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HomeMy WebLinkAbout21- Ordinance 2074 Repeal & Replace BMC 38.270 Concurrent Construction Ordinance 2074 Page 1 of 23 ORDINANCE 2074 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA REPEALING DIVISION 38.270 OF THE BOZEMAN MUNICIPAL CODE AND REPLACING IT ENTIRELY WITH A REVISED DIVISION 38.270 TO: REMOVE THE REQUIREMENT THAT A PROJECT BE A PLANNED UNIT DEVELOPMENT TO QUALIFY FOR CONCURRENT CONSTRUCTION AND ESTABLISH REGULATIONS FOR CONCURRENT CONSTRUCTION; REVISE REGULATIONS FOR DEFERRED INSTALLATIONS OF IMPROVEMENTS THROUGH AN IMPROVEMENTS AGREEMENT AND FINANCIAL AND NON-FINANCIAL SECURITY; REMOVE SECTION 38.270.030.B.1.b(3) ALLOWING DEVELOPMENTS TO DELAY INSTALLATION OF SIDEWALKS; REQUIRE INSTALLATION OF STORMWATER INFRASTRUCTURE PRIOR TO ISSUANCE OF A BUILDING PERMIT; REQUIRE A PROPERTY OWNERS ASSOCIATION TO MAINTAIN STORMWATER IMPROVEMENTS; REMOVE THE REQUIREMENT FOR A PROPERTY OWNERS ASSOCIATION TO MAINTAIN PARKS; REQUIRE AN APPROPRIATE PROFESSIONAL TO CERTIFY COMPLIANCE OF IMPROVEMENTS AS BUILT; REMOVE THE USE OF SPECIAL IMPROVEMENTS DISTRICTS TO GUARANTEE STREET IMPROVEMENTS IN SECTION 38.270.030.B; REQUIRE A DOCUMENT TO BE FILED WITH THE CLERK AND RECORDER THAT STATES A CERTIFICATE OF OCCUPANCY WILL NOT BE ISSUED UNTIL ALL INFRASTRUCTURE IS INSTALLED AND ACCEPTED BY THE CITY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Bozeman (the “City”) has adopted land development and use standards to protect public health, safety and welfare and otherwise execute the purposes of Montana Code Annotated § 76-2-304; and WHEREAS, City is committed to reviewing and improving the Unified Development Code (UDC); and WHEREAS, the City is authorized to regulate the provision of security requirements to ensure construction of public improvements pursuant to Montana Code Annotated § 76-3-507; and DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 2 of 23 WHEREAS, the City is authorized to require a subdivider to pay or guarantee payment for the extension of capital facilities related to public health and safety, including public roads, sewer, water, and storm drains pursuant to Montana Code Annotated § 76-3-510; and WHEREAS, the City strives to prioritize accessibility and mobility choices by promoting active transportation that increases daily physical activity, improving health and lowering healthcare costs, and is inclusive of all users of transportation networks; and WHEREAS, it is in the interests of the City to allow concurrent construction of required infrastructure and development, with an improvements agreement and appropriate security, to promote economic development in the City and accommodate the changing development environment; and WHEREAS, it is in the interests of the City and public welfare to revise the Bozeman Municipal Code (BMC) to increase the ease of use of the UDC; NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 Legislative Findings The City Commission hereby makes the following findings in support of adoption of this Ordinance: 1. The City has adopted land development and use standards to protect public health, safety and welfare and otherwise execute the purposes of Montana Code Annotated §§ 76-2-304 and 76-3-102. 2. The City is authorized to regulate the provision of security requirements to ensure construction of public improvements pursuant to Montana Code Annotated § 76-3-507. 3. The City is authorized to require a subdivider to pay or guarantee payment for the extension of capital facilities related to public health and safety, including public roads, sewer, water, and storm drains pursuant to Montana Code Annotated § 76-3-510. 4. A staff report analyzing the required criteria for a zone text amendment, including accordance to the Bozeman Community Plan 2020, and required contents for local subdivision regulations has found that the required criteria of Montana Code Annotated sections 76-2-304, 76-1-606, and 76-3-501 are satisfied. DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 3 of 23 5. The City adopted a growth policy, the Bozeman Community Plan 2020 (BCP 2020), by Resolution 5133 to establish policies for development of the community. 6. Zoning and subdivision must be in accordance with the adopted growth policy. 7. The required public hearings were advertised as required in state law and municipal code and all persons have had opportunity to review the applicable materials and provide comment. 8. The City Commission considered the application materials, staff analysis and report, Zoning Commission recommendation, Planning Board recommendation, all submitted public comment, and all other relevant information. 9. The City Commission determines that, as set forth in the staff report and incorporating the staff findings as part of their decision, the required criteria for approval of this ordinance have been satisfied. Section 2 That Bozeman Municipal Code Division 38.270 is repealed in its entirety. Section 3 That Bozeman Municipal Code Division 38.270 is replaced with the following: DIVISION 38.270. - IMPROVEMENTS AND SECURITIES Sec. 38.270.010. - Purpose and applicability. A. This division provides standards and procedures relating to the installation of physical improvements and compliance with requirements related to development. As these improvements are necessary to meet requirements of the law and to protect public health, safety and general welfare and other purposes of this chapter it is also necessary to provide means by which their installation can be ensured. Such improvements may include, but are not limited to, design elements such as landscaping or architectural features; and infrastructure, such as parking facilities, storm drainage facilities, pedestrian walkways, and public utilities. Furthermore, in some situations it is in the best interest of the person conducting development to be able to provide security for the completion of certain work and be able to begin utilization of a development sooner than would otherwise be possible if all improvements had to be physically installed before use could begin. This article therefore protects the public health, safety, and welfare and sources of public funding by: DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 4 of 23 1. Ensuring completion of required improvements or compliance with other requirements of development to an acceptable standard as required in Montana law or these regulations; 2. Providing a buyer or lessee protection while allowing a person undertaking development to proceed with sales or leases before the project is totally complete, especially for multi-phased projects; 3. Ensuring adequate warranty or maintenance, when appropriate, of improvements; 4. Providing for mechanisms to ensure performance of or conformance with conditions of approval or development requirements; and 5. Accomplishing the purposes listed in this subsection A through mechanisms that reduce the need to rely on costly litigation to accomplish those purposes. B. This division applies to all subdivisions and site developments as follows: 1. Subdivisions must install or provide security for installation of improvements prior to final plat as set forth in this article. 2. Site developments, including all developments that are not subdivisions, must install improvements or provide security for installation prior to receiving a certificate of occupancy or as set forth in this article. 3. The city may determine the nature and timing of required installation of improvements as part of the subdivision or site development process. When necessary to protect the health, safety, and general welfare of the public, and ensure the function and viability of development, installation of certain improvements may not be allowed to be delayed and must be installed before use of the property or sale of the property. Sec. 38.270.020. - Standards for improvements. A. General. The developer must comply with the following procedures and standards for the installation of development improvements, including parks. 1. Construction routes. For all developments, a construction route map must be provided showing how materials and heavy equipment will travel to and from the site. The route must avoid, where possible, local or collector streets or streets where construction traffic would disrupt neighborhood residential character or pose a threat to public health and safety. 2. Protection of existing improvements. The developer, and the developer's contractors and suppliers are jointly and severally responsible to ensure that existing improvements are not DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 5 of 23 damaged or rendered less useful by the operation of the developer, and the developer's contractors or suppliers. Such protection of improvements may include requirements for cleaning of vehicles leaving a construction site. This provision is intended to preclude damage to existing roads, streets, water, sewer and drainage systems. The city may instruct the developer as to the streets or roads to be used for access by construction equipment, and the developer must require the same from the developer's contractors and their suppliers. The city may require the developer to post a security to guarantee repair of damages. B. Improvements to be dedicated to the public. 1. Plans and specifications. Engineering and survey plans, specifications and reports required in connection with public improvements and other elements of the subdivision, or other development required by the city, must be prepared by a registered engineer or a registered land surveyor as applicable, licensed in the state of Montana, as their respective licensing laws allow. The plans and specifications must be prepared in compliance with the city's design standards and specifications policy, park design standards, and other regulations and policies, as applicable. Plans and specifications for non-engineering improvements must be prepared by a person whose qualifications are acceptable to the city department with responsibility for that type of improvements. Plans and specifications for non-engineering improvements must be prepared in compliance with any applicable adopted design standards and specifications policy. 2. Scope of work. The intent of these regulations is to provide standards by which the contractor and the developer must execute their respective responsibilities and guarantee proper construction and completion in every detail of the work in accordance with the plans, specifications and terms set forth under these regulations. a. The developer must furnish the plans, specifications and typical sections for approval by the city. b. The city may make or cause to be made any reasonable changes, alterations, amendments and additions to the standard specifications for infrastructure or park improvements. c. The city may require all work to be done to support the subdivision or site development, including off-site improvements. 3. Control of work. During the course of construction, and at the completion of each phase of a project, the developer's registered civil engineer, or other person acceptable to the city, must submit a statement that the improvements have been inspected and constructed in accordance with the approved plans and specifications. Prior to making any changes, the developer's engineer must notify and receive written approval or disapproval from the city for any changes in approved plans and specifications. DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 6 of 23 4. Improvement procedure. a. Approval of the improvement plans and specifications must be completed before installation of improvements or entering into an agreement where security is to be provided for the completion of the improvements. b. The procedure for submittal, review, and approval of improvement plans and specifications is contained in the city's design standards and specifications policy, and must be followed by the developer and the developer's contractors. All plans and specifications related to park and public trail improvements must be submitted to the parks division for review and approval. c. After the preliminary plat has received approval or conditional approval, and before the final plat is submitted, the developer must either install the required improvements or enter into an agreement with the city securing the installation and performance of the improvements. d. After a final site plan is approved, subject to section 38.270.030, and prior to occupancy of any buildings, the developer must either install the required improvements or enter into an agreement with the city securing the installation and performance of the improvements. 5. Sanitary facilities. Water supply, sewage disposal and solid waste disposal systems must meet the minimum standards of the city and the Montana department of environmental quality as required by MCA 76-4-101 through 76-4-135, and regulations adopted pursuant thereto, and are subject to the approval of the city. C. Private improvements. Improvements must be constructed as shown on the approved final site plan, final plat, or plans and specifications, as applicable. The developer is responsible for coordinating installation with all necessary parties and to restore to its original condition any public improvements, private improvements, or property damaged during installation of improvements. Sec. 38.270.030. - Completion of improvements. A. General. The applicant must provide certification by the architect, landscape architect, engineer or other applicable professional that all improvements to be dedicated to the public were installed in accordance with the approved site plan, plans and specifications, or plat as applicable. For required private improvements, the applicant must provide certification by the architect, landscape architect, engineer or other applicable professional that all improvements, including, but not limited to, landscaping, ADA accessibility requirements, private infrastructure, and other required elements were installed in accordance with the approved site plan, plans and specifications, or plat as applicable, unless a waiver of certification in whole or part is explicitly approved by the DRC. DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 7 of 23 1. Improvements to be dedicated to the public. Improvements to be dedicated to the public, such as water mains, sewer mains, parkland and related improvements, and public streets, must be: a. installed by the developer in accordance with the approved plans and specifications; b. certified by a registered professional civil engineer, licensed in the state of Montana, or other appropriate professional acceptable to the city; c. accepted by the city prior to the approval of the final plat, building permit, issuance of a certificate of occupancy or other identified benchmark as appropriate. 2. Record drawings and project certification complying with the city's design standards and specifications policy, including timing for submittal of materials, must be provided by a civil engineer licensed in the state of Montana or other appropriate professional acceptable to the city prior to final plat approval for subdivisions, issuance of a certificate of occupancy, or release of security associated with the improvements to be dedicated to the public. 3. As-built drawings complying with the city's design standards and specifications policy, including timing for submittal of materials, must be provided prior to final plat approval for subdivisions, issuance of a certificate of occupancy, or release of security associated with the improvements to be dedicated to the public. a. Public street or road improvements must be developed to adopted city standards. 4. Public right of way lighting. Lighting, as required in division 38.570 must be incorporated into all development. Prior to final plat approval, lighting must be installed or secured. If the lighting is secured, it must be considered as part of the required street improvements and building permits must not be issued until the improvements are installed, except when concurrent construction is an identified purpose of the initial project review and approved pursuant to the criteria established in subsection D of this section. 5. Private improvements and other required improvements. Improvements, including, but not limited to, private parks or open space, landscaping, paving, and irrigation must be installed in accordance with the approved preliminary plat or site plan by the developer and inspected and found to comply with the city standards and requirements prior to the approval of the final plat, issuance of a certificate of occupancy for the building or site, or other identified benchmark as appropriate. All improvements required as part of a subdivision must be installed and accepted, or secured in accordance with an improvements agreement, prior to final plat approval. B. Completion time for subdivisions. 1. Improvements. All subdivision improvements, including parks, must be constructed and completed as approved by the city. DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 8 of 23 a. All improvements must be installed prior to the issuance of a building permit for any lot within a subdivision, except when concurrent construction is an identified purpose of the initial project review and approved pursuant to the criteria established in subsection D of this section. b. The subdivider must meet the requirements of either subsection (1) or (2) for completion of street improvements. The option must be specified in the preliminary plat submittal. Should the applicant not identify which option is desired, the option presented in subsection B.1.b.(1) of this section must be required. Altering the choice of option after approval of the development constitutes a material modification to the project and requires re-review of the project for modification to the approval subject to the provisions of section 38.100.070. (1) The subdivision streets improvements must be installed prior to final plat approval. This requirement may be modified by the review authority for streets where dictated by circumstances, such as cold weather conditions that do not permit paving, and where acceptable security for the ultimate development of the streets is provided. However, under no circumstances must the required gravel courses, curbs, gutters, or sidewalks be waived, and sanitary sewer manhole rims and water valve boxes must be located at a grade that will not be damaged by traffic. This requirement must generally not be modified for non-residential developments; or (2) The subdivider must enter into an improvements agreement guaranteeing the completion of the paving, curb, gutter, storm drainage, street lighting, sidewalks, or other street infrastructure improvements not yet completed. The improvements agreement must provide security, as explained in this division. However, at a minimum, the plans and specifications for the street improvements must be approved by the review authority prior to final plat approval. Building permits will not be issued until the street improvements are completed and accepted by the city, except when concurrent construction is an identified purpose of the initial project review and approved pursuant to the criteria established in subsection D of this section. C. Completion time for site development. Whenever any building lots or building sites are created inside the city limits, municipal water distribution systems, municipal sanitary sewer collection systems, streets, and stormwater collection, treatment, and detention or retention systems must be provided to the lot or site. Each building site must utilize and be connected to both the municipal water distribution and municipal sanitary sewer collection systems. Subject to the provisions of subsection C.1 of this section, these improvements must be designed, constructed, and installed according to the standards and criteria as adopted by the city and approved by the review authority prior to the issuance of any building permits, except when concurrent construction is an identified purpose of the initial project review and approved pursuant to the criteria established in subsection D of this section. DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 9 of 23 1. Provision of municipal central water distribution, municipal sanitary sewer collection systems, streets, and stormwater systems means that the criteria in either subsection a or subsections b and c are met as follows: a. Water, sewer, stormwater, and street services are installed and accepted by the city with service stubs being extended into the site, with such stubs being of adequate size to provide water and sewer service to the proposed development without modification to publicly owned infrastructure; or b. The water mains, sewer mains, stormwater system, and streets to be extended to provide service to the development are: located within a publicly dedicated right-of-way or easement; constructed to city standards; physically adjacent to the site proposed for construction; installed and accepted by the city; and adequate in capacity to provide necessary service to the proposed development; and c. Water mains, sewer mains, stormwater system, and streets must meet all of the following requirements: (1) Any required on-site or off-site extensions of water mains, sewer mains, stormwater system, or streets to be dedicated to the public: must be located entirely within publicly held easements or rights-of-way; must serve only a single lot; are the subject of an irrevocable offer of dedication to the city upon completion of the project; the development is under the control of a single developer who must retain control of the entire project until final completion; all work is under the supervision of a single general contractor; and no subdivision of land is involved; (2) The DRC must determine when the standards of this subsection C.1 are met. The fire department must consider whether adequate fire protection services are available from existing hydrants, and water supply exists to meet needs during construction. If adequate fire protection does not exist then concurrent infrastructure and development construction may not occur. Based on evaluation by the fire department, simultaneous construction of infrastructure to be dedicated to the public and private development construction may be permitted only within a defined portion of the site; (3) Approval of the final engineering design, including location and grade, for the infrastructure project must be obtained from the engineering department, and the Montana department of environmental quality when applicable, prior to issuance of any building permit for the development; and (4) A certificate of occupancy must not be issued until all on-site and off-site water, sewer, stormwater, and street improvements necessary to serve the site are installed and accepted or approved as applicable by the city. DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 10 of 23 D. Exception for Concurrent Construction. In certain circumstances, the issuance of a building permit may be allowed prior to completion of the public infrastructure, provided that the following criteria are met: 1. The city will have an opportunity to review and approve future proposed development through a site plan review or planned unit development; 2. The property owner must enter into an improvements agreement to ensure the installation of required infrastructure and other applicable improvements, to be secured by any security or securities found in 38.270.080. If a financial security is used, the amount will be determined by the city and in an amount not less than 150 percent of the cost of the improvements verified against city publicly bid unit prices, where such are available. If no publicly bid unit prices are available, any cost estimate acceptable to the city may be used. The security must be in the name of the city and must be at least six months longer than the time of performance required by the improvements agreement; 3. Improvements must be complete within two years of the date of the improvements agreement; 4. Approval of the final engineering design, including location and grade, for any public infrastructure must be obtained from the engineering department, and the Montana department of environmental quality when applicable, prior to issuance of any building permit for the development; 5. Building permits may be issued incrementally, dependent upon the status of installation of the infrastructure improvements. All building construction within the development must cease until required phases of infrastructure improvements as described in the improvements agreement have been completed, and inspected and accepted by the city; 6. The developer must provide and maintain hazard and commercial general liability insurance. Insurance policies must not be cancelled without at least 45 days prior notice to the city. The commercial general liability policy must name the city as an additional insured. The developer must furnish evidence, satisfactory to the city, of all such policies and the effective dates thereof; 7. The developer must recognize, acknowledge and assume the increased risk of loss because certain public services do not exist at the site; 8. If public funds or other third party funding will be used to fund all or part of the installation of infrastructure, the improvements agreement between the developer and the city must identify the type or types of predetermined infrastructure funding. Public or third party funding may include, but is not limited to reimbursement, payment up front, creation of a special improvements district, or grants; DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 11 of 23 9. No occupancy of any structures or commencement of any use constructed or proposed within the boundaries of the development will be allowed until required infrastructure improvements have been completed, inspected, and accepted by the city, and a certificate of occupancy has been issued; a. No occupancy of structures or commencement of any use is allowed when such action would constitute a safety hazard in the opinion of the city; 10. The developer must enter into an agreement with the city to address the provision of any services on an interim basis during construction, if deemed appropriate; 11.The developer must execute a hold harmless and indemnification agreement indemnifying, defending and holding harmless the city, its employees, agents and assigns from and against any and all liabilities, loss, claims, causes of action, judgments and damages resulting from or arising out of the issuance of a building permit under this section; 12. The developer must pay for any extraordinary costs associated with the project which the city may identify, including, but not limited to, additional staff hours to oversee the planning, engineering and construction of the project and infrastructure improvements, inspection of the infrastructure improvements and any extraordinary administrative costs; 13. The development must be under the control of a single developer and all work must be under the supervision of a single general contractor. The developer and general contractor must agree that there must be no third-party builders until required infrastructure improvements have been completed, and inspected and accepted by the city; and 14. Subsequent to preliminary plat or plan approval, a concurrent construction plan, addressing all requirements of this section, must be submitted for review and approval of the Community Development Director in consultation with the City Engineer and with a recommendation from the development review committee. E. Limitations. Notwithstanding the provisions of subsection D of this section, the city may limit the scope, type and number of projects eligible for concurrent construction consideration. Sec. 38.270.040. - Special provisions for timing of certain improvements. A. Park, pathway, and boulevard improvements. 1. These required improvements must be installed, or subject to an approved improvements agreement and financially secured, prior to final plat approval or occupancy of a building subject to development review, excluding sketch plans. DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 12 of 23 2. Due to seasonal considerations, building and occupancy permits may be issued prior to installation of these improvements as long as the improvements are subject to an approved improvements agreement and are financially secured. B. Neighborhood center improvements. 1. With the exception of neighborhood commercial and civic buildings and their grounds, neighborhood center improvements must be installed, or subject to an approved improvements agreement and financially secured, prior to final plat approval. 2. Due to seasonal considerations, building and occupancy permits may be issued prior to installation of improvements related to greens, plazas and squares as long as the improvements are subject to an approved improvements agreement and are financially secured. Sec. 38.270.050. - Acceptance of improvements. A. Improvements dedicated to the public. 1. Acceptance of street, road, and bridge improvements. Before any subdivision street, whether new or existing, can be accepted into the city street system by the city, it must be built to meet or exceed the required standards. Any improvements made to county roads must meet or exceed standards set by the county road office, and must be reviewed and approved by the county road office. Any bridge improvement, within the city or the county, must meet or exceed standards set by the Montana department of transportation and county road office, and must be reviewed and approved by the county road office and the city, and accepted by the county road office into the county's bridge maintenance system. 2. Acceptance of park, water, sewer, and storm drainage improvements. Before any public park, water, sewer or storm drainage improvement, whether new or existing, can be accepted into the city system by the city, it must be built to meet or exceed the required standards. Any improvement must meet or exceed standards set by the city, Montana department of environmental quality, and county road office, as appropriate. Improvements must be reviewed and approved by the city and other agency, as applicable. 3. Record drawings. Record drawings and project certification that all public infrastructure improvements comply with the city’s design standards and specifications policy must be provided by a civil engineer licensed in the state of Montana and must be submitted prior to final plat approval for subdivisions, per section 24.183.1107(5)(f), ARM as may be amended, or prior to issuance of a certificate of occupancy for site development, or other identified benchmark as appropriate. DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 13 of 23 4. The city may require verification that all liens have been released and payments made prior to accepting dedication of improvements. B. Private improvements. The city or its agent must conduct an "as-built" inspection to verify compliance and must approve a certificate of occupancy, final plat, or other conclusory action if all terms and details of the approval are in compliance. Except as provided in section 38.270.060, no final plat approval can be permitted, or certificate of occupancy issued, unless the terms and details of an approved plat or site development or sketch plan are met. Prior to receiving a certificate of occupancy, the developer must certify the completion of the improvements as required in section 38.270.030.A. Sec. 38.270.060. - Improvements agreements. A. Improvements agreement required. All improvements necessary or required to meet the standards of this chapter or conditions of approval must be the subject of an improvements agreement and be secured if final plat approval, occupancy of buildings, or other use of an approved development is allowed before the improvements are completed and inspected by the city. 1. Reservation. The city reserves the right to require actual installation of improvements prior to occupancy when such improvements are necessary to provide for health, safety and welfare or adequate function of systems or on-site development. B. When required. 1. When occupancy of a development subject to zoning review will commence prior to completion of all required site improvements; or 2. When a subdivision is to be granted final plat approval prior to the completion of all required improvements, the applicant must enter into an improvements agreement with the city. 3. At the discretion of the community development director, certain projects receiving a certificate of appropriateness may be required to enter into an improvements agreement with the city at the time of final approval of the certificate of appropriateness. C. If an improvements agreement is used to guarantee the completion of required improvements, including infrastructure, it may allow for the staged installation of improvements in defined areas and in accordance with an approved time schedule. At the city's discretion, the improvements in a prior increment may be required to be completed or payment or security provided for costs of the improvements incurred in a prior increment must be satisfied before development of future increments. DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 14 of 23 1. Subdivision. If an improvements agreement is used with a final subdivision plat to secure infrastructure improvements, a separate document must be filed with the clerk and recorder with the final plat that clearly states that building permits will not be issued until all water, sewer, storm drainage infrastructure, and streets are installed and accepted by the city. This requirement may be modified by the city for streets where dictated by circumstances, and where acceptable security for the ultimate development of the streets is provided. However, under no circumstances must the required gravel courses, curbs, gutters, or sidewalks be waived. No building permits will be issued for a subdivision within the city until all required water, sewer, storm drainage, required street lighting, and street gravel courses are installed and accepted, except when concurrent construction is an identified purpose of the initial project review and approved pursuant to the criteria established in section 38.270.030.D. 2. Site Development. If an improvements agreement is used with a site development to secure infrastructure improvements, a separate document must be filed with the clerk and recorder that clearly states that certificate of occupancy will not be issued until all water, sewer, stormwater systems and streets are installed and accepted by the city. This requirement may be modified by the city for streets where dictated by circumstances, and where acceptable security for the ultimate development of the required infrastructure is provided. However, under no circumstances can the required gravel courses, curbs, gutters, or sidewalks be waived. No building permit will be issued for a site development until all required water, sewer, storm drainage, required street lighting and street gravel courses are installed and accepted by the city, except when concurrent construction is an identified purpose of the initial project review and approved pursuant to the criteria established in section 38.270.030.D. D. Standards for improvements agreements. 1. All agreements. All improvements agreements must meet the following standards: a. The agreement and security must be satisfactory to the city attorney as to form and manner of execution; b. Detailed cost estimates and construction plans of all required on-site and off-site improvements must be made a part of the agreement; c. Provide for security in the amount equal to 150 percent of the estimated cost of the improvements verified against city publicly bid unit prices, where such are available. If no publicly bid unit prices are available, any cost estimate acceptable to the city may be used; d. The term for the security referenced in subsection C.1.c of this section must be at least six months longer than the time of performance required by the improvements agreement; DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 15 of 23 e. The agreement must provide for the city to claim the security by certifying that the developer is in default of the performance to be secured; f. Requests for partial release of security must only be in amounts such that the security will always equal 150 percent of the value of the remaining uncompleted work, and such that not more than 90 percent of the security is released prior to completion of all improvements. The city may take into account the location and scope of development phases in evaluating requests to reduce the amount of a financial security. The city may require verification that all liens have been released and payments made prior to releasing a portion of the security; g. Provide for the city to require a replacement security in the event the issuer of the security becomes insolvent, enters receivership, or otherwise gives cause for the city to lack confidence in the ability of the issuer to honor the security; h. Permit the city, in the event of default by the developer, to include in the costs to be recovered from the security those costs resulting from the need to call in the security, including but not limited to costs for the city attorney's time; and i. The financial security must be held in the posession of the city. 2. Subdivisions. Improvements agreements for subdivisions must meet the following standards in addition to those listed in subsection C.1 of this section: a. The length of time of the agreement must not exceed one year from the date of final plat approval unless explicitly included as a term of the agreement and the security remains in force. The agreement must stipulate the time schedule the subdivider proposes and the city accepts for completing the required improvements; b. The estimated cost of improvements must be provided by the subdivider's professional engineer and be consistent with publicly bid unit pricing, where such are available. If no publicly bid unit prices are available, any cost estimate acceptable to the city may be used. The city engineer has the discretion to require a second estimate of the cost of improvements, with the cost of obtaining the second estimate borne by the subdivider. The agreement must stipulate which type of security arrangements will be used; and c. Security for improvements for internal subdivision streets, water, storm drainage and sewer mains, or other internal or external improvements must be reduced only upon recommendation of the city department with responsibility for the type of infrastructure that has been guaranteed. 3. Site development. Improvements agreements for developments other than subdivisions must meet the following standards in addition to those listed in subsection C.1 of this section: DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 16 of 23 a. If occupancy of the structure or commencement of the use is to occur prior to installation of the required improvements, the installation of those improvements must be secured in conformance with the requirements of this division 38.270; b. All secured improvements must be completed by the developer within nine months of occupancy or the security must be forfeited to the city for the purpose of installing or contracting for the installation of the required improvements; c. At the community development director's discretion, a developer may be permitted to extend the manner of security, in general for a period not to exceed one additional year. Factors including, but not limited to, progress of installation achieved to date and phasing of projects may be considered; d. The city must determine which, if any, of the required improvements must be installed prior to occupancy, regardless of the use of an improvements agreement and security. Such determination must be based on a finding that unsafe or hazardous conditions will be created or perpetuated without the installation of certain improvements or that the property will have an unacceptable adverse impact on adjoining properties until such improvements are installed; (1) Items include, but are not limited to walkways and signage necessary for ADA compliance, parking surfaces adequate to meet the needs of the uses to be conducted during the term of the improvements agreement, or matters related to life safety are required to be installed prior to any occupancy; and e. When all provisions are met for occupancy of a facility or commencement of a use prior to the installation of all improvements, and adequate security has been provided in accordance with the terms of an improvements agreement, the building official may issue a certificate of occupancy. E. Notwithstanding the provisions of this section, the city may limit the scope, type and number of improvements eligible for being secured by an improvements agreement and require installation prior to final plat approval, issuance of building permits, occupancy or other similar actions. F. The community development director must sign improvements agreements on behalf of the city. G. When an improvements agreement is used to allow the filing of a final plat prior to the completion of infrastructure, a notice of improvements agreement must be recorded along with the plat which indicates that certain infrastructure work is still not complete and identifying that work. When the work has been completed and is accepted by the city as complete, the city must record a notice of completion stating that the work that was the subject of the improvements agreement is complete. DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 17 of 23 Sec. 38.270.070. - Payment for extension of capital facilities. A. The city may require a subdivider or other site developer to mitigate the impacts of subdivision or site development by the extension of existing capital facilities or the construction of new capital facilities. The review authority, established in section 38.200.010, may determine that the payment or the guarantee of payment for the construction of capital facilities are appropriate measures to coordinate with the city's planned capital facility improvements and to ensure public health, safety and welfare. Payment to the city of cash-in-lieu of constructing capital facilities by a subdivider or other site developer is a mechanism for meeting regulatory requirements and mitigating subdivision and other site development impacts. Should the review authority approve a request to pay cash-in-lieu, a subdivider or other site developer is not required to obtain a variance from the requirement that such facilities be constructed prior to development approval. The review authority, in its sole discretion, must determine the appropriate mitigation for any subdivision or site development impacts. B. The city may require a subdivider or other site developer to pay or guarantee payment for part or all of the costs of extending capital facilities related to public health and safety, including but not limited to public roads or streets, sewer mains, water supply mains, and stormwater facilities for a subdivision or other site development. The costs must reasonably reflect the expected impacts directly attributable to the subdivision or other site development. The city may not require a subdivider or other site developer to pay or guarantee payment for part or all of the costs of constructing or extending capital facilities related to education. C. The review authority may accept direct payment of cash-in-lieu of public street, water, sewer, and stormwater capital facilities required by this code. For process and standards for payment for park mitigation see 38.420.030. A request to meet the terms of chapters 38 and 40 by payment of cash-in-lieu must be submitted by an applicant prior to a determination of adequacy or any advisory body recommendation during review of a development application. The city may choose to require payment of cash rather than require the construction of capital facilities as determined by the review authority. A request received after determination of adequacy or advisory body recommendation is a material modification to the application and requires re- review and determination of adequacy. 1. The review authority, established in section 38.200.010, must evaluate proposals of cash-in- lieu of capital facilities and make a decision to approve, approve with conditions or deny such requests. In evaluating a request to pay cash-in-lieu, the review authority must consider the following criteria: a. Whether there is a danger to public health and safety of accepting cash-in-lieu rather than constructing the capital facilities; DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 18 of 23 b. Whether the work described in the proposal is part of a project scheduled for commencement of construction on the most recently adopted capital improvement plan no later than three years from the date of submittal; c. Whether a public works project is pending that would substantially damage the work otherwise required to be constructed; d. Whether the installation of the otherwise required capital facilities would be disruptive to planned public improvements; e. Whether the city has made a determination of the reasonableness of the cost estimate of the work; and f. Whether the payment would enable a more efficient installation of required capital facilities. 2. The request to pay cash-in-lieu of capital facilities and the findings of the review authority must be considered in any final action to approve, approve with conditions, or deny a development application. 3. All cash paid in-lieu must be held by the city in a fund dedicated to the work for which the monies are paid. 4. As a condition of accepting cash-in-lieu, the city may require the property owner to execute a waiver of right to protest creation of a special improvement district, or other legal instrument, assuring participation, on a fair share, proportionate basis, in future capital facility improvements in the vicinity of the development proposal. 5. The city manager may adopt procedures by administrative order to implement this section. 6. The cash paid must include all component costs of the work deferred including but not limited to design, permitting, traffic management, construction, and record drawings. The cash paid must include a contingency amount to offset the uncertainty of cost estimating and potential escalation of costs. 7. Issuance of a refund is a material modification of a development per section 38.100.070. Refunds of cash paid in-lieu are not available if: a. A final plat which relied upon cash-in-lieu of facilities has been recorded; b. If building permits for a non-subdivision development have been issued; or c. If the city has published an invitation to bid on work which relies upon the paid cash for project funding. DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 19 of 23 Sec. 38.270.080. - Types of acceptable securities. A. Financial securities. A variety of means of providing for the security of improvements agreements, ensuring adequate maintenance of required improvements and ensuring compliance with conditions of approval for various developments may be allowed. One or more of the following instruments may be used to provide a financial security for improvements to be completed. The method, terms, and amount of security must be acceptable to the city. Financial security is the primary method to provide security for installation of physical improvements. 1. Direct payment of cash to the city; 2. Irrevocable letters of credit satisfactory to the city attorney as to form and manner of execution; 3. Cash escrows held by the city, or held by an approved escrow agent and subject to an executed escrow agreement; or 4. Completion bonds satisfactory to the city attorney as to form and manner of execution. B. Nonfinancial securities. In addition to the possible financial securities listed above, the following nonfinancial securities may be used to ensure compliance with conditions of approval, ensure maintenance of required improvements and coordinate timing of development. When deemed appropriate, the city may use nonfinancial security methods in combination with a financial security method. 1. Granting of final permits; 2. Sequential approval of multi-phased projects, with subsequent phases prohibited from receiving approval until prior approved phases have complied with all requirements; 3. Formation of a special improvement or maintenance district. This method must not be considered completed until after all final actions have occurred and the district is in existence and the bonds sold; 4. Establishment of a property owners' association with duties to maintain certain improvements that must be enforceable by the city; 5. Irrevocable offer of dedication of improvements to be dedicated to the public after completion of the project; and 6. Recording of a special restrictive covenant or deed restriction which may only be released by written agreement of the city. DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 20 of 23 Sec. 38.270.090. - Development or maintenance of common areas and facilities by developer or property owners' association. A. General. For the purposes of this section, "common areas and facilities" include: 1. Public and private parkland; 2. Boulevard strips in public rights-of-way along external subdivision streets and adjacent to parks or open space; 3. Common open space (as defined in section 38.700.040); 4. Neighborhood centers (except for neighborhood commercial and civic uses and their grounds) as set forth in section 38.410.020; 5. Pathways (as defined in section 38.700.150); 6. Lighting; 7. Stormwater facilities, and 8. Irrigation facilities installed in common areas. B. Development. If common areas or facilities will be developed by a developer or a property owners' association, a development plan for the common area or facilities must be submitted with the preliminary plat application or zoning application for review and approval. The development plan must be reviewed and approved by the city prior to the installation of improvements in common areas or the installation of common facilities. An approved park master plan satisfies this requirement. 1. Landscaping. When landscaping or irrigation systems will be installed in parkland, boulevard strips or common open space, the development plan must be accompanied by a landscaping plan that was prepared by a qualified landscaping professional. When landscaping in common areas is installed by the subdivider, the subdivider must warrant these improvements against any and all defects for a period of two years from the date of installation of the landscaping. When landscaping in a park is installed by the subdivider, the subdivider must comply with the parks design standards and warrant these improvements against any and all defects for a period of two years from the date of installation of the landscaping. 2. Tree permits. If trees will be planted in dedicated city parkland or boulevard strips, tree planting permits must be obtained from the forestry division. C. Maintenance. When common areas or facilities will be maintained by the subdivider or by a property owners' association, a maintenance plan that complies with section 38.220.320 must be DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 21 of 23 submitted with the preliminary plat application for review and approval. The maintenance plan must include a maintenance schedule, and a mechanism to assess and enforce the common expenses for the common area or facility. The developer must provide all necessary maintenance until the improvements are transferred to a property owners' association, or other final custodian, at which point the property owners' association or other final custodian will be responsible for all necessary maintenance of common areas or facilities identified in the maintenance plan. Maintenance must be provided by the property owners' association for stormwater facilities, with the exception of storm sewer mains, inlets, and manholes located in public streets, until the city establishes a stormwater maintenance district or other dedicated funding source and affirmatively accepts responsibility for maintenance. The provisions of sections 38.220.300—38.220.320 apply to this section. 1. Landscaping warranty. The maintenance plan must provide that any required or proposed landscaping must be maintained in a healthy, growing condition at all times, and that any plant that dies must be replaced with another living plant that complies with the approved landscape plan. 2. Irrigation system warranty. The maintenance plan must provide that any required or proposed irrigation system must be maintained in an appropriate and efficient manner and kept in good operating condition, and that any components of the irrigation system that break must be fixed and replaced if necessary with components approved in the irrigation system design plan. 3. Shade tree maintenance. The forestry division must be responsible for the trimming, removal, or similar maintenance of shade trees in all city rights-of-way and on city-maintained property, including parks. D. Maintenance Area. For a multiphase project with common areas and facilities, the maintenance mechanism must include all phases of the project, and must be created for the entire project with the first phase. No property canbe removed from the maintenance area or mechanism without prior approval by the city to ensure continued maintenance of common areas and facilities, and on-going fulfillment of all obligations. Sec. 38.270.100. - Warranty. A. Publicly dedicated All publicly dedicated improvements must be subject to a warranty of duration and scope to meet the city's design standards and specifications manual and park design standards as applicable. B. Private improvements DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 22 of 23 If an improvements agreement is entered to guarantee installation of private improvements, the improvements must be subject to a warranty of not less than one year from the date of installation. Section 4 Repealer. All provisions of the ordinances of the City of Bozeman in conflict with the provisions of this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 5 Savings Provision. This ordinance does not affect the rights and duties that matured, penalties that were incurred or proceedings that were begun before the effective date of this ordinance. All other provisions of the Bozeman Municipal Code not amended by this ordinance shall remain in full force and effect. Section 6 Severability. That should any sentence, paragraph, subdivision, clause, phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect the validity of this ordinance as a whole, or any part or provision thereof, other than the part so decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman Municipal Code as a whole. Section 7 Codification. This Ordinance shall be codified as indicated in Sections 1-3. Section 8 Effective Date. DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E Ordinance 2074 Page 23 of 23 This ordinance shall be in full force and effect thirty (30) days after final adoption. PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the 11th day of May, 2021. ____________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: ____________________________________ MIKE MAAS City Clerk FINALLY PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana on second reading at a regular session thereof held on the 8th of June_, 2021. The effective date of this ordinance is July 8, 2021. _________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: _______________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney DocuSign Envelope ID: 1EB7CF0F-59C3-4278-BC2D-2D021622F86E