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HomeMy WebLinkAbout10-26-21 City Commission Meeting Agenda and Packet MaterialsA.Call to Order - 6:00 PM - WebEx Videoconference B.Pledge of Allegiance and a Moment of Silence C.Changes to the Agenda D.Authorize Absence D.1 Authorize the Absence of Mayor Andrus E.Public Service Announcements E.1 There will be no City Commission Meeting on Election Day, November 2, 2021 F.FYI G.Commission Disclosures THE CITY COMMISSION OF BOZEMAN, MONTANA REGULAR MEETING AGENDA Tuesday, October 26, 2021 This meeting will be held using Webex, an online videoconferencing system. You can join this meeting: Via Webex: https://cityofbozeman.webex.com/cityofbozeman/onstage/g.php?MTID=e4010becaf4ff5770be8b1fd9e6d03235 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 or channel 190 United States Toll +1-650-479-3208 Access code: 2559 703 5159 If you are interested in commenting in writing on items on the agenda please send an email to agenda@bozeman.net prior to 12:00pm on the day of the meeting. You may also comment by visiting the Commission's comment page. You can also comment by joining the Webex meeting. If you do join the Webex meeting, we ask you please be patient in helping us work through this online meeting. If you are not able to join the Webex meeting and would like to provide oral comment you may send a request to agenda@bozeman.net with your phone number, the item(s) you wish to comment on, and the City Clerk will call you during the meeting to provide comment. You may also send the above information via text to 406-224-3967. As always, the meeting will be streamed through the Commission's video page and available in the City on cable channel 190. 1 H.Approval of Minutes H.1 Approve the regular meeting minutes from: September 21, 2021 September 28, 2021 October 5, 2021 October 12, 2021(Maas) I.Consent I.1 Approval of Depository Bonds and Pledged Securities as of September 30, 2021 (Donald) I.2 Formal Cancellation of the November 2, 2021 City Commission Meeting (Maas) I.3 Authorize the Mayor to Sign the Agreement to Terminate Pedestrian-Traffic Safety Committee Inter-Local Cooperative Agreement(Mihelich) I.4 Authorize the City Manager to Sign a Utility Easement with One 11 Lofts Owner, LLC for the One 11 Lofts SP (20456)(Johnson) I.5 Authorize the City Manager to Sign a Letter of Concurrence with the Findings of the MDT Speed Study for MT-86 (Bridger Drive)(Lonsdale) I.6 Authorize the City Manager to Sign a Letter Recommending Changes to the Findings of the MDT Speed Study for South 19th Avenue(Lonsdale) I.7 Authorize the City Manager to Sign an Indefinite Land Lease Agreement with Montana Rail Link to Facilitate the Construction and Long-term Operation of the Manley Ditch(Oliver) I.8 Authorize the City Manager to Sign an Amendment 8 to the Capital Improvement Projects Field Survey with Morrison-Maierle, Inc to Facilitate Upcoming Water Renovations Projects(Gamradt) I.9 Ordinance 2094 Provisional Adoption to Rezone 3.492 Acres from R-4, Residential High Density District to R-5, Residential Mixed-Use High Density District, Application 21172(Rogers) J.Public Comment 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. 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 address in an audible tone of voice for the record and limit your comments to three minutes. K.Action Items K.1 Ordinance 2092 Provisional Adoption Amending Bozeman Municipal Code Section 2.03.540 governing Gifts, Gratuities, and Favors(Sullivan, Giuttari) L.FYI / Discussion 2 M.Adjournment City Commission meetings are open to all members of the public. If you have a disability that requires assistance, please contact our ADA Coordinator, Mike Gray, at 582-3232 (TDD 582-2301). Commission meetings are televised live on cable channel 190 and streamed live at www.bozeman.net. City Commission meetings are re-aired on cable Channel 190 Wednesday night at 4 p.m., Thursday at noon, Friday at 10 a.m. and Sunday at 2 p.m. In order for the City Commission to receive all relevant public comment in time for this City Commission meeting, please submit via www.bozeman.net or by emailing agenda@bozeman.net no later than 12:00 PM on the day of the meeting. Public comment may be made in person at the meeting as well. 3 Memorandum REPORT TO:City Commission SUBJECT:Authorize the Absence of Mayor Andrus MEETING DATE:October 26, 2021 AGENDA ITEM TYPE:Citizen Advisory Board/Commission RECOMMENDATION:I move to authorize the absence of Mayor Andrus. 4 Memorandum REPORT TO:City Commission SUBJECT:There will be no City Commission Meeting on Election Day, November 2, 2021 MEETING DATE:October 26, 2021 AGENDA ITEM TYPE:Administration RECOMMENDATION:n/a 5 Memorandum REPORT TO:City Commission FROM:Jesse DiTommaso, Deputy City Clerk Mike Maas, City Clerk Jeff Mihelich, City Manager SUBJECT:Approve the regular meeting minutes from: September 21, 2021 September 28, 2021 October 5, 2021 October 12, 2021 MEETING DATE:October 26, 2021 AGENDA ITEM TYPE:Minutes RECOMMENDATION:I move to approve the combined City Commission minutes as submitted. STRATEGIC PLAN:1.1 Outreach: Continue to strengthen and innovate in how we deliver information to the community and our partners. BACKGROUND:In 2013, The Clerk’s Office identified goals related to the Commission’s priority of Improving Technology Utilization and Proficiency. Improvements included: • Live streaming broadcast of the City Commission Meeting • Meeting efficiency • Better access of meeting information for staff and the public • Time savings • Streamlined approach to citizen involvement and public comment From August of 2013 through December 2020, the City Commission Minutes have been linked with audio and video using AV Capture. In addition to the City Commission, many Citizen Advisory Boards utilize the system as well. Beginning December 14, 2020 the City Commission and many Citizen Advisory Boards moved to our new Granicus Streaming Platform. Beginning January 5, 2021 meetings in the Granicus platform have been closed captioned. Those captions are searchable using the advanced search option on our video view page. https://www.bozeman.net/government/city-commission/city-commission- video Users are always welcome to contact the City Clerk’s Office at 582-2320 or 6 email agenda@bozeman.net for assistance. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:None. Attachments: 09-21-21 FINAL MINUTES City Commission Meeting Minutes.pdf 09-28-21 FINAL MINUTES City Commission Meeting Minutes.pdf 10-05-21 FINAL MINUTES City Commission Meeting Minutes.pdf 10-12-21 FINAL MINUTES City Commission Meeting.pdf Report compiled on: September 16, 2021 7 Bozeman City Commission Meeting Minutes, September 21, 2021 Page 1 of 10 THE CITY COMMMISSION MEETING OF BOZEMAN, MONTANA MINUTES September 21, 2021 Present: Cyndy Andrus, Terry Cunningham, I-Ho Pomeroy, Jennifer Madgic, Christopher Coburn Absent: None Staff Present in the WebEx: City Manager (CM) Jeff Mihelich, City Attorney (CA) Greg Sullivan, Deputy City Clerk (DCC) Jesse DiTommaso A) 00:03:19 Call to Order - 6:00 PM - Via WebEx B) 00:03:26 Pledge of Allegiance and a Moment of Silence C) 00:03:59 Changes to the Agenda • There were no changes to the agenda. D) 00:04:12 FYI • CM Mihelich provided a drought update. He reminded the public of the vaccination incentive program and highlighted Good Neighbor Day and the City sponsored block party. E) 00:06:52 Commission Disclosures • There were no commission disclosures. F) 00:07:01 Consent F.1 Accounts Payable Claims Review and Approval F.2 Authorize the City Manager to Sign a Special State Fire Assistance Subaward Agreement with the Montana Department of Natural Resources and Conservation for the Sourdough Creek Municipal Watershed Fuels Management Project DNRC Grant Subaward Agreement F.3 Ratify the City Manager's Signature on a First Amendment to the Grant Agreement for the ELM Event Venue First Amendment to Grant Agmt.ELM.docx F.4 Authorize the City Manager to Sign a Notice of Award to R&R Conner Aviation, LLC for the Phase 2 Sourdough Fuels Reduction Project, and Contract Documents Once Received 8 Bozeman City Commission Meeting Minutes, September 21, 2021 Page 2 of 10 Bid Tab & Bid Form NOTICE OF AWARD F.5 Authorize the City Manager to Sign a Temporary Right-of-way Agreement and Temporary Construction Permit for Construction of Improvements to Story Mill Road - Parcel 3 (2511N LLC and 2332 LLC) Story Mill Road Temp ROW Agree and Temp Const Permit.pdf F.6 Authorize the City Manager to Sign a License Agreement for the Use of City Property by Headwaters Community Housing Trust and Langlas Associates, Inc. F7. License Agreement - Use of City Property - Headwaters Community Housing Trust.pdf ExhibitC_BV PARK GRADING.pdf Exhibit A_StoryMillRdLinearPark-LegalDescription.pdf F.7 Authorize the City Manager to Sign a Memorandum Of Understanding Between the City of Bozeman and Montana State University for Collaborative Coursework Projects through the Community-engaged And Transformational Scholarship (CATS) Program MOU City-MSU for CATS program 2021-2024.docx 00:07:03 City Manager Introduction • CM Mihelich provided the highlights of the consent agenda. 00:08:24 Public Comment • There were no public comments on the consent agenda. 00:11:00 Motion Consent Items 1-7 as submitted. Jennifer Madgic: Motion Christopher Coburn: 2nd 00:11:16 Vote on the Motion to approve Consent Items 1-7 as submitted. The Motion carried 5 - 0 Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None G) 00:11:37 Public Comment • Mayor Andrus opened the meeting for general public comment. 00:14:04 Chris Omland, Public Comment • Chris Omland commented in opposition to the Canyon Gate Development proposal. 9 Bozeman City Commission Meeting Minutes, September 21, 2021 Page 3 of 10 00:17:51 Marcia Kaveney, Public Comment • Marcia Kaveney commented in opposition to the Canyon Gate Development Proposal. She added the grass at the Legends Park has benefited from the watering restrictions. 00:21:57 Carie Omland, Public Comment • Carie Omland commented in opposition to the Canyon Gate Development proposal. 00:24:54 Chris Egnatz, Public Comment • Chris Egnatz commented in opposition to the Canyon Gate Development proposal. 00:27:51 Molly Casto, Public Comment • Molly Casto commented in opposition to the Canyon Gate Development proposal. H) 00:30:54 Action Items H.1 00:30:58 2103 Bridger Drive Annexation and Zone Map Amendment for the Establishment of a Zoning Designation of R-2 for a property Addressed at 2103 Bridger Drive, Application 21147 - continued from August 9, 2021 Development Review Application 3 28 2021.pdf Zone Map Amendment Project Narrative 3 28 2021.pdf Site Plan 3 28 2021.pdf Annexation Application Project Narrative 7 6 2021.pdf 21147 2103 Bridger Drive ZMA CC SR.pdf 00:31:03 CM Introduction 00:31:13 Staff Presentation Senior City Planner Tom Rogers entered the staff report and applicant submittal into the record. He provided a map of the area around and including 2103 Bridger Drive. He provided a summary of access and utility locations for the property. He provided the future land use designation for the area. He highlighted the zoning designation requested and the existing zoning in the area. He provided the goals and policies furthered by the request as outlined in Resolution 5076. He provided the MCA Zoning Criteria met as outlined in Sec 76-2-304. Tom Rogers reviewed the public comment and recommendations. 00:39:32 Questions of Staff 00:51:50 Applicant Presentation Kristal Jones, the owner of the property, clarified this is not a development proposal. The request for annexation and zone map amendment is due to septic tank concerns and wanting to contribute to density appropriately. 00:53:18 Questions of Applicant 00:57:59 Public Comment Mayor Andrus opened this item up for public comment. 01:00:01 Mary Wictor, Public Comment • Mary Wictor commented on the R2 zoning and lot size. 10 Bozeman City Commission Meeting Minutes, September 21, 2021 Page 4 of 10 01:01:42 Christine Roberts, Public Comment • Christine Roberts commented on the alley way behind the property. 01:02:34 Kristen Davidson, Public Comment • Kristen Davidson commented on the alley behind the property and the proposed Canyon Gate development. 01:05:32 Carie Omland, Public Comment • Carie Omland commented on traffic, the alley way and setting precedent with R2 zoning. 01:07:37 Motion Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 21147 and move to approve the 2103 Bridger Drive Annexation with recommended terms of annexation, and direct staff to prepare an annexation agreement for signature by the parties. Christopher Coburn: Motion I-Ho Pomeroy: 2nd 01:09:19 Discussion • Cr. Coburn spoke in support of the annexation as it meets City annexation goals and policies and for public health reasons. • Cr. Pomeroy agreed with Cr. Coburn and will be supporting the motion. • DM Cunningham agreed with the findings in the staff report and commented on annexation and septic tanks. • Cr. Madgic will be supporting the motion for reasons stated by her colleagues. She also commented on the half-street turning into a full street and incremental increases in density. • Mayor Andrus will be supporting this motion. 01:16:39 Vote on the Motion to approve Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 21147 and move to approve the 2103 Bridger Drive Annexation with recommended terms of annexation, and direct staff to prepare an annexation agreement for signature by the parties. The Motion carried 5 - 0 Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None 01:16:59 Motion Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby adopt the findings presented in the staff report for 11 Bozeman City Commission Meeting Minutes, September 21, 2021 Page 5 of 10 application 21147 and move to approve the 2103 Bridger Drive Zone Map Amendment, with contingencies required to complete the application processing. Christopher Coburn: Motion I-Ho Pomeroy: 2nd 01:17:27 Discussion • Cr. Coburn will be supporting this motion as it is congruent with the future land use map to incrementally increase density in this area. • Cr. Pomeroy commented in support of this motion as R2 is in line with the future land use map of the area. • DM Cunningham noted R2 as compatible and will be supporting the motion. • Cr. Madgic will be supporting the motion. • Mayor Andrus will be supporting the motion and complimented the applicant for the thoughtful application. 01:20:23 Vote on the Motion to approve Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 21147 and move to approve the 2103 Bridger Drive Zone Map Amendment, with contingencies required to complete the application processing. The Motion carried 5 - 0 Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None H.2 01:20:41 Soper Minor Subdivision Preliminary Plat Application for a First Minor Subdivision Requesting Permission to Subdivide 0.74 Acres into Two Lots Within the R-2 District, Application 21282 (Quasi-judicial) 21282 Soper Minor Preliminary Plat.pdf 21282 Soper Minor Preliminary Plat Staff Report.pdf 01:20:46 City Manager Introduction 01:20:59 Staff Presentation Associate Planner Nakeisha Lyon entered the staff report, applicant submittal, and public comment into the record. She presented the application background. She provided a map and description of the property as is. She outlined the zoning map and future land use map of the area around the property. She presented the preliminary plat. She reviewed the public notice period and public comments. She explained the next steps for the property owners in order to subdivide. She provided the review criteria and recommendation. She provided the recommended motion. 12 Bozeman City Commission Meeting Minutes, September 21, 2021 Page 6 of 10 01:30:36 Questions of Staff 01:34:36 Applicant Presentation Chris Wasia with Genesis Engineering thanked the Commission and City Staff. 01:35:27 Questions of Applicant 01:39:58 Public Comment Mayor Andrus opened the item for public comment. 01:42:58 Clarification for applicant. 01:43:44 Motion Having reviewed and considered the application materials, public comment, and all the information presented, I hereby adopt the findings presented in the staff report for application 21282 and move to approve the Soper Minor Subdivision with conditions and subject to all applicable code provisions. I-Ho Pomeroy: Motion Terry Cunningham: 2nd 01:44:26 Discussion • Cr. Pomeroy agreed with Staff's findings and analysis and found it met the review criteria necessary. • DM Cunningham agreed with the staff report findings and Cr. Pomeroy. He believes the zoning is compatible with the surrounding area. • Cr. Coburn will be supporting this motion for reasons stated by his colleagues. He noted the question the applicant asked highlights why it's critical to look at the code. • Mayor Andrus agreed with her colleagues and reiterated the criteria met for a first minor subdivision has been met. • Cr. Madgic will be supporting the motion. She is encouraged by the small scale projects that increase density. She highlighted the diversity of housing types in the area. 01:50:50 Vote on the Motion to approve Having reviewed and considered the application materials, public comment, and all the information presented, I hereby adopt the findings presented in the staff report for application 21282 and move to approve the Soper Minor Subdivision with conditions and subject to all applicable code provisions. The Motion carried 5 - 0 Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None 13 Bozeman City Commission Meeting Minutes, September 21, 2021 Page 7 of 10 01:51:11 Recess Mayor Andrus called the meeting into recess. 01:56:53 Order Mayor Andrus called the meeting back to order. H.3 01:56:58 The West Babcock Properties Zone Map Amendment to Rezone 3.4 Acres from B-2 to B-2M for Properties Addressed at 102 South 19th Avenue and 1716, 1736, and 1804 West Babcock Street, Application 21192 21192 19th & Bab ZMA CC Staff Report.pdf ZMA Narrative 05-05-2021.pdf A1 - 19th and Babcock Rezoning 2021-05-06.pdf EXHIBIT A - VICINITY MAP 2021-5-11.pdf EXHIBIT C - FUTURE LAND USE MAP 2021-5-11.pdf EXHIBIT D - PROPOSED ZONING 2021-5-11.pdf EXHIBIT B - EXISTING ZONING 2021-5-11.pdf Exhibit 2 - Zone Map Amendment (8.5 x 11) 05-21-2021.pdf 01:57:04 City Manager Introduction 01:57:19 Staff Presentation City Planner Tom Rogers entered the staff report and applicant submittal into the record. He summarized the application. He provided the future land use map overlay and the zoning map overlay. He provided the 76-2-304 MCA zoning criteria evaluation. He provided public comment, board recommendations and the recommended motion. 02:02:02 Questions of Staff 02:08:04 Applicant Presentation Rob Pertzborn with Intrinsik Architecture provided photos of the area, including the zoning overlay and renderings of the buildings in the application. He highlighted the future expansion of Babcock that is in the Transportation Plan. He provided a timeline of the process and the zoning criteria. 02:11:44 Questions of Applicant 02:13:04 Public Comment There were no public comments. 02:16:03 Motion Having reviewed and considered the staff report, application materials, public comment, Zoning Commission Recommendation, and all information presented, I hereby adopt the findings presented in the staff report for application 21192 and move to approve the West Babcock Properties Zone Map Amendment, with contingencies required to complete the application processing. Terry Cunningham: Motion Jennifer Madgic: 2nd 02:16:30 Discussion 14 Bozeman City Commission Meeting Minutes, September 21, 2021 Page 8 of 10 • DM Cunningham agreed with the bulk of the findings in the staff report. He is in agreement that most of the criteria has been met. He agreed that the spot zoning criteria was not met. He will be supporting the motion. • Cr. Madgic spoke in support of the motion for reasons stated by Deputy Mayor. She noted the zoning commission's recommendation. • Cr. Coburn spoke in support of the motion. • Cr. Pomeroy agreed with her fellow commissioners. • Mayor Andrus will also be supporting the motion. 02:22:31 Vote on the Motion to approve Having reviewed and considered the staff report, application materials, public comment, Zoning Commission Recommendation, and all information presented, I hereby adopt the findings presented in the staff report for application 21192 and move to approve the West Babcock Properties Zone Map Amendment, with contingencies required to complete the application processing. The Motion carried 5 - 0 Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None H.4 02:22:50 Resolution 5279 Annual Lighting Assessments for Fiscal Year 2022 Lighting District Resolution FY22.pdf Schedule A.pdf 02:22:54 City Manager Introduction 02:23:10 Staff Presentation Finance Director Kristin Donald provided background on lighting districts and assessments. 02:23:40 Questions of Staff 02:24:09 Public Comment There were no public comments. 02:25:46 Motion Approve Resolution 5279 for Annual Lighting Assessments for Fiscal Year 2022 Jennifer Madgic: Motion Christopher Coburn: 2nd 02:26:06 Discussion Cr. Madgic will be supporting the motion. 15 Bozeman City Commission Meeting Minutes, September 21, 2021 Page 9 of 10 Cr. Coburn will be supporting the motion. Cr. Pomeroy will be supporting the motion. DM Cunningham will be supporting the motion. Mayor Andrus will be supporting the motion. 02:27:08 Vote on the Motion to approve Approve Resolution 5279 for Annual Lighting Assessments for Fiscal Year 2022. The Motion carried 5 - 0 Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None I) 02:27:28 Appointments I.1 02:27:29 Appointment to the Police Commission 08-16-21 CAB Applcation - J. Drummond - Reapplicant.pdf 02:27:34 Public Comment There were no public comments. 02:29:41 Motion I move to appoint Jim Drummond to a term expiring April 30, 2024 to the Police Commission. Terry Cunningham: Motion I-Ho Pomeroy: 2nd 02:29:56 Vote on the Motion to approve I move to appoint Jim Drummond to a term expiring April 30, 2024 to the Police Commission. The Motion carried 5 - 0 Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None J) 02:30:19 FYI / Discussion K) 02:30:30 Adjournment 16 Bozeman City Commission Meeting Minutes, September 21, 2021 Page 10 of 10 ___________________________________ Cynthia L. Andrus Mayor ATTEST: ___________________________________ Mike Maas City Clerk PREPARED BY: ___________________________________ Jesse DiTommaso Deputy City Clerk Approved on: October 26, 2021 17 Bozeman City Commission Meeting Minutes, September 28, 2021 Page 1 of 7 THE CITY COMMMISSION MEETING OF BOZEMAN, MONTANA MINUTES Tuesday, September 28, 2021 Present: Cyndy Andrus, Terry Cunningham, I-Ho Pomeroy, Jennifer Madgic, Christopher Coburn Absent: None Staff Present in the Webex: City Manager (CM) Jeff Mihelich, City Attorney (CA) Greg Sullivan, City Clerk (CC) Mike Maas A) 00:01:08 Call to Order - 6:00 PM - Via WebEx B) 00:03:36 Pledge of Allegiance and a Moment of Silence C) 00:04:08 Changes to the Agenda • There were no changes to the agenda. D) 00:04:21 FYI • Mayor Andrus reminded the community that today is Good Neighbor Day and the celebration is ongoing at Oak Springs Park. She provided an update on Covid cases and vaccination rates. She noted the applications for Citizen Advisory Boards are still open. • DM Cunningham provided clarification that existing board members' past service will not count against term limits for the new boards. • CM Mihelich noted the application for Citizen Advisory Boards window closes on September 30. He provided an update on the drought status in the community. He noted the City vaccination incentive program is ongoing until November 15. E) 00:08:51 Commission Disclosures 18 Bozeman City Commission Meeting Minutes, September 28, 2021 Page 2 of 7 • There were no disclosures. F) 00:08:59 Approval of Minutes F.1 Approve the regular meeting minutes from: March 2, 2020 March 18, 2020 August 3, 2021 August 10, 2021 August 17, 2021 August 24, 2021 September 14, 2021 03-02-20 FINAL MINUTES City Commission Meeting of Bozeman, Montana.pdf 03-18-20 FINAL MINUTES City Commission Emergency Meeting of Bozeman, Montana.pdf 08-03-21 FINAL MINUTES City Commission Minutes.pdf 08-10-21 FINAL MINUTES City Commission Minutes.pdf 08-17-21 FINAL MINUTES City Commission Minutes.pdf 08-24-21 FINAL MINUTES City Commission Meeting Minutes.pdf 09-14-21 FINAL MINUTES City Commission Minutes.pdf 00:09:04 Motion to approve the regular meeting minutes from: March 2, 2020, March 18, 2020, August 3, 2021, August 10, 2021, August 17, 2021, August 24, 2021, and September 14, 2021. Terry Cunningham: Motion Jennifer Madgic: 2nd 00:09:33 Vote on the Motion to approve the regular meeting minutes from: March 2, 2020, March 18, 2020, August 3, 2021, August 10, 2021, August 17, 2021, August 24, 2021, and September 14, 2021. The Motion carried 5 – 0. Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None G) 00:09:52 Consent G.1 Accounts Payable Claims Review and Approval 19 Bozeman City Commission Meeting Minutes, September 28, 2021 Page 3 of 7 G.2 Authorize the City Manager to Sign a Release and Reconveyance of Easements Releasing a Utility Easement to Village Investment Group, Inc. for The Parklands at Village Downtown File Plat (21167) Release and Reconveyance of Easements G.3 Authorize the City Manager to Sign Temporary Construction Permits and Right-of-Way Documents with ExxonMobil for the Griffin Drive and Manley Road Street and Stormwater Improvements Project 20210913 ExxonMobil right of entry w Fig1.pdf G.4 Authorize the City Manager to Sign a Professional Service Agreement with Olympus Technical Service Inc. for Oil Sand Interceptor Maintenance at City Properties PSA Olympus Technical Service Inc. - Oil Sand Interceptor Maintenance 9 -1-2021.pdf PSA EXHIBIT A Scope of Work - Olympus Technical Services R2.pdf G.5 Authorize the City Manager to Sign a Professional Service Agreement with Tri-County Heating and Cooling for HVAC Maintenance Services at City Properties Professional Services Agreement - Tri-County Heating and Cooling - HVAC Maintenance Services R2.pdf PSA Exhibit A - Tri-County Heating and Cooling Inc. - HVAC Maintenance Services - City Buildings - Combined.pdf G.6 Authorize the City Manager to Sign a Master Services Agreement with DocuSign for City- Wide Use City of Bozeman - DocuSign Order Form.pdf City of Bozeman - DocuSign MSA.pdf G.7 Ordinance 2083 Final Adoption of the 2021 NE Corner Davis Lane & Westlake Road Zone Map Amendment, Located at the Northeast Corner of the Intersection of Westlake Road and Davis Lane, to the South of Interstate 90, for 17.197 Acres to be Given Initial Zoning of R-5 Residential Mixed Use High Density District, Application 21186 Ordinance 2083 - 21186.pdf 6770.002 - Davis 17 ac- Zoning Map - 070821.pdf G.8 Ordinance 2086 Final Adoption of the University Crossing Apartments 2021 Zone Map Amendment, Giving an Initial Designation of B-2, Community Business District, on 10,247 Square Feet at 2025 Kagy Blvd in Association with Annexation, Application 2152 Ordinance 2086 University Crossing Apts ZMA - final - 21152.pdf 210228 - INTIAL ZONE MAP - 2021.08.26.pdf G.9 Ordinance 2087 Final Adoption of the Stockyard Properties Zone Map Amendment to Amend Zoning on 15.28 Acres from R-4 Residential High Density and B-1 Neighborhood Business District to REMU Residential Emphasis Mixed Use and B-2M Community Business District - Mixed at the Intersection of Griffin Drive and Story Mill Road, Application 21102 Ordinance 2087 - Stockyard ZMA 21102.pdf Stockyard ZMA Final 08-24-2021.pdf 00:09:59 City Manager Introduction 20 Bozeman City Commission Meeting Minutes, September 28, 2021 Page 4 of 7 CM Mihelich provided the highlights of the Consent agenda. 00:10:39 Public Comment Mayor Andrus opened the Consent agenda for public comments. 00:12:24 Mary Wictor, Public Comment Mary Wictor commented on Item G9 for the Stockyard Properties, commented on other needs beyond density for affordable, and highlighted comments from the Planning Board & Zoning Commission meeting. 00:16:08 Motion to approve Consent Items 1 - 9 as submitted. Jennifer Madgic: Motion Christopher Coburn: 2nd 00:16:16 Vote on the Motion to approve Consent Items 1 - 9 as submitted. The Motion carried 5 – 0. Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None H) 00:16:39 Public Comment • There were no general public comments. I) 00:19:54 Mayoral Proclamation I.1 00:20:03 Mayoral Proclamation Proclaiming Good Neighbor Day Good Neighbor Day Proclamation.pdf J) 00:21:31 Special Presentation J.1 Fire Department Annual Report Bozeman Fire 2020 Annual Report.pdf Fire Chief Josh Waldo presented the Fire Department 2020 Annual Report. K) 00:32:52 Action Items 21 Bozeman City Commission Meeting Minutes, September 28, 2021 Page 5 of 7 K.1 00:33:02 424 N. Ida Avenue NCOA with Deviations Request, Application 21258 (Quasi-judicial) 21258 Staff Report.pdf 00:33:18 Staff Presentation Associate Planner Sarah Rosenberg presented the application, an overview of the project, the existing conditions, proposed site plan, the Neighborhood Conservation Overlay District (NCOD) Conditions of Appropriateness & Deviation Review Criteria, the deviation requests, the standards for granting deviations, the public comment, and recommendation. 00:44:10 Questions of Staff 00:47:16 Presentation of Applicant Randy Visser representing the applicant stated it will be an improvement to the area and the requested deviation would align it with the structure to its immediate east. 00:48:28 Questions of Applicant 00:51:11 Public Comment • There were no public comments on this item. 00:54:03 Motion Having reviewed and considered the application materials, public comment, and all other information presented, I hereby find application 21258 meets the criteria required for approval and move to approve the 424 N. Ida Avenue application to construct a single family residence with two deviation requests from the Bozeman Municipal Code; the first from 38.320.030.C to allow for a 3 foot front setback where 15 feet is required and; the second from 38.540.020 to allow a 0 foot setback for back up maneuverability where a 6 foot rear setback is required for a parking space off an alley. Christopher Coburn: Motion I-Ho Pomeroy: 2nd 00:54:50 Discussion Cr. Coburn agreed with the staff's findings related to the criteria of evaluation. He stated this makes sense to get a house where we would not be able to while protecting public health and safety and conforms to the area. Cr. Pomeroy will support as it will provide housing where there is none. DM Cunningham agreed with the staff's findings. He applauded the applicant for engaging in the necessary process to work around the barriers and difficulties of this particular parcel to provide an infill housing unit. 22 Bozeman City Commission Meeting Minutes, September 28, 2021 Page 6 of 7 Cr. Madgic will support the motion. She added what can be learned from a situation like this to assist in providing affordable housing, including an option for administrative review and the desire for a clear regulatory document that is understandable by the general public. Mayor Andrus will support the motion. She stated the importance of Commission review within the NCOD. She stated the importance of the community to see what is being proposed in the district. She stated this proposal meets the guidelines and conforms to the necessary criteria. Cr. Pomeroy echoed the need for expediency and clarity in regulation for affordable housing. 01:03:56 Vote on the Motion Having reviewed and considered the application materials, public comment, and all other information presented, I hereby find application 21258 meets the criteria required for approval and move to approve the 424 N. Ida Avenue application to construct a single family residence with two deviation requests from the Bozeman Municipal Code; the first from 38.320.030.C to allow for a 3 foot front setback where 15 feet is required and; the second from 38.540.020 to allow a 0 foot setback for back up maneuverability where a 6 foot rear setback is required for a parking space off an alley. The Motion carried 5 – 0. Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None L) 01:04:17 FYI / Discussion M) 01:04:34 Adjournment ___________________________________ Cynthia L. Andrus Mayor ATTEST: ___________________________________ Mike Maas City Clerk 23 Bozeman City Commission Meeting Minutes, September 28, 2021 Page 7 of 7 PREPARED BY: ___________________________________ Mike Maas City Clerk Approved on: October 26, 2021 24 Bozeman City Commission Meeting Minutes, October 5, 2021 Page 1 of 10 THE CITY COMMMISSION MEETING OF BOZEMAN, MONTANA MINUTES October 5, 2021 Present: Cyndy Andrus, Terry Cunningham, I-Ho Pomeroy, Jennifer Madgic, Christopher Coburn Absent: None Staff Present in the WebEx: Assistant City Manager (ACM) Chuck Winn, City Attorney (CA) Greg Sullivan, (DCC) Deputy City Clerk Jesse DiTommaso A) 00:04:47 Call to Order - 6:00 PM - Via WebEx B) 00:04:54 Pledge of Allegiance and a Moment of Silence C) 00:05:32 Changes to the Agenda • There were no changes to the agenda. D) 00:05:39 FYI • Mayor Andrus expressed gratitude to the County Commission and Bozeman Fiber for taking action to expand access to broadband. She invited the public to Peet's Hill on Indigenous Peoples' Day for the lighting of the teepees, a mayoral proclamation and land acknowledgement at 6:15pm on Monday, October 11, 2021. • ACM Winn noted the Sourdough Trail closure beginning Monday, October 11, 2021. E) 00:09:38 Commission Disclosures • There were no commission disclosures. F) 00:09:46 Consent F.1 Accounts Payable Claims Review and Approval F.2 Authorize the City Manager to Sign a Grant Agreement with Family Promise of Gallatin Valley for the Early Childhood Learning Center Final Family Promise Childhood Center - Grant Agreement Sep 21.pdf 25 Bozeman City Commission Meeting Minutes, October 5, 2021 Page 2 of 10 F.3 Ratify the City Manager's Signature on a Construction Agreement with Phillips 66 for the Griffin Drive and Manley Road Street and Stormwater Improvements Project 20211005_Phillips 66_Construction Agreement.pdf 00:09:56 Assistant City Manager Introduction • ACM Winn provided the highlights of the Consent Agenda. 00:11:19 Public Comment • There were no public comments on the Consent Agenda. 00:14:02 Motion Consent Items 1-3 as submitted. Christopher Coburn: Motion I-Ho Pomeroy: 2nd 00:14:12 Vote on the Motion to approve Consent Items 1-3 as submitted. The Motion carried 5 - 0 Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None G) 00:14:31 Public Comment • Mayor Andrus opened the meeting for general public comment. 00:17:53 Emily Talago, Public Comment • Emily Talago commented asking for an emergency meeting and ordinance to allow recreational vehicles to be parked where they can connect to power. H) 00:20:17 Action Items H.1 00:20:17 Annie Subdivision Phase 4 Major Subdivision Preliminary Plat, Application 21201 21201 Annie Subdivision Ph. 4 PP CC SR.pdf NarrativeResponsetoPreApplicationComments_05162021.pdf L1.1LandscapeCloseUp_05072021.pdf 09-19-21 Public Comment - M. Bly - Annie Subdivision Ph. 4 App. #21201.pdf NorthwesternEnergyConstrAppEmail_03182021.pdf L1.2LandscapeDetails_05072021.pdf 09-20-21 Public Comment - D. Fleming - Re_ Application 21201.pdf NRCSSoilsData23Pgs_05162021.pdf PlatSheet1of3_07262021.pdf A1_AnnieSubdivisionPhase4_PP_05122021.pdf NWE_ServiceLetter_05192021.pdf 26 Bozeman City Commission Meeting Minutes, October 5, 2021 Page 3 of 10 PlatSheet2of3_07262021.pdf AdjoiningPropertyOwnersList_05132021.pdf Ph4_AmendDeclarationSignaturePage_04292021.pdf PlatSheet3of3_07262021.pdf AdjoiningPropertyOwnersMap_04212021.pdf Ph4_AmendmenttotheDeclarationofCovenants_05112021.pdf RoadPlanProfile_07262021.pdf ArcadiaGardensSitePlan_01031995.pdf Plat_Existing_Annie3B_J-481.pdf RoadPlanProfileALT_08012021.pdf AsBuilts_AnniePh1_2002.pdf Plat_Existing_AnniePh3A_J-343.pdf RoadSectionDetail_05122021.pdf AsBuilts_AnniePh3C_2007.pdf Plat_Existing_AnniePh3C_J-482.pdf SewerMainProfile_07262021.pdf CILWR_CityEmail_12152020.pdf ResponseDRCComments_07262021.pdf WaterMainProfile_07262021.pdf CityResolution4041_LightingDistrict700_AnniePh3B_3C.pdf RevisionandCorrectionRC_07262021.pdf CommentsOnPreApp_04072021.pdf RRFB_Tapco_Detail_05162021.PDF CovenantsExistingAnnieSub_05072021.pdf ServiceEmailCenturyLink_04162021.pdf Easement_Existing_20FtAccess_Lot1Ph3C.pdf ServiceRequest_BozemanPublicSchools_04142021.pdf EmailReDurstonSID_02112021.pdf SewerDesignReport_07262021.pdf Exhibit_AdjacentSubdivisionOverview_01042021.pdf SitePhotos_01042021.pdf Exhibit_NoxiousWeeds_04122021.pdf StormwaterDesignReport_07262021.pdf Exhibit_USGSQuadrangleMap_01042021.pdf TestPitMonitorWellLocations_05122021.pdf Exhibit_WetlandDelineation_04122021.pdf TitleReport_04132021.pdf Exhibit_ZoningMap_05162021.pdf TrafficImpactStudy_AnniePh3_2000.pdf FindingsofFact_AnniePh3C_03062006.pdf TrafficImpactStudy_AnnieSub_1985.pdf FireFlowTestingEmail_03052021.pdf TrafficStudyWaiverEmail_04172021.pdf GeotechnicalSummary_03232021.pdf VarianceRequest_RoadGrade_07262021.pdf GeotechTestPitLocations_03232021.pdf VarianceRequest_StormwaterPipe_07262021.pdf GroundwaterCrossSection_05122021.pdf 27 Bozeman City Commission Meeting Minutes, October 5, 2021 Page 4 of 10 WaiverofSIDs_Draft_07262021.pdf GroundwaterMonitoringData_05122021.pdf WaterDesignReport_07262021.pdf LightingAnalysisDurston_05072021.pdf WaterRights_107611_Irrigation.pdf MassGradingExampleSection_07262021.pdf WaterRights_30030324Domestic.pdf MFE_Form_04202021.pdf WeedManagementPlan_04152021.pdf N1Checklist_05132021.pdf WellLog_VanDyken_1999.pdf Narrative_Resubmittal_07262021.pdf WetlandDelineationMemo_043021.pdf NarrativeAdditionalPPSupplementals_05162021.pdf L1.0LandscapePlan_05072021.pdf 00:20:21 ACM Introduction 00:20:36 Staff Presentation City Planner Jacob Miller presented the Annie Subdivision Phase 4, application 21201. He summarized the proposal. He provided the current land use map, an areal map of services and amendments near the proposed development, and the Community Plan Future Land Use Map. He highlighted the Community Plan 2020 Goals met by this development. He provided the preliminary plat and noted the cash in lieu proposal. He provided the public comments, review criteria, and staff recommendation. 00:30:23 Questions of Staff 00:51:00 Applicant Presentation Gary Fox, of WGM Engineering, clarified previously asked questions. He provided a conceptual layout of what the development could look like. He highlighted his clients are local developers adhering to City Planning goals and paying for the beacon on North 25th. He noted the housing is designed to match the existing adjacent uses. 00:54:31 Questions of Applicant 00:59:37 Public Comment • There were no public comments. 01:02:29 Motion Having reviewed and considered the application materials, public comment, and all the information presented, I hereby adopt the findings presented in the staff report for application 21201 and move to approve the subdivision with conditions and subject to all applicable code provisions. I-Ho Pomeroy: Motion Terry Cunningham: 2nd 01:03:07 Discussion • Cr. Pomeroy agreed with staff's findings and analysis of the project, specifically subdivision review criteria & primary subdivision review criteria. She noted the project does not impact 28 Bozeman City Commission Meeting Minutes, October 5, 2021 Page 5 of 10 agriculture, wildlife, wildlife habitat, or public health and safety and has no issues due to deep ground water. She will be supporting the motion as it meets future planning goals, the climate goals, provides open space and more middle housing. • DM Cunningham also agreed with staff's findings and echoed Cr. Pomeroy's enthusiasm for diverse housing types. • Cr. Madgic will be supporting the motion for reasons stated by her colleagues. She noted her appreciation for the developers considering the street crossing, the Climate Plan and the City's planning goals. • Cr. Coburn will be supporting the motion for reasons stated by his colleagues and noted his excitement in the increased density of the application. • Mayor Andrus will be supporting the motion and associated herself with the staff findings and the comments of her colleagues. 01:13:12 Vote on the Motion to approve Having reviewed and considered the application materials, public comment, and all the information presented, I hereby adopt the findings presented in the staff report for application 21201 and move to approve the subdivision with conditions and subject to all applicable code provisions. The Motion carried 5 - 0 Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None H.2 01:13:34 Resolution 5333 Modification of Special Improvement Lighting District #744 for Boulder Creek Subdivision Resolution_5333__Modification_ofSILD_744-Boulder_Creek_Subdivision.pdf 01:13:39 ACM Introduction 01:13:50 Staff Presentation Assistant City Manager Rosenberry presented Resolution 5333. She explained the modification and presented the exact location for the proposed street light. She provided the type of fixture and the public notification process. 01:16:20 Questions of Staff 01:17:53 Public Comment • There were no public comments. 01:20:13 Motion Approve Commission Resolution 5333 Modification of Special Improvement Lighting District #744 for Boulder Creek Subdivision. 29 Bozeman City Commission Meeting Minutes, October 5, 2021 Page 6 of 10 Terry Cunningham: Motion Jennifer Madgic: 2nd 01:20:35 Discussion • DM Cunningham will be supporting the motion as the City identified the light is necessary and there has been no public protest. • Cr. Madgic will be supporting the motion. • Cr. Coburn will be supporting the motion. • Cr. Pomeroy will be supporting the motion. • Mayor Andrus will be supporting the motion. 01:21:27 Vote on the Motion to approve Approve Commission Resolution 5333 Modification of Special Improvement Lighting District #744 for Boulder Creek Subdivision. The Motion carried 5 - 0 Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None H.3 01:21:48 Resolution 5278 Annual Assessment for Business Improvement District (BID) for Fiscal Year 2022 Resolution_5278-BID_Assessments_FY22.pdf BID Schedule A FY22.pdf 01:21:51 Assistant City Manager Introduction 01:22:03 Staff Presentation Assistant City Manager Rosenberry presented Resolution 5278. She provided background on the Business Improvement District and the assessment this year as recommend by the Downtown Business Improvement District Board. She noted there was no public comment or protests related to this resolution. 01:23:48 Questions of Staff 01:24:52 Public Comment • There were no public comments. 01:27:20 Motion Approve Commission Resolution 5278, annual assessment for the business improvement district (BID) for the Fiscal Year 2022. Jennifer Madgic: Motion Christopher Coburn: 2nd 30 Bozeman City Commission Meeting Minutes, October 5, 2021 Page 7 of 10 01:27:37 Discussion • Cr. Madgic will be supporting the motion. She highlighted the program is voluntary and the ways in improves downtown. • Cr. Coburn will be supporting the motion. • Cr. Pomeroy will be supporting the motion. • DM Cunningham will be supporting the motion and believes the program is an expression of collective downtown pride. • Mayor Andrus will be supporting the motion for reasons stated by her colleagues. 01:30:23 Vote on the Motion to approve Approve Commission Resolution 5278, annual assessment for the business improvement district (BID) for the Fiscal Year 2022. The Motion carried 5 - 0 Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None H.4 01:30:46 Resolution 5281 Delinquent Water, Sewer, Stormwater, Garbage and Recycling Charges Resolution_5281_Delinquent_Utility_Accounts_FY22.pdf Schedule A-Active&Final Delinq 0921.pdf 01:30:50 Assistant City Manager Introduction 01:31:04 Staff Presentation Assistant City Manager Rosenberry presented Resolution 5281. She provided background on the collection process for delinquent utility charges. She noted four accounts that are now paid in full and will be removed from Schedule A attached to the resolution and incorporated into the motion. 01:33:42 Questions of Staff 01:39:23 Public Comment • There were no public comments. 01:41:52 Motion Approve Commission Resolution 5281 Delinquent Water, Sewer, Stormwater, Garbage, and Recycling Charges with the exceptions of recent changes noted by staff. Christopher Coburn: Motion I-Ho Pomeroy: 2nd 01:42:25 Discussion 31 Bozeman City Commission Meeting Minutes, October 5, 2021 Page 8 of 10 • Cr. Coburn will be supporting the motion and noted his interest in learning how low income individuals are informed on how to make payments. • Cr. Pomeroy will be supporting the motion. • DM Cunningham will be supporting the motion. • Cr. Madgic will be supporting the motion and aligned herself with the comments of her colleagues. • Mayor Andrus will be supporting the motion. 01:45:47 Vote on the Motion to approve Approve Commission Resolution 5281 Delinquent Water, Sewer, Stormwater, Garbage, and Recycling Charges with the exceptions of recent changes noted by staff. The Motion carried 5 - 0 Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None 01:46:10 Recess • Mayor Andrus called the meeting into recess. 01:52:55 Order • Mayor Andrus called the meeting back to order. H.5 01:53:02 Resolution 5283 Delinquent Snow Removal Charges Resolution_5283_Delinquent_Snow_Removal_FY22.pdf Schedule A Delinquent Snow Removal.pdf 01:53:06 Assistant City Manager Introduction 01:53:17 Staff Presentation Assistant City Manager Rosenberry presented Resolution 5283. She provided background on snow removal in City Limits according to Bozeman Municipal Code and the collection process for delinquent accounts. She noted one account has been paid in full and will be reflected on the exhibit to the Resolution. 01:55:46 Questions of Staff 02:09:23 Public Comment • There were no public comments. 32 Bozeman City Commission Meeting Minutes, October 5, 2021 Page 9 of 10 02:12:08 Motion Approve Commission Resolution 5283 Delinquent Snow Removal Charges except the recent payment as staff identified. I-Ho Pomeroy: Motion Terry Cunningham: 2nd 02:12:36 Discussion • Cr. Pomeroy will be supporting the motion as the City provides the service for public safety and it is the property owners’ responsibility to pay for the service. • DM Cunningham will be supporting the motion and noted making arrangements for the coming winter. • Cr. Madgic will be supporting the motion. She noted a citizen suggestion that the City take on snow removal for a fee. She also noted the freeze/thaw that makes it difficult to remove ice. • Cr. Coburn agreed with his colleagues. He is curious how Bozeman compares to other municipalities in regards to the amount of money charged for removal. • Mayor Andrus will be supporting the motion. She noted the City does it's best to pick the lowest bid, but there are not many choices. 02:22:35 Vote on the Motion to approve Approve Commission Resolution 5283 Delinquent Snow Removal Charges except the recent payment as staff identified. The Motion carried 5 - 0 Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None I) 02:23:00 FYI / Discussion J) 02:23:09 Adjournment ___________________________________ Cynthia L. Andrus Mayor 33 Bozeman City Commission Meeting Minutes, October 5, 2021 Page 10 of 10 ATTEST: ___________________________________ Mike Maas City Clerk PREPARED BY: ___________________________________ Jesse DiTommaso Deputy City Clerk Approved on: October 26, 2021 34 Bozeman City Commission Meeting Minutes, October 12, 2021 Page 1 of 5 THE CITY COMMMISSION MEETING OF BOZEMAN, MONTANA MINUTES Tuesday, October 12, 2021 Present: Cyndy Andrus, Terry Cunningham, I-Ho Pomeroy, Jennifer Madgic, Christopher Coburn Absent: None Staff Present in the Webex: City Manager (CM) Jeff Mihelich, City Attorney (CA) Greg Sullivan, City Clerk (CC) Mike Maas A) 00:01:27 Call to Order - 6:00 PM - WebEx Videoconference B) 00:04:03 Pledge of Allegiance and a Moment of Silence C) 00:04:35 Changes to the Agenda D) 00:04:53 FYI • DM Cunningham noted that ballots will be mailed on Wednesday and the City three ballot questions. He stated the need for residents to have a plan to address their snow removal responsibilities. • Cr. Madgic announced the One Valley Foundation is beginning their "A Seat at the Table" discussions on Thursday, October 14, running through the end of the month and their first topic is housing. • Mayor Andrus encouraged people to get vaccinated if they have not yet done so. She encouraged people to visit the teepee display on Peets Hill. • CM Mihelich announced the end of the drought declaration in the City. He referenced the community's decrease in usage of 27% in response to the drought. He noted there is still time to update voter registration or register to vote up to November 1 at the Gallatin County Elections Office. 35 Bozeman City Commission Meeting Minutes, October 12, 2021 Page 2 of 5 E) 00:12:02 Commission Disclosures • There were no disclosures. F) 00:12:09 Consent F.1 Accounts Payable Claims Review and Approval F.2 Authorize the City Manager to Sign a FY2021 Standard Audit Contract City of Bozeman 2021 Audit Contract.pdf Anti-Discrimination Clause.pdf F.3 Authorize the City Manager to Sign a Letter of Agreement Accepting a Donation in the Amount of $498,361.83 from the Library Foundation for Architectural Services for Phase 2 and 3 of the Bozeman Public Library Expansion Bozeman Public Library Expansion Project - Phase 2 and 3 - Letter of Agreement.docx F.4 Authorize the City Manager to Accept a Montana Department of Homeland Security Grant for the Bozeman Fire Department State Hazardous Materials Grant Routing Form.pdf State Hazardous Materials Grant Obligating Document for Award.pdf F.5 Authorize the City Manager to Sign a Notice of Award and Sign a Bid Purchase Agreement for One Year of Polymer for the Bozeman WRF with the Option of Two (2) Additional Years Upon Mutual Agreement of the City of Bozeman and Selected Vendor Neo-Solutions Notice to Award 2021.docx Purchase Agreement 2021-2023.docx Bid form.pdf F.6 Authorize the City Manager to Sign Temporary Construction Permits and Right-of-Way Documents with Marilyn Collins, with Four Ts Limited Partnership, and with Bart V. and Myrna H. Thompson for the Griffin Drive and Manley Road Street and Stormwater Improvements Project 20211012_P17_Marilyn Collins_for City signature.pdf 20211012_P13_Four Ts Limited Partnership_for City signature.pdf 20211012_P31_Vance and Myrna Thompson_for City signature.pdf F.7 Authorize City Manager to Sign a Professional Services Agreement with Morten Group, LLC for Facilitation of the Community Roundtable on Equity & Inclusion PSA_Community Roundtable facilitation Morten Group LLC.pdf F.8 Authorize the City Manager to Sign a Professional Services Agreement with Burn & McDonnell for Solid Waste Recycling and Compost Evaluation and Rate Model Update Recycling & Organics Feasibility Study PSA.docx City of Bozeman Cost of Service and Recycling and Organics Feasibility Study Update Proposal - September 2021.pdf 36 Bozeman City Commission Meeting Minutes, October 12, 2021 Page 3 of 5 F.9 Authorize the City Manager to Sign a Professional Services Agreement and Task Order 1 with Baker Tilly for Housing and Economic Development Project Financial Analysis and Related Services Baker Tilly Term Contract PSA 21-26.docx Task_Order_1.pdf F.10 Authorize the City Manager to Sign Task Order 2 and Task Order 3 with Economic and Planning Systems, Inc. (EPS) for Advice on Policies and Practices Related to Applications for Tax Increment Financing Assistance, and Professional Services Concerning Economic Development and Community Housing on a Time and Materials Basis EPS Task Order 2 Form.docx EPS Task Order 3 Form.docx EPS 2021 Denver.pdf Bridge ED Fees 2021.pdf Agency Billing Rates.pdf F.11 Authorize the City Manager to Sign Task Order EDD21-003 with Sanderson Stewart for Design of Railroad Crossing Improvements Related to Quiet Zones at North Rouse Avenue and North Wallace Avenue URD Task Order Form EDD21-003 Railroad Crossing Design.docx EDD21-003_Railroad Crossing Design_SOW_071621.docx F.12 Authorize the City Manager to Sign Task Order MID 21-004 with Sanderson Stewart for Engineering Services on the N. 5th Ave. Sewer Project MID21-004_Aspen & 5th Addl CA_SOW_071621.pdf URD Task Order Form MID21-004 Aspen & 5th Addl CA.docx F.13 Resolution 5343 Intent to Consider the Mountains Walking Growth Policy Amendment to Amend the Future Land Use Map from Urban Neighborhood to Community Commercial Mixed Use at Property Addressed as 414 N Plum Avenue and Legally Described as Lots 18, 19, & 20, Block 50, of the Northern Pacific Addition 21318 Mountains Walking GPA Resolution of Intent.pdf GPA Development Review Application (Form A1) 2021_07_29.pdf GPANarrativeAndFigures_08032021.pdf GPAExhibitOfProperty_08032021.pdf GPAFutureLandUseMap_08032021.pdf F.14 Resolution 5344 Intent to Consider the South 3rd Growth Policy Amendment to Modify the Future Land Use Map from Public Institutions to Urban Neighborhood, Addressed at 2303 South 3rd Avenue, Application 19309 21309 S 3rd Resolution of Intent 5344.pdf F.15 Resolution 5347 Authorizing the Use of an Alternative Project Delivery Contract for a General Contractor / Construction Manager for Preconstruction and Construction Services for the Bozeman Public Library Expansion Commission Resolution 5347.docx 37 Bozeman City Commission Meeting Minutes, October 12, 2021 Page 4 of 5 00:12:13 City Manager Introduction CM Mihelich provided the highlights of the Consent Agenda. 00:16:04 Public Comment 00:17:29 Emily Talago, Public Comment Emily Talago commented on Consent Item 11 and the funding for construction related to the railroad crossings. She commented on the substantial safety improvements required for quiet zones and is not convinced it is in the best interest or where the funds will come from. 00:21:13 Motion to approve Consent items 1-15 as submitted. Christopher Coburn: Motion I-Ho Pomeroy: 2nd 00:21:24 Vote on the Motion to approve Consent items 1-15 as submitted. The Motion carried 5 – 0. Approve: Cyndy Andrus Terry Cunningham I-Ho Pomeroy Jennifer Madgic Christopher Coburn Disapprove: None G) 00:21:29 Public Comment There were no general public comments. H) 00:24:36 Mayoral Proclamation H.1 Proclaiming Indigenous Peoples' Day Proclamation for Indigenous Peoples' Day.docx Mayor Andrus issued a proclamation for Indigenous Peoples' Day. I) 00:27:52 Special Presentation I.1 One Valley Housing Report Bridget Wilkinson, Executive Director and Tanya Andreasen, Community Engagement Manager, presented the background and mission of One Valley Community Foundation and the Housing Report. J) 00:42:36 FYI / Discussion 38 Bozeman City Commission Meeting Minutes, October 12, 2021 Page 5 of 5 K) 00:43:02 Adjournment ___________________________________ Cynthia L. Andrus Mayor ATTEST: ___________________________________ Mike Maas City Clerk PREPARED BY: ___________________________________ Mike Maas City Clerk Approved on: October 26, 2021 39 Memorandum REPORT TO:City Commission FROM:Laurae Clark, Treasurer Kristin Donald, Finance Director SUBJECT:Approval of Depository Bonds and Pledged Securities as of September 30, 2021 MEETING DATE:October 26, 2021 AGENDA ITEM TYPE:Finance RECOMMENDATION:Approve the depository bonds and pledged securities as of September 30, 2021. 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: 17-6-102. Insurance on deposits. (1) Deposits in excess of the amount insured by the federal deposit insurance corporation or the national credit union administration may not be made unless the bank, building and loan association, savings and loan association, or credit union first delivers to the state treasurer or deposits in trust with some solvent bank, as security therefore, bonds or other obligations of the kinds listed in 17-6-103, having a market value equal to at least 50% of the amount of the deposits in excess of the amount insured. The board of investments may require security of a greater value. When negotiable securities are placed in trust, the trustee's receipt may be accepted instead of the actual securities if the receipt is in favor of the state treasurer, successors in office, and the state of Montana and the form of receipt and the trustee have been approved by the board of investments. (2) Any bank, building and loan association, savings and loan association, or credit union pledging securities as provided in this section may at any time substitute securities for any part of the securities pledged. The substituted collateral must conform to 17-6-103 and have a market value at least sufficient for compliance with subsection (1). If the substituted securities are held in trust, the trustee shall, on the same day the substitution is made, forward by registered or certified mail to the state treasurer and to the depository financial institution a receipt specifically describing and identifying both the securities substituted and those released and returned to the depository financial institution. 40 Section 7-6-207 (2), MCA, requires the City Commission to approve pledged securities at least quarterly. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the City Commission FISCAL EFFECTS:The City is sufficiently pledged. Attachments: Depository Bonds & Securities 0921.pdf Report compiled on: October 5, 2021 41 DEPOSITORY BONDS AND SECURITIES AS OF September 30, 2021 MATURITY CUSIP NO/LOC NO. TOTAL AMOUNT US BANK All Accounts Federal Deposit Insurance Corporation-Operating Accts $ 250,000.00 Federal Deposit Insurance Corporation-CD $ 250,000.00 LOC-FHLB Cincinnati 10/15/2021 554672 $ 17,000,000.00 TOTAL – US Bank $ 17,500,000.00 FIRST SECURITY BANK All Accounts Federal Deposit Insurance Corporation $ 250,000.00 Celina TX ISD REF GO UNLTD BD 08/15/2033 151145NX3 $ 1,185,000.00 Celina TX ISD REF GO UNLTD BD 08/15/2034 151145NY1 $ 1,235,000.00 TOTAL - First Security Bank $ 2,670,000.00 This is to certify that we, the Commission of the City of Bozeman, in compliance with the provisions of Section 7-6- 207, M.C.A., have this day certified the receipts of the First Security Bank and US Bank, for the Depository Bonds held by the Director of Finance as security, for the deposit for the City of Bozeman funds as of September 30, 2021, by the banks of Bozeman and approve and accept the same. _____________________________________________ CYNTHIA L. ANDRUS, Mayor _______________________________________ _______________________________________ TERRY CUNNINGHAM, Deputy Mayor I-HO POMEROY, Commissioner _______________________________________ _______________________________________ CHRISTOPHER COBURN, Commissioner JENNIFER MADGIC, Commissioner 42 PLEDGED SECURITIES AND CASH IN BANK As of September 30, 2021 US BANK Total Cash and CD's on Deposit $5,580,145.43 FDIC Coverage $500,000.00 Amount Remaining $5,080,145.43 Pledges Required 104% $5,283,351.25 Actual Pledges $17,000,000.00 Over (Under) Pledged $11,716,648.75 FIRST SECURITY BANK CD's $2,039,059.96 FDIC Coverage $250,000.00 Amount Remaining $1,789,059.96 Pledges Required 50% $894,529.98 Actual Pledges $2,420,000.00 Over (Under) Pledged $1,525,470.02 REFERENCE: Section 7-6-207, M.C.A. 43 Memorandum REPORT TO:City Commission FROM:Jesse DiTommaso, Deputy City Clerk Mike Maas, City Clerk Jeff Mihelich, City Manager SUBJECT:Formal Cancellation of the November 2, 2021 City Commission Meeting MEETING DATE:October 26, 2021 AGENDA ITEM TYPE:Citizen Advisory Board/Commission RECOMMENDATION:Approve the formal cancellation of the November 2, 2021 City Commission Meeting. STRATEGIC PLAN:1.1 Outreach: Continue to strengthen and innovate in how we deliver information to the community and our partners. BACKGROUND:The City has decided to cancel the City Commission meeting due to the Municipal Election on November 2, 2021. UNRESOLVED ISSUES:None ALTERNATIVES:As determined by the City Commission FISCAL EFFECTS:None Report compiled on: October 18, 2021 44 Memorandum REPORT TO:City Commission FROM:Jeff Mihelich, City Manager Greg Sullivan, City Attorney Jennifer A. Giuttari, Assistant City Attorney Mike Maas, City Clerk SUBJECT:Authorize the Mayor to Sign the Agreement to Terminate Pedestrian-Traffic Safety Committee Inter-Local Cooperative Agreement MEETING DATE:October 26, 2021 AGENDA ITEM TYPE:Agreement - Legal RECOMMENDATION:Authorize the Mayor to sign the Agreement to Terminate Pedestrian-Traffic Safety Committee Inter-Local Cooperative Agreement. 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 Pedestrian-Traffic Safety Committee ("PTSC") is an Advisory Board that was established on December 22, 1976 when the the Bozeman High School District and School District No. 7 ("District"), Gallatin County, and the City entered into an Inter-Local Agreement. The purpose of the PTSC is threefold: 1) to solve problems of pedestrian-traffic safety in a coordinated manner; 2) to develop expertise within the City, the District, and the County on pedestrian-traffic safety issues; and 3) to promote public safety and to reduce deaths, injuries, and property losses resulting from traffic accidents. On August 10, 2021 the City Commission voted to consolidate the City's Advisory Boards. The Staff proposal for board consolidation included a recommendation for the City Commission to rescind and terminate the PTSC Inter-Local Agreement, and, should the City of Bozeman qualify as a Metropolitan Planning Organization ("MPO"), to refer the functions of the PTSC to the MPO upon its creation. On September 27, 2021 the District voted to rescind the PTSC Inter-Local Agreement, and on October 19, 2021, the County also voted in favor of rescission. As a result , the District and the County will both sign the Agreement to Terminate Pedestrian-Traffic Safety Committee Inter-Local Cooperative Agreement. As of the date of this Memo, the City Clerk's Office 45 has yet to receive a signed copy from either party. The City's signing of the Agreement to Terminate Pedestrian-Traffic Safety Committee Inter-Local Cooperative Agreement is necessary for the City's board consolidation to be fully perfected and for the the Agreement to Terminate Pedestrian-Traffic Safety Committee Inter-Local Cooperative Agreement to be fully executed. UNRESOLVED ISSUES:None identified. ALTERNATIVES:Not applicable. FISCAL EFFECTS:Not applicable. Attachments: PTSC Termination Agreement.pdf Report compiled on: October 19, 2021 46 PTSC Termination Agreement -1- AGREEMENT TO TERMINATE PEDESTRIAN-TRAFFIC SAFETY COMMITTEE INTER-LOCAL COOPERATIVE AGREEMENT THIS TERMINATION AGREEMENT to rescind the Pedestrian-Traffic Safety Committee Inter-Local Cooperative Agreement is made and entered into this _____ day of ____________, 2021, 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,” the BOZEMAN HIGH SCHOOL DISTRICT and SCHOOL DISTRICT NO. 7 of Gallatin County, Montana, with a mailing address of P.O. Box 520, Bozeman, MT 59771, hereinafter referred to as the “District,” and GALLATIN COUNTY OF MONTANA, with a mailing address of 311 West Main Street #306, Bozeman MT 59715, hereinafter referred to as the “County,” and hereinafter all collectively referred to as the “Parties.” 1. Purpose. The purpose of this Termination Agreement is to rescind and terminate the Pedestrian-Traffic Safety Committee Inter-Local Agreement (“Inter-Local Agreement”) that was made and entered into on December 22, 1976 between the City, the District, and the County. See attached Exhibit A. 2. Mutual Rescission. The City, the District, and the County mutually agree to rescind the Inter-Local Agreement, and thereby discharging all remaining duties, obligations, and functions, and terminating the Inter-Local Agreement. 3. Mutual Consent. The City, the District, and the County consent to this Termination Agreement freely, mutually, and communicated by each to the other, as required by law. 4. Effective Date. This Termination Agreement is effective on November 30, 2021 at 11:59pm. 5. Members’ Terms Expiration Date. The terms of each Parties’ appointees terminate on November 30, 2021 at 11:59am. 6. Assumption of Duties, Obligations, and Functions. Upon the termination dates set forth in Paragraphs 4 and 5 of this Termination Agreement, all duties, obligations, and functions established in the Inter-Local Agreement will be assumed by the City of Bozeman’s Transportation Board. See Resolution 5326 (Aug. 10, 2021). 7. Applicable Law. The parties agree that this Termination Agreement is made pursuant to Mont. Code Ann. §§ 7-11-101–108; 28-2-1701–1716 (2019), and all other relevant laws of the State of Montana. 47 PTSC Termination Agreement -2- 8. Binding Effect/Filing. This Termination Agreement is binding upon, and inures to, the benefit of the heirs, legal representatives, successors, and assigns of the parties. This Termination Agreement must be filed with the Gallatin County Clerk and Recorder and the Montana Secretary of State, as required by Mont. Code Ann. § 7-11-107. 9. 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. ___________________________ ________________ Mayor of Bozeman Date ____________________________ ________________ Chair of County Commissioners Date _____________________________ ________________ Chair of Bozeman School District Date 48 Memorandum REPORT TO:City Commission FROM:Karl Johnson, Engineer I Scott Shirley, Interim Public Works Director SUBJECT:Authorize the City Manager to Sign a Utility Easement with One 11 Lofts Owner, LLC for the One 11 Lofts SP (20456) MEETING DATE:October 26, 2021 AGENDA ITEM TYPE:Agreement - Property RECOMMENDATION:Authorize the City Manager to sign a Utility Easement with One 11 Lofts Owner, LLC for the One 11 Lofts SP (20456). STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:Attached are copies (original to City Clerk) of the partially executed agreements. Engineering staff reviewed the documents and found them to be acceptable. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:None Attachments: Utility Easement Report compiled on: October 7, 2021 49 50 51 52 53 Memorandum REPORT TO:City Commission FROM:Taylor Lonsdale, Transportation Engineer Scott Shirley, Director of Public Works SUBJECT:Authorize the City Manager to Sign a Letter of Concurrence with the Findings of the MDT Speed Study for MT-86 (Bridger Drive) MEETING DATE:October 26, 2021 AGENDA ITEM TYPE:Administration RECOMMENDATION:Authorize the City Manager to sign a letter of concurrence with the findings of the MDT speed study for MT-86 (Bridger Drive). STRATEGIC PLAN:1.3 Public Agencies Collaboration: Foster successful collaboration with other public agencies and build on these successes. BACKGROUND:Th Montana Department of Transportation (MDT) conducted a speed study on MT-86. Engineering is in agreement with the findings and recommendations as presented in the attached MDT memo and recommends the Commission authorize the City Manager to sign the attached letter. UNRESOLVED ISSUES:None. ALTERNATIVES:None identified or recommended. FISCAL EFFECTS:None. Attachments: 20211019_MDT Bridger Drive Speed study_letter.pdf 20200702_MT 86-Bridger Dr_speed study.pdf Report compiled on: September 9, 2021 54 October 26, 2021 William Fogarty MDT – Butte District Administrator 3751 Wynne PO Box 3068 Butte, MT 59702 RE: MT-86/Bridger Drive Speed Study Dear Mr. Fogarty: Thank you for forwarding the referenced speed study to the City of Bozeman for comments or concurrence. The City of Bozeman agrees with the results and recommendations from the study along Bridger Drive (MT 86) from Griffin Drive to the east city limit boundary. Given the recent development of Story Mill Community Park on the south side of Bridger Drive between Griffin Drive and Story Mill Road as well as increasing commercial and residential development on the north side of Bridger Drive through this stretch, we are concerned with the speeds that are recorded in the area. We have seen an increase in pedestrian crossings at Bridger Center Drive and Birdie Drive that appear to be associated with Story Mill Community Park. As stated in the report, “Within their respective boundaries the 35 mph and 45 mph speed zones along the study segment are consistently below the 85th percentile speeds and the upper limit of the pace.” We recognize that current land use and speeds may not currently indicate a reduced speed limit in the area of the park but we ask that you consider the potential need for a reduced speed limit in the near future and consider improved pedestrian crossings for park users. Given the current data, we concur with the findings of the study and the recommendation for no changes in the speed limit configuration. Thank you for your consideration, City of Bozeman, City Manager and Commission __________________________________________ Jeff Mihelich, City Manager 55 56 57 58 59 60 Memorandum REPORT TO:City Commission FROM:Taylor Lonsdale, Transportation Engineer Scott Shirley, Director of Public Works SUBJECT:Authorize the City Manager to Sign a Letter Recommending Changes to the Findings of the MDT Speed Study for South 19th Avenue MEETING DATE:October 26, 2021 AGENDA ITEM TYPE:Administration RECOMMENDATION:Authorize the City Manager to sign a letter recommending changes to the findings of the MDT speed study for South 19th Avenue. STRATEGIC PLAN:1.3 Public Agencies Collaboration: Foster successful collaboration with other public agencies and build on these successes. BACKGROUND:At the request of the City, the Montana Department of Transportation (MDT) conducted a speed study on t South 19th Avenue. Any changes to the speed limits on S 19th Avenue need to be approved by the state Transportation Committee. MDT asked the city to provide comments on the study. Engineering staff reviewed the attached memo which summarizes the findings and recommendations. The study covered the entirety of S 19th Avenue from Main Street to Cottonwood Road. Based on current and anticipated development, engineering recommends that the city request changes to the speed zones identified in the memo. Engineering recommends extending the 40 mph speed limit through the intersection of S 19th Ave and W Graf St. Engineering recommends the Commission authorize the City Manager to sign the attached letter requesting those changes. UNRESOLVED ISSUES:None. ALTERNATIVES:None identified or recommended. FISCAL EFFECTS:None. Attachments: 20210218_S19thAve_speed study.pdf 20211019_MDT S19th Ave Speed study_letter.pdf Report compiled on: October 14, 2021 61 62 63 64 65 66 67 68 69 October 26, 2021 William Fogarty MDT – Butte District Administrator 3751 Wynne PO Box 3068 Butte, MT 59702 RE: Speed Limit Recommendation, South 19th Avenue – U1201 and S-345 Dear Mr. Fogarty: Thank you for forwarding the referenced speed study to the City of Bozeman and asking for comments or concurrence. The City of Bozeman generally agrees with the results and recommendations of the study. However, the City of Bozeman requests that MDT consider extending the proposed 40mph speed zone to the south side of the intersection with Graf Street. There is significant recent and proposed development along South 19th Avenue between Stucky Road and Graf Street, including high density residential development that accesses South 19th Avenue at Arnold Street. In addition to this recently constructed access at Arnold Street, the through and right turn lane for southbound traffic at Graf St is heavily used for right turns. We feel that the combination of some vehicles accelerating to a higher speed limit and other vehicles slowing for right turns should be avoided by extending the 40 mph zone south of Graf Street. Thank you for your consideration, City of Bozeman, City Manager and Commission __________________________________________ Jeff Mihelich, City Manager 70 Memorandum REPORT TO:City Commission FROM:Adam Oliver, Stormwater Program Manager Scott Shirley, Director of Public Works SUBJECT:Authorize the City Manager to Sign an Indefinite Land Lease Agreement with Montana Rail Link to Facilitate the Construction and Long-term Operation of the Manley Ditch MEETING DATE:October 26, 2021 AGENDA ITEM TYPE:Agreement - Property RECOMMENDATION:Authorize the City Manager to sign an indefinite land lease agreement with Montana Rail Link to facilitate the construction and long-term operation of the Manley Ditch. STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:The Manley Ditch Rehabilitation (Project) includes the restoration of a historical drainage ditch that conveys stormwater from a 58-acre drainage basin to the Cherry Creek Fishing Access. Staff has coordinated with stakeholders and underlying property owners to acquire necessary easements and permissions to facilitate the work. The Project’s permitting and design stage is nearing completion, and the execution of this indefinite land lease agreement with Montana Rail Link will allow the remaining easements to be finalized. UNRESOLVED ISSUES:None. ALTERNATIVES:None identified or recommended. FISCAL EFFECTS:The Commission approved the Project (CIP#: STUO01) as a part of the FY20 Budget adoption process and allocated additional funds in FY21 as the scale of the project was realized. This indefinite land lease is a necessary step in completing this capital project. The lease has a cost of $37.00 annually in addition to the direct costs required to design, construct and maintain the Project. Attachments: 20211026_MRL lease agreement_for city signature.pdf Report compiled on: October 14, 2021 71 72 Indefinite Term Lease – Land MRL Form 405 February 2015 Page 1 INDEFINITE TERM LEASE LAND NO. 502,160 02BOZEMAN THIS INDEFINITE TERM LEASE FOR LAND ("Lease") is dated as of the 1st day of May, 2021 (the "Effective Date") between MONTANA RAIL LINK, INC., a Montana corporation ("Lessor"), whose mailing address is PO Box 16624, Missoula, MT 59808-6624 and physical address is 101 International Way, Missoula, MT 59808 and; CITY OF BOZEMAN, ("Lessee") whose address is 121 N. ROUSE AVE. PO BOX 1230 BOZEMAN, MT 59771 RECITALS A. Lessor is in the railroad transportation business and leases a system of rail tracks ("Lessor's Track(s)") and various real properties associated therewith from BNSF Railway Company, a Delaware corporation ("BNSF"), pursuant to that certain Agreement between Lessor and BNSF dated July 21, 1987 ("Master Lease"), including the Property described below which Lessee desires to further lease from Lessor. B. Lessor has agreed to lease to Lessee the Property, subject to the terms, conditions and limitations provided herein. AGREEMENTS In consideration of the mutual covenants herein, Lessor and Lessee hereby agree as follows: Section 1. Property, Term and Master Lease. A. Lessor leases to Lessee and Lessee rents from Lessor, subject to the covenants, agreements, terms, provisions and conditions of this Lease, that certain parcel of real property situated in the City of Bozeman, County of Gallatin, State of Montana, Mile Post 141+3712, Survey Station 7482+12, as shown on the plat, dated February 15, 2021 a copy of which is attached hereto as Exhibit "A" and made a part hereof ("Property"). B. Lessee leases the Property from Lessor beginning May 1, 2021 ("Commencement Date"), and shall continue until terminated by either party as provided in this Section 1(B). This Lease may be terminated by either party, at any time, without cause, for convenience, by serving upon the other party written notice of termination at least thirty (30) days in advance. Upon termination, this Lease and all rights of Lessee shall absolutely cease. C. Upon termination, either (i) Lessor may retain from prepaid rent, as an additional charge for use of the Property, a sum equal to three (3) months Rent (as defined below), and any unearned portion of the annual Rent, in excess of such retainage, paid in advance shall be refunded to Lessee or (ii) if Lessor has not been paid sufficient Rent to satisfy the above retainage, then Lessee shall pay Lessor a sufficient sum so that, together with sums already held by Lessor, Lessor shall hold a sum equal to three (3) months Rent which Lessor shall retain as an additional charge for use of the Property, and such additional sum shall be paid by Lessee within thirty (30) days of termination of the Lease. D. Each consecutive twelve-month period this Lease is in effect, beginning with the Effective Date of this Lease, is herein called a "Lease Year." E. Lessee acknowledges that it is assuming all risks associated with Lessor's right to terminate this Lease at any time as provided above, and (i) Lessor gives no assurance that Lessor will delay termination of this Lease for any length of time whatsoever, (ii) Lessee may expend money and effort during the term of this Lease which may not ultimately be of any benefit to Lessee if Lessor terminates this Lease, but nonetheless, Lessor shall have the right to terminate the Lease if Lessor determines in its sole and absolute discretion that Lessor desires to terminate, and (iii) in no event shall Lessor be deemed to have any legal obligations to continue to lease the Property for any length of time. 73 Indefinite Term Lease – Land MRL Form 405 February 2015 Page 2 F. This Lease is subject and subordinate to the Master Lease. BNSF hereby agrees by its signature below to recognize Lessee’s rights under this Lease, if, prior to the termination of this Lease, or to the expiration of the term of this Lease, the term of the Master Lease expires, the Master Lease is terminated or BNSF reenters and repossesses the Property after a default by Lessor under the Master Lease. If BNSF succeeds to the rights of Lessor as the "Lessor" under this Lease, Lessee agrees that (i) BNSF shall not be liable or responsible for any breach of or default under this Lease arising prior to the date that BNSF succeeds to the rights of Tenant as the "Lessor" under this Lease; (ii) BNSF shall not be required to cure or correct any breach or default under this Lease arising prior to the date that BNSF succeeds to the rights of Lessor as the "Lessor" under this Lease; and (iii) no breach of or default under this Lease arising prior to the date that BNSF succeeds to the rights of Lessor as the "Lessor" under this Lease shall excuse, delay, release or relieve Lessee from the payment and performance of all of Lessee’s duties and obligations under this Lease. The preceding sentence is not intended and shall not be construed to affect any rights or remedies of Lessee against Lessor arising or resulting from a breach of or default under this Lease by Lessor prior to the date that BNSF succeeds to the rights of Lessor as the "Lessor" under this Lease. If BNSF succeeds to the rights of Lessor as the "Lessor" under this Lease, Lessee agrees to recognize BNSF as the "Lessor" under this Lease and timely tender payment and performance of Lessee’s duties and obligations under this Lease to BNSF as if BNSF were named as "Lessor" in this Lease. Section 2. Use and Compliance. A. Lessee may use the Property for the sole and exclusive purpose of a historical municipal open channel storm drainage system conveying stormwater runnoff to the Cherry Creek Fishing Access referred to as the Manley Ditch and for no other purpose without the prior written consent of Lessor. Lessee shall respond to Lessor's reasonable inquiries regarding the use or condition of the Property. B. Lessee shall comply with all Laws applicable to Lessee, the Property, this Lease and Lessee’s activities and obligations hereunder, and shall have the sole responsibility for costs, fees, or expenses associated with such compliance. As used herein, the term "Laws" shall mean any and all statutes, laws, ordinances, codes, rules or regulations or any order, decision, injunction, judgment, award or decree of any public body or authority having jurisdiction over Lessee, the Property, this Lease, and/or Lessee’s obligations under this Lease, and shall include all Environmental Laws (as defined in Section 4(A)). C. If any governmental license or permit is required or desirable for the proper and lawful conduct of Lessee's business or other activity in or on the Property, or if the failure to secure such a license or permit might in any way affect Lessor or BNSF, then Lessee, at Lessee's expense, shall procure and thereafter maintain such license or permit and submit the same to inspection by Lessor. Lessee, at Lessee's expense, shall at all times comply with the requirements of each such license or permit. Section 3. Rent. A. Lessee shall pay as rental for the Property, in advance, an amount equal to Thirty Seven Dollars ($37.00) annually ("Rent"). Lessor may, in its sole discretion, adjust the Rent annually to reflect a then current fair market rental value. Billing or acceptance by Lessor of any rental shall not imply a definite term or otherwise restrict either party from canceling this Lease as provided herein. Either party hereto may assign any receivables due it under this Lease; provided, however, such assignments shall not relieve the assignor of any of its rights or obligations under this Lease. All Rent and other monetary payments under this Lease from Lessee to Lessor shall be delivered solely to the following address: Montana Rail Link, Inc. PO Box 16624 Missoula, MT 59808 Lessor shall have the right to designate at any time and from time to time a different address for delivery of such payments by written notice to Lessee pursuant to the notice provisions of Section 36 below. No Rent or other payment sent to any other address shall be deemed received by Lessor unless and until Lessor has actually posted such payment as received on the account of Lessee, and Lessee shall be subject to all default provisions hereunder, late fees and other consequences as a result thereof in the same manner as if Lessee had failed or delayed in making any payment. B. Lessee acknowledges that Lessor utilizes the rental collection system involving direct deposit of monies received through a financial institution selected by Lessor, which precludes Lessor's ability to exercise rejection of a rental payment before Lessee's check is cashed. Lessee agrees that as a condition of Lessor granting this Lease Lessee hereby waives any rights it may have under law to force continuation of this Lease due to Lessor having accepted and 74 Indefinite Term Lease – Land MRL Form 405 February 2015 Page 3 cashed Lessee's rental remittance. Lessor shall have the option of rejecting Lessee's payment by refunding to Lessee the rental amount paid by Lessee, adjusted as set forth in this Lease, and enforcing the termination provisions of this Lease. C. Lessee shall pay the Rent and all additional amounts due pursuant to Section 9 as and when the same become due and payable, without demand, set-off, or deduction. Lessee's obligation to pay Rent and all amounts due under this Lease is an independent covenant and no act or circumstance, regardless of whether such act or circumstance constitutes a breach under this Lease by Lessor, shall release Lessee of its obligation to pay Rent and all amounts due as required by this Lease. D. If any Rent or any payment under Section 9 or any other payment due by Lessee hereunder is not paid within five (5) days after the date the same is due, Lessor may assess Lessee a late fee ("Late Fee") in an amount equal to 5% of the amount which was not paid when due to compensate Lessor for Lessor's administrative burden in connection with such late payment. In addition to said Late Fee, Lessee shall pay interest on the unpaid sum from the due date thereof to the date of payment by Lessee at an annual rate equal to (i) the greater of (a) for the period January 1 through June 30, the prime rate last published in The Wall Street Journal in the preceding December plus two and one-half percent (2 1/2%), and for the period July 1 through December 31, the prime rate last published in The Wall Street Journal in the preceding June plus two and one-half percent (2 1/2%), or (b) twelve percent (12%), or (ii) the maximum rate permitted by law, whichever is less. Section 4. Environmental. A. Lessee shall strictly comply with all federal, state and local environmental laws and regulations in its occupation and use of the Property, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Clean Air Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, and CERCLA (collectively referred to as the "Environmental Laws"). Lessee shall not maintain any treatment, storage, transfer or disposal facility, or underground storage tank, as defined by Environmental Laws, on the Property. Lessee shall not release or suffer the release of oil or hazardous substances, as defined by Environmental Laws, on or about the Property. B. Lessee shall give Lessor immediate notice to Lessor's Manager of Environmental Projects at 406.523.1415 and to BNSF's Resource Operations Center at 800.832.5452 of any release of hazardous substances on or from the Property and to Lessor's Manager of Environmental Projects at 406.523.1415, Lessor’s Real Estate Department promptly in writing, and to BNSF's Manager Environmental Leases at 785.435.2386 for any violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Lessee's use of the Property. Lessee shall use its best efforts to promptly respond to any release on or from the Property. Lessee also shall give Lessor's Manager of Environmental Projects, Lessor’s Real Estate Department and BNSF's Manager Environmental Leases immediate notice of all measures undertaken on behalf of Lessee to investigate, remediate, respond to or otherwise cure such release or violation and shall provide to Lessor's Manager of Environmental Projects, Lessor’s Real Estate Department and BNSF's Manager Environmental Leases copies of all reports and/or data regarding any investigations or remediations of the Property. C. In the event that Lessor and/or BNSF have notice from Lessee or otherwise of a release or violation of Environmental Laws on the Property which occurred or may occur during the term of this Lease, Lessor and BNSF may require Lessee, at Lessee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Property or Lessor's right-of-way. D. Lessee shall promptly report to Lessor and BNSF in writing any conditions or activities upon the Property which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Lessee's reporting to Lessor and BNSF shall not relieve Lessee of any obligation whatsoever imposed on it by this Lease. Lessee shall promptly respond to Lessor’s and/or BNSF's request for information regarding said conditions or activities. E. Hazardous Materials are not permitted on the Property except as otherwise described herein. Lessee expects to use on the Property the following Hazardous Materials: none, and to store on the Property the following Hazardous Materials (as defined in Section 4(F) below): none; provided, however, that Lessee may only use and store the listed Hazardous Materials in such amounts as are necessary and customary in Lessee's industry for the permitted uses hereunder ("Permitted Substances"). All such Permitted Substances shall be placed, used, and stored in strict accordance with all Environmental Laws. Use or storage on the Property of any Hazardous Materials not disclosed in this Section 4(E) is a breach of this Lease. 75 Indefinite Term Lease – Land MRL Form 405 February 2015 Page 4 F. For purposes of this Section 4, "Hazardous Materials" means all materials, chemicals, compounds, or substances (including without limitation asbestos, petroleum products, and lead-based paint) identified as hazardous or toxic under Environmental Laws. G. Lessor or BNSF may, at its option prior to termination of this Lease, require Lessee to conduct an environmental audit of the Property through an environmental consulting engineer acceptable to Lessor or BNSF, at Lessee's sole cost and expense, to determine if any noncompliance or environmental damage to the Property has occurred during Lessee's occupancy thereof. The audit shall be conducted to Lessor's and BNSF satisfaction and a copy of the audit report shall promptly be provided to Lessor and BNSF for their review. Lessee shall pay all expenses for any remedial action that may be required as a result of said audit to correct any noncompliance or environmental damage, and all necessary work shall be performed by Lessee prior to termination of this Lease. Section 5. Access to Adjacent Property by Lessee. If access to and from the Property can be accomplished only through use of Lessor's property adjacent to the Property, such use is granted for ingress and egress only and on a non-exclusive basis, subject to such restrictions and conditions as Lessor may impose by notice to Lessee. Lessor shall have the right to designate the location or route to be used. Lessee understands and agrees that all of the obligations under this Lease applicable to Lessee shall also be applicable to Lessee with respect to Lessee's use of any property adjacent to the Property, including, without limitation, the indemnity provisions of Section 13. Notwithstanding anything to the contrary herein, this Section 5 shall not grant Lessee any right to cross any of Lessor's Tracks. Any such crossing rights may only be granted by a separate written agreement between Lessor and Lessee. Section 6. Access to Property by Lessor. A. Lessor and its contractors, agents and other designated third parties may at all reasonable times and at any time in case of emergency, in such manner as to not unreasonably interfere with Lessee's use of the Property as allowed hereunder, (i) enter the Property for inspection of the Property or to protect the interests of Lessor and BNSF in the Property or to protect from damage any property adjoining the Property, (ii) enter the Property to construct, maintain, and operate trackage, fences, pipelines, communication facilities, fiber optic lines, wireless towers, telephone, power or other transmission lines, or appurtenances or facilities of like character, upon, over, across, or beneath the Property; provided that Lessor and BNSF shall have no obligation to pay any sum for any damage, including damage to growing crops, (iii) take all required materials and equipment onto the Property, and perform all required work therein, for the purpose of making alterations, repairs, or additions to the Property as Lessor may elect if Lessee defaults in its obligation to do so, (iv) enter the Property to show the Property to holders of encumbrances on the interest of Lessor in the Property, or to prospective purchasers or mortgagees of the Property, and all such entries and activities shall be without any rebate of Rent to Lessee for any loss of occupancy of the Property, or damage, injury or inconvenience thereby caused. B. For purposes stated in this Section 6, Lessor will at all times have keys with which to unlock all of the doors and gates on the Property, and Lessee will not change or alter any lock thereon without Lessor's permission. C. In an emergency, Lessor will be entitled to use any and all means that Lessor may deem proper to open doors, gates, and other entrances to obtain entry to the Property. Any entry to the Property by Lessor as described in this Section 6 shall not under any circumstances be construed or deemed to be a forcible or unlawful entry into, or a detainer of, the Property, or any eviction of Lessee from the Property, and any damages caused on account thereof will be paid by Lessee. Section 7. Warranties. LESSOR DOES NOT WARRANT ITS LEASEHOLD INTEREST IN OR BNSF'S TITLE TO THE PROPERTY NOR UNDERTAKE TO DEFEND LESSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. This Lease is made subject to all outstanding rights or interests of others. If the Property is subsequently found to be subject to prior claim, this Lease shall terminate immediately on notice to that effect from Lessor. Lessee accepts this Lease subject to that possibility and its effect on Lessee’s rights and ownership of the Lessee Improvements. In case of eviction of Lessee by anyone other than Lessor, or anyone owning or claiming title to or any interest in the Property, Lessor and BNSF shall not be liable to Lessee for damage of any kind (including any loss of ownership right to Lessee's Improvements) or to refund any Rent paid hereunder, except to return the unearned portion of any Rent paid in advance. 76 Indefinite Term Lease – Land MRL Form 405 February 2015 Page 5 Section 8. Property Condition; Lessee Improvements. A. Lessee represents that the Property, the title thereto, any subsurface conditions thereof, and the present uses thereof have been examined by the Lessee. Lessee accepts the same in the condition in which they now are, without representation or warranty, expressed or implied, in fact or by law, by the Lessor, and without recourse to the Lessor and BNSF as to the title thereto, the nature, condition or usability thereof, or the uses to which the Property may be put. By taking possession or commencing use of the Property, Lessee (i) acknowledges that it is relying on its own inspections of the Property and not on any representations from Lessor regarding the Property; (ii) establishes conclusively that the Property is at such time in satisfactory condition and in conformity with this Lease and all zoning or other governmental requirements in all respects; and (iii) accepts the Property in its condition as of the Commencement Date on an "AS IS," "WHERE IS," and "WITH ALL FAULTS" basis, subject to all faults and infirmities, whether now or hereafter existing. Nothing contained in this Section 8 affects the commencement of the term of the Lease or the obligation of Lessee to pay Rent as provided above. Lessee represents and warrants to Lessor as follows: (i) Lessee does not intend to, and will not, use the Property for any purpose other than as set forth in Section 2; (ii) Lessee has previously disclosed in writing to Lessor all special requirements (but Lessor shall have no responsibility relative to any such special requirement), if any, which Lessee may have in connection with this intended use; and (iii) Lessee has undertaken and has reasonably and diligently completed all appropriate investigations regarding the suitability of the Property for Lessee’s intended use. Lessee shall comply with any covenants, conditions or restrictions now or hereafter affecting the Property, and acknowledges that Lessor may place any covenants, conditions or restrictions of record affecting the Property prior to or during the term of the Lease. In such event, this Lease will be subject and subordinate to all of the same without further action by either party, including, without limitation, the execution of any further instruments. Lessee acknowledges that Lessor has given material concessions for the acknowledgements and provisions contained in this Section 8, and that Lessor is relying on these acknowledgements and agreements and would not have entered into this Lease without such acknowledgements and agreements by Lessee. B. If initial improvements are necessary for Lessee's use of the Property, Lessee, at Lessee's sole cost and expense, shall, on or after the Commencement Date, construct and install such initial improvements to the Property which are necessary for Lessee's use of the Property and are acceptable to Lessor and BNSF in Lessor's and BNSF's sole discretion ("Lessee Improvements"). The construction and installation of any Lessee Improvements shall be subject to Lessor's and BNSF's prior written approval of plans and specifications for such Lessee Improvements to be prepared by Lessee and submitted to Lessor and BNSF for approval as set forth below, such approval to be in Lessor's and BNSF's sole and absolute discretion. Within forty-five (45) days after the Commencement Date, Lessee shall submit detailed plans and specifications, and the identity of Lessee's proposed general contractor for the Lessee Improvements for Lessor's and BNSF's review and approval. Lessor and BNSF shall either approve or disapprove the plans and specifications and general contractor (in their sole and absolute discretion) by written notice delivered to Lessee within sixty (60) days after receipt of the same from Lessee. In the event of any disapproval, Lessor and BNSF shall specify the reasons for such non-approval. If Lessor and BNSF fail to deliver notice to Lessee of Lessor's approval or disapproval of the plans, specifications, and proposed general contractor within the time period discussed above, Lessee's plans, specifications and proposed contractor shall be deemed disapproved. If Lessor or BNSF specifies objections to the plans and specifications or general contractor as herein provided and Lessor and Lessee or BNSF and Lessee are unable to resolve the objections by mutual agreement within a period of thirty (30) days from the date of delivery of written notice thereof, Lessee, as its sole remedy, to be exercised not later than ten (10) days after the expiration of said thirty (30) days period, may terminate this Lease by written notice to Lessor. Upon approval of the plans and specifications by Lessor and BNSF, Lessor, BNSF and Lessee shall sign the same, and they shall be deemed a part hereof. All Lessee Improvements shall be constructed and installed in accordance with the terms and conditions of Exhibit "B" attached to the Lease and all applicable terms and conditions of the Lease regarding alterations and improvements. Lessee shall not construct any other alteration or improvement to the Property without Lessor's Real Estate Department’s prior written consent and BNSF's prior written consent. The Lessee Improvements constructed pursuant to the above provisions shall be owned by Lessee during the term of the Lease and removed from the Property or surrendered to the Lessor pursuant to Section 20 below upon termination of this Lease. Section 9. Taxes and Utilities. A. In addition to Rent, Lessee shall pay all taxes, utilities, and other charges of every kind and character, whether foreseen or unforeseen, ordinary or extraordinary, which are attributable to the term of this Lease and may become due or levied against the Property, against Lessee, against the business conducted on the Property or against the Lessee Improvements placed thereon during the term hereof, even though such taxes, utilities or other charges may not become due and payable until after termination of this Lease provided; however, that Lessee shall only be responsible for the payment of property taxes levied against the Property to the extent such taxes are separately assessed by the applicable taxing authority as a result of this Lease. Lessee agrees that Lessor shall not be required to furnish to Lessee 77 Indefinite Term Lease – Land MRL Form 405 February 2015 Page 6 any utility or other services. If this Lease is a transfer of an existing lease, Lessee must make arrangements with the present lessee for payment of any delinquent and current taxes, utilities, and other charges prior to taking possession. If such arrangements are not made, Lessee agrees to pay all such taxes, utilities, and other charges. If Lessor should make any such payments, Lessee shall promptly upon demand reimburse Lessor for all such sums. B. Should the Property be subject to special assessment for public improvements in the amount of Five Hundred Dollars ($500.00) or less during any Lease Year, Lessee shall promptly reimburse Lessor the amount in full. Should the assessment exceed Five Hundred Dollars ($500.00) during any Lease Year then such excess shall be paid by Lessor, but the Rent herein shall be increased by an amount equal to twelve percent (12%) of such excess payable for each Lease Year such amounts are payable. Section 10. Track Clearance. A. Lessee shall not place, permit to be placed, or allow to remain, any permanent or temporary material, structure, pole, or other obstruction within (i) 8½ feet laterally from the centerline of any of Lessor's Tracks on or about the Property (nine and one-half (9-1/2) feet on either side of the centerline of any of Lessor's Tracks which are curved) or (ii) 24 feet vertically from the top of the rail of any of Lessor's Tracks on or about the Property ("Minimal Clearances"); provided that if any law, statute, regulation, ordinance, order, covenant or restriction ("Legal Requirement") requires greater clearances than those provided for in this Section 10, then Lessee shall strictly comply with such Legal Requirement. However, vertical or lateral clearances which are less than the Minimal Clearances but are in compliance with Legal Requirements will not be a violation of this Section 10, so long as Lessee strictly complies with the terms of any such Legal Requirement and posts a sign on the Property clearly noting the existence of such reduced clearance. Any such sign shall be painted with black and white reflective paint. B. Lessor's or BNSF's operation over any Lessor's Track on or about the Property with knowledge of an unauthorized reduced clearance will not be a waiver of the covenants of Lessee contained in this Section 10 or of Lessor's or BNSF's rights to recover for and be indemnified and defended against such damages to property, and injury to or death of persons, that may result therefrom. In addition to, and not in exclusion of, other provisions of this Lease, Lessor and Lessee hold BNSF harmless from liability occurring as a result of Lessor's provision of rail freight services over the Property. C. Lessee shall not place or allow to be placed any freight car within 250 feet of either side of any at-grade crossings on Lessor's Tracks. Section 11. Repairs; Maintenance. A. Lessee shall, at its sole expense, take good care of the Property (including all Lessee Improvements) and shall not do or suffer any waste with respect thereto and Lessee shall promptly make all necessary or desirable Repairs to the Property. The term "Repairs" means all reasonable repair and maintenance necessary to keep the Property (including all Lessee Improvements) in good condition and includes, without limitation, replacements, restoration and renewals when necessary. Lessee shall keep and maintain any paved areas, sidewalks, curbs, landscaping and lawn areas in a clean and orderly condition, and free of accumulation of dirt and rubbish. B. Lessor shall not have any liability or obligation to furnish or pay for any services or facilities of whatsoever nature or to make any Repairs or alterations of whatsoever nature in or to the Property, including but not limited to structural repairs, or to maintain the Property in any manner. Lessee acknowledges that Lessor shall have no responsibility for management of the Property. Section 12. Safety; Dangerous and Hazardous Conditions. It is understood by Lessee that the Property may be in dangerous proximity to railroad tracks, including Lessor's Tracks, and that persons and property, whether real or personal, on the Property will be in danger of injury, death or destruction incident to the operation of the railroad, including, without limitation, the risk of derailment, fire, or inadequate clearance (including sight clearance or vision obstruction problems at grade crossings on or adjacent to the Property), and Lessee accepts this Lease subject to such dangers, and acknowledges that its indemnification obligations hereunder extend to and include all such risks. Section 13. Indemnity. 78 Indefinite Term Lease – Land MRL Form 405 February 2015 Page 7 A. TO THE FULLEST EXTENT PERMITTED BY LAW, LESSEE SHALL RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS LESSOR, BNSF, BURLINGTON NORTHERN SANTA FE LLC AND EACH OF THE AFOREMENTIONED PARTIES' AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART): (i) THIS LEASE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS; (ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LEASE; (iii) LESSEE'S OCCUPATION AND USE OF THE PROPERTY; (iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PROPERTY CAUSED BY, AGGRAVATED BY, OR CONTRIBUTED IN WHOLE OR IN PART, BY LESSEE; OR (v) ANY ACT OR OMISSION OF LESSEE OR LESSEE'S OFFICERS, AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER, EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LESSEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES (1) TO THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE OR (2) WHOLLY CAUSED BY THE SOLE NEGLIGENCE OF AN INDEMNITEE. B. FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE LIMITATION IN SECTION 14A, LESSEE SHALL NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT AN INDEMNITEE IS AN "OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH RESPECT TO THE PROPERTY FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. LESSEE WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. LESSEE FURTHER AGREES THAT THE USE OF THE PROPERTY AS CONTEMPLATED BY THIS LEASE SHALL NOT IN ANY WAY SUBJECT ANY INDEMNITEE TO CLAIMS THAT ANY INDEMNITEE IS OTHER THAN A COMMON CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL LESSOR BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF THE PROPERTY. C. TO THE FULLEST EXTENT PERMITTED BY LAW, LESSEE FURTHER AGREES, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS’ LIABILITY ACT ("FELA") WHENEVER EMPLOYEES OF LESSEE OR ANY OF ITS AGENTS, INVITEES, OR CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE BOILER INSPECTION ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE. D. Upon written notice from any Indemnitee, Lessee agrees to assume the defense of any lawsuit or other proceeding brought against such Indemnitee by any entity, relating to any matter covered by this Lease for which Lessee has an obligation to assume liability for and/or save and hold harmless such Indemnitee. Lessee shall pay all costs incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation and appeal expenses, settlement payments, and amounts paid in satisfaction of judgments. Section 14. Equal Protection. 79 Indefinite Term Lease – Land MRL Form 405 February 2015 Page 8 It is agreed that the provisions of Sections 10, 12, and 13 are for the equal protection of other railroad companies, including, without limitation, the National Railroad Passenger Corporation (Amtrak), permitted to use Lessor's property, and such railroad companies shall be deemed to be included as Indemnitees under Sections 10, 12, and 13. Section 15. Assignment and Sublease. A. Lessee shall not (i) assign or otherwise transfer this Lease or any interest herein, or (ii) sublet the Property or any part thereof, without, in each instance, obtaining the prior written consent of Lessor and BNSF, which consent may be withheld in the sole and absolute discretion of Lessor and BNSF. For purposes of this Section 15, in the event that there are aggregate transfers or other changes in the ownership interests of Lessee resulting in a change of more than 20% of the ownership interests as held on the date hereof, a transfer shall be deemed to have occurred hereunder. Any person or legal representative of Lessee, to whom Lessee's interest under this Lease passes by operation of law, or otherwise, will be bound by the provisions of this Lease. B. Any assignment, lease, sublease or transfer made pursuant to Section 15(A) may be made only if, and shall not be effective until, the assignee cures all outstanding defaults of Lessee hereunder and executes, acknowledges and delivers to Lessor an agreement, in form and substance satisfactory to Lessor, whereby the assignee assumes the obligations and performance of this Lease and agrees to be personally bound by and upon all of the covenants, agreements, terms, provisions and conditions hereof on the part of Lessee to be performed or observed. Lessee covenants that, notwithstanding any assignment or transfer, whether or not in violation of the provisions of this Lease, and notwithstanding the acceptance of Rent by Lessor from an assignee or transferee or any other party, Lessee will remain fully and primarily liable along with the assignee for the payment of the Rent due and to become due under this Lease and for the performance of all of the covenants, agreements, terms, provisions, and conditions of this Lease on the part of Lessee to be performed or observed. Section 16. Liens. Lessee shall promptly pay, discharge and release of record any and all liens, charges and orders arising out of any construction, alterations or repairs, suffered or permitted to be done by Lessee on the Property. Lessor is hereby authorized to post any notices or take any other action upon or with respect to the Property that is or may be permitted by law to prevent the attachment of any such liens to the Property; provided, however, that failure of Lessor to take any such action shall not relieve Lessee of any obligation or liability under this Section 16 or any other Section of this Lease. Section 17. Insurance. Lessee shall, at its sole cost and expense, procure and maintain during the life of this Lease the following insurance coverage: A. All risks property insurance covering all of Lessee’s property including property in the care, custody or control of Lessee. Coverage shall include the following: ¨ Issued on a replacement cost basis. ¨ Shall provide that in respect of the interests of Lessor and BNSF the insurance shall not be invalidated by any action or inaction of Lessee or any other person and shall insure the respective interests of Lessor and BNSF as they appear, regardless of any breach or violation of any warranty, declaration or condition contained in such policies by Lessee or any other person. ¨ Include a standard loss payable endorsement naming Lessor and BNSF as the loss payee as its interests may appear. ¨ Include a waiver of subrogation in favor of Lessor and BNSF. B. Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of $1,000,000 each occurrence and an aggregate limit of at least $2,000,000. Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and include coverage for, but not limited to, the following: ¨ Bodily Injury and Property Damage ¨ Personal Injury and Advertising Injury ¨ Fire legal liability ¨ Products and completed operations 80 Indefinite Term Lease – Land MRL Form 405 February 2015 Page 9 This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance: ¨ The employee and workers compensation related exclusions in the above policy shall not apply with respect to claims related to railroad employees. ¨ The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. ¨ Any exclusions related to the explosion, collapse and underground hazards shall be removed. No other endorsements limiting coverage may be included on the policy. C. Business Automobile Insurance. This insurance shall contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to the following: ¨ Bodily injury and property damage ¨ Any and all vehicles owned, used or hired D. Workers Compensation and Employers Liability insurance including coverage for, but not limited to: ¨ Lessee’s statutory liability under the worker’s compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway. ¨ Employers’ Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. Other Requirements: All policies (applying to coverage listed above) shall contain no exclusion for punitive damages and certificates of insurance shall reflect that no exclusion exists. Lessee agrees to waive its right of recovery against Lessor and BNSF for all claims and suits against Lessor and BNSF. In addition, its insurers, through the terms of the policy or through policy endorsement, waive their right of subrogation against the Lessor and BNSF for all claims and suits. The certificate of insurance must reflect the waiver of subrogation endorsement. Lessee further waives its right of recovery, and its insurers also waive their right of subrogation against the Lessor and BNSF for loss of its owned or leased property or property under Lessee's care, custody or control. Lessee’s insurance policies through policy endorsement must include wording that states that the policy shall be primary and non-contributing with respect to any insurance carried by any Indemnitee. The certificate of insurance must reflect that the above wording is included in evidenced policies. All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective) shall include a severability of interest endorsement and shall name the Lessor and BNSF as additional insureds with respect to work performed under this Lease. Severability of interest and naming the Lessor and BNSF as additional insureds shall be indicated on the certificate of insurance. Lessee is not allowed to self-insure without the prior written consent of Lessor and BNSF. If granted by Lessor and BNSF, any deductible, self-insured retention or other financial responsibility for claims shall be covered directly by Lessee in lieu of insurance. Any and all liabilities of the Lessor and BNSF that would otherwise, in accordance with the provisions of this Lease, be covered by Lessee‘s insurance will be covered as if Lessee elected not to include a deductible, self-insured retention or other financial responsibility for claims. Prior to accessing the Property, Lessee shall furnish to Lessor an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments and referencing the contract audit/folder number if available. The policy(ies) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Lessor in writing at least 30 days prior to any cancellation, non- renewal, substitution or material alteration. This cancellation provision shall be indicated on the certificate of insurance. Upon request from Lessor, a certified duplicate original of any required policy shall be furnished. Any insurance policy shall be written by a reputable insurance company acceptable to Lessor with a current Best’s Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the Property is located. 81 Indefinite Term Lease – Land MRL Form 405 February 2015 Page 10 Lessee represents that this Lease has been thoroughly reviewed by Lessee’s insurance agent(s)/broker(s), who have been instructed by Lessee to procure the insurance coverage required by this Lease. Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above. Not more frequently than once every five years, Lessor and BNSF may reasonably modify the required insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance industry. If any portion of the operation is to be contracted by Lessee, Lessee shall require that the contractor shall provide and maintain insurance coverages as set forth herein, naming Lessor and BNSF as additional insureds, and shall require that the contractor shall release, defend and indemnify the Lessor and BNSF to the same extent and under the same terms and conditions as Lessee is required to release, defend and indemnify the Lessor and BNSF herein. Failure to provide evidence as required by this section shall entitle, but not require, Lessor to terminate this Lease immediately. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Lessee's obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by Lessee shall not be deemed to release or diminish the liability of Lessee including, without limitation, liability under the indemnity provisions of this Lease. Damages recoverable by the Lessor and BNSF shall not be limited by the amount of the required insurance coverage. For purposes of this section, BNSF shall mean "Burlington Northern Santa Fe LLC", "BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates of each. Section 18. Water Rights and Use of Wells. This Lease does not grant, convey or transfer any right to the use of water under any water right owned or claimed by the BNSF which may be appurtenant to the Property. All right, title, and interest in and to such water is expressly reserved unto BNSF, and the right to use same or any part thereof may be obtained only by the prior written consent of the BNSF. Lessee shall not use, install or permit to be installed or used any wells on the Property without the prior written consent of BNSF. Section 19. Default. A. An "Event of Default" by Lessee shall have occurred hereunder if any of the following shall occur: (i) if Lessee violates any safety provision contained in this Lease; (ii) if Lessee fails to pay Rent or any other monetary payment hereunder when due or fails to perform any other obligations under this Lease and such failure continues thirty (30) days after written notice from Lessor to Lessee of Lessee's failure to make such payment or perform such obligations; (iii) if a decree or order of a court having jurisdiction over the Property for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over Lessee or over all or a substantial part of the property of Lessee shall be entered; or if Lessee becomes insolvent or makes a transfer in fraud of creditors; or an interim receiver, trustee or other custodian of Lessee or of all or a substantial part of the property of Lessee shall be appointed or a warrant of attachment, execution, or similar process against any substantial part of the property of Lessee shall be issued and any such event shall not be stayed, dismissed, bonded or discharged within thirty (30) days after entry, appointment or issuance; (iv) if the Property is abandoned or vacated by Lessee. B. If an Event of Default occurs as provided above, Lessor may, at its option, (i) terminate this Lease by serving five (5) days notice in writing upon Lessee, in which event Lessee shall immediately surrender possession of the Property to Lessor, without prejudice to any claim for arrears of Rent or breach of covenant, (ii) proceed by appropriate judicial proceedings, either at law or in equity, to enforce performance or observance by Lessee of the applicable provisions of this Lease or to recover damages for a breach thereof, (iii) cure the default by making any such payment or performing any such obligation, as applicable, at Lessee's sole expense, without waiving or releasing Lessee from any obligation, or (iv) enter into and upon the Property or any part thereof and repossess the same without terminating the Lease and, without obligations to do so relet the Property or any part thereof as 82 Indefinite Term Lease – Land MRL Form 405 February 2015 Page 11 the agent of Lessee and in such event, Lessee shall be immediately liable to Lessor for all costs and expenses of such reletting, the cost of any alterations and repairs deemed necessary by Lessor to effect such reletting and the full amount, if any, by which the rentals reserved in this Lease for the period of such reletting exceeds the amounts agreed to be paid as Rent for the Property for the period of reletting. The foregoing rights and remedies given to Lessor are and shall be deemed to be cumulative and the exercise of any of them shall not be deemed to be an election excluding the exercise by Lessor at any time of a different or inconsistent remedy. If, on account of breach or default by Lessee of any of Lessee's obligations hereunder, it shall become necessary for the Lessor to employ an attorney to enforce or defend any of Lessor's rights or remedies hereunder, then, in any such event, any reasonable amount incurred by Lessor for attorneys' fees shall be paid by Lessee. Any waiver by Lessor of any default or defaults of this Lease or any delay of Lessor in enforcing any remedy set forth herein shall not constitute a waiver of the right to pursue any remedy at a later date or terminate this Lease for any subsequent default or defaults, nor shall any such waiver in any way affect Lessor's ability to enforce any Section of this Lease. The remedies set forth in this Section 19 shall be in addition to, and not in limitation of, any other remedies that Lessor may have at law or in equity, and the applicable statutory period for the enforcement of a remedy will not commence until Lessor has actual knowledge of a breach or default. C. In the event of a default by Lessee, Lessor shall be allowed to recover one hundred percent (100%) of its costs or outstanding amounts owed, including any amount received by a collection agency in connection with pursuing any unpaid portion of rent or other amounts due under this Lease on Lessor’s behalf. Section 20. Termination. Upon the termination of Lessee's tenancy under this Lease in any manner herein provided, Lessee shall relinquish possession of the Property and shall remove any Lessee Improvements, and restore the Property to substantially the state and environmental condition in which it was prior to Lessee's use ("Restoration Obligations"). If Lessee shall fail within thirty (30) days after the date of such termination of its tenancy to complete the Restoration Obligations, then Lessor may, at its election (i) either remove the Lessee Improvements or otherwise restore the Property, and in such event Lessee shall, within thirty (30) days after receipt of bill therefor, reimburse Lessor for cost incurred, (ii) upon written notice to Lessee may take and hold any Lessee Improvements and personal property as its sole property, without payment or obligation to Lessee therefor, or (iii) specifically enforce Lessee's obligation to restore and/or pursue any remedy at law or in equity against Lessee for failure to so restore. Further, in the event Lessor has consented to Lessee Improvements remaining on the Property following termination, Lessee shall, upon request by Lessor, provide a Bill of Sale in a form acceptable to Lessor conveying such Lessee Improvements to Lessor. Section 21. Survival of Obligations. Notwithstanding any expiration or other termination of this Lease, all of Lessee's indemnification obligations and any other obligations that have accrued but have not been satisfied under this Lease prior to the termination date shall survive such termination. Section 22. Holding Over. If Lessee fails to surrender the Property to Lessor upon any termination of this Lease, and Lessor and BNSF do not consent in writing to Lessee's holding over, then such holding over will be deemed a month-to-month tenancy. Lessee's holdover will be subject to all provisions of this Lease. Section 23. Multiple Party Lessee. In the event that Lessee consists of two or more parties, all the covenants and agreements of Lessee herein contained shall be the joint and several covenants and agreements of such parties. Section 24. Damage or Destruction. If at any time during the term of this Lease, the Property is damaged or destroyed by fire or other casualty, then Lessor may terminate this Lease or repair and reconstruct the Property to substantially the same condition in which the Property existed immediately prior to the damage or destruction, except that Lessor is not required to repair or reconstruct any Lessee Improvements, personal property, furniture, trade fixtures, or office equipment located on the Property and removable by Lessee under the provisions of this Lease. Section 25. Eminent Domain. 83 Indefinite Term Lease – Land MRL Form 405 February 2015 Page 12 If any part of the Property is taken by eminent domain, Lessor may either terminate this Lease or continue the Lease in effect. If Lessor elects to continue the Lease, Rent will be reduced in proportion to the area of the Property taken by eminent domain, and Lessor shall repair any damage to the Property resulting from the taking. All sums awarded or agreed upon between Lessor and the condemning authority for the taking of the interest of Lessor or Lessee, whether as damages or as compensation, will be the property of Lessor; without prejudice, however, to claims of Lessee against the condemning authority for moving costs and the unamortized cost of leasehold improvements paid for by Lessee taken by the condemning authority. If this Lease is terminated under this Section 25, Rent will be payable up to the date that possession is taken by the condemning authority, and Lessor shall refund to Lessee any prepaid unaccrued Rent less any sum then owing by Lessee to Lessor. Section 26. Representations. Neither Lessor nor Lessor's agents have made any representations or promises with respect to the Property except as herein expressly set forth. Section 27. Signs. No signs are to be placed on the Property without the prior written approval of Lessor of the size, design, and content thereof. Section 28. Consents and Approvals. Whenever in this Lease Lessor's or BNSF's consent or approval is required, such consent or approval shall be in their sole and absolute discretion. If Lessor and BNSF delay or refuse such consent or approval, such consent or approval shall be deemed denied, and Lessee in no event will be entitled to make, nor will Lessee make, any claim, and Lessee hereby waives any claim, for money damages (nor will Lessee claim any money damages by way of set-off counterclaim or defense) based upon any claim or assertion by Lessee that Lessor or BNSF unreasonably withheld or unreasonably delayed its consent or approval. Section 29. Captions. The captions are inserted only as a matter of convenience and for reference, and in no way define, limit or describe the scope of this Lease nor the intent of any provision thereof. Section 30. Public Record. It is understood and agreed that this Lease shall not be placed of public record. Section 31. Governing Law. All questions concerning the interpretation or application of provisions of this Lease shall be decided according to the substantive laws of the state in which the Property is located. Section 32. No Waiver. One or more waivers of any covenant, term, or condition of this Lease by Lessor or BNSF shall not be construed as a waiver of a subsequent breach of the same covenant, term, or condition. The consent or approval by Lessor or BNSF to or of any act by Lessee requiring such consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act. Section 33. Binding Effect. All provisions contained in this Lease shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and assigns of Lessor and Lessee to the same extent as if each such successor and assign was named a party to this Lease. Section 34. Force Majeure. 84 Indefinite Term Lease – Land MRL Form 405 February 2015 Page 13 Except as may be elsewhere specifically provided in this Lease, if either party is delayed or hindered in, or prevented from the performance required under this Lease (except for payment of monetary obligations) by reason of earthquakes, landslides, strikes, lockouts, labor troubles, failure of power, riots, insurrection, war, acts of God or other reason of the like nature not the fault of the party delayed in performance of its obligation, such party is excused from such performance for the period of delay. The period for the performance of any such act will then be extended for the period of such delay. Section 35. Entire Agreement/Modification. This Lease is the full and complete agreement between Lessor and Lessee with respect to all matters relating to lease of the Property and supersedes any and all other agreements between the parties hereto relating to lease of the Property. If this Lease is a reissue of an existing agreement held by Lessee, it shall supersede and cancel the previous lease or leases, without prejudice to any liability accrued prior to cancellation. This Lease may be modified only by a written agreement signed by Lessor and Lessee. Section 36. Notices. Any notice or documents required or permitted to be given hereunder by one party to the other shall be in writing and the same shall be given or shall be deemed to have been served and given if (i) delivered in person to the address herein above or hereinafter set forth for the party to whom the notice is given, (ii) placed in the United States mail, certified - return receipt requested, addressed to such party at the address herein above or hereinafter set forth, or (iii) deposited into the custody of any reputable overnight carrier for next day delivery, addressed to such party at the address herein above or hereinafter set forth. Any notice mailed as above shall be effective upon its deposit into the custody of the U. S. Postal Service or such reputable overnight carrier, as applicable; all other notices shall be effective upon receipt. All Rent and other payments due to Lessor hereunder shall also be made as provided in Section 3(A) above, and delivery of such rental and other payments shall only be effective upon actual receipt by Lessor. From time to time either party may designate another address or telecopy number within the 48 contiguous states of the United States of America for all purposes of this Lease by giving the other party not less than fifteen (15) days' advance written notice of such change of address in accordance with the provisions hereof. If to Lessee, at the address shown above. If to Lessor, at the address shown above. If to BNSF: BNSF Railway Company Jones Lange LaSalle Brokerage, Inc., Its Attorney in Fact 4200 Buckingham Road, Suite 110 Ft. Worth, TX 76155 Section 37. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall, for all purposes, be deemed an original but which together shall constitute one and the same instrument, and the signature pages from any counterpart may be appended to any other counterpart to assemble fully executed documents, and counterparts of this Agreement may also be exchanged via electronic facsimile machines and any electronic facsimile of any party's signature shall be deemed to be an original signature for all purposes. Section 38. Relationship. Notwithstanding anything else herein to the contrary, neither party hereto shall be construed or held, by virtue of this Lease, to be the agent, partner, joint venturer, or associate of the other party hereto, it being expressly understood and agreed that the relationship between the parties hereto is and at all times during the term of this Lease, shall remain that of Lessor and Lessee. Section 39. Severability. If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws effective during the term of this Lease, then and in that event, it is the intention of the parties hereto that the remainder of this Lease shall not be affected thereby, and it is also the intention of the parties to this Lease that in lieu of each clause or 85 Indefinite Term Lease – Land MRL Form 405 February 2015 Page 14 provision of this Lease that is illegal, invalid or unenforceable, there be added, as a part of this Lease, a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable. Section 40. Transferability; Release of Lessor. Lessor shall have the right to transfer and assign, in whole or in part, all of its rights and obligations under this Lease and in the Property, and upon such transfer, Lessor shall be released from any further obligations hereunder, and Lessee agrees to look solely to the successor in interest of Lessor for the performance of such obligations. Section 41. Tax Waiver. Lessee waives all rights pursuant to all Laws to protest appraised values or receive notice of reappraisal regarding the Property (including Lessor's personalty), irrespective of whether Lessor contests the same. However, if the Property is separately assessed by the applicable taxing authority as a result of this Lease, the Lessee may, at its own cost and upon written consent of Lessor, contest the assessed value of the Property. Section 42. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Lease, the prevailing party shall be entitled to reasonable attorneys' fees, costs, and necessary disbursements in addition to any relief to which it may be entitled. Executed by the parties to be effective as of the Effective Date set forth above. LESSOR Montana Rail Link, Inc., a Montana corporation By: Joe Gentri, Manager Real Estate LESSEE City of Bozeman By: Printed Name: Title: BNSF's execution in the space provided below evidences BNSF's consent to this Lease. This Lease is not valid and shall have no force and effect without BNSF's signature. BNSF BNSF Railway Company By: 86 Indefinite Term Lease – Land Exhibit B MRL Form February 2015 Page 16 EXHIBIT "B" WORK LETTER AGREEMENT THIS WORK LETTER AGREEMENT (the "Agreement") supplements that certain Indefinite Term Lease For Land ("Lease") dated ___________, _____ by and between MONTANA RAIL LINK, INC., a Montana corporation ("Lessor"), and ______________________, a(n) __________________ ("Lessee"). In the event of any conflict between the provisions of this Agreement and the provisions of the Lease, the provisions of this Agreement shall control. Unless the context otherwise requires, capitalized terms not defined herein shall have the meaning assigned to such terms in the Lease. In the event Lessee uses one or more general contractors or subcontractors ("Contractor(s)") for any improvements, alterations, build out, finish out, or other similar work on the Property ("Work"), Lessee agrees to and accepts the following: 1. Prior to performing any Work, Lessee shall obtain Lessor's and BNSF's approval of each Contractor and any Work to be performed by such Contractor shall be performed pursuant to a written contract between Lessee and the Contractor ("Work Contract") approved in advance by Lessor and BNSF. 2. Prior to commencing any Work, Lessee shall submit for Lessor's and BNSF's review and approval Lessee's plans, specifications and/or drawings for such Work (collectively, "Plans") in accordance with the procedure set forth in the Lease. 3. All Work must be performed at Lessee's sole cost and expense and in accordance with the Plans which have previously been approved by Lessor and BNSF. 4. Lessee shall cause its Contractors to meet all insurance and indemnification requirements required of Lessee under the Lease and shall obtain indemnification and insurance provisions from its Contractors in favor of Lessor and BNSF and in the same form as set forth in the Lease. 5. Prior to the commencement of the Work, all required local building, fire, health and other departments must approve all Plans requiring approval by local building codes. In addition, the Work shall be performed, installed and/or constructed in accordance with all applicable federal, state and local laws, codes, ordinances, rules and regulations, including without limitation, the Americans With Disabilities Act of 1990, 42 U.S.C.A. 12101 et seq. 6. Lessee shall be responsible for obtaining all municipal and other governmental licenses or permits for the Work with copies furnished to Lessor and BNSF prior to commencement of any construction. 7. Lessee shall furnish Lessor and BNSF, for Lessor's and BNSF's approval, a copy of its schedule of the Work. Lessee shall perform the Work in accordance with the schedule approved by Lessor and BNSF, and any changes in such schedule must be approved by Lessor and BNSF in writing in advance. 8. Notwithstanding the status of the completion of the Work, Lessee's obligation for payment of Rent and other amounts due under the Lease shall commence on the Commencement Date provided in the Lease. Notwithstanding anything herein to the contrary, Lessor and BNSF may, in Lessor's and BNSF's sole discretion, permit Lessee and Lessee's Contractors to enter the Property prior to the Commencement Date in order to commence Work; provided, however, that Lessee agrees that such early entry or occupation of the Property shall be governed by all of the terms and conditions of the Lease and this Agreement (including the insurance and indemnity requirements therein), as such terms and conditions are more specifically set forth in the Lease and this Agreement. 9. During construction, Lessor and BNSF reserves the right to inspect the Work at any time upon reasonable notice to Lessee. 10. Lessee's Contractors shall keep the Property reasonably clean at all times during the performance of the Work. 11. All Work must be performed in a good and workmanlike manner, free from defects in materials and workmanship. 87 Indefinite Term Lease – Land MRL Form 405 February 2015 Page 17 12. If any materialman's, mechanic's, laborer's or any other liens for any work claimed to have been undertaken for Lessee or at Lessee's request is filed against the Property, Lessee shall indemnify, defend and hold harmless Lessor and BNSF from any such liens filed during the term of the Lease and shall, at Lessee's own expense, cause all such liens to be removed within ten (10) days after written notice from Lessor or BNSF to Lessee of the filing thereof. 13. Lessee must obtain Lessor's and BNSF's reasonable approval that the Work has been completed in substantial accordance with the approved plans and specifications. Lessor and BNSF shall receive copies of all Certificates of Occupancy and as-built drawings (electrical, mechanical, fire and architectural) prior to approving the Work. 14 All guarantees and warranties provided by Lessee's Contractors shall be issued to Lessee and, for Work which is or will at the termination of this Lease be Lessor's property, also to Lessor and BNSF. IN WITNESS WHEREOF, the parties hereto have executed this Work Letter Agreement to be effective as of the date first set forth above. LESSOR: Montana Rail Link, Inc., a Montana corporation By: Name: Title: LESSEE: By: Name: Title: BNSF's execution in the space provided below evidences BNSF's consent to this Work Letter Agreement. This Work Letter Agreement is not valid and shall have no force and effect without BNSF's signature. BNSF BNSF Railway Company, a Delaware corporation By: Name: Title: 88 P.C. 7487+94.5P.T. 7485+01.4P.C. 7479+98.1At Permittee's Expense May Be Required. Railroad Right of Way. A Railroad Flagger Working Days Before Starting Work On (406) 570-5993, At Least Five (5) Notify Signal Supervisor Nathan Kluck, Permittee's Expense May Be Required. Right of Way. A Railroad Flagger At Days Before Starting Work On Railroad 223-3237, At Least Five (5) Working Notify Roadmaster Chris Seymour, (406) GALLATIN CITY COUNTY STATE FEB. 15, 2021 DATE SECOND SUBDIVISION sheet 1" = 150' SCALE FOR STORM DRAINAGE PURPOSES PLAT SHOWING LEASE AREA FOR: CITY OF BOZEMAN ENGINEERING DEPARTMENT BOZEMAN MONTANA EXHIBIT "A" Verify scale! on paper one-inch (1") This should be ACRES), MORE OR LESS, AS DEPICTED HEREON. TOGETHER THE TWO SUBAREAS CONTAIN 108,100 SQUARE FEET (2.482 LEASE SUBAREA #2 CONTAINS 103,700 SQUARE FEET, MORE OR LESS. LEASE SUBAREA #1 CONTAINS 3,400 SQUARE FEET, MORE OR LESS. DRAINAGE PURPOSES. AREA CONSISTS OF TWO LEASE SUBAREAS. A PLAT DEPICTING AN IRREGULARLY SHAPED SITE LEASE FOR STORM : DESCRIPTIONto Sheet 2is MatchlineSheet Border MAIN TRACK RAILROAD RIGHT OF WAY RAILROAD RIGHT OF WAY 200' 200' Filepath: S:\mrleng\NWB\2nd Sub\MP 141 Lease CityofBozeman 021521_2D.dgn Sheet 1 of 2 ORIGINAL MAIN TRACK to Sheet 2is MatchlineSheet Border 7497+60142Subarea #1 Lease Lease Subarea #2 UTILITY OCCUPATIONS. CONFLICTS WITH THE EXISTING RESPONSIBILITY TO RESOLVE ANY AREA. IT IS THE PERMITTEE'S THE RAILROAD RIGHT OF WAY IN THIS HAVE UNDERGROUND FACILITIES WITHIN NUMEROUS OTHER UTILITY COMPANIES U.S. SPRINT AT 1-800-521-0579. CROSS IT MUST BE OBTAINED FROM OF THIS CABLE AND AUTHORITY TO RIGHT OF WAY IN THIS AREA. LOCATION OPTIC CABLE ON MONTANA RAIL LINK HAS INSTALLED AN UNDERGROUND FIBER U.S. SPRINT COMMUNICATIONS COMPANY bio-retention basin Drop structure and access roadway Maintenance gate Locked by City of Bozeman Culvert maintained storm drain channel Open storm drain Open channel (typical three locations) Riprap at culvert MRL CULV. 141.74DIA. C.I.P., 7483+70 42" MRL Culv. 141.74 ATTACHED THERETO AND THE CONCRETE HEADWALLS AND MAINTAIN CULVERT 141.74 MRL WILL CONTINUE TO OWN : NOTE TO SANDPOINT JCT.JCT. JONES TO STA 7482+12 MP 141+3,712' 89 P.T. 7493+69.1Verify scale! on paper one-inch (1") This should be to Sheet 1is MatchlineSheet Border MAIN TRACK RAILROAD RIGHT OF WAY RAILROAD RIGHT OF WAY H IGHWAY EASEMENTHI GHWAY E AS E ME NT7497+6014 2 GALLATIN CITY COUNTY STATE FEB. 15, 2021 DATE SECOND SUBDIVISION sheet 1" = 150' SCALE FOR STORM DRAINAGE PURPOSES PLAT SHOWING LEASE AREA FOR: CITY OF BOZEMAN ENGINEERING DEPARTMENT BOZEMAN MONTANA EXHIBIT "A" Sheet 2 of 2 Filepath: S:\mrleng\NWB\2nd Sub\MP 141 Lease CityofBozeman 021521_2D.dgn ORIGINAL MAIN TRACK to Sheet 1is MatchlineSheet Border Permittee's Expense May Be Required. Right of Way. A Railroad Flagger At Days Before Starting Work On Railroad 223-3237, At Least Five (5) Working Notify Roadmaster Chris Seymour, (406) At Permittee's Expense May Be Required. Railroad Right of Way. A Railroad Flagger Working Days Before Starting Work On (406) 570-5993, At Least Five (5) Notify Signal Supervisor Nathan Kluck, Lease Subarea #2 UTILITY OCCUPATIONS. CONFLICTS WITH THE EXISTING RESPONSIBILITY TO RESOLVE ANY AREA. IT IS THE PERMITTEE'S THE RAILROAD RIGHT OF WAY IN THIS HAVE UNDERGROUND FACILITIES WITHIN NUMEROUS OTHER UTILITY COMPANIES U.S. SPRINT AT 1-800-521-0579. CROSS IT MUST BE OBTAINED FROM OF THIS CABLE AND AUTHORITY TO RIGHT OF WAY IN THIS AREA. LOCATION OPTIC CABLE ON MONTANA RAIL LINK HAS INSTALLED AN UNDERGROUND FIBER U.S. SPRINT COMMUNICATIONS COMPANY railroad right of way continues outside the Storm drainage system bio-retention basin Drop structure and storm drain Open channel TO SANDPOINT JCT. JCT. JONES TO STA 7500+76 MP 142+0316' 90 Memorandum REPORT TO:City Commission FROM:Kellen Gamradt, Engineer II Scott Shirley, Interim Public Works Director SUBJECT:Authorize the City Manager to Sign an Amendment 8 to the Capital Improvement Projects Field Survey with Morrison-Maierle, Inc to Facilitate Upcoming Water Renovations Projects MEETING DATE:October 26, 2021 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Approve and authorize the City Manager to sign Amendment No. 8 to the Capital Improvement Projects Field Survey with Morrison-Maierle, Inc to facilitate upcoming water renovations projects STRATEGIC PLAN:2.2 Infrastructure Investments: Strategically invest in infrastructure as a mechanism to encourage economic development. BACKGROUND:Attached is a copy of the partially executed amendment with Morrison- Maierle, which includes the City’s updated non-discrimination and equal pay provisions. This amendment will add a survey of North 12th Avenue, North 13th Avenue, and North 14th Avenue as described in the attached scope of services. These surveys will be used for design of upcoming water renovations projects. The amendment will add work to our existing survey contract. Engineering staff have reviewed the amendment and found it to be commensurate with the work involved. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the commission FISCAL EFFECTS:If approved, this amendment will increase the fee by $40,351.50 Attachments: City Survey-PSA Amendment No 8.pdf Original Survey PSA.pdf Report compiled on: October 11, 2021 91 Eighth Amendment to Professional Services Agreement for Capital Improvements Field Survey Page 1 of 3 EIGHTH AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS EIGHTH AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR Capital Improvements Project Field Survey dated June 18, 2018 (the “Agreement”) is made and entered into this _____ day of ____________, 2021, 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 Morrison-Maierle, 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. Addition to Scope of Work. Task 1800 – N. 12th Avenue, N. 13th Avenue, N. 14th Avenue have been added to the scope of services. These tasks shall be completed using traditional survey methods and delivered to the City of Bozeman. See Figure M. 2. Addition to Payment. See Exhibit 1800, and Summary – Fee Estimates attached. 3. Section 14 of the original Professional Services Agreement is hereby replaced in its entirety with the following: 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. 92 Eighth Amendment to Professional Services Agreement for Capital Improvements Field Survey Page 2 of 3 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. 4. Agreement still valid. All remaining terms and provisions of the original Agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** 93 Eighth Amendment to Professional Services Agreement for Capital Improvements Field Survey Page 3 of 3 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA MORRISON-MAIERLE By________________________________ By_____________________________ Jeff Mihelich, City Manager Print Name: Travis Eickman Title: Bozeman Operations Manager APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney 94 © PROJECT NO. FIGURE NUMBER COPYRIGHT MORRISON-MAIERLE, INC.,2021N:\0417\082\ACAD\Exhibits\Scope-Capitol Improvement Projects Field Survey-2018.dwg Plotted by kevin d. jacobsen on Sep/29/2021 DRAWN BY: DSGN. BY: APPR. BY: DATE:engineers surveyors planners scientists MorrisonMaierle 2880 Technology Blvd West Bozeman, MT 59718 406.587.0721 www.m-m.net CITY SURVEY M CITY OF BOZEMAN CAPITOL IMPROVEMENT PROJECTS FIELD SURVEY N. 12TH AVENUE, N. 13TH AVENUE, N. 14TH AVENUE BOZEMAN MONTANA KJ 10/2021 TOTAL = 9.0 ACRES N. 14TH AVE.W. KOCH ST.N. 13TH AVE.N. 12TH AVE.W. STORY ST. W. DICKERSON ST. W. ALDERSON ST. W. COLLEGE ST.N. 15TH AVE.95 Exhibit 1800 - Fee Estimate City of Bozeman, MT - Capital Improvement Projects Field Survey 2018 Prepared For: Kellen Gamradt, P.E. Survey / Engineering Services Oct-2021 Staff Labor Labor Total Task Assigned Hours Rate Labor Cost 1800 - N 12th Ave, N 13th Ave, N 14th Ave (Trad. Survey) 1801. Office Research and Computations Land Surveyor II 8.00 $126.00 $1,008.00 1802. Horizontal and Vertical Field Control Two Person Survey Crew 12.00 $233.00 $2,796.00 Land Surveyor II 20.00 $126.00 $2,520.00 Two Person Survey Crew 78.00 $233.00 $18,174.00 1804. Office Survey Data Processing Land Surveyor II 40.00 $126.00 $5,040.00 1805. Field Survey Verifications Land Surveyor II 16.00 $126.00 $2,016.00 1806. Deliverables Land Surveyor II 12.00 $126.00 $1,512.00 Land Surveyor II 8.00 $126.00 $1,008.00 Senior Engineer I 8.00 $163.00 $1,304.00 Senior Engineer I 8.00 $163.00 $1,304.00 Senior Survey Manager 3.00 $179.00 $537.00 213.00 $37,219.00 Direct Expenses Charge Rate Total Expense Vehicle (mi)$0.75 $165.00 GPS/Total Station (days)$240.00 $2,760.00 Survey Materials (days)$15.00 $172.50 Deliverable Package $35.00 $35.00 $3,132.50 $40,351.50 11.5 11.5 1 Subtotal - Direct Expenses Task Total - N 12th Ave, N 13th Ave, N 14th Ave 1803. Topographic Field Survey 1807. Coordination - City, Utilities 1808. Quality Assurance/Quality Control Subtotal - Labor Costs Quantity or Duration 220.00 N:\0417\082\01 Project Management\Contracts\Amendment #8\Exhibits - Engineering Fee Estimate Amend #8.xls 9/29/2021 96 Exhibit Summary - Fee Estimate City of Bozeman, MT - Capital Improvement Projects Field Survey (2018) Prepared For: Kellen Gamradt, P.E. Summary - Survey / Engineering Services Oct-2021 Total Total Task Acres Cost 100 - West Koch Street (Scanned Survey)5.7 $20,836.25 200 - North Tracy Avenue (Scanned Survey)1.8 $8,500.00 300 - North 17th Avenue (Scanned Survey)2.8 $11,549.50 400 - North Bozeman Avenue (Trad. Survey)2.9 $11,408.75 500 - Augusta Drive (Trad. Survey)2.5 $10,100.75 600 - South 5th Avenue (Trad. Survey)7.4 $31,202.00 700 - West Harrison Street (Trad. Survey)3.7 $14,989.00 800 - North Bozeman Avenue (Trad. Survey)2.3 $9,849.75 900 - Parks Department on-call services N/A $1,500.00 1000 - Oconnell Drive (Trad. Survey)N/A $3,955.50 1100 - West Harrison Street Add (Trad. Survey)1.3 $6,377.00 1200 - South 6th Avenue (Trad. Survey)5.9 $24,743.00 1300 - N 7th, N 8th, Juniper, Birch, Hemlock (Trad. Survey)4.8 $29,930.75 1400 - N 19th Pathway (Trad. Survey)1.3 $4,782.00 1500 - N 19th Wetland (Technical Memo.)N/A $1,800.00 1600 - N 3rd, 4th, 5th, W Villard, W Peach (Trad. Survey)6.5 $27,304.25 1700 - N Bozeman, E Main, N Church, E Babcock (Trad. Survey)5.2 $25,950.50 1800 - N 12th Ave, N 13th Ave, N 14th Ave (Trad. Survey)9.0 $40,351.50 $285,130.50Total Project Cost N:\0417\082\01 Project Management\Contracts\Amendment #8\Exhibits - Engineering Fee Estimate Amend #8.xls 9/29/2021 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 Memorandum REPORT TO:City Commission FROM:Tom Rogers, Senior Planner Marty Matsen, Director of Community Development SUBJECT:Ordinance 2094 Provisional Adoption to Rezone 3.492 Acres from R-4, Residential High Density District to R-5, Residential Mixed-Use High Density District, Application 21172 MEETING DATE:October 26, 2021 AGENDA ITEM TYPE:Ordinance RECOMMENDATION:Provisionally adopt Ordinance 2094 to rezone 3.492 acres from R-4, Residential High Density District to R-5, Residential Mixed-Use High Density District. STRATEGIC PLAN:4.2 High Quality Urban Approach: Continue to support high-quality planning, ranging from building design to neighborhood layouts, while pursuing urban approaches to issues such as multimodal transportation, infill, density, connected trails and parks, and walkable neighborhoods. BACKGROUND:The applicant submitted application 21172 to rezone two existing lots in the Annie Subdivision, Phase 2 from R-4 (Residential High Density) to R-5 (Residential Mixed-Use High Density). One of the parcels is a stormwater parcel. The Annie Subdivision Phase 2 was platted in 2016 to create three additional parcels from Lot 5 of the Annie Subdivision, Phase 2 was platted in 1995. Annie Subdivision, Phase 2 created and dedicated Rose Park as a public park. The recently adopted Bozeman Community 2020 Plan altered the Future Land Use (FLU) designation from Residential to Urban Neighborhood. The R- 5 zoning district implemented the previous and the current FLU designation. The Zoning Commission recommended approval of the application on August 23, 2021. On September 21, 2021 the City Commission held a public hearing and voted unanimously to apply R-5 zoning designation to the subject property, subject to contingencies. All contingencies have been met by the applicant, including a map, and legal description. UNRESOLVED ISSUES:None 119 ALTERNATIVES:Adoption of Ordinance 2094 as presented and recommended. Determine that the prior decision to zone was in error and do not adopt the ordinance. FISCAL EFFECTS:No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this Zone Map Amendment. Attachments: Lot 5C Ordinance 2094.pdf 210040 Lot 5C Annie Subdivision Phase 2 Zone Map Amendment (2021.10.13).pdf Report compiled on: October 13, 2021 120 Ord 2094 Page 1 of 5 ORDINANCE 2094 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA AMENDING THE CITY OF BOZEMAN ZONING MAP TO REZONE 3.492 ACRES FROM R-4, RESIDENTIAL HIGH DENSITY DISTRICT TO R-5, RESIDENTIAL MIXED-USE HIGH DENSITY DISTRICT, KNOWN AS THE LOT 5C ANNIE SUBDIVISION ZONE MAP AMENDMENT, APPLICATION 21172. WHEREAS, the City of Bozeman has adopted zoning regulations and a zoning map pursuant to Sections 76-2-301 and 76-2-302, M.C.A.; and WHEREAS, Section 76-2-305, M.C.A. allows local governments to amend zoning maps if a public hearing is held and official notice is provided; and WHEREAS, Section 76-2-307, M.C.A. states that the Zoning Commission must conduct a public hearing and submit a report to the City Commission for all zoning map amendment requests; and WHEREAS, the City of Bozeman Zoning Commission has been created by Section 2.05.2700, BMC as provided for in Section 76-2-307, M.C.A.; and WHEREAS, Chapter 38, Article 2 of the Bozeman Unified Development Code sets forth the procedures and review criteria for zoning map amendments; and WHEREAS, the proposed zone map amendment application to amend the City of Bozeman Zoning Map to rezone 3.492 acres from R-4 (Residential High Density District) to R-5 (Residential Mixed-Use High Density District) has been properly submitted, reviewed, and advertised; and 121 Ordinance No. 2094, Lot 5C Annie Subdivision ZMA Page 2 of 5 WHEREAS, after proper notice, the Bozeman Zoning Commission held a public hearing on August 23, 2021 to receive and review all written and oral testimony on the request for a zone map amendment; and WHEREAS, the Bozeman Zoning Commission recommended to the Bozeman City Commission that application No. 21172 the Lot 5C Annie Subdivision Zone Map Amendment, be approved as requested by the applicant; and WHEREAS, after proper notice, the City Commission held its public hearing on September 14, 2021, to receive and review all written and oral testimony on the request for the zone map amendment; and WHEREAS, the City Commission has reviewed and considered the zone map amendment criteria established in Section 76-2-304, M.C.A., and found that the proposed zone map amendment would be in compliance with the criteria. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 That the zoning district designation of the following-described property is hereby designated as R-5, Residential Mixed-Use High Density District: An area of land comprised described as follows: Lot 5C and Common Open Space A, Amended Plat of Lot 5, Annie Subdivision, Phase 2 [Plat J- 204-A], and adjacent portions of North 27th Avenue, North 25th Avenue, Breeze Lane, and Tschache Lane right of ways, and located in the Northeast Quarter of Section 2, Township 2 South, Range 5 East, of P.M.M., City of Bozeman, Gallatin County, Montana. Said property is further described as follows: Beginning at the intersection of the centerlines of Tschache Lane & N. 27th Ave, at a point which is also the C-N 1/16 corner of said Section 2; thence easterly 089°32'44", assumed azimuth from North, 322.54 feet along the centerline of Tschache Lane; thence southerly 122 Ordinance No. 2094, Lot 5C Annie Subdivision ZMA Page 3 of 5 181°28'43" azimuth, 477.33 feet along the centerline of North 25th Avenue; thence westerly 271°29'48" azimuth, 322.35 feet along the south line of said Lot 5C and its easterly and westerly extensions and also being the centerline of Breeze Lane, to the centerline of North 27th Avenue; thence northerly 001°28'43" azimuth, 466.42 feet along last said centerline to the point of beginning. Area = 152,110 square feet, 3.4920 acres or 14,131.5 square meters. Subject to existing easements. All as depicted on the Lot 5C Annie Subdivision Zone Map. Section 2 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 3 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 4 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 5 Codification. 123 Ordinance No. 2094, Lot 5C Annie Subdivision ZMA Page 4 of 5 This Ordinance shall not be codified but shall be kept by the City Clerk and entered into a disposition list in numerical order with all other ordinances of the City and shall be organized in a category entitled “Zone Map Amendments.” Section 6 Effective Date. This ordinance shall be in full force and effect thirty (30) days after final adoption. 124 Ordinance No. 2094, Lot 5C Annie Subdivision ZMA Page 5 of 5 PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the 26th day of October, 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 ____ of ____________________, 2021. The effective date of this ordinance is ___________, ____, 2021. _________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: _______________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 125 t 126 Memorandum REPORT TO:City Commission FROM:Greg Sullivan, City Attorney Jennifer A. Giuttari, Assistant City Attorney SUBJECT:Ordinance 2092 Provisional Adoption Amending Bozeman Municipal Code Section 2.03.540 governing Gifts, Gratuities, and Favors MEETING DATE:October 26, 2021 AGENDA ITEM TYPE:Ordinance RECOMMENDATION:I move to provisionally adopt Ordinance 2092, which amends Bozeman Municipal Code Section 2.03.540: Gifts, Gratuities, and Favors. STRATEGIC PLAN:7.1 Values-Driven Culture: Promote a values-driven organizational culture that reinforces ethical behavior, exercises transparency and maintains the community’s trust. BACKGROUND: Introduction. The Bozeman Municipal Code’s Code of Ethics governs the operations of the City’s government, as well as the conduct and behavior of its officials and employees. See generally 2.03.460 – 2.03.690, Bozeman Municipal Code. Specifically Sec. 2.03.540 outlines the standards of conduct related to gifts, gratuities, and favors that a person receives because of their employment or official position with the City. Over time, this subsection has become one of the most common ethical questions posed by City employees and officials. Background. On October 8, 2019, the City Attorney’s Office provided the Board of Ethics with a memorandum addressing two questions regarding the line between gifts, employment, and the City’s employee benefits program. During the October 9, 2019 Board of Ethics meeting , the Board further considered the October 8, 2019 memorandum and the Gifts, Gratuities, and Favors subsection of the Bozeman Municipal Code. The Board discussed whether benefits other than medical-related benefits provided by the City to its employees constitute prohibited gifts. The Board also considered whether benefits, other than labor representation provided by a labor union to its members who are City employees, fall under the definition of “gifts” under 127 the Ethics Code. The Board’s discussion on gifts included conversation regarding whether discounts available to employees through their professional affiliations constitute a gift. On December 4, 2020, the City Attorney memorialized his Opinion on this issue after a City employee presented a similar ethical question pertaining to the Gifts, Gratuities, and Favors subsection of the Code. During the December 4, 2020 meeting the Board discussed how a non-profit affiliated with the City, such as a foundation, can provide educational scholarship opportunities to City employees. On September 29, 2021 the City Attorney's Office presented Ordinance 2092 to the Board of Ethics. On that date, the Board unanimously voted in favor of recommending to the City Commission that it adopt Ordinance 2092. As noted in the December 4, 2020 memorandum, the proposed amendments are consistent with the Bozeman City Charter’s provision that “public office not be used for private gain” since the proposed amendments do not place an employee or official in a position of choosing between the interests of the City and their personal interests. See Bozeman City Charter, Sec. 7.01. In addition, the proposed amendments are consistent with the Code of Ethics’ declaration of policy at 2.03.460, BMC and the legislative intent of the gift provision 2.03.540, BMC. Moreover, this proposed amendment aligns with the City’s Strategic Plan Sections 7.1 Values-Driven Culture, promoting a values-driven organizational culture that reinforces ethical behavior, exercises transparency and maintains the community’s trust, and 7.2 Employee Excellence, recruiting, retaining and valuing a diverse, well-trained, qualified and motivated team capable of delivering superior performance. Recognizing “legitimate governmental interests exist that allow an employee or official to accept a gift” we believe the issues addressed in the proposed amendments will support the City’s efforts to recruit and retain a well-qualified and motivated staff. Finally, the proposed amendment will provide City employees and officials with more concrete guidance on this ethics question. Given the Board of Ethics' unanimous vote on September 29, 2021, the City Attorney's Office now requests the City Commission to vote in favor of provisionally adopting Ordinance 2092. UNRESOLVED ISSUES:None. ALTERNATIVES:None applicable. FISCAL EFFECTS:None identified. 128 Attachments: 211019 Gifts-Ethics Ordinance_final.pdf Report compiled on: October 19, 2021 129 Ordinance 2092 Page 1 of 5 ORDINANCE 2092 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA AMENDING BOZEMAN MUNICIPAL CODE SECTION 2.03.540 (GIFTS, GRATUITIES, AND FAVORS). WHEREAS, local government officials and employees hold positions of public trust, and therefore must act independently, impartially, and responsibly to ensure the proper operation of local government; and WHEREAS, the proposed amendments are consistent with and uphold the Bozeman City Charter’s prohibition on the use of public office for private gain at Sec. 7.01; and WHEREAS, the proposed amendments are consistent with and uphold the Declaration of Policy of the Code of Ethics at 2.03.460, BMC; and WHEREAS, 2.03.540, BMC “establish[es] specific standards or conduct related to gifts, gratuities, and favors that are provide to a person because of the a person’s employment or official position with the city” and the proposed amendments are consistent with and uphold these standards and legislative intent; and WHEREAS, over the past two years, the City Attorney’s Office and the Board of Ethics have repeatedly addressed questions requiring further interpretation of 2.03.540, BMC which necessitates an amendment of the Code of Ethics. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 That Section 2.03.540, Bozeman Municipal Code, is amended as follows: Sec. 2.03.540. Gifts, gratuities and favors. A. Legislative Intent. The intent of this section is to further implement the declaration of policy set forth in 2.03.460 and establish specific standards of conduct related to gifts, gratuities, 130 Ordinance No. 2092, (Amending the Gifts, Gratuities, and Favors Subsection in the Code of Ethics) Page 2 of 5 and favors that are provided to a person because of a person's employment or official position with the city. Further, this section ensures City employees are not influenced in the performance of their work by outside persons or entities in a manner that entices the employee to shift their commitment and dedication away from public service to their own personal interests or the interests of an outside entity or person. These standards recognize legitimate governmental interests exist that allow an employee or official to accept a gift, gratuity or favor in limited circumstances without such acceptance being considered the use of public office for private gain. These interests include, but are not limited to, establishing effective relationships with citizens, acceptance of professional and community awards for public service, and attending public events in an official capacity. At the same time, these standards make it clear that each public officer and employee holds such office or employment as a public trust. B. No official or employee shall accept a gift, gratuity, or favor from any person or entity: 1. That would tend improperly to influence a reasonable person in the person's position to depart from the faithful and impartial discharge of the person's public duties; 2. That the person knows or that a reasonable person in that position should know under the circumstances is primarily for the purpose of rewarding the person for official action taken; or 3. Has a value of $100.00 or more for an individual. C. An employee or official may accept a gift, gratuity, or favor that has a value greater than $25.00 but less than $100.00 for an individual only if such gift, gratuity or favor: 1. Complies with 2.03.540.B.1 and 2; and 2. Is provided incidental to and in conjunction with a public event where the official or employee's attendance is in fulfillment of their official duties. D. 1. An employee or official may accept a gift, gratuity, or favor that has a value greater than $25.00 but less than $100.00 for an individual only if such gift, gratuity or favor that complies with 2.03.540.B.1 and 2 and is provided incidental to and in conjunction with a public event where the official or employee's attendance is in fulfillment of their official duties. 2. An employee or official may accept payment or reimbursement from a person or entity for necessary expenses such as travel, lodging, meals, and registration fees in excess of $100.00 if the expense is incurred while representing the city and the reimbursement would not violate 2.03.540.B.1 and 2. Reimbursement or payment for educational activities in excess of $100.00 is permissible if the payment or reimbursement does not place or appear to place the official or employee under obligation, clearly serves the public good, and is not lavish or extravagant. E. Upon the acceptance of a gift, gratuity, favor or award pursuant to 2.03.540.C, the recipient shall file a disclosure statement with the board of ethics. Such disclosure statement shall 131 Ordinance No. 2092, (Amending the Gifts, Gratuities, and Favors Subsection in the Code of Ethics) Page 3 of 5 indicate the gift, its estimated value, the person or entity making the gift, the relationship to the employee or official, and the date of the gift. The disclosure statement is a public record. F. A gift, gratuity, or favor does not include: 1. Items or services provided an employee or official in their private capacity and without relationship to their employment or official position: 2. A prize received upon a random drawing at an event where the official or employee attends in their capacity as an employee or official, the drawing is open to all attendees, and receipt of the prize does not place the official or employee under obligation; 3. An award publically presented to an employee or official in recognition of public service; and 4. Compensation for officiating at a ceremony.; 5. Benefits provided by the City as an employer beyond salary and medical-related benefits, and which are available to all City employees; 6. Discounts on goods or services, or other benefits provided by a labor union to its members who are employees of the City if: i. the benefit is generally available throughout the state or the country to the same category of union member; and ii. the benefit is not offered to influence an employee to depart from the faithful and impartial discharge of person’s public duties or to reward the person for official action taken; 7. Discounts on good or services or other benefits provided by an employee’s professional organization if: i. the benefit is generally available throughout the state or the country to the same category of professional organization member; and ii. the benefit is not offered to influence an employee to depart from the faithful and impartial discharge of person’s public duties or to reward the person for official action taken; and 8. Educational scholarships provided by a private entity affiliated with the City or with an employee’s labor union or professional organization, including but not limited to private a corporation, foundation, and non-profit organization, to an employee because of their professional status or category if: i. the benefit is not offered to influence an employee to depart from the faithful and impartial discharge of person’s public duties or to reward the person for official action taken; and ii. the City does not purchase goods or services from the private entity. 132 Ordinance No. 2092, (Amending the Gifts, Gratuities, and Favors Subsection in the Code of Ethics) Page 4 of 5 Section 2 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 3 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 4 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 5 Codification. This Ordinance shall be codified as indicated in Section 1. Section 6 Effective Date. This ordinance shall be in full force and effect thirty (30) days after final adoption. 133 Ordinance No. 2092, (Amending the Gifts, Gratuities, and Favors Subsection in the Code of Ethics) Page 5 of 5 PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the _____ day of ________________, 20__. ____________________________________ 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 ___ of ____________________, 20__. The effective date of this ordinance is __________, __, 20__. _________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: _______________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 134