement, verbal directive, or unsigned Change Order. 7.2. CHANGE ORDERS 7.2.1. A Change Order is a written instrument prepared and signed by the Owner and Contractor, stating their agreement upon all of the following: 7.2.1.1. change in the Work; 7.2.1.2. the amount of the adjustment, if any, in the Contract Sum; and, 7.2.1.3. the extent of the adjustment, if any, in the Contract Time. 7.2.2. The cost or credit to the Owner resulting from a change in the Work shall be determined as follows: 7.2.2.1. per the limitations of this Subparagraph. The allowance for overhead and for profit are limited to the percentage as specified herein unless they are determined to be unreasonable by the Owner (not the Contractor) per Subparagraph 7.3.9 for each Change Order or Construction Change Directive; or, 7.2.2.2. by one of the methods in Subparagraph 7.3.4, or as determined by the Owner per Subparagraph 7.3.9. Subcontractors shall be limited to a maximum total combined allowance of 15.0% for overhead and profit. The allowances for overhead and for profit are limited to the percentages as specified herein unless they are determined to be unreasonable by the Owner (not the Contractor) per Subparagraph 7.3.9 for each Change Order or Construction Change Directive. 7.2.2.3. The Contractor’s proposed increase or decrease in cost shall be limited to costs listed in Subparagraph 7.3.9.1 through 7.3.9.5. 7.2.3. The Contractor shall not submit any Change Order, response to requested cost proposals, or requested changes which are incomplete and do not contain full breakdown and supporting documentation in the following three areas: 7.2.3.1. Itemized direct costs (only those listed in Subparagraph 7.3.9.1 through 7.3.9.5 are allowable); 7.2.3.2. Itemized indirect costs (limited as a percentage on each Change Order per Supplementary General Conditions, Paragraph 7.2.2); and 7.2.3.3. Itemized consequential items (e.g. time extensions, credits, logic, reasonableness, impacts, disruptions, dilution). 160 Bogert Pool Renovation Project 65 7.2.3.4. The Contractor shall provide a complete description detailing and summarizing all work involved. 7.2.4. Any Change Order, responses to requested proposals, or requested changes submitted by the Contractor which are incomplete, may be rejected and returned to the Contractor without comment. It is the responsibility of and incumbent upon the Contractor to ensure and confirm that all Change Orders, responses to requested proposals, or requested changes are complete prior to submission. 7.2.5. Overhead, applicable to all areas and sections of the Contract Documents, means “Indirect Costs” as referenced in Subparagraph 7.2.3.2. Indirect costs are inclusive of, but not limited to, the following: home office overhead; off-site supervision, except as directly related to the work; home office project management, except as directly related to the work; effects of disruption and dilution of management and supervision off-site; time delays; coordination of trades; postage and shipping; and, effective increase in guarantee and warranty durations. Indirect costs applicable to any and all changes in the work, either through Change Order or Construction Change Directive, are limited to the percentage allowance for overhead in Subparagraph 7.2.2. 7.2.6. By signature on any Change Order, the Contractor certifies that the signed Change Order is complete and includes all direct costs, indirect costs and consequential items (including additional time, if any) and is free and clear of all claims or disputes (including, but not limited to, claims for additional costs, additional time, disruptions, and/or impacts) in favor of the Contractor, subcontractors, material suppliers, or other persons or entities concerning the signed change order and on all previously contracted Work and does release the Owner from such claims or demands. 7.2.7. Any and all changes or adjustments to the Contract Time requested or claimed by the Contractor as a result of a Change Order shall require documentation and justification for the adjustment by a Critical Path Method analysis of the Contractor’s most recent Critical Path Schedule in use prior to the change. Changes which affect or concern activities containing float or slack time (i.e. not on the critical path) and which can be accomplished within such float or slack time, shall not result in an increase in the Contract Time. 7.2.8. Supervision means on-site, field supervision and not home office overhead, off-site management or off- site supervision, except as directly related to the work. 7.2.9. Labor means those persons engaged in construction occupations as defined in Montana Prevailing Wage Rates for Building Construction or Heavy/Highway as bound in the Contract Documents and does not include design, engineering, superintendence, management, on-site field supervision, home office or other off-site management, off-site supervision, office or clerical work. 7.2.10. No such change is effective until the Owner signs the Change Order. 7.3. CONSTRUCTION CHANGE DIRECTIVES 7.3.1. A Construction Change Directive is a written order prepared and signed by the Owner or Engineer, directing a change in the Work prior to agreement on adjustment, if any, in the Contract Sum or Contract Time, or both. The Owner or Engineer, may, by Construction Change Directive, without invalidating the Contract, order changes in the Work within the general scope of the 161 Bogert Pool Renovation Project 66 Contract consisting of additions, deletions or other revisions, the Contract Sum and Contract Time being adjusted accordingly. 7.3.2. Any and all changes or adjustments to the Contract Time requested or claimed by the Contractor as a result of a Construction Change Directive, shall require documentation and justification for the adjustment by a Critical Path Method analysis of the Contractor’s most recent Critical Path Schedule in use prior to the change. Changes that affect or concern activities containing float or slack time (i.e. not on the critical path) and which can be accomplished within such float or slack time shall not result in an increase in the Contract Time. 7.3.3. A Construction Change Directive shall be used in the absence of agreement on the terms of a Change Order. 7.3.4. If the Construction Change Directive provides for an adjustment to the Contract Sum, the adjustment shall be based on one of the following methods: 7.3.4.1. mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; 7.3.4.2. unit prices stated in the Contract Documents or subsequently agreed upon; 7.3.4.3. cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee; 7.3.4.4. by actual cost as shown by the Contractor's and Subcontractor's itemized invoices; or 7.3.4.5. as provided in Subparagraph 7.3.9. 7.3.5. Costs shall be limited to the following: cost of materials, including cost of delivery; cost of labor, including social security, old age and unemployment insurance and fringe benefits under collective bargaining agreements; workers' compensation insurance; bond premiums; and rental value of power tools and equipment. 7.3.6. Overhead and profit allowances shall be limited on all Construction Change Directives to those identified in 7.2.2. 7.3.7. Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the change in the Work involved and advise the Owner or Engineer of the Contractor's agreement or disagreement with the method, if any, provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time. 7.3.8. A Construction Change Directive signed by the Contractor indicates the agreement of the Contractor therewith, including adjustment in Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective immediately and shall be recorded as a Change Order. 7.3.9. If the Contractor does not respond or disagrees with the method for adjustment in the Contract Sum in writing within seven (7) calendar days, the method and the adjustment made shall be determined by the Owner on the basis of reasonable expenditures and/or savings of those performing the Work directly attributable to the change including, in the case of an increase in the Contract Sum, plus an allowance for overhead and profit as listed under Subparagraph 7.2.2. In such case, and also under Clause 7.3.4.3, the Contractor shall keep and present, in 162 Bogert Pool Renovation Project 67 such form as the Owner may prescribe, an itemized accounting together with appropriate supporting data. Unless otherwise provided in the Contract Documents, costs for the purposes of this Subparagraph 7.3.9 shall be limited to the following: 7.3.9.1. costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or custom, and workers' compensation insurance as determined by the Prevailing Wage Schedules referenced in the Contract Documents; 7.3.9.2. costs of materials, supplies and equipment, including cost of transportation, whether incorporated or consumed; 7.3.9.3. rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or others; 7.3.9.4. costs of premiums for all bonds and insurance, permit fees, and sales, use or similar taxes related to the Work; and, 7.3.9.5. additional costs of field supervision and field office personnel directly attributable to the change. 7.3.10. The amount of credit to be allowed by the Contractor to the Owner for a deletion or change which results in a net decrease in the Contract Sum shall be actual net cost. When both additions and credits covering related Work or substitutions are involved in a change, the allowance for overhead and profit shall be figured on the basis of net increase, if any, with respect to that change. 7.3.11. Pending final determination of the total cost of a Construction Change Directive to the Owner, amounts not in dispute for such changes in the Work shall be included in Applications for Payment accompanied by a Change Order indicating the parties' agreement with part or all of such costs. 7.3.12. When the Owner and Contractor agree with the adjustments in the Contract Sum and Contract Time, or otherwise reach agreement upon the adjustments, such agreement shall be effective immediately and shall be recorded by preparation and execution of an appropriate Change Order. Change Orders may be issued for all or any part of a Construction Change Directive. 7.4. MINOR CHANGES IN THE WORK 7.4.1. The Owner will have authority to order minor changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order and shall be binding on the Owner and Contractor. The Contractor shall carry out such written orders promptly. 8. ARTICLE 8 – TIME 8.1. DEFINITIONS 8.1.1. Time is of the essence in performance, coordination, and completion of the Work contemplated herein. The Owner may suffer damages if the Work is not completed as specified herein. When any duration or time period is referred to in the Contract Documents by days, the first day shall be determined as the day following the current day of any event or notice starting a specified duration. 163 Bogert Pool Renovation Project 68 8.1.2. Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of the Work. 8.1.3. The date of commencement of the Work is the date established in the NOTICE TO PROCEED AS ISSUED BY THE OWNER. 8.1.4. The date the Contractor reaches Substantial Completion is the date certified by the Owner in accordance with Paragraph 9.8. 8.1.5. The term "day" as used in the Contract Documents shall mean calendar day unless otherwise specifically defined. 8.1.6. Liquidated Damages. The Contractor acknowledges that the Owner will sustain damages as a result of the Contractor’s failure to substantially complete the Project in accordance with the Contract Documents. These damages may include, but are not limited to delays in completion, use of the Project, engineering costs to complete the Project, and costs associated with Contract administration and use of temporary facilities. The Contractor and the Owner acknowledge that the actual amount of damages would be difficult to determine accurately and agree that that the following liquidated damages figure represents a reasonable estimate of such damages and is not a penalty: 8.1.6.1 The Contractor and his surety shall be liable for and shall pay to the Owner the sums hereinafter stipulated as liquidated damages for each calendar day of delay until the Work is substantially complete: One Thousand Dollars ($1000.00). 8.1.7. The Contractor shall not be charged liquidated or actual damages when delay in completion of the Work is due to: 8.1.7.1. Any preference, priority or allocation order issued by the government; 8.1.7.2. Unforeseeable cause beyond the control and without the fault or negligence of the Contractor, such as acts of God or of the public enemy, fires, floods, epidemics, quarantine restrictions, freight embargoes, and unusually severe weather. All such occurrences resulting in delay must be documented and approved by Change Order; or, 8.1.7.3. Any delays of Subcontractors or suppliers occasioned by any of the causes specified in 8.1.7.1 and 8.1.7.2 of this article. 8.1.8. The Contractor is completely obligated and responsible to provide written notice of each day of delay as provided for in Paragraph 4.3. If delays to the Project are encountered for any reason, the Contractor and Owner shall collaborate and mutually take reasonable steps to mitigate the effects of such delays, regardless of cause or fault. In order to mitigate the effects of delays, it is incumbent upon and the responsibility of the Contractor to provide notification of delays as provided in Paragraph 3.10.8. The Owner may require the Contractor to accelerate its Work or Services by increasing workers and equipment, working overtime, or scheduling additional shifts. If the Contractor is behind schedule for reasons other than delays beyond the control of both parties as provided in Paragraph 4.5.3.5 or compensable delays, the acceleration costs will be borne by the Contractor who may allocate Contractor’s Contingency in payment of such costs. If the Contractor is directed to accelerate to overcome an Owner-caused delay that would otherwise entitle the Contractor to an extension of the Contract Time and/or additional compensation, then the corresponding cost increase of acceleration shall be attributable to the Owner. 164 Bogert Pool Renovation Project 69 8.1.9. Contract Time. All work shall reach Substantial Completion (or Final Acceptance) by the date fixed in the Guaranteed Maximum Price Amendment. 8.2. PROGRESS AND COMPLETION 8.2.1. Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Contract the Contractor confirms that the Contract Time is a reasonable period for performing the Work. 8.2.2. The Contractor shall not knowingly, except by agreement or instruction of the Owner in writing, prematurely commence operations on the site or elsewhere prior to the date on the Notice to Proceed and in no case prior to the effective date of insurance required by Article 11 to be furnished by the Contractor. The date of commencement of the Work shall not be changed by the effective date of such insurance. 8.2.3. The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial Completion within the Contract Time. 8.2.4. If the Contractor falls behind the latest construction schedule by more than 14 calendar days through its own actions or inaction, neglect, inexperience, lack of oversight and management of the Work including that of any Subcontractors, written notice to the Owner, Engineer and GC/CM shall be provided within three (3) days with explanation of how the Contractor intends to get back on schedule. Response to getting back on schedule consists of providing a sufficient number of qualified workers and/or proper materials or an acceptably reorganized schedule to regain the lost time in a manner acceptable to the Owner. 8.2.5. Completion of the work within the stated time and/or by the date stated on the Notice to Proceed is of the essence of this Contract and failure to complete, without approved time extension, may be considered default of the Contract. At the time for completion as stated on the Notice to Proceed or as extended by approved change order, if the work is not substantially complete, the Owner may notify the Contractor and the Contractor’s surety company in writing of the recourse the Owner intends to take, within the Contract, to assess liquidated damages and /or cause the Work to be completed. 8.3. DELAYS AND EXTENSIONS OF TIME 8.3.1. If the Contractor is delayed at any time in the commencement or progress of the Work by an act or neglect of the Owner, or of Owner’s employees, or of a separate contractor employed by the Owner, or by changes ordered in the Work, or by fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the Contractor's control, or by delay authorized by the Owner pending mediation or other alternative dispute resolution, or by other causes which may justify delay (“Excusable Delay”), then the Contract Time shall be extended by Change Order for such reasonable time as the Owner may determine. 8.3.2. Claims relating to time shall be made in accordance with applicable provisions of Paragraph 4.3. 8.3.3. This Paragraph 8.3 does not preclude recovery of damages for delay by either party under other provisions of the Contract Documents. 9. ARTICLE 9 – PAYMENTS AND COMPLETION 165 Bogert Pool Renovation Project 70 9.1. CONTRACT SUM 9.1.1. The Contract Sum is stated in the Contract and, including authorized adjustments, is the total amount payable by the Owner to the Contractor for performance of the Work under the Contract Documents. 9.2. SCHEDULE OF VALUES 9.2.1. Before the first Application for Payment, the Contractor shall submit to the Owner a schedule of values allocating the entire Contract Sum to various portions of the Work, prepared in such form and supported by such data to substantiate its accuracy as the Owner may require. This schedule shall be used as a basis for reviewing the Contractor's Applications for Payment. 9.3. APPLICATIONS FOR PAYMENT 9.3.1. The Contractor shall submit to the Owner itemized Applications for Payment for Work completed on a monthly basis in accordance with a schedule approved by the Owner. Each Application for Payment must be consistent with the Schedule of Values. Such application shall be signed and supported by such data substantiating the Contractor's right to payment as the Owner may require, such as copies of requisitions from Subcontractors and material suppliers, and reflecting retainage if provided for in the Contract Documents. 9.3.2. The form of Application for Payment must be mutually agreed to by the Owner and Contractor. The application must be supported by sufficient data to demonstrate the Contractor’s right to payment and compliance with the payment provisions of the Contract to the satisfaction of the Owner, such as copies of requisitions from Subcontractors and material suppliers, partial lien waivers, releases and other documents. Each Application for Payment must reflect approved Contract Modifications and the Contract retainage provided for in the Contract Documents. 9.3.3. As provided in Subparagraph 7.3.11, such applications may include requests for payment on account of changes in the Work which have been properly authorized by Construction Change Directives but not yet included in Change Orders. 9.3.4. Applications for Payment shall not include requests for payment for portions of the Work for which the Contractor does not intend to pay to a Subcontractor or material supplier. 9.3.5. Unless otherwise provided in the Contract Documents, payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in advance by the Owner, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by the Contractor with procedures satisfactory to the Owner to establish the Owner's title to such materials and equipment or otherwise protect the Owner's interest, and shall include the costs of applicable insurance, storage and transportation to the site for such materials and equipment stored off the site. 9.3.6. The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall, to the best of the Contractor's knowledge, information and belief, be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or 166 Bogert Pool Renovation Project 71 entities making a claim by reason of having provided labor, materials and equipment relating to the Work. 9.3.7. Until the Work is complete, the Owner will pay 95% of the amount due the Contractor on account of progress payments. For purposes of this section, “complete” shall mean (a) the Contractor has fully performed the Contract; (b) the Contractor has completed all Punch List items to the satisfaction of the Owner; (c) the Contractor has delivered to the Owner all Project close-out documents in duplicate; and (d) the applicable governmental authorities have issued to the Owner the final use and occupancy permit for the Project. 9.3.7.1. If the Work and its progress are not in accordance with all or any part, piece, or portion of the Contract Documents, the Owner may, at its sole discretion and without claim by the Contractor, increase the amount held as retainage to whatever level deemed necessary to effectuate performance and progress of the Work, for anticipated repairs, warranties or completion of the Work by the Contractor or through the letting of other contracts. The Contractor will not be entitled to additional costs, expenses, fees, time, and such like, in the event the Owner increases the amount held as retainage due to non- compliance and/or non-performance with all or any part, piece, or portion of the Contract Documents. 9.3.7.2. Prior to the first Application for Payment, the Contractor shall submit the following information on the appropriate forms: 9.3.7.2.1.Schedule of Values: This form shall contain a breakdown of the costs associated with the various portions of the Work and shall be the basis for the progress payments to the Contractor. 9.3.7.2.2. Project/Progress Schedule: If no Schedule (or revised Schedule) is provided with each and every Application for Payment, the Owner may return the pay request, or hold it, and may choose not pay for any portion of the Work until the appropriate Schedule, indicating all changes, revisions and updates, is provided. No claim for additional costs or interests will be made by the Contractor or any subcontractor on account of holding or non-payment of the Periodic Estimate for Partial Payment request. 9.3.7.3. The Contractor may submit obligations/securities in a form specified in 18-1-301 Montana Code Annotated (MCA) to be held by a Financial Institution in lieu of retainage by the Owner. The Owner will establish the amount that would otherwise be held as retainage. Should the Contractor choose to submit obligations/securities in lieu of retainage, the Owner will require the Financial Institution to execute the Owner’s Account Agreement for Deposit of Obligations Other Than Retainage on such form as shall be acceptable to the City Attorney prior to submission of any obligations/securities in accordance with 18-1-302 MCA. The Contractor must extend the opportunity to participate in all obligations/securities in lieu of retainage on a pro rata basis to all subcontractors involved in the project and shall be solely responsible for the management and administration of same. The Owner assumes no liability or responsibility from or to the Contractor or Subcontractors regarding the latter’s participation. 9.3.7.4. In the Application for Payment, the Contractor must certify in writing that, in accordance with contractual arrangements, Subcontractors and suppliers (a) have been 167 Bogert Pool Renovation Project 72 paid from the proceeds of previous progress payments; and (b) will be paid in a timely manner from the proceeds of the progress payment currently due. In the event the Contractor has not paid or does not pay as certified, such failure constitutes a ground for termination under Section 14.2, unless Owner agrees in Owner’s sole discretion that Contractor has a reasonable basis for not having made the payment. 9.4. PROGRESS PAYMENTS 9.4.1. The Owner shall make payment in the manner and within the time provided in the Contract Documents. 9.4.2. The Contractor shall promptly pay each Subcontractor no later than seven days after receipt of payment from the Owner the amount to which said Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of such Subcontractor's portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub-subcontractors in a similar manner. 9.4.3. The Contractor is prohibited from holding higher amounts in retainage on any Subcontractor than the Owner is holding from the Contractor. 9.4.4. Owner shall not have an obligation to pay, or to see to the payment of, money to a Subcontractor except as may otherwise be required by law. 9.4.5. Contractor payment to material suppliers shall be made timely by Contractor. 9.4.6. Payment, or partial or entire use or occupancy of the Project by the Owner shall not constitute acceptance of Work not in accordance with the Contract Documents. 9.4.7. A one percent (1%) Montana Gross Receipts Tax will be withheld from all payments to the Contractor in accordance with 15-50-205, et seq., MCA. The Contractor shall be responsible for withholding the 1% gross receipts tax from payments made by the Owner to the Contractor for Work performed by Subcontractors and the Contractor will file and transmit the necessary forms to the Montana Department of Revenue attendant to such subcontracts within ten (10) days of the award of the subcontract. All amounts withheld for the 1% gross receipts tax are in addition to any retainage amounts otherwise authorized under the Agreement. 9.5. SUBSTANTIAL COMPLETION 9.5.1. Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use. 9.5.2. When the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept separately, is Substantially Complete, the Contractor shall prepare and submit to the Owner a comprehensive list of items to be completed or corrected (“Punch List”) prior to final payment. Failure to include an item on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. 9.5.3. In addition to the Punch List, the Contractor must submit the following with its request for a determination of Substantial Completion: a. A use and occupancy permit; 168 Bogert Pool Renovation Project 73 b. final test reports as required by the Contract and certificates of inspection and approval required for use and occupancy; c. Fire Inspection or report; d. approvals from, and transfer documents for, all utilities; e. Warranties and Guarantees and provided in this Contract; and f. schedule to complete the Punch List and value of Work not yet complete. 9.5.4. Upon receipt of the Contractor's Punch List, the Owner will make an inspection to determine whether the Work or designated portion thereof is substantially complete. If the Owner's Inspection discloses any item, whether or not included on the Contractor's list, which is not sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work or designated portion thereof for its intended use, the Contractor shall complete or correct such item upon notification by the Owner. 9.5.5. The Contractor shall ensure the project is Substantially Complete prior to requesting any inspection by the Owner so that no more than one (1) inspection is necessary to determine Substantial Completion for all or any portion of the Work. If the Contractor does not perform adequate inspections to develop a comprehensive list as required in Subparagraph 9.8.2 and does not complete or correct such items upon discovery or notification, the Contractor shall be responsible and pay for the costs of the Owner’s additional inspections to determine Substantial Completion. Prior to the inspection, the Contractor shall complete the final clean-up of the Project site which, unless otherwise stated in the Contract Documents, shall consist of: 9.5.5.1 Removal of all debris and waste. All construction debris and waste shall be removed from the campus grounds. Use of the Owner trash containers will not be permitted; 9.5.5.2 Removal of all stains, smears, marks of any kind from surfaces including existing surfaces if said damage is the result of the work; and, 9.5.5.3 Removal of all temporary structures and barricades. 9.5.6. When the Owner determines that the Work or designated portion thereof is Substantially Complete, the Contractor shall finish and complete all remaining items within thirty (30) calendar days. The Owner shall identify and fix the time for completion of specific items which may be excluded from the thirty (30) calendar day time limit. Failure to complete any items within the specified time frames may be deemed by the Owner as default of the Contract on the part of the Contractor. 9.5.7. To the extent provided in the Contract Documents, the Owner, upon occupation by the Owner of the Work in accordance with Section 9.9, will assume responsibility for security, operation, safety, maintenance, heat, utilities, damage to the Work (other than damage caused by the Contractor) and insurance. 9.5.8. Upon Substantial Completion, the Contractor will deliver custody and control of such Work to the Owner. The Owner will thereafter provide the Contractor reasonable access to such Work to permit the Contractor to fulfill the correction, completion and other responsibilities remaining under the Contract. 169 Bogert Pool Renovation Project 74 9.5.9. At the time of Substantial Completion, in addition to removing rubbish and leaving the building “broom clean,” the Contractor must replace any broken or damaged materials, remove stains, spots, marks and dirt from decorated Work, clean all fixtures, vacuum all carpets and wet mop all other floors, replace HVAC filters, clean HVAC coils, and comply with such additional requirements, if any, which may be specified in the Contract Documents. 9.6. PARTIAL OCCUPANCY OR USE 9.6.1. The Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the Contractor, provided such occupancy or use is consented to by the insurer and authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is substantially complete, provided the Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments, retainage, if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. When the Contractor considers a portion Substantially Complete, the Contractor shall prepare and submit a list to the Owner as provided under Subparagraph 9.8.2. Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the progress of the Work shall be determined by written agreement between the Owner and Contractor. 9.6.2. Immediately prior to such partial occupancy or use, the Owner and Contractor shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. 9.6.3. Any agreement as to the acceptance of Work not complying with the requirements of the Contract Documents shall not be valid unless in writing. Unless otherwise agreed upon in writing, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. 9.7. FINAL COMPLETION AND FINAL PAYMENT 9.7.1. When the Contractor has completed or corrected all items on the final Punch List and considers that the Work is complete and ready for final acceptance, the Contractor must give written notice to the Owner and request a final inspection of the Work as provided in Section 9.7.2. The Contractor’s notice and request for final inspection must be accompanied by a final Application for Payment and the Submittals required by Section 9.7.3. 9.7.2. Upon receipt of Contractor’s written notice that the Work is ready for final inspection and acceptance and when the Owner determines that the Work has been fully completed and is acceptable under the Contract Documents, Owner will arrange for final payment. The Contractor’s notice and request for final inspection constitutes a representation by the Contractor to the Owner that the Work has been completed in accordance with the terms and conditions of the Contract Documents. If the Owner determines the work has not been completed in accordance with the terms and conditions of the Contract Documents, the Contractor must bear the reasonable cost of any additional services of the Owner until the Work is determined to be finally complete. 170 Bogert Pool Renovation Project 75 9.7.3. Neither final payment nor any remaining retainage shall become due until the Contractor submits: 9.7.3.1 an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied; 9.7.3.2 a release or waiver of all claims except those that are pending. Notwithstanding applicable Montana law, if any liens have been filed Contractor shall release, waive or indemnify Owner therefrom; 9.7.3.3 a certificate evidencing that the Contractor’s liability insurance and Performance Bond required by the Contract Documents remain in effect during the two-year correction period following Substantial Completion as set forth in Section 12.2.2.1 and 12.2.2.2, and will not be canceled or allowed to expire until at least 30 days' prior written notice has been given to the Owner; 9.7.3.4 a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents; 9.7.3.5 Consent of Surety Company to Final Payment or other form prescribed by the Owner; and, 9.7.3.6 if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by the Owner; 9.7.3.7 a certified building location survey and as-built site plan in the form and number required by the Contract Documents; 9.7.3.8 all warranties and bonds required by the Contract Documents; 9.7.3.9 Record Documents as provided in Section 3.11; 9.7.3.10 Attic stock items as required by the Contract Documents; and 9.7.3.11 documentation of approval by all authorities having jurisdiction that all necessary permits and licenses have been issued in the name of the Owner as to allow closeout and satisfaction of all requirements including the submission of acceptable as-built drawings and other required documents. 9.7.3.12 final, approved operating and maintenance manuals; and 9.7.3.13 all documents and verification of training required in accordance with any Commissioning Plan. 9.7.4. The Contractor and his surety accepts and assumes responsibility, liability, and costs for and agrees to defend and hold harmless the Owner for and against any and all actions as a result of the Owner making final payment. 9.7.5. The Contractor and his surety certify and declare that all bills for materials, supplies, utilities and for all other things furnished or caused to be furnished by the Contractor and all 171 Bogert Pool Renovation Project 76 Subcontractors and used in the execution of the Contract will be fully paid upon receipt of Final Payment and that there are no unpaid obligations, liens, claims, security interests, encumbrances, liabilities and/or demands of State Agencies, subcontractors, suppliers, mechanics, laborers or any others resulting from or arising out of any work done, caused to be done or ordered to be done by the Contractor under the Contract. 9.7.6. The date of Final Payment by the Owner shall constitute Final Acceptance of the Work. The determining date for the expiration of the warranty period shall be as specified in Paragraphs 3.5 and 12.2.2. 9.7.7. If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting final completion, the Owner shall, upon application by the Contractor, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor prior to certification of such payment. Such payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. 9.7.8. Acceptance of final payment by the Contractor, a Subcontractor, or material supplier, shall constitute a waiver of any and all obligations, liens, claims, security interests, encumbrances and/or liabilities against the Owner except those previously made in writing per the requirements of Paragraph 4.3 and as yet unsettled at the time of submission of the final Application for Payment. 9.7.9. The Owner’s issuance of Final Payment does not constitute a waiver or release of any kind regarding any past, current, or future claim the Owner may have against the Contractor and/or the surety. 10. ARTICLE 10 – PROTECTION OF PERSONS AND PROPERTY 10.1. SAFETY PRECAUTIONS AND PROGRAMS The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract. The Contractor shall maintain on site a material safety data sheet on all chemicals and potentially hazardous materials brought on site by the Contractor or any subcontractor, supplier, or employee or agent of a subcontractor or supplier, including but not limited to paints, thinners, glues, mastics and solvents. The safety data sheets will be provided to the Owner upon Final Completion. 10.2 SAFETY OF PERSONS AND PROPERTY 10.2.1 The Contractor must take reasonable precautions for the safety of, and must provide reasonable protection to prevent damage, injury or loss to: 10.2.1.1All persons at the Site and other persons who may be affected by the Work or other operations of the Contractor; 10.2.1.2 the Work and materials and equipment to be incorporated therein or otherwise utilized in the performance of the Contract, whether in storage on or off the Site, under 172 Bogert Pool Renovation Project 77 care, custody or control of the Contractor or the Contractor’s Subcontractors or Sub- subcontractors; and 10.2.1.3 other property at the Site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. 10.2.2 The Contractor must repair and/or replace that portion of the work and any materials or equipment to be incorporated therein and any tools or equipment of the Contractor necessary or beneficial to performance of the Work which are damaged or stolen due to vandalism, theft or any other criminal mischief at its expense whether or not covered by insurance. No increase in the Contract Sum will be granted to the Contractor as a consequence of any delay, impacts or inefficiencies resulting from any act of vandalism, theft or other criminal mischief whether or not caused or contributed to by the Contractor’s negligence. The Parties may agree to an extension of Contract Time in such circumstances as they agree is appropriate. 10.2.3 The Contractor must implement and maintain, as required by the Contract Documents, applicable laws and regulations and orders of public authorities having jurisdiction (without limitation OSHA and State of Montana safety agencies and authorities), manufacturers’ instructions or recommendations, existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including issuing appropriate notices, distributing material safety data sheets and other hazard communication information, providing protective clothing and equipment, posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. 10.2.4 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. 10.2.5 The Contractor must not load nor permit any part of any structure at the Site to be loaded or subjected to stresses or pressures so as to endanger its safety or that of adjacent structures or property. 10.2.6 The Contractor shall reject the use of any Hazardous Material in the construction of the Project, including but not limited to asbestos, asbestos products, polychlorinated biphenyl (PCB) or other toxic substances. It is the Owner's intent to design, specify and approve only materials and products for this Project that are free of such hazardous material. If the Contractor becomes aware of that any Subcontractor, material supplier or manufacturer intends to supply or install products or services for the Project that contain such materials, the Contractor shall promptly notify the Owner, Engineer and GC/CM in writing. Further, if any such materials are discovered in the course of the construction, the Contractor shall notify the Owner, Engineer and GC/CM immediately. Construction Manager 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 of Bozeman ordinances. When explosives or other hazardous materials or equipment are stored or used or unusual methods are employed in the performance of the Work, the Contractor must exercise utmost care and conduct such activities under supervision of properly qualified personnel. 10.2.7 If either party suffers injury or damage to person or property because of an act or omission of the other party, or of any of the other party’s employees or agents, or of others for 173 Bogert Pool Renovation Project 78 whose acts it is contended that the other party is liable, written notice of such injury or damage, whether or not insured, must be given to the other party within a reasonable time not exceeding twenty-one (21) days after the onset or occurrence of such damage or injury or such shorter time as may be required by the Occupational Safety Hazards Administration (OSHA). The notice must provide sufficient detail to enable the other party to investigate the matter. If notice is not received within the time specified, any claim arising from the occurrence will be deemed to be conclusively waived, except to the extent of any applicable insurance (excluding self-insurance) coverage covering such occurrence. The provisions of this Section may not be used by the Contractor in lieu of the requirements of Article 7 when the Contractor is seeking an adjustment in the Contract Sum and are in addition to the requirements of Article 8 when the Contractor is seeking an adjustment in the Contract Time. 10.2.8 The Contractor must promptly remedy, at its sole cost and expense, damage and loss to property referred to in Sections 10.2.1.2 and 10.2.1.3 caused in whole or in part by the Contractor, a Subcontractor, a Sub-subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable, unless otherwise instructed in writing by the Owner. This obligation is in addition to, and not in limitation of, the Contractor’s obligations for indemnification under Section 3.18 and the Contractor’s responsibility to repair and or replace that portion of the Work and any materials and equipment to be incorporated therein which are damaged as a result of criminal mischief as specified in Section 10.2.2. 10.2.9 The Contractor shall designate a responsible member of the Contractor’s organization at the Site whose duty shall be the prevention of accidents. This person shall be the Contractor’s superintendent unless otherwise designated by the Contractor in writing to the Owner. 10.3 HAZARDOUS MATERIALS 10.3.1 A “Hazardous Environmental Condition” means the presence at the Site of asbestos, PCBs, Petroleum, Hazardous Waste (as defined in Section 1004 of the Solid Waste Disposal Act, 42 SUSC Section 6903, as amended), or radioactive material (“Hazardous Materials”), in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto in connection with the Work. 10.3.2 The Contractor is responsible for compliance with any requirements included in the Contract Documents regarding hazardous materials. In the event the Contractor encounters on the Site material reasonably believed to be a Hazardous Material (other than those for which the Contractor may have specific responsibility for remediation under the Contract), and the Contractor’s reasonable precautions will be inadequate to prevent foreseeable damage or injury and the Contractor cannot proceed with the Work in the absence of the removal, containment or remediation of the Hazardous Material, the Contractor must immediately stop Work in the area affected and report the condition to the Owner, Engineer and GC/CM immediately upon discovery, followed by notice in writing within 24 hours of discovery. 10.3.3 Upon receipt of notice of suspected Hazardous Materials, Owner will cause an investigation to be made to verify the presence and extent of such materials, to determine whether such materials are in fact hazardous, and the steps necessary for their removal, containment or remediation. Owner shall be responsible for the cost of any such investigation, removal, containment or remediation. 10.3.4 If the Owner’s investigation confirms the presence of Hazardous Materials which present a risk of injury or damage which will not be adequately protected against by the Contractor’s 174 Bogert Pool Renovation Project 79 reasonable precautions, then the Work in the affected area must not thereafter be resumed except at the written direction of the Owner. The Work in the affected area will be resumed promptly (i) in the absence of a finding of Hazardous Material by the Owner, (ii) upon the removal, containment or remediation of the Hazardous Materials, or (iii) upon the establishment of appropriate safety precautions. 10.3.5 The Contractor may request a change in the Contract Sum or Contract Time if the Contractor incurs additional costs on account of or is delayed by the Owner’s work to remove, contain or remediate Hazardous Materials which has not been rendered harmless at the Site unless the Contractor is responsible for same under the Contract. Any such requested change in the Contract Sum or Contract Time must be made in writing within ten (10) days of discovery of any Hazardous Materials, which has not been rendered harmless giving rise to the request for the change and must fully comply with Articles 7, 8, and 15 or any claim will be deemed conclusively waived by the Contractor. 10.3.5 The Owner shall not be responsible under this Section 10.3 for materials or substances the Contractor brings to the Site unless such materials or substances are required by the Contract Documents. The Owner shall be responsible for materials or substances required by the Contract Documents, except to the extent of the Contractor’s fault or negligence in the use and handling of such materials or substances. 10.3.6 To the fullest extent permitted by law, the Contractor shall defend, indemnify and hold harmless the Owner from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, attorneys, and other professionals and all court, or other dispute resolution costs) arising out of or relating to a Hazardous Environmental Condition created by Contractor or by anyone for whom Contractor is responsible, except to the extent such claims are due to the Owner’s fault or negligence. 10.4 EMERGENCIES In an emergency affecting safety of persons or property, the Contractor must take all necessary action, without the necessity for any special instruction or authorization from the Owner, to prevent threatened damage, injury or loss. The Contractor must promptly, but in all events within twenty-four (24) hours of the emergency, report such action in writing to the Owner. If the Contractor incurs additional costs on account of or is delayed by such emergency, the Contractor may request a change in the Contract Sum or Contract Time to account for such additional costs or delay in accordance with Articles 7, 8 and 15. The Contractor must file any such request within ten (10) days of the emergency or it is deemed waived. Any adjustment in the Contract Sum or Contract Time shall be limited to the extent that the emergency work is not attributable to the fault or neglect of the Contractor or otherwise the responsibility of the Contractor under the Contract Documents. 10.5. UTILITIES 10.5.1. Underground Utilities: Buried utilities, including, but not limited to, electricity, gas, water, telephone, sewer, broadband coaxial computer cable, and fiber optic cables are very vulnerable and damage could result in loss of service. 10.5.2. "One Call” must be notified by phone and in writing at least 72 hours (3 business days) prior to digging to arrange and assist in the location of buried utilities in the field. (Dial 811). The 175 Bogert Pool Renovation Project 80 Contractor shall mark the boundary of the work area. The boundary area shall be indicated with white paint and white flags. In winter, pink paint and flags will be accepted. 10.5.3. After buried utilities have been located, the Contractor shall be responsible for any utilities damaged while digging. Such responsibility shall include all necessary care including hand digging. Contractor’s responsibility shall also include maintaining markings after initial locate. The area for such responsibility, unless otherwise indicated, shall extend 24 inches to either side of the marked center line of a buried utility line. 10.5.4. The Contractor's responsibility shall include repair or replacement of damaged utilities. The Contractor will also be responsible for all costs associated with reterminations and recertification. 10.5.5. Any buried utilities exposed by the operations of the Contractor shall be marked on the plans and adequately protected by the Contractor. If any buried utilities not located are exposed, the Contractor shall immediately contact the Owner, Engineer and GC/CM. If, after exposing an unlocated buried utility, the Contractor continues digging without notifying Owner, Engineer and GC/CM and further damages the utility, the Contractor will be fully and solely responsible. 10.5.6. Damage to irrigation systems during seasons of no irrigation that are not immediately and adequately repaired and tested will require the Contractor to return when the system is in service to complete the repair. 11. ARTICLE 11 - INSURANCE AND BONDS 11.1. CONTRACTOR'S LIABILITY INSURANCE 11.1.1 The Contractor shall carry and maintain, as part of the Contract Sum, the following insurance coverage insuring the Owner and Project while under construction and all material and supplies purchased in connection with the construction of the Project against all risks and losses. Contractor shall give Owner immediate notice of any material reduction, cancellation, termination or non-renewal of the insurance required by this Section 11.1. Any company writing this insurance shall at all times be licensed and qualified to do business in the State of Montana. Contractor’s insurance shall be primary and non-contributory. Such insurance shall include: 11.1.1.1 Commercial General Liability with a minimum limit of liability of Ten Million Dollars ($10,000,000), for bodily injury and property damage coverage per occurrence including the following coverages: Contractual Liability; Premises and Operations; Independent Contractors; Personal Injury; Products and Completed Operations; and explosion, collapse and underground event. The policy must name the City of Bozeman as additional insureds. 11.1.1.2 Automobile Liability Insurance of not less than Two Million Dollars ($2,000,000) combined single limit per occurrence to include coverage for owned, non-owned, hired motor vehicles, and automobile contractual liability. Coverage for underinsured/uninsured motorists shall be for not less than One Million Dollars ($1,000,000). The policy must name Gallatin County and the City of Bozeman as additional insureds. 11.1.1.3 Worker’s Compensation/Employer’s Liability meeting all statutory requirements of the State of Montana and with the following minimum Employers’ Liability limits: bodily injury by accident – One Million Dollars ($1,000,000) each accident; bodily injury by 176 Bogert Pool Renovation Project 81 disease – One Million Dollars ($1,000,000) policy limits; and bodily injury by disease – One Million Dollars ($1,000,000) each employee. Contractor shall not commence work under this Agreement until such insurance has been obtained and certificates of insurance, with binders, or certified copies of the insurance policy including additional insureds endorsement shall have been filed with the Owner. The insurance requirements of this Section 11.1 shall also apply in full to all Subcontractors hired to perform the Work, provided Contractor and Owner may mutually agree in writing to different coverage limits for Subcontractor(s). 11.1.2 The insurance required by Section 11.1.1 shall be written for not less than limits of liability specified in the Contract Documents or required by law, whichever coverage is greater. Coverages, whether written on an occurrence or claims-made basis, shall be maintained without interruption from the date of commencement of the Work until two years after the date of Substantial Completion, and, with respect to the Contractor’s completed operations coverage, until the expiration of the period for correction of Work or for such other period for maintenance of completed operations coverage as specified in the Contract Documents. 11.1.3 Certificates of insurance acceptable to the Owner shall be filed with the Owner prior to commencement of the Work and thereafter upon renewal or replacement of each required policy of insurance and upon request by Owner. An additional certificate evidencing continuation of liability coverage, including coverage for completed operations, shall be submitted with the final Application for Payment as required by Section 9.7.2 and thereafter upon renewal or replacement of such coverage until the expiration of the time required by Section 11.1.2. Information concerning reduction of coverage on account of revised limits or claims paid under the General Aggregate, or both, shall be furnished by the Contractor with reasonable promptness. 11.1.4 The Contractor shall cause the commercial liability coverage required by the Contract Documents to include (1) the City of Bozeman as additional insured for claims caused in whole or in part by the Contractor’s negligent acts or omissions during the Contractor’s operations; and (2) the City of Bozeman as additional insured for claims caused in whole or in part by the Contractor’s negligent acts or omissions during the Contractor’s completed operations. 11.2 OWNER’S LIABILITY INSURANCE The City shall maintain coverage for its risks through the Montana Municipal Interlocal Authority. 11.3 PROPERTY INSURANCE 11.3.1 Unless otherwise provided, the Contractor shall purchase and maintain, in a company or companies lawfully authorized to do business in Montana, property insurance written on a builder’s risk “all-risk” policy form in the amount of the initial Contract Sum, plus value of subsequent Contract Modifications and cost of materials supplied or installed by others, comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles. Such property insurance shall be maintained, unless otherwise provided in the Contract Documents or otherwise agreed in writing by all persons and entities who are beneficiaries of such insurance, until final payment has been made as provided in Section 9.10 or until no person or entity other than the Owner has an insurable interest in the property required by this Section 11.3 to be covered, whichever is later. This insurance shall include interests of the Owner, the Contractor, Subcontractors and Sub-subcontractors in the Project. 177 Bogert Pool Renovation Project 82 11.3.1.1 Property insurance shall be on an “all-risk” policy form and shall include, without limitation, insurance against the perils of fire (with extended coverage) and physical loss or damage including, without duplication of coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood, windstorm, falsework, testing and startup, temporary buildings and debris removal including demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for Contractor’s services and expenses required as a result of such insured loss. The Parties may mutually agree in writing to separate limits for insurance covering the risk of flood and/or earthquake. 11.3.1.2 If the property insurance requires deductibles, the Owner shall pay costs not covered because of such deductibles. The Owner waives all rights of action against the Contractor for loss of use of the Owner’s property, including consequential losses due to fire or other hazards however caused. 11.3.1.3 This property insurance shall cover portions of the Work stored off the site, and also portions of the Work in transit. 11.3.1.4 Partial occupancy or use in accordance with Section 9.9 shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use by endorsement or otherwise. The Owner and the Contractor shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance. 11.3.2 BOILER AND MACHINERY INSURANCE The Contractor shall purchase and maintain boiler and machinery insurance required by the Contract Documents or by law, which shall specifically cover such insured objects during installation and until final acceptance by the Owner; this insurance shall include interests of the Owner, Contractor, Subcontractors and Sub-subcontractors in the Work, and the Owner and Contractor shall be named insureds. 11.3.3 LOSS OF USE INSURANCE The Owner, at the Owner’s option, may maintain such insurance as will insure the Owner against loss of use of the Owner’s property due to fire or other hazards, however caused. The Owner waives all rights of action against the Contractor for loss of use of the Owner’s property, including consequential losses due to fire or other hazards however caused. 11.3.4 If the Contractor requests in writing that insurance for risks other than those described herein or other special causes of loss be included in the property insurance policy, the cost thereof shall be charged to the Contractor by appropriate Change Order. 11.3.5 If Asbestos Abatement is identified as part of the Work under this contract, the Contractor or any subcontractor involved in asbestos abatement shall purchase and maintain Asbestos Liability Insurance for coverage of bodily injury, sickness, disease, death, damages, claims, errors or omissions regarding the asbestos portion of the work in addition to the CGL Insurance by reason of any negligence in part or in whole, error or omission committed or alleged to have been committed by the Contractor or anyone for whom the Contractor is legally liable. Such insurance shall be in “per occurrence” form and shall clearly state on the certificate that asbestos work is included in the following limits: 178 Bogert Pool Renovation Project 83 $1,000,000 per occurrence; aggregate limit of $2,000,000. Asbestos Liability Insurance as carried by the asbestos abatement subcontractor in these limits in lieu of the Contractor’s coverage is acceptable provided the Contractor and the City of Bozeman are named as additional insureds and that the abatement subcontractor’s insurance is PRIMARY as respects both the Owner and the Contractor. If the Contractor or any other subcontractor encounters asbestos, all operations shall be suspended until abatement with the associated air monitoring clearances are accomplished. The certificate of coverage shall be provided by the asbestos abatement subcontractor to both the Contractor and the Owner. 11.3.6 Before an exposure to loss may occur, the Contractor shall file with the Owner a copy of each policy that includes insurance coverages required by this Section 11.3. Each policy shall contain all generally applicable conditions, definitions, exclusions and endorsements related to this Project. Each policy shall contain a provision that the policy will not be canceled or allowed to expire, and that its limits will not be reduced, until at least 30 days’ prior written notice has been given to the Owner. 11.3.7 A loss insured under the Owner’s property insurance shall be adjusted by the Owner and made payable to the Owner, subject to requirements of any applicable mortgagee clause. The Contractor shall pay Subcontractors their just shares of insurance proceeds received by the Contractor, and by appropriate agreements, written where legally required for validity, shall require Subcontractors to make payments to their Sub-subcontractors in similar manner. 11.4 PERFORMANCE BOND AND LABOR & MATERIAL PAYMENT BOND (BOTH ARE REQUIRED ON THIS PROJECT) 11.4.1 The Contractor shall furnish a Performance Bond and Labor and Material Payment Bond meeting all statutory requirements of the State of Montana, in form and substances satisfactory to the Owner and, without limitation, complying with the following specific requirements: 11.4.1.1 Except as otherwise required by statute, the form and substance of such bond(s) shall be satisfactory to the Owner in the Owner’s sole judgment. 11.4.1.2 Bond(s) shall be executed by a responsible surety licensed in Montana and listed in the latest U.S. Dept. of Treasury Circular #570, with a Best’s rating of no less than A/XII. Said bonds shall remain in effect through the warranty period, and until all of the Contractor’s obligations to the Owner are fulfilled. 11.4.1.3 The Performance Bond and the Labor and Material Payment Bond shall be in an amount equal to or exceeding one hundred percent (100%) of the Contract Sum. 11.4.1.4 The Contractor shall require the attorney-in-fact who executes the required bond(s) on behalf of the surety to affix thereto a certified and current copy of his power of attorney indicating the monetary limit of such power. 11.4.1.5 Every Bond under this Paragraph 11.4.1 must display the Surety’s Bond Number. A rider including the following provision shall be attached to each Bond: (1)Surety agrees that it is obligated under the bond(s) to any successor, grantee or assignee of the Owner. 11.4.1.6 The City of Bozeman shall be named as obligee on the bonds. 179 Bogert Pool Renovation Project 84 The Contractor shall deliver the required bonds to the Owner not later than three (3) days following the date the Guaranteed Maximum Price Amendment is executed and prior to the commencement of the Construction Phase. Premiums for all bonds shall be part of the Contract Sum. 11.4.2 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations arising under the Contract, the Contractor shall promptly furnish a copy of the bonds or shall authorize a copy to be furnished. 11.4.3 The Contractor shall keep the surety informed of the progress of the Work, and, where necessary, obtain the surety’s consent to, or waiver of: (a) notice of changes in the Work; (b) request for reduction or release of retention; (c) request for final payment; and (d) any other material required by the surety. The Owner may, in the Owner’s sole discretion, inform surety of the progress of the Work and obtain consents as necessary to protect the Owner’s rights, interest, privileges and benefits under and pursuant to any bond issued in connection with the Work. 12. CORRECTION OF WORK 12.1. BEFORE OR AFTER SUBSTANTIAL COMPLETION 12.1.1. The Contractor shall promptly correct Work that fails to conform to the requirements of the Contract Documents, whether discovered before or after Substantial Completion and whether or not fabricated, installed or completed. Costs of correcting such rejected Work, including additional testing and inspections made necessary thereby, shall be at the Contractor's expense. The Contractor is responsible to discover and correct all defective work and shall not rely upon the Owner’s observations. 12.1.2 Rejection and Correction of Work in Progress. During the course of the Work, the Contractor shall inspect and promptly reject any Work that: 12.1.2.1. does not conform to the Construction Documents; or, 12.1.2.2. does not comply with any applicable law, statute, building code, rule or regulation of any governmental, public and quasi-public authorities, and agencies having jurisdiction over the Project. 12.1.3. The Contractor shall promptly correct or require the correction of all rejected Work, whether observed before or after Substantial Completion. The Contractor shall bear all costs of correcting such Work, including additional testing, inspections, and compensation for all services and expenses necessitated by such corrective action. 12.2. AFTER SUBSTANTIAL COMPLETION AND AFTER FINAL ACCEPTANCE 12.2.1.In addition to the Contractor's obligations under Paragraph 3.5, if, within two years after the date of Final Acceptance of the Work or designated portion thereof or after the date for commencement of warranties, or by terms of an applicable special warranty required by the Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the Owner to do so unless the Owner has previously given the Contractor a written acceptance of such condition The Owner shall give such notice promptly after discovery of the condition. During the two-year period for correction of Work, if the Owner fails to notify the 180 Bogert Pool Renovation Project 85 Contractor and give the Contractor an opportunity to make the correction, the Owner waives the rights to require correction by the Contractor and to make a claim for breach of warranty. If the Contractor fails to correct nonconforming Work within a reasonable time during that period after receipt of notice from the Owner, the Owner may correct it in accordance with Paragraph 2.3. 12.2.2. The Contractor shall remedy any and all deficiencies due to faulty materials or workmanship and pay for any damage to other work resulting there from, which shall appear within the period of Substantial Completion through two (2) years from the date of Final Acceptance in accordance with the terms and conditions of the Contract and with any special guarantees or warranties provided in the Contract Documents. The Owner shall give notice of observed deficiencies with reasonable promptness. All manufacturer, product and supplier warranties are in addition to this Contractor warranty. 12.2.3.The Contractor shall respond within seven (7) days after notice of observed deficiencies has been given and he shall proceed to immediately remedy these deficiencies. 12.2.4. Should the Contractor fail to respond to the notice or not remedy those deficiencies; the Owner shall have this work corrected at the expense of the Contractor. 12.2.5. Latent defects shall be in addition to those identified above and shall be the responsibility of the Contractor per the statute of limitations for a written contract (27- 2-208 MCA) starting from the date of Final Acceptance. 12.2.6. The two-year period for correction of Work shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual performance of the Work. 12.2.7. The two-year period for correction of Work shall not be extended by corrective Work performed by the Contractor pursuant to this Paragraph 12.2. 12.2.8. The Contractor shall remove from the site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner. 12.2.9. The Contractor shall bear the cost of correcting destroyed or damaged construction, whether completed or partially completed, of the Owner or separate contractors caused by the Contractor's correction or removal of Work which is not in accordance with the requirements of the Contract Documents. 12.2.10.Nothing contained in this Paragraph 12.2 shall be construed to establish a period of limitation with respect to other obligations which the Contractor might have under the Contract Documents. Establishment of the two-year period for correction of Work as described in Subparagraph 12.2.2 relates only to the specific obligation of the Contractor to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Contractor's liability with respect to the Contractor's obligations other than specifically to correct the Work. 12.3. ACCEPTANCE OF NONCONFORMING WORK 12.3.1. If the Owner prefers to accept Work which is not in accordance with the requirements of the Contract Documents, the Owner may do so instead of requiring its removal and correction, in 181 Bogert Pool Renovation Project 86 which case the Contract Sum will be reduced as appropriate and equitable. Such adjustment shall be effected whether or not final payment has been made. 13. ARTICLE 13 - MISCELLANEOUS PROVISIONS 13.1. GOVERNING LAW The Contract shall be governed by the laws of the State of Montana and venue for all legal proceedings shall be the Eighteenth Judicial District, Gallatin County. 13.2. SUCCESSORS AND ASSIGNS The Owner and Contractor respectively bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents. Neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempt to make such assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. 13.3. WRITTEN NOTICE Written notices are to be provided to the representatives of the parties designated in this Contract. Written notices are deemed to have been duly served if delivered in person to the addressee for whom it was intended, or if delivered by electronic mail, fax, certified mail, or overnight courier. The date of any notice is deemed to be the date of personal delivery, fax, or electronic mail; one day after delivery to the overnight courier; and three days after mailing by certified mail. 13.4. RIGHTS AND REMEDIES 13.4.1. Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by law. 13.4.2. No action or failure to act by the Owner or Contractor shall constitute a waiver of a right or duty afforded them under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing. 13.5. TESTS AND INSPECTIONS 13.5.1. Tests, inspections and approvals of portions of the Work required by the Contract Documents or by laws, ordinances, rules, regulations or orders of public authorities having jurisdiction shall be made at an appropriate time. Unless otherwise provided, the Contractor shall make arrangements for such tests, inspections and approvals with an independent testing laboratory or entity acceptable to the Owner, or with the appropriate public authority, and shall bear all related costs of tests, inspections and approvals. The Contractor shall give timely notice of when and where tests and inspections are to be made so that the Owner, Engineer or GC/CM may be present for such procedures. The Owner shall bear costs of tests, inspections or approvals which do not become requirements until after negotiations concluded. 182 Bogert Pool Renovation Project 87 13.5.2. If the Owner or public authorities having jurisdiction determine that portions of the Work require additional testing, inspection or approval not included under Subparagraph 13.5.1, the Owner will instruct the Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and the Contractor shall give timely notice of when and where tests and inspections are to be made so that the Owner, Engineer or GC/CM may be present for such procedures. Such costs, except as provided in Subparagraph 13.5.3 shall be at the Owner's expense. 13.5.3. If such procedures for testing, inspection or approval under Subparagraphs 13.5.1 and 13.5.2 reveal failure of the portions of the Work to comply with requirements established by the Contract Documents, all costs made necessary by such failure including those of repeated procedures shall be at the Contractor's expense. 13.5.4. Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be secured by the Contractor. 13.5.5. Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. 13.6. INTEREST Payments due and unpaid under the Contract Documents shall bear interest from the date payment is due at such rate as the parties may agree upon in writing or, in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. 13.7. COMMENCEMENT OF STATUTORY LIMITATION PERIOD 13.7.1. As between the Owner and Contractor: 13.7.1.1.Before Substantial Completion. As to acts or failures to act occurring prior to the relevant date of Substantial Completion, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than such date of Substantial Completion; 13.7.1.2. Between Substantial Completion and Final Certificate for Payment. As to acts or failures to act occurring subsequent to the relevant date of Substantial Completion and prior to issuance of the final Certificate for Payment, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the date of issuance of the final Certificate for Payment; and, 13.7.1.3. After Final Payment. As to acts or failures to act occurring after the relevant date of issuance of the final Certificate for Payment, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the date of any act or failure to act by the Contractor pursuant to any Warranty provided under Paragraph 3.5, the date of any correction of the Work or failure to correct the Work by the Contractor under Paragraph 12.2, or the date of actual commission of any other act or failure to perform any duty or obligation by the Contractor or Owner, whichever occurs last. 13.8. DOCUMENT RETENTION AND AUDIT PROVISIONS 183 Bogert Pool Renovation Project 88 Contractor shall account for all materials, equipment and labor entering into the Work and must keep such full and detailed records as may be necessary for proper financial management pursuant to the Contract Documents for a period of five (5) years after final payment. Furthermore, the Owner has the right to examine the Contractor’s and its Subcontractors’ and suppliers’ records directly or indirectly pertaining or relating to the Work or the Contract and the Contractor must grant the Owner access to and an opportunity to copy such records at all reasonable times during the Contract period and for five (5) years after final payment. 14. ARTICLE 14 – TERMINATION OR SUSPENSION OF THE CONTRACT 14.1. TERMINATION BY THE CONTRACTOR 14.1.1. The Contractor may terminate the Contract if the Work is stopped for a period of 30 consecutive days through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, for any of the following reasons: 14.1.1.1. issuance of an order of a court or other public authority having jurisdiction which requires all Work to be stopped; or, 14.1.1.2. an act of government, such as a declaration of national emergency which requires all Work to be stopped. 14.1.2. The Contractor may terminate the Contract if, through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, repeated suspensions, delays or interruptions of the entire Work by the Owner as described in Paragraph 1.4.3 constitute in the aggregate more than 100 percent of the total number of days scheduled for completion, or 120 days in any 365-day period, whichever is less. 14.1.3. If one of the reasons described in Subparagraph 14.1.1 or 14.1.2 exists, the Contractor may, upon seven days' written notice to the Owner, terminate the Contract and recover from the Owner payment for Work executed and for proven loss with respect to materials, equipment, tools, and construction equipment and machinery, including reasonable overhead and profit but not damages. 14.1.4. If the Work is stopped for a period of 60 consecutive days through no act or fault of the Contractor or a Subcontractor or their agents or employees or any other persons performing portions of the Work under contract with the Contractor because the Owner has persistently failed to fulfill the Owner's obligations under the Contract Documents with respect to matters important to the progress of the Work, the Contractor may, upon seven additional days' written notice to the Owner, terminate the Contract and recover from the Owner as provided in Subparagraph 14.1.3. 14.2. TERMINATION BY THE OWNER FOR CAUSE 14.2.1. The Owner may terminate the Contract if the Contractor: 14.2.1.1. repeatedly refuses or fails to supply enough properly skilled workers or proper materials; 14.2.1.2. fails to make payment to Subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the Subcontractors; 184 Bogert Pool Renovation Project 89 14.2.1.3. fails to comply with any laws, ordinances, or rules, regulations or orders of a public authority having jurisdiction; 14.2.1.4. Fails to perform the Work in accordance with the Contract Documents or otherwise materially breaches any provision of the Contract Documents; 14.2.1.5. Anticipatorily breaches or repudiates the Contract; or 14.2.1.6.Fails to make satisfactory progress in the prosecution of the Work required by the Contract. 14.2.2. The Owner may terminate the Contract, in whole or in part, whenever the Owner determines in good faith that sufficient cause for termination exist as provided in Subsection 14.2.1. The Owner will provide the Contractor with a written ten (10) day notice to cure the default. If the default is not cured, the termination for default is effective on the date specified in the Owner’s written notice. However, if the Owner determinates that default contributes to the curtailment of an essential service or poses an immediate threat to life, health, or property, the Owner may terminate the Contract immediately upon issuing oral or written notice to the Contractor without any prior notice or opportunity to cure. In addition to any other remedies provided by law or the Contract, the Contractor must compensate the Owner for additional costs actually incurred by the Owner to obtain substitute performance. Following written notice for the Owner of termination, the Owner may, subject to any prior rights of the surety: 14.2.2.1. take possession of the site and of all materials, equipment, tools, and construction equipment and machinery thereon owned by the Contractor; 14.2.2.2. accept assignment of subcontracts pursuant to Paragraph 5.4; and, 14.2.2.3. finish the Work by whatever reasonable method the Owner may deem expedient. Upon request of the Contractor, the Owner shall furnish to the Contractor a detailed accounting of the costs incurred by the Owner in finishing the Work. 14.2.3. Upon receipt of written notice from the Owner of termination, the Contractor must: 14.2.3.1 Cease operations as directed by the Owner in the notice and, if required by the Owner, reasonably cooperate in an inspection of the Work with the Owner to record the extent of completion thereof, to identify the Work remaining to be completed or corrected; 14.2.3.2 Complete or correct the items directed by the Owner, and take actions necessary, or that the Owner may direct, for the protection and preservation of any stored materials and completed Work; 14.2.3.3 Remove its tools, equipment and construction machinery from the Site; and 14.2.3.4 Except as directed by the Owner, terminate all existing subcontracts and purchase orders and enter into no further subcontracts or purchase orders. 14.2.4. When the Owner terminates the Contract for one of the reasons stated in Subparagraph 14.2.1, the Contractor shall not be entitled to receive further payment until the Work is finished. 14.2.5. If the unpaid balance of the Contract Sum exceeds costs of finishing the Work made necessary thereby, and other damages incurred by the Owner and not expressly waived, such excess shall be paid to the Contractor. If such costs and damages exceed the unpaid balance, the Contractor shall pay the difference to the Owner. 185 Bogert Pool Renovation Project 90 14.2.6. If the Contractor files for protection, or a petition is filed against it, under the Bankruptcy laws, and Contractor wishes to affirm the Contract, Contractor shall immediately file with the Bankruptcy Court a motion to affirm the Contract and shall provide satisfactory evidence to Owner and to the Court of its ability to cure all present defaults and its ability to timely and successfully complete the Work. If Contractor does not make such an immediate filing, Contractor accepts that Owner shall petition the Bankruptcy Court to lift the Automatic Stay and permit Owner to terminate the Contract. 14.3. SUSPENSION BY THE OWNER FOR CONVENIENCE 14.3.1. The Owner may, without cause, order the Contractor in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the Owner may determine. 14.3.2. The Contract Sum and Contract Time shall be equitably adjusted for increases in the cost and time caused by suspension, delay or interruption as described in Subparagraph 14.3.1. Adjustment of the Contract Sum shall include profit. No adjustment shall be made to the extent: 14.3.2.1. that performance is, was or would have been so suspended, delayed or interrupted by another cause for which the Contractor is responsible; or, 14.3.2.2. that an equitable adjustment is made or denied under another provision of the Contract. 14.4. TERMINATION BY THE OWNER FOR CONVENIENCE 14.4.1. The Owner may, at any time, terminate the Contract or any portion thereof or of the Work for the Owner's convenience and without cause. 14.4.2. Upon receipt of written notice from the Owner of such termination for the Owner's convenience, the Contractor shall: 14.4.2.1. cease operations as directed by the Owner in the notice and, if required by the Owner, participate in an inspection of the Work with the Owner to record the extent of completion thereof, to identify the Work remaining to be completed or corrected; 14.4.2.2. Complete or correct the items directed by the Owner, and take actions necessary, or that the Owner may direct, for the protection and preservation of the Work; 14.4.2.3. Remove its tools, equipment and construction machinery from the Site; and 14.4.2.4. Except for Work directed to be performed prior to the effective date of termination stated in the notice, terminate all existing subcontracts and purchase orders and enter into no further subcontracts and purchase orders. 14.4.3 Following written notice from the Owner of termination, the Owner may: 14.4.3.1 Take possession of the Site and of all materials for which the Owner has paid; 14.4.3.2 Accept assignment of subcontracts and purchase orders; and 14.4.3.3 Complete the Work by whatever reasonable method the Owner may deem expedient. 14.4.4. In case of such termination for the Owner's convenience, the Contractor shall be entitled to compensation only for the following items: 186 Bogert Pool Renovation Project 91 14.4.4.1 Payment for acceptable Work performed up to the date of termination, including Contractor’s fee; 14.4.4.2 The costs of preservation and protection of the Work if requested to do so by the Owner; 14.4.4.3 The cost of terminating the following contracts including: (i.) Purchased materials but only if not returnable and provided to the Owner, or the restocking or return charge, if any, if returnable at the Owner’s written election; (ii.) Equipment rental contracts if not terminable at no cost but not to exceed an amount equal to thirty (30) days rental; 14.4.4.4 Documented transportation costs associated with removing Contractor-owned equipment; and 14.4.4.5 Documented demobilization and close-out costs. The Contractor will not be compensated for the cost of terminating subcontracts, which must be terminable at no cost to the Owner if the Contract is terminated, except for those costs listed in Section 14.4.4.1 through 14.4.4.5. If the Owner and the Contractor are unable to agree upon the amounts specified in this subsection, the Contractor may submit a Claim as provided in Section 4.3. The Claim must be limited to resolution of the amounts specified in Subsections 14.4.4.1, 14.4.4.2, 14.4.4.3, 14.4.4.4, and 14.4.4.5 of this Subsection 14.4.4. No other cost, damages or expenses may be claimed or paid to the Contractor or considered as part of the Claim, the same being hereby conclusively and irrevocably waived by the Contractor. Any such Claim must be delivered to the Owner within thirty (30) days of the termination of the Contract and must contain a written statement setting forth the specific reasons and supporting calculations and documentation as to the amounts the Contractor claims to be entitled to under this Subsection as a result of the termination of the Contract. 14.4.5. The Contractor’s obligations surviving final payment under the Contract, including without limitation those with respect to insurance, indemnification, and correction of Work that has been completed at the time of termination, remains effective notwithstanding termination for convenience of the Owner. 15. ARTICLE 15 – EQUAL OPPORTUNITY The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor shall have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The City of Bozeman requires that 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. The Contractor shall require these nondiscrimination terms of its Subcontractors. [END OF GENERAL CONDITIONS] 187 Bogert Pool Renovation Project 92 188 Bogert Pool Renovation Project 93 Exhibit C- Nondiscrimination and Equal Pay Affirmation NONDISCRIMINATION AND EQUAL PAY AFFIRMATION Bogert Pool Renovation Project Jackson Contractor Group, Inc. hereby affirms it will not discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and acknowledges and understands the eventual contract will contain a provision prohibiting discrimination as described above and this prohibition on discrimination shall apply to the hiring and treatments or proposer’s employees and to all subcontracts. In addition, Jackson Contractor Group, Inc. hereby affirms it will abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act), and has visited the State of Montana Equal Pay for Equal Work “best practices” website, https://equalpay.mt.gov/BestPractices/Employers, or equivalent “best practices publication and has read the material. ______________________________________ Rylan Oakland, Director of Operations Jackson Contractor Group, Inc. 189 Memorandum REPORT TO:City Commission FROM:Jon Kercher, WRF Superintendent Shawn Kohtz, Utilities Director SUBJECT:Authorize the City Manager to sign the Software as a Service Agreement with Pani Energy for Wastewater Operational AI Coaching software services. MEETING DATE:June 3, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign the Software as a Service Agreement with Pani Energy for Wastewater Operational AI Coaching software services. STRATEGIC PLAN:7.4 Performance Metrics: Utilize key performance and cost measures to monitor, track and improve the planning and delivery of City programs and services, and promote greater accountability, effectiveness and efficiency. Learn from those outside city government and measure specific tasks for performance. BACKGROUND:The Water Reclamation Facility (WRF) uses various software to aggregate and analyze data produced within the facility. Pani Energy's AI operator coaching software is comprised of the most advanced capabilities to provide prediction and insights to optimize operations and minimize costs at the WRF. Similar capabilities are either not available in market or available in silos, and advanced capabilities are only available through large engineering firms. The goal of implementation of this software is to build a reliable and interactive digital twin for the WRF and add new input metrics for energy consumption, reuse of methane produced at the WRF for heating, and begin using operation expenses as performance indicators to improve efficiency, uptime, and reduce emissions of the WRF with holistic data measurement and predictive optimization. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by City Commission FISCAL EFFECTS:The annual cost of the SaaS is $25,000 and will be paid from the existing WRF O&M budget. Attachments: Final City SaaS Agreement_Pani.docx 190 Report compiled on: May 15, 2025 191 Software as a Service Agreement This Software as a Service Agreement (“Agreement”), is made and entered into this _____ day of ____________, 2025, (“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 the “City,” and, Pani, Inc., with offices located at 765 Broughton St #401, Victoria, Canada hereinafter referred to as “Provider.” The City and Provider may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the Parties hereto agree as follows: 1.Definitions. a.“Aggregated Statistics” means data and information related to the City'suse of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services. b.“Agreement” means this Agreement, any Scope of Service documents entered between the Parties from time to time, and all other documents, policies and/or procedures incorporated herein by reference, all as may be amended from time to time as permitted herein. c.“Authorized User” means the City's employees, consultants, contractors, and agents (i) who are authorized by the Cityto access and use the Services under the rights granted to the City pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder. d.“Confidential Information” means, subject to Montana’s Open Records Law, all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential. With respect to the City, Confidential Information must also include any and all information transmitted to or stored by Provider in connection with performance of its obligations under this Agreement, including, but not limited to, personally identifiable information (“PII”) of residents, employees or people included within the City’s data, including name, address, phone number, e-mail address, date of birth, social security number, patient records, credit card information, driver’s license number, account numbers, PINs and/or passwords, any other information that could reasonably identify a person, and products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, 192 -Page 2 of 18 whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential.” Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without reference to or use of the disclosing Party’s Confidential Information. e.“City's Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of the City or an Authorized User through the Services, including, without limitation, the City's meter data and other energy data related to the City's facilities located in the State of Montana. This information, data, and content may also include that which is considered Confidential Information. f.“Data Incident” means a breach of the City or the Provider’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the City’s Data through the Services licensed to the City by the Provider. g.“Documentation” means Provider’s user manuals, handbooks, and guides relating to the Services provided by Provider to the City either electronically or in hard copy form/end user documentation relating to the Services. h.“Intellectual Property Rights” or “IP Rights” means any and all rights that may exist under patent law, copyright law, publicity rights law, moral rights law, trade secret law, trademark law, unfair competition law or other similar protections, whether or not such rights are registered or perfected. i.“Provider IP” means the Services, the Documentation, and any and all Provider-generated data including all intellectual property therein provided to the City or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of the City's access to or use of the Services, but does not include the City's Data. j.“Services” means the on premise software-as-a-service license described in the Scope of Services. See attached Exhibit A. 2.Purpose. City agrees to enter into this Agreement with Provider to perform for the City the Services described in the order form entitled “Scope of Services”, incorporated into this Agreement and attached as Exhibit A. 3.Term and Termination. a. Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for one year from such date (the “Initial Term”). So long as 193 -Page 3 of 18 there are active Scope(s) of Services in place at each annual renewal, this Agreement will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to this Agreement’s express provisions. b. Notice of Non-Renewal. A Party to this Agreement gives the other Party written notice of non-renewal at least ninety (90) days prior to the expiration of the then- current term (each a “Renewal Term” and together with the Initial Term, the “Term”). c. Termination. i. Provider may terminate this Agreement, effective on written notice to the City if the City: 1) fails to pay any amount when due hereunder, and such failure continues more than sixty (60) days after Provider’s delivery of written notice thereof; or 2) breaches any of its obligations under Paragraph 6 of this Agreement. ii. Any Party to this Agreement may terminate their obligations under this Agreement, effective on written notice to the other Parties, if another Party materially breaches this Agreement, and such breach: 1) is incapable of cure; or 2) being capable of cure, remains uncured sixty (60) days after the non-breaching Party provides the breaching Party with written notice of such alleged breach with a reasonable explanation of the event giving rise thereto; or iii. Any Party to this Agreement may terminate this Agreement, effective immediately upon written notice to the other Parties, if the other Party: 1) becomes insolvent or is generally unable to pay or fails to pay its debts as they become due; 2) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; 3) makes or seeks to make a general assignment for the benefit of its creditors; or 4) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. d. Expiration. Provider must notify the City 90 days in advance of this Agreement’s expiration date. e. Effect of Expiration or Termination. No expiration or termination will affect the City's obligation to pay all Fees that may have become due before such expiration or termination or entitle the City to any refund. 4.Scope of Services. Provider must perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, this Agreement governs. Provider agrees to be bound by its responses to the City’s Cloud 194 -Page 4 of 18 Questionnaires, incorporated into and attached to this Agreement as Exhibit B and made part of this Agreement. Such responses constitute material consideration for the City to enter into this Agreement and the responses are material representations regarding the Provider’s performance. 5.Access and Use. a.Provision of Access to Services. Subject to and conditioned on the City's payment of fees and compliance with the terms and conditions of this Agreement, Provider grants the City a non-exclusive, non-transferable, revocable right and license to the Services during the Term. This license to the Services is solely for use by the City and its Authorized Users and must be accessed and used in accordance with the terms and conditions set forth in this Agreement. Unless otherwise agreed upon and detailed in the Scope of Services, such access and use is limited to the City's internal use. If applicable, Provider must provide to the City the necessary passwords and network links or connections to allow the City to access the Services. b.Access to License. The City does hereby grant Provider a worldwide, royalty-free, non-exclusive license to access, view, transmit, store, process or otherwise the City Data as reasonably required to provide the Services of this Agreement. The City will cooperate with Provider, on a commercially reasonable basis and upon request, if Provider should require access to the City’s personnel, facilities, information, data, computers, computer software or additional information to perform its obligations under this Agreement. c.Documentation License. Subject to the terms and conditions contained in this Agreement, Provider grants to the City a non-exclusive, non-sublicensable, non- transferable license to use the Documentation during the Term solely for the City's internal business purposes in connection with its use of the Services. d.Designated Authorized Users. The City may designate the number of Authorized Users in each Scope of Service document who are permitted to access the Services. Authorized User accounts are non-transferable and, as such, the City shall ensure that Authorized Users do not share user accounts or passwords. The City is responsible for ensuring all Authorized Users comply with the terms of this Agreement. Further restrictions on the Services, related to the specific licenses purchased, are set out in each respective Scope of Service. e.Reservation of Rights. Provider reserves all rights not expressly granted to the City in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to the City or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP. By accessing or using the Service or allowing any Authorized User to access or use the Service, the City agrees to be bound by this Agreement. The City agrees that it will not provide access to any external third-party. 195 -Page 5 of 18 f.Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend the City's and any Authorized User’s access to any portion or all of the Services if: i. Provider reasonably determines 1) there is a threat or attack on any of the Provider IP; 2) the City's or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other Customer or vendor of Provider; 3) the City, or any Authorized User, are using the Provider IP for fraudulent or illegal activities; or 4) Provider’s provision of the Services to the City or any Authorized User is prohibited by applicable law; ii. any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable the City to access the Services; or iii. in accordance with Section 5(a)(iii) (any such suspension described in sub- section (i), (ii), or (iii), a “Service Suspension”). Provider must use commercially reasonable efforts to provide written notice within five (5) business days prior to any planned Service Suspension to the City and provide updates regarding resumption of Services following any Service Suspension. Provider must use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider may be subject to liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that the City or any Authorized User may incur as a result of a Service Suspension. g.Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor the City's use of the Services, and collect and compile Aggregated Statistics. As between Provider and the City, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. The City acknowledges that Provider may compile Aggregated Statistics based on the City's Data input into the Services. The City agrees that Provider may: 1) make Aggregated Statistics publicly available in compliance with applicable law, and 2) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify the City or the City's Confidential Information. 6.The City's Responsibilities. a.The City is responsible for all uses of the Services and Documentation resulting from access provided by the City, directly or indirectly in compliance with the terms of this Agreement, including the Restrictions on Use. The City must use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and must cause Authorized Users to comply with such provisions. 196 -Page 6 of 18 b.Unless otherwise agreed, the City is responsible for creating and modifying its data into the Services, and keeping the City’s data into the Services current and accurate. c.The City must reasonably cooperate with Provider’s performance of Professional Services. The City recognizes and agrees that performance of Professional Services is contingent upon the City’s cooperation and as set forth in Paragraph 7. d.The City may test the Provider’s Services in a live production environment to ensure that it conforms to the specifications set forth in this Agreement and all Exhibits. Upon acceptance, the City must pay the Provider in accordance with the Scope of Services. See attached Exhibit A. If the City determines that the Services do not meet the specifications set forth in this Agreement and all Exhibits, upon 60 days of receiving written notice of such deficiencies, the City may terminate this Agreement if the Provider does not cure the deficiencies within the sixty (60) day notice period. Provider must refund the City all sums already paid within five (5) business days. Such termination and refund does not bar the City from pursuing other remedies available under the Agreement or law. 7.Provider’s Obligations. To induce the City to enter into this Agreement, Provider makes the following representations: a.Provider has familiarized itself with the nature and extent of this Agreement, all exhibits including but not limited to the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b.Provider represents and warrants to the City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement must not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. c.Provider must ensure the Services delivered under this Agreement are adequately secure, and must provide a secure environment for all of the City’s Confidential Information, which may include, but is not limited to any hardware and software (including servers, network and data components) to be provided or used by the Provider as part of its performance under this Agreement. Provider represents that the security measures it takes in performance of its obligations under this Agreement are, and at all times will remain in compliance with all applicable laws and regulations governing Provider’s access to, use of, and handling of the City’s Data. 197 -Page 7 of 18 d.Notwithstanding the foregoing, City Data, including plant information, may be pushed to Provider through an API or third-party hardware (“Data Connection Point”). Provider makes no representation and provides no warranty regarding the security of such third-party Data Connection Point. Any City Data and plant information provided to Provider through a Data Connection Point is provided at the City’s own risk. If Provider creates a new version of the Services to which the City is currently subscribed, it must make the new version available to the City at no additional cost. This excludes new products and upgrades and only impacts those products or services to which the City is a subscriber at the time of any such release. Provider must also provide the City with any additional features or functionalities of the subscribed Services that it may develop at no additional cost to the City. Provider reserves the right, in its sole discretion, to temporarily or permanently disable or discontinue providing any specific functionality within a Service, provided that the core functionalities of such Service are not rendered inoperable, by providing the City with advance notification in writing. The City agrees that Provider will not be liable to the City, any Authorized User, or any other third party for any modifications or disabling or discontinuance of all or any part of the Services done in accordance with this Agreement. 8.Security.Provider must provide a secure environment for all of the City’s Confidential Information and any hardware and Software (including servers, network and data components) to be provided or used by Provider as part of its performance under this Agreement. Provider represents that the security measures it takes in performance of its obligations under this Agreement are, and will at all times remain in agreement with the industry’s minimum standards. Provider’s failure to comply with the industry’s minimum standards in fulfilling its obligations under this Agreement constitutes a breach of this Agreement. Additionally, Provider must contractually require any subcontractors or agents with access to the City’s Confidential Information to adhere to such Security Best Practices. 9.Indemnity/Waiver of Claims/Insurance. For other than professional services rendered, to the fullest extent permitted by law, Provider agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Provider; or (ii) any negligent, reckless, or intentional misconduct of any of the Provider’s agents. Such obligations must not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). 198 -Page 8 of 18 Provider’s indemnity under this Section requires reasonable notice from the City as to any claims when brought so as not to impair Provider’s ability to defend any such claim and must be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Provider to assert its right to defense or indemnification under this Agreement or under the Provider’s applicable insurance policies required below, the City must be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Provider was obligated to defend the claim(s), or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Provider also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for City’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations must survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Provider must at Provider’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Provider in this Section. The insurance coverage must not contain any exclusion for liabilities specifically assumed by the Provider in this Section. The insurance must cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Provider must furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: Workers’ Compensation – statutory; Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; Automobile Liability - $1,000,000 property damage/bodily injury per accident; Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate; and Cyber Liability - $1,500,000 per occurrence; $3,000,000 annual aggregate. The above amounts must be exclusive of defense costs. The City must be endorsed as an additional insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, Automobile Liability, and Cyber Liability policies. The insurance and required endorsements must be in a form suitable to City and must include no less than a thirty (30) day notice of 199 -Page 9 of 18 cancellation or non-renewal. Provider must notify City within two (2) business days of Provider’s receipt of notice that any required insurance coverage will be terminated or Provider’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Provider commencing work. 10. Audit Right. If requested by the City, Provider must, on a bi-annual basis, permit security reviews by the City on those systems storing or processing City Data, on Provider policies and procedures relating to the foregoing, including without limitation its information security programs, and permit testing of all security processes and procedures during the term, including without limitation, penetration testing. Provider or its nominee (including its accountants and auditors) may, on reasonable request, inspect and audit the City's use of the Services under this Agreement at any time during the Term. The City must make available all books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of Provider with respect to such audit. 11. General Use Restrictions. Except as expressly permitted in this Agreement or with the prior written approval of Provider, copies of the Services created or transferred pursuant to this Agreement are licensed and may only be used as set forth in this Agreement. The City does not receive any rights to the Services other than those specifically granted in this Agreement and its incorporated exhibits. Other than what is expressly permitted by the terms of this Agreement, the City and its authorized users must not directly or indirectly copy or reproduce all or any part of the Services, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization, without Provider’s prior written permission. However, notwithstanding this restriction, the City has the right to reproduce and distribute any of the Services generated from the City’s Data. Without limiting the above restriction and right, the City receives no right to and must not: a.copy, modify, create derivative works from, distribute, publicly display, or publicly perform the Application; b.sublicense, merge,or otherwise transfer any of the rights granted to it in this Agreement and the Scope of Services; c.reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from the Application; d.remove any proprietary notices from the Services or Documentation; or e.use the Services or Documentation in any manner or for any purpose that contravenes the terms of this Agreement or infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. 200 -Page 10 of 18 12. Independent Contractor Status/Labor Relations. The Parties agree that Provider is an independent contractor for purposes of this Agreement and is not considered a City employee for any purpose. Provider is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Provider is not authorized to represent the City or otherwise bind the City in any dealings between Provider and any third parties. 13. Resources, Training, and Support. Provider must, throughout the Term, make available such resources, including Provider personnel, as are reasonably required to: a. train designated employee(s) of the City in the use of the Services; b. support the obligations of the City provided in Paragraph 6; c. develop modifications to the Services as agreed to by the Parties in any exhibit attached to this Agreement; and d. Provider must provide technical support to the City as described in Exhibit A, Scope of Services, for the duration of this Agreement. Provider may provide support to the City, which may include e-mail or chat support. Provider may make available to the City training sessions for such Fees and on such terms and conditions as Provider may determine. 14. Transition Assistance.Upon termination of this Agreement for any reason, including but not limited to termination for cause, the Provider must provide transition assistance to the City when requested in writing. The Provider must assist the City in the orderly transition to a new Provider. The City must have access to the Provider’s system and the Provider’s support of that system for up to one (1) year following termination. In this instance, for up to one (1) year following termination, the City must pay the Provider at its then-current hourly rate(s) for such transition assistance, plus the cost of subscription. The Provider grants the City up to a right to use the Application and Object Code if any one of the following occurs: (a) Provider’s insolvency, bankruptcy, or involvement in an involuntary proceeding for protection of its creditors; (b) Provider materially breaches this Agreement and the City terminates the Agreement; (c) Provider fails to continue development of the Services; (d) Provider fails to provide the City with the most recent version of the Services contained in the Application; or (e) any other circumstance whereby Provider can no longer satisfy its obligation to provide Services to the State under this Agreement. 15.Limitation of Liability. The Provider's liability for contract damages is limited to direct damages. The provider must not be liable for special, incidental, consequential, punitive, or indirect damages. Damages caused by injury to persons or tangible property, or arising from any Provider indemnification under this Agreement, are not subject to a cap on the amount of damages. 16.Fees and Payment. Fees. The City must pay Provider the fees and make all payments as set forth in the Scope of Services, without offset or deduction. See attached Exhibit 201 -Page 11 of 18 A. Any alteration or deviation from the described Services that involves additional costs above the Agreement amount will be performed by Provider only upon receiving a written request from the City, and shall be set out in a separate Scope of Services. Any alteration or deviation from the Services will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing before Provider bills for any additional licenses, professional services, or charges. Implementation of the Services will start as soon as commercially reasonably possible following the effective date of the applicable Scope of Services, subject to both Parties meeting their obligations described herein. Provider’s obligation to carry out implementation will be conditional on the City paying all Fees owing as of the effective date of the applicable Scope of Services. In addition to any obligations in an applicable Scope of Services, the City will be responsible for the following: a. the City will complete configuring network connections to connect to the Services with assistance from Provider and begin using the Services in a production environment (“Go Live Date”); b. before and during implementation, the City will gather and submit any business information required by Provider to implement the Services, including, plant information; and c. the City is solely responsible for obtaining and securing all rights necessary for Provider to use any City Data in conjunction with the Service. All Fees and other amounts payable by the City under this Agreement are exclusive of taxes and similar assessments. The City is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind (“Taxes”) imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by the City as set forth in this Agreement, other than any taxes imposed on Provider’s income. 17.Confidential Information. a.From time to time during the Term, a Party to this Agreement may disclose or make available to the other Party Confidential Information, as defined in Section 1 of this Agreement, about its business affairs. The receiving Party must not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s Authorized Users who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations established in this Agreement. b.Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required: i.in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order must first have given written notice to the other Party; ii.to establish a Party’s rights under this Agreement, including to make required court filings; or iii.to any Authorized User who may need to access Confidential Information in order to facilitate or execute the purpose of this Agreement. 202 -Page 12 of 18 c.Unless otherwise required by law, each Party must not disclose Confidential Information to any other third party not otherwise identified in this agreement without the other Party’s prior written consent. Each Party’s obligations of non- disclosure with regard to Confidential Information are effective as of the Effective Date, and survive this Agreement and do not terminate. However, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. d.Each Party must protect Confidential Information with the same degree of care it uses to protect its own Confidential Information with of similar nature and importance, but with no less than reasonable care. Each Party agrees to promptly notify the other Party if there is a misuse or misappropriation of Confidential Information. 18. Intellectual Property Ownership; Feedback. a. Provider IP. The City acknowledges that, as between the City and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP, including derivative works and all modifications that may be made based on Feedback (as defined below). b. The City's Data. Provider acknowledges that, as between Provider and the City, the City owns all right, title, and interest, including all intellectual property rights, in and to the City's Data. The City grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the City's Data and perform all acts with respect to the City's Data as may be necessary for Provider to provide the Services to the City.The City also grants to Provider a non- exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display the City's Data incorporated within the Aggregated Statistics. Unless the Cityprovides written consent, Provider must not access or use the City’s Data for any other purpose than as described in this Agreement. c. Feedback. If the City or any of its Authorized Users sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or related functionality, or any comments, questions, suggestions, or the like (“Feedback”), Provider may use the City’s Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. The Provider retains all right, title, and interest in the Feedback. 19.Data Location. Provider must not transfer the City’s Data outside of United States or the Provider’s location as identified in the first paragraph of this Agreement unless it receives the City’s prior written consent or unless the transfer is to the Provider’s data center and such transfer is necessary for the execution of the Services. 203 -Page 13 of 18 20.Access to Data. The City may access and copy any of the City’s Data in Provider’s possession at any time. Provider must reasonably facilitate such access and copying promptlyafter Customer’s request. In this instance, Provider may charge its reasonable standard fees for any such access and copying or for any fees related to the de-conversion of data. 21.Deletion of Data. Except as authorized by applicable law, Provider must not erase the City’s Data or any copy without the City’s prior written consent. 22.Data Incidents. Provider must implement and maintain a program for managing unauthorized disclosure of, access to, or use of the City’s Data. In case of a Data Incident, Provider must notify the City, in writing or by phone, within 72-hours of the incident. Provider must cooperate with the City and law enforcement agencies to investigate and resolve the Data Incident, including but not limited to providing reasonable assistance to the City in notifying injured third parties. In addition, if the Data Incident results from Provider’s breach of this Agreement or negligent or unauthorized act or omission, Provider must compensate the City for any reasonable expense related to notification of customers and provide one year of credit monitoring to any affected individual. Provider must give the City prompt access to such records related to a Data Incident. 23.Functional Warranty. Provider warrants that the Application and Services, including any modifications that are made by Provider or under Provider’s instructions will perform substantially in accordance with its accompanying Documentation from and after the Go Live Date. Service Provider further warrants that the Services do not contain any material defects, and will conform in all material respects to the specifications, functions, descriptions, standards and criteria set forth in the Agreement, its Exhibits, and the Documentation, which are all incorporated herein by reference. As the City’s sole and exclusive remedy and Provider’s sole and exclusive liability to the City, in the event of any breach or threatened breach of the foregoing warranty, if Provider receives notice of such breach, (i) Service Provider will, at its option, either repair or replace the Software associated with the non-performing Service, or (ii) if Provider is unable, within 90 days of notification, to correct a defect of which the City has notified Provider, the City will be entitled to terminate the applicable Service upon written notice and request a full refund of any Fees or other amounts paid by the City to Provider during the 90 day period with respect to such Service. With respect to all Professional Services, Provider warrants to City that each Professional Service will be performed in a good and workmanlike manner. The City may also pursue any other remedies available to it under this Agreement or by law or equity. 24. Virus Warranty. Provider warrants that it has used commercially reasonable efforts to ensure against introduction of any virus into the City’s systems. Provider must immediately advise the City, in writing, upon reasonable suspicion or actual knowledge that the Services may contain a Virus. If a Virus is found to have been introduced into the City’s systems by the Services within 30 days after the Effective Date of this Agreement, Provider must repair or replace the Services within ten (10) business days. If Provider cannot accomplish the foregoing within such 204 -Page 14 of 18 time, then the City must discontinue use of the Services, and Provider must refund all money prepaid for the Services and maintenance as set forth in the Scope of Services as of the date of such virus introduction. See Exhibit A. Provider must use all reasonable commercial efforts, at no additional charge, to assist the City in reducing the effects of the Virus and, if the Virus causes a loss of operational efficiency or loss of data, to assist the City to the same extent to mitigate and restore such losses. In addition, Provider must indemnify, defend and hold the City harmless from any claims, suits, damages, liabilities, losses, and reasonable attorney fees resulting from any such Viruses. The limitation of liability described in Paragraph 8 does not apply to this indemnification obligation. 25.Remedy for When Services are Subject of a Claim. If any Services furnished are likely to or does become the subject of a claim of infringement of a third party’s IP Rights, then the Provider may request the City accept an alternative Service and the City may agree to one of the following alternative Services: 1) procure for the City the right to continue using the alleged infringing Services; 2) modify the Service so that it becomes non-infringing; 3) or replace it with one that is at least functionally equivalent. If the Provider is unable to any of the above three remedies, or if the use of the Services by the City is prohibited by an injunction, temporary restraining order, or other court order, the City must return the Services to the Provider within five (5) days of receiving Provider’s request in writing. The Provider must then give the City a credit equal to the amount prepaid to the Provider from the date the Services were found to be infringing. The City is not precluded from seeking other remedies available agreed upon in this Agreement or in equity or law for any damages it may sustain due to its inability to continue using the Services. The Limitations of Liability set forth in Paragraph 15 of this Agreement does not apply to Provider’s obligations under this Section and the City’s right to seek additional remedies arising from Provider’s ‘infringement of a third party’s IP Rights. 26.Representatives and Notices. a. City’s Representative. The City’s Representative for the purpose of this Agreement must be Jon Kercher, or such other individual as City must designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission must be directed to the City’s Representative and approvals or authorizations must be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Provider may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Provider’s Representative. The Provider’s Representative for the purpose of this Agreement must be Devesh Bharadwaj, or such other individual as Provider must designate in writing. Whenever direction to or communication with Provider is required by this Agreement, such direction or communication must be directed to Provider’s Representative; provided, however, that in exigent circumstances when Provider’s Representative is not available, City may direct its direction or communication to other designated Provider personnel or agents. 205 -Page 15 of 18 c. Notices. All notices required by this Agreement must be in writing and must be provided to the Representatives named in this Section. Notices must be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 27. Miscellaneous. a. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, including the Cloud Services Questions, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: 1) this Agreement, excluding its Exhibits; 2) the Exhibits to this Agreement as of the Effective Date; and 3) any other documents incorporated herein by reference. b. Permits. Provider must provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. c. Laws and Regulations. Provider must comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non- discrimination, affirmative action, and utilization of minority and small business statutes and regulations. d. Nondiscrimination and Equal Pay. Provider agrees that all hiring by Provider of persons performing this Agreement must be on the basis of merit and qualifications. Provider will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. Provider will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the 206 -Page 16 of 18 reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. Provider must be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Provider represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Provider must report to the City any violations of the Montana Equal Pay Act that Provider has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Provider mustrequire these nondiscrimination terms of its subcontractors providing services under this Agreement. e. Force Majeure. In no event must a Party to this Agreement be liable to another Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond one Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo. f. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training. Provider must not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Provider acknowledges it is aware of and must comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. The City must have the right to request proof of such compliance and Provider must be obligated to furnish such proof. The Provider must be responsible for instructing and training the Provider’s employees and agents in proper and specified work methods and procedures. The Provider must provide continuous inspection and supervision of the work performed. The Provider is responsible for instructing its employees and agents in safe work practices. g. Modification and Assignability. This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Provider may not subcontract or assign Provider’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 207 -Page 17 of 18 h. Reports/Accountability/Public Information. Provider agrees to develop and/or provide documentation as requested by the City demonstrating Provider’s compliance with the requirements of this Agreement. Providermust allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Provider pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Provider must not issue any statements, releases or information for public dissemination without prior approval of the City. i. Non-Waiver. A waiver by either Party of any default or breach by the other Party of any terms or conditions of this Agreement does not limit the other Party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. j. Attorney’s Fees and Costs. In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice must be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. k. Taxes. Except for Taxes described in Section 16, Provider is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. l. Dispute Resolution. i. Any claim, controversy, or dispute between the Parties, their agents, employees, or representatives must be resolved first by negotiation between senior-level personnel from each Party duly authorized to execute settlement agreements. Upon mutual agreement of the Parties, the Parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. ii. If the Parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. m. Survival. Provider’s indemnification must survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. n. Headings. The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. o. Severability. If any portion of this Agreement is held to be void or unenforceable, the balance thereof must continue in effect. p. Applicable Law. The Parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 208 -Page 18 of 18 q. Binding Effect. This Agreement, including the Scope of Services and responses to the Cloud Services Questionnaire, is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the Parties. r. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. s. Integration. This Agreement and all Exhibits attached hereto constitute the entire agreement of the Parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the Parties. There are no understandings between the Parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. t. Counterparts. This Agreement may be executed in counterparts, each of which identical copy together constitutes but one instrument. u. Consent to Electronic Signatures. The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. v. 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 thanthree years.Should the Parties agree to a written extension of this Agreement, they may elect to re-negotiate the fees charged under this Agreement. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date. PROVIDER: Pani, Inc.City of Bozeman By:_______________________________ Name: ____________________________ Title: _____________________________ By:_______________________________ Name: ____________________________ Title: _____________________________ 209 Memorandum REPORT TO:City Commission FROM:Ellie Staley, DBP Executive Director SUBJECT:Authorize the City Manager to Sign a Professional Services Agreement with the Downtown Bozeman Partnership for the Administration of the Downtown Urban Renewal District for Fiscal Year 2026 MEETING DATE:June 3, 2025 AGENDA ITEM TYPE:Agreement - Agency/Non-profit RECOMMENDATION:Authorize the City Manager to Sign a Professional Services Agreement with the Downtown Bozeman Partnership for the Administration of the Downtown Urban Renewal District for Fiscal Year 2026 STRATEGIC PLAN:1.3 Public Agencies Collaboration: Foster successful collaboration with other public agencies and build on these successes. BACKGROUND:The City annually contracts the Downtown Bozeman Partnership to administer the Downtown Urban Renewal District. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by Commission. FISCAL EFFECTS:As specified in its annual work plan and budget, the Downtown URD pays a fee to the Downtown Partnership to cover the administrative costs of managing the district and implementing the annual work plan. The FY2026 Downtown URD work plan and budget was unanimously approved by the board on April 15, 2025 and presented to and approved by the City Commission on May 6, 2025. Attachments: DBP-COB PSA for Management of URD District--FY2026.pdf Report compiled on: May 13, 2025 210 Professional Services Agreement Regarding the Administration and Management of the Downtown Bozeman Urban Renewal District WHEREAS, the Downtown Urban Renewal District was created March 6, 1995 by Commission Resolution No. 3046; and WHEREAS, the Downtown Urban Renewal Plan was adopted on November 20, 1995 by Commission Ordinance No. 1409; and WHEREAS, the life of the Tax Increment Financing District established under the Urban Renewal Plan was extended on March 7, 2005 by Commission Ordinance No. 1628; and WHEREAS, the life of the Tax Increment Financing District established under the Urban Renewal Plan was extended on December 17, 2007 until the year 2032 with the sale of Tax Increment Urban Renewal Revenue Bonds by Commission Resolution No. 4073; and WHEREAS, the adopted Urban Renewal Plan stipulated that an Urban Renewal Agency would be created and referred to as the Downtown Bozeman Improvement District Board (the “Board”) pursuant to 7-15- 4232 MCA and 7-15-4234 MCA; and 7-15-4232. Authorization to assign urban renewal powers to municipal departments or to create urban renewal agency. When a municipality has made the finding prescribed in 7-15-4210 and has elected to have the urban renewal project powers exercised as specified in 7-15-4233: (1) such urban renewal project powers may be assigned to a department or other officers of the municipality or to any existing public body corporate; 7-15-4234. Urban renewal agency to be administered by appointed board of commissioners. (1) If the urban renewal agency is authorized to transact business and exercise powers under this part, the mayor, by and with the advice and consent of the local governing body, shall appoint a board of commissioners of the urban renewal agency consisting of five commissioners... WHEREAS, the Downtown Board as the designated Urban Renewal Agency is authorized to employ the necessary staff to implement the Urban Renewal Plan pursuant to 7-15-4238 MCA; 7-15-4238. Employment of necessary staff. The urban renewal agency or department or officers exercising urban renewal project powers shall be supplied with the necessary technical experts and such other agents and employees, permanent and temporary, as are required. WHEREAS, the Board bylaws state “Should a private organization be responsible for program administration, such arrangements shall be made by contract with the City of Bozeman.”; 211 NOW, THEREFORE, the Downtown Bozeman Partnership and City of Bozeman enter into this Professional Services Agreement defining the administration and management of the Downtown Bozeman Urban Renewal District. THIS AGREEMENT is made and entered into this 3rd day of June 2025 (“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 the DOWNTOWN BOZEMAN PARTNERSHIP, LLC, a limited liability company, with a physical and mailing address of 222 East Main Street #302, Bozeman, MT, 59715, 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 date of its execution and will terminate on the 30th day of June 2026. 3. Scope of Work: Contractor will provide administrative and management services to the Board pursuant to the URD FY2026 Work Plan and Budget outlined in the Scope of Services, Exhibit “A”. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: City agrees to pay Contractor the amount specified in the Scope of Services, Exhibit “A” as the “Downtown Partnership Management Fee”. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, 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. 212 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. In the event that, during the term of this Agreement, any labor problems or disputes of any type arise or materialize which in turn cause any services to cease for any period of time, Contractor specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of 213 indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury per accident; and • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on 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 214 days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a. Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for 215 its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be David Fine or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be Ellie Staley (DBP Executive Director) 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, 216 and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13 Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti- discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 16. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign 217 Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 17. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 18. Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 19. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 21. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 22. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 23. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 24. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 25. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of 218 the State of Montana. 26. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 28. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 29. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 30. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. **** 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 DOWNTOWN BOZEMAN PARTNERSHIP CONTRACTOR By____________________________ By___________________________ Chuck Winn, City Manager Ellie Staley, Executive Director APPROVED AS TO FORM: By_______________________________ Greg Sullivan, City Attorney 219 Exhibit A Downtown Urban Renewal District FY2026 Work Plan and Budget Downtown URD Mission Statement The Downtown Bozeman Urban Renewal District board (URD) will foster an economically thriving district that: 1) attracts investment; 2) stabilizes and strengthens the tax base; and 3) supports the vitality and diversity of the Gallatin Valley as its social and cultural center. In 1995, the City Commission adopted the Urban Renewal Plan for downtown Bozeman which was subsequently amended in 2015. The intent and purpose of the Urban Renewal Plan emphasizes: 1. Bozeman’s historical character as a “working” downtown shall be maintained. 2. Traffic movement and access shall be designed with the emphasis on the downtown as a designation rather than improving the flow of through traffic. 3. The facilitation of private/public partnerships is encouraged in the implementation of the Plan. 4. Objectives shall be accomplished by incentives whenever possible. 5. Private property rights will be respected. 6. Administrative practices shall be conducted in a constructive manner which fosters cooperation. 7. This Plan is further detailed, refined, prioritized and implemented by the “Downtown Improvement Plan” which outlines specific programs and projects consistent with the Urban Renewal Plan. The Urban Renewal Plan established nine “Guiding Principles” to provide direction for improving Bozeman’s historic downtown. The Urban Renewal Study Committee considered the first three principles more important than the next three with the last three the least important. However, the Committee deemed all nine principles to be vital to achieving the vision for downtown. Key implementation actions were identified for each principle (may apply to multiple principles but are only listed once below). 1. Strengthen downtown’s economic vitality 2. Improve the safety, security and health of the district 3. The image of downtown shall be continuously improved 4. Downtown’s accessibility shall be improved 5. “Community Partnership” is fundamental to downtown’s success 6. Downtown’s diversity shall be facilitated 7. The cost of projects and programs shall be weighed against their benefits 8. Downtown shall become more user friendly 9. Cultural activities shall be nurtured and expanded downtown FY2026 Programs, Projects, and Initiatives The Downtown URD anticipates an FY25 year-end balance of $7.25 million, with projected FY26 revenues of $2.66 million, totaling just under $9.9 million of funding available. The following outlines notable programs, projects, and associated expenses for FY26. Ongoing DBP/City of Bozeman Operational Support: • Downtown Bozeman Partnership (DBP) Management Fee (FY26 - $251,000) Continued operations and support for DBP staff and programming. 220 • City of Bozeman Economic Development Staff Support (FY26 - $64,300) Continued partnership funding to support City staff time dedicated to downtown URD coordination. Ongoing Programs & Projects in FY26: • Downtown Park Improvements (FY26 - $250,000) Infrastructure improvements planned for I- Ho Peace Park, to be constructed in FY26. • Utility Infrastructure Improvements (FY26 - $1,100,000) Includes 5th and Main Lighting project and discretionary public utility infrastructure investments. • Wayfinding and Parking Signage (FY26 - $20,000) Continued infrastructure and signage implementation, possibly supported by state grant funds. • Bozeman Creek Infrastructure Improvements (FY26 - $50,000) New allocation to support ongoing flood mitigation and infrastructure improvements. • Alternative Transportation Improvements (FY26 - $10,000) Potential support for Black Avenue bike route improvements and pedestrian access and safety projects. • Tree Replacement Project (FY26 - $10,000) Reduced funding due to less anticipated need; ongoing streetscape maintenance. • Street Furniture/Streetscape Improvements (FY26 - $100,000) Includes luminaires for 5th and Main Phase 2. • Pedlet Infrastructure (FY26 - $10,000) Upkeep and minor enhancements to the parklet program. Current Encumbered Projects and Programs: • Workforce Housing Project – Fire Station One (Encumbered - $1,600,000) Multi-year support for 50 units of workforce housing; funds encumbered through FY27. DURD Grant Programs in FY26: • Streetscape Assistance Grant Program (FY26 - $100,000) Grant funding for new development projects requiring public streetscape and sidewalk improvements. • Life-Safety Grant Program (FY26 - $60,000) Expanded funding in FY26 to include encumbered support for the Heatherington project (~30K) and new grant application support. • Fiber Infrastructure Grant (FY26 - $10,000) Ongoing support for broadband infrastructure improvements and connection. • Art Enhancement/CPTED Grant Program (FY26 - $40,000) Expand program to support public art and safety enhancements including lighting, surveillance, and landscape improvements. • Residential Incentive Grant Program (FY26 - $400,000) Two new grants approved in FY25 with $200K encumbered to be paid in FY26, including availability for additional awards in FY26. 221 • Technical Assistance Grant Program (FY26 - $70,000) Grant program providing expertise and early-phase planning for redevelopment projects. Estimated 20K in encumbered/approved grants Planning & Design in FY26: • Park Improvement Planning (FY26 - $10,000) Continued planning for redevelopment of Soroptimist Park. • Utility Infrastructure Improvement Planning (FY26 - $50,000) Continued planning for future critical utility infrastructure projects. Several off-main projects slated for FY26, many with public infrastructure improvement needs. • Wayfinding Plan Development (FY26 - $10,000) Ongoing updates and refinements to signage and directional plans. Planning in FY26, improvements in FY27. • Bozeman Creek Planning (FY26 - $50,000) Significant support for planning and engineering as part of flood mitigation and creek improvement. Potential to use towards matched funding from other project partners. • Alternative Transportation Planning (FY26 - $25,000) Continued collaboration with the City for pedestrian and bike route enhancements. • Side-Streetscape Preliminary Engineering (FY26 - $50,000) Pre-engineering for Main Street- adjacent streetscape expansion. • Pedlet Planning/Program (FY26 - $20,000) Develop formal Pedlet Plan using experience and knowledge from pilot program in FY25. • DBIP General Implementation (FY26 - $50,000) Broad funding to support Downtown Improvement Plan-related needs. • Professional Services Term Contract (FY26 - $75,000) Continued funding for on-call planning, engineering, and design services. Parking Investments: • Parking Supply, Management Planning & Data Collection (FY26 - $5,000,000) Major allocation to fund a future Public-Private Partnership (PPP) to expand parking supply. • Garage Bond Payment (FY26 - $335,001) Scheduled annual bond payment for existing downtown parking garage, through 2032. FY2026 Downtown URD Budget Overview: Estimated Income: $9,913,328 Total Estimated, Allocated and Encumbered Expenses: $9,730,301 Estimated Year-End Balance: $183,027 222 Category FY26 AMEND Budget Income Starting Cash Balance $7,255,328 Income from TIF COB Interlocal Share $2,598,800 Entitlement Share State of Montana $57,100 Interest Income $2,100 Other Income Total Income $9,913,328 Expenses Operations DBP Management Fee $251,000 City Administrative Costs/Support $64,300 Total Operations $315,300 Infrastructure Improvements Park Improvements (Soroptimist/NBPP) $250,000 Alley Improvements $0 Public Utility Infrastructure Improvements $1,000,000 Wayfinding & Parking Signage $20,000 Bozeman Creek Improvements $50,000 Alternative Transportation Projects $10,000 Tree Replacement Project (Streetscape Imp. in FY24) $10,000 Street Furniture/Streetscape Improvements & Furniture $100,000 Intersection Cable Anchor Repairs $10,000 Parklet Infrastructure $10,000 Streetlamp Power Reconfiguration Project (SILD) $0 Streetscape Assistance Grant Program $100,000 Life-Safety Grant Program $60,000 Fiber-Broadband Infrastructure Grants $10,000 Art Enhancement/CPTED Grant Program $40,000 Total Infrastructure $1,670,000 Housing Assistance Residential Incentive Grant Program $400,000 Workforce Housing Project - Fire Station One $1,600,000 Total Housing $2,000,000 Planning Park Improvement Planning (Soroptimist/NBPP) $10,000 223 Alley Planning $0 Utility Infrastructure Improvement Planning $50,000 Wayfinding Plan Development $10,000 Bozeman Creek Planning $50,000 Alternative Transportation Planning $25,000 Downtown Streetscape Design Standards $0 Side-Streetscape Preliminary Engineering $50,000 Parklet Planning/Program $20,000 DBIP General Implementation $50,000 Professional Services Term Contract $75,000 Code Amendments $0 Downtown Infrastructure & Public Realm Plan $0 Technical Assistance Grant Program $70,000 Parking - Designated Funds Parking Supply, Management Planning, and Data Collection $5,000,000 Total Planning/Parking $5,410,000 Parking Structure Garage Bond Payment $335,001 Total Parking Garage Payments $335,001 Total Expenses $9,730,301 Balance $183,027 224 Professional Services Agreement for the Administration and Management of the Downtown Bozeman Urban Renewal District FY 2026 Page 15 of 15 225 Memorandum REPORT TO:City Commission FROM:Emily Cope, Downtown Bozeman Partnership SUBJECT:Authorize the City Manager to Sign a Professional Services Agreement with the Downtown Bozeman Partnership for the Administration of the Downtown Business Improvement District for Fiscal Year 2026 MEETING DATE:June 3, 2025 AGENDA ITEM TYPE:Agreement - Agency/Non-profit RECOMMENDATION:Authorize the City Manager to Sign a Professional Services Agreement with the Downtown Bozeman Partnership for the Administration of the Downtown Business Improvement District for Fiscal Year 2026 STRATEGIC PLAN:1.3 Public Agencies Collaboration: Foster successful collaboration with other public agencies and build on these successes. BACKGROUND:The City annually contracts the Downtown Bozeman Partnership to administer the Downtown Business Improvement District. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by Commission. FISCAL EFFECTS:As specified in its annual work plan and budget, the Downtown Business Improvement District (BID) pays a fee to the Downtown Partnership to cover the administrative costs of managing the district and implementing the annual work plan. The FY2026 Downtown BID work plan and budget was unanimously approved by the board on March 19, 2025 and presented to and approved by the City Commission on May 6, 2025. Attachments: DBP-COB PSA for Management of BID District--FY2026.docx Report compiled on: May 13, 2025 226 Professional Services Agreement for the Administration of the Downtown Bozeman Business Improvement District FY 2026 Page 1 of 13 Professional Services Agreement Regarding the Administration and Management of the Downtown Bozeman Business Improvement District WHEREAS, the Downtown Business Improvement District was created May 15, 2000 by Commission Ordinance No. 1517; and WHEREAS, the Downtown Business Improvement District was created on August 12, 2010 by Commission Ordinance No. 1790; and WHEREAS, the Downtown Business Improvement District was created on August 11, 2020 by Commission Ordinance No. 2040; and WHEREAS, the Downtown BID Board is authorized to employ the necessary staff to implement the Business Improvement District pursuant to 7-12-1131 MCA; 7-12-1131 Powers Of Board In Administering District. The board in administering a district has all powers necessary to carry out functions of the district contained in the ordinance creating it, including the power to: (7) provide for the management and administration of the affairs of the district.” NOW, THEREFORE, the Downtown Bozeman Partnership and City of Bozeman enter into this Professional Services Agreement defining the administration and management of the Downtown Bozeman Business Improvement District. THIS AGREEMENT is made and entered into this 4rd day of June, 2025 (“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 the DOWNTOWN BOZEMAN PARTNERSHIP, LLC, a limited liability company, with a physical and mailing address of 222 East Main Street #302, Bozeman, MT, 59715, 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: 227 Professional Services Agreement for the Administration of the Downtown Bozeman Business Improvement District FY 2026 Page 2 of 13 1.Purpose: City agrees to enter this Agreement with Contractor to perform for the City the 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 date of its execution and will terminate on the 30th day of June 2026. 3.Scope of Work: Contractor will provide administrative and management services to the Board pursuant to the BID FY2026 Work Plan and Budget outlined in the Scope of Services, Exhibit “A”. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4.Payment: City agrees to pay Contractor the amount specified in the Scope of Services, Exhibit “A” as the “Downtown Partnership Management Fee”. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a.Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, 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, 228 Professional Services Agreement for the Administration of the Downtown Bozeman Business Improvement District FY 2026 Page 3 of 13 Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. In the event that, during the term of this Agreement, any labor problems or disputes of any type arise or materialize which in turn cause any services to cease for any period of time, Contractor specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. 7.Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City,its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to 229 Professional Services Agreement for the Administration of the Downtown Bozeman Business Improvement District FY 2026 Page 4 of 13 contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanyingendorsements 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 both the Commercial General and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall 230 Professional Services Agreement for the Administration of the Downtown Bozeman Business Improvement District FY 2026 Page 5 of 13 include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8.Termination for Contractor’s Fault: a.If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b.In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c.Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d.In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9.Termination for City’s Convenience: a.Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b.Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. 231 Professional Services Agreement for the Administration of the Downtown Bozeman Business Improvement District FY 2026 Page 6 of 13 c.In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d.The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10.Limitation on Contractor’s Damages; Time for Asserting Claim: a.In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b.In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11.Representatives and Notices: a.City’s Representative: The City’s Representative for the purpose of this Agreement shall be Chuck Winn or Melissa Hodnett 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 Citypersonnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b.Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be Emily Cope (DBP Economic Development Director) 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 232 Professional Services Agreement for the Administration of the Downtown Bozeman Business Improvement District FY 2026 Page 7 of 13 Contractor personnel or agents. c.Notices:All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12.Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13 Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14.Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractorwill 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 Contractorshall 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. 233 Professional Services Agreement for the Administration of the Downtown Bozeman Business Improvement District FY 2026 Page 8 of 13 15.Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 16.Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 17. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 18.Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 19.Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 20.Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 21.Dispute Resolution: 234 Professional Services Agreement for the Administration of the Downtown Bozeman Business Improvement District FY 2026 Page 9 of 13 a.Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b.If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 22.Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 23.Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 24.Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 25.Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 26.Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 27.No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 28.Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 29.Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 30.Consent to Electronic Signatures: The Parties have consented to execute this Agreement 235 Professional Services Agreement for the Administration of the Downtown Bozeman Business Improvement District FY 2026 Page 10 of 13 electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF,the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. CITY OF BOZEMAN, MONTANA DOWNTOWN BOZEMAN PARTNERSHIP CONTRACTOR By________________________________By_________________________________ Chuck Winn, City Manager Emily Cope, Economic Development Director APPROVED AS TO FORM: By_______________________________ Greg Sullivan, City Attorney 236 Professional Services Agreement for the Administration of the Downtown Bozeman Business Improvement District FY 2026 Page 11 of 13 Scope of Services: Exhibit “A” Downtown Business Improvement District FY2026 BID Work Plan and Budget BID Mission Statement The BID is an organization of downtown property owners who through thoughtful, pro-active collaboration and partnership with local government, business owners, residents and citizens strive to create a shared vision and voice for the community of downtown Bozeman. The BID will commit resources, identify, plan and act on short-term and long-term initiatives otherwise unavailable to individual owners. The BID has a goal of ensuring the long-term preservation and vitality of the city’s underlying economic, cultural, social and environmental assets and the BID will work together to keep our downtown a safe, beautiful and vibrant place. BID Assessment Programs The following programs are funded by the special assessments collected from property owners within the Downtown Business Improvement District. The BID assessment for FY2025 will be $280,000. The BID will also receive approximately $54,000 in additional revenue from sponsorships and maintenance contracts. Downtown Bozeman Partnership ($82,500) The BID is a member of the Downtown Bozeman Partnership. The BID contributes to the administration of the Downtown Partnership office located at 222 East Main Street. Downtown Bozeman Association ($28,000) The BID contributes to the DBA to support its events, staff and marketing efforts to promote downtown. The DBA hosts events downtown that include Art Walks, Music on Main, Crazy Days, Cruisin’ on Main Car Show, Cat Walk, Restaurant Week and more. Summer Flowers ($34,900) This will be the second summer with 318 Earth Planter baskets. The Earth Planter baskets provide improved plant growth by regulating water delivery based on soil conditions while reducing labor costs, fuel and water usage. The baskets only need to be watered two to three times per week rather than seven days a week. These flower baskets are hung throughout downtown from June through September. This amount covers the planting cost and water cost. Holiday Lighting ($21,175) The BID installs the following holiday lighting downtown: 1) lighted garland on each historic lamp post along Main Street; 2) lights on the large conifer trees in Soroptomist Park; 3) garland wreaths at the Rouse, Church, Wallace, and Grand intersections; and 4) the infamous holiday “spider” decorations above four downtown intersections. The green decoration was replaced in 2022, the red in 2023, gold in 2024 and white in 2025. The BID board will earmark reserve funds for the spider replacements, new garland and bows. Maintenance Program ($115,900) The BID hires maintenance employees for winter and summer seasons. Primary tasks performed by the BID maintenance staff includes garbage collection, flower watering, tree watering, Soroptomist Park upkeep, installation of the streetlamp banners, maintenance of pedestrian benches, graffiti removal, and 237 Professional Services Agreement for the Administration of the Downtown Bozeman Business Improvement District FY 2026 Page 12 of 13 garage cleaning. The BID maintenance staff removed over 4,100 bags of garbage and recycling during the past year from over 100 receptacles. Downtown Safety Program ($15,000) There is an opportunity to partner with the Downtown URD and the Art & Safety Grant to provide funding for safety improvements in the downtown area including flood/security lights. The board would like to begin planning alongside the Bozeman Police Department for a dedicated downtown resource officer as the needs of the downtown community shift. This will take several years to establish and would eventually be a split salary funding by downtown and BPD. We would like to leave money allocated in the budget for this initiative. Graffiti Removal Program ($7,900) The BID offers a comprehensive graffiti removal program. Since 2009, this program has removed over 4,000 graffiti tags. The BID maintenance staff removes tags from public property and works with property owners to clean private buildings of graffiti. The BID partners with Clean Slate Group to remove tags that they are unable to remove. The BID will continue to actively remove new tags as quickly as possible considering immediate removal has proven to be the most effective deterrent. Downtown Banners ($3,000) The BID purchases, installs and maintains the DTNBZN light pole banners. Seasonally the BID installs banners for MSU, Bozeman Farmers Market, Bridger Bowl, Big Sky Resort, Sweet Pea, SLAM, BYEP, Bozeman Health, BridgerCare, Greater Yellowstone Coalition and more. Downtown Marketing ($3,000) The BID contributes to the general marketing of downtown Bozeman. These funds are made available to the Downtown Partnership which places advertisements in ten to twelve local, regional and state-wide publications. Vehicle Maintenance ($12,150) The BID owns and maintains a maintenance truck and two mules/ATVs. This expense covers fuel, insurance, repairs and tires as needed. Maintenance Supplies ($8,000) The BID purchases a wide variety of maintenance supplies for various programs, including trash bags. 238 Professional Services Agreement for the Administration of the Downtown Bozeman Business Improvement District FY 2026 Page 13 of 13 239 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 Annual Support. MEETING DATE: June 3, 2025 AGENDA ITEM TYPE: Agreement - Vendor/Contract RECOMMENDATION: Authorize the City Manager to Sign a Professional Services Agreement and Statement of Work with AVI Systems, Inc. for Audio Visual Annual Support. STRATEGIC PLAN: 1.1 Outreach: Continue to strengthen and innovate in how we deliver information to the community and our partners. BACKGROUND: We currently are paying the vendor ad hoc when issues arrive. We would like to bring more stability and reliability by having more preventative maintenance performed on a regular basis. This contract will cover all AV at the City in three major facilities. UNRESOLVED ISSUES: None ALTERNATIVES: Continue without a support contract and continue to pay hourly for services without any prioritization. FISCAL EFFECTS: This agreement will cost $35,00 per year for each year the agreement is renewed. This will be a 1 year agreement. Attachments: AVI RSA 1352743 - City of Bozeman - Pro Support Contract - 5-1-2025.pdf PSA with AVI for support contract.docx Report compiled on: May 19, 2025 240 Printed on May 01, 2025 Page 1 of 8 1352743 Retail Sales Agreement Reference Number: 1352743 Date: May 01, 2025 Prepared By: Mark Hunt Phone: (406)969-3336 Email: mark.hunt@avisystems.com City of Bozeman - Pro Support Contract 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 Equipment $0.00 Integration $0.00 PRO Support $35,000.00 Shipping & Handling $0.00 Tax $0.00 Grand Total $35,000.00 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 the 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. 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 AVI uses progress billing, and invoices for equipment and services allocated to the contract on a monthly basis. Unless otherwise specified, all items quoted (goods and services) as well as applicable out of pocket expenses (permits, licenses, shipping, etc.) are invoiced in summary (including applicable sales taxes due for each category of invoiced items). 241 Printed on May 01, 2025 Page 2 of 8 1352743 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 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 PRO SUPPORT: Model # Mfg Description Qty Price Extended AVISSACUSTOM AVI SYSTEMS 1 yr Modified System Support Agreement 1 $35,000.00 $35,000.00 Refer to Page 1 for the Grand Total that includes Taxes, and Shipping & Handling. 242 Printed on May 01, 2025 Page 3 of 8 1352743 SERVICES TO BE PROVIDED INTEGRATION SERVICES INTEGRATION SCOPE OF WORK A. SUMMARY: This is a Modified Pro Support contract that includes Labor only. Equipment repair/replacement would be on a case-by-case basis. Modified System Support delivers: • Unlimited telephone support • Unlimited support for user error • Onsite support if necessary • Yearly System re-certifications • Upgrade options for multiple-year coverage • Details below Sites/Rooms Covered: Bozeman Public Safety Center • COMMUNITY ROOM DIVISABLE 105 • JUV LOUNGE 110I • CHIEF OFFICE 114 • SMALL CONFERENCE ROOMS 112 • CONFERENCE ROOM 118 • COMMONS 120 • BRIEFING 122 • FITNESS 150 • OFFICE 162/SLEEPING ROOM 162A • LOBBY L180 • DINING 181 • FIRESTATION OFFICES 185,198,190,188,186,162,162A,114,181,183 • CONFERENCE ROOM 193 • KIDS PLAY 200B • RECEPTION 200 • CONFERENCE ROOM 202 • CLERK OF COURTS 235 • COURT ROOM A 240 • JURY DELIBERATION 241 & 249 • COURT ROOM B 250 • TRAINING ROOM 294 Bozeman Library • Community Room 101 • Labs 110 & 112 • Meeting Room 204 • Meeting Room 205 • Meeting Room 210 • Gallery Bozeman City Council Room • Based on current AV System SYSTEM SUPPORT AGREEMENT COVERAGE AVI Systems will perform the services below for covered systems: 243 Printed on May 01, 2025 Page 4 of 8 1352743 Entitlement Coverage Entitlement Definition Included Incident Management AVI Systems provides support to troubleshoot, remediate, and escalate all Incidents through to resolution. Yes Remote Support AVI Systems provides remote Priority Support for supported systems to diagnose and address and attempt to resolve incidents. Yes Onsite Support AVI Systems provides Priority Support for technician dispatch to the customer location to diagnose and address and attempt to resolve an Incident within 8 Business hours or as available and/or scheduled. Yes Advanced Parts Replacement AVI Systems provides advanced replacement of failed hardware components under warranty as available. No Software Update Assistance AVI Systems provides labor to implement updates of existing software to correct software errors and/or resolve incidents as scheduled. Yes System Training AVI Systems conducts user training to cover general operation of the system and how to contact AVI Systems for support as scheduled. Yes System Health Checks AVI Systems personnel perform a complete health check and diagnostic on the installed system. Includes cleaning, adjustments, functional tests, and replacement of parts to keep the system equipment in efficient operating condition. Yearly Additional Entitlement Coverage Entitlement Definition Included Service Delivery Management AVI Systems will appoint a Service Delivery Manager (SDM) responsible for managing and coordinating services, ensuring communication, adhering to SLAs, reporting performance, handling escalations, and continuously improving service quality. No AVI Systems has a standard three level severity protocol and a single level for requests. Our severity levels are Critical (P1), Standard (P3), and Request (P4). Service Levels and response targets are based on Priority. Any needed information, feature enhancements, administrative inquiries are all classified as a request. The following is a severity summary and standard target percentages are listed in the table below. Target Percentage for Standard Level Agreements (SLA) Priority Details Incident Management Response Remote Support Response Onsite Dispatch (if included) Target (%) Critical (P1) Multiple devices are down, unable to serve data, in a state of frequent or repeating "panic" or "hang," or is in a state of degraded performance sufficient to prevent normal business operations. Calls: 60 Seconds for calls answered Voicemail: 2 business hours Email: N/A 4 business hours 8-16 business hours/ Best Effort 90 Standard (P3) Device is experiencing and issue, anomaly, or cosmetic defect that inflicts little or no business impact. Calls: 60 Seconds for calls answered Voicemail: 2 business hours 8 business hours 8-16 business hours/ Best Effort 90 244 Printed on May 01, 2025 Page 5 of 8 1352743 Email: 4 business hours Request (P4) Normal requests for information regarding the installation, configuration, use and maintenance of systems under management. Calls: 60 Seconds for calls answered Voicemail: 4 business hours Email: 4 business hours 16 business hours Best Effort / Scheduled 90 Critical (P1): At this severity, both AVI Systems and client must commit the appropriate personnel to restore the system to a functional state or until a mutually agreeable workaround is provided. NOTE: Email support initiation does not apply – Urgent incidents should be coordinated and requested via phone. Email initiation is logged as Standard (P3). Standard (P3): AVI Systems will provide a viable and mutually agreeable workaround until a more permanent hardware/software upgrade exists to mitigate the incident. Request (P4): This includes administrative inquiries. There is no impact to your production systems or business operations. SYSTEM SUPPORT WORKFLOW AVI Systems follows an Information Technology Infrastructure Library (ITIL) framework with our approach to technology services. Generally, our tiered workflow approach will follow this structure: 1. Incident is reported via monitoring (when purchased), phone, email, or portal (when available) 2. Incident is logged in ServiceNow and triaged (Tier 1) 3. UC / AV / DM Troubleshooting and Remote Resolution (Tier 2) a. Tier 2 remediation (and SLA) begins after Tier 1 triage has been completed. 4. Dispatch Escalation and Resolution (Tier 3) a. Tier 3 Escalation (and SLA) begins after Tier 2 remediation has been attempted. SERVICE COVERAGE TIME & TIER LEVELS DESCRIPTION Coverage hours for the ProSupport department are defined as: 8 x 5 AVI Systems will provide 8 x 5 coverage across the time zone locations of the systems under coverage (North America only) AVI Systems ProSupport department is the initial contact point for any incoming incident. Upon identification of an issue, the ProSupport team will attempt to restore the technology service back to normal operations. Remediation activities will take place at different tiers of service, but all following a specific workflow. A general description of what happens at each tier level is as follows: TIER 1 SERVICES: 245 Printed on May 01, 2025 Page 6 of 8 1352743 Tier 1 services are the initial point of contact for any issue and are primarily made up of Incident Management responsibilities. Typical responsibilities for Tier 1 include: • Taking ownership of incidents in our ServiceNow ITSM system for all issues reported or alerted on. Each incident request will have a unique reference number which is used to allow the support staff to quickly locate, add to or communicate the status of the user’s issue or request. • Assign a severity or update the severity of each incident (Critical, Standard, or Request) • Provide electronic receipt notification for each incident. • Provide rapid response and initial triage and technical support. • Perform remote trouble isolation, resolution, or escalation to a Tier 2 Technician if needed. • Ongoing status updates and case management through incident resolution. TIER 2 SERVICES: Tier 2 services are made up of various remote resolver groups. Escalations will take place at this level. AVI Systems will engage with a remote resolver that specializes in the incident in question. Typical responsibilities for Tier 2 include: • Specific fault isolation down to the component level. • Perform specific hardware configuration changes. • Perform overall system configuration changes. • In-depth analysis, log analysis, fault tracking and tracing. • In-depth understanding of the core technologies utilized for corrective action. • Promote the incident to Tier 3 escalation as needed. TIER 3 SERVICES (available as SSA master number - if included): Tier 3 services are made up of onsite resources that are available for dispatch. The ProSupport team will take the learnings from Tier 1 and Tier 2 teams and dispatch a site technician with the correct repair or replacement technology to fully resolve the incident. Typical responsibilities for Tier 3 include: • Room repair and configuration changes. • Control and audio system programming. • Hardware swaps of on-hand critical components. • Coordination of replacement parts. • RMA or equipment returns to the manufacturer. • Advanced diagnostic troubleshooting of cable paths and component level devices. • Software and firmware updates, as well as identification of incompatible revisions. • Acceptance testing of the resolved system. • System health checks (preventative maintenance). • System reimaging to correct OS/BIOS failures or to generally reconstruct a system back to functionality. PROBLEM MANAGEMENT: AVI Systems has a proven problem management process aimed to resolve the root causes of any Tier 3 incidents that are unresolved. Unfortunately, there are occasions where multiple issues happen across multiple platforms. These issues are escalated into an ITIL “Problem”. A "problem" in this context is the unknown underlying cause of one or more incidents, and a 'known error' is a problem that is successfully diagnosed and for which either a work-around or a permanent resolution has been identified. Problems can also be identified from a single significant incident, indicative of a single error, for which the cause is unknown, but for which the impact is significant. A known error is a condition identified by successful diagnosis of the root cause of a problem, and the subsequent development of a work-around. Problem management differs from incident management in that Problem Management aims primarily to find and resolve the root cause of a problem and thus prevent further incidents while the purpose of Incident Management is to return the service to normal level as soon as possible, with the shortest possible business impact. CONTACTS AVI Systems Service team can be reached by: • National Support Phone: 855-521-0040 • Branch/Local Direct - 406-782-4141 • email: support@avisystems.com • Portal: Contact your local AVI Systems representative for instructions. SYSTEM SUPPORT DEFINITIONS System – Defined as the items listed in the Products and Services Detail section of this Agreement or listed on an attached Equipment List with the exception of Consumables, Owner Furnished Equipment, and Obsolete Equipment. 246 Printed on May 01, 2025 Page 7 of 8 1352743 Remote Support – Means a service whereby remote calls made to communications and terminal equipment via Customer provided IP connection to determine failures and remedies. Only available where equipment is capable and configured by AVI Systems to provide same. Onsite Support - Service level response assumes customer location is within 60 miles of an AVI Systems Service Center. Additional travel costs may apply if the customer location is beyond 60 miles of an AVI Systems Service Center. Consumables – Means parts such as recording media, batteries, projection lamps and bulbs, etc. Consumables are parts that are not included under this Agreement. Obsolete Equipment – Defined as items (though possibly still in use) that are outdated with no manufacturer support or parts availability, or products with formal end of life as defined by their manufacturer. Obsolete Equipment are parts that are not included under this Agreement. Software Update Assistance – Defined as revisions of existing software which provide maintenance to correct software errors. Assumes software is provided at no charge by the manufacturer or covered under a valid manufacturer maintenance contract. Cascading software dependencies may impact ability to issue updates. Software and features which require additional licensing are not included under this Agreement. Changes to custom templates or scripts after initial deployment are available separate from this agreement. SYSTEM SUPPORT TERMS Coverage Dates – Unless otherwise stated, the service coverage date will be effective as of substantial completion or System Support Agreement invoice date; whichever is applicable. Coverage will extend for the duration specified by the corresponding line item description found in the Product and Services Detail section of this Agreement. AVI Systems reserves the right to withhold services until the invoice is paid in full. Exclusions – For situations where AVI Systems is providing service or support under this Agreement, no cost service, maintenance or repair shall not apply to the Equipment if any person other than an AVI Systems technician or other person authorized by AVI Systems, without AVI Systems prior written consent, improperly wires, integrates, repairs, modifies or adjusts the Equipment or performs any maintenance service on it during the term of this Agreement. Furthermore, any Equipment service, maintenance or repair shall not apply if AVI Systems determines, in its sole discretion, that the problems with the Equipment were caused by (a) Customer's negligence; or (b) theft, abuse, fire, flood, wind, lighting, unreasonable power line surges or brownouts, or acts of God or public enemy; or (c) use of any equipment for other than the ordinary use for which such equipment was designed or the purpose for which such equipment was intended, or (d) operation of equipment within an unsuitable operating environment, or (e) failure to provide a suitable operating environment as prescribed by equipment manufacturer specifications, including, without limitation, with respect to electrical power, air conditioning and humidity control. Systems Support Terms are in addition to AVI Systems’ General Terms and Conditions of Sale. UNIFIED COMMUNICATIONS TERMS Coverage Dates – Unless otherwise stated, the service coverage start date for Unified Communications Support Services for new unified communications infrastructure equipment will be the shipped date from the manufacturer, and coverage will extend for the duration of time specified by the corresponding line-item description found in the Product and Services Detail section of this Agreement. The start date for Unified Communications Support Services purchased to cover existing equipment is established by the manufacturer, and the coverage will extend for the duration specified by the corresponding line-item description found in the Product and Services Detail section of this Agreement. Unified Communications Terms are in addition to AVI Systems’ General Terms and Conditions of Sale. DIGITAL MEDIA TERMS Coverage Dates – Unless otherwise stated, the service coverage start date for Digital Signage Support Services for new digital signage equipment will be the shipped date from the manufacturer, and coverage will extend for the duration of time specified by the corresponding line-item description found in the Product and Services Detail section of this Agreement. The start date for Digital Signage Support Services purchased to cover existing equipment is established by the manufacturer, and the coverage will extend for the duration specified by the corresponding line-item description found in the Product and Services Detail section of this Agreement. Digital Media Terms are in addition to AVI Systems’ General Terms and Conditions of Sale. RSS SERVICES TERMS 1. LICENSED CONTENT In addition to any other rights under the Agreement, AVI Systems, Inc. (“AVI Systems”) grants Customer, during the term of this Agreement and subject to the terms and conditions of this Agreement, a license to use syndicated media and/or data provided by AVI Systems (the “Service”) on Customer’s network of public digital signage displays (the “Network”). All information offered to Customer is the sole and exclusive property of AVI Systems or its content partners. The customer agrees that it will not sell or make items from the Service available to any other entity or make the Service publicly available via the world wide web. Customer shall not use or permit the use of material from AVI Systems in any way that compromises the integrity thereof or which infringes any copyrights or other intellectual property rights, contracts, or proprietary interests or cause the material to be displayed on any other medium other than public digital displays. 2. WARRANTIES AND DISCLAIMERS AVI Systems warrants that it is licensed to grant a license to use the content delivered by the Service as set forth herein. AVI Systems 247 Printed on May 01, 2025 Page 8 of 8 1352743 warrants that to the best of its knowledge, Customer’s use of the Service in accordance with this agreement will not infringe upon any copyright or other intellectual property right of AVI Systems or any third party. The Parties acknowledge that in normal industry practice, errors occur, and AVI Systems makes no representations and warranties as to the sequence, completeness, accuracy, and/or reliability of the Service. AVI Systems, subject to the fundamental obligation to give impartial material worthy of confidence, will make its best efforts not to contravene any laws (including, but not limited to, the law of defamation) or regulations in any country in which AVI Systems distributes the Service. IN NO EVENT SHALL AVI SYSTEMS OR ITS CONTENT PARTNERS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR INCOME, ARISING FROM ANY ACT OR FAILURE TO ACT BY AVI SYSTEMS OR ITS CONTENT PARTNERS WHETHER OR NOT IT HAD ANY KNOWLEDGE ACTUAL OR CONSTRUCTIVE, THAT SUCH DAMAGES MIGHT BE INCURRED, NOR SHALL THEY BE LIABLE FOR DAMAGES CAUSED BY ANY FAILURE OF PERFORMANCE, MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINES FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO OR USE OF MATERIAL FROM AVI Systems. 3. SURVIVAL The rights and obligations of User, AVI Systems, and its content partners under the foregoing paragraphs will continue notwithstanding any termination of this Agreement. 4. ARCHIVE RIGHTS All archive rights between AVI Systems and Customer terminate upon termination of this Agreement. At that time, the Customer must delete all material received from AVI Systems within ten (10) business days from all on and offline storage. RSS Services Terms are in addition to AVI Systems’ General Terms and Conditions of Sale. 248 Version 5 18 23 Professional Services Agreement for AV Support 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 249 Version 5 18 23 Professional Services Agreement for AV Support 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. 250 Version 5 18 23 Professional Services Agreement for AV Support 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. 251 Version 5 18 23 Professional Services Agreement for AV Support 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. 252 Version 5 18 23 Professional Services Agreement for AV Support 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 253 Version 5 18 23 Professional Services Agreement for AV Support 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 254 Version 5 18 23 Professional Services Agreement for AV Support 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. 255 Version 5 18 23 Professional Services Agreement for AV Support 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, 256 Version 5 18 23 Professional Services Agreement for AV Support 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 257 Version 5 18 23 Professional Services Agreement for AV Support 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. 258 Version 5 18 23 Professional Services Agreement for AV Support 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 259 Version 5 18 23 Professional Services Agreement for AV Support 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 260 Memorandum REPORT TO:City Commission FROM:Griffin Nielsen, Water Resource Engineer Shawn Kohtz, Director of Utilities SUBJECT:Authorize the City Manager to sign a Professional Services Master Task Order Agreement with HDR for on-call engineering services for the City of Bozeman Water Treatment Division MEETING DATE:June 3, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign a Professional Services Master Task Order Agreement with HDR for on-call engineering services for the City of Bozeman Water Treatment Division. STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:The City’s Water Treatment Division operates and maintains a wide variety of complex systems at the City’s water treatment plants and within the water distribution system. The Water Treatment Division and Utilities Department staff work closely to operate and maintain these systems; however, projects and situations occasionally arise that require outside engineering support. Having outside engineering services available through an on-call agreement better positions the division to quickly respond to needs as they arise. A request for qualifications for on-call engineering services was advertised on November 16th, 2024. Three statements of qualification were received. Upon review of the submission, City staff determined that HDR is qualified to provide the range of engineering services necessary for the Water Treatment Division. The attached Professional Services Master Task Order Agreement (on-call agreement) has been negotiated with HDR. As work arises, the on-call agreement requires negotiation of individual task orders. The initial term of the on-call agreement expires December 31, 2027, but may be extended upon mutual agreement of the parties for up to two additional years. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the Commission 261 FISCAL EFFECTS:As work arises, individual task orders will be negotiated prior to proceeding with work. Task order costs will be funded by the Utilities Department's operating budgets. Attachments: WTD_2025 OnCall_Master Professional Services Agmt_HDR.pdf Report compiled on: May 16, 2025 262 Professional Services Master Task Order Agreement for WTP On-Call Engineering Services Page 1 of 12 PROFESSIONAL SERVICES MASTER TASK ORDER AGREEMENT THIS AGREEMENT is made and entered into this _____ of June, 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, HDR Engineering, Inc (HDR) at 2150 Analysis Drive, Bozeman, MT 59718, hereinafter referred to as “Contractor.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter into this agreement with Contractor to provide a range of professional and technical services related to operations and maintenance of the City of Bozeman Water Treatment Plant and Facilities, including but not necessarily limited to engineering design, preparation of construction documents, project bidding, and construction administration services for various improvement projects, as requested by the City through issuance of individual, consecutively numbered Task Orders on an as needed and requested basis. 2. Term/Effective Date: This Agreement is effective upon the date of its execution and will expire on December 31st, 2027 unless extended or terminated as specifically provided for within the agreement. 3. Scope of Work: Contractor will perform the work and provide the services in accordance with the specific services and corresponding cost and schedule as mutually agreed upon by City and Contractor and included in each individual Task Order executed under the authority of this Agreement. Task Orders shall be in a format similar to EXHIBIT A, attached and made part of this Agreement. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: The terms of compensation to Contractor shall be agreed upon and included in each Task Order. City agrees to pay Contractor the amount specified in the individual Task Orders. 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 263 Professional Services Master Task Order Agreement for WTP On-Call Engineering Services Page 2 of 12 will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. For each individual Task Order, Contractor will familiarized itself with the nature and extent of the assignment, 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 and will provide a mutually agreeable Scope of Services for each Task Order. b. Contractor represents to City that it has the experience and ability to perform the services required by this Agreement; that it will perform said services in a professional, competent and timely manner and with diligence and skill ordinarily used by member in the same profession practicing at the same time and in the same locality; 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 standard of care. 6. Independent Contractor Status/Labor Relations: a. 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. b. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, 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. c. 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. 264 Professional Services Master Task Order Agreement for WTP On-Call Engineering Services Page 3 of 12 d. Contractor shall indemnify, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. 7. Indemnity/Waiver of Claims/Insurance: a. For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of 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; b. 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 willful misconduct of the Contractor or Contractor’s agents or employees. Defense obligation under this indemnity paragraph means only the reimbursement of reasonable defense costs to the proportionate extent of the Contractor’s actual liability obligation hereunder. c. 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). d. Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. e. Should any indemnitee described herein 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 indemnitee shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense 265 Professional Services Master Task Order Agreement for WTP On-Call Engineering Services Page 4 of 12 but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof. f. In the event of an action filed against 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. g. Contractor also waives any and all claims and recourse against the City or its officers, agents or employees, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. h. These obligations shall survive termination of this Agreement and the services performed hereunder. i. 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. j. 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 and 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 and annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury; $1,000,000 annual aggregate; and • Professional Liability - $2,000,000 per claim; $2,000,000 annual aggregate. 266 Professional Services Master Task Order Agreement for WTP On-Call Engineering Services Page 5 of 12 k. The above amounts shall be exclusive of defense costs. The City of Bozeman, its officers, agents, and employees, 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. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement or any individual Task Order under 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 or any Task Order under this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner 267 Professional Services Master Task Order Agreement for WTP On-Call Engineering Services Page 6 of 12 specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement or any Task Order under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement or any Task Order under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. The Parties agree this provision does not apply to third party claims. 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. 11. Representatives: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Griffin Nielsen, PE 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 268 Professional Services Master Task Order Agreement for WTP On-Call Engineering Services Page 7 of 12 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 listed above 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 Jarrett Moran, PE 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. 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: a. 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. b. If Contractor’s Scope of Services includes the production of digital content, documents, or web applications intended to be branded for use by the City, Contractor must use the City style guide when creating a design. As per recommendations found in Section 508 of the Rehabilitation Act, all digital content, documents, or web applications must also adhere to level A and AA Success Criteria and Conformance Requirements as defined by the current Web Content Accessibility Guidelines (WCAG). 269 Professional Services Master Task Order Agreement for WTP On-Call Engineering Services Page 8 of 12 c. 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: a. 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. b. 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. c. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 16. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: a. Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. b. 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 270 Professional Services Master Task Order Agreement for WTP On-Call Engineering Services Page 9 of 12 provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing his 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 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. Upon reasonable written notice, 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 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: That in the event it becomes necessary for either Party of this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel to include City Attorney. 21. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 22. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. 271 Professional Services Master Task Order Agreement for WTP On-Call Engineering Services Page 10 of 12 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 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. 31. Extensions: this Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than December 31st, 2029. 32. Consent to Electronic Signatures: The Parties have consented to execute this Agreement 272 Professional Services Master Task Order Agreement for WTP On-Call Engineering Services Page 11 of 12 electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA HDR CONTRACTOR By________________________________ By__________________________________ Chuck Winn, City Manager Tim Erickson Area Manager APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 273 Professional Services Master Task Order Agreement for WTP On-Call Engineering Services Page 12 of 12 EXHIBIT A Professional Services Master Task Order Agreement for WTP On-call Engineering Services TASK ORDER NUMBER ______ Issued under the authority of the Professional Services Master Task Order Agreement between the City of Bozeman and [Contractor’s Name] for a range of professional and technical services related to operations and maintenance of the City of Bozeman Water Treatment Plant and Facilities. This Task Order is dated ____________ , 202__ between City of Bozeman (City) and [Contractor’s Name]. The following representatives have been designated for the work performed under this Task Order: City: Contractor: SCOPE OF WORK: (attach additional sheet(s) as required) 1. See Attachment No. 1. COMPENSATION: The anticipated level of effort for the above scope of work is based upon the following manhour projection in Attachment No. 1. The anticipated cost for services for the above scope of work, to be completed on a (Ex. Time and Materials) Basis not to exceed without prior authorization, are as follows in Attachment No. 1. Contractor shall be reimbursed on a basis not to exceed the budget amounts presented, without prior written authorization from the City of Bozeman. Contractor shall notify the City of Bozeman prior to executing additional work, and shall not proceed with additional work without written authorization from the City of Bozeman. 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’s Name] By: By: Print Name: Print Name: Title: Title: Date: Date: Fed. ID. No. 274 Memorandum REPORT TO:City Commission FROM:Griffin Nielsen, Water Resource Engineer Shawn Kohtz, Director of Utilities SUBJECT:Authorize the City Manager to sign a Professional Services Master Task Order Agreement with HDR for on-call engineering services for the City of Bozeman Water Reclamation Facility MEETING DATE:June 3, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign a Professional Services Master Task Order Agreement with HDR for on-call engineering services for the City of Bozeman Water Reclamation Facility. STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:The City operates and maintains a wide variety of complex systems at the Water Reclamation Facility (WRF) and within the wastewater collection system. The Water Reclamation Facility and Utilities Department staff work closely to operate and maintain these systems; however, projects and situations occasionally arise that require outside engineering support. Having outside engineering services available through an on-call agreement better positions the division to quickly respond to needs as they arise. A request for qualifications for on-call engineering services was advertised on November 16th, 2024. Four statements of qualification were received. Upon review of the submission, City staff determined that HDR is qualified to provide the range of engineering services necessary for the Water Reclamation Facility. The attached Professional Services Master Task Order Agreement (on-call agreement) has been negotiated with HDR. As work arises, the on-call agreement requires negotiation of individual task orders. The initial term of the on-call agreement expires December 31, 2027, but may be extended upon mutual agreement of the parties for up to two additional years. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the Commission 275 FISCAL EFFECTS:As work arises, individual task orders will be negotiated prior to proceeding with work. Task order costs will be funded by the Utilities Department's operating budgets. Attachments: 2025_WRF Oncall_ Master Professional Services Agmt_HDR.pdf Report compiled on: May 16, 2025 276 Professional Services Master Task Order Agreement for WRF On-Call Engineering Services Page 1 of 12 PROFESSIONAL SERVICES MASTER TASK ORDER AGREEMENT THIS AGREEMENT is made and entered into this _____ of June, 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, HDR Engineering, Inc (HDR) at 2150 Analysis Drive, Bozeman, MT 59718, hereinafter referred to as “Contractor.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter into this agreement with Contractor to provide a range of professional and technical services related to operations and maintenance of the City of Bozeman Water Reclamation Facility and supporting facilities, including but not necessarily limited to engineering design, preparation of construction documents, project bidding, and construction administration services for various improvement projects, as requested by the City through issuance of individual, consecutively numbered Task Orders on an as needed and requested basis. 2. Term/Effective Date: This Agreement is effective upon the date of its execution and will expire on December 31st, 2027 unless extended or terminated as specifically provided for within the agreement. 3. Scope of Work: Contractor will perform the work and provide the services in accordance with the specific services and corresponding cost and schedule as mutually agreed upon by City and Contractor and included in each individual Task Order executed under the authority of this Agreement. Task Orders shall be in a format similar to EXHIBIT A, attached and made part of this Agreement. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: The terms of compensation to Contractor shall be agreed upon and included in each Task Order. City agrees to pay Contractor the amount specified in the individual Task Orders. 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 277 Professional Services Master Task Order Agreement for WRF On-Call Engineering Services Page 2 of 12 will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. For each individual Task Order, Contractor will familiarized itself with the nature and extent of the assignment, 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 and will provide a mutually agreeable Scope of Services for each Task Order. b. Contractor represents to City that it has the experience and ability to perform the services required by this Agreement; that it will perform said services in a professional, competent and timely manner and with diligence and skill ordinarily used by member in the same profession practicing at the same time and in the same locality; 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 standard of care. 6. Independent Contractor Status/Labor Relations: a. 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. b. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, 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. c. 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. 278 Professional Services Master Task Order Agreement for WRF On-Call Engineering Services Page 3 of 12 d. Contractor shall indemnify, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. 7. Indemnity/Waiver of Claims/Insurance: a. For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of 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; b. 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 willful misconduct of the Contractor or Contractor’s agents or employees. Defense obligation under this indemnity paragraph means only the reimbursement of reasonable defense costs to the proportionate extent of the Contractor’s actual liability obligation hereunder. c. 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). d. Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. e. Should any indemnitee described herein 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 indemnitee shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense 279 Professional Services Master Task Order Agreement for WRF On-Call Engineering Services Page 4 of 12 but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof. f. In the event of an action filed against 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. g. Contractor also waives any and all claims and recourse against the City or its officers, agents or employees, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. h. These obligations shall survive termination of this Agreement and the services performed hereunder. i. 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. j. 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 and 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 and annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury; $1,000,000 annual aggregate; and • Professional Liability - $2,000,000 per claim; $2,000,000 annual aggregate. 280 Professional Services Master Task Order Agreement for WRF On-Call Engineering Services Page 5 of 12 k. The above amounts shall be exclusive of defense costs. The City of Bozeman, its officers, agents, and employees, 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. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement or any individual Task Order under 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 or any Task Order under this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner 281 Professional Services Master Task Order Agreement for WRF On-Call Engineering Services Page 6 of 12 specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement or any Task Order under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement or any Task Order under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. The Parties agree this provision does not apply to third party claims. 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. 11. Representatives: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Griffin Nielsen, PE 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 282 Professional Services Master Task Order Agreement for WRF On-Call Engineering Services Page 7 of 12 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 listed above 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 Coralynn Revis, PE 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. 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: a. 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. b. If Contractor’s Scope of Services includes the production of digital content, documents, or web applications intended to be branded for use by the City, Contractor must use the City style guide when creating a design. As per recommendations found in Section 508 of the Rehabilitation Act, all digital content, documents, or web applications must also adhere to level A and AA Success Criteria and Conformance Requirements as defined by the current Web Content Accessibility Guidelines (WCAG). 283 Professional Services Master Task Order Agreement for WRF On-Call Engineering Services Page 8 of 12 c. 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: a. 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. b. 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. c. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 16. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: a. Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. b. 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 284 Professional Services Master Task Order Agreement for WRF On-Call Engineering Services Page 9 of 12 provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing his 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 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. Upon reasonable written notice, 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 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: That in the event it becomes necessary for either Party of this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel to include City Attorney. 21. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 22. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. 285 Professional Services Master Task Order Agreement for WRF On-Call Engineering Services Page 10 of 12 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 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. 31. Extensions: this Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than December 31st, 2029. 32. Consent to Electronic Signatures: The Parties have consented to execute this Agreement 286 Professional Services Master Task Order Agreement for WRF On-Call Engineering Services Page 11 of 12 electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA HDR CONTRACTOR By________________________________ By__________________________________ Chuck Winn, City Manager Tim Erickson Area Manager APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 287 Professional Services Master Task Order Agreement for WRF On-Call Engineering Services Page 12 of 12 EXHIBIT A Professional Services Master Task Order Agreement for WRF On-call Engineering Services TASK ORDER NUMBER ______ Issued under the authority of the Professional Services Master Task Order Agreement between the City of Bozeman and [Contractor’s Name] for a range of professional and technical services related to operations and maintenance of the City of Bozeman Water Reclamation Facility and Supporting Facilities. This Task Order is dated ____________ , 202__ between City of Bozeman (City) and [Contractor’s Name]. The following representatives have been designated for the work performed under this Task Order: City: Contractor: SCOPE OF WORK: (attach additional sheet(s) as required) 1. See Attachment No. 1. COMPENSATION: The anticipated level of effort for the above scope of work is based upon the following manhour projection in Attachment No. 1. The anticipated cost for services for the above scope of work, to be completed on a (Ex. Time and Materials) Basis not to exceed without prior authorization, are as follows in Attachment No. 1. Contractor shall be reimbursed on a basis not to exceed the budget amounts presented, without prior written authorization from the City of Bozeman. Contractor shall notify the City of Bozeman prior to executing additional work, and shall not proceed with additional work without written authorization from the City of Bozeman. 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’s Name] By: By: Print Name: Print Name: Title: Title: Date: Date: Fed. ID. No. 288 Memorandum REPORT TO:City Commission FROM:Shane Miller - Facilities Project Coordinator David Arnado - Facilities Superintendent Jon Henderson - Strategic Services Director SUBJECT:Authorize the City Manager to Sign Amendment 001 to Professional Services Master Task Order Agreement with TD&H for Engineering Services MEETING DATE:June 3, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign Amendment 001 to Professional Services Master Task Order Agreement with TD&H for Engineering Services STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:The Facilities Dept. regularly uses general contractors and specialty trades contractors for projects related to facilities management and maintenance under our term contract program. The firms with executed term contracts periodically update their labor rates, usually on an annual basis. This amendment adds MEP labor rates for: TD&H Engineering. UNRESOLVED ISSUES:None at this time ALTERNATIVES:As suggested by City Commission FISCAL EFFECTS:Services provided under these term contracts will be provided at the pre- negotiated rates as stated in the Scope of Services for each contract. Services are to be provided on an 'as-needed' basis and individual project expenses are to be project specific with projects initiated via task order. Total contracted project costs are to be $79,999 or less per the City of Bozeman Purchasing Policy. Attachments: TD&H Engineering PSA Amendment 001 2025.05.14.pdf Report compiled on: May 14, 2025 289 001 Amendment to Professional Services Agreement for [TD&H Engineering] FY 2025 – FY 2030 Page 1 of 2 001 AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS 001 AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR TD&H Engineering_ dated_1/23/24_ (the “Agreement”) is made and entered into this _____ day of ____________, 202__, by and between the CITY OF BOZEMAN, MONTANA, a self governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and _TD&H Engineering_, 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. Updated Professional Hourly Rate. Per Section 7 of Exhibit A <attached> 2. Agreement still valid. All remaining terms and provisions of the Agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** 290 001 Amendment to Professional Services Agreement for [TD&H Engineering] FY 2025 – FY 2030 Page 2 of 2 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA [TD&H Engineering] By________________________________ By_____________________________ Chuck Winn, City Manager Print Name: Scott Mahurin Title: Principal APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney 291 1800 River Drive North • Great Falls, MT 59401 • (406) 761-3010 • FAX (406) 727-2872 2025 GREAT FALLS MEP RATE SCHEDULE Fee Compensation TD&H’s MEP hourly billing rates for 2025 are provided in the adjacent table. We invoice for services rendered to a project to the nearest quarter hour. Direct project costs will be invoiced at cost plus 10%. Examples of these costs include airfare, ground transportation, lodging, meals, shipping and express mail, outside reproduction services, and other direct costs required for the project. Outside contract services including subconsultants, subcontractors and drilling services will be invoiced at cost plus 10% to cover additional insurance and administrative fees. DIRECT REIMBURSABLES Vehicle Use: Passenger Vehicle Mileage $0.75/mile Survey – Robotic Total Station Heavy Duty Vehicle Mileage $1.10/mile Hourly Rate: $30.00 Survey – Global Positioning Survey – Total Station with Data Collector Daily Rate: $500.00 Daily Rate: $100.00 Hourly Rate: $80.00 Hourly Rate: $20.00 Minimum Charge: $160.00 Reproduction CAD Plotter (In-house) Color (8.5x11) $1.50/page Bond $0.90/SF Color (11x17) $2.50/page Mylar $3.30/SF B&W (8.5x11) $0.60/page B&W (11x17) $1.20/page XRF – Daily $350.00 NOTES: 1) Construction Materials Testing per Separate Fee Schedule. *See Materials Testing Fee Schedule for Additional Information 2) Overtime work (above 40 hours per week, or weekends) increase hourly rates by 25%, or per quotation. 3) Annual rate adjustments occur in January of each year and typically range from 3% to 4%. DESCRIPTION HOURLY RATE Principal $254.00 Project Manager $185.00 Project Electrical Engineer $160.00 Senior Electrical Engineer $150.00 Electrical Engineer $128.00 Project Mechanical Engineer $150.00 Senior Mechanical Engineer $135.00 Mechanical Engineer $110.00 Engineer Tech $100.00 CADD Draftsman $90.00 Administrative Assistant $90.00 292 Memorandum REPORT TO:City Commission FROM:Shane Miller - Facilities Project Coordinator David Arnado - Facilities Superintendent Jon Henderson - Strategic Services Director SUBJECT:Authorize the City Manager to Sign Amendment 001 to Professional Services Master Task Order Agreement with inContour for Landscaping Services MEETING DATE:June 3, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign Amendment 001 to Professional Services Master Task Order Agreement with inContour for Landscaping Services STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:The Facilities Dept. regularly uses general contractors and specialty trades contractors for projects related to facilities management and maintenance under our term contract program. The firms with executed term contracts periodically update their labor rates, usually on an annual basis. This amendment updates labor rates for: inContour Landscape Architects. UNRESOLVED ISSUES:None at this time ALTERNATIVES:As suggested by City Commission FISCAL EFFECTS:Services provided under these term contracts will be provided at the pre- negotiated rates as stated in the Scope of Services for each contract. Services are to be provided on an 'as-needed' basis and individual project expenses are to be project specific with projects initiated via task order. Total contracted project costs are to be $79,999 or less per the City of Bozeman Purchasing Policy. Attachments: inContour PSA Amendment 001.pdf Report compiled on: May 13, 2025 293 001 Amendment to Professional Services Agreement for [inContour Landscape Architecture] FY 2025 – FY 2030 Page 1 of 2 001 AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS 001 AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR TD&H Engineering_ dated_1/28/25_ (the “Agreement”) is made and entered into this _____ day of ____________, 202__, by and between the CITY OF BOZEMAN, MONTANA, a self governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and _inContour Landscape Architecture_, 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. Updated Professional Hourly Rate. Per Section 7 of Exhibit A <attached> 2. Agreement still valid. All remaining terms and provisions of the Agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** 294 001 Amendment to Professional Services Agreement for [inContour Landscape Architecture] FY 2025 – FY 2030 Page 2 of 2 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA [inContour Landscape Architecture] By________________________________ By_____________________________ Chuck Winn, City Manager Print Name: Lessa Millard Title: Pricipal APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney 295 inContour 614 S Ferguson Ave, Ste 3 Bozeman, MT 59718 www.inContour.com 406.624.9111 Terms and Conditions (effective Jan 1, 2025) 1. Standard of Care: Our Landscape Architectural Services will be performed in accordance with generally accepted standards of professional care.pe. 2. Ownership of Documents: All deliverables provided to the Client by the Landscape Architect, including plans, drawings, specifications, and other materials, remain the intellectual property of the Landscape Architect. Upon full payment, the Client is granted a non-exclusive license to use these materials solely for the project's construction and use. Unauthorized modifications or use of these materials may result in indemnification responsibilities for the Client. 3. Additional Services: Services beyond the basic Scope of Services, when requested by the Client, will require additional compensation. 4. Approval and Changes to Services: The Landscape Architect will proceed with each phase after the Client's written approval of the prior phase's deliverables and authorization to continue. Changes initiated by the Client may result in additional service charges. 5. Opinions of Probable Costs: These are estimates provided for budget planning and do not guarantee actual construction costs. No fixed construction cost limit is established unless agreed upon in writing by both parties. 6. Payments: inContour, PLLC will invoice monthly, with payment due upon receipt and considered past due after 21 days. Work may be halted, and documents withheld for past due accounts. Interest will be charged on overdue invoices at 18% per annum. Non-payment may result in a mechanics lien on the property. 7. Professional Hourly Rates: Rates for various staff members and expenses are subject to annual adjustments on January 1st. The current rates are valid for 30 days from the proposal date, with the right to renegotiate upon scope changes or project delays in excess of 60 days. Principal $215.00 Project Manager/Lead $135.00 Landscape Architect $115.00 Landscape Designer $100.00 Landscape Intern $85.00 Clerical Staff $85.00 8. Reimbursable Expe nses: These will be billed monthly at actual cost plus 10% and include various operational expenses. These include but are not limited: printing, soil testing, airfare, hotel, rental car, and mileage. 9. Indemnification: Both parties waive claims against each other for indirect or consequential damages related to this Agreement. 10. Collection: The Client agrees to cover all collection costs, including attorney fees. The prevailing party in any legal action is entitled to recover legal costs. 11. Claims: The Client cannot deduct amounts for claims against inContour, PLLC services from payments, unless legally adjudicated. 12. Suspension/Termination: Either party may terminate this agreement with immediate effect upon written notice. Payment for services rendered and expenses incurred up to termination is expected. inContour, PLLC reserves the right to suspend services or terminate the agreement for non-payment or project inaction. 296 Memorandum REPORT TO:City Commission FROM:Addi Jadin, Park Planning and Development Manager Mitch Overton, Director of Parks and Recreation SUBJECT:Authorize City Manager to Sign Amendment One to Stahly Professional Services Agreement for Bozeman Sports Park Phase 2 MEETING DATE:June 3, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize City Manager to Sign Amendment One to Stahly Professional Services Agreement for Bozeman Sports Park Phase 2 STRATEGIC PLAN:3.4 Active Recreation: Facilitate and promote recreational opportunities and active health programs and facilities. BACKGROUND:Stahly Engineering is under contract for design and construction administration for Phase 2 at the Bozeman Sports Park which must be coordinated with another field proposed for construction in Phase 1 due to connected utilities and grading/cut-fill balance. The amendment allows Stahly to perform construction administration tasks for Phase 1 as well. UNRESOLVED ISSUES:NA ALTERNATIVES:Per Commission FISCAL EFFECTS:Funding available and allocated in FY25 budget Attachments: PSA-Bozeman-Sports-Park-Ph-2_First-Amendment.docx Exhibit-A_SEA_Field-7-Coordination-Proposal.pdf Report compiled on: May 23, 2025 297 First Amendment to Professional Services Agreement for Bozeman Sports Park Phase 2 Engineering and Construction Management FY 2025-26 Page 1 of 2 FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS FIRST AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR BOZEMAN SPORTS PARK PHASE 2 ENGINEERING AND CONSTRUCTION MANAGEMENT dated June 30, 2025, (the “Agreement”) is made and entered into this _____ day of ____________, 202__, by and between the CITY OF BOZEMAN, MONTANA, a self governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and Stahly Engineering & Associates, 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. Scope of Services: The Scope of Services is amended to include the Construction Administration tasks for Field #7 of Phase 1 as described in the attached proposal (Exhibit A). 2. Payment: Payment shall be amended to include the amount specified in the attached proposal. 3. Agreement still valid. All remaining terms and provisions of the Agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** 298 First Amendment to Professional Services Agreement for Bozeman Sports Park Phase 2 Engineering and Construction Management FY 2025-26 Page 2 of 2 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA STAHLY ENGINEERING & ASSOCIATES, INC By________________________________ By_____________________________ Chuck Winn, City Manager Print Name: Title: APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney 299 851 Bridger Dr., #1, Bozeman, MT 59715 | phone: 406-522-8594 www.seaeng.com Engineers and Land Surveyors April 15, 2025 City of Bozeman Parks Department attn: Addi Jadin PO Box 1230 Bozeman, MT 59717 Via: email-ajadin@bozeman.net RE: Proposal for Civil Engineering Consulting Services Overseeing the Construction of Field #7 at the Bozeman Sports Park Dear Addi, Stahly Engineering is pleased to submit this proposal to provide civil engineering services for the construction of an artificial turf athletic field at the Bozeman Sports Park (Field #7). Our firm specializes in civil engineering oversight and project coordination, ensuring compliance with regulatory requirements and master planning objectives. This proposal outlines the scope of services, deliverables, and the approach we will take to successfully support the project. Scope of Services Our consulting services will include, but are not limited to, the following: ◆ Coordination Between Owner and Contractor ▪ Act as the primary liaison between the project owner and the contractor to facilitate smooth communication and project execution. ▪ Attend regular project meetings and provide technical input to resolve any emerging challenges. ▪ Provide construction inspection and materials testing of concrete during construction. ◆ Design Compliance with Park Master Plan ▪ Evaluate the proposed field design to ensure compliance with the overall park master plan, including amenities, field grades. ▪ Recommend adjustments to design or implementation to maintain consistency with planned park developments. 300 Page | 2 ◆ Design Coordination with Adjacent Construction Project ▪ Assess the compatibility of the Field #7 design with the existing and planned construction project at the south end of the park (Field #14). ▪ Provide recommendations for adjustments or modifications to avoid conflicts between the two projects. ▪ Ensure continuity in infrastructure elements such as drainage systems, pedestrian pathways, and utilities between both projects. Project Deliverables Regular progress reports summarizing site observations, coordination efforts, and recommendations. Design compliance assessment reports ensuring adherence to the master plan and adjacent project requirements. Meeting minutes documenting key discussions and decisions made during coordination meetings. Final compliance review and certification confirming adherence to all applicable design and planning requirements. As-built drawings are excluded from this task, but key design elements will be surveyed and provided to the field designer for incorporation into their as-built drawings. Project Timeline Stahly anticipates that the project will be completed by the end of the 2025 construction season. A detailed project schedule will be developed in collaboration with Field Turf and contractor to align with construction milestones. Fee Structure Our fee for providing civil engineering consulting services will be based on an hourly rate basis not to exceed $43,000. Unit rates can be provided if requested. Stahly is committed to delivering high-quality engineering consulting services to ensure the successful completion of Field #7. We look forward to the opportunity to contribute to the development of this important community asset. 301 Page | 3 If you have any questions or require additional information, please do not hesitate to contact us. Sincerely, Stahly Engineering, Inc. ________________________ Zach Lowe, P.E. Bozeman Regional Manager 302 Memorandum REPORT TO:City Commission FROM:Shane Miller, Facilities Project Coordinator David Arnado, Facilities Superintendent Jon Henderson, Assistant City Manager SUBJECT:Ratify the City Manager's signature on Amendment 001 of a Professional Services Agreement with Steelcase for Bozeman City Hall Phase 2 Furniture and Moving Services. MEETING DATE:June 3, 2025 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Ratify the City Manager's signature on Amendment 001 of a Professional Services Agreement with Steelcase for Bozeman City Hall Phase 2 Furniture and Moving Services. STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:The City of Bozeman is renovating City Hall to achieve the following goals: Improved safety and security through redesign of the Finance Department front counter. Additional office space for several Departments (x13 new workspaces). Increased energy efficiency through retro commissioning efforts. More efficient use of space for records storage. This will be achieved over multiple phases in 2025. As part of the City Hall Renovation project it will require the following departments to moving into new areas; Economic Development, Human Resources, Legal, Finance, and City Administration. For this type of complex move, it will require the City to procure professional moving service to ensure a smooth transition for all City Departments. This contract amendment with Steelcase will include internal moves between Phase 1 and 2 of the City Hall Renovation Project, relocating the City Clerks to 7 Beall, decommissioning and storing legacy furniture, and disposing of furniture which has met the end of its useful life as well as several adjustments to new furniture. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:Funds are allocated in the approved Bozeman City Hall Renovation Construction Budget. Amendment = $17,149.32 Attachments: 303 PSA Amendment 001 City Hall Renovation (Steelcase aka KR Office Interiors - Phase II).pdf Report compiled on: May 27, 2025 304 001 Amendment to Professional Services Agreement for [Steelcase] FY 2025 – FY 2026 Page 1 of 2 001 AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS IS A MODIFICATION TO THE PURCHASE AGREEMENT is made this day of May 22, 2025, by and between the CITY OF BOZEMAN, a municipal corporation organized and existing under the laws of the State of Montana, 121 North Rouse Ave., Montana 59715, hereinafter referred to as “City,” and Steelcase Inc., with a mailing address of 901 44th Street SE, Grand Rapid, MI 49508, hereinafter referred to as “Steelcase” or “Vendor.” The amount of this modification is to increase this purchase agreement by $17,149.32 from $359,628.89 to $376,778.21.” 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.Payment Section 4 of the Agreement is altered to include an additional charge for conference table angled legs and additional charge for Phase 2 moving services in the amount of $17,149.32. Please see Exhibit A. 2.Agreement still valid. All remaining terms and provisions of the Agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** 305 001 Amendment to Professional Services Agreement for [Steelcase] FY 2025 – FY 2026 Page 2 of 2 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA [Steelcase Inc.] By________________________________ By_____________________________ Chuck Winn, City Manager Print Name: Megan Maguire Title: Manager, Pricing & Contract APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney 306 KR Office Interiors QUOTE #B-2366 403 Gallatin Farmers Ave. Ste 101 CLIENT: City of Bozeman Belgrade, MT 59714 CONTACT:Shane Miller PHONE: 406-585-5417 PHONE: 406-577-7425 Email: megan@krofficeinteriors.com DATE: 4/23/2025 PROJECT: HR & Finance: QTY MFG FURNITURE TAG DESCRIPTION LIST PRICE EXT.LIST YOUR PRICE TOTAL 1 KR Decommissioned Furniture Labor to take-down and move furniture to the dump (dump fee will be added to invoice after labor is completed).$2,125.00 $2,125.00 1 KR Repurposed Furniture Labor to take-down and move furniture to City's warehouse and then to reinstall at the end of the phase 2.$2,975.00 $2,975.00 City Administration: QTY MFG FURNITURE TAG DESCRIPTION LIST PRICE EXT.LIST YOUR PRICE TOTAL 1 KR Chuck Winn Labor to take furniture to the dump (dump fee will be added to invoice after labor is completed). Churck will be getting new desk furntiure. $255.00 $255.00 1 KR Julie Labor to relocate Finance temporary furniture to storage room on first floor and to take Julie's current desk to the dump (dump fee will be added to invoice after labor is completed). The labor to take Julie's temporary desk to the dump is covered under the HR+Finance Decommissioned Furntiure line. $765.00 $765.00 1 KR Takami Labor to take Takami's furniture to Summit and reinstall after phase 2 is completed.$680.00 $680.00 1 KR Emily Labor to take Emily's furniture to the dump (dump fee will be added to invoice after labor is completed). Emily's current office will not exist in the new layout. $255.00 $255.00 1 KR Allison Labor to take Allison's furniture to the dump (dump fee will be added to invoice after labor is completed). Allison is currently in an open area workstation where there will be new furniture. $255.00 $255.00 1 KR Emma Labor to take Emma's furniture to the dump (dump fee will be added to invoice after labor is completed). Emma is currently in a private office that will receive a new desk. $170.00 $170.00 Phase 2 City Hall Remodel Existing Furniture Move EXHIBIT A 307 KR Office Interiors QUOTE #B-2366 403 Gallatin Farmers Ave. Ste 101 CLIENT: City of Bozeman Belgrade, MT 59714 CONTACT:Shane Miller PHONE: 406-585-5417 PHONE: 406-577-7425 Email: megan@krofficeinteriors.com DATE: 4/23/2025 PROJECT: City Administration: Cont. QTY MFG FURNITURE TAG DESCRIPTION LIST PRICE EXT.LIST YOUR PRICE TOTAL 1 KR Mike Repurpose a current Finance cubicle to the 7th Beall office and to take Mike's current furniture to the summit building and reinstall at the end of phase 2. The labor to then decommision the temporary furniture after phase 2 is completed is included in the "HR & Finance" section. $765.00 $765.00 1 KR Alex Repurpose a current Finance cubicle to the 7th Beall office and to take Alex's current workstation to the dump (dump fee will be added to the invoice after labor is completed). The labor to then decommision the temporary furniture after phase 2 is completed is included in the "HR & Finance" section. $765.00 $765.00 1 KR Records Coordinator Repurpose a current Finance cubicle to the 7th Beall office. The labor to then decommision the furniture after phase 2 is completed is included in the "HR & Finance" section. $510.00 $510.00 1 KR Jon Henderson Labor to relocate Jon's desk to the Stiff Building and his additional furniture pieces to the City's warehouse. After phase 2 is completed, all of the furniture will be reinstalled. $1,785.00 $1,785.00 1 KR Melissa Hodnett Labor to take Melissa's temporary furniture to Summit and reinstall after phase 2 is completed.$680.00 $680.00 Summit Building QTY MFG FURNITURE TAG DESCRIPTION LIST PRICE EXT.LIST YOUR PRICE TOTAL 1 KR Summit Building Labor to prep Summit Building - removing furniture that will not be reused, included previous inventory from the Kimball manufacturer that is no longer on the state contract (dump fee will be added to invoice after labor is completed). $4,080.00 $4,080.00 LABOR TOTAL $0.00 $16,065.00 Phase 2 City Hall Remodel Existing Furniture Move 308 KR Office Interiors QUOTE #B-2366 403 Gallatin Farmers Ave. Ste 101 CLIENT: City of Bozeman Belgrade, MT 59714 CONTACT:Shane Miller PHONE: 406-585-5417 PHONE: 406-577-7425 Email: megan@krofficeinteriors.com DATE: 4/23/2025 PROJECT: Pricing valid for 30 days from the date of this document.PAYMENT TERMS & CONDITIONS ARE AS FOLLOWS: - KR Office Interiors will invoice for this quote at time of installation. - By signing this quotation, the client agrees all finishes, materials and drawings are correct. - - Pricing of new furniture includes receiving, delivery, installation, and trash removal; it does not include removal and/or disposal of existing furniture. - Any labor quoted is based on the stated scope of the project. If changes to the scope are requested during installation, additional fees may apply. - Labor is based on normal business hours unless otherwise stated in the scope. - Job site must be free and clear of all obstacles/trades and ready to receive product or additional labor and storage fees may apply. - - Tarif charges may apply Customer Approval Date Please review the quote and corresponding drawings. Let us know if you would like to make any changes. If you are ready to place your order, please sign and return the quote and drawings to us by email: megan@krofficeinteriors.com Once the furniture is ordered, any changes and/or cancelations cannot be made. Furniture is not returnable or exchangeable unless defective or damaged at the time of delivery. 30 Days of free storage are included with this quote. If installation of the furniture is delayed due to construction or at the request of the client beyond 30 days from KR Office Interiors’ receipt of the furniture, additional storage fees will be applied and invoiced. Phase 2 City Hall Remodel Existing Furniture Move 309 KR Office Interiors QUOTE #B-2387 403 Gallatin Farmers Ave. Ste 101 CLIENT: City of Bozeman Belgrade, MT 59714 CONTACT:Shane Miller PHONE: 406-585-5417 PHONE: Email: megan@krofficeinteriors.com DATE: 5/20/2025 PROJECT: QTY MFG FURNITURE TAG DESCRIPTION LIST PRICE EXT.LIST YOUR PRICE TOTAL 4 STL LQTCT Conference Table Angled Legs - package of two per unit (Two sets for both conference rooms).$707.00 $2,828.00 $271.08 $1,084.32 FURNITURE TOTAL $1,084.32 Pricing valid for 30 days from the date of this document. PAYMENT TERMS & CONDITIONS ARE AS FOLLOWS: - KR Office Interiors will invoice for this quote at time of installation. - By signing this quotation, the client agrees all finishes, materials and drawings are correct. - - Pricing of new furniture includes receiving, delivery, installation, and trash removal; it does not include removal and/or disposal of existing furniture. - Any labor quoted is based on the stated scope of the project. If changes to the scope are requested during installation, additional fees may apply. - Labor is based on normal business hours unless otherwise stated in the scope. - Job site must be free and clear of all obstacles/trades and ready to receive product or additional labor and storage fees may apply. - - Tarif charges may apply Customer Approval Date Please review the quote and corresponding drawings. Let us know if you would like to make any changes. If you are ready to place your order, please sign and return the quote and drawings to us by email: megan@krofficeinteriors.com Once the furniture is ordered, any changes and/or cancelations cannot be made. Furniture is not returnable or exchangeable unless defective or damaged at the time of delivery. 30 Days of free storage are included with this quote. If installation of the furniture is delayed due to construction or at the request of the client beyond 30 days from KR Office Interiors’ receipt of the furniture, additional storage fees will be applied and invoiced. City Hall Conference Table Replacement Legs EXHIBIT A (Continued) 310 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:June 3, 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 _First_Am_Dwtwn_Alley_Enhance_Agmt_final- COMBINED_PDF.pdf 23564-CO-4 Combined.pdf Resolution_XXX_May_2025_Change_Order_6-2.pdf Report compiled on: May 15, 2025 311 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 312 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 313428 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 314429 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 315430 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 316431 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 317432 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 318433 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 319434 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 320435 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 321436 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 322437 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 323438 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 324439 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 325440 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 326441 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 327442 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 328443 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 329444 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 330445 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 331446 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 332447 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 333448 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 334449 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 335450 -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 336451 -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 337452 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 338453 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 339454 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 340455 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 341456 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 342457 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 343458 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 344459 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 345460 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 346461 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 347462 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 348463 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 349464 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 350465 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 351466 -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 352467 -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 353468 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 354469 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 355470 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 356471 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 357472 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 358473 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 359474 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 360475 Dzintars Waiver of Proprietary Rights - Page 4 of 4 - DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 361476 DOWNTOWN BOZEMAN ALLEY ENHANCEMENT PILOT PROJECT Final Artwork Plans and Drawings Date: 1/23/2024 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 362477 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 363478 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 364479 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 365480 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 366481 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 367482 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 368483 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 369484 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 370485 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 371486 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 372487 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 373488 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 374489 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 375490 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 376491 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 377492 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 378493 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 379494 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 380495 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 381496 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 382497 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 383498 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 384499 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 1,100.00 385 Version February 2023 RESOLUTION 2025-XXX A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, to Sign Change Order 6 with Constructive Solutions, Inc. for the Downtown Alley Enhancement Pilot Project 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 3rd Day of June, 2025. 386 Version February 2023 ___________________________________ Terence Cunningham Mayor ATTEST: ___________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 387 Memorandum REPORT TO:City Commission FROM:Melissa Hodnett, Finance Director SUBJECT:A Resolution Prescribing the Form and Terms of the Lease(s) and Installment Purchase Agreement and Property Schedules MEETING DATE:June 3, 2025 AGENDA ITEM TYPE:Finance RECOMMENDATION:I move to approve the resolution. STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable sources of funding for appropriate City services, and deliver them in a lean and efficient manner. BACKGROUND:The City's Biennium Budget includes debt proceeds to pay for capital expenses including, among other things, swim center improvements, fire station 2 construction, various furniture & fixtures, police vehicles, solid waste equipment, and stormwater equipment. On February 13, 2024, the City Commission approved Resolution 5581 Approving, Pursuing, and Negotiation a Lease-Purchase Financing arrangement. The City solicited proposals for a lease -purchasing arrangement and in April, 2024 JP Morgan was selected as the lowest responsible bidder. The principal balance included in the initial issuance of lease debt under the master lease purchase agreement is $5,925,900.98. The debt reimburses the city for $725,905 for the swim center HVAC system, $2,212,787.21 for the fire station 2 HVAC system, construction costs, various furniture & fixtures, and solar panels and installation, $681,442.02 for 13 police patrol vehicles, $1,920,229 for 5 solid waste trucks, and $333,537.75 for a storm water pipe inspection van. The lease bundles these costs for terms ranging from 5 years for police patrol vehicles to 15 years for the HVAC systems. The final interest will be determined after resolution approval including authorization to enter into a rate lock agreement with a true interest cost of less than 4.50%, and a schedule not to exceed 16 years. UNRESOLVED ISSUES:The final interest rate will not be determined until after resolution approval, but will not exceed 4.50%, and a schedule not to exceed 16 years.. This will allow the city to lock in the most advantageous rate prior to issuance. ALTERNATIVES:The City could elect to cash fund the improvements and equipment which 388 would require other budget reductions to the corresponding funds. FISCAL EFFECTS:Lease proceeds will reimburse city departments for $5,925,900.98 already incurred and paid. The lease payments are amortized over 5, 6, 7, 10, and 15 year terms depending on the anticipated useful life of the equipment being financed. The semi-annual lease payments will commence on 1/1/2026 and end on 7/1/2040. Estimates of the total principal and interest payments are included in the annual 2025 Biennium Budget and the FY26 Recommended Annual Operating Budget which will be presented to City Commission on June 10th. Attachments: Master Lease Purchase Agreement and Schedule.v2.pdf City of Bozeman - Sample Rate Lock Letter - 5.23.25.pdf Resolution Approving Lease Purchase Financing.pdf Report compiled on: May 24, 2024 389 Page 1 of 13 MASTER LEASE-PURCHASE AGREEMENT Dated as of: June 12, 2025 Lessee: CITY OF BOZEMAN, MONTANA This Master Lease-Purchase Agreement, together with all addenda, riders and attachments hereto, as the same may from time to time be amended, modified or supplemented (“Master Lease”) is made and entered by and between JPMORGAN CHASE BANK, N.A. (“Lessor”) and the lessee identified above (“Lessee”). 1. LEASE OF EQUIPMENT. Subject to the terms and conditions of this Master Lease, Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, all Equipment described in each Schedule signed from time to time by Lessee and Lessor. 2. CERTAIN DEFINITIONS. All terms defined in the Master Lease are equally applicable to both the singular and plural form of such terms. (a) “Schedule” means each Lease Schedule signed and delivered by Lessee and Lessor, together with all addenda, riders, attachments, certificates and exhibits thereto, as the same may from time to time be amended, modified or supplemented. Lessee and Lessor agree that each Schedule (except as expressly provided in said Schedule) incorporates by reference all of the terms and conditions of the Master Lease. (b) “Lease” means any one Schedule and this Master Lease as incorporated into said Schedule. (c) “Equipment” means the property described in each Schedule, together with all attachments, additions, accessions, parts, repairs, improvements, replacements and substitutions thereto. (d) “Lien” means any security interest, lien, mortgage, pledge, encumbrance, judgment, execution, attachment, warrant, writ, levy, other judicial process or claim of any nature whatsoever by or of any person. (e) “Termination Value” has the meaning assigned to such term in the applicable Payment Schedule (as defined in Section 4.1). 3. LEASE TERM. The term of the lease of the Equipment described in each Lease (“Lease Term”) commences on the date specified in the Schedule for such Lease and, unless earlier terminated as expressly provided in the Lease, continues until Lessee’s payment and performance in full of all of Lessee’s obligations under the Lease. 4. RENT PAYMENTS. 4.1 For each Lease, Lessee agrees to pay to Lessor the rent payments (the “Rent Payments”) in the amounts and at the times as set forth in the Payment Schedule attached to the Schedule (the “Payment Schedule”). A portion of each Rent Payment is paid as and represents the payment of interest as set forth in the Payment Schedule. Lessee acknowledges that its obligation to pay Rent Payments including interest therein accrues as of the date stated in the Schedule or its Payment Schedule; provided, that no Rent Payment is due until Lessee accepts the Equipment under the Lease or the parties execute an escrow agreement. Rent Payments will be payable for the Lease Term in U.S. dollars, without notice or demand at the office of Lessor (or such other place as Lessor may designate from time to time in writing). 390 Page 2 of 13 4.2 If Lessor receives any payment from Lessee later than ten (10) days from the due date, Lessee shall pay Lessor on demand as a late charge five per cent (5%) of such overdue amount, limited, however, to the maximum amount allowed by law. 4.3 EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 6, THE OBLIGATION TO PAY RENT PAYMENTS UNDER EACH LEASE SHALL BE ABSOLUTE AND UNCONDITIONAL IN ALL EVENTS AND SHALL NOT BE SUBJECT TO ANY SETOFF, DEFENSE, COUNTERCLAIM, ABATEMENT OR RECOUPMENT FOR ANY REASON WHATSOEVER. 5. DELIVERY; ACCEPTANCE; FUNDING CONDITIONS. 5.1 Lessee shall arrange for the transportation, delivery and installation of all Equipment to the location specified in the Schedule (“Location”) by Equipment suppliers (“Suppliers”) selected by Lessee. Lessee shall pay all costs related thereto, unless such costs are to be paid as described in section 5.2. 5.2 Lessee shall accept Equipment as soon as it has been delivered and is operational. Lessee shall evidence its acceptance of any Equipment by signing and delivering to Lessor the applicable Schedule or, in the event that a Schedule is funded by deposit to an escrow account, by providing such certificate(s) or receipt(s) as may be reasonably satisfactory to Lessor. If Lessee signs and delivers a Schedule and if all Funding Conditions have been satisfied in full, then Lessor will pay or cause to be paid the costs of such Equipment as stated in the Schedule (“Purchase Price”) to the applicable Supplier, pay or cause the Purchase Price to be paid to the Lessee as reimbursement for costs of the Equipment, or cause the Purchase Price to be deposited into an escrow account, in each case in accordance with the applicable Schedule. 5.3 Lessor shall have no obligation to pay any Purchase Price unless all reasonable conditions established by Lessor (“Funding Conditions”) have been satisfied, including, without limitation, the following: (a) Lessee has signed and delivered the Schedule and its Payment Schedule; (b) no Event of Default shall have occurred and be continuing; (c) no material adverse change shall have occurred in the Internal Revenue Code of 1986, as amended, and the related regulations and rulings thereunder (collectively, the “Code”); (d) no material adverse change shall have occurred in the financial condition of Lessee or any Supplier; (e) the Equipment is reasonably satisfactory to Lessor and is free and clear of any Liens (except Lessor’s Liens); (f) all representations of Lessee in the Lease remain true, accurate and complete; and (g) Lessor has received all of the following documents, which shall be reasonably satisfactory, in form and substance, to Lessor: (1) evidence of insurance coverage required by the Lease; (2) an opinion of Lessee’s counsel; (3) reasonably detailed invoices for the Equipment; (4) Uniform Commercial Code (UCC) financing statements; (5) copies of resolutions by Lessee’s governing body authorizing the Lease and incumbency certificates for the person(s) who will sign the Lease; (6) such documents and certificates relating to the tax-exempt interest payable under the Lease (including, without limitation, IRS Form 8038G or 8038GC) as Lessor may request; and (7) such other documents and information previously identified by Lessor or otherwise reasonably requested by Lessor. 6. TERMINATION FOR GOVERNMENTAL NON-APPROPRIATIONS. 391 Page 3 of 13 6.1 For each Lease, Lessee represents and warrants: that it has appropriated and budgeted the necessary funds to make all Rent Payments required pursuant to such Lease for the remainder of the fiscal year in which the Lease Term commences; and that it currently intends to make Rent Payments for the full Lease Term as scheduled in the applicable Payment Schedule if funds are appropriated for the Rent Payments in each succeeding fiscal year by its governing body. Without contractually committing itself to do so, Lessee reasonably believes that moneys in an amount sufficient to make all Rent Payments can and will lawfully be appropriated therefor. Lessee directs the person in charge of its budget requests to include the Rent Payments payable during each fiscal year in the budget request presented to Lessee’s governing body for such fiscal year; provided, that Lessee’s governing body retains authority to approve or reject any such budget request. All Rent Payments shall be payable out of the general funds of Lessee or out of other funds legally appropriated therefor. Lessor agrees that no Lease will be a general obligation of Lessee and no Lease shall constitute a pledge of either the full faith and credit of Lessee or the taxing power of Lessee, and no Lease shall constitute a debt of Lessee within the meaning of any constitutional or statutory limitation or provision. Notwithstanding anything herein to the contrary, Rent Payments due on July 1 are deemed to be included in the fiscal year of the Lessee ending on the June 30 immediately preceding such July 1 payment date. For illustrative purposes only, Rent Payments due January 1, 2026 and July 1, 2026 would be made pursuant to appropriation by the governing body of the Lessee with respect to its fiscal year ending June 30, 2026. 6.2 If Lessee’s governing body fails to appropriate sufficient funds in any fiscal year for Rent Payments or other payments due under a Lease and if other funds are not legally appropriated for such payments, then a “Non-Appropriation Event” shall be deemed to have occurred. If a Non- Appropriation Event occurs, then: (a) Lessee shall give Lessor immediate notice of such Non- Appropriation Event and provide written evidence of such failure by Lessee’s governing body; (b) on the Return Date, Lessee shall return to Lessor all, but not less than all, of the Equipment covered by the affected Lease, at Lessee’s sole expense, in accordance with Section 21 hereof; and (c) the affected Lease shall terminate on the Return Date without penalty to Lessee, provided, that Lessee shall pay all Rent Payments and other amounts payable under the affected Lease for which funds have been appropriated, provided further, that Lessee shall pay month-to-month rent at the rate set forth in the affected Lease for each month or part thereof that Lessee fails to return the Equipment under this Section 6.2. “Return Date” means the July 1 following the last day of the fiscal year for which appropriations were made for the Rent Payments due under a Lease. A Non-Appropriation Event is not an Event of Default under this Master Lease-Purchase Agreement or any Lease. 7. LIMITATION ON WARRANTIES. LESSOR MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, AS TO THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY OF THE EQUIPMENT OR AS TO THE VALUE, DESIGN, CONDITION, USE, CAPACITY OR DURABILITY OF ANY OF THE EQUIPMENT. For and during the Lease Term, Lessor hereby assigns to Lessee any manufacturer’s or Supplier’s product warranties, express or implied, applicable to any Equipment and Lessor authorizes Lessee to obtain the customary services furnished in connection with such warranties at Lessee’s sole expense. Lessee agrees that (a) all Equipment will have been purchased by Lessor in accordance with Lessee’s specifications from Suppliers selected by Lessee, (b) Lessor 392 Page 4 of 13 is not a manufacturer or dealer of any Equipment and has no liability for the delivery or installation of any Equipment, (c) Lessor assumes no obligation with respect to any manufacturer’s or Supplier’s product warranties or guaranties, (d) no manufacturer or Supplier or any representative of said parties is an agent of Lessor, and (e) any warranty, representation, guaranty or agreement made by any manufacturer or Supplier or any representative of said parties shall not be binding upon Lessor. 8. TITLE; SECURITY INTEREST. 8.1 Upon Lessee’s acceptance of any Equipment under a Lease, title to the Equipment shall vest in Lessee, subject to Lessor’s security interest therein and all of Lessor’s other rights under such Lease including, without limitation, Sections 6, 20 and 21 hereof. 8.2 As collateral security for the Secured Obligations, Lessee hereby grants to Lessor a first priority security interest in any and all of the Equipment (now existing or hereafter acquired) and any and all proceeds thereof. Lessee agrees to execute and deliver to Lessor all necessary documents to evidence and perfect such security interest, including, without limitation, UCC financing statements and any amendments thereto. 8.3 “Secured Obligations” means Lessee’s obligations to pay all Rent Payments and all other amounts due and payable under all present and future Leases and to perform and observe all covenants, agreements and conditions (direct or indirect, absolute or contingent, due or to become due, or existing or hereafter arising) of Lessee under all present and future Leases. 9. PERSONAL PROPERTY. All Equipment is and will remain personal property and will not be deemed to be affixed or attached to real estate or any building thereon. 10. MAINTENANCE AND OPERATION. Lessee agrees it shall, at its sole expense: (a) repair and maintain all Equipment in good condition and working order and supply and install all replacement parts or other devices when required to so maintain the Equipment or when required by applicable law or regulation, which parts or devices shall automatically become part of the Equipment; and (b) use and operate all Equipment in a commercially reasonable manner in the normal course of its operations and only for the purposes for which it was designed in accordance with the manufacturer’s warranty requirements; and (c) comply with all laws and regulations relating to the Equipment. If any Equipment is customarily covered by a maintenance agreement, Lessee will furnish Lessor with a maintenance agreement by a party reasonably satisfactory to Lessor. No maintenance or other service for any Equipment will be provided by Lessor. Lessee will not make any alterations, additions or improvements (“Improvements”) to any Equipment without Lessor’s prior written consent unless the Improvements may be readily removed without damage to the operation, value or utility of such Equipment, but any such Improvements not removed prior to the termination of the applicable Lease shall automatically become part of the Equipment. 11. LOCATION; INSPECTION. Equipment will not be removed from, or if Equipment is rolling stock its permanent base will not be changed from, the Location without Lessor’s prior written consent which will not be unreasonably withheld. Upon reasonable notice to Lessee, Lessor may enter the Location or elsewhere during normal business hours to inspect the Equipment. 393 Page 5 of 13 12. LIENS, SUBLEASES AND TAXES. 12.1 Lessee shall keep all Equipment free and clear of all Liens except those Liens created under its Lease. Lessee shall not sublet or lend any Equipment or permit it to be used by anyone other than Lessee or Lessee’s employees. 12.2 Lessee shall pay when due all Taxes which may now or hereafter be imposed upon any Equipment or its ownership, lease, rental, sale, purchase, possession or use, upon any Lease or upon any Rent Payments or any other payments due under any Lease. If Lessee fails to pay such Taxes when due, Lessor shall have the right, but not the obligation, to pay such Taxes. If Lessor pays any such Taxes, then Lessee shall, upon demand, immediately reimburse Lessor therefor. “Taxes” means present and future taxes, levies, duties, assessments or other governmental charges that are not based on the net income of Lessor, whether they are assessed to or payable by Lessee or Lessor, including, without limitation (a) sales, use, excise, licensing, registration, titling, gross receipts, stamp and personal property taxes, and (b) interest, penalties or fines on any of the foregoing. 13. RISK OF LOSS. 13.1 Lessee bears the entire risk of loss, theft, damage or destruction of any Equipment in whole or in part from any reason whatsoever (“Casualty Loss”). No Casualty Loss to any Equipment shall relieve Lessee from the obligation to make any Rent Payments or to perform any other obligation under any Lease. Proceeds of any insurance recovery will be applied to Lessee’s obligations under this Section 13. 13.2 If a Casualty Loss occurs to any Equipment, Lessee shall immediately notify Lessor of the same and Lessee shall, unless otherwise directed by Lessor, immediately repair the same. 13.3 If Lessor determines that any item of Equipment has suffered a Casualty Loss beyond repair (“Lost Equipment”), then Lessee shall either: (a) immediately replace the Lost Equipment with similar equipment in good repair, condition and working order free and clear of any Liens (except Lessor’s Liens), in which event such replacement equipment shall automatically be Equipment under the applicable Lease, and deliver to Lessor true and complete copies of the invoice or bill of sale covering the replacement equipment; or (b) on the earlier of 60 days after the Casualty Loss or the next scheduled Rent Payment date (the “Loss Payment Due Date”), pay Lessor (i) all amounts owed by Lessee under the applicable Lease, including the Rent Payments due on or accrued through such date plus (ii) an amount equal to the Termination Value as of the Rent Payment date (or if the Casualty Loss payment is due between Rent Payment dates, then as of the Rent Payment date preceding the date that the Casualty Loss payment is due) set forth in the Payment Schedule to the applicable Lease plus (iii) a Break Funding Charge (unless the applicable Schedule includes a Prepayment Addendum allowing for prepayment without a Break Funding Charge). If Lessee is making such payment with respect to less than all of the Equipment under a Lease, then Lessor will provide Lessee with the pro rata amount of the Rent Payment and Termination Value to be paid by Lessee with respect to the Lost Equipment and a revised Payment Schedule. "Break Funding Charge" means the amount, if any, by which (a) the present value of all Rent Payments discounted to the Prepayment Date at a rate equal to the swap rate of an interest rate swap which the Lessor shall be deemed to have entered into as of the business day preceding 394 Page 6 of 13 the Prepayment Date exceeds (b) the present value of all Rent Payments discounted to the Prepayment Date at a rate equal to the swap rate of an interest rate swap which the Lessor shall be deemed to have entered into as of the date of the Lease. "Prepayment Date" means, (i) in the case of a payment resulting from a Casualty Loss, the Loss Payment Due Date, or (ii) in the case of a demand made pursuant to section 20, the Demand Date. . 13.4 Lessee shall bear the risk of loss for, shall pay directly, and shall defend Lessor against any and all claims, liabilities, proceedings, actions, expenses (including reasonable attorney’s fees), damages or losses arising under or related to any Equipment, including, but not limited to, the possession, ownership, lease, use or operation thereof. These obligations of Lessee shall survive any expiration or termination of any Lease. Lessee shall not bear the risk of loss of, nor pay for, any claims, liabilities, proceedings, actions, expenses (including attorney’s fees), damages or losses which arise directly from events occurring after any Equipment has been returned by Lessee to Lessor in accordance with the terms of the applicable Lease or which arise directly from the gross negligence or willful misconduct of Lessor. 14. INSURANCE. 14.1 (a) Lessee at its sole expense shall at all times keep all Equipment insured against all Casualty Losses for an amount not less than the Termination Value of the Equipment. Proceeds of any such insurance covering damage or loss of any Equipment shall be payable to Lessor as lender loss payee. (b) Lessee at its sole expense shall at all times carry public liability and third party property damage insurance in amounts reasonably satisfactory to Lessor protecting Lessee and Lessor from liabilities for injuries to persons and damage to property of others relating in any way to any Equipment. Proceeds of any such public liability or property insurance shall be payable first to Lessor to the extent of its liability, and then to Lessee. 14.2 All insurers shall be reasonably satisfactory to Lessor. Lessor expressly agrees that insurance or self-insurance coverage through participation in the Montana Municipal Interlocal Authority (MMIA) risk pool is satisfactory. Lessee shall promptly deliver to Lessor satisfactory evidence of required insurance coverage and all renewals and replacements thereof. Each insurance policy will require that the insurer give Lessor at least 30 days prior written notice of any cancellation of such policy and will require that Lessor’s interests remain insured regardless of any act, error, misrepresentation, omission or neglect of Lessee. The insurance maintained by Lessee shall be primary without any right of contribution from insurance which may be maintained by Lessor. 15. PREPAYMENT. Prepayment provisions for each Lease shall be set forth in a Prepayment Addendum relating thereto. 16. LESSEE’S REPRESENTATIONS AND WARRANTIES. As of the date hereof and as of the date of each Schedule, with respect to each Lease and its Equipment, Lessee hereby represents and warrants and shall be deemed to represent and warrant to Lessor that: (a) Lessee has full power, authority and legal right to execute and deliver the Lease and to perform its obligations under the Lease, and all such actions have been duly authorized by appropriate findings and actions of Lessee’s governing body; (b) the Lease has been duly executed and delivered by Lessee and constitutes a legal, valid and binding obligation of Lessee, enforceable in accordance with its 395 Page 7 of 13 terms; (c) the Lease is authorized under, and the authorization, execution and delivery of the Lease complies with, all applicable federal, state and local laws and regulations (including, but not limited to, all open meeting, public bidding and property acquisition laws) and all applicable judgments and court orders; (d) the execution, delivery and performance by Lessee of its obligations under the Lease will not result in a breach or violation of, nor constitute a default under, any agreement, lease or other instrument to which Lessee is a party or by which Lessee’s properties may be bound or affected; (e) there is no pending, or to the best of Lessee’s knowledge threatened, litigation of any nature which may have a material adverse effect on Lessee’s ability to perform its obligations under the Lease; and (f) Lessee is a state, or a political subdivision thereof, as referred to in Section 103 of the Code, and Lessee’s obligation under the Lease constitutes an enforceable obligation issued on behalf of a state or a political subdivision thereof. 17. TAX COVENANTS. 17.1 Lessee hereby covenants and agrees that: (a) Lessee shall comply with all of the requirements of Section 149(a) and Section 149(e) of the Code, as the same may be amended from time to time, and such compliance shall include, but not be limited to, executing and filing Internal Revenue Form 8038G or 8038GC, as the case may be, and any other information statements reasonably requested by Lessor; (b) Lessee shall not do (or cause to be done) any act which will cause, or by omission of any act allow, any Lease to be an “arbitrage bond” within the meaning of Section 148(a) of the Code or any Lease to be a “private activity bond” within the meaning of Section 141(a) of the Code; and (c) Lessee shall not do (or cause to be done) any act which will cause, or by omission of any act allow, the interest portion of any Rent Payments to be or become includable in gross income for Federal income taxation purposes under the Code. 17.2 Upon the occurrence of an Event of Taxability, the interest portion of any Rent Payment shall be increased to the Taxable Rate retroactive to the date of occurrence of the Event of Taxability, and Lessee shall pay such additional amount as will result in Lessor receiving the interest portion at the Taxable Rate identified in the Payment Schedule. For purposes of this section, “Event of Taxability” means a determination that the interest portion of Rent Payments is included for federal income tax purposes in the gross income of the Lessor due to Lessee’s action or failure to take action, including breach of covenants set forth in section 17.1 hereof. An Event of Taxability shall occur upon the earliest of: (1) the happening of any event which may cause such Event of Taxability, or (2) Lessor’s payment to the applicable taxing authority of the tax increase resulting from such Event of Taxability, or (3) the adjustment of Lessor’s tax return to reflect such Event of Taxability, or (4) the date as of which the interest portion of the Rent Payments is determined by the Internal revenue Service to be includable in the gross income of the Lessor for federal income tax purposes. 18. ASSIGNMENT. 18.1 Lessee shall not assign, transfer, pledge, hypothecate, nor grant any Lien on, nor otherwise dispose of, any Lease or any Equipment or any interest in any Lease or Equipment. 18.2 Lessor may assign its rights, title and interest in and to any Lease or any Equipment, and/or may grant or assign a security interest in any Lease and its Equipment, in whole or in part, to any party at any time. Any such assignee or lienholder (an “Assignee”) shall have all of the 396 Page 8 of 13 rights of Lessor under the applicable Lease. LESSEE AGREES NOT TO ASSERT AGAINST ANY ASSIGNEE ANY CLAIMS, ABATEMENTS, SETOFFS, COUNTERCLAIMS, RECOUPMENT OR ANY OTHER SIMILAR DEFENSES WHICH LESSEE MAY HAVE AGAINST LESSOR. Unless otherwise agreed by Lessee in writing, any such assignment transaction shall not release Lessor from any of Lessor’s obligations under the applicable Lease. An assignment or reassignment of any of Lessor’s right, title or interest in a Lease or its Equipment shall be enforceable against Lessee only after Lessee receives a written notice of assignment which discloses the name and address of each such Assignee, provided, that such notice from Lessor to Lessee of any assignment shall not be so required if Lessor assigns a Lease to JPMORGAN CHASE & CO. or any of its direct or indirect subsidiaries. Lessee shall keep a complete and accurate record of all such assignments in the form necessary to comply with Section 149(a) of the Code and for such purpose, Lessee hereby appoints Lessor (or Lessor’s designee) as the book entry and registration agent to keep a complete and accurate record of any and all assignments of any Lease. Lessee agrees to acknowledge in writing any such assignments if so requested. 18.3 Each Assignee of a Lease hereby agrees that: (a) the term Secured Obligations as used in Section 8.3 hereof is hereby amended to include and apply to all obligations of Lessee under the Assigned Leases and to exclude the obligations of Lessee under any Non-Assigned Leases; (b) said Assignee shall have no Lien on, nor any claim to, nor any interest of any kind in, any Non- Assigned Lease or any Equipment covered by any Non-Assigned Lease; and (c) Assignee shall exercise its rights, benefits and remedies as the assignee of Lessor (including, without limitation, the remedies under Section 20 of the Master Lease) solely with respect to the Assigned Leases. “Assigned Leases” means only those Leases which have been assigned to a single Assignee pursuant to a written agreement; and “Non-Assigned Leases” means all Leases excluding the Assigned Leases. 18.4 Subject to the foregoing, each Lease inures to the benefit of and is binding upon the heirs, executors, administrators, successors and assigns of the parties hereto. 19. EVENTS OF DEFAULT. For each Lease, “Event of Default” means the occurrence of any one or more of the following events as they may relate to such Lease: (a) except as described in Section 6.2, Lessee fails to make any Rent Payment (or any other payment)as it becomes due in accordance with the terms of the Lease, and any such failure continues for ten (10) days after the due date thereof; (b) Lessee fails to perform or observe any of its obligations under Sections 12.1, 14 or 18.1 hereof; (c) Lessee fails to perform or observe any other covenant, condition or agreement to be performed or observed by it under the Lease and such failure is not cured within thirty (30) days after receipt of written notice thereof by Lessor; (d) any statement, representation or warranty made by Lessee in the Lease or in any writing delivered by Lessee pursuant thereto or in connection therewith proves at any time to have been false, misleading or erroneous in any material respect as of the time when made; or (e) Lessee applies for or consents to the appointment of a receiver, trustee, conservator or liquidator of Lessee or of all or a substantial part of its assets, or a petition for relief is filed by Lessee under any federal or state bankruptcy, insolvency or similar law, or a petition in a proceeding under any federal or state bankruptcy, insolvency or similar law is filed against Lessee and is not dismissed within sixty (60) days thereafter. For the avoidance of doubt, a Non-Appropriation Event is not an Event of Default hereunder. 397 Page 9 of 13 20. REMEDIES. If any Event of Default occurs, then Lessor may, at its option, exercise any one or more of the following remedies with respect to the defaulted Lease: (a) Lessor may require Lessee to pay (and Lessee agrees that it shall pay, subject to appropriation,) on a demand date specified by Lessor (the “Demand Date”) all amounts then currently due under the Lease and all remaining Rent Payments due under the Lease during the fiscal year in effect when the Event of Default occurs together with interest on such amounts at the rate of twelve percent (12%) per annum (but not to exceed the highest rate permitted by applicable law) from the date of Lessor’s demand for such payment; (b) Lessor may require Lessee to promptly return all Equipment under the Lease to Lessor in the manner set forth in Section 21 (and Lessee agrees that it shall so return the Equipment), or Lessor may, at its option, enter upon the premises where any Equipment is located and repossess any Equipment without demand or notice, without any court order or other process of law and without liability for any reasonable damage occasioned by such repossession; (c) Lessor may sell, lease or otherwise dispose of any Equipment under the Lease, in whole or in part, in one or more public or private transactions, and if Lessor so disposes of any Equipment, then Lessor shall retain the entire proceeds of such disposition free of any claims of Lessee, provided, that if the net proceeds of the disposition of all the Equipment exceeds the applicable Termination Value of the Schedule plus the amounts payable by Lessee under clause (a) above of this Section and under clause (f) below of this Section, then such excess amount shall be remitted by Lessor to Lessee; (d) Lessor may terminate, cancel or rescind the Lease as to any and all Equipment; (e) Lessor may exercise any other right, remedy or privilege which may be available to Lessor under applicable law or, by appropriate court action at law or in equity, Lessor may enforce any of Lessee’s obligations under the Lease; and/or (f) Lessor may require Lessee to pay (and Lessee agrees that it shall pay, subject to appropriation, all reasonable out-of-pocket costs and expenses incurred by Lessor as a result (directly or indirectly) of the Event of Default and/or of Lessor’s actions under this section, including, without limitation, any attorney fees and expenses and any costs related to the repossession, safekeeping, storage, repair, reconditioning or disposition of any Equipment. None of the above remedies are exclusive, but each is cumulative and in addition to any other remedy available to Lessor. Lessor’s exercise of one or more remedies shall not preclude its exercise of any other remedy. No delay or failure on the part of Lessor to exercise any remedy under any Lease shall operate as a waiver thereof, nor as an acquiescence in any default, nor shall any single or partial exercise of any remedy preclude any other exercise thereof or the exercise of any other remedy. 21. RETURN OF EQUIPMENT. If Lessor is entitled under the provisions of any Lease, including any termination thereof pursuant to Sections 6 or 20 of this Master Lease, to obtain possession of any Equipment or if Lessee is obligated at any time to return any Equipment, then (a) title to the Equipment shall vest in Lessor immediately upon Lessor’s notice thereof to Lessee, and (b) Lessee shall, at its sole expense and risk, immediately de-install, disassemble, pack, crate, 398 Page 10 of 13 insure and return the Equipment to Lessor (all in accordance with applicable industry standards) at any location in the continental United States selected by Lessor. Such Equipment shall be in the same condition as when received by Lessee (reasonable wear, tear and depreciation resulting from normal and proper use excepted), shall be in good operating order and maintenance as required by the applicable Lease, shall be free and clear of any Liens (except Lessor’s Lien) and shall comply with all applicable laws and regulations. Until Equipment is returned as required above, all terms of the applicable Lease shall remain in full force and effect including, without limitation, obligations to pay Rent Payments and to insure the Equipment. Lessee agrees to execute and deliver to Lessor all documents reasonably requested by Lessor to evidence the transfer of legal and beneficial title to such Equipment to Lessor and to evidence the termination of Lessee’s interest in such Equipment. 22. LAW GOVERNING; VENUE. Each Lease shall be governed by the laws of the State of Montana (the “State”). The parties agree that the proper venue for any claims brought under or related to any Lease shall be the 18th Judicial District Court in Gallatin County, Montana. 23. NOTICES. Any notices and demands under or related to this document shall be in writing and delivered to the intended party at its address stated herein (if to Lessor 1111 Polaris Parkway, Suite N4 (OH1-1085), Columbus, Ohio 43240, to the attention of the GNPH Operations Manager; if to Lessee: 121 N. Rouse Avenue, Bozeman, Montana 59715, to the attention of the City Manager). Notice shall be deemed sufficiently given or made (a) upon receipt if delivered by hand, (b) on the Delivery Day after the day of deposit with a nationally recognized courier service, (c) on the third Delivery Day after the day of deposit in the United States mail, sent certified, postage prepaid with return receipt requested, and (d) only if to Lessee, on the third Delivery Day after the notice is deposited in the United States mail, postage prepaid. “Delivery Day” means a day other than a Saturday, a Sunday, or any other day on which national banking associations are authorized to be closed. Any party may change its address for the purposes of the receipt of notices and demands by giving notice of such change in the manner provided in this provision. 24. FINANCIAL INFORMATION. Lessee agrees to furnish to Lessor annual audited financial statements of Lessee within 270 days of the end of each fiscal year of Lessee. Additionally, Lessee agrees to provide additional information as reasonably requested by Lessor. 25. SECTION HEADINGS. All section headings contained herein or in any Schedule are for convenience of reference only and do not define or limit the scope of any provision of any Lease. 26. EXECUTION IN COUNTERPARTS. Each Schedule to this Master Lease may be executed in several counterparts, each of which shall be deemed an original, but all of which shall be deemed one instrument. If more than one counterpart of each Schedule is executed by Lessee and Lessor, then only one may be marked “Lessor’s Original” by Lessor. A security interest in any Schedule may be created through transfer and possession only of: the sole original of said Schedule if there is only one original; or the counterpart marked “Lessor’s Original” if there are multiple counterparts of said Schedule. 27. ENTIRE AGREEMENT; WRITTEN AMENDMENTS. Each Lease, together with the exhibits, schedules and addenda attached thereto and made a part hereof and other attachments thereto constitute the entire agreement between the parties with respect to the lease of the 399 Page 11 of 13 Equipment covered thereby, and such Lease shall not be modified, amended, altered, or changed except with the written consent of Lessee and Lessor. Any provision of any Lease found to be prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remainder of the Lease. 28. OFFSHORING. Subject to applicable laws, processing of Lessee confidential information may be performed by any Lessor affiliate, including affiliates, branches and units located in any country in which we conduct business or have a service provider. In addition, Lessor may perform certain services and functions outside the United States that are indirect, ancillary, redundant back- up, back office, exception processing or services that are incidental to the performance of this agreement. Lessee authorizes Lessor to transfer customer information to such affiliates, branches and units at such locations as Lessor deems appropriate. For business resiliency purposes and disaster recovery services, subject to Lessor’s cybersecurity and privacy policies, certain services and functions may be performed outside of the United States. Lessor reserves the right to store, access, view or process any data wherever it deems appropriate for the services Lessor provides. 29. ELECTRONIC SIGNATURES. Delivery of an executed counterpart of a signature page of (x) this Agreement, (y) any other Related Document and/or (z) any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to this Agreement, any other Related Document and/or the transactions contemplated hereby and/or thereby (each an “Ancillary Document”) that is an Electronic Signature transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement, such other Related Document or such Ancillary Document, as applicable. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement, any other Related Document and/or any Ancillary Document shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be; provided that nothing herein shall require Bank to accept Electronic Signatures in any form or format without its prior written consent and pursuant to procedures approved by it; provided, further, without limiting the foregoing, (i) to the extent Bank has agreed to accept any Electronic Signature, Bank shall be entitled to rely on such Electronic Signature purportedly given by or on behalf of Lessee or any other Obligor without further verification thereof and without any obligation to review the appearance or form of any such Electronic Signature and (ii) upon the request of Bank, any Electronic Signature shall be promptly followed by a manually executed counterpart. Without limiting the generality of the foregoing, Lessee hereby (A) agrees that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among Bank, Lessee and Obligors, Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page and/or any electronic images of this Agreement, any other Related Document and/or any Ancillary Document shall have the same legal effect, validity and enforceability as any paper original, (B) Bank may, at its option, create one or more copies of this Agreement, any other Related Document and/or any Ancillary Document in the form of an imaged electronic record in any format, which shall be deemed created in the ordinary course of such Person’s business, and 400 Page 12 of 13 destroy the original paper document (and all such electronic records shall be considered an original for all purposes and shall have the same legal effect, validity and enforceability as a paper record), (C) waives any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other Related Document and/or any Ancillary Document based solely on the lack of paper original copies of this Agreement, such other Related Document and/or such Ancillary Document, respectively, including with respect to any signature pages thereto and (D) waives any claim against any Affiliates of Bank for any liabilities arising solely from Lessor’s reliance on or use of Electronic Signatures and/or transmissions by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page, including any liabilities arising as a result of the failure of Lessee and/or any Obligor to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature. As used herein, “Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record. “Obligor” means any Lessee, guarantor, surety, co-signer, endorser, general partner or other Person who may now or in the future be obligated to pay any of the liabilities under this Agreement. “Person” means any individual, business or other entity, or any governmental authority. “Related Documents” means this Agreement, the Lease, the Schedules, and any other instrument or document executed in connection with this Agreement or the Lease. 30. WAIVER OF IMMUNITY. Lessor shall have and be entitled to all available legal and equitable remedies, including the right to specific performance, money damages, and injunctive and declaratory relief. JURY WAIVER: TO THE EXTENT PERMITTED BY LAW, ALL PARTIES TO THIS MASTER LEASE WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY ON ANY MATTER WHATSOEVER ARISING OUT OF, IN CONNECTION WITH OR IN ANY WAY RELATED TO THIS MASTER LEASE AND ANY LEASE. (The next page is the signature page) 401 Page 13 of 13 CITY OF BOZEMAN, MONTANA (Lessee) JPMORGAN CHASE BANK, N.A. (Lessor) By:________________________________ By:________________________________ Title: City Manager Title: Authorized Officer 402 Page 1 of 3 LEASE SCHEDULE Dated as of: _________ Lease No.: [______] This Lease Schedule, together with its Payment Schedule, is attached and made a part of the Master Lease-Purchase Agreement, dated as of June 12, 2025, by and between the City of Bozeman, Montana (the “Lessee”) and JPMorgan Chase Bank, N.A. (the “Lessor”) (“Master Lease”). All terms and conditions of the Master Lease are incorporated herein by reference. Unless otherwise defined herein, capitalized terms defined in the Master Lease will have the same meaning when used herein. A. EQUIPMENT DESCRIBED: The Equipment includes all of the property described on Schedule A-1 attached hereto and made a part hereof. Schedule A-1 shows the Equipment broken out by the term for which it is financed under this Lease, as well as the portion of the Rental Payments attributable to such Equipment. The Lessor expressly agrees that once the Rental Payments attributable to a particular category or type of Equipment have been paid, as shown on Schedule A-1, such Equipment shall cease to be “Equipment” under this Lease, shall no longer be subject to the terms and conditions of this Lease, and shall no longer be subject to Lessor’s security interest therein. The Lessor agrees to take such actions as are reasonably necessary in connection with the release of its security interest in such Equipment. B. EQUIPMENT LOCATION: See Attached Schedule A-1 C. ACCEPTANCE OF EQUIPMENT: AS BETWEEN LESSEE AND LESSOR, LESSEE AGREES THAT: (a) LESSEE HAS RECEIVED AND INSPECTED ALL EQUIPMENT; (b) ALL EQUIPMENT IS IN GOOD WORKING ORDER AND COMPLIES WITH ALL PURCHASE ORDERS, CONTRACTS AND SPECIFICATIONS; (c) LESSEE ACCEPTS ALL EQUIPMENT FOR PURPOSES OF THE LEASE “AS-IS, WHERE-IS”; AND (d) LESSEE WAIVES ANY RIGHT TO REVOKE SUCH ACCEPTANCE. D. ESSENTIAL USE; CURRENT INTENT OF LESSEE: Lessee represents and agrees that the use of the Equipment is essential to Lessee’s proper, efficient and economic functioning or to the services that Lessee provides to its citizens and the Equipment will be used by Lessee only for the purpose of performing its governmental or proprietary functions consistent with the permissible scope of its authority. Lessee currently intends for the full Lease Term: to use the Equipment; to continue this Lease; and to make Rental Payments if funds are appropriated in each fiscal year by its governing body. E. RENTAL PAYMENTS; LEASE TERM: The Rental Payments to be paid by Lessee to Lessor, the interest rate at which the interest portion of the Rental Payments is calculated, the Taxable Rate, the commencement date and the Lease Term of this Lease Schedule are each set forth on the Payment Schedule attached to this Lease Schedule. 403 Page 2 of 3 F. RE-AFFIRMATION OF THE MASTER LEASE: Lessee hereby re-affirms all of its representations, warranties and obligations under the Master Lease (including, without limitation, its obligation to pay all Rental Payments, its disclaimers in Section 7 thereof and its representations in Sections 6.1 and 16 thereof). I. GOVERNMENT REGULATION. ANTI-CORRUPTION. (a) Representations and Warranties Regarding Anti-Corruption Laws and Sanctions. Lessee has implemented and maintains in effect policies and procedures designed to ensure compliance by Lessee and its officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and Lessee and its officers and employees and to the knowledge of Lessee its agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) Lessee or to the knowledge of Lessee any of its respective officers or employees, or (b) to the knowledge of Lessee, any agent of Lessee that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No advance, letter of credit, use of proceeds or other transaction contemplated by this Lease will violate Anti-Corruption Laws or applicable Sanctions. (b) Compliance with Anti-Corruption Laws and Sanctions. Lessee shall maintain in effect and enforce policies and procedures designed to ensure compliance by Lessee and its officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. (c) Use of Proceeds. Lessee shall not use, or permit any proceeds of the Lease to be used, directly or indirectly, by Lessee or its officers, employees and agents: (1) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws; (2) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country; or (3) in any manner that would result in the violation of any Sanctions applicable to any party hereto. (d) Definitions. For the purposes of this Section G, the following terms shall have the following meanings: “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Lessee or its subsidiaries from time to time concerning or relating to bribery or corruption. “Person” means any individual, corporation, partnership, limited liability company, joint venture, joint stock association, association, bank, business trust, trust, unincorporated organization, any foreign governmental authority, the United States of America, any state of the United States and any political subdivision of any of the foregoing or any other form of entity. “Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State. “Sanctioned Country” means, at any time, a country, region or territory which is the subject or target of any Sanctions (as at the time of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria). “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, 404 Page 3 of 3 the U.S. Department of State, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person controlled by any such Person. (The next page is the signature page) 405 LEASE SCHEDULE SIGNATURE PAGE IN WITNESS WHEREOF, the parties hereto have executed this Lease Schedule as of the date first referenced above. CITY OF BOZEMAN, MONTANA (Lessee) JPMORGAN CHASE BANK, N.A. (Lessor) By:________________________________ By:________________________________ Title: City Manager Title: Authorized Officer 406 Equipment Finance 1111 Polaris Pkwy, Floor 1A Columbus, OH, 43240-2050 Tel: 614-213-1943 e-mail : jay.m.mccoy@jpmorgan.com Jay McCoy Territory Associate RATE LOCK LETTER AGREEMENT Dated: May 23, 2025 Dear City of Bozeman: With your execution of the Authorizing Resolution and near final form of lease documents, you have requested that JPMorgan Chase Bank, N.A. (“Lessor”) provide fixed rate financing subject to the terms outlined therein. This is to confirm that, the City of Bozeman (the “Lessee”) has reserved $5,925,900.98 in fixed rate funds, effective May 23, 2025 in anticipation of the Lessee’s need for the financing of an equivalent amount on or before June 12, 2025 subject to the terms contained herein. The interest rate for the financing, will be at an annual rate equal to 3.749%. If the various equipment is not delivered to and accepted by Lessee by June 12, 2025 or if for any reason (other than Lessor’s gross negligence or willful misconduct) the full amount of the $5,925,900.98 financing is not funded in accordance with the terms of the financing documents by June 12, 2025 (each a “Breakage Event”), then a Break Funding Charge (as defined below) shall be due and payable if (i) exceeds (ii) where (i) equals the interest portion of each of the Scheduled Payments (as defined below) which would have been paid if such Breakage Event had not occurred calculated at the interest rate swap including a forward rate swap, if any, which Lessor shall be deemed to have entered into on May 23, 2025 and (ii) equals the interest portion of each of the Scheduled Payments which would have been paid if such Breakage Event had not occurred calculated at the interest rate swap which Lessor shall be deemed to have entered into on June 12, 2025 (the “Replacement Swap”). The “Break Funding Charge” equals the present value of the difference between (i) and (ii) for each interest period discounted to a net present value as of the date of prepayment using the fixed interest rate of the Replacement Swap. Lessee shall pay to Lessor a Reinvestment Premium within 5 business days of Lessor’s written request for payment of the Break Funding Charge. Lessee acknowledges that (i) Lessor might not fund or hedge its fixed-rate loan portfolio on a loan-by-loan basis at all times, and agrees that the Break Funding Charge is a reasonable and appropriate method of calculating liquidated damages irrespective of whether any of the foregoing hedging transactions have in fact occurred or occurred precisely as stated with respect to the loan and (ii) all calculations and determinations by the Lessor of the Break Funding Charge or of any element thereof, if made in accordance with its then standard procedures for so calculating or determining such amounts, shall be conclusive absent manifest arithmetic error. “Scheduled Payments” means AMORTIZATION SCHEDULE Rate.............................................................3.749% debt remaining Date takedowns service interest principal balance 6/12/2025 5,925,900.98 - - - 5,925,900.98 1/1/2026 - 431,951.88 122,806.23 309,145.65 5,616,755.33 7/1/2026 - 431,951.88 105,286.08 326,665.80 5,290,089.53 407 1/1/2027 - 431,951.88 99,162.73 332,789.15 4,957,300.38 7/1/2027 - 431,951.88 92,924.59 339,027.29 4,618,273.09 1/1/2028 - 431,951.88 86,569.53 345,382.35 4,272,890.74 7/1/2028 - 431,951.88 80,095.33 351,856.55 3,921,034.19 1/1/2029 - 431,951.88 73,499.78 358,452.10 3,562,582.09 7/1/2029 - 431,951.88 66,780.60 365,171.28 3,197,410.81 1/1/2030 - 431,951.88 59,935.46 372,016.42 2,825,394.39 7/1/2030 - 431,951.88 52,962.01 378,989.87 2,446,404.52 1/1/2031 - 355,771.73 45,857.86 309,913.87 2,136,490.65 7/1/2031 - 355,771.73 40,048.52 315,723.21 1,820,767.44 1/1/2032 - 252,465.52 34,130.29 218,335.23 1,602,432.21 7/1/2032 - 252,465.52 30,037.59 222,427.93 1,380,004.28 1/1/2033 - 142,578.67 25,868.18 116,710.49 1,263,293.79 7/1/2033 - 142,578.67 23,680.45 118,898.22 1,144,395.57 1/1/2034 - 142,578.67 21,451.70 121,126.97 1,023,268.60 7/1/2034 - 142,578.67 19,181.17 123,397.50 899,871.10 1/1/2035 - 142,578.67 16,868.09 125,710.58 774,160.52 7/1/2035 - 142,578.67 14,511.64 128,067.03 646,093.49 1/1/2036 - 71,455.86 12,111.02 59,344.84 586,748.65 7/1/2036 - 71,455.86 10,998.60 60,457.26 526,291.39 1/1/2037 - 71,455.86 9,865.33 61,590.53 464,700.86 7/1/2037 - 71,455.86 8,710.81 62,745.05 401,955.81 1/1/2038 - 71,455.86 7,534.66 63,921.20 338,034.61 7/1/2038 - 71,455.86 6,336.46 65,119.40 272,915.21 1/1/2039 - 71,455.86 5,115.79 66,340.07 206,575.14 7/1/2039 - 71,455.86 3,872.25 67,583.61 138,991.53 1/1/2040 - 71,455.86 2,605.39 68,850.47 70,141.06 7/1/2040 - 71,455.86 1,314.80 70,141.06 - Total 7,106,023.92 1,180,122.94 5,925,900.98 This agreement expires if not signed and returned by May 23, 2025. If Lessee is in agreement with the above, please indicate such acceptance by signatures as set forth below, and returning this letter to my attention. Please note that this is an agreement to lock an interest rate for proposed financing and is not a commitment to fund. The full terms and conditions of any related financing will be reflected in Loan documents to be negotiated and entered into between JPMorgan Chase Bank, N.A. and the Lessee. This agreement is non- transferrable and cannot be assigned by the Lessee. I’m delighted that we could be of assistance to you in this matter and look forward to working with you to complete this transaction. Yours truly, 408 JPMorgan Chase Bank, N.A. Equipment Finance Jay McCoy Agreed to and accepted by: City of Bozeman Date: May 23, 2025 Authorized Signature: _________________________ Date: _________________________ 409 RESOLUTION NO. _______ RESOLUTION APPROVING THE FORMS OF A MASTER LEASE-PURCHASE AGREEMENT AND LEASE SCHEDULE; AUTHORIZING THE EXECUTION AND DELIVERY OF A RATE LOCK AGREEMENT SUBJECT TO CERTAIN PARAMETERS; AND AUTHORIZING THE EXECUTION AND DELIVERY OF THE MASTER LEASE-PURCHASE AGREEMENT, LEASE SCHEDULE AND RELATED DOCUMENTS BE IT RESOLVED, by the City Commission (the “Commission”) of the City of Bozeman, Montana (the “City”) as follows: Section 1 Recitals. It is hereby found, determined and declared as follows: 1.01. Authorization. The City is authorized pursuant to Sections 7-1-4124 and 7-8-4101, Montana Code Annotated, to buy, sell, mortgage, rent, lease, hold, manage and dispose of any interest in real or personal property. 1.02. Equipment. The City intends to finance or reimburse itself for costs of acquiring and installing certain items of personal property and equipment with respect to Fire Station 2, Bozeman Swim Center, Bogert Pool and Lindley Center, and purchasing vehicles and/or other equipment for the City’s police department, stormwater department, and solid waste operations (collectively, the “Equipment”). The Commission has determined that it is in the best interest of the City to enter into a non-appropriation lease-purchase financing to finance or reimburse the City for costs of the Equipment. 1.03. Financing. Pursuant to Resolution No. 5581, adopted on February 13, 2024, this Commission authorized and directed City officers to solicit proposals from banks and other lenders with respect to a non-appropriation lease-purchase agreement and associated documentation, and to negotiate terms, conditions and documentation with the selected bank or lender. In consultation with Baker Tilly Municipal Advisors, LLC, as municipal advisor to the City (“Baker Tilly”), the 410 2 City selected the proposal of JPMorgan Chase Bank, N.A. (the “Bank”) as the most advantageous to the City. City officers have worked with the Bank, Baker Tilly, and Dorsey & Whitney LLP, as special counsel to the City, to negotiate the terms, conditions and forms of documentation with respect to the proposed non-appropriation lease-purchase financing. 1.04. Documentation. The City proposes to enter into a Master Lease-Purchase Agreement with the Bank, substantially in the form attached hereto as Exhibit A, as it may be revised prior to closing (the “Master Lease-Purchase Agreement”). The financing of the Equipment will be further governed by the terms and conditions set forth in the Lease Schedule to the Master Lease-Purchase Agreement, substantially in the form attached hereto as Exhibit B, as it may be revised prior to closing (the “Lease Schedule”). 1.05. Non-appropriation. The lease payments to be payable by the City pursuant to the Lease Schedule will be set forth on a payment schedule to be attached to the Lease Schedule (the “Payment Schedule”). The lease payments to be set forth on the Payment Schedule and any other obligations of the City under the Master Lease-Purchase Agreement or Lease Schedule shall constitute current expenses of the City payable from any legally available funds and shall not in any way be construed to be debts of the City in contravention of any applicable constitutional or statutory limitation or requirements concerning the creation of indebtedness by the City, nor shall anything contained therein constitute a pledge of the general tax revenues, funds or money of the City. The lease payments shall be payable only from current funds that are budgeted and appropriated solely for such purpose during the fiscal year of the City for which such funds were budgeted and appropriated. The City has not pledged the full faith and credit or taxing power or any designated amounts of the City to the payment of amounts due under the Master Lease- Purchase Agreement or the Lease Schedule. Section 2 Approval of Agreements. The City hereby approves the forms of the Master Lease-Purchase Agreement and the Lease Schedule. The City Manager, or in the event of his absence or inability, the City Finance Director or the Mayor, is hereby authorized and directed to approve, execute and deliver to the Bank the Master Lease-Purchase Agreement and the Lease Schedule, which shall be completed by the addition of the Payment Schedule as described in Section 3, and together with 411 3 such modifications to the Master Lease-Purchase Agreement and Lease Schedule as may be approved by the officer or officers executing the same, which approval shall be conclusively evidenced by the execution thereof. Each of the City Manager, City Finance Director, Mayor and City Clerk (or, in the event of any of their absence or inability, such officer’s designee) is authorized to execute and deliver such other documents and certificates as may be necessary or desirable in connection therewith, or as may be reasonably required by the Bank. Section 3 Authorization to enter into Rate Lock Agreement; Parameters. Prior to closing, the City Manager and City Finance Director are hereby authorized to execute a rate lock agreement or similar agreement with the Bank, which will set forth the rate of interest to be borne by the Lease Schedule, subject to the following limitations and conditions: (a) the aggregate principal amount of the Lease Schedule shall not exceed $6,250,000; (b) the true interest cost of the Lease Schedule shall not exceed 4.50%; and (c) the term of the Lease Schedule shall not exceed 16 years. Following execution of the rate lock agreement or similar agreement, the Bank shall produce the Payment Schedule, subject to review by Baker Tilly, and the Payment Schedule shall be attached to the Lease Schedule, reflecting amortization of the principal amount of the Lease Schedule at the applicable interest rate and over the applicable term. Section 4 Proceeds. All of the proceeds of the Master Lease-Purchase Agreement and the Lease Schedule will be disbursed to the City at closing, and the City will apply those funds on or as of the closing date to reimburse itself for costs of the Equipment and to pay costs of issuance. Section 5 Tax Matters. 5.01. General Covenant. The City covenants and agrees that it will not take or permit to 412 4 be taken by any of its officers, employees or agents any action which would cause the portion of the Lease Payments designated as interest to become includable in gross income for federal income tax purposes under the Internal Revenue Code of 1986 (the “Code”), and applicable Treasury Regulations (the “Regulations”), and covenants to take any and all actions within its powers to ensure that the portion of the Lease Payments designated as interest will not become includable in gross income for federal income tax purposes under the Code and the Regulations. 5.02. The Equipment. The Equipment is and will be owned and operated by the City for the benefit of the general public. No user of the Equipment is granted any concession, license or special arrangement with respect thereto. Except for the Master Lease-Purchase Agreement and the Lease Schedule, the City shall not enter into any lease, use or other agreement with any non- governmental person relating to the use of the Equipment or security for the payment of amounts due under the Lease Schedule that might cause the Lease Schedule or any payments to be made in connection therewith to be considered an “arbitrage bond” or “private loan bond” within the meaning of Sections 148 and 141 of the Code. 5.03. Arbitrage Certification. The City Manager and City Finance Director, being among the officers of the City charged with the responsibility for executing the Lease Schedule, are authorized and directed to execute and deliver to the Bank a certificate in accordance with the provisions of Section 148 of the Code and Section 1.148-2(b) of the Regulations, stating that on the basis of facts, estimates and circumstances in existence on the date of execution and delivery of the Lease Schedule, it is reasonably expected that the proceeds of the Lease Schedule will be used in a manner that would not cause the Lease Schedule to be an “arbitrage bond” within the meaning of Section 148 of the Code and the Regulations. 5.04. Arbitrage Rebate. The City acknowledges that the Lease Schedule is subject to the rebate requirements of Section 148(f) of the Code. The City covenants and agrees to retain such records, make such determinations, file such reports and documents and pay such amounts at such times as are required under said Section 148(f) and applicable Treasury Regulations to preserve the exclusion of interest on the Lease Schedule from gross income for federal income tax purposes, unless the Lease Schedule qualifies for the exception from the rebate requirement under Section 148(f)(4)(B) of the Code and no “gross proceeds” of the Lease Schedule (other than amounts 413 5 constituting a “bona fide debt service fund”) arise during or after the expenditure of the original proceeds thereof. In furtherance of the foregoing, the City Manager and City Finance Director are hereby authorized and directed to execute a Tax Certificate, substantially in the form to be prepared by special counsel to the City, and the City hereby covenants and agrees to observe and perform the covenants and agreements contained therein, unless amended or terminated in accordance with the provisions thereof. 5.05. Information Reporting. The City shall file with the Secretary of the Treasury, not later than August 15, 2025, a statement concerning the Lease Schedule containing the information required by Section 149(e) of the Code. 5.06. “Qualified Tax-Exempt Obligation”. Pursuant to Section 265(b)(3) of the Code, the City hereby designates the Lease Schedule as a “qualified tax-exempt obligation” for purposes of Section 265(b)(3) of the Code. The City hereby represents that it does not anticipate that obligations bearing interest not includable in gross income for purposes of federal income taxation under Section 103 of the Code (including refunding obligations as provided in Section 265(b)(3) of the Code and including “qualified 501(c)(3) bonds” but excluding other “private activity bonds,” as defined in Sections 141(a) and 145(a) of the Code) will be issued by or on behalf of the City and all “subordinate entities” of the City in 2025 in an amount greater than $10,000,000. Section 6 Transcript Certification. The officers of the City are directed to furnish to the Bank and special counsel to the City certified copies of all proceedings and information in their official records relevant to the authorization of the Master Lease-Purchase Agreement and the Lease Schedule and such additional certificates and affidavits as may be required or appropriate to evidence the validity and enforceability of the Master Lease-Purchase Agreement and the Lease Schedule and tax exemption of interest thereon, and all such certified copies, certificates and affidavits, including any heretofore furnished, shall constitute representations and recitals of the City as to the correctness of all facts stated therein and the completion of all proceedings stated therein to have been taken. Section 7 414 6 Effective Date. This Resolution shall become effective upon passage, and all prior resolutions and other actions and proceedings of the City with respect to the Master Lease-Purchase Agreement, the Lease Schedule and financing of the Equipment are hereby repealed, amended and rescinded to the full extent necessary to give full force and effect to the provisions of this Resolution. 415 7 PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, this 20th day of May, 2025. ____________________________________ TERRY CUNNINGHAM Mayor ATTEST: ___________________________________ MICHAEL MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney (SEAL) 416 EXHIBIT A Form of Master Lease-Purchase Agreement 417 EXHIBIT B Form of Lease Schedule 418 CERTIFICATE AS TO RESOLUTION AND ADOPTING VOTE I, the undersigned, being the duly qualified and appointed City Clerk of the City of Bozeman, Montana (the “City”), hereby certify that the attached resolution is a true copy of Resolution No. _____ entitled: “RESOLUTION APPROVING THE FORMS OF A MASTER LEASE-PURCHASE AGREEMENT AND LEASE SCHEDULE; AUTHORIZING THE EXECUTION AND DELIVERY OF A RATE LOCK AGREEMENT SUBJECT TO CERTAIN PARAMETERS; AND AUTHORIZING THE EXECUTION AND DELIVERY OF THE MASTER LEASE-PURCHASE AGREEMENT, LEASE SCHEDULE AND RELATED DOCUMENTS” (the “Resolution”), on file in the original records of the City in my legal custody; that the Resolution was duly adopted by the City Commission at a meeting on May 20, 2025, and that the meeting was duly held by the City Commission and was attended throughout by a quorum, pursuant to call and notice of such meeting given as required by law; and that the Resolution has not as of the date hereof been amended or repealed. I further certify that, upon vote being taken on the Resolution at said meeting, the following Commission Members voted in favor thereof: ________________________________ ______________________________ ; those Commissioners who voted against the same: _____________________________ . WITNESS my hand and seal officially this __ day of May, 2025. (SEAL) ____________________________________ MICHAEL MAAS City Clerk 419 Memorandum REPORT TO:City Commission FROM:Tom Rogers, Senior Planner Chris Saunders, Community Development Manager Erin George, Director of Community Development SUBJECT:Unified Development Code (UDC) Update Supplemental Engagement Phase 2 Report and Next Steps (Work Session) Continued from May 20, 2025 MEETING DATE:June 3, 2025 AGENDA ITEM TYPE:Plan/Report/Study RECOMMENDATION:Consider comment and data supporting possible modifications to the draft Unified Development Code and consider possible direction for future work sessions. 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 Unified Development Code (UDC) update has reached another milestone by completing Phase I and II of the Supplemental Engagement Plan [External PDF Link]. Final reports and summaries of the public engagement are linked in the attached memo to the Commission. The purpose of the supplemental engagement was to reach new members of the public who have had not previously participated in this planning effort, and to identify areas of concern in the draft UDC for further discussion. The presentation and discussion reviewed activities and findings from Phase I and Phase 2 of the supplemental engagement, provided an overview of what we heard during these events, and will discuss how this input is being used to inform the ongoing project. Secondly, staff provided an introduction of topics identified through the supplemental engagement to be discussed at the City Commission work session scheduled for June 24, 2025. The City Commission began consideration of this item on May 20th. The video of the meeting is available through the City's website [external link] and begins at 3:11:45 in the recording. They received the presentation from staff and comments from the public. Due to the lateness of the hour, after the public comment closed the item was continued to June 3rd for additional consideration. The City Commission will begin the item with 420 Commission questions and discussion. An updated background memo is attached to include additional filtered data on the Phase 2 online survey. UNRESOLVED ISSUES:As determined by the Commission. ALTERNATIVES:None. FISCAL EFFECTS:The scope of work for the UDC update was established in 2022 and additional funds may be required if the scope or additional engagement beyond the current plan is employed. Attachments: UDC Supplemental Engagement CC Memo 6-3-2025.pdf Report compiled on: May 23, 2025 421 Report To: Mayor and City Commission From: Tom Rogers, Senior Planner Chris Saunders, Community Development Manager Erin George, Community Development Director Subject: Unified Development Code (UDC) Update Supplemental Engagement Phase 2 Report and Next Steps (Work Session) Meeting Date: June 3, 2025 General Background The Unified Development Code (UDC) sets regulations around what kinds of development can occur in which areas. In the 2022-2023 Commission 2-year priority cycle, Bozeman City Commission named the UDC update as a key priority of the city. Thus began the UDC Update process, a project that kicked off in summer 2022 with the goals of: o Implementing the vision and goals of other guiding City documents, such as the 2020 Community Plan, Climate Action Plan, and the Community Housing Action Plan o Organization and choice - Making the Code more user-friendly o Housing Access and Choice o Improve the built environment o Subsequently, updating the Code pursuant to 2023 changes in state law Phase I – Creation of Original UDC Draft A variety of in-person and virtual engagement opportunities were held throughout 2022 and 2023, and in the summer of 2023, following feedback from the public and Commission, a draft code was released. Many residents expressed concerns about the draft, with some wanting more time to review and give feedback. In October 2023, the Commission paused the process with the desire to pick back up in 2024. In September 2024, Commission began the restart of the project with a work session on how the project was to resume, including what additional engagement could look like. On October 1, Commission approved the Supplemental Engagement Plan. Supplementary Engagement Phase I Staff executed the Supplementary Engagement Plan through the following methods: o Launched an online survey that ran from Nov. 22 through Jan. 8 and garnered 229 responses. o Hosted an online webinar on 12/9 that had 76 attendees. 422 Page 2 o Hosted five in-person open houses, one in each quadrant (NW, SW, SE, NE) of the City and one at MSU, which had at least 238 attendees total across all events (some attendees were not captured at sign-in). o Hosted eight (8) meetings with groups including Local Food Systems partners, Better Bozeman Coalition, University Neighborhood Association, Jandt Neighborhood Association, Midtown Neighborhood Association, Cooper Park Neighborhood Association, Northeast Neighborhood Association, and Forward Montana. o Used a variety of methods to communicate engagement opportunities including a paid mailer to all who reside in the city; emails to key partners; Engage Bozeman newsletters and web updates; Bozeman.net banner, e-notifications and calendar updates; a message in the utility bill; a press release to media outlets; a paid Facebook/Instagram social media ad; social media posts on Facebook, Instagram, Twitter, Nextdoor; and a paid ad in the Bozeman Daily Chronicle. Results of Phase 1 of the Supplementary Engagement Plan (Nov-Jan) are summarized in the following two reports, and staff also presented a summary to City Commission on February 4:  UDC Update Phase I Open House Summary Report [External PDF Link]  Phase 1 Online Survey Result Report [External PDF Link]  February 4 City Commission presentation [External Video Link] Supplementary Engagement Phase II The purpose of the engagement process was to dive deeper into the key topics of greatest community interest that were identified during phase 1 of engagement and to expand the breadth of awareness and participation in the community while gathering further input. Engagement continued with four in-person workshops held in various parts of the city, two online workshops, a toolkit for residents to host their own chat about the UDC, and an online survey. The dates, times, and topics of each workshop were: 1. Transportation & Environment: Feb. 24: 12 to 2 p.m. online. 2. Transportation & Environment: Feb. 26: 6 to 8 p.m. at Gallatin County Fairgrounds. 3. Growth, Housing, & Neighborhoods: March 3: 12 to 2 p.m. Online. 4. Housing & Neighborhoods: March 5: 6 to 8 p.m. at Chief Joseph Middle School. 5. Growth & Neighborhoods: March 10: 6 to 8 p.m. at Sacajawea Middle School. 6. All topics (Transportation, Environment, Growth, Housing, Neighborhoods): March 12: 6 to 8 p.m. at Willson School. In addition, staff presented to each of the City’s Advisory Boards, providing a summary of Phase I engagement and gathering general input on the UDC. As each of these boards provided specific input on the project in 2023, their past input was referenced and built upon in the latest discussions. Dates and times included: 423 Page 3 1. Historic Preservation Advisory Board: March 19 at 6:00 p.m. [External Video Link] 2. Transportation Board: March 26 at 6:00 p.m. [External Video Link] 3. Urban Parks and Forestry Board: March 27 at 6:00 p.m. [External Video Link] 4. Economic Vitality Board: April 2 at 6:00 p.m. [External Video Link] 5. Sustainability Board: April 9 at 6:00 p.m. [External Video Link] Community Chat Toolkits In conjunction with the formal events the city created a series of five “Toolkits” based on topic areas gleaned from Phase I of the Supplementary Engagement. This toolkit guided groups through a discussion on this large code document by focusing your conversation on popular topic areas and providing key questions to discuss and provide input on. Topic areas included: 1. Growth 2. Environment 3. Neighborhoods 4. Housing 5. Transportation Seven responses were provided on 20 topics and are linked below in the UDC Documentation and Support section. Responses are also available on the project web site. Deep Dive Online Survey Augmenting the information and nuance from the Supplementary Engagement, a deep dive online survey was created. Drawing from the previous input, the survey asked for more detailed feedback on topics identified as important by the community during earlier input. All previous input is still part of the project. Results are linked below and the on the project web site. Phase II engagement materials: a. Phase 2 workshop notes – 6 workshops, 2 online and 4 in person held b. Phase 2 board summary – 6 advisory boards, continuation of process c. Phase 2 presentation survey report and individual responses – Concluded May 8th, addressed more specific questions related to earlier comments and consider tradeoffs in priorities. Survey report filtered by Owners and Survey report filtered by Renters. d. Phase 2 chat toolkit report – 7 persons submitted chat reports on 20 topic responses. This project is the first time the City has tried using this engagement tool. One response also includes a survey that is different from the questions the City asked with the Phase 2 survey. The Supplementary Engagement effort attracted approximately 491 unique individuals in the workshops, online events, and deep dive efforts. The number of participants above excluded those who joined a Community Toolkit chat and the Phase II online survey, those numbers are included in 424 Page 4 the survey results. The Phase I open houses attracted 312 people and an additional 126 people through meetings with neighborhood groups. Nearly 400 people attended the Phase II workshops (399 signed in). The city continues to accept and track written comments on the UDC update with a total of 677 written comments from 358 different people as of May 12, 2025. With the conclusion of these events, Supplementary Engagement as identified in the Supplementary Engagement Plan approved by City Commission in October 2024 is complete. Attached below is a list of resources and documents detailing the project. 425 Page 5 UDC Support Documentation and Resources May 20 and June 24, 2025, Commission Work Sessions The UDC Update is long process involving many stages of development and engagement. To consolidate and provide ease of access the following quick links are provided. 1. Background data a. Initial project scope, June 28, 2022 b. Link to Engage Bozeman Unified Development Code Update project c. Link to the edition of the draft text released on Oct 29, 2024 d. Link to draft zoning district map. This map is being updated to reflect new annexations and zone map amendments during the UDC update process e. Link to top edits document – summary of key edits f. Links to Commission work sessions through entire project i. Sept 13, 2022 – Formatting. Slides, Video ii. Oct 18, 2022 – Residential Zoning Districts. Slides, Video iii. Nov 15, 2022 – Sustainability. Slides, Video iv. Feb 14, 2023 – Commercial Districts and Zone Edge Transitions. Slides, Video v. Feb 28, 2023 – Parking and Transportation. Slides, Video vi. Sep 17, 2024 – Project Restart and Supplemental Engagement Video vii. Feb 4, 2025 – Presentation of Phase 1 Supplemental Engagement Video g. Links to Code Connect presentations i. Oct 27, 2022 – Formatting and Residential Zoning Districts. Slides, Video ii. Dec 1, 2022 – Sustainability. Slides, Video iii. Mar 8, 2023 – Commercial Districts and Zone Edge Transitions. Slides, Video iv. Apr 20, 2023 – Parking and Transportation. Slides, Video v. Aug 28, 2023 – Virtual Open House. Slides, Video h. Link to final initial engagement report, July 2023 i. Links to Laserfiche folders for public comments (538 entries) i. 2022 ii. 2023 iii. 2024 iv. 2025 j. Link to Supplemental Engagement approved plan, Oct 1, 2024 k. Link to priorities for housing support, Dec 2024 l. Link to Supplemental Engagement Phase 1, Dec 2024, engagement and demographics survey summary report 426 Page 6 m. Link to Supplemental Engagement Phase 1, Dec 2024, survey summary topic areas report i. A community group sponsored a survey on priorities to supplement the response obtained by the City which was targeted to younger respondents which was submitted as public comment. n. Link to Supplemental Engagement Phase 1 presentation to City Commission, video o. Link to Montana Land Use Planning Act, 76-25 Montana Code Annotated. 2. 2025 Legislation that affects code. Final action by the Governor has occurred. a. Parking max – HB 492, SB 243 b. Building height min in certain districts – SB 243 c. Review authority for individual developments – SB 121 d. Public notice and comment – SB 121, HB 394 e. Factory built homes – SB 252 3. The UDC update has received many comments on issues that are also related to other ongoing projects. Coordination between the UDC update project and other ongoing projects will continue to occur as Community Development collaborates with other departments. Below are status and schedules of the other projects. a. Water Adequacy via the Integrated Water Resource Plan – Lead city agency: Utilities Dept, formal public engagement begins in summer 2025 with an intent to complete the project in Fall/Winter 2026. b. Sensitive lands via the Wetlands Code Update – Lead city agency: Transportation and Engineering, project has been underway since last year with an intended completion in Summer 2025. See also implementation of PRAT below. c. Neighborhood Conversation Overlay District (NCOD) and Historic Preservation via the Landmark Program – Lead city agency: Community Development, Phase 1 under way since last year, Phase 2 starting June 2025 with intended conclusion in winter 2025 d. Implementation of the Parks, Recreation & Active Transportation Plan (PRAT) – Lead city agency: Parks Department – Expecting public discussion beginning in spring 2025 and intent for adoption hearings in winter 2025. e. Urban Forest via the Urban Forestry Master Plan update – Lead city agency: Forestry division – Begin summer 2025 with intened completion in Spring 2026. 427 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 313428 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 314429 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 315430 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 316431 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 317432 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 318433 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 319434 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 320435 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 321436 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 322437 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 323438 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 324439 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 325440 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 326441 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 327442 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 328443 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 329444 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 330445 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 331446 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 332447 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 333448 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 334449 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 335450 -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 336451 -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 337452 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 338453 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 339454 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 340455 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 341456 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 342457 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 343458 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 344459 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 345460 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 346461 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 347462 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 348463 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 349464 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 350465 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 351466 -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 352467 -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 353468 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 354469 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 355470 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 356471 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 357472 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 358473 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 359474 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 360475 Dzintars Waiver of Proprietary Rights - Page 4 of 4 - DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 361476 DOWNTOWN BOZEMAN ALLEY ENHANCEMENT PILOT PROJECT Final Artwork Plans and Drawings Date: 1/23/2024 DocuSign Envelope ID: 557D5920-3C18-4483-98A6-0B380DEDBD7C 362477 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 363478 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 364479 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 365480 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 366481 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 367482 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 368483 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 369484 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 370485 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 371486 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 372487 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 373488 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 374489 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 375490 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 376491 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 377492 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 378493 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 379494 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 380495 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 381496 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 382497 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 383498 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 384499