HomeMy WebLinkAbout11-09-21 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
E.FYI
F.Commission Disclosures
G.Consent
G.1 Accounts Payable Claims Review and Approval (Stewart)
THE CITY COMMISSION OF BOZEMAN, MONTANA
REGULAR MEETING AGENDA
Tuesday, November 9, 2021
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G.2 Sub-grantee Acceptance of the Edward Byrne Memorial Justice Assistance Grant in the
Amount of $103,880 and Authorization to Sign the Contract with Gallatin County Allocating
the Use of Those Funds(Veltkamp)
G.3 Authorize the City Manager to Sign the Low Income Home Water/Wastewater Assistance
Program Contractor Application and Contract(Donald)
G.4 Authorize the City Manager to Sign a Contract for General Contractor / Construction
Manager Services for the Bozeman Public Library Expansion(Henderson)
G.5 Authorize the City Manager to Sign a Professional Services Agreement with Ken VanDeWalle
Architect AIA, Inc. for Architectural Services for East Aspen Pedestrian Bridge(Fine)
G.6 Authorize the City Manager to Sign a Professional Services Agreement with Morrison
Maierle for North Seventh Streetscape Project Engineering(Fine)
G.7 Authorize the City Manager to Sign an Amendment 1 to the Professional Services
Agreement with Advanced Engineering and Environmental Services, Inc. for the Bozeman
Wastewater Collection System Model Update(Lehigh)
G.8 Authorize the City Manager to Sign the Second Amendment to Professional Services
Agreement with MacDonald Consulting for Lobbying Services(Veselik)
G.9 Resolution 5351 Confirming the Appointment of a Police Officer in Accordance with
Montana Code Annotated 7-32-4108 and 7-32-4113(Veltkamp)
G.10 Resolution 5352 Authorizing Change Order 4 with COP Construction for the Davis Lane Lift
Station and Norton East Ranch Outfall Sewer Project(Murray)
G.11 Ordinance 2084 Final Adoption: Ordinance Generally Revising Laws and Regulations Related
to Marijuana(Saverud)
G.12 Ordinance 2088 Final Adoption of the Gran Cielo Subdivision Phase 2 Zone Map
Amendment to Change 8.552 Acres From R-4, Residential High Density District to R-5,
Residential Mixed Use High Density District at the Northwest Corner of the Intersection of S
27th Avenue and Bennett Boulevard, Application 21095(Saunders)
G.13 Ordinance 2092 Final Adoption Amending Bozeman Municipal Code Section 2.03.540
governing Gifts, Gratuities, and Favors(Giuttari)
G.14 Ordinance 2094 Final 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)
H.Consent II: Items Acted Upon Without Prior Unanimous Approval
H.1 Ordinance 2093 Final Adoption of the Gallatin County Rest Home Zone Map Amendment to
Revise the Zoning Map on 9.8 acres at 1221 Durston Road from R3 Medium Density
Residential to R4 High Density Residential, Application 21330(Saunders)
I.Public Comment
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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.
J.Special Presentation
J.1 First Quarter Financial Report(Donald)
K.Action Items
K.1 Resolution 5338 Creation of Special Improvement Lighting District 766, Northwest Crossing
Phase 1(Donald)
K.2 Resolution 5340 Creation of Special Improvement Lighting District 768 for Allison
Subdivision Phase 4A(Donald)
K.3 Resolution 5342 Creation of Special Improvement Lighting District 767, Bozeman Gateway
Subdivision PUD Phase 4 (West Garfield St.)(Donald)
K.4 Resolution 5349 Amending the City Annual Budget for the Street Impact Fee Fund and the
Arterial & Collector District Fund FY22 Appropriations and Amend the Capital Improvement
Plan(Donald)
K.5 Resolution 5350 Amending the City Annual Budget for the Building Inspection Fund FY22
Appropriations.(Donald)
L.Work Session
L.1 Annexation Policy for City Initiated Annexations (Mihelich)
M.FYI / Discussion
N.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.
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Memorandum
REPORT TO:City Commission
FROM:Levi Stewart, Interim Accounting Technician
Kristin Donald, Finance Director
SUBJECT:Accounts Payable Claims Review and Approval
MEETING DATE:November 9, 2021
AGENDA ITEM TYPE:Finance
RECOMMENDATION:The City Commission approves payment of the claims.
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:Section 7-6-4301 MCA states that claims should not be paid by the City until
they have been first presented to the City Commission. Claims presented to
the City Commission have been reviewed by the Finance Department to
ensure that all proper supporting documentation has been submitted, all
required departmental authorized signatures are present indicating that the
goods or services have been received and that the expenditure is within
budget, and that the account coding is correct.
UNRESOLVED ISSUES:Please approve checks dated October 27th, which did not make it on to the
agenda for October 26th, due to clerical error. Please approve checks dated
November 3rd, due to there being no commission meeting on November
2nd.
ALTERNATIVES:As suggested by the City Commission.
FISCAL EFFECTS:The total amount of the claims to be paid is presented at the bottom of the
Expenditure Approval List posted on the City’s website at
http://www.bozeman.net/government/finance/purchasing. Individual claims
in excess of $100,000: to be announced in weekly e-mail from Interim
Accounting Technician Levi Stewart.
Report compiled on: October 29, 2021
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Memorandum
REPORT TO:City Commission
FROM:Jeff Mihelich, City Manager
Jim Veltkamp, Police Chief
SUBJECT:Sub-grantee Acceptance of the Edward Byrne Memorial Justice Assistance
Grant in the Amount of $103,880 and Authorization to Sign the Contract
with Gallatin County Allocating the Use of Those Funds
MEETING DATE:November 9, 2021
AGENDA ITEM TYPE:Grant
RECOMMENDATION:Approve sub-grantee acceptance of the grant and authorize Police Chief Jim
Veltkamp to sign the contract with Gallatin County.
STRATEGIC PLAN:1.3 Public Agencies Collaboration: Foster successful collaboration with other
public agencies and build on these successes.
BACKGROUND:On July 1, 2021, the Montana Board of Crime Control (MBCC) / US
Department of Justice awarded Gallatin County $223,540 in federal funds to
operate the Missouri River Drug Task Force (MRDTF). As a sub-grantee of
the grant, the City of Bozeman’s portion of the award is $72,716. There is a
local match requirement of $31,164, for a total contract of $103,880.
The Bozeman Police Department currently allocates two full time detectives
to MRDTF and has been a member of the task force since 1990. The mission
of MRDTF is to provide a collaborative federal, state and local law
enforcement effort to identify, target and address those involved in drug
trafficking, manufacture and/or violence. MRDTF operates in seven area
counties, with a variety of agencies contributing detectives. MRDTF focuses
on conducting long-term investigations to disrupt and dismantle drug
organizations. This approach focuses on targeting the sources of dangerous
drugs moving into the area to decrease the supply and prevent more
community members from experiencing the devastating effects of ingesting,
and potentially becoming addicted to, dangerous drugs.
The impact of MRDTF's regional efforts have been substantial. For the
second quarter of FY21, for example, MRDTF seized 6,541 grams of
methamphetamine, along with a variety of other drugs. They also conducted
educational drug talks to 165 attendees, seized $29,733 in drug proceeds,
conducted 6 investigations involving drug endangered children, and served
21 search warrants.
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UNRESOLVED ISSUES:None.
ALTERNATIVES:As suggested by the City Commission.
FISCAL EFFECTS:Approval of this proposal will have a fiscal impact of $31,164, accounted for
in the departmental budget.
Attachments:
Program Face Sheet and Exhibits.pdf
Report compiled on: October 21, 2021
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Memorandum
REPORT TO:City Commission
FROM:Kristin Donald, Finance Director
SUBJECT:Authorize the City Manager to Sign the Low Income Home
Water/Wastewater Assistance Program Contractor Application and Contract
MEETING DATE:November 9, 2021
AGENDA ITEM TYPE:Agreement - Vendor/Contract
RECOMMENDATION:Authorize the City Manager to sign the Low Income Home
Water/Wastewater Assistance Program Contractor application and contract
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:A temporary emergency Low-Income Home Water Assistance Program1
(LIHWAP) is being developed to provide low-income households assistance
in paying their water and wastewater bills. Funds will be sent directly to
Public Water System (PWS) operators to be credited to income eligible
household accounts to reduce arrearages, prevent shutoffs and reduce
monthly rates. This program is slated to operate from October 1, 2021
through September 30, 2023. Households will apply for assistance through a
process coordinated with the Low-Income Energy Assistance (LIEAP)
program.
The MT Department of Public Health and Human Services is providing the
opportunity to PWS providers to participate in this program through a
contract with the Department in order to receive and provide this assistance
to income eligible households.
This will be the City's application and contract to be a provider for the
program.
UNRESOLVED ISSUES:None.
ALTERNATIVES:As suggested by the Commission.
FISCAL EFFECTS:None, the program will supplement bills of households enrolled in the
program.
Attachments:
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LIHWAP PWS Letter Contract.pdf
Report compiled on: October 20, 2021
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Greg Gianforte, Governor
Adam Meier, Director
Department of Public Health and Human Services
Human and Community Services Division Intergovernmental Human Services Bureau PO Box 202956 Helena, MT 59620-2956
DATE: July 19, 2021
TO: Public Water System Providers
FROM: Sara Loewen, DPHHS Intergovernmental Human Services Bureau Chief
SUBJECT: Low-Income Home Water Assistance Program (LIHWAP) Contractor Application
and Contract
A temporary emergency Low-Income Home Water Assistance Program1 (LIHWAP) is being
developed to provide low-income households assistance in paying their water and wastewater
bills. Funds will be sent directly to Public Water System (PWS) operators to be credited to
income eligible household accounts to reduce arrearages, prevent shutoffs and reduce monthly
rates. This program is slated to operate from October 1, 2021 through September 30, 2023.
Households will apply for assistance through a process coordinated with the Low-Income
Energy Assistance (LIEAP) program.
The MT Department of Public Health and Human Services is providing the opportunity to PWS
providers to participate in this program through a contract with the Department in order to
receive and provide this assistance to income eligible households. The Department is beginning
the process of securing contracts with PWS providers interested in participating in the LIHWAP.
The following documents are enclosed:
1. A copy of the (DPHHS-HWAP-001) Low Income Home Water Assistance Program
Contractor Application and Contract for the time period October 1, 2021 through
September 30, 2023.
Complete the Contractor Information sections, including the Contractor Taxpayer ID
number field. Sign the bottom of page three. The contract will be signed by a
Department representative and a copy will be returned for your records.
2. A Taxpayer Identification Number (TIN) Verification (W-9) form. The completed W-9
form is required to receive payments from the Department. The W-9 form will be used
to verify the TIN and the address where the 1099 form will be sent.
1 The LIHWAP program is authorized under Section 533 Title V of Division H of the Consolidated
Appropriations act of 2021, Public Law No: 116-260 and as provided for under The American Rescue Plan Act
(ARPA). Additional information can be found at: https://www.acf.hhs.gov/ocs/programs/lihwap.
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3. A Payment Address Form to complete and return if the mailing address for the LIHWAP
payment is to be made to an address other than the one entered on the W-9 form.
4. A Direct Deposit Sign-up Form to complete if your company would prefer to have
payments made directly to your financial institution. A written Statement of Remittance
(SOR) will be mailed as usual but LIHWAP funds will be available at least one day earlier.
In order to participate and receive funds under this program, items #1 and #2 (above) must be
completed and returned, along with items #3 and #4 if applicable.
These documents should be mailed to:
DPHHS LIHWAP, PO Box 202925, Helena, MT 59620
We encourage all Public Water System providers to complete the above information in order to
participate in the program and allow their customers to receive this assistance.
Look for additional information (coming soon) at www.lieap.mt.gov. A list of frequently asked
questions will be available. You can also email Program Specialist Sheri Shepherd at
sshepherd2@mt.gov.
Thank you for considering participating in the Low Income Home Water Assistance Program
aimed at reducing arrearages and rates of low-income households, particularly those with the
lowest incomes, that pay a high proportion of household income for drinking water and
wastewater services.
Sara Loewen
Intergovernmental Human Services Bureau Chief
Human and Community Services Division, MT DPHHS
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DPHHS-HWAP-001 Montana Department of Public Health and Human Services
(Rev. 7/2021) Human and Community Services Division, P.O. Box 202956, Helena, Montana 59620-2956
2021-2023
LOW INCOME HOME WATER/WASTEWATER ASSISTANCE PROGRAM
CONTRACTOR APPLICATION AND CONTRACT
Contractor Name:
Mailing Address: Type(s) Service Supplied: ❑Water and Wastewater
❑Water Only ❑Wastewater only
City, State Zip: Contractor Taxpayer ID# (EIN or SSN)
Email Address: Telephone #:
Type of Entity: ❑ Partnership (Must use EIN) ❑Individual/Sole Proprietor (EIN or SSN)❑Corporation (Must use EIN)
A completed Form W-9 must be submitted with this contract.
Contractor Number Issued by DPHHS:
THIS CONTRACT, is entered into by and between the MONTANA DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES (hereinafter
referred to as the "Department"), and the home Public Water or Wastewater supplier identified above, (hereinafter referred to as the
"Contractor").
WITNESSETH THAT, in consideration of the mutual covenants and agreements herein contained, the parties agree as follows:
1.The purpose of this contract shall be to assist low income households (Eligible Customers) to offset the cost of water and/or
wastewater services under the Low Income Home Water/Wastewater Assistance Program (LIHWAP) is authorized under Section
533 Title V of Division H of the Consolidated Appropriations Act, 2021, Public Law No: 116-260 and as provided for under the
American Rescue Plan Act. ,
2.The effective date and duration of this contract shall be October 1, 2021 through September 30, 2023.
3.To receive direct payments from the Department under LIHWAP, the Contractor agrees:
a.To provide appropriate and timely delivery of home water and/or wastewater services to Eligible Customers.
b.To charge the Eligible Customers the difference between the actual cost of the home water and/or wastewater services and
the amount of the payment made by the Department.
c.Not to adversely discriminate in the cost, services or treatment provided to the Eligible Customer on whose behalf a LIHWAP
payment is made.
d.To provide to the Department upon request, with written reconciliation and confirmation that benefits have been credited
appropriately to households and their services have been restored on a timely basis or disconnection status has been
removed if applicable. The reconciliation must show amount applied to each eligible recipient account for arrearages, late
fees, reconnection fees and/or regular monthly bill rate reduction.
e.To clearly enter, on LIHWAP households’ bill, the amount of LIHWAP payment(s) received in a manner which identifies the
payment as received from LIHWAP.
f.That any funds paid by the Department will be used only to meet an Eligible Customer's home water and/or wastewater
service needs. Resale or transfer of funds paid to any other party is prohibited.
g.Provide all cost and consumption data for LIHWAP recipients to the Department.
4.In consideration of the assurances given in Section 3 of this contract, the Department agrees each Federal Fiscal Year to:
a.Determine which customers are eligible for LIHWAP.
b.Pay the Contractor an amount determined by the Department LIHWAP policies in accordance with the approved LIHWAP
State Plan.
c.Upon receipt of LIHWAP eligibility notification, pay the Contractor on a schedule determined by the Department.
City of Bozeman
PO Box 1230
Bozeman, MT 59771-1230
x
EIN 81-6001238
kdonald@bozeman.net 406-582-28318
Local Government
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5.The Contractor agrees to:
a.Credit the payment amount to the eligible customer’s account when received and identified by the statement of remittance.
b.Use the LIHWAP payment only to pay home water and/or wastewater service obligations the LIHWAP customer previously
incurred or incurs during the period from October 1, 2021 through September 30, 2023. for which the payment was issued,
Funds may be used to reduce arrearages and/or rates charged to the eligible household o provide continuity of water
services, including prevention of disconnection and restoration of water services to households whose water services were
previously disconnected.
c.Return to the Department any LIHWAP-attributable credit balance no later than September 30, 2023 and include customer’s
name, LIHWAP benefit issuance date, and account number with the returned funds.
d.Return to the Department within ninety (90) days from the date of discontinued service, which includes, but is not limited to,
changes of address, account number, or death of recipient, any credit balance and/or line of credit in an eligible customer’s
account that is identifiable as LIHWAP funds. Include customer’s name, LIHWAP benefit issuance date, and account number
with remittance.
e.Provide as requested, to facilitate State compliance with Federal reporting requirements, LIHWAP recipients’ annual water
and/or wastewater service consumption data and written reconciliation of LIHWAP funds applied to the recipient’s account..
f.The mailing address for returned funds is DPHHS/HCSD, P.O. BOX 202956, HELENA, MT 59620.
g.LIHWAP funds may not be used for the purchase or improvement of land or the purchase, construction, or permanent
improvement of any building or facility.
h.Report any financial fraud, abuse or misconduct by recipients or in the administration of LIHWAP. If there are reasonable
grounds to believe that fraud, abuse or misconduct has occurred call 406-447-4269 or email sshepherd2@mt.gov.
i.Cooperate with all investigations of suspected fraud, abuse or misconduct.
6.The Contractor will comply with the Civil Rights Act of 1964. The Contractor agrees that no person shall, on the grounds of race,
color, national origin, creed, sex, religion, political ideas, marital status, age or handicap be excluded from employment or
participation in, be denied benefits, or be otherwise subject to discrimination under any program or activity connected with the
implementation of this contract, and further agrees that affirmative steps will be taken to employ or advance in employment
qualified handicapped individuals. The Contractor further agrees that all hiring done in connection with this contract shall be based
on merit qualification genuinely related to competent performance of the occupational task.
7.The use or disclosure, by any party, of any information concerning a claimant in violation of any rule of confidentiality, or for any
purpose not directly connected with the administration of the Department's or the Contractor's responsibility with respect to
services hereunder, is prohibited, except on written consent of the claimant, or the court appointed guardian of a claimant.
8.The Contractor will comply with all applicable regulations and formal Department policies, including those pertaining to licensing, in
performing this contract.
9.The Contractor agrees to submit all reports and documents required by this contract or by federal or state law or regulations, timely
in the form required by the Department.
10.The Contractor agrees that it will, at all times, indemnify the Department and hold it harmless from any and all losses and claims that
may result to the Department because of any negligence on the part of the Contractor, its agents, representatives or employees.
11.The Contractor agrees not to subcontract, assign or transfer any work contemplated under this contract without prior written
approval of the Department.
12.The Contractor shall not be liable for failure to perform under this contract if such failure to perform arises out of causes beyond the
control and without the fault or negligence on the part of the Contractor. Such causes may include, but are not restricted to, acts of
God or the public enemy, fires, floods, epidemics, quarantine restrictions, freight embargoes, and unusually severe weather; but in
every case the failure to perform must be beyond the control and without the fault or negligence of the Contractor.
13.The parties agree that if anticipated government funds are reduced or become unavailable any time during the term of the contract,
the Department is not obligated to continue performance of this contract beyond the date the federal or state funds are reduced or
become unavailable.
14.If the Contractor fails to provide services called for by this contract or to provide such services within the time specified herein, or
any extension thereof, the Department may withhold payment or by written notice of default to the Contractor, terminate the
whole or any part of the contract upon written notice. This contract may be canceled or terminated by either of the parties without
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cause, however; the parties seeking to terminate or cancel this contract must give written notice of its intention to do so to the
other party at least thirty (30) days prior to the effective day of cancellation or termination.
15.The State of Montana, the Department, the U.S. Department of Health and Human Services, and the Comptroller General of the U.S.,
or any of their duly authorized representatives, shall have the right of access to any books, documents, papers and records of the
Contractor which are pertinent to the services provided under this contract, for purposes of making audit, excerpts or transcripts.
Further, for purposes of verifying cost or pricing data submitted in conjunction with the negotiation of this contract or any
amendments thereto, the State shall until the expiration of eight (8) years from the completion date of a program year, have the
right to examine those books, records, documents, papers, and other supporting data which involve transactions related to this
contract or which will permit adequate evaluation of the cost or pricing data submitted, along with the computations and
projections used therein. The Contractor's accounting procedures and practices shall conform to generally accepted accounting
principles.
16.Financial records, supporting documents, statistical records and all other records supporting the services provided by the Contractor
under this contract shall be retained for a period of eight (8) years from the completion date of a program year. The Contractor
agrees to make the records described herein available at all reasonable times at the Contractor's general offices. If any litigation,
claim or audit is started before the expiration of the eight-year period, the records shall be retained until all litigations, claims or
audit findings involving the records have been resolved.
17.The Contractor assures the Department that the Contractor is an independent contractor providing services for the Department and
that neither the Contractor nor any of the Contractor’s employees are employees of the Department under this contract, nor will be
considered employees of the Department under any subsequent amendment to this contract unless otherwise expressed.
The Contractor must obtain and maintain workers’ compensation coverage for the Contractor and the Contractor’s employees as
provided in Montana law (39-71-401 and 39-71-405, MCA, and as they may be subsequently amended, modified or altered). The
Contractor must provide the Department with proof of compliance with the relevant statutory provisions cited herein. The
Contractor need not obtain workers’ compensation coverage or an exemption therefrom, if the contract is one for casual
employment as exempted at 39-71-401(2)(b), MCA.
18.The parties agree that in the event of litigation concerning this contract, venue shall be in the First Judicial District in and for the
County of Lewis and Clark, State of Montana.
19.This instrument contains the entire contract between the parties and no statements, promises or inducements made by either party
or agents of either party that are not contained in this contract, shall be valid or binding. This contract may not be enlarged,
modified or altered except in written amendments.
IN WITNESS THEREOF, the parties have executed this contract on the dates set out below.
CONTRACTOR
______________________________________________________
Signature of Authorized Agent Date
______________________________________________________
Title of Authorized Agent
(Owner, Partner, Manager, Bookkeeper, President/Vice President, Office Clerk)
MONTANA DEPARTMENT OF PUBLIC
HEALTH AND HUMAN SERVICES
______________________________________________________
Sara Loewen, Date
Intergovernmental Human Services Bureau Chief
Human and Community Services Division
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Memorandum
REPORT TO:City Commission
FROM:Jon Henderson, Strategic Services Director
SUBJECT:Authorize the City Manager to Sign a Contract for General Contractor /
Construction Manager Services for the Bozeman Public Library Expansion
MEETING DATE:November 9, 2021
AGENDA ITEM TYPE:Agreement - Vendor/Contract
RECOMMENDATION:Authorize City Manager to sign a contract for general contractor /
construction manager services for the Bozeman Public Library Expansion.
STRATEGIC PLAN:5.1 Civic and Cultural Infrastructure: Expand Bozeman's civic and cultural
"infrastructure" as the city grows.
BACKGROUND:On October 12, 2021 the City Commission adopted Resolution No. 5347
authorizing the use of an alternative project delivery contract for General
Contractor / Construction Manager services for the Bozeman Public Library
Expansion. This project will result in a renovation and possible expansion of
the current facility to meet growing program needs, in addition to expanded
meeting room space.
The General Contractor / Construction Manager (GC/CM) will work with the
design team to provide pre-construction services including cost estimates
and constructability review, in addition to performing all construction
services through the completion of the project.
Martel Construction, Inc. was selected through a competitive RFQ/RFP
process for professional services. This agreement has been reviewed by the
Legal Department and found to be acceptable in meeting the City’s
specifications and standards.
UNRESOLVED ISSUES:None.
ALTERNATIVES:As directed by the City Commission.
FISCAL EFFECTS:Fees for pre-construction services total $19,740. A Guaranteed Maximum
Price Amendment (GMP) will be required prior to initiating construction,
based on successful bids anticipated in early 2022. The Bozeman Public
Library Expansion will be funded by the Library Foundation through a
combination of capital reserves and donor contributions.
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Attachments:
1 - Contract between City and GCCM.docx
2 - Pre-Construction Services Conditions.docx
3 - General Conditions.docx
4 - Nondiscrimination and Equal Pay Affirmation.docx
Report compiled on: October 30, 2021
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CONTRACT BETWEEN OWNER AND GENERAL CONTRACTOR/
CONSTRUCTION MANAGER FOR
Bozeman Public Library Expansion
This CONTRACT is made as of:______________, 2021
BETWEEN:
Martel Construction, Inc.
1203 South Church Avenue
Bozeman, MT 59715
Hereinafter identified as the “CONTRACTOR” and:
City of Bozeman
P.O. Box 1230
20 East Olive Street
Bozeman, Montana 59771
hereinafter identified as the “OWNER”.
WITNESSETH that the Contractor and the Owner, for the consideration hereinafter named, agree as follows:
ARTICLE 1 – SCOPE OF WORK
The Contractor shall perform allWork as shown in the Contract Documents.
ARTICLE 2 – CONTRACT SUM
The Owner shall pay the Contractor for performance of the Work, Subject to additions and/or deductions by
Change Order or damages as provided in the Contract Documents, the contract Sum of:
Nineteen Thousand Seven Hundred and Forty Dollars ($19,740)
ARTICLE 3 – DESIGNATED REPRESENTATIVES
Owner’s Designated Representative:
Jon Henderson, Strategic Services Director
P.O. Box 1230
20 E. Olive Street
Bozeman, MT 59771
406-582-2250
jon.henderson@bozeman.net
Contractor’s Designated Representative:
Tony Martel, Chairman
Martel Construction, Inc.
1203 South Church Avenue
Bozeman, MT 59715
(406) 586-8585
tmartel@martelconstruction.com
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ARTICLE 4 – CONTRACT DOCUMENTS
The Contract Documents, together with this Contract, form the entire Contract and Agreement between the
Contractor and Owner. The Contract Documents, which are totally and completely a part of this Contract as if
attached hereto or repeated herein, are enumerated in the General Conditions of the Contract for Construction
inclusive of Wage Rates,Reports, and all other items bound with the Specifications and/or Project Manual(s).
ARTICLE 5 – PREVAILING WAGE SCHEDULE
The Contractor and all subcontractors at any tier or level shall, as a minimum, pay the standard prevailing rate of
wages schedule (including per diem, fringe benefits for health, welfare, and pension contributions and travel
allowance) in effect and as applicable to the district in which the Work is being performed.
ARTICLE 6 – VENUE
In the event of any mediation, arbitration, or litigation concerning any matter or dispute arising out of or related to
the Contract, venue shall be the Eighteenth Judicial District in and Gallatin County, Montana. The Contract shall
be interpreted and subject to the laws of the State of Montana.
EXECUTION OF THIS CONTRACT
This Contract is entered into as of the day and year first written above:
CONTRACTOR:
MARTEL CONSTRUCTION, INC.
OWNER:
CITY OF BOZEMAN
By: ________________________________
(signature)
By: ________________________________
(signature)
Tony Martel
Chairman
Jeff Mihelich
City Manager
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PRE-CONSTRUCTIONSERVICESCONDITIONS
Bozeman Public Library Expansion
1. ARTICLE 1 – DEFINITIONS
1.1.BASIC DEFINITIONS – The terms below are expressly defined as follows:
1.1.1.Affiliate. Affiliate shall mean any subsidiary of General Contractor/Construction Manager (GC/CM),
and any other entity in which GC/CM has a financial interest or which has a financial interest in
GC/CM (including without limitation parent companies, related businesses under the same holding
company, or any other business controlled by, under common control with, or which controls
GC/CM).
1.1.2.Allowances. Allowances shall mean the allowance amounts shown in the Guaranteed Maximum
Price (GMP) Supporting Documents, together with such further allowances as may be developed
by the parties as the Project progresses.
1.1.3.Amendment. Amendment shall mean a written modification of this Contract (including without
limitation any agreed change to the GMP), identified as an Amendment, and executed by GC/CM
and the Owner.
1.1.4.Change Order. Change Order shall mean a written modification of this Contract as identified in
the General Conditions of the Contract for Construction (including without limitation any agreed
change to GMP),identified asaChangeOrder andexecutedbytheGC/CMandthe Owner. Change
Orders shall be issued only for Owner Scope Changes and unforeseen conditions.
1.1.5.Construction Manager (CM). CM shall have the meaning given herein below as GC/CM and
CM/GC.
1.1.6.Construction Documents. Construction Documents shall be those prepared by the Engineer for
the Project as described in the contract between Owner and Engineer.
1.1.7.Construction Phase. The Construction Phase shall mean the period commencing on the Owner's
execution of a GMP Amendment or EarlyWork Amendment, together with the earlier of (i) issuance
by Owner of a Notice to Proceed with any on-site construction or (ii) execution of a subcontract or
issuance of a purchase order for materials or equipment required for the Work.
1.1.8.Construction Phase Services. Construction Phase Services shall mean all of the Work other than
the Preconstruction Phase Services.
1.1.9.Contract Documents. Contract Documents shall have the meaning given in the General Conditions
of the Contract for Construction.
1.1.10. Design Development Documents. The Design Development Documents shall be as described in
the scope of services of the Owner’s Agreement with the Engineer for this Project.
1.1.11. Early Work. Early Work shall mean Construction Phase Services authorized by Amendment that
the parties agree should be performed in advance of establishment of the GMP. Permissible Early
Work shall be limited to: early procurement of materials and supplies; early release of bid or
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proposal packages for site development and related activities; and any other advance work
related to critical componentsoftheProjectforwhichperformancepriortoestablishmentoftheGMP
will materially affect the critical path schedule of the Project.
1.1.12. Early Work Amendment. Early Work Amendment shall mean an Amendment to this Contract
executed by and between the parties to authorize Early Work.
1.1.13. Guaranteed Maximum Cost for Reimbursable expenses for General Conditions Work
(GMCR). Guaranteed Maximum Cost for General Conditions Work or GC Work shall mean
that guaranteed maximum sum identified herein below.
1.1.14. General Conditions Work. General Conditions Work (“GC Work”) shall mean (i) that portion of the
Work required to support construction operations that is not included within overhead or general
expense but is called out as GC Work, and (ii) any other specific categories of Work approved
in writing by the Owner as forming a part of the GC Work. GC Work is defined and submitted
during the GC/CM solicitation phase and is described as Guaranteed Maximum Cost for
Reimbursable (GMCR) expenses for General Conditions.
1.1.15. General Contractor/Construction Manager (GC/CM). GC/CM shall mean the entity contracted for
by the Owner to provide Pre-Construction and Construction Services as identified herein below and
in the General Conditions of the Contract for Construction. Construction Manager/General
Contractor (CM/GC) shall have the same meaning as GC/CM. GC/CM and CM/GC includes the
“Contractor” as identified in the General Conditions of the Contract for Construction.
1.1.16. Guaranteed Maximum Price (GMP). GMP shall mean the Guaranteed Maximum Price of this
Contract, as stated in dollars within the GMP Amendment,as determinedherein below and as it may
be adjusted from time to time pursuant to the provisions of this Contract.
1.1.17. GMP Amendment. GMP Amendment shall mean an Amendment to this Contract, issued and
executed by and between the parties, to establish the GMP and identify the GMP Supporting
Documents and Construction Documents for Construction Phase Services. Where “bid” and
all modifications are referencedintheGeneral Conditionsof theContractfor Construction,the word
is interchangeable with the GMP.
1.1.18. GMP Supporting Documents. GMP Supporting Documents shall mean the documents referenced
in the GMP Amendment as the basis for establishing the GMP. The GMP Supporting Documents
shall expressly identify the Plans and Specifications, assumptions, qualifications, exclusions,
conditions, allowances, unit prices, and alternates that form the basis for the GMP.
1.1.19. Preconstruction Phase. The Preconstruction Phase shall mean the period commencing on the
date of this Contract and ending upon commencement of the Construction Phase; provided that if
the Owner and GC/CM agree,the Construction Phase may commence before the
Preconstruction Phase is completed, in which case both phases shall proceed concurrently,
subject to the terms and conditions of the Contract Documents.
1.1.20. Preconstruction Phase Services. Preconstruction Phase Services shall mean all services
described herein below, including such similar services as are described in the Request for
Proposals (RFP) and the GC/CM's RFP Response to the extent they are accepted by Owner,
but excluding any Early Work. EarlyWork shall be considered part of Construction Phase Services.
1.1.21. Schematic Design Documents. Schematic Design Documents shall be as described in the scope
of services of the Owner’s Agreement with the Engineer for this Project.
1.1.22. Scope Change. Scope Change shall mean only (i) changed site conditions not reasonably
identifiable or inferable from information available to GC/CM at the time of execution of the GMP
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Amendment, (ii) significant Work modifications (including additions, substitutions, and deletions)
not reasonably identifiable or inferable from the Documents at every phase of design, and (iii)
application of Allowances and selection of alternates, all as approved by the Owner under this
Contract beyond that identified or inferable from the GMP Supporting Documents (but in the case
of Allowance items, the GMP will increase only if the cost to Owner of the Allowance items exceeds
the total amount of the Allowances).
Unless otherwise indicated, other capitalized terms shall have the meaning ascribed to them in the
General Conditions of the Contract for Construction.
2. ARTICLE 2 – CONTRACT DOCUMENTS
2.1.Integration with General Conditions of the Contract for Construction. The requirements of these Pre-
Construction Services Conditions are in addition to, and not in lieu of, the requirements of the
General Conditions of the Contract for Construction.
2.2.Contract Documents. Owner and the GC/CM agree to the terms of the Contract that are set forth in the
Contract Documents as identified in the General Conditions of the Contract for Construction.
2.3.Articles 3.1, 3.2, 11, 13, 14, and 15 of the “General Conditions of the Contract for Construction” also
apply in their entirety to the Pre-Construction Services phase.
3. ARTICLE 3 – SERVICES AND WORK OF THIS CONTRACT
3.1 Preconstruction Phase Services. The GC/CM agrees to provide all of the Preconstruction Phase
Services described below on an ongoing basis in support of, and in conformance with, the time frames
described in the Request for Proposals as updated by the Project Schedule throughout the course of
design and as coordinated with the Owner and Engineer. The Preconstruction Phase shall end on or
by MAY 1, 2022. If Preconstruction Phase continues beyond MAY 1, 2022 through no fault of the
GC/CM, additional compensation for extended Preconstruction Services may be negotiated with the
Owner. However, commencement of the Construction Phase shall not excuse GC/CM from
completion of the Preconstruction Phase Services, if such services have not been fully performed at
commencement of the Construction Phase.
3.2 The GC/CM shall provide the following services relating to design and construction tasks:
3.2.1 The GC/CM shall consult with, advise, assist, and provide recommendations to the Owner and
the Engineer on all aspects of the planning and design of the Work.
3.2.2 The GC/CM shall jointly schedule and attend regular meetings with the Engineer and Owner. The
GC/CM shall consult with and advise the Owner and Engineer regarding site use and
improvements, and the selection of materials, building systems and equipment.
3.2.3 The GC/CM shall provide recommendations on construction feasibility; actions designed to
minimize adverse effects of labor or material shortages; time requirements for procurement,
installation and construction completion; and/or factors related to construction cost including
estimates of alternative designs or materials, preliminary budgets and possible economic factors.
3.2.4 The GC/CM shall provide continuous in-progress review of design documents, including the
documents generally described in the industry as Schematic Design Documents, Design
Development Documents, and Construction Documents and provide input and advice on
completeness, clarity, construction feasibility, alternative materials, availability of trades and
subcontractors, and availability of labor and materials. The GC/CM shall review Owner design
review comments and provide input on resolution of design comments. Owner acknowledges that
the GC/CM is providing services in its capacity as a Contractor and not as a licensed design
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professional.
3.3 The GC/CM shall provide the following services related to the Project schedule:
3.3.1 The GC/CM shall prepare and periodically update a preliminary Project schedule for the Owner’s
review and approval.
3.3.2 The GC/CM shall coordinate and integrate the preliminary Project schedule with the services
and activities of the Owner, Engineer, and GC/CM. As design proceeds, GC/CM shall update the
preliminary Project schedule to indicate proposed activity sequences and durations, milestone
dates for receipt and approval of pertinent information, preparation and advertising of all bid
packages, submittal of a GMP proposal, preparation and processing of shop drawings and
samples, project phasing, delivery of materials or equipment requiring long-lead time procurement,
and Owner’s occupancy requirements showing portions of the Project having occupancy priority,
provided that the date(s) of Substantial Completion shall not be modified without Owner’s prior
written approval. If preliminary Project schedule updates indicate that previously approved
schedules may not be met, the GC/CM shall make appropriate recommendations to the Owner.
3.3.3 The GC/CM shall make recommendations to Engineer and Owner regarding the phased
issuance of Plans and Specifications to facilitate phased construction of the Work, if such
phased construction is appropriate for the Project, taking into consideration such factors as
economics, time of performance, availability of labor and materials, and provisions for temporary
facilities.
3.4 Provide the following services relating to cost estimating:
3.4.1 When Schematic Design Documents have been prepared by the Engineer and approved by the
Owner,theGC/CMshallprepareforthereviewoftheEngineerandapprovaloftheOwner, a detailed
estimate with supporting data.
3.4.2 When 100% Design Development Documents, have been prepared by the Engineer and submitted
for review by the Owner and the GC/CM, and approved by the Owner, the GC/CM shall prepare for
the review of the Engineer and approval of the Owner, a detailed estimate with supporting data.
During the preparation of the Design Development Documents, the GC/CM shall update and
refine this estimate at appropriate intervals agreed to by the Owner and GC/CM.
3.4.3 When 50% Construction Documents have been prepared by the Engineer and submitted for review
by theOwner and the GC/CM, and approved by the Owner, the GC/CM shall prepare a detailed
estimate with supporting data for review by the Engineer and approval by the Owner. During the
preparation of the Construction Documents, the GC/CM shall update and refine this estimate at
appropriate intervals agreed to by the Owner and GC/CM.
3.4.4 If any estimate submitted to the Owner exceeds previously approved estimates or the Owner’s
budget, the GC/CM shall make appropriate recommendations to the Owner.
3.4.5 GC/CM shall notify the Owner and the design team immediately if any construction cost
estimate appears to be exceeding the construction budget.
3.5 Perform the following services relating to Subcontractors and suppliers:
3.5.1 The GC/CM shall seek to develop Subcontractor and supplier interest in the Project, and shall
furnish to the Owner a list of possible Subcontractors and suppliers, including suppliers who
may furnish materials or equipment fabricated to a special design, from whom competitive bids,
quotes, or proposals (collectively, "Offers") will be requested for each principal portion of the Work.
Submission of such list is for information and discussion purposes only and not for prequalification.
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The receipt of such list shall not require the Owner to investigate the qualifications of proposed
Subcontractors and suppliers, nor shall it waive the right of the Owner later to object to or
reject any proposed Subcontractor, supplier, or method of procurement.
3.5.2 The GC/CM shall provide input to the Owner and the design team regarding current construction
market bidding climate, status of key subcontract markets, and other local/national economic
conditions. GC/CM shall determine the division of work to facilitate bidding and award of trade and
subcontracts, considering such factors as bidding climate,improving or accelerating
construction completion, minimizing trade jurisdictional disputes, and related issues.
3.5.3 The GC/CM shall recommend to the Owner and Engineer a schedule for procurement of long-
lead time items which will constitute part of the Work as required to meet the Project schedule,
which shall be procured by the GC/CM upon execution of either a GMP Amendment or Early
Work Amendment covering such procurement, and approval of such schedule by the Owner. The
GC/CM shall expedite the delivery of long-lead time items. The GC/CM shall investigate, plan,
and utilize a “just-in-time” delivery methodology, if feasible.
3.6 The GC/CM shall work with the Owner in identifying critical elements of the Work that may require
special procurement processes, such as prequalification of Offerors, subcontractors, or alternative
contracting methods.
3.7 Construction Phase Services.
3.7.1 Upon execution of an Early Work Amendment or GMP Amendment/Contract, the GC/CM shall
provide Construction Phase Services as provided in the Contract Documents, including without
limitation providing and paying for all materials, tools, equipment, labor and services, and
performing all other acts and supplying all other things necessary to perform and complete the
Work, as required by the Contract Documents, and to furnish to Owner a complete, fully functional
Project in accordance with the Contract Documents, capable of being legally occupied and fully
used for its intended purposes upon completion of the Contract (or, as to an Early Work
Amendment, to furnish such Work as is described in the Early Work Amendment). Construction
Phase Services shall include CM Services performed during the Construction Phase.
3.7.2 Notwithstanding any other references to Construction Phase Services in this Contract, this
Contract shall include Preconstruction Phase Services only unless (i) the parties execute a GMP
Amendment or (ii) the parties execute an Early Work Amendment.
3.7.3 The parties may execute one or more Early Work Amendments identifying specific Construction
Phase Services that must be performed in advance of establishment of the GMP, without exceeding
a not-to- exceed budget, a not-to-exceed guaranteed maximum price, or a fixed price ("Early Work
Price") to be stated in such Amendment, with such Amendment. If the Early Work Price is a not-to-
exceed budget, then GC/CM shall be obligated to perform the Early Work only to the extent that
the Cost of Work thereof, together with the GC/CM Fee, does not exceed the Early Work Price;
however if GC/CM performs Early Work with a cost in excess of the Early Work Price the GC/CM
shall pay such excess cost without reimbursement unless cost overruns are caused by conditions
that constitute a change within the Contract or to incorporate Work not included in the GMP
Amendment. If one or more Early Work Amendments are executed, the GC/CM shall diligently
continue to work toward development of a GMP Amendment acceptable to Owner, which shall
incorporate the Early Work Amendments. If Owner thereafter terminates the Contract prior to
execution of a GMP Amendment, the provisions of the General Conditions of the Contract for
Construction shall apply.
3.7.4 Prior to commencement of any Construction Phase effort, and in any event not later than
mutual execution of the GMP Amendment, GC/CM shall provide to Owner a full performance
bond and a payment security bond as required by the General Conditions in the amount of the
GMP. If an Early Work Amendment is executed, GC/CM shall provide such bond in the amount of
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the Early Work Price under the Early Work Amendment. GC/CM shall provide to Owner additional
or replacement bonds at the time of execution of any subsequent Early Work Amendment or GMP
Amendment, in each case prior to execution of the Amendment and the supplying of any labor or
materials for the prosecution of the Work covered by the Amendment, and in each case in a
sufficient amount so that the total bonded sum equals or exceeds the total Early Work Price or the
GMP, as the case may be. In the event of a Scope Change that increases the GMP, GC/CM shall
provide to Owner an additional or supplemental bond in the amount of such increase prior to
performance of the additional Work.
3.8 Construction Management (CM) Services. Throughout the Preconstruction Phase and Construction
Phase of the Project, the GC/CM shall provide CM Services, generally consisting of coordinating
and managing the building process as an independent contractor, in cooperation with the Owner,
Engineer and other designated Project consultants (the "Construction Principals"), all in accordance
with the General Conditions of the Contract for Construction and the Supplemental Conditions for
Construction. CM Services shall include, but are not limited to:
3.8.1 Providing all Preconstruction Phase Services described above;
3.8.2 Developing and delivering schedules,preparing construction estimates,performing
constructability review, analyzing alternative designs, studying labor conditions, coordinating and
communicating the activities of the Construction Principals throughout the Construction Phase to
all Construction Principals;
3.8.3 Continuouslymonitoring the Project schedule andrecommending adjustments to ensure completion
of the Project in the most expeditious manner possible;
3.8.4 Working with the Owner and the Engineer to analyze the design, participate in decisions
regarding construction materials, methods, systems, phasing, and costs, and suggest modifications
to achieve the goals of providing the Owner with the Project within the budget, GMP and schedule;
3.8.5 Providing Value Engineering ("VE") services ongoing through the Project. GC/CM shall develop
cost proposals, in the form of additions or deductions from the GMP, including detailed
documentation to support such adjustments and shall submit such proposals to Owner for its
approval. GC/CM acknowledges that VE services are intended to improve the value received by
Owner with respect to cost reduction or life-cycle costs of the Project;
3.8.6 Holding and conducting periodic meetings with the Owner and the Engineer to coordinate, update
and ensure progress of the Work;
3.8.7 Submitting monthly written report(s) to the Owner. Each report shall include, but shall not be limited
to, Project updates including (i) actual costs and progress for the reporting period as compared
to the estimate of costs; (ii) explanations of significant variations; (iii) work completed; (iv) work in
progress; (v) changes in the work; and (vi) other information as determined to be appropriate
by the Owner. Additional oral or written updates shall be provided to the Owner as deemed
appropriate by the GC/CM or as requested by the Owner;
3.8.8 Maintaining a daily log containing a record of weather, Subcontractors working on the site, number
of workers, Work accomplished, problems encountered, safety violations and incidents of personal
injury and property damage, and other similar relevant data as the Owner may reasonably require.
The log shall be available to the Owner and Engineer on request;
3.8.9 Developing and implementing a system of cost control for the Work acceptable to Owner,
including regular monitoring of actual costs for activities in progress and estimates for uncompleted
tasks and proposed changes. The GC/CM shall identify variances between actual and estimated
costs and report the variances to the Owner and Engineer at regular intervals;
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3.8.10 Cooperating with any and all consultants hired by Owner;
3.8.11 At Owner's request, cooperating and performing warranty and inspection Work for the Project
through the expiration date of the applicable warranty period;
3.8.12 Assisting Owner with start-up of the Project. Such start-up may occur in phases due to phased
occupancy;
3.8.13 If applicable, incorporating commissioning and inspection agents' activities into the Project
schedule and coordinating Subcontractors required to participate in the commissioning and
inspection process;
3.8.14 Performing all other obligations and providing all other services set forth in the Contract
Documents; and performing all other acts and supplying all other things necessary to fully and
properly perform and complete the Work as required by the Contract.
4. ARTICLE 4 – CONTRACT SUM AND GMP
4.1 Contract Sum. Owner shall pay the GC/CM the "Contract Sum" which shall equal the sum of the
Preconstruction Fee, Early Work Amendments, the GMP Amendment, plus any Change Orders as
applicable.
4.2 The GMP shall be determined in accordance with the formula set forth below and as described in
4.5. The "Cost of the Work" is defined in Article 5. Costs in excess of the GMP shall be paid by the
GC/CM without reimbursement by Owner.Changes to the GMP shall only be authorized by
Amendment or Change Order.
4.2.1 GMP = [GC/CM Fee X (Guaranteed Maximum Cost for Reimbursable expenses for General
Conditions GMCR + Estimated Cost of the Work (ECoW exclusive of the Contractor’s
Contingency))] + GMCR + Estimated Cost of the Work (ECoW inclusive of the Contractor’s
Contingency)
4.2.2 GC/CM Fee of 5.0%is calculated on the Estimated CoW (excluding GC/CM's Construction
Contingency, or lump-sum Contingency as agreed between Owner and Contractor) +
Guaranteed Maximum Cost for Reimbursable expenses for General Conditions GMCR.
4.2.3 The Contractor will not be due GC/CM Fee on the Construction Contingency.
4.3 Preconstruction Fee. The Preconstruction Fee is a lump-sum, fixed amount for all Pre-Construction
Services and shall be payable to GC/CM on a cost reimbursement basis up to a maximum sum of
$19,740, which shall cover constructability review, value engineering, cost estimating, development of
GMP, and all other Preconstruction Phase Services, expenses, reimbursements, and costs. If
GC/CM's costs for provision of Preconstruction Phase Services exceed the maximum Preconstruction
Fee, GC/CM shall pay such additional cost without reimbursement. GC/CM shall not be entitled to any
GC/CM Fee upon the Preconstruction Fee. Owner shall pay the Preconstruction Fee on a cost-
reimbursement basis with each application for payment during the Preconstruction Phase. If the total
actual Preconstruction Fee is less than the maximum Preconstruction Fee used for initial calculation
of the GMP as provided above, the GMP shall be reduced by the difference; provided that Owner may
direct instead that any applied portion of the maximum Preconstruction Fee be applied to Construction
Phase Services, in which case the GMP shall not be reduced by the portion so applied. Except to the
extent the parties may expressly agree to the contrary in the GMP Amendment, no Preconstruction
Fee or other fee, compensation or reimbursement shall be payable to GC/CM with respect to
Preconstruction Services performed after execution of the GMP Amendment.
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4.4 Establishment of GC/CM Fee; Adjustments to GC/CM Fee.
4.4.1 The "GC/CM Fee" shall be a fixed percentage of the Estimated Cost of Work identified in the
GMP Amendment, and shall be calculated as 5.0% of the Estimated Cost of the Work at the time
of establishment of the GMP. In making such calculation, the Estimated Cost of the Work shall
exclude the Preconstruction Fee, the GC/CM Fee itself, but shall include Allowances, selected
alternates, Fixed Cost for GC Work, and GMCR’s. The GC/CM Fee is inclusive of overhead and
profit and all other indirect or non- reimbursable costs. Owner shall pay the GC/CM Fee ratably
with each application for payment during the Construction Phase. In the case of Early Work, the
GC/CM Fee shall be the above percentage multiplied by the actual Cost of the Early Work.
4.4.2 Notwithstanding any provision of the General Conditions of the Contract for Construction to
the contrary, and unless the parties agree in writing to the contrary, any Amendment or Change
Order that increases or decreases the GMP shall adjust the GC/CM Fee then in effect by
multiplying the percentage shownin 4.4.1 bythe change inthe Estimated Costof theWork reflected
in such approved Amendment or Change Order. For any Amendment or Change Order that
increases or decreases the GMPbymorethan15%, parties maynegotiatea varianceto thecontract
Fee percentage. In addition, if the Contract is terminated for any reason prior to full completion
of the Work (including, without limitation, termination during or following performance of Early
Work), the GC/CM Fee shall be limited to the total GC/CM Fee multiplied by the percentage of
Work completed and accepted at the time of termination. The GC/CM Fee percentage shall not
be subject to adjustment for any other reason, including, without limitation, schedule extensions
or adjustments, Project delays, unanticipated costs, negligence, or unforeseen conditions.
4.5 Determination of GMP.
4.5.1 GC/CM shall deliver to Owner a proposed GMP and GMP Supporting Documents at a time
designated by Owner during the Preconstruction Phase. If any actual subcontract Offers are
available at the time the GMP is being established, GC/CM shall use those subcontract Offers as a
basis in establishing the GMP.
4.5.2 As the Plans and Specifications may not be developed to the stage of biddable construction
documents atthetimetheGMP proposalisprepared,theGC/CMshall provideintheGMPforfurther
development of the Plans and Specifications by the Engineer that is consistent with the Contract
Documents and reasonably identifiable and inferable therefrom. Such further development does
not include such things as changes in scope, systems, quantities, kinds and quality of materials,
finishes or equipment, all of which, if required, shall be incorporated by Change Order or
Amendment with a corresponding GMP adjustment, if any.
4.5.3 The GC/CM shall include with its GMP proposal a written statement of its basis (the "GMP
Supporting Documents"), which shall include at a minimum:
4.5.3.1 A list of the Plans and Specifications, including all addenda thereto and the conditions of the
Contract, which were used in preparation of the GMP proposal.
4.5.3.2 A list of Allowances and a statement of their basis.
4.5.3.3 A list of the clarifications and assumptions made by the GC/CM in the preparation of the GMP
proposal to supplement the information contained in the Plans and Specifications.
4.5.3.4 The proposed GMP, including a statement of the estimated cost organized by trade
categories, allowances, contingency, and other items and the associated fees that
comprise the GMP.
4.5.3.5 The Date of Substantial Completion upon which the proposed GMP is based, and a
schedule of the Construction Documents issuance dates upon which the date of Substantial
Completion is based.
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4.5.4 The GC/CM shall meet with the Owner and Engineer to review the GMP proposal and the written
statement of its basis. If the Owner or Engineer discovers any inconsistencies or inaccuracies
in the information presented, they shall promptly notify the GC/CM, who shall make appropriate
adjustments to the GMP proposal, its basis or both.
4.5.5 Prior to the Owner's acceptance of the GC/CM's GMP proposal and issuance of a Notice to
Proceed, the GC/CM shall not incur any cost to be reimbursed as part of the Cost of the Work,
except as specifically provided in an Early Work Amendment.
4.5.6 The Owner shall authorize and cause the Engineer to revise the Plans and Specifications to the
extent necessary to reflect the agreed-upon assumptions and clarifications contained in the GMP
Amendment. Such revised Plans and Specifications shall be furnished to the GC/CM in
accordance with schedules agreed to by the Owner, Engineer and GC/CM. The GC/CM shall
promptly notify the Engineer and Owner if such revised Plans and Specifications are inconsistent
with the agreed-upon assumptions and clarifications.
4.5.7 The GMP shall include in the Cost of the Work only those taxes which are enacted at the time the
GMP or Early Work is established.
4.5.8 The Guaranteed Maximum Price shall include the GC/CM's contingency, a sum established
for the GC/CM's use, with Owner approval (which may be requested and given in writing, by
telephone, or by email), to cover costs which are reimbursable as Cost of the Work but which are
not the basis for a Change Order. This contingency is not available for Owner-directed design
or scope changes and unforeseen or differing site conditions. GC/CM Contingency costs will be
reviewed monthly by the Owner for conformance with the Contract.
4.5.8.1 None of the following shall constitute a reimbursable Cost of the Work, or a change order, or
be paid for out of the GC/CM Contingency:
4.5.8.1.1 Means and methods or changes in means and methods;
4.5.8.1.2 Extensions of time for weather delays;
4.5.8.1.3 Extensions of time or delays for other than Owner-directed design or scope
changes, unforeseen conditions, or differing site conditions;
4.5.8.1.4 Damaged work or non-conforming work;
4.5.8.1.5 Out-of-sequence work;
4.5.8.1.6 Work or delays attributable to subcontractors and suppliers; or,
4.5.8.1.7 Delays or costs resulting from GC/CM decisions, management of the project, errors,
omissions, or negligence.
4.5.8.1.8 Under no circumstances will any GC/CM Contingency be used for negligence or
violations of law, building codes, or regulations.
4.5.8.2 All claims for use of GC/CM Contingency shall be subject to Paragraph 4.3 of the General
Conditions of the Contract for Construction. The Owner may, at its sole discretion, approve use
of the GC/CM Contingency on an individual event, case-by-case basis, without voiding or
waiving the use of Paragraph 4.3 of the General Conditions of the Contract for Construction.
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4.5.8.3 All claims for extension(s) of contract time shall be subject to Paragraph 4.3 of the General
Conditions of the Contract for Construction.
4.5.8.4 The GC/CM shall be liable to the Owner for construction administration expenses, including but
not limited to costs of the Engineer, as a result of time extensions or delays for other than
Owner-directed design or scope changes, weather delays, unforeseen conditions, or
differing site conditions.
4.5.9 The GC/CM shall work with the Engineer and Owner to identify and confirm components and
systems not specifically shown but required for a complete, fully functional Project. Owner will
direct the Engineer to complete the final Construction Documents in accordance with the Project
scope agreed upon by all parties at the time the GMP is established. In so doing, Owner
acknowledges that GC/CM is providing its services as a Contractor and not a design professional.
4.5.10 Notwithstanding the level of detail represented in the GMP Supporting Documents, the GC/CM
shall represent and warrant, at the time that it submits the GMP that the GMP includes the entire
cost of all components and systems required for a complete, fully functional facilities in
accordance with the Project scope agreed upon by all parties at the time the GMP is established.
4.5.11 In developing the GMP, the GC/CM shall include and identify such allowances and clarifications
within the GMP as may be necessary to pay for elements that are required for a complete, fully
functional Project.
4.6 Cancellation of Construction Phase Services. The Owner reserves the sole right at any time, with or
without cause, to terminate or cancel any or all pre-construction services and/or not pursue a GMP
Amendment/Contract with the GC/CM.
4.7 Failure to Furnish an Acceptable GMP. If the GC/CM does not furnish a GMP acceptable to Owner
within Owner's target GMP range, or if Owner determines at any time in its sole discretion that the
parties may fail to reach a timely agreement on a GMP acceptable to Owner, Owner may terminate this
Contract without liability, and the GC/CM shall not receive additional compensation beyond the
Preconstruction Fee under this Contract and sums due under any executed Early Work Amendment.
Termination under this provision shall proceed under Article 14 of the General Conditions of the
Contract for Construction as a termination for Owner's convenience. GC/CM further agrees that
Owner shall not be liable for any damages whether actual, consequential or otherwise, for termination
of the Contract under this provision.
4.8 Acceptance of GMP. Upon acceptance of the GMP by Owner, the parties shall execute a GMP
Amendment/Contract.
4.9 Owner Savings. If the sum of the remainder of the GC/CM Construction Contingency, plus the actual
and final Cost of the Work, is less than the GMP, the savings shall accrue to the Owner.
4.10 Allowance Work.
4.10.1 GC/CM shall not perform any Allowance Work without prior written approval by Owner for the
Allowance Work and the price thereof.
4.10.2 Owner shall be entitled to apply any Allowance line items that have not been fully expended to
other line item Allowances that have been fully expended, without any resulting increase in the
GMP.
4.10.3 If the total Cost of the Allowance Work exceeds the total Allowances within the GMP, GC/CM shall
not perform any Allowance Work in excess of such amount until either (i) the parties agree
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that the additional Allowance work will be performed within the then-current GMP or (ii) a GMP
Amendment or Change Order is executed to increase the GMP bythe excess cost of the Allowance
work.
4.10.4 The Contract Sum shall not include any Allowance items not identified in the GMP Amendment or
the GMP Supporting Documents.
4.10.5 If at the Final Completion of the Project, any portion of the Allowance funds remains unexpended,
the GMP shall be reduced by a corresponding amount via a Change Order or Amendment.
4.11 ReallocatingProjectedCost Under-runs after Bid(Offer) Buyout. As soon as possible after theawarding
of the Work to the primary Subcontractors, GC/CM shall review projected costs and provide the Owner
with a buy-out status report showing any projected cost under-runs, reconciling accepted Offers
and other reasonably anticipated costs, to the cost estimate used by GC/CM to establish the GMP.
This report shall be updated on a monthly basis and until such time that the buyout is complete. GC/CM
shall include with its report any underlying documentation requested by Owner used to develop or
support such report. GC/CM shall also consider the reduced risk associated with known
subcontracting costs, and the impact that reduced risk has on the amount of the GC/CM’s
Contingency. The parties shall negotiate in good faith to execute a Change Order transferring an
appropriate portion of any projected cost under-runs to an Owner-controlled contingency fund,
separate from the GC/CM Construction Contingency, to be held within the GMP to pay for additional
costs arising from (a) any Owner-directed or approved change to the Work, (b) schedule changes
that would otherwise entitle GC/CM to an increase in the GMP, (c) Allowance items after exhaustion
of all Allowances, (d) selection by Owner of more expensive alternates than those used for
calculation of the GMP, (e) Owner selection of substitutions that increase the Cost of the Work, or
(f) any other costs which otherwise would entitle GC/CM to an increase in the GMP. Transfer of an
appropriate portion of the under-runs to an Owner-controlled contingency shall occur no earlier than
80% buy-out completion unless agreed to by both parties.
4.12 Notice to Proceed. If Construction Phase Services are added to the Contract, then a notice to proceed
will be issued by the Owner to begin the designated or full Construction Phase Services (“Notice to
Proceed”). It is anticipated that the Notice to Proceed will be issued on or about April 1, 2021 with the
actual date to be provided in the GMP Amendment/Contract. A separate Notice to Proceed shall be
issued for each EarlyWork Amendment, if any.
4.13 Completion of Project. The GC/CM shall achieve Substantial Completion of the entire Work not later
than the date fixed in the Guaranteed Maximum Price Amendment.
4.14 Time is of the Essence. All time limits stated in the Contract Documents are of the essence.
4.15 Time Extensions. Notwithstanding provisions for Contract time extensions, Owner and GC/CM agree
that timely completion of the Work is essential to the success of the Project, and that approval for time
extension shall be granted only as a last resort.
4.15.1 GC/CM agrees to make reasonable effort to recover time from delays that are the
GC/CM’s responsibility and shall not consider this as a compensable, Owner-directed, or forced
acceleration.
4.15.2 If a compensable time extension is granted by the Owner, the GC/CM shall be limited to $(to be
defined in the GMP Amendment) per day extended overhead (office and field).
4.16 Liquidated Damages. The GC/CM acknowledges that the Owner will sustain damages as a result
of the GC/CM's failure to substantially complete the Project in accordance with the Contract
Documents. These damages mayinclude, but are not limited to delays in completion, use of theProject,
engineering costs to complete the Project, and costs associated with Contract administration and use of
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temporaryfacilities. TheGC/CMandtheOwneracknowledgethattheactual amount of damages would
be difficult to determine accurately and agree that that the following liquidated damages figure
represents a reasonable estimate of such damages and is not a penalty:
4.16.1 The GC/CM agrees to pay to the Owner the liquidated damage sums set forth in the General
Conditions for each day of delay or any fraction thereof and further agrees that Owner may deduct
such sums from payments the Owner otherwise owes to GC/CM under the Contract. If such
deduction does not result in payment to Owner of the assessed liquidated damages in full, GC/CM
shall promptly pay any and all remaining sums due to the Owner upon demand.
5.ARTICLE 5 – COSTS OF THE WORK (REIMBURSABLE, INCLUDED IN THE GMP)
5.1 Cost of the Work. The term "Cost of the Work" shall mean the costs as described herein. The Cost of
the Work shall include only those items necessarily and reasonably incurred by GC/CM in the proper
performance of the Work and specifically identified in this Article, and only to the extent that they are
directly related to the Project.
5.1.1 Labor Costs.
5.1.1.1 Wages paid for all labor and construction workers directly employed by the GC/CM in
performance of the work.
5.1.1.2 Wages and salaries of the GC/CM's supervisory personnel (i) whether stationed at the site or
district office, but only for that portion of time they are providing services related to the project,
or (ii) engaged at factories, workshops or on the road, in expediting the production or
transportation of materials or equipment required for the Work with Owner, or otherwise
engaged and off the site when specifically related to the Project, in each case under this clause
(iii) only with Owner's prior written approval, and only for that portion of their time directly
required for the Work.
5.1.1.3 Cost of all benefits, taxes, insurance, contributions, assessments and benefits required by law
or collective bargaining contracts and, for personnel not covered by such contracts, customary
benefits such as Social Security, Medicare/Medicaid, sick leave, medical and health benefits,
holidays,vacationsandpensions,providedsuchcostsarebasedonwages and salaries included
in the Cost of the Work.
5.1.2 Subcontract Costs. GC/CM's actual payment to Subcontractors pursuant to GC/CM's contract
with such Subcontractor for the Work on the Project. No amount paid by or payable to any
such Subcontractor other than the fixed or cost reimbursement price of its subcontract shall be
included in the Cost of the Work, unless otherwise approved in writing by Owner.
5.1.3 Costs of Materials, Supplies, and Equipment incorporated in the Work.
5.1.3.1 Costs, including transportation, of materials, supplies, and equipment incorporated or to be
incorporated in the completed Work.
5.1.3.2 Costs for storage on or off site (including applicable insurance), inspection, and testing of
materials, supplies and equipment unless specifically noted to be paid by the Owner.
5.1.3.3 Costs of materials in excess of those actually installed, but required to provide reasonable
allowance for waste and for spoilage. Unused excess materials, if any, shall be delivered to
Owner at the completion of the Work or, at Owner's option, shall be sold by the GC/CM. Net
amounts realized, if any, from such sales shall be credited to Owner as a deduction from the
Cost of the Work.
5.1.4 Costs of Miscellaneous Equipment and Other Items; Equipment Rental Charges.
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5.1.4.1 Costs,includingtransportation,installation, maintenance,dismantling,removal,and disposal, of
materials, supplies, temporary facilities, machinery, equipment, and hand tools not customarily
owned by the construction workers, which are provided by the GC/CM in the performance
of the Work; and cost less salvage value on such items if not fully consumed, whether sold to
others or retained by the GC/CM; provided that Owner at Owner's option may require that
GC/CM deliver to Owner (at no charge) at the end of the Project any of such items procured for
this Project. Cost for items previously used bythe GC/CM shall meanfair market value. GC/CM
shallcharge no additional administrative or other mark-upfor purchaseditems.
5.1.4.2 Rental charges for temporary facilities, machinery, equipment and hand tools not customarily
owned by the construction workers, which are provided by the GC/CM at the site, whether
rented from the GC/CM or others, and costs of transportation, installation, minor repairs and
replacements, dismantling and removal thereof. Rates and quantities of equipment rented
shall be according to industry standards, shall not exceed the standard rate paid at the place of
the project, and shall not exceed acquisition costs, and for individual items exceeding $10,000,
will be subject to Owner's prior approval. GC/CM shall deliver to Owner a list of published rates
from time to time at Owner's request. For all items rented or leased, the GC/CM shall charge
Owner only the rental charge incurred by GC/CM with no additional administrative or other
mark-up. GC/CMshallmakeefforts anduseits bestskills andjudgmentto procureequipment in
the most expeditious and economical manner consistent with the interest of the Owner.
Efforts shall include, but not be limited to, providing Owner with a rent/buy analysis so that
Owner may elect for GC/CM to procure the item in lieu of rental if the facility at issue is
expected to be rented for six months or longer. Such rent/buy analysis shall include, where
available, a leasing rate commensurate with the expected term of rental of the facility at issue.
5.1.5 Costs of removal of debris from the site.
5.1.6 Cost of internet connection, long-distance telephone calls, postage and parcel delivery charges,
telephone service at the site and reasonable petty cash expenses of the site office, computers and
other supporting administrative equipment and furnishings, but only to the extent such costs are for
the benefit of the Work.
5.1.7 That portion of the travel and subsistence expenses of the GC/CM's personnel determined by
Owner to be reasonable and necessary incurred while traveling in discharge of duties connected
with the Work. Main office staff travel shall not be reimbursed unless approved in advance by
Owner.
5.1.8 Other Costs.
5.1.8.1 Premiums and deductibles for insurance directly attributable to this Contract.
5.1.8.2 Payment and Performance bonds.
5.1.8.3 Sales, use or similar excise taxes imposed by a governmental authority which are directly
related to the Work and for which the GC/CM is liable.
5.1.8.4 Fees and assessments for the trade permits and for other permits, licenses and inspections
for which the GC/CM is required by the Contract Documents to pay. Plan review fees,
assessments, and impact fees are the responsibility of the Owner.
5.1.8.5 GC/CM deposits lost for causes other than the GC/CM's fault or negligence.
5.1.8.6 Costs of drawings, Specifications and other documents required to complete the Work,
except as provided by Owner or Engineer.
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5.1.8.7 Losses, expenses, or damages during construction and warranty that did not arise from
the negligence or wrongful conduct of the GC/CM or its subcontractors.
5.1.8.8 Other costs incurred in the performance of the Work if and to the extent approved in
advance in writing by Owner.
5.1.9 Repairs to Damaged, Defective or Nonconforming Work. The Cost of the Work shall also include
costs which are incurred bytheGC/CM intaking actionto prevent threatened damage,injuryorloss in
case of an emergency affecting the safety of persons and property.
5.2 The Guaranteed Maximum Cost for Reimbursable expenses for General Conditions Work (GMCR).
GC/CM shall be paid a maximum sum as agreed in the GMP Amendment, as payment for
the GC Work, including all labor, materials, and direct and indirect costs thereof. To the extent any GC
Work is otherwise described above in this Article, GC/CM’s compensation for the same is included in
the Cost for GC Work and shall not otherwise be charged as Cost of the Work. The Cost for GC
Work, less 5% retainage thereon, shall be paid in equal installments monthly over the number of
months of the scheduled Construction Phase, commencing with the first progress billing after
commencement of the scheduled Construction Phase. However, no adjustment in the amount
payable for General Conditions Work will be made if the actual construction period is shorter or longer
than the number of months scheduled for the Construction Phase, unless the construction period is
extended because of an Owner delay or due to unforeseeable conditions. Should the GC/CM
spend less than planned on GMCR’s, the GC/CM retains that balance.
5.3 GC/CM Overhead. GC/CM shall be paid in accordance with these Conditions for items including
home office overhead, supervisory labor burden, travel, per-diems and is part of the GC/CM Fee.
6. ARTICLE 6 – COSTS OF THE WORK (NOT REIMBURSABLE, INCLUDED IN THE GMP)
6.1 Costs Excluded from Cost of Work. The following shall not be included in the Cost of the Work:
6.1.1 Salaries and other compensation of the GC/CM's personnel stationed at the GC/CM's principal
office or offices other than the site office except as allowed under Articles 5.
6.1.2 Expenses of the GC/CM's principal office and offices other than the site office.
6.1.3 Any overhead and general expenses, except as may be expressly included in Article 5.
6.1.4 GC/CM's capital expenses, including interest on the GC/CM's capital, employed for the Work.
6.1.5 Rental cost of machinery and equipment, except as provided in Article 5.
6.1.6 Any cost associated with the Project not specifically and expressly described in Article 5 or not
included in within the Project Cost Matrix.
6.1.7 Costs due to the fault or negligence of the GC/CM, Subcontractors, suppliers, anyone
directly or indirectly employed by any of them, or for whose acts any of them may be liable.
6.1.8 The cost of correction of any repair work, nonconforming or defective work, or warranty work in
excess of the GMP.
6.1.9 Merit,safety, or other incentivepayments, bonuses or awards, or any expenses inconnection
therewith.
6.1.10 Legal, mediation, or arbitration fees, costs, and expenses except as specifically provided in
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the Contract Documents.
6.1.11 Fines and penalties.
6.1.12 Except for Early Work, the cost of Preconstruction Phase Services.
6.1.13 The Cost of the Work for GC Work in excess of the Fixed Cost for GC Work unless such fixed
costs are exceeded by other terms included in this Agreement.
6.1.14 Any costs in excess of the GMP.
7. ARTICLE 7 – CHANGES IN THE WORK
7.1 Price Adjustments. Adjustments to the Guaranteed Maximum Price required by changes in the Work
shall be determined by any of the methods listed in the General Conditions of the Contract for
Construction, except that, unless the adjustment is based upon fixed pricing or unit pricing:
7.1.1 The overhead and profit markup for the GC/CM shall be limited to the GC/CM Fee adjustment
except for self-performed packages that GC/CM is awarded on a competitive basis consistent with
other Subcontract bid packages which may include overhead and profit associated with the self-
performed work;
7.1.2 The increase or decrease in the Estimated Cost of the Work, other than for subcontract work, shall
be calculated pursuant to Articles 5 and 6 above, instead of being based on GC/CM's direct
costs as defined in the General Conditions of the Contract for Construction; and,
7.1.3 In calculating adjustments to subcontracts, unless the parties agree otherwise, the change shall
be limited to the Subcontractor's Direct Costs plus the supplemental mark-up provided in the
General Conditions of the Contract for Construction, and shall not be modified by Articles 5 and 6
above.
7.2 Adjustments to GMP. Adjustments to the GMP after execution of the GMP Amendment may be made
only (i) in the event of Scope Changes or (ii) as otherwise expressly provided in this Contract, and
then only in accordance with the following procedure:
7.2.1 GC/CM shall review subsequent iterations of the Plans and Specifications as they are prepared
to determine whether, in the opinion of GC/CM, they result in a Scope Change so that it can be
determined if an adjustment to the GMP is warranted.
7.2.2 Changes to the GMP shall be initiated by written notice by one party to the other. GC/CM shall
deliver any such GMP Change Request to Engineer and Owner’s Authorized Representative within
thirty (30) days after event of any Scope Change if, in GC/CM's opinion, it constitutes grounds
for adjustment of the GMP. Any GMP Change Request shall include a proposal as to the
appropriate GMP adjustment with respect to the Scope Change at issue.
7.2.3 GC/CM shall submit its GMP Change Requests as soon as possible, and GC/CM shall not be
entitled to claim a GMP increase unless GC/CM submitted a GMP Change Request to Owner’s
Authorized Representative and to Engineer within the earlier of (a) thirty (30) days after GC/CM
has received the information constituting the basis for the claim, or (b) as to Work already solicited,
prior to commencement of the portion of the Work for which GC/CM intends to claim a Scope
Change; and (c) in any event, prior to GC/CM's signing of a Change Order for the Scope Change.
7.2.4 Owner may, at any time, submit a GMP Change Request requesting a reduction of the GMP,
which shall include Owner's basis for such request, which may include, for example, reduction of the
GC/CM's Contingency after further development of the Plans and Specifications that form the
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basis for the original GMP Amendment, and/or unused Allowances.
7.2.5 GC/CM shall work with Engineer to reconcile all differences in its GMP Change Request with
Engineer within seven (7) days from the date of submission of the GMP Change Request.
"Reconciled" means that the GC/CM and Engineer have verified that their assumptions about the
various categories are the same, and that identifies the reason for differences in the GMP Change
Request and the Engineer's position. GC/CM shall submit the Reconciled GMP Change Request
to Owner, which submission shall be a condition to any GC/CM claim for a GMP increase.
7.2.6 If the Reconciled GMP Change Request is not acceptable to Owner, GC/CM agrees to work with
the Owner and the Engineer to provide a GMP Change Request that is acceptable to Owner.
7.2.7 GC/CM agrees to make all records, calculations, drawings and similar items relating to GMP
Change Request available to Owner and to allow Engineer and Owner access and opportunity to
view such documents at GC/CM's offices. Upon Owner's reasonable notice, GC/CM shall deliver
two copies of such documents to Owner and Engineer at any regular meeting or at the Site.
7.2.8 GMP increases, if any, shall not exceed the increased Cost of the Work arising from the Scope
Change (whether based on agreed fixed pricing, or the estimated Cost of the Work increase
based on cost- reimbursablepricing), reconciled in accordance withthe above provisions, as arising
from the incident justifying the GMP increase, plus or minus the GC/CM Fee applicable to such
change in the Cost of the Work.
7.2.9 Except as provided in this Article 7.2, adjustments to the GMP shall be reconciled in accordance
with the General Conditions of the Contract for Construction.
7.2.10 Execution by Owner. Only the Owner’s Authorized Representative has authority to execute
Change Orders or Amendments on behalf of Owner.
8. ARTICLE 8 – SUBCONTRACTS AND OTHER CONTRACTS
8.1 General Subcontracting Requirements.
8.1.1 Other than Work performed by the GC/CM, the GC/CM shall subcontract the Work to
Subcontractors other than the GC/CM and its Affiliates.
8.1.2 The GC/CM shall comply with the laws of the State of Montana and the City of Bozeman with
regard to the procurement of subcontractors and suppliers.
8.2 GC/CM's Obligations under Subcontracts.
8.2.1 No use of a Subcontractor or supplier shall relieve the GC/CM of any of its obligations or liabilities
under the Contract. Except as may expressly otherwise be provided in this Contract, the GC/CM
shall be fully responsible and liable for the acts or omissions of all Subcontractors and suppliers
including persons directly or indirectly employed by them. The GC/CM shall have sole
responsibility for managing and coordinating the operations of its Subcontractors and suppliers,
including the settlement of disputes with or between the GC/CM and any such Subcontractor or
supplier.
8.2.2 The GC/CM shall include in each subcontract and require each Subcontractor to include in any
lower tier subcontract, any provisions necessary to make all of the provisions of the Contract
Documents, including the General Conditions and GC/CM’s project schedule, fully effective as
applied to Subcontractors. GC/CM shall indemnify Owner for any additional cost based on a
subcontractor claim which results from the failure of GC/CM to incorporate the provisions of this
Contract in each subcontract. The GC/CM shall provide all necessary Plans, Specifications,
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Hazardous Materials reports and instructions to its suppliers and Subcontractors to enable them
to properly perform their work.
8.2.3 Retainage from Subcontractors. Except with the Owner's prior approval, payments to
Subcontractors shall be subject to retainage of no more than 5%. The Owner and the GC/CM
shall agree upon a mutually acceptable procedure for review and approval of payments and
retainage for Subcontractors.
8.3 Subcontractor Selection.
8.3.1 Unless otherwise provided in the Request for Proposals, this Article, and the direction of the
Owner, the selection of all Subcontractors and suppliers shall be made by competitive offers in a
manner that will not encourage favoritism, bias, or substantially diminish competition.
8.3.2 GC/CM shall submit to the Owner its proposed procurement documents for review and comment
before they are issued for solicitation. GC/CM shall consider and respond to all Owner comments
regarding any proposed offer packages. As offers are received, GC/CM shall submit to the
Owner an offer comparison in a mutually agreeable form together with any specific back-up
requested by Owner. The competitive process used to award subcontracts by the GC/CM may
be monitored by the Owner; provided that such monitoring shall not excuse GC/CM from
compliance with the subcontracting requirements of this Contract. GC/CM shall cooperate in all
respects with Owner's monitoring. The Owner shall be advised in advance of and be given the
opportunity to be present at offer openings, and GC/CM shall provide him or her with a summary
or abstract of all Offers in form acceptable to the Owner, and copies of particular offers if
requested, prior to GC/CM's selection of Offerors. Prior to opening offers, the GC/CM agrees to
disclose in writing to Owner any financial interest it has in any such Subcontractor, supplier or
other contracting party whenever such Subcontractor, supplier or contracting party intends to
compete on any Project work, directly or indirectly, including whether such party is an Affiliate of
GC/CM. GC/CM shall also disclose seven (7) days in advance if they will be providing an offer
as a self-performed scope of work.
8.3.3 The following minimum requirements apply to the Subcontract solicitation process:
8.3.3.1 For procurements with an estimated value of more than $80,000, solicitations will be advertised
by bids as required by 7-5-4302, MCA. The GC/CM shall obtain two written quotes or may
advertise for bids for procurements over five thousand dollars ($5,000.00) up to eighty
thousand dollars ($80,000.00).
8.3.3.2 All bid openings for Subcontracting and Self-Performed Work shall be open and available to the
public, the Owner, and the Engineer, regardless of the bid opening location. GC/CM may
propose an alternate delivery method to the Owner for Owner’s review and approval.
8.3.3.3 Unless specific other prior arrangement has been made with Owner, all offers will be written
(hardcopy, email, or facsimile), and submitted to a specific location at a specific time. GC/CM
shall time-stamp all offers as received. Subcontractors must be qualified to perform the
Work for this Project by being appropriately registered and in compliance with all laws of the
State of Montana.
8.3.3.4 If fewer than three (3) offers are submitted in response to any solicitation (inclusive of any
offer submitted by GC/CM), prior written approval by Owner shall be required to accept the
offer. Field Work and/or Subcontracting/Self-Performed Work by the GC/CM shall be
competitively bid, with solicitations advertised per MCA 7-5-4302, and subject to the same
Owner review and oversight as all other competitively bid subcontractor scopes of work.
8.3.3.5 GC/CM may develop and implement a prequalification process for particular solicitations,
followed by selection of successful offers among those offerors that GC/CM determines
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meet the prequalification standards, with Owner’s prior approval of such prequalification
process.
8.3.3.6 GC/CM shall comply, and require Subcontractor compliance with, State of Montana
Department of Labor & Industry prevailing wage rates as specified in the RFP and as
adopted at the time of the solicitation.
8.3.3.7 Owner may at its sole discretion, require GC/CM to re-solicit for Offers based on the same or
modified documents. If GC/CM does receive a responsive offer within the initial solicitation,
Owner shall be responsible for all cost and schedule overruns due to Owner directed re-
solicitation except where cause of re-solicitation is the fault of the GC/CM.
8.3.3.8 GC/CM shall review all Offers and shall work with Offerors to clarify Offers, reduce exclusions,
verify scope and quantities, and seek to minimize work subsequently awarded via the Change
Order process.
8.3.3.9 The GC/CM will document any and all discussions, questions and answers, modifications
and responses to or from anyOfferor andensure thatthe same aredistributed to all Offerors,
and Owner shall be entitled to inspect such documentation on request.
8.3.3.10 GC/CM shall determine the lowest Offer for each solicitation that meets GC/CM’s
reasonable performance standards for the components of the Work at issue; provided that if
GC/CM determines it is unable to execute a suitable subcontract with such Offeror, GC/CM
may, with Owner’s prior approval, execute a subcontract with the second-lowest Offeror.
This paragraph does not preclude the award of a sub-contract to any Offeror selected as part
of a pre-qualification process.
8.3.4 With authorization by Owner, Work may be subcontracted on other than a low price basis,
including without limitation, through competitive negotiation. As a condition to its authorization,
Owner may require GC/CM's agreement to establish and implement qualification and
performance criteria for Offerors, including a scoring system within requests for proposals.
Examples include: where there are single fabricators of materials; special packaging requirements
for Subcontractor work; design-build work or, where an alternative contracting method can be
demonstrated to clearly benefit Owner.
8.3.5 GC/CM shall notify Owner in writing in advance before award of any proposed Subcontract,
which notice shall include summaries in a form acceptable to Owner of all Offers received for the
Subcontract at issue. Owner reserves the right to disapprove any proposed Subcontractors,
suppliers and Subcontract or supply contract awards, based on legal standards of responsibility.
Owner shall not unreasonably disapprove any proposed Subcontractor or supplier and increased
costs due to Owner's disapproval shall be cause for an increase in the GMP.
8.3.6 GC/CM's subcontracting records shall not be considered public records; provided, however, that
Owner and other agencies of the State shall retain the right to audit and monitor the subcontracting
process in order to protect the Owner's interests.
8.4 GC/CM Field Work, Subcontracted/Self-Performed Work by GC/CM.
8.4.1 With consent of the Owner, the GC/CM or its Affiliate may bid and compete for Field Work
and/or Subcontracted/Self-Performed Work with its own forces. All field work and/or
subcontracting/self-performed work by the GC/CM shall be competitively bid as provided in Article
8.
8.4.2 Except as provided in Article 8, any other portion of the Work proposed to be field work and/or
subcontracted/self-performed by the GC/CM, including without limitation provision of any
materials, equipment, or supplies, shall be subject to the provisions of Article 8.
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8.4.3 When assembling and using bid packages, for those items for which the GC/CM intends to submit
a competing Offer for Self-Performed Work and after approval by the Owner, such intent must be
publicly announced with the solicitation for bids required by this Article, and the Owner notified in
writing that this announcement has been made. Any GC/CM competing Offer shall be forwarded
to the Owner prior to the bid opening. All Offers for this work shall be publicly available by GC/CM
at an announced time, date, and placeas all other offers. GC/CM may propose an alternate delivery
method to the Owner for Owner’s review and approval.
8.4.4 For all field work and/or subcontracted/self-performed work, the GC/CM shall at a minimum
provide separate project management, foremen, supervision, accounting, etc. as if it were any other
separate subcontracting entity, unless prior written approval is granted by the Owner. The GC/CM
is expressly prohibited from using the personnel, positions, general conditions costs, and
overhead from directly supervising and managing any field work and/or subcontract/self-performed
work, unless specific prior written approval is granted by the Owner.
8.5 Protests. GC/CM, acting as an independent contractor, shall include in the competitive process to
award all subcontracts, a protest process for Subcontractors and suppliers that are competing Offerors,
which process shall be subject to approval by Owner. GC/CM shall be solely responsible for resolving
procurement protests of Subcontractors and suppliers. GC/CM shall indemnify, defend, protect and
hold harmless Owner from and against any such procurement protests and resulting claims or litigation
unless protest exists in whole or in part bythe Owner’s actions, directions, or negligence, who shall then
share its proportionate responsibility for claims or litigation. GC/CM shall act as an independent
contractor, and not an agent of Owner, in connection with any procurement protest. The provisions of
this Article are solely for the benefit of Owner, and do not grant any rights or remedies (including third
party beneficiary rights) to any Offer or other protester, in connection with any procurement protest or
claim.
9. ARTICLE 9 – RECORDS, ACCOUNTING, AUDITING
9.1 Accounting and Audit Access. The GC/CM shall keep full and detailed accounts and exercise such
controls as may be necessary for proper financial management under this Contract; the accounting
and control systems shall be satisfactory to Owner. Owner and Owner's representatives, including the
City of Bozeman’s accountants and auditors, shall be afforded reasonable and regular access to the
GC/CM's records, books, correspondence, instructions, drawings, receipts, subcontracts, purchase
orders, vouchers, memoranda and other data relating to this Contract, and the GC/CM shall preserve
these for a period of three (3) years after final payment, or for such longer period as may be required
by law.
9.2 Periodic and Final Audits. Owner may, at its discretion, perform periodic audits of the Cost of the
Work and any other reimbursable costs associated with the Project. Owner intends to conduct a final
auditof reimbursable costs prior to the Contract closeout. The GC/CM shall cooperate fully with Owner
in the performance of such audits. Disputes over audit findings or conclusions shall be subject to the
process set forth in the General Conditions.
10. ARTICLE 10 – REPRESENTATIONS AND WARRANTIES
10.1 Representations. GC/CM represents and warrants to Owner as of the effective date of this Contract:
10.1.1 it is qualified to do business as a licensed general contractor under the laws of the State of
Montana, and has all requisite corporate power and corporate authority to carry on its business
as now being conducted;
10.1.2 it has full corporate power and corporate authority to enter into and perform the Contract and
to consummate the transactions contemplated hereby; GC/CM has duly and validly executed and
delivered the Contract to Owner and that the Contract constitutes the legal, valid and binding
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obligation of GC/CM, enforceable against GC/CM in accordance with its terms, except as
enforceability may be limited or affected by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and by general principles of
equity (regardless of whether enforceability is considered in a proceeding in equity or at law);
10.1.3 GC/CM's execution and delivery of the Contract and the consummation of the transactions
contemplated hereby will not conflict with or result in a material breach of any terms or provisions of,
or constitute a material default under, (i) GC/CM's Articles of Incorporation or Bylaws; (ii) any note,
bond, mortgage, indenture, license, lease, contract, commitment, agreement or other instrument or
obligation to which GC/CM is a party or by which GC/CM may be bound; or (iii) any statute, order,
writ, injunction, decree, rule or regulation applicable to GC/CM;
10.1.4 no material consent, approval, authorization, declaration or other order of, or registration or filing
with, any court or regulatory authority or any third person is required for the valid execution,
delivery and performance of the Contract by GC/CM or its consummation of the transactions
contemplated hereby;
10.1.5 there is no action, proceeding, suit, investigation or inquiry pending that questions the validity of
the Contract or that would prevent or hinder the consummation of the transactions contemplated
hereby; and,
10.1.6 the GC/CM's Project Manager and Superintendent (if assigned by GC/CM) are duly appointed
representatives and each has the authority to bind the GC/CM to any and all duties, obligations
and liabilities under the Contract Documents and any Amendments or Change Orders thereto.
11. ARTICLE 11 – MISCELLANEOUS
11.1 Headings. The headings used in the Contract are solely for convenience of reference, are not part
of the Contract and are not to be considered in construing or interpreting the Contract.
11.2 Merger. The Contract Documents constitute the entire contract between the parties. No waiver,
consent, modification or change of terms of the Contract shall bind either party unless in writing and
signed by both parties. Such waiver, consent, modification or change, if made, shall be effective only
in the specific instance and for the specific purpose given. There are no understandings, agreements,
or representations, oral or written, not specified herein regarding the Contract. GC/CM, by signature
of its representative, hereby acknowledges that it has read the Contract, understands it and agrees to
be bound by its terms and conditions.
11.3 Progress Payments.
11.3.1 Progress Payments. Based upon applications for payment submitted pursuant to the General
Conditions, Owner shall make progress payments on account of the Preconstruction Fee, Cost of
the Work, General Conditions, and GC/CM Fee, less 5% retainage, to the GC/CM as provided
below and elsewhere in the Contract Documents. Retainage will not be withheld on
Preconstruction Services. A progress payment shall not be considered acceptance or approval
of any Work or waiver of any defects therein.
11.3.2 Percentage of Completion. Applications for payment shall show the percentage of completion of
each portion of the Work as of the end of the period covered by the application for payment. The
percentage of completion shall be the lesser of (i) the percentage of that portion of the Work
which has actually been completed; or (2) the percentage obtained by dividing (a) the expense
that has actually been incurred by the GC/CM on account of that portion of the Work for which the
GC/CMhasmadeor intends to make actual payment prior to the next application for payment by (b)
the share of the GMP allocated to that portion of the Work in the Schedule of Values.
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Pre-Construction Services Conditions –Bozeman Public Library Expansion Page 21 of 21
11.3.3 Calculation of Payment. Subject to other provisions of the Contract Documents, the amount of
each progress payment shall be computed as follows:
11.3.3.1 Take that portion of the GMP properly allocable to completed Work as determined by
multiplying the percentage of completion of each portion of the Work under the Schedule
of Values by the share of the GMP allocated to that portion of the Work in the Schedule of
Values. Pending final determination of cost to the Owner of changes in the Work, amounts
not in dispute shall be included;
11.3.3.2 Add that portion of the GMP properly allocable to materials and equipment delivered and
suitably stored and otherwise in compliance with the General Conditions;
11.3.3.3 Add the GC/CM Fee. The portion of the GC/CM Fee payable shall be an amount that
bears the same ratio to GC/CM Fee as the sum of the amounts in the two preceding
Clauses bears to the Cost of the Work, but in no event causing the total GC/CM Fee
payments to exceed the total GC/CM Fee, except as modified by the Amendments and
Change Orders;
11.3.3.4 Subtract the aggregate of previous payments made by and retained by the Owner;
11.3.3.5 Subtract the shortfall, if any, indicated by the documentation required to substantiate prior
applications for payment, or resulting from errors subsequently discovered by the Owner
in such documentation;
11.3.3.6 Subtract any amounts for which the Owner has withheld or nullified payment as provided
in the Contract Documents; and,
11.3.3.7 Subtract 5% retainage on the entire progress payment (with the exception of Pre-
Construction Services).
12. ARTICLE 12 – CONTRACT ATTACHMENTS, APPENDICES, EXHIBITS
Exhibit A – GC/CM Request for Proposal
Exhibit B – General Conditions of the Contract
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GENERALCONDITIONS OF THE CONTRACT
Bozeman Public Library Expansion
1. ARTICLE 1 – GENERAL PROVISIONS
1.1.BASIC DEFINITIONS
1.1.1.CONTRACT DOCUMENTS. The Contract Documents consist of the Contract between Owner
and Contractor (hereinafter the “Contract”), Conditions of the Contract (General, Supplementary
and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the
Contract, other documents listed in the Contract and Modifications issued after execution of the
Contract. A Modification is: (a) a written amendment to the Contract signed by both parties; (b) a
Change Order; (c) a Construction Change Directive; or, (d) a written order for a minor change in the
Work issued by the Owner. The Contract Documents shall include the bidding documents and
any alterations made thereto by addenda. In the event of a conflict, discrepancy, contradiction,
or inconsistency within the Contract Documents and for the resolution of same, the following
order of hierarchy and control shall apply and prevail:
1) Contract; 2) Addenda; 3) Pre-Construction Services Conditions; 4) Supplementary
General Conditions, if any; 5) General Conditions of the Contract for Construction;
6) Specifications; 7) Drawings
1.1.1.1.If a conflict, discrepancy, contradiction, or inconsistency occurs within or between the
Specifications and the Drawings, resolution shall be controlled by the following:
1.1.1.1.1. As between figures, dimensions, or numbers given on drawings and any scaled
measurements, the figures, dimensions, or numbers shall govern;
1.1.1.1.2. As between large scale drawings and small scale drawings, the larger scale
drawings shall govern;
1.1.1.1.3. As between the technical specifications and drawings; the technical specifications
shall govern.
1.1.1.1.4. Shop Drawings and Submittals: Shop drawings and other submittals from the
Contractor, subcontractors, or suppliers do not constitute a part of the Contract
Documents.
1.1.1.2. The Contractor acknowledges, understands and agrees that the Contract Documents cannot
be changed except as provided herein by the terms of the Contract. No act(s), action(s),
omission(s), or course of dealing(s) by the Owner with the Contractor shall alter the
requirements of the Contract Documents and that alteration can be accomplished only through
a written Modification process defined herein.
1.1.2.THE DRAWINGS. The Drawings are the graphic and pictorial portions of the Contract
Documents showing the design, intent, location, and dimensions of the Work, generally including
plans, elevations, sections, details, schedules and diagrams.
1.1.3.THE SPECIFICATIONS. The Specifications are that portion of the Contract Documents consisting
of the written requirements for materials, equipment, systems, standards and workmanship for the
Work, and performance of related services.
1.1.4.THE CONTRACT. The entire Contract for Construction is formed by the Contract Documents.
The Contract represents the entire, complete, and integrated agreement between the Owner and
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Contract hereto and supersedes prior negotiations, representations or agreements, either written
or oral. The Contract may be amended or modified only by a Modification. The Contract
Documents shall not be construed to create a contractual relationship of any kind between: (a)
the Owner and any Subcontractor, Sub-subcontractor, or Supplier; or, (b) between any persons
or entities other than the Owner and Contractor.
1.1.5.THE WORK. The term “Work” means the construction and services required by the Contract
Documents, whether completed or partially completed, and includes all other labor, materials,
equipment and services provided or to be provided by the Contractor to completely fulfill the
Contract and the Contractor's obligations. The Work may constitute the whole or a part of the
Project and does not include any Pre-Construction Services.
1.1.6.THE PROJECT. The Project is the total construction of which the Work performed under the
Contract Documents may be the whole or a part and which may include construction by the Owner
or by separate contractors.
1.1.7.NOTICE TO PROCEED. The term Notice to Proceed means formal written notice to begin
performing specific services or acts including Construction Phase services, Pre-Construction
Phase services or any other enumerated service or act set forth in the Contract. The Contract Time
will commence to run on the day indicated in the Notice to Proceed.
1.1.8.SITE. The term Site refers to that portion of the property on which the Work is to be performed or
which has been otherwise set aside for use by the Contractor.
1.1.9.PUNCH LIST. The term Punch List means, collectively, unfinished items of the construction of the
Project, which unfinished items of construction are minor or insubstantial details of construction,
mechanical adjustment or decoration remaining to be performed, the non-completion of which
would not materially affect the use of the Project, and which are capable of being completed within
thirty (30) days of Substantial Completion, subject to the availability of special order parts and
materials. By mutual agreement of the Parties, the Punch List may also include other unfinished
items that are not capable of being completed within thirty (30) days of Substantial Completion due
to environmental conditions beyond the reasonable control of Contractor.
1.2.CORRELATION, INTER-RELATIONSHIP, AND INTENT OF THE CONTRACT DOCUMENTS
1.2.1.The intent of the Contract Documents is to include all items and all effort necessary for the
proper execution and completion of the Work by the Contractor. The Contract Documents are
complementary and inter-related, and what is required by one shall be as binding as if required by
all. Performance by the Contractor shall be required to the extent consistent with the Contract
Documents and reasonably inferable from them as being necessary to produce the indicated
results.
1.2.2.Organization of theSpecificationsinto divisions, sections andarticles, and arrangement of Drawings
shall not control the Contractor in dividing the Work among Subcontractors or in establishing the
extentofWork to be performed by any trade. It is the Contractor’s responsibility to control the Work
under the Contract.
1.2.3.Unless otherwise stated in the Contract Documents, words which have well-known technical or
construction industry meanings are used in the Contract Documents in accordance with such
recognized meanings.
1.3.CAPITALIZATION
1.3.1.Terms capitalized in these General Conditions include those which are: (a) specifically defined;
and, (b) the titles of numbered articles and identified references to Paragraphs, Subparagraphs
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and Clauses in the document.
1.4.INTERPRETATION
1.4.1.In the interest of brevity the Contract Documents frequently omit modifying words such as "all" and
"any" and articles such as "the" and "an," but the fact that a modifier or an article is absent from one
statement and appears in another is not intended to affect the interpretation of either statement.
1.4.2.Where the word “days” is used in the Contract Documents, it means calendar days unless
otherwise specified.
1.5.EXECUTION OF THE CONTRACT AND CONTRACT DOCUMENTS
1.5.1.The Contract shall be signed by the Owner and Contractor. Execution of the Contract by the
Contractor constitutes the complete and irrevocable binding of the Contractor and his Surety
to the Owner for complete performance of the Work and fulfillment of all obligations. By execution
of the Contract, the Contractor acknowledges that it has reviewed and familiarized itself with all
aspects of the Contract Documents and agrees to be bound by the terms and conditions contained
therein.
1.5.2.Execution of the Contract by the Contractor is a representation that the Contractor has visited the
site, become generally familiar with local conditions under which the Work is to be performed, and
correlated personal observations with requirements of the Contract Documents.
1.5.3.The Contractor acknowledges that it has taken all reasonable actions necessary to ascertain the
nature and location of the work, and that it has investigated and satisfied itself as to the general
and local conditions which can affect the work or its cost, including but not limited to: (1) conditions
bearing upon transportation, disposal, handling, and storage of materials; (2) the availability of
labor, water, gas, electric power, phone service, and roads; (3) uncertainties of weather, river
stages, tides, or similar physical conditions at the site; (4) the conformation, topography, and
conditions of the ground; and, (5) the character of equipment and facilities needed for
performance of the Work. The Contractor also acknowledges that it has satisfied itself as to
the character, quality, and quantity of surface and subsurface materials or obstacles to be
encountered insofar as this information is reasonably ascertainable from an inspection of the
site, including all exploratory geotechnical work done by the Owner, as well as from the drawings
and specifications made a part of this contract. Any failure of the Contractor to take the action
described and acknowledged in this paragraph will not relieve the Contractor from responsibility for
properly ascertaining and estimating the difficulty and cost of successfully performing the Work or
for proceeding to successfully perform the Work without additional expense to the Owner.
1.5.4.The Owner assumes no responsibility for any conclusions or interpretations made by the
Contractor based on the information made available by the Owner, nor does the Owner assume
responsibility for any understanding reached or representation made by any of its officers, agents,
or employees concerning conditions which can affect the Work unless that understanding or
representation is expressly stated in the Contract Documents.
1.5.4.1. Performance of any portion of the Work, beyond that required for complying with the
specifications and all other requirements of the Contract, shall be deemed to be for the
convenience of the Contractor and shall be at the Contractor's sole expense.
1.5.4.2. There shall be no increase in the contract price or time allowed for performance which is for
the convenience of the Contractor.
1.6.OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS, AND OTHER INSTRUMENTS OF
SERVICE
1.6.1.The Drawings, Specifications and other documents, including those in electronic form, prepared
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by the EngineerareInstrumentsofServicethroughwhichthe Work to be executed by the Contractor
is described.
2. ARTICLE 2 – THE OWNER
2.1.THE CITY OF BOZEMAN
2.1.1.The Owner is the City of Bozeman and is the sole entity to be identified as Owner in the Contract
and as referred to throughout the Contract Documents as if singular in number. The Owner shall
designate in writing a representative who shall have express authority to bind the Owner with repect
to all matters requiring the Owner’s approval or authorization. The term “Owner” means the Owner
or the Owner’s authorized representative.
2.1.2.The observations and participations of the Owner or its authorized representative do not alleviate
any responsibility on the part of the Contractor. The Owner reserves the right to observe the work
and make comment. Any action or lack of action by the Owner shall not be construed as approval
of the Contractor's performance.
2.1.3.The Owner reserves the right to require the Contractor, all sub-contractors and material suppliers
to provide lien releases at any time. The Owner reserves the right to withhold progress payments
until such lien releases are received for all work for which prior progress payments have been
made. Upon the Owner’s demand for lien releases (either verbally or written), the Contractor,
all sub-contractors and material suppliers shall provide such releases with every subsequent
application for payment through Final Acceptance of the Project.
2.1.4.Except for permits and fees, including those required under Subparagraph 3.7.1, which are the
responsibility of the Contractor under the Contract Documents, the Owner shall secure and
pay for necessary approvals, easements, assessments and charges required for construction, use
or occupancy of permanent structures or for permanent changes in existing facilities.
2.1.5.Information or services required of the Owner by the Contract Documents shall be furnished by the
Owner within seven (7) days unless an alternative period is agreed to by the Parties. Any other
information or services relevant to the Contractor's performance of the Work under the Owner’s
control shall be furnished by the Owner after receipt from the Contractor of a written request for
such information or services.
2.1.6.Unless otherwise provided in the Contract Documents, the Contractor will be furnished, free of
charge, such copies of Drawings and Specifications as are reasonably necessary for execution of
the Work.
2.1.7.Whenever the Contractor is required under the Contract to indemnify the Owner, “Owner” shall
mean the City of Bozeman and the City of Bozeman’s officers, elected officials, employees, and
agents.
2.2.OWNER’S RIGHT TO STOP WORK
2.2.1.If the Contractor fails to correct Work which is not in accordance with the requirements of the
Contract Documents as required by Paragraph 12.2 or persistently fails to carry out Work in
accordance with the Contract Documents, the Owner may issue a written order to the Contractor
to stop the Work, or any portion thereof, until the cause for such order has been eliminated.
However, the right of the Owner to stop the Work shall not give rise to a duty on the part of the
Owner to exercise this right for the benefit of the Contractor or any other person or entity, except
to the extent required by Subparagraph 6.1.3. The issuance of a stop work order by the Owner
as a result of Contractor’s failure to correct non-conforming work, shall not give rise to a claim
by the Contractor or any subcontractor for additional cost, time, or other adjustment.
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2.3.OWNER’S RIGHT TO CARRY OUT THE WORK
2.3.1.If the Contractor defaults or neglects to carry out the Work in accordance with the Contract
Documents and fails within a seven-day period after receipt of written notice from the Owner to
commence and continue correction of such default or neglect with diligence and promptness, the
Owner may after such seven-day period give the Contractor a second written notice to correct such
deficiencies within a three- day period. If the Contractor within such three-day period after receipt
of such second notice fails to commence and continue to correct any deficiencies, the Owner may,
without prejudice to other remedies the Owner may have, correct such deficiencies. In such case
an appropriate Change Order shall be issued deducting from payments then or thereafter due the
Contractor the reasonable cost of correcting such deficiencies, including Owner's expenses and
increased costs made necessary by such default, neglect, or failure. If payments then or thereafter
due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference
to the Owner.
2.4.OWNER’S RIGHT TO PERSONNEL
2.4.1.The Owner reserves the right to have the Contractor and/or subcontractors remove person(s)
and/or personnel from any and all work on the project with cause but without cost to the Owner.
Such requests from the Owner may be made verbally or in writing. Cause may be, but is not limited
to, any of the following: incompetence, poor workmanship, poor scheduling abilities, poor
coordination, disruption to the facility or others, poor management, causes delay or delays,
disruption of the Project, will not strictly adhere to facility procedures and Project requirements
either knowingly or unknowingly, insubordination, drug/alcohol use, possession of contraband,
belligerentacts oractions,etc.TheContractorshallprovide replacement person(s) and/or personnel
acceptable to the Owner at no cost to the Owner.
2.4.2.Any issue or circumstance relating to or resulting out of this clause shall not be construed or
interpreted to be interference with or impacting upon the Contractor’s responsibilities and liabilities
under theContract Documents.
2.4.3.Person(s) and/or personnel who do not perform in accordance with the Contract Documents,
shall be deemed to have provided the Owner with cause to have such persons removed from
any and all involvement in the Work.
2.4.4.The Contractor agrees to defend, indemnify and hold harmless the Owner from any and all
causes of action, demands, claims, damages, awards, attorneys’ fees, and other costs brought
against the Owner by any and all person(s) or personnel as a result of actions under this clause.
3.ARTICLE 3 – THE CONTRACTOR
3.1.GENERAL
3.1.1.The Contractor is the person or entity identified as such in the Contract and is referred to throughout
the Contract Documents as if singular in number. The term “Contractor” means the Contractor
or the Contractor's authorized representative and GC/CM as identified in the Pre-Construction
Services Conditions.
3.1.2.Construction Contractor Registration: The Contractor is required to be registered with the
Department of Labor and Industry under 39-9-201 and 39-9-204 MCA prior to the Contract being
executed by the Owner. A bidder must demonstrate that it has registered or promises that it will
register immediately upon notice of award and prior to the commencement of any work. If the
prevailing bidder cannot or does not register in time for the Owner to execute the Contract within
fifteen (15) days of the date on the notice of award, the Owner may award, at its sole discretion,
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to the next lowest responsible bidder who meets this requirement. The Owner will not execute
a contract for construction nor issue a Notice to Proceed to a Contractor who is not registered per
39-9-401(a) MCA. It is solely the Contractor’s responsibility to ensure that all Subcontractors are
registered in accordance with Title 39, Chapter 9, MCA.
3.1.3.The Owner’s engagement of the Contractor is based upon the Contractor’s representations that it:
3.1.3.1. has the requisite skills, judgment, capacity, expertise, and financial ability to perform the Work;
3.1.3.2. is experienced in the type of labor and services the Owner is engaging the Contractor to
perform;
3.1.3.3. is authorized, licensed and registered to perform the type of labor and services for which it is
being engaged in the State and locality in which the Project is located;
3.1.3.4. is qualified, willing and able to perform the labor and services for the Project in the manner and
scope defined in the Contract Documents; and,
3.1.3.5. has the expertise and ability to provide labor and services that will meet the Owner’s objectives,
intent and requirements, and will comply with the requirements of all governmental, public, and
quasi-public authorities and agencies having or asserting jurisdiction over the Project.
3.1.4.The Contractor shall perform the Work in accordance with the Contract Documents.
3.1.5.The Contractor shall not be relieved of obligations to perform the Work in accordance with the
Contract Documents by tests, inspections or approvals required or performed by persons other
than the Contractor.
3.1.6.Quality Control (i.e. ensuring compliance with the Contract Documents) and Quality Assurance
(i.e. confirming compliance with the Contract Documents) are the responsibility of the Contractor.
Testing, observations, and/or inspections performed or provided by the Owner are solely for the
Owner’s own purposes and are for the benefit of the Owner. The Owner is not liable or
responsible in any form or fashion to the Contractor regarding quality assurance or extent of such
assurances. The Contractor shall not, under any circumstances, rely upon the Owner’s testing or
inspections as a substitute or in lieu of its own Quality Control or Assurance programs.
3.2.REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR
3.2.1.Before starting each portion of the Work, the Contractor shall carefully study and compare the
various Drawings and other Contract Documents relative to that portion of the Work, shall take
field measurements of any existing conditions related to that portion of the Work and shall observe
any conditions affecting the Work. These obligations are for the purpose of facilitating construction
by the Contractor and are not for thepurpose of discovering errors, omissions, or inconsistencies in
the Contract Documents. However, any errors, inconsistencies or omissions discovered by the
Contractor shall be reported promptly to the Owner as a request for information in such form as
the Owner may require.
3.2.2.Except as otherwise expressly provided in this Contract, the Contractor assumes all risks, liabilities,
costs, andconsequencesofperforminganyeffortorwork inaccordancewithanywrittenororalorder
(including but not limited to direction, instruction, interpretation, or determination) of a person
not authorized in writing by the Owner to issue such an order.
3.2.3.Sufficiency of Contract Documents: Prior to submission of its bid, and in all events prior to and
upon signing the Guaranteed Maximum Price Amendment, the Contractor certifies, warrants and
guarantees that it has received, carefully reviewed, and evaluated all aspects of the Contract
Documents and agrees that said Documents are adequate, consistent, coordinated, and
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sufficient for bidding and constructing the Work requested, intended, conceived, and
contemplated therein.
3.2.3.1 The Contractor further acknowledges its continuing duty to review and evaluate the Contract
Documents during the performance of its services and shall immediately notify the Owner
of any problems, conflicts, defects, deficiencies, inconsistencies, errors, or omissions it
discovers in the Contract Documents and the Work to be constructed; and, any variances it
discovers between the Contract Documents and applicable laws, statutes, building codes, rules
or regulations.
3.2.5.2 If the Contractor performs anyWork which it knows or should have known due to its experience,
ability, qualifications, and expertise in the construction industry, that involves problems,
conflicts, defects, deficiencies, inconsistencies, errors, or omissions in the Contract Documents
and the Work to be constructed and, any variances between the Contract Documents and
applicable laws, statutes, building codes, rules or regulations, without prior written notification
to the Owner and without prior authorization to proceed from the Owner, the Contractor
shall be responsible for and bear the costs and delays (including costs of any delay) of
performing such Work and all corrective actions as directed by the Owner.
3.2.5.3 Any and all claims resulting from the Contractor’s failure, including those of any subcontractor
or supplier, to carefully review, evaluate, and become familiar with all aspects of the Contract
Documents shall be deemed void and waived by the Contractor.
3.2.6.Sufficiency of Site Conditions: Prior to submission of its bid, and in all events prior to and upon
signing the Contract, the Contractor certifies, warrants and guarantees that it has visited, carefully
reviewed, evaluated, and become familiar with all aspects of the site and local conditions at which
the Project is to be constructed. The Contractor agrees that the Contract Documents are adequate,
consistent, coordinated, and sufficient representation of the site and local conditions for the Work.
3.2.6.1 The Contractor certifies it has reviewed and become familiar with all aspects of the
Environmental Assessments, the Site Survey and Geotechnical Report for the Project and
has a full understanding of the information provided therein, prior to executing the Guaranteed
Maximum Price Amendment.
3.2.6.2 If the Work involves modifications, renovations, or remodeling of an existing structure(s) or
other man-made feature(s), the Contractor certifies, warrants and guarantees that it has
reviewed, evaluated, and become familiar with all available as-built and record drawings, plans
and specifications, and has thoroughly inspected and become familiar with the structure(s) or
man-made feature(s).
3.2.6.3 Any and all claims resulting from the Contractor’s failure, including those of any subcontractor
or supplier, to visit, carefully review, evaluate, and become familiar with all aspects of the Site,
available geotechnical information, and local conditions at which the Project is to be
constructed shall be deemed void and waived by the Contractor.
3.3.SUPERVISION AND CONSTRUCTION PROCEDURES
3.3.1.The Contractor shall supervise and direct the Work using the Contractor's best skill and
attention recognizing that time and quality are of the essence of the Work. The Contractor
shall be solely responsible for and have control over construction means, methods, techniques,
sequences and procedures and for coordinating all portions of the Work under the Contract,
unless the Contract Documents give other specific instructions concerning these matters. It is
the responsibility of and incumbent upon the Contractor to ensure, confirm, coordinate, inspect
and oversee all Work (which is inclusive of but not limited to all submittals, change orders,
schedules, workmanship, and appropriate staffing with enough competent and qualified personnel)
so that the Work is not impacted in terms of any delays, costs, damages, or additional time, or
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effort on the part of Owner. If the Contract Documents give specific instructions concerning
construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate
the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the
jobsite safety of such means, methods, techniques, sequences or procedures. If the Contractor
determines that such means, methods, techniques, sequences or procedures may not be safe,
the Contractor shall give timely written notice to the Owner and shall not proceed with that
portion of the Work without further written instructions from the Owner. If the Contractor is then
instructed to proceed with the required means, methods, techniques, sequences or procedures
without acceptance of changes proposed by the Contractor, the Owner shall be solely responsible
for any resulting loss or damage. The Contractor shall: review any specified construction or
installation procedure; advise the Owner if the specified procedure deviates from good
construction practice; advise the Owner if following the procedure will affect any warranties,
including the Contractor's general warranty, or of any objections the Contractor may have to the
procedure and shall propose any alternative procedure which the Contractor will warrant and
guarantee.
3.3.2.The Contractor shall furnish management, supervision, coordination, labor and services that: (1)
expeditiously, economically, and properly completes the Work; (2) comply with all requirements
of the Contract Documents; and, (3) are performed in a quality workmanlike manner and in
accordance with the standards currently practiced by persons and entities performing or providing
comparable management, supervision, labor and services on projects of similar size, complexity,
cost, and nature to this Project. However, the standards currently practiced within the construction
industryshallnotrelievetheContractor of theresponsibilitytoperform theWorktothelevelof quality,
detail, and excellence defined and intended by the Contract Documents.
3.3.3.All services and labor rendered by the Contractor, including any subcontractors or suppliers,
shall be performed under the immediate supervision at the site of persons possessing expertise and
the requisite knowledge in the discipline or trade of service being rendered. The Contractor shall
maintain such supervision and personnel at all times that the Contractor’s personnel,
subcontractors, and/or suppliers are at the site. The Contractor shall never be absent from the site
during performance of any portion of the Work by any entity under the supervision and direction of
the Contractor. Full time attendance by the Contractor from Notice to Proceed through Final
Acceptance is an explicit requirement of this Contract.
3.3.4.The Contractor shall be responsible to the Owner for acts, damages, errors, and omissions
of the Contractor's employees, subcontractors and their agents and employees, and other persons
or entities performing portions of the Work for or on behalf of the Contractor or any of its
Subcontractors.
3.3.5.The Contractor shall be responsible for inspection of portions of Work already performed to
determine that such portions are in proper condition to receive subsequent Work.
3.4.LABOR, WAGES, AND MATERIALS
3.4.1.Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for
labor, materials, permits, licenses, goods, products, equipment, tools, construction equipment and
machinery, water, heat, all utilities, transportation, and other facilities and services necessary for
proper execution and completion of the Work in accordance with the Contract Documents, whether
temporary or permanent and whether or not incorporated or to be incorporated in the Work.
3.4.2.The Contractor may make substitutions only with the consent of the Owner and in accordance
with a Change Order. This opportunity to request substitutions does not negate or waive any
requirement for the Contractor to follow a pre-bidding “prior approval” requirement nor obligate
the Owner to approve any substitution request.
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3.4.3.The Contractor shall not permit employment of unfit persons or persons not skilled in tasks
assigned to them.
3.4.4 Prevailing Wages and Montana Residents.
3.4.4.1. The Contractor and all subcontractors at any level or tier of the Work shall give preference to
the employment of bona fide Montana residents in the performance of the Work and shall pay
the standard prevailing rate of wages, including fringe benefits for health and welfare and
pension contributions and travel allowance provisions in effect and applicable to the county or
locality in which the work is being performed. (18-2-403, MCA)
3.4.4.2. The Commissioner of The Montana Department of Labor and Industry (DOLI) has established
the standard prevailing rate of wages in accordance with 18-2-401 and 18-2-402, MCA.
Contractor shall utilize the "State of Montana, Prevailing Wage Rates" in effect at the time of
advertising for bids. The Commissioner of the Montana DOLI has established the resident
requirements in accordance with 18-2-409, MCA. The Contractor and all subcontractors at
any level or tier of the Work shall direct any and all questions concerning prevailing wage and
Montana resident issues for all aspects of the Work to DOLI.
3.4.4.3. The Contractor and all subcontractors at any tier or level of the Work, and as determined by
the Montana DOLI, shall classify all workers in the project in accordance with the State of
Montana, Prevailing Wage Rates. In the event the Contractor is unable to classify a worker in
accordance with these rates he shall contact DOLI for a determination of the classification and
the prevailing wage rate to be paid.
3.4.4.4. The Contractor and all subcontractors at any tier or level of the Work shall be responsible for
obtaining wage rates for all workers prior to their performing any work on the project. The
Contractor is required to pay and insure that its subcontractors at any tier or level and others
also pay the prevailing wage determined by the DOLI, insofar as required by Title 18 of the
MCA and the pertinent rules and standards of DOLI.
3.4.4.5. It is not the responsibility of the Owner to determine who classifies as a subcontractor, sub-
subcontractor, material man, supplier, or any other person involved in any aspect of the Work
at any tier or level. All such determinations shall be the sole responsibility of the Contractor,
subcontractors, sub-subcontractors, material men, suppliers and others involved in the project
at any tier or level. The Contractor, subcontractors, sub-subcontractors, materialmen, suppliers
and others involved in the project shall defend, indemnify and hold harmless the Owner from all
claims, attorneys’ fees, damages and/or awards involving prevailing wage or Montana
resident issues. Any changes to wages or penalties for failure to pay the correct wages will be
the sole responsibility of the Contractor and/or his subcontractors and no further charges or
claims shall be made to the Owner. If the parties mutually agree or an arbitrator or court
determines that any change in wages is due and any part is attributable to the Owner, the
Owner's sole liability shall be for the amount of wages ordered only and not for other expenses,
charges, penalties, overhead, profit or other mark-ups.
3.4.4.6. In accordance with 18-2-422(1) MCA, each job classification’s standard prevailing wage rate,
including fringe benefits, that the contractors and employers shall pay during construction of
the project is included herein by both reference to DOLI’s “Building” or ‘Heavy/Highway”
schedules, as applicable to the project, and as part of these Contract Documents.
3.4.4.7. The Contractor and every employer, including all subcontractors at any tier or level, is required
by 18-2-422(2) MCA to maintain payroll records in a manner readily capable of being certified
for submission under 18-2-423 MCA, for a period of not less than 3 years after the contractor's,
subcontractor’s, or employer's completion of work on the project or the Final Acceptance by
the Owner, whichever is later.
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3.4.4.8. Each contractor is required by 18-2-422(3) MCA to post in a visible and accessible location a
statement of all wages and fringe benefits in compliance with 18-2-423.
3.5.WARRANTY AND GUARANTEE
3.5.1.The Contractor warrants to the Owner that materials and equipment furnished under the Contract
will be new and of good quality unless otherwise required or permitted by the Contract Documents,
that the Work will be free from defects not inherent in the quality required or permitted, and that the
Work will conform to the requirements of the Contract Documents. Work not conforming to these
requirements, including substitutions not properly approved and authorized, may be considered
defective and rejected. The Contractor's warranty excludes remedy for damage or defect caused
by abuse, modifications not executed by the Contractor, improper or insufficient maintenance,
improper operation, or normal wear and tear and normal usage. If required by the Owner, the
Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment.
3.5.2.The Contractor shall and does hereby warrant and guarantee all work, workmanship, and materials
for the full warranty period as specified in the Contract Documents. The warranty period shall be
defined as commencing withSubstantial Completion (or with each Substantial Completion if there is
more than one) of the Project, or any portion thereof, and continuing for one (1) calendar year
from the date of Final Acceptance of the entire project by the Owner. The date of Final
Acceptance shall be the date of the Owner’s signature on the final request for payment unless
otherwise agreed upon in writing for the entire project or any portion thereof, by the Owner and
Contractor.
3.5.3.In addition to the one (1) calendar year warranty and guarantee specified in this herein above,
the Contractor warrants and guarantees all materials and workmanship for the roofing system for a
period of two(2)calendaryearsfromthedateof FinalAcceptance. This warrantyshallcoveralllabor
and materials for roof and roofing finish systems (e.g. flashing, terminations, parapet caps, etc.)
repairs from moisture penetration and/or defects in workmanship.
3.5.4.Manufacturer and product warranties and guarantees, as provided by the manufacturer or as
specified in the Contract Documents, are in addition to the Contractor’s warranty.
3.6.TAXES
3.6.1.The Contractor is responsible for and shall pay all sales, consumer, use, and similar taxes for the
Work provided by the Contractor which are legally enacted when bids are received or negotiations
concluded, whether or not yet effective or merely scheduled to go into effect.
3.6.2.In compliance with 15-50-206 MCA, the Contractor will have 1% of his gross receipts withheld
by the Owner from all payments due and sent to the Montana Department of Revenue. Each
subcontractor who performs work greater than $5,000 shall have 1% of its gross receipts withheld
by the Contractor and sent to the Montana Department of Revenue. The Contractor shall notifythe
Department of Revenue on the Department’s prescribed form.
3.7.PERMITS, FEES, AND NOTICES
3.7.1.Unless otherwise provided in the Contract Documents, the Owner shall secure and pay for
the building permit and other permits and governmental fees, licenses and inspections necessary
for proper execution and completion of the Work which are customarily secured after execution
of the Contract, including but not limited to, the building permit fee and sewer connection fee.
Electrical, Plumbing, and Mechanical permit fees shall be paid by Contractor, or related
subcontractors responsible for these trades.
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3.7.2.The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations
and lawful orders of public authorities applicable to performance of the Work.
3.7.3.If the Contractor performs Work knowing it to be contrary to laws, statutes, ordinances, building
codes, and rules and regulations, and does so without providing notice to the Owner, the Contractor
shall assume responsibility for such Work and shall bear the costs attributable to correction. The
Contractor shall be solely responsible to insure that all work it performs is in full compliance with all
prevailing and applicable codes and regulations.
3.7.4.If the Contractor encounters conditions at the Site that are (a) subsurface or otherwise concealed
physical conditions that differ materially from those indicated in the Contract Documents or (2)
unknown physical conditions of an unusual nature, that differ materially from those ordinarily found
to exist and generally recognized as inherent in construction activities of the character provided for
in the Contract Documents, the Contractor shall promptly provide written notice to the Owner before
conditions are disturbed and in no event later than seven (7) days after first observance of the
conditions. The Owner will promptly investigate such conditions and, if the Owner determines that
they differ materially and cause an increase or decrease in the Contractor’s cost of, or time required
for, performance of any part of the Work, will recommend an equitable adjustment in the Contract
Sum or Contract Time, or both. If the Owner determines that the conditions at the Site are not
materially different from those indicated in the Contract Documents and that no change in the terms
of the Contract is justified, the Owner shall promptly notify Contractor in writing, stating the reasons.
If Contractor disputes the Owner’s determination, Contractor may proceed as provided in Section
4.3.
3.8.ALLOWANCES
3.8.1.The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents.
Items covered by allowances shall be supplied for such amounts and by such persons or entities as
the Owner may direct.
3.8.2.Unless otherwise provided in the Contract Documents and with specific reference to the calculation
and approval of Allowance Work defined in Article 4.10 in the Pre-Construction Services Conditions:
3.8.2.1. Allowances shall cover the cost to the Contractor of labor, materials and equipment delivered
at the site and all required taxes, less applicable trade discounts;
3.8.2.2. Contractor's costs for overhead, profit for stated allowance amounts shall be included by the
Contractor in the Contract Sum but not in the allowances;
3.8.2.3. Whenever costs within the GMP are more than stated Owner allowances, the Contract Sum
may be adjusted accordingly by Change Order if there is change in the scope of the Project
after submission of the GMP. The Contractor shall be responsible for documenting and
informing the Owner of any changes in the scope of the Project. If costs are less than stated
Owner allowances, the Contract Sum shall be adjusted accordingly by Change Order. If there
is a change in scope of the Project, the amount of the Change Order shall reflect the
difference between actual costs and the allowances under Clause 3.8.2.1.
3.8.3.Materials and equipment under an allowance shall be selected by the Owner.
3.8.4.Contractor agrees that a contingency allowance, if any, is for the sole use of Owner to cover
unanticipated costs.
3.9.CONTRACTOR’S PERSONNEL
3.9.1.The Contractor shall employ competent personnel, supervisors, project managers, project
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engineers, project superintendent, and all others who shall be assigned to the Work throughout
its duration. All personnel assigned by the Contractor to the Work shall possess the requisite
experience, skills, abilities, knowledge, and integrity to perform the Work.
3.9.2.The Contractor agrees that the employees identified in the response to GC/CM Request for
Proposal (RFP) shall be fully and completely engaged to the extent stipulated in the Proposal
response for the duration of the Project, except for catastrophic events including but not limited to
termination of employment, illness, accident, or death. Any changes in the GC/CM Project Team
members or roles should be agreed to with the Owner in writing.
3.9.3.The superintendent and others as assigned shall be in attendance at the Project site during
the performance of any and all Work. The superintendent shall represent the Contractor. All
communications given to the Contractor’s personnel such as the project manager or the
superintendent, whether verbal, electronic or written, shall be as binding as if given to the
Contractor.
3.9.4.It is the Contractor’s responsibility to appropriately staff, manage, supervise and direct the Work
which is inclusive of the performance, acts, and actions of his personnel and subcontractors.
As such, the Contractor further agrees to indemnify and hold harmless the Owner, and to protect
and defend both from and against all claims, attorneys’ fees, demands, causes of action of any
kind or character, including the cost of defense thereof, arising in favor of or against the
Owner, Contractor, their agents, employees, or any third parties on account of the performance,
behavior, acts or actions of the Contractor’s personnel or subcontractors.
3.9.5.Prior to the commencement of any work, the Contractor shall prepare and submit a personnel listing
and organizational chart in a format acceptable to the Owner which lists by name, phone number
(including cell phone), job category, and responsibility the Contractor’s key/primary personnel who
will work on the Project. The Contractor shall promptly inform the Owner in writing of any proposed
replacements, the reasons therefore, and the name and qualifications of any proposed
replacements. The Owner shall have the right to reject any proposed replacements without cost
or claim being made by the Contractor. The chart shall be provided to the Owner at the time of the
pre-construction conference.
3.10. CONSTRUCTION SCHEDULES
3.10.1. The Contractorshall,promptlyafter beingprovided the Notice to Proceed with construction,prepare
and submit for the Owner's information a Contractor's construction schedule for the Work. The
schedule shall not exceed time limits current under the Contract Documents, shall be revised at
appropriate intervals as required by the conditions of the Work and per the requirements of the
Contract Documents, shall be related to the entire Project to the extent required by the Contract
Documents, and shall provide for expeditious and practicable execution of the Work. The
Contractor’s schedule shall be in the “Critical Path Method” and shall show the Critical Path of the
Work in sufficient detail to evaluate the Contractor’s progress. A request for time extension by the
Contractor will not be allowed unless a change in theWork is approved by the Owner and materially
affects the Critical Path. It is the Contractor’s responsibility to demonstrate that any time extensions
requests materially affect the Critical Path.
3.10.2. The Contractor shall prepare and keep current, for the Owner's approval, a schedule of
submittals which is coordinated with the Contractor's Construction Schedule and allows the
Owner reasonable time to review submittals.
3.10.3. The Contractor shall perform the Work in accordance with the most recent schedule submitted
to the Owner.
3.10.4. The Contractor's operations (including but not limited to the Contractor's forces employed,
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sequences of operations, and methods of operation) at all times during the performance of the
contract shall be sufficient to insure the completion of the Work within the specified performance
period.
3.10.5. The Critical Path Method Construction Schedule prepared by the Contractor must be in a form
that is acceptable to the Owner.
3.10.5.1.The Schedule shall show the estimated progress of the entire Project through the
individual time periods allowed for completion of each discipline, trade, phase, section, and
aspect of the Work. The Contractor shall provide written reports of all logic and resource
loading data with the Schedule and with all updates to the Schedule.
3.10.5.2.The Schedule shall show percent complete, progress to date, project work, and projected
time to complete the work for all activities. The percent complete and minor schedule
changes, including additions of activities, change orders, construction change directives,
changes to sequences of activities and significant changes in activity demands must be
shown by a revised Schedule. A written report providing details about the changes and
what actions are anticipated to get the work completed in the contractual time period shall
be submitted with the revised schedule.
3.10.5.3.The Construction Schedule shall include coordinate dates for performance of all divisions
of the Work, including shipping and delivery, off-site requirements and tasks, so the Work
can be completed in a timely and orderly fashion consistent with the required dates of
Substantial Completion and Final Acceptance.
3.10.5.4.The Construction Schedule shall include: (i) the required commencement date, the
required dates of Substantial Completion(s) and Final Acceptance for the complete
Project and all phases (if any); (ii) any guideline and milestone dates required by the
Owner or the Contract Documents; (iii) subcontractor and supplier schedules; (iv) a
submittal schedule which allows sufficient time for review and action by the Owner; (v) the
complete sequence of all construction activities with start and completion dates; and, (vi)
required decision dates.
3.10.5.5.By receiving, reviewing, and/or commenting on the Construction Schedule or any
portion thereof (including logic), Owner does not assume any of the Contractor’s
responsibility or liability that the Schedule be coordinated or complete, or for timely and
orderly completion of the Work.
3.10.5.6.Receiving, reviewing, and/or commenting on the Schedule, any portion thereof, or any
revision thereof, does not constitute an approval, acknowledgement, or acceptance of any
durations, dates, milestones, or performance indicated therein.
3.10.5.7.A printout of the Schedule’s logic showing all activities is required with the Schedule and
with all updates to the Schedule.
3.10.6. The Contractor shall review and compare, at a minimum on a weekly basis, the actual status of the
Work against its Construction Schedule.
3.10.7. The Contractor shall routinely, frequently, and periodically (but not less than monthly) update
and/or revise its Construction Schedule to show actual progress of the Work through the date of
the update or revision, projected level of completion of each remaining activity, activities modified
since the previous update or revision, and major changes in scope or logic. The updated/revised
Schedule shall be accompanied by a narrative report which: (a) states and explains any
modifications of the critical path, if any, including any changes in logic; (b) defines problem areas
and lists areas of anticipated delays; (c) explains the anticipated impact the change in the critical
path or problems and delays will have on the entire Schedule and the completion of the Work; (d)
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provides corrective action taken or proposed; and, (e) states how problems or delays will be
resolved in order to deliver the Work by the required phasing milestones (if any), Substantial
Completion(s), and Final Acceptance dates.
3.10.8. Delay in Performance: If at any time the Contractor anticipates that performance of the Work
will be delayed or has been delayed, the Contractor shall: (1) immediately notify the Owner by
separate and distinct correspondence of the probable cause and effect of the delay, and
possible alternatives to minimize the delay; and, (2) take all corrective action reasonably necessary
to deliver the Work by the required dates. Nothing in this paragraph or the Contract Documents
shall be construed by the Contractor as a granting by the Owner of constructive acceleration. The
results of failure to anticipate delays, or to timely notify the Owner of an anticipated or real delay,
are entirely the responsibility of the Contractor whether compensable or not.
3.10.9. Early Completion: The Contractor may attempt to achieve Substantial Completion(s) on or before
the date(s) required in the Contract. However, such early completion shall be for the
Contractor’s sole convenience and shall not create any real or implied additional rights to
Contractor or impose any additional obligations on the Owner. The Owner will not be liable for
nor pay any additional compensation of any kind to the Contractor for achieving Substantial
Completion(s) or Final Acceptance prior to the required dates as set forth in the Contract.
3.10.10.Float in Schedule. Any and all float time in the Contractor’s schedule, regardless of the
path or activity, shall accrue to the benefit of the Owner and the Work, and not to the Contractor.
Float also includes any difference shown between any early completion dates shown on the
Contractor’s Schedule for any phasing milestone(s), Substantial Completion(s) or Final Acceptance
and the dates or durations as required by the Contract Documents.
3.10.11.Modification of Required Substantial Completion(s) or Final Acceptance Dates:
Modification of the required dates shall be accomplished only by duly authorized, accepted, and
approved change orders stating the new date(s) with specificity on the change order form. All
rights, duties, and obligations, including but not limited to the Contractor’s liability for actual, delay,
and/or liquidated damages, shall be determined in relation to the date(s) as modified.
3.11. DOCUMENTATION AND AS-BUILT CONDITIONS AT THE SITE
3.11.1. The Contractor shall maintain at the site for the Owner one record copy of the Drawings,
Specifications, Addenda, Change Orders and other Modifications, in good order and accurately
marked to record current field changes and selections made during construction, and one record
copy of approved Shop Drawings, Product Data, Samples and similar required submittals. These
shall be available to the Owner at any time and shall be delivered to the Owner upon completion
of the Work.
3.11.2. The Owner shall not be required to process final payment until all documentation and data required
by the Contract Documents is submitted to and approved by the Owner including, but not limited to,
the As-Built Drawings. The Owner will not process any final request for payment until the Owner
has received and verified that the Contractor has performed the requirements pertaining to the as-
built drawings.
3.11.3. The as-built drawings shall be neatly and clearly marked during construction to record all
deviations, variations, changes, and alterations as they occur during construction along with such
supplementary notes and details necessary to clearly and accurately represent the as-built
condition. The as-built drawings shall be available at all times to the Owner.
3.12. SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
3.12.1. Definitions:
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3.12.1.1.Shop Drawings are drawings, diagrams, schedules and other data specially prepared for
the Work by the Contractor or a Subcontractor, Sub-subcontractor, manufacturer,
supplier or distributor to illustrate some portion of the Work.
3.12.1.2.Product Data are illustrations, standard schedules, performance charts, instructions,
brochures,diagrams andotherinformationfurnishedbytheContractor to illustrate materials
or equipment for some portion of the Work.
3.12.1.3.Samples are physical examples which illustrate materials, equipment or workmanship
and establish standards by which the Work will be judged.
3.12.2. Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. The
purpose of their submittal is to demonstrate for those portions of the Work for which submittals are
required by the Contract Documents the way by which the Contractor proposes to conform to the
information given and the design concept expressed in the Contract Documents. Review by the
Owner is subject to the limitations of Subparagraph 4.2.7. Informational submittals upon which the
Owner is not expected to take responsive action may be so identified in the Contract Documents.
Submittalswhichare not required bythe Contract Documents maybe returned bythe Owner without
action.
3.12.3. The Contractor shall review, approve, and submit to the Owner, Shop Drawings, Product Data,
Samples and similar submittals required by the Contract Documents within sixty (60) days of being
issued the Notice To Proceed unless noted otherwise and shall do so in such sequence as to
cause no delay in the Work or in the activities of the Owner or of separate contractors. Any and all
items submitted by the Contractor which are not marked as reviewed for compliance with
the Contract Documents and approved by the Contractor, or in the opinion of the Owner, have
not been reviewed for compliance by the Contractor even if marked as such, may be returned
by the Owner without action and shall not result in any accusation or claim for delay or cost by the
Contractor. Any submittal that, in the opinion of the Owner, is incomplete in any area or detail may
be rejected and returned to the Contractor. It is the responsibility of and incumbent upon the
Contractor to ensure and confirm that all submittals are complete, accurate, and in conformance
to the Contract Documents prior to submission.
3.12.4. By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the
Contractor represents and guarantees to the Owner that the Contractor has determined and
verified materials, field measurements and field construction criteria related thereto, or will do so,
and has checked and coordinated the information contained within such submittals with the
requirements of the Work and of the Contract Documents.
3.12.5. The Contractor shall perform no portion of the Work for which the Contract Documents require
submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the
respective submittal has been approved by the Owner. Should the Contractor, Subcontractors
or Sub- subcontractorsinstall,construct,erectorperform anyportionoftheWorkwithoutapprovalof
any requisite submittal, the Contractor shall bear the costs, responsibility, and delay for removal,
replacement, and/or correction of any and all items, material, and /or labor.
3.12.6. The Work shall be in accordance with approved submittals except that the Contractor shall not be
relieved of responsibility for deviations from requirements of the Contract Documents by the
Owner's approval of Shop Drawings, Product Data, Samples or similar submittals unless the
Contractor has specifically informed the Owner in writing of such deviation at the time of submittal
and: (1) theOwnerhasgivenwrittenapprovaltothespecificdeviationasaminorchangeintheWork;
or, (2) a Change Order or Construction Change Directive has been issued authorizing the deviation.
The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings,
Product Data, Samples or similar submittals by the Owner's approval thereof.
3.12.7. The Contractor shall direct specific attention, in writing or on re-submitted Shop Drawings, Product
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Data, Samples or similar submittals, to revisions other than those requested by the Owner on
previous submittals. In the absence of such written notice the Owner's approval of a re-
submission shall not apply to such revisions.
3.12.8. The Contractor shall not be required to provide professional services which constitute the practice
of architecture or engineering unless such services are specifically required by the Contract
Documents for a portion of the Work or unless the Contractor needs to provide such services in
order to carry out the Contractor's responsibilities for construction means, methods, techniques,
sequences and procedures. The Contractor shall not be required to provide professional services
in violation of applicable law. If professional design services or certifications by a design
professional related to systems, materials or equipment are specifically required of the Contractor
by the Contract Documents, the Owner will specify all performance and design criteria that such
services must satisfy. The Contractor shall cause such services or certifications to be provided
by a properly licensed design professional, whose signature and seal shall appear on all drawings,
calculations, specifications, certifications, Shop Drawings and other submittals prepared by such
professional. Shop Drawings and other submittals related to the Work designed or certified by
such professional, if prepared by others, shall bear such professional's written approval when
submitted to the Owner. The Owner shall be entitled to rely upon the adequacy, accuracy and
completeness of the services, certifications or approvals performed by such design professionals,
provided the Owner has specified to the Contractor all performance and design criteria that such
services must satisfy. Pursuant to this subparagraph, the Owner will review, approve or take
other appropriate action on submittals only for the limited purpose of checking for conformance with
information given and the design concept expressed in the Contract Documents.
3.12.9. Unless noted otherwise in the Contract Documents, the Contractor shall submit to the Owner within
sixty (60) days from the date of the Notice To Proceed a minimum of six (6) complete copies of all
shop/setting drawings, schedules, cut sheets, products, product data, and samples required
for the complete Work, or as specified within the Contract Documents. Copies shall be reviewed,
marked, stamped and approved on each and every copy by the Contractor prior to submission to
the Owner or they shall be returned without review or action. The Owner shall review within seven
(7) days (unless an alternative period is agreed to by the parties), making corrections, rejections,
or other actions as appropriate. The Owner’s approval or actions on shop/setting drawings,
schedules, cut sheets, products, product data, or samples shall not relieve the Contractor from
responsibility for, nor deviating from, the requirements of the plans and specifications. Any
deviations from the plans and specifications requested or made by the Contractor shall be brought
promptly to the attention of the Owner.
3.12.10.Costfor Re-Submissions: theContractorisresponsiblefor ensuringthatallshop drawings,
product data, samples, and submittals contain all information required by the Contract Documents
to allow the Owner to take action. The Contractor shall pay the Owner’s cost of reviewing any
submittal item exceeding two reviews for the same item. Such costs shall be deducted from the
contract sum by Change Order. The Contractor agrees that any action taken by the Owner is solely
inthe Owner’s discretion and is non-negotiable for the purposes of the Owner’s cost recovery for
multiple (i.e. more than one) review.
3.13. USE OF SITE
3.13.1. The Contractor shall confine operations at the site to areas permitted by law, ordinances,
permits and the Contract Documents and shall not unreasonably encumber the site with
materials or equipment. Only materials and equipment which are to be used in the Work shall
be brought to and stored on the Project Site by the Contractor.
3.13.2. The Contractor shall not damage, endanger, compromise or destroy any part of the Project
or the site, including but not limited to work performed by others, monuments, stakes, bench
marks, survey points, utilities, existing features or structures. The Contractor shall be fully and
exclusively responsible for and bear all costs and delays (including and costs of delay) for any
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damage, endangerment, compromise, or destruction of any part of the Project or site.
3.13.3. The Contractor shall coordinate his operations with the Owner in order that the Owner will have
maximum use of existing facilities surrounding the area of the Work, as agreed upon, at all
times during normal working hours. Contractor further agrees to coordinate his operations so
as to avoid interference with the Owner’s normal operations to as great an extent as possible.
3.13.4. Except as may be specifically provided in the Contract Documents, the Contractor shall provide
all necessary temporary facilities, including power, water, sanitation, scaffolding, storage, and
reasonable security. If Owner makes any such facilities available to Contractor, it is without
representation or warranty as to their adequacy for Contractor's use, and Contractor shall
indemnify, defend, and hold Owner harmless from and against any claims arising out of
Contractor's use of such facilities.
3.13.5. The Contractor shall ensure that the Work, at all times, is performed in a manner that affords
reasonable access, both vehicular and pedestrian, to the site of the Work and all adjacent
areas. The Work shall be performed, to the fullest extent reasonably possible, in such a manner
that public areas adjacent to the site of the Work shall be free from all debris, building materials
and equipment likely to cause hazardous conditions. Without limitation of any other provision
of the Contract Documents, Contractor shall not interfere with the occupancy or beneficial use
of (1) any areas and buildings adjacent to the site of the Work or (2) the Building in the event
of partial occupancy, as more specifically described in Paragraph 9.9, without prior approval
of the Owner.
3.13.6. The Contractor shall, for the duration of this Agreement, maintain all areas used by it in
performance of the contract free from excessive dust as reasonably determined and directed
by the Owner, and shall comply with the OSHA standards and those of all other regulatory
agencies, statutes and laws. Industry accepted methods of dust control suitable for the areas
involved will be permitted, where such is in compliance with the foregoing and with the approval
of the Owner. No separate payment will be made for dust control beyond what may be
previously approved by Owner as a General Condition Cost or as included in as a subcontract
bid package item.
3.13.7. The Contractor shall perform all work in strict conformity with all applicable laws, rules and
regulations relating to pollution of any land, stream, and the atmosphere. The Contractor shall,
at its expense, provide suitable facilities to prevent the introduction of any substances or
materials onto the land, or into any stream, river, lake or other body of water including
groundwater.
3.13.8. The Contractor shall not permit or suffer the introduction or use of tobacco or any intoxicants,
including alcohol or illegal drugs, upon the Project site.
3.14. CUTTING AND PATCHING
3.14.1. The Contractor shall be responsible for cutting, fitting or patching required to complete the Work
or to make its parts fit together properly.
3.14.2. The Contractor shall not damage or endanger a portion of the Work or fully or partially
completed construction of the Owner or separate contractors by cutting, patching or otherwise
altering such construction, or by excavation. The Contractor shall not cut or otherwise alter such
construction by the Owner or a separate contractor except with written consent of the Owner and of
such separate contractor; such consent shall not be unreasonably withheld. The Contractor shall
not unreasonably withhold from the Owner or a separate contractor the Contractor's consent to
cutting or otherwise altering the Work.
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3.15. WORK HOURS, CLEAN UP, AND SITE CONTROL
3.15.1. Work will be performed in accordance with the Contract Documents and the Bozeman Municipal
Code or other applicable law governing the Contractor’s performance of the Work. No delays
resulting from compliance with applicable laws or regulations may form the basis for any claim by
the Contractor for delay damages or additional compensation or for any extensions of the Contract
Time. Daily work hours shall be limited to those stipulated by Bozeman Municipal Code section
16.06.070.2. Normal work hours for Owner’s testing agencies shall be defined as Monday through
Friday, 8:00 a.m. to 5:00 p.m. except State or Federal holidays. Contractor shall provide a minimum
of 24 hours’ notice to Owner for any testing or inspection that Contractor requires of Owner, or
Owner’s designated representatives outside of normal business hours and shall be responsible for
payment of same to the appropriate party for off-hours Work. The Contractor must notify the Owner
as soon as possible if Work must be performed outside such times in the interest of the safety and
protection of persons or property at the Site or adjacent thereto, or in the event of an emergency.
In no event shall the Contractor permit Work to be performed at the Site without the presence of
the Contractor’s superintendent or person responsible for the protection of persons and property at
the Site and compliance with all applicable laws and regulations, if different from the
superintendent.
3.15.2. The Contractor shall keep the premises and surrounding area free from accumulation of waste
materials or rubbish caused by operations under the Contract during performance of the Work and
at the direction of the Owner. Contractor must keep tools, construction equipment, machinery and
surplus materials suitably stored when not in use. At completion of the Work, the Contractor shall
remove from and about the Project waste materials, rubbish, the Contractor's tools, construction
equipment, machinery and surplus materials.
3.15.3. The Contractor must comply with the Bozeman Municipal Code (Chpt. 16, Article 6) (Noise) and
any successor or substitute provisions covering the regulation of noise. It is the duty of the
Contractor to familiarize itself with those provisions and perform the Work in compliance with those
provisions.
3.15.4. If the Contractor fails to clean up in a manner reasonably satisfactory to the Owner within forty-
eight (48) hours after notice or as otherwise required by the Contract Documents, the Owner may
clean the Site and back charge the Contractor for all costs associated with the cleaning.
3.16. ACCESS TO WORK
3.16.1. The Contractor shall provide the Owner access to the Work at all times wherever located.
3.17. ROYALTIES, PATENTS AND COPYRIGHTS
3.17.1. The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims
for infringement of copyrights and patent rights and shall hold the Owner harmless from loss on
account thereof, but shall not be responsible for such defense or loss when a particular design,
process or product of a particular manufacturer or manufacturers is required by the Contract
Documents or where the copyright violations are contained in Drawings, Specifications or other
documents prepared by the Owner. However, if the Contractor has reason to believe that the
required design, process or product is an infringement of a copyright or a patent, the Contractor
shall be responsible for such loss unless such information is promptly furnished to the Owner.
3.18. INDEMNIFICATION
3.18.1. To the fullest extent permitted by law, the Contractor shall indemnify, defend, and hold harmless
the Owner, and agents and employees of the Owner (the “Indemnitees”) from and against claims,
damages, losses and expenses, including but not limited to attorneys' fees, liabilities (including
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liability where activity is inherently or intrinsically dangerous), or damages of whatever kind or
nature connected therewith occasioned by, growing or arising out of or resulting from or in any way
related to (a) the negligent, reckless, or intentionally wrongful acts or omissions of the Contractor,
a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they
may be liable; provided that the Contractor shall not be required to indemnify the Indemnitees to
the extent damages arise out of bodily injury to persons or damage to property caused by or
resulting from negligence of the Owner, its agents, officers, or employees, Such obligations shall
not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would
otherwise exist as to an Indemnitee.
3.18.2. Contractor’s indemnity under this Section 3.18 shall be without regard to and without any right to
contribution from any insurance maintained by Owner.
3.18.3. In claims against any person or entity indemnified under this Paragraph 3.18 by an employee
of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for
whose acts they may be liable, the indemnification obligation under Subparagraph 3.18.1 shall
not be limited by a limitation on amount or type of damages, compensation or benefits payable by
or for the Contractor or a Subcontractor under workers' compensation acts, disability benefit acts or
other employee benefit acts.
3.18.4. Contractor’s obligations under this Section 3.18 shall survive termination of the Contract and
completion of the Project.
4.ARTICLE 4 – ADMINISTRATION OF THE CONSTRUCTION CONTRACT
4.1.OWNER’S ADMINISTRATION OF THE CONSTRUCTION CONTRACT
4.1.1.The Owner will provide administration of the Contract as described in the Contract Documents
throughout the complete duration of the Project.
4.1.2.The Owner will visit the site at intervals appropriate to the stageoftheContractor'soperationsto:(1)
becomegenerallyfamiliarwiththe progress and quality of the portion of the Work completed; and,
(2) to determine in general if the Work is being performed in a manner indicating that the Work,
when fully completed, will be in accordance with the Contract Documents. However, the Owner
will not be required to make exhaustive or continuous on-site inspections to check the quality or
quantity of the Contractor’s Work. The Owner will neither have control over or charge of, nor be
responsible for, the construction means, methods, techniques, sequences or procedures, for the
safetyofanypersoninvolvedinthework, or for the safety precautions and programs in connection
with the Work, since these are solely the Contractor's rights and responsibilities under the
Contract Documents.
4.1.3.The Owner will not be responsible for the Contractor's failure to perform the Work in
accordance with the requirements of the Contract Documents. The Owner will not have control
over or charge of and will not be responsible for acts or omissions of the Contractor,
Subcontractors, or their agents or employees, or any other persons or entities performing portions
of the Work.
4.1.4.Communications Facilitating Contract Administration. CommunicationsbyandwithSubcontractors
and material suppliers shall be through the Contractor to the Owner. Communications by and with
separate contractors shall be through the Owner to the Contractor.
4.1.5.The Owner will review and certify the amounts due the Contractor.
4.1.6.The Owner will have authority to reject Work that does not conform to the Contract Documents.
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Whenever the Owner considers it necessary or advisable, the Owner will have authority to require
inspection or testing of the Work in accordance with the General Conditions and any applicable
technical specification requirements, whether or not such Work is fabricated, installed or completed.
However, neither this authority of the Owner nor a decision made in good faith either to exercise
or not to exercise such authority shall give rise to a duty or responsibility of the Owner to the
Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other
persons or entities performing portions of the Work.
4.1.7.The Owner will review and approve or take other appropriate action upon the Contractor's
submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose
of checking for conformance with information given and the design concept expressed in the
Contract Documents. Unless otherwise agreed to by the parties, the Owner's action will be taken
within seven (7) days or such shorter period as is necessary to cause no delay in the Work or in
the activities of the Owner, Contractor or separate contractors, while allowing sufficient time to
permit adequate review. Review of such submittals is not conducted for the purpose of determining
the accuracy and completeness of other details such as dimensions and quantities, or for
substantiating instructions for installation or performance of equipment or systems, all of which
remain the responsibility of the Contractor as required by the Contract Documents. The Owner's
review of the Contractor's submittals shall not relieve the Contractor of the obligations under
Paragraphs 3.3, 3.5 and 3.12. The Owner’s review shall not constitute approval of safety
precautions or, unless otherwise specifically stated by the Owner, of any construction means,
methods, techniques, sequences or procedures. The Owner’s approval of a specific item shall
not indicate approval of an assembly of which the item is a component.
4.1.8.The Contractor will prepare Change Orders and Construction Change Directives for Owner’s
approval. The Contractor will investigate and make recommendations regarding concealed and
unknown conditions as provided in Section 3.7.4.
4.1.9.The Owner will conduct inspections to determine the date or dates of Substantial Completion(s)
and the date of Final Acceptance, will receive written warranties and related documents required
by the Contract and assembled by the Contractor.
4.1.10. The Owner's observations or inspections do not alleviate any responsibility on the part of the
Contractor. The Owner reserves the right to observe and inspection the work and make comment.
Action or lack of action following observation or inspection is not to be construed as approval of
Contractor's performance.
4.2.CLAIMS AND DISPUTES
4.2.1.Definition. AClaim isa writtendemandorassertionbyoneofthepartiesseeking,asamatterofright,
adjustment or interpretation of Contract terms, payment of money, extensions of time or other relief
with respect to the terms of the Contract. The term "Claim" also includes other disputes,
controversies, and matters in question between the Owner and Contractor arising out of or relating
to the Contract. Claims must be initiated by written notice. The responsibilityto substantiateClaims
shall rest solely with the party making the Claim.
4.2.1.1 Time Limits on Claims. Claims by either party must be initiated within twenty-one (21) days
after occurrence of the event giving rise to such claim. The following shall apply to the initiation
of a claim:
4.2.1.1.1.A written notice of a claim must be provided to the other party within twenty-one (21)
days after the occurrence of the event or the claim is waived by the claiming party and
void in its entirety.
4.2.1.1.2.Claims must be initiated by separate, clear, and distinct written notice within the twenty-
one (21) day time frame to the other party and must contain the notarized statement
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in Sub-Paragraph 4.3.1.5 when the claim is made by the Contractor. Discussions in
any form with the Owner, whether at the site or not, do not constitute initiation of a
claim. Notes in project meeting minutes, email correspondence, change order
proposals, or any other form of documentation does not constitute initiation of a claim.
The written notice must be a separate and distinct correspondence provided in
hardcopy to the Owner and must delineate the specific event and outline the causes
and reasons for the claim whether or not cost or time have been fully determined.
Written remarks or notes of a generic nature are invalid in their entirety. Comments
made at progress meetings, project site visits, inspections, emails, voice mails, and
other such communications do not meet the requirement of providing notice of claim.
4.2.1.1.3.Physical Injury or Physical Damage. Should the Owner or Contractor suffer physical
injury or physical damage to person or property because of any error, omission, or act
of the other party or others for whose acts the other party is legally and
contractually liable, claim will be made in writing to the other party within a
reasonable time of the first observance of such physical injury or physical damage but
in no case beyond thirty (30) days of the first observance. The notice shall provide
sufficient detail to enable the other party to investigate the matter. The provisions
of this paragraph shall not be construed as a substitute for or a waiver of the provisions
of any applicable statute of limitations or repose. In all such cases, the indemnification
provisions of the Contract shall be effectual and the Contractor’s insurance shall be
primary and in full effect.
4.2.1.2. All Claims must contain sufficient justification and substantiation with the written notice or they
may be rejected without consideration by the other party with no additional impact or
consequence to the Contract Sum, Contract Time, or matter(s) in question in the Claim.
4.2.1.3. If additional compensation is claimed, the exact amount claimed and a breakdown of that
amount into the following categories shall be provided with each and every claim:
4.2.1.3.1.Direct costs (as listed in Subparagraph 7.3.9.1 through 7.3.9.5);
4.2.1.3.2.Indirect costs (as defined in Paragraph 7.2.5); and,
4.2.1.3.3.Consequential items (i.e. time extensions, credits, logic, reasonableness, impacts,
disruptions, dilution) for the change.
4.2.1.4 If additional time is claimed the following shall be provided with each and every claim:
4.2.1.4.1 The specific number of days and specific dates for which the additional time is
sought;
4.2.1.4.2 The specific reasons, causes, and/or effects whereby the Contractor believes that
additional time should be granted; and,
4.2.1.4.3 The Contractor shall provide analyses, documentation, and justification of its claim for
additional time in accordance with the latest Critical Path Method schedule in use at the
time of event giving rise to the claim.
4.2.1.5 With each and every claim, the Contractor shall submit to the Owner a notarized statement
containing the following language:
“Under penalty of law (including perjury and/or false/fraudulent claims against the
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State), the undersigned,
(Name)
(Title)
Of (Company)
hereby certifies, warrants, and guarantees that this claim made for Work on this
Contract is a true statement of the costs, adjustments and/or time sought and is
fully documented and supported under the contract between the parties.
(Signature)(Date)”
4.2.2.Continuing Contract Performance.
4.2.2.1. Pending final resolution of a Claim except as otherwise agreed in writing or as provided in
Subparagraph 9.7.1 and Article 14, the Contractor shall proceed diligently with performance of
the Contract and the Owner shall continue to make payments in accordance with the Contract
Documents on the portion of the Work not involved in a Claim.
4.2.3.Claims for Cost or Time for Concealed or Unknown Conditions.
4.2.3.1 If conditions are encountered at the site which are: (a) subsurface or otherwise concealed
physical conditions which differ materially from those indicated in the Contract Documents; or,
(b) unknown physical conditions of an unusual nature, which differ materially from those
ordinarily found to exist and generally recognized as inherent in construction activities of the
character provided for in the Contract Documents, then notice by the observing party shall be
given to the other party promptly before conditions are disturbed.
4.2.3.2 The Owner and Contractor will promptly investigate such conditions and, if they differ materially
and cause an increase or decrease in the Contractor's cost of, or time required for, performance
of any part of the Work, Contractor will recommend an equitable adjustment in the Contract
Sum or Contract Time, or both. If the Owner determines that the conditions at the site are not
materially different from those indicated in the Contract Documents and that no change in the
terms of the Contract is justified, the Owner shall so notify the Contractor in writing, stating
the reasons. Claims by the Contractor in opposition to such determination must be made
within twenty-one (21) days after the date of the Owner’s decision.
4.2.3.3 If the conditions encountered are materially different, the Contract Sum and Contract Time shall
be equitably adjusted, but if the Owner and Contractor cannot agree on an adjustment in the
Contract Sum or Contract Time, the adjustment shall be subject to further proceedings pursuant
to Paragraph 4.4.
4.2.3.4 Nothing in this paragraph shall relieve the Contactor of its obligation to adequately and
sufficiently investigate, research, and examine the site, the site survey, topographical
information, and the geotechnical information available whether included by reference or fully
incorporated in the Contract Documents.
4.2.4.Claims for Additional Cost.
4.2.4.1 If the Contractor wishes to make Claim for an increase in the Contract Sum, written notice as
providedherein shall be given before proceeding to execute the Work. Prior notice is not
required for Claims relating to an emergency endangering life or property arising under
Paragraph 10.6.
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4.2.4.2 If the Contractor believes additional cost is involved for reasons including but not limited to: (a)
an order by the Owner to stop the Work solely for the Owner’s convenience or where the
Contractor was not at least partially at fault; (b) a written order for a minor change in the Work
issued by the Owner; (c) failure of payment by the Owner per the terms of the Contract; (d)
termination of the Contract by the Owner; or, (e) other reasonable grounds, Claim must be filed
in accordance withParagraph 4.3.
4.2.5.Claims for Additional Time
4.3.5.1. If the Contractor wishes to make Claim for an increase in the Contract Time, written notice as
specified in these General Conditions shall be provided along with the notarized certification.
The Contractor's Claim shall include an estimate of cost and of probable effect of delay on
progress of the Work. In the case of a continuing delay for the same event or cause only one
Claim is necessary. However, separate and distinct written notice is required for each separate
event.
4.3.5.2. Weather Delays:
4.2.5.2.1 If adverse weather conditions are the basis for a Claim for additional time, such Claim
shall be documented by data substantiating that weather conditions were abnormal for
the period of time, could not have been reasonably anticipated, and had an adverse
effect on the scheduled construction activities.
4.2.5.2.2 Inclement or adverse weather shall not be a prima facie reason for the granting of an
extension of time, and the Contractor shall make every effort to continue work under
prevailing conditions. The Owner may grant an extension of time if an unavoidable
delay occurs as a result of inclement/severe/adverse weather and such shall then be
classified as a “Delay Day”. Any and all delay days granted by the Owner are and
shall be non-compensable in any manner or form. The Contractor shall comply with
the notice requirements concerning instances of inclement/severe/adverse weather
before the Owner will consider a time extension. Each day of
inclement/severe/adverse weather shall be considered a separate instance or event
and as such, shall be subject to the notice requirements.
4.2.5.2.3 An“inclement”,“severe”,or“adverse”weatherdelaydayisdefinedasadayonwhich the
Contractor is prevented by weather or conditions caused by weather resulting
immediately there from, which directly impact the current controlling critical-path
operation or operations, and which prevent the Contractor from proceeding with at
least 75% of the normal labor and equipment force engaged on such critical path
operation or operations for at least 60% of the total daily time being currently spent on
the controlling operation or operations.
4.2.5.2.4 The Contractor shall consider normal/typical/seasonal weather days and conditions
caused by normal/typical/seasonal weather days for the location of the Work in the
planning and scheduling of the Work to ensure completion within the Contract Time. No
time extensions will be granted for the Contractor’s failure to consider and account
for such weather days and conditions caused by such weather for the Contract
Time in which the Work is to be accomplished.
4.2.5.2.5 A “normal”, “typical”, or “seasonal” weather day shall be defined as weather that can be
reasonably anticipated to occur at the location of the Work for each particular month
involved in the Contract Time. Each month involved shall not be considered individually
as it relates to claims for additional time due to inclement/adverse/severe weather but
shall consider the entire Contract Time as it compares to normal/typical/seasonal
weather that is reasonably anticipated to occur. Normal/typical/seasonal weather
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days shall be based upon U.S. National Weather Service climatic data for the location
of the Work or the nearest location where such data is available.
4.2.5.2.6 The Contractor is solely responsible to document, prepare and present all data and
justification for claiming a weather delay day. Any and all claims for weather delay
days shall be tied directly to the current critical-path operation or operations on the
day of the instance or event which shall be delineated and described on the Critical-
Path Schedule and shall be provided with any and all claims. The Contractor is
solely responsible to indicate and document why the weather delay day(s) claimed
are beyond those weather days which are reasonably anticipated to occur for the
Contract Time. Incomplete or inaccurate claims, as determined by the Owner, may be
returned without consideration or comment.
4.2.5.3 Where the Contractor is prevented from completing any part of the Work with specified
durations or phases due to delay beyond the control of both the Owner and the Contractor, an
extension of the contract time or phase duration in an equal amount to the time lost due to such
delay shall be the Contractor’s sole and exclusive remedy for such delay.
4.2.5.4 Delays attributable to and/or within the control of subcontractors and suppliers are deemed to
be within the control of the Contractor.
4.2.5.5 In no event shall the Owner be liable to the Contractor, any subcontractor, any supplier,
Contractor’s surety, or any other person or organization, for damages or costs arising out of or
resulting from: (1) delays caused by or within the control of the Contractor which include but
are not limited to labor issues or labor strikes on the Project, federal, state, or local jurisdiction
enforcement actions related directly to the Contractor’s Work (e.g. safety or code violations,
etc.); or, (2) delays beyond the control of both parties including but not limited to fires, floods,
earthquakes, abnormal weather conditions, acts of God, nationwide material shortages, actions
or inaction by utility owners, emergency declarations by federal, state, or local officials enacted
in the immediate vicinity of the project.
4.2.6.Claims for Consequential Damages.
4.2.6.1 The Contractor and Owner waive Claims against each other for consequential damages arising
out of or relating to this Contract. This mutual waiver includes:
4.2.6.1.1 damages incurred by the Owner for losses of use, income, profit, financing, business
and reputation, and for loss of management or employee productivity or of the
services of such persons; and,
4.2.6.1.2 damages incurred by the Contractor for principal office expenses including the
compensation of personnel stationed there, for losses of financing, business and
reputation, income, and for loss of profit.
4.2.6.2 This mutual waiver is applicable, without limitation, to all consequential damages due to either
party's termination in accordance with Article 14. Nothing contained in this waiver of
consequential damages shall be deemed to preclude an award of liquidated or actual damages,
when applicable, in accordance with the requirements of the Contract Documents.
4.3.RESOLUTION OF CLAIMS, DISPUTES, AND CONTROVERSIES
4.3.1.Either party may submit a Claim to the other party in accordance with the Contract. After
submission of the Claim, the parties will attempt in good faith to resolve the Claim through
negotiation.
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4.3.2.Any Claim arising out of or related to the Contract, except those already waived in
Subparagraphs 4.3.6, 7.2.6, 7.3.8, 9.10.4 and 9.10.5 shall be subject to mediation or the
institution of legal or equitable proceedings. Claims waived in Subparagraphs 4.3.6, 7.2.6, 7.3.8,
9.10.4, and 9.10.5 are deemed settled, resolved, and completed.
4.3.3.A Claim subject to or related to liens or bonds shall be governed by applicable law regarding
notices, filing deadlines, and resolution of such Claim prior to any resolution of such Claim by
mediation, or by arbitration, except for claims made by the Owner against the Contractor’s bonds.
4.3.4.Pending final resolution of a Claim including mediation, arbitration (if mutually agreed to by the
Parties), or court proceedings, unless otherwise mutually agreed in writing, the Contractor shall
proceed diligently with performance of the Contract and the Owner shall continue to make
payments in accordance with the Contract on Work or amounts not in dispute.
4.4.MEDIATION
4.4.1.Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and
except those waived as provided for in Subparagraphs 4.3.6, 7.2.6, 7.3.8, 9.10.4 and 9.10.5 shall,
thirty (30) days after submission of the Claim to the other party and the party’s inability to resolve the
claim through good faith negotiations, be subject to mediation as a condition precedent to the
institution of legal or equitable proceedings by either party.
4.4.2.The parties shall endeavor to resolve their Claims by mediation administered by a Dispute
Resolution Board established pursuant to the Dispute Resolution Board Foundation’s Practice and
Procedural Manual. The parties must enter into a separate agreement establishing, among others,
the scope of work of the DRB, the responsibilities of the parties, the time for completion of the
DRB’s process, payment to DRB members, and whether the decision or findings of the DRB will
be binding or admissible in other proceedings. The parties may, by mutual agreement, submit to
mediation administered by a neutral third party mediator in accordance with American Arbitration
Association procedures in effect on the date the Claim is made in lieu of a DRB.
4.4.3.The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held
in the place where the Project is located, unless another location is mutually agreed upon.
Agreements reached in mediation shall be enforceable as settlement agreements in any court
having jurisdiction thereof.
4.5.ARBITRATION
4.5.1.Any controversy or Claim arising out of or related to the Contract, except Claims relating to
aesthetic effect and except thosewaivedasprovidedforinSubparagraphs4.3.6,7.2.6,7.3.8,9.10.4
and 9.10.5, may, thirty (30) days after submission of the Claim to the other party, be submitted to
arbitration provided both parties mutually agree in writing to submit the Claim to arbitration. Prior
to arbitration, the parties shall endeavor to resolve disputes by mediation in accordance with the
provisions of Paragraph 4.5.
4.5.2.In the event the parties agree to utilize an arbitration process, it shall be conducted in accordance
with the Montana Uniform Arbitration Act (MUAA). To the extent it does not conflict with the MUAA,
the Construction Industry Arbitration Rules of the American Arbitration Association shall apply
except as modified herein. The parties to the arbitration shallbear their own costs and expenses for
participating in the arbitration. Costs of the Arbitration panel shall be borne equally between the
parties except those costs awarded by the Arbitration panel (including costs for the arbitration
itself).
4.5.3.Prior to the arbitration hearing all parties to the arbitration may conduct discovery subject to the
provisions of Montana Rules of Civil Procedure. The arbitration panel may award actual damages
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incurred if a party fails to provide full disclosure under any discovery request. If a partyclaims a right
of information privilege protected by law, the party must submit that claim to the arbitration panel
for a ruling, before failing to provide information requested under discovery or the arbitration panel
may award actual damages.
4.5.4.The venue for all arbitration proceedings shall be the seat of the county in which the work occurs or
the Eighteenth Judicial District, Gallatin County, as determined solely by the Owner. Arbitration
shall be conducted by a panel comprised of three members with one selected by the
Contractor, one selected by the Owner, and one selected by mutual agreement of the Owner and
the Contractor.
4.5.5.A request for arbitration shall be made within the time limits specified in Subparagraphs 4.4.5. In
no event shall it be made after the date when institution of legal or equitable proceedings based
on such Claim would be barred by the applicable statute of limitations as determined pursuant to
Paragraph 13.7.
4.5.6.Limitation on Consolidation or Joinder. No arbitration shall include, by consolidation or joinder
or in any other manner, parties other than the Owner, Contractor, a separate contractor as
described in Article 6 and other persons substantially involved in a common question of fact or
law whose presence is required if complete relief is to be accorded in arbitration. No person or entity
other than the Owner,Contractor, or a separate contractor as described in Article 6 shall be included
as an original third party or additional third party to an arbitration whose interest or responsibility is
insubstantial. The foregoing agreement to arbitrate and other agreements to arbitrate with an
additional person or entity duly consented to by parties to the Agreement shall be specifically
enforceable under applicable law in any court having jurisdiction thereof.
4.5.7.Claims and Timely Assertion of Claims. The party filing a request for arbitration must assert
in the request all Claims then known to that party on which arbitration is permitted to be demanded.
4.5.8.Judgment on Final Award. The award rendered by the arbitrator or arbitrators shall be final,
and judgment may be entered upon it in accordance with applicable law in any court having
jurisdiction thereof. The parties agree that the arbitrator(s) shall have authority to award to either
party some or all of the costs and expenses involved, including attorney’s fees.
5.ARTICLE 5 – SUBCONTRACTORS
5.1.DEFINITION
5.1.1.A Subcontractor is a person or entity who has a direct or indirect contract at any tier or level with
the Contractor or any Subcontractor to the Contractor to perform a portion of the Work at the site.
The term "Subcontractor" is referred to throughout the Contract Documents as if singular in number
and means a Subcontractor or an authorized representative of the Subcontractor. The term
"Subcontractor" does not include a separate contractor or subcontractors of a separate contractor.
5.2.AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK
5.2.1.Unless otherwise stated in the Contract Documents or the bidding requirements, the Contractor,
as soon as practicable after award of the Contract and in no instance later than thirty (30)
days after award of the Contract, shall furnish in writing to the Owner the names of persons or
entities (including those who are to furnish materials or equipment fabricated to a special
design) proposed for each principal portion of the Work. The Owner will promptly reply to
the Contractor in writing stating whether or not the Owner, after due investigation, has reasonable
objection to any such proposed person or entity.
5.2.2.The Contractor shall not contract with a proposed person or entity to which the Owner has
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made reasonable and timely objection. The Contractor shall not be required to contract with
anyone to whom the Contractor has made reasonable objection.
5.2.3.If the Owner has reasonable objection to a person or entity proposed by the Contractor, the
Contractor shall propose another to whom the Owner has no reasonable objection. If the
proposed but rejected Subcontractor was reasonably capable of performing the Work, the Contract
Sum and Contract Time shall be increased or decreased by the difference, if any, occasioned by
such change, and an appropriate Change Order shall be issued before commencement of the
substitute Subcontractor's Work. However, no increase in the Contract Sum or Contract Time shall
be allowed for such change unless the Contractor has acted promptly and responsively in
submitting names as required.
5.2.4.The Contractor shall not change a Subcontractor, person or entity previously selected if the
Owner makes reasonable objection to such substitute. The Contractor shall not change or
substitute for a Subcontractor who was required to be listed on the bid without first getting the
approval of the Owner.
5.3.SUBCONTRACTUAL RELATIONS
5.3.1.By appropriate agreement, written where legally required for validity, the Contractor shall require
each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be
bound to the Contractor by terms of the Contract Documents, and to assume toward the Contractor
all the obligations and responsibilities, including the responsibility for safety of the Subcontractor's
Work, which the Contractor, by these Documents, assumes toward the Owner. Each subcontract
agreement shall preserve and protect the rights of the Owner under the Contract Documents with
respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not
prejudice such rights, and shall allow to the Subcontractor, unless specifically provided otherwise in
the subcontract agreement, the benefit of all rights, remedies and redress against the Contractor
that the Contractor, by the Contract Documents, has against the Owner. Where appropriate, the
Contractor shall require each Subcontractor to enter into similar agreements with Sub-
subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the
execution of the subcontract agreement, copies of the Contract Documents to which the
Subcontractor will be bound, and, upon written request of the Subcontractor, identify to the
Subcontractor terms and conditions of the proposed subcontract agreement which may be at
variance with the Contract Documents. Subcontractors will similarly make copies of applicable
portions of such documents available to their respective proposed Sub-subcontractors.
5.3.2.Upon written request by the Owner, the Contractor shall require its subcontractors to provide
to it performance and payment securities for their portion of the Work in the types and form defined
in statute (18-2-201 and 18-2-203 MCA) for all sub-contractual agreements.
5.3.3.The Contractor shall prepare a Subcontractors’ and Suppliers’ chart in a format acceptable to the
Owner which lists by name, all contact information, job category, and responsibility the Contractor’s
Subcontractors (at all tiers or levels) and Suppliers with a pecuniary interest in the Project of greater
than $5,000.00. The chart shall be provided to the Owner at the time of the pre-construction
conference but no less than thirty (30) days after receiving the Notice to Proceed for construction.
5.3.4.All Contractors and Subcontractors to this contract must comply with all Montana Department of
Labor and Industry requirements, regulations, rules, and statutes.
5.3.5.In compliance with state statutes, the Contractor will have the 1% Gross Receipts Tax withheld
from all payments. Each "Public Contractor" includes all Subcontractors with contracts greater than
$5,000 each. The Contractor and all Subcontractors will withhold said 1% from payments made to
all Subcontractors with contracts greater than $5,000.00 and make it payable to the Montana
Department of Revenue. The Contractor and all Subcontractors shall also submit documentation of
all contracts greater than $5,000.00 to the Montana Department of Revenue on the Department’s
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prescribed form.
5.4.CONTINGENT ASSIGNMENT OF SUBCONTRACTS
5.4.1.Each subcontract agreement for a portion of the Work is assigned by the Contractor to the
Owner provided that:
5.4.1.1. assignment is effective only after termination of the Contract by the Owner for cause pursuant
to Paragraph 14.2 and only for those subcontract agreements which the Owner accepts by
notifying the Subcontractor and Contractor in writing; and,
5.4.1.2. assignment is subject to the prior rights of the surety, if any, obligated under bond relating to
the Contract.
5.4.2.Upon such assignment, if the Work has been suspended for more than thirty (30) days as a
result of the Contractor’s default, the Subcontractor's compensation shall be equitably adjusted for
increases in cost resulting from the suspension. Such adjustment shall be at the expense of the
Contractor.
5.4.3.The Contractor shall engage each of its subcontractors and suppliers with written contracts that
preserve and protect the rights of the Owner and include the acknowledgement and agreement of
each subcontractor and supplier that the Owner is a third-party beneficiary of their sub-contractual
and supplier agreements. The Contractor’s agreements shall require that in the event of default by
the Contractor or termination of the Contractor, and upon request of the Owner, the Contractor’s
subcontractors and suppliers will perform services for the Owner.
5.4.4.Construction Contractor Registration: All Subcontractors at any tier or level are required to be
registered with the Department of Labor and Industry under 39-9-201 and 39-9-204 MCAprior to the
Contract being executed by the Owner. Subcontractors shall demonstrate to the Contractor that
it has registered or promises that it will register immediately upon notice of award and prior to
the commencement of any work.
6.ARTICLE 6 – CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
6.1.OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS
6.1.1.The Owner reserves the right to perform construction or operations related to the Project with the
Owner's own forces, and to award separate contracts in connection with other portions of the
Project or other construction or operations on the site under Conditions of the Contract identical or
substantially similar to these including those portions related to insurance. If the Contractor claims
that delay or additional cost is involved because of such action by the Owner, the Contractor shall
make such Claim as provided in Paragraph 4.3.
6.1.2.When separate contracts are awarded for different portions of the Project or other construction
or operations on the site, the term "Contractor" in the Contract Documents in each case shall
mean the Contractor who executes each separate Owner-Contractor Agreement.
6.1.3.The Owner shall provide for coordination of the activities of the Owner's own forces and of each
separate contractor with the Work of the Contractor, who shall cooperate with them. The
Contractor shall participate with other separate contractors and the Owner in reviewing their
construction schedules when directed to do so. The Contractor shall make any revisions to
the construction schedule deemed necessary after a joint review and mutual agreement. The
construction schedules shall then constitute the schedules to be used by the Contractor, separate
contractors and the Owner until subsequently revised.
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6.1.4.Unless otherwise provided in the Contract Documents, when the Owner performs construction
or operations related to the Project with the Owner's own forces, the Owner shall be deemed to be
subject to the same obligations and to have the same rights which apply to the Contractor under
the Conditions of the Contract, including, without excluding others, those stated in Article 3, this
Article 6 and Articles 10, 11 and 12.
6.2.MUTUAL RESPONSIBILITY
6.2.1.The Contractor shall afford the Owner and separate contractors reasonable opportunity for
introduction and storage of their materials and equipment and performance of their activities, and
shall connect and coordinate the Contractor's construction and operations with theirs as
required by the Contract Documents.
6.2.2.If part of the Contractor's Work depends for proper execution or results upon construction or
operations by the Owner or a separate contractor, the Contractor shall, prior to proceeding with
that portion of the Work, promptly report to the Owner apparent discrepancies or defects in such
other construction that would render it unsuitable for such proper execution and results.
Failure of the Contractor so to report shall constitute an acknowledgment that the Owner's or
separate contractor's completed or partially completed construction is fit and proper to receive the
Contractor's Work, except as to defects not then reasonably discoverable.
6.2.3.The Contractor shall reimburse the Owner for costs the Owner incurs which are payable to a
separate contractor because of delays, improperly timed activities or defective construction of the
Contractor. The Owner shall be responsible to the Contractor for costs incurred by the Contractor
because of a separate contractor’s delays, improperly timed activities, damage to the Work or
defective construction.
6.2.4.The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed
or partially completed construction or to property of the Owner or separate contractors as
provided in Subparagraph 10.2.5.
6.2.5.The Owner and each separate contractor shall have the same responsibilities for cutting and
patching as are described for the Contractor in Subparagraph 3.14.
6.2.6.If a Subcontractor or separate contractor initiates legal or other proceedings against the Owner on
account of damage alleged to have been caused by the Contractor or its employees, agents, or
subcontractors, the Owner shall notify the Contractor who shall defend such proceedings at its own
expense, and if judgment or award against the Owner arises therefrom, the Contractor shall pay or
satisfy it and shall reimburse the Owner for attorneys’ fees and court or other costs which the Owner
has incurred over and above those paid for directly by the Contractor.
6.3.OWNER'S RIGHT TO CLEAN UP
6.3.1.If a dispute arises among the Contractor, separate contractors and the Owner as to the
responsibility under their respective contracts for maintaining the premises and surrounding area
free from waste materials and rubbish, the Owner may clean up and the Owner will determine
the responsibility of those involved and allocate the cost accordingly.
7.ARTICLE 7 – CHANGES IN THE WORK
7.1.GENERAL
7.1.1.Changes in the Work may be accomplished after execution of the Contract, and without invalidating
the Contract, by Change Order, Construction Change Directive, or order for a minor change in
the Work subject to the limitations stated in this Article 7 and elsewhere in the Contract Documents.
Minor changes as ordered by the Owner has the definition provided in Paragraph 7.4.
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7.1.2.AChange Order shall be basedupon agreementbetweentheOwner and Contractor; a Construction
Change Directive requires agreement by the Owner and may or may not be agreed to by the
Contractor; an order for a minor change in the Work may be issued by the Owner alone.
7.1.3.Changes in the Work shall be performed under applicable provisions of the Contract Documents
and the Contractor shall proceed promptly, unless otherwise provided in the Change Order,
Construction Change Directive, or order for a minor change in the Work.
7.1.4.No act, omission, or course of dealing, shall alter the requirement that Change Orders or
Construction ChangeDirectivesshallbeinwritingandsignedbytheOwner,andthatChangeOrders
and Construction Change Directives are the exclusive method for effecting any adjustment to the
Contract. The Contractor understands and agrees that neither the Contract Sum nor the
Contract Time can be changed by implication, oral agreement, verbal directive, or unsigned
Change Order.
7.2.CHANGE ORDERS
7.2.1.A Change Order is a written instrument prepared by the Contractor and signed by the Owner
and Contractor, stating their agreement upon all of the following:
7.2.1.1. change in the Work;
7.2.1.2. the amount of the adjustment, if any, in the Contract Sum; and,
7.2.1.3. the extent of the adjustment, if any, in the Contract Time.
7.2.2.The cost or credit to the Owner resulting from a change in the Work shall be determined as
follows:
7.2.2.1. per the limitations of this Subparagraph, plus a maximum total combined allowance of 5.0%for
overhead and profit for the GCCM. The allowance for overhead and for profit are limited to the
percentage as specified herein unless they are determined to be unreasonable by the Owner
(not the Contractor) per Subparagraph 7.3.9 for each Change Order or Construction Change
Directive; or,
7.2.2.2. by one of the methods in Subparagraph 7.3.4, or as determined by the Owner per
Subparagraph 7.3.9, plus a maximum total combined allowance of 5.0%for overhead and profit
for the GC/CM. Subcontractors shall be limited to a maximum total combined allowance of
15.0%for overhead and profit. The allowances for overhead and for profit are limited to the
percentages as specified herein unless they are determined to be unreasonable by the
Owner (not the Contractor) per Subparagraph 7.3.9 for each Change Order or Construction
Change Directive.
7.2.2.3. The Contractor’s proposed increase or decrease in cost shall be limited to costs listed in
Subparagraph 7.3.9.1 through 7.3.9.5.
7.2.3.The Contractor shall not submit any Change Order, response to requested cost proposals, or
requested changes which are incomplete and do not contain full breakdown and supporting
documentation in the following three areas:
7.2.3.1. Itemized direct costs (only those listed in Subparagraph 7.3.9.1 through 7.3.9.5 are allowable);
7.2.3.2. Itemized indirect costs (limited as a percentage on each Change Order per Supplementary
General Conditions, Paragraph 7.2.2); and
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7.2.3.3. Itemized consequential items (e.g. time extensions, credits, logic, reasonableness, impacts,
disruptions, dilution).
7.2.3.4. The Contractor shall provide a complete description detailing and summarizing all work
involved.
7.2.4.Any Change Order, responses to requested proposals, or requested changes submitted by the
Contractor which, in the opinion of the Owner, are incomplete, may be rejected and returned to
the Contractor without comment. It is the responsibility of and incumbent upon the Contractor to
ensure and confirm that all Change Orders, responses to requested proposals, or requested
changes are complete prior to submission.
7.2.5.Overhead, applicable to all areas and sections of the Contract Documents, means “Indirect Costs”
as referencedinSubparagraph7.2.3.2. Indirectcostsareinclusiveof,butnotlimitedto,thefollowing:
home office overhead; off-site supervision, except as directly related to the work; home office
project management, except as directly related to the work; effects of disruption and dilution of
management and supervision off-site; time delays; coordination of trades; postage and shipping;
and, effective increase in guarantee and warranty durations. Indirect costs applicable to any and
all changes in the work, either through Change Order or Construction Change Directive, are limited
to the percentage allowance for overhead in Subparagraph 7.2.2.
7.2.6.By signature on any Change Order, the Contractor certifies that the signed Change Order is
complete and includes all direct costs, indirect costs and consequential items (including additional
time, if any) and is free and clear of all claims or disputes (including, but not limited to, claims for
additional costs, additional time, disruptions, and/or impacts) in favor of the Contractor,
subcontractors, material suppliers, or other persons or entities concerning the signed change order
and on all previously contracted Work and does release the Owner from such claims or demands.
7.2.7.Any and all changes or adjustments to the Contract Time requested or claimed by the Contractor
as a result of a Change Order shall require documentation and justification for the adjustment by
a Critical Path Method analysis of the Contractor’s most recent Critical Path Schedule in use prior
to the change. Changes which affect or concern activities containing float or slack time (i.e. not on
the critical path) and which can be accomplished within such float or slack time, shall not result in
an increase in the Contract Time.
7.2.8.Supervision means on-site, field supervision and not home office overhead, off-site management
or off- site supervision, except as directly related to the work.
7.2.9.Labor means those persons engaged in construction occupations as defined in Montana Prevailing
Wage Rates for Building Construction or Heavy/Highway as bound in the Contract Documents
and does not include design, engineering, superintendence, management, on-site field
supervision, home office or other off-site management, off-site supervision, office or clerical work.
7.2.10. No such change is effective until the Owner and Contractor sign the Change Order.
7.3.CONSTRUCTION CHANGE DIRECTIVES
7.3.1.A Construction Change Directive is a written order prepared and signed by the Owner, directing a
change in the Work prior to agreement on adjustment, if any, in the Contract Sum or Contract Time,
or both. The Owner may by Construction Change Directive, without invalidating the Contract,
order changes in the Work within the general scope of the Contract consisting of additions,
deletions or other revisions, the Contract Sum and Contract Time being adjusted accordingly.
7.3.2.Any and all changes or adjustments to the Contract Time requested or claimed by the Contractor
as a result of a Construction Change Directive, shall require documentation and justification for the
adjustment by a Critical Path Method analysis of the Contractor’s most recent Critical Path
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Schedule in use prior to the change. Changes that affect or concern activities containing float or
slack time (i.e. not on the critical path) and which can be accomplished within such float or slack
time shall not result in an increase in the Contract Time.
7.3.3.A Construction Change Directive shall be used in the absence of agreement on the terms of a
Change Order.
7.3.4.If the Construction Change Directive provides for an adjustment to the Contract Sum, the
adjustment shall be based on one of the following methods:
7.3.4.1. mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating
data to permit evaluation;
7.3.4.2. unit prices stated in the Contract Documents or subsequently agreed upon;
7.3.4.3. cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed
or percentage fee;
7.3.4.4. by actual cost as shown by the Contractor's and Subcontractor's itemized invoices; or
7.3.4.5. as provided in Subparagraph 7.3.9.
7.3.5.Costs shall be limited to the following: cost of materials, including cost of delivery; cost of labor,
including social security, old age and unemployment insurance and fringe benefits under
collective bargaining agreements; workers' compensation insurance; bond premiums; and rental
value of power tools and equipment.
7.3.6.Overhead and profit allowances shall be limited on all Construction Change Directives to those
identified in 7.2.2.
7.3.7.Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the
change in the Work involved and advise the Owner of the Contractor's agreement or disagreement
with the method, if any, provided in the Construction Change Directive for determining the
proposed adjustment in the Contract Sum or Contract Time.
7.3.8.A Construction Change Directive signed by the Contractor indicates the agreement of the
Contractor therewith, including adjustment in Contract Sum and Contract Time or the method for
determining them. Such agreement shall be effective immediately and shall be recorded as a
Change Order.
7.3.9.If the Contractor does not respond or disagrees with the method for adjustment in the Contract
Sum in writing within seven (7) days, the method and the adjustment made shall be determined by
the Owner on the basis of reasonable expenditures and/or savings of those performing the Work
directly attributable to the change including, in the case of an increase in the Contract Sum,
plus an allowance for overhead and profit as listed under Subparagraph 7.2.2. In such case, and
also under Clause 7.3.4.3, the Contractor shall keep and present, in such form as the Architect
may prescribe, an itemized accounting together with appropriate supporting data. Unless otherwise
provided in the Contract Documents, costs for the purposes of this Subparagraph 7.3.9 shall be
limited to the following:
7.3.9.1. costs of labor, including social security, old age and unemployment insurance, fringe benefits
required by agreement or custom, and workers' compensation insurance as determined by the
Prevailing Wage Schedules referenced in the Contract Documents;
7.3.9.2. costs of materials, supplies and equipment, including cost of transportation, whether
incorporated or consumed;
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7.3.9.3. rental costs of machinery and equipment, exclusive of hand tools, whether rented from the
Contractor or others;
7.3.9.4. costs of premiums for all bonds and insurance, permit fees, and sales, use or similar taxes
related to the Work; and,
7.3.9.5. additional costs of field supervisionand field office personnel directlyattributable to the change.
7.3.10. The amount of credit to be allowed by the Contractor to the Owner for a deletion or change which
results in a net decrease in the Contract Sum shall be actual net cost. When both additions and
credits covering related Work or substitutions are involved in a change, the allowance for
overhead and profit shall be figured on the basis of net increase, if any, with respect to that change.
7.3.11. Pending final determination of the total cost of a Construction Change Directive to the Owner,
amounts not in dispute for such changes in the Work shall be included in Applications for Payment
accompanied by a Change Order indicating the parties' agreement with part or all of such costs. For
any portion of such cost that remains in dispute, the Owner will make an interim determination for
purposes of monthly certification for payment for those costs. That determination of cost shall adjust
the Contract Sum on the same basis as a Change Order, subject to the right of either party to
disagree and assert a claim in accordance with Article 4.
7.3.12. When the Owner and Contractor reach agreement upon the adjustments, such agreement shall
be effective immediately and shall be recorded by preparation and execution of an appropriate
Change Order. Change Orders may be issued for all or any part of a Construction Change
Directive.
7.4.MINOR CHANGES IN THE WORK
7.4.1.The Owner may order minor changes in the Work not involving adjustment in the Contract Sum or
extension of theContract Time andnotinconsistent withtheintent of the Contract Documents. Such
changes shall be effected by written order and shall be binding on the Owner and Contractor.
The Contractor shall carry out such written orders promptly.
8.ARTICLE 8 – TIME
8.1.DEFINITIONS
8.1.1.Time is of the essence in performance, coordination, and completion of the Work contemplated
herein. The Owner may suffer damages if the Work is not completed as specified herein. When
any duration or time period is referred to in the Contract Documents by days, the first day shall be
determined as the day following the current day of any event or notice starting a specified duration.
8.1.2.Unless otherwise provided, Contract Time is the period of time, including authorized adjustments,
allotted in the Contract Documents for Substantial Completion of the Work.
8.1.3.The date of commencement of the Work is the date established in the NOTICE TO PROCEED
AS ISSUED BY THE OWNER.
8.1.4.The date the Contractor reaches Substantial Completion is the date certified by the Owner in
accordance with Paragraph 9.8.
8.1.5.The term "day" as used in the Contract Documents shall mean calendar day unless otherwise
specifically defined.
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8.1.6.Liquidated Damages. The GC/CM acknowledges that the Owner will sustain damages as a
result of the GC/CM's failure to substantially complete the Project in accordance with the
Contract Documents. These damages may include, but are not limited to delays in completion, use
of the Project, engineering costs to complete the Project, and costs associated with Contract
administration and use of temporary facilities. The GC/CM and the Owner acknowledge that the
actual amount of damages would be difficult to determine accurately and agree that that the
following liquidated damages figure represents a reasonable estimate of such damages and is not
a penalty:
8.1.6.1 The Contractorand his suretyshall be liable for andshall pay to the Owner the sums hereinafter
stipulated as liquidated damages for each calendar day of delay until the Work is substantially
complete:One Thousand Dollars ($1000.00).
8.1.7.The Contractor shall not be charged liquidated or actual damages when delay in completion of the
Work is due to:
8.1.7.1. Any preference, priority or allocation order issued by the government;
8.1.7.2. Unforeseeable cause beyond the control and without the fault or negligence of the Contractor,
such as acts of God or of the public enemy, fires, floods, epidemics, quarantine restrictions,
freight embargoes, and unusually severe weather. All such occurrences resulting in delay must
be documented and approved by Change Order; or,
8.1.7.3. Any delays of Subcontractors or suppliers occasioned by any of the causes specified in 8.1.7.1
and 8.1.7.2 of this article.
8.1.8.The Contractor is completely obligated and responsible to provide written notice of each day of
delay as provided for in Paragraph 4.3. If delays to the Project are encountered for any reason,
the GC/CM and Owner shall collaborate and mutually take reasonable steps to mitigate the
effects of such delays, regardless of cause or fault. In order to mitigate the effects of delays, it
is incumbent upon and the responsibility of the GC/CM to provide notification of delays as provided
in Paragraph 3.10.8. The Owner may require the GC/CM to accelerate its Work or Services by
increasing workers and equipment, working overtime, or scheduling additional shifts. If the GC/CM
is behind schedule for reasons other than delays beyond the control of both parties as provided
in Paragraph 4.5.3.5 or compensable delays, the acceleration costs will be borne by the GC/CM,
who may allocate Contractor’s Contingency in payment of such costs. If the GC/CM is directed to
accelerate to overcome an Owner-caused delay that would otherwise entitle the GC/CM to an
extension of the Contract Time and/or additional compensation, then the corresponding cost
increase of acceleration shall be attributable to the Owner.
8.1.9.Contract Time. All work shall reach Substantial Completion (or Final Acceptance) by the
date fixed in the Guaranteed Maximum Price Amendment.
8.2.PROGRESS AND COMPLETION
8.2.1.Time limits stated in the Contract Documents are of the essence of the Contract. By executing
the Contract the Contractor confirms that the Contract Time is a reasonable period for performing
the Work.
8.2.2.The Contractor shall not knowingly, except by agreement or instruction of the Owner in writing,
prematurely commence operations on the site or elsewhere prior to the date on the Notice to
Proceed and in no case prior to the effective date of insurance required by Article 11 to be
furnished by the Contractor. The date of commencement of the Work shall not be changed by the
effective date of such insurance.
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8.2.3.The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial
Completion within the Contract Time.
8.2.4.If the Contractor falls behind the latest construction schedule by more than fourteen (14) days
through its own actions or inaction, neglect, inexperience, lack of oversight and management of the
Work including that of any Subcontractors, written notice to the Owner shall be provided within
three (3) days with explanation of how the Contractor intends to get back on schedule. Response
to getting back on schedule consists of providing a sufficient number of qualified workers and/or
proper materials or an acceptably reorganized schedule to regain the lost time in a manner
acceptable to the Owner.
8.2.5.Completion of the work within the stated time and/or by the date stated on the Notice to Proceed is
of the essence of this Contract and failure to complete, without approved time extension, may be
considered default of the Contract. At the time for completion as stated on the Notice to Proceed
or as extended by approved change order, if the work is not substantially complete, the Owner
may notify the Contractor and the Contractor’s surety company in writing of the recourse the
Owner intends to take, within the Contract, to assess liquidated damages and /or cause the Work
to be completed.
8.3.DELAYS AND EXTENSIONS OF TIME
8.3.1.If the Contractor is delayed at any time in the commencement or progress of the Work by an act or
neglect of the Owner, or of an employee of either, or of a separate contractor employed by the
Owner, or by changes ordered in the Work, or by fire, unusual delay in deliveries, unavoidable
casualties or other causes beyond the Contractor's control, or by delay authorized by the Owner
pending mediation or other alternative dispute resolution (“Excusable Delay”), then the Contract
Time shall be extended by Change Order for such reasonable time as the Owner and Contractor
may agree.
8.3.2.Claims relating to time shall be made in accordance with applicable provisions of Paragraph 4.3.
8.3.3.This Paragraph 8.3 does not preclude recovery of damages for delay by either party under
other provisions of the Contract Documents.
9.ARTICLE 9 – PAYMENTS AND COMPLETION
9.1.CONTRACT SUM
9.1.1.The Contract Sum is stated in the Contract and, including authorized adjustments, is the total
amount payable by the Owner to the Contractor for performance of the Work under the Contract
Documents.
9.2.SCHEDULE OF VALUES
9.2.1.Before the first Application for Payment, the Contractor shall submit to the Owner a schedule of
values allocating the entire Contract Sum to various portions of the Work, prepared in such form and
supported bysuch datato substantiateitsaccuracyastheOwner mayrequire.Thisschedule,unless
objected to by the Owner, shall be used as a basis for reviewing the Contractor's Applications for
Payment.
9.3.APPLICATIONS FOR PAYMENT
9.3.1.The Contractor shall submit to the Owner itemized Applications for Payment for Work completed on
a monthly basis in accordance with a schedule approved by the Owner. Each Application
for Payment must be consistent with the Schedule of Values. Such application shall be signed
and supported by such data substantiating the Contractor's right to payment as the Owner may
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require, such as copies of requisitions from Subcontractors and material suppliers, and
reflecting retainage if provided for in the Contract Documents.
9.3.2.The form of Application for Payment must be AIA Document G702, Application and Certificate for
Payment, supported by AIA Document G703, Continuation Sheet (latest edition), or such other
form as may be mutually agreed to by the Owner and Contractor. The application must be notarized
and supported by sufficient data to demonstrate the Contractor’s right to payment and compliance
with the payment provisions of the Contract to the satisfaction of the Owner, such as copies of
requisitions from Subcontractors and material suppliers, partial lien waivers, releases and other
documents. Each Application for Payment must reflect approved Contract Modifications and the
Contract retainage provided for in the Contract Documents.
9.3.3.As provided in Subparagraph 7.3.11, such applications may include requests for payment on
account of changes in the Work which have been properly authorized by Construction Change
Directives, or by interim determinations of the Owner, but not yet included in Change Orders.
9.3.4.Applications for Payment shall not include requests for payment for portions of the Work for which
the Contractor does not intend to pay to a Subcontractor or material supplier.
9.3.5.Unless otherwise provided in the Contract Documents, payments shall be made on account of
materials and equipment delivered and suitably stored at the site for subsequent incorporation
in the Work. If approved in advance by the Owner, payment may similarly be made for materials
andequipmentsuitably stored off the site at a location agreed upon in writing. Payment for materials
and equipment stored on or off the site shall be conditioned upon compliance by the Contractor
with procedures satisfactory to the Owner to establish the Owner's title to such materials and
equipment or otherwise protect the Owner's interest, and shall include the costs of applicable
insurance, storage and transportation to the site for such materials and equipment stored off the
site.
9.3.6.The Contractor warrants that title to all Work covered by an Application for Payment will pass
to the Owner no later than the time of payment. The Contractor further warrants that upon
submittal of an Application for Payment all Work for which Certificates for Payment have been
previously issued and payments received from the Owner shall, to the best of the Contractor's
knowledge, information and belief, be free and clear of liens, claims, security interests or
encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or
entities making a claim by reason of having provided labor, materials and equipment relating to
the Work.
9.3.7.Until the Work is complete, the Owner will pay 95% of the amount due the Contractor on
account of progress payments. For purposes of this section, “complete” shall mean (a) the
Contractor has fully performed the Contract; (b) the Contractor has completed all Punch List items
to the satisfaction of the Owner; (c) the Contractor has delivered to the Owner all Project close-out
documents in duplicate; and (d) the applicable governmental authorities have issued to the Owner
the final use and occupancy permit for the Project.
9.3.7.1. If the Work and its progress are not in accordance with all or any part, piece, or portion of the
Contract Documents, the Owner may, at its sole discretion and without claim by the Contractor,
increase the amount held as retainage to whatever level deemed necessary to effectuate
performance and progress of the Work, for anticipated repairs, warranties or completion of the
Work by the Contractor or through the letting of other contracts. The Contractor will not be
entitled to additional costs, expenses, fees, time, and such like, in the event the Owner
increases the amount held as retainage due to non-compliance and/or non-performance with
all or any part, piece, or portion of the Contract Documents.
9.3.7.2. Prior to the first Application for Payment, the Contractor shall submit the following information
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on the appropriate forms:
9.3.7.2.1.Schedule of Values: This form shall contain a breakdown of the Bid Packages and/or
othercostsassociated withthevariousportionsoftheWorkandshallbethebasisforthe
progress payments to the Contractor.
9.3.7.2.2.Project/Progress Schedule: If no Schedule (or revised Schedule) is provided with each
and every Application for Payment, the Owner may return the pay request, or hold it,
and may choose not pay for any portion of the Work until the appropriate Schedule,
indicating all changes, revisions and updates, is provided. No claim for additional costs
or interests will be made by the Contractor or any subcontractor on account of holding
or non-payment of the Periodic Estimate for Partial Payment request.
9.3.7.3. The Contractor may submit obligations/securities in a form specified in 18-1-301 Montana Code
Annotated (MCA) to be held by a Financial Institution in lieu of retainage by the Owner. The
Owner will establish the amount that would otherwise be held as retainage. Should the
Contractor choose to submit obligations/securities in lieu of retainage, the Owner will require
the Financial Institution to execute the Owner’s Account Agreement for Deposit of Obligations
Other Than Retainage on such form as shall be acceptable to the City Attorney prior to
submission of any obligations/securities in accordance with 18-1-302 MCA. The Contractor
must extend the opportunity to participate in all obligations/securities in lieu of retainage on a
pro rata basis to all subcontractors involved in the project and shall be solely responsible for
the management and administration of same. The Owner assumes no liability or responsibility
from or to the Contractor or Subcontractors regarding the latter’s participation.
9.3.7.4. In the Application for Payment, the Contractor must certify in writing that, in accordance with
contractual arrangements, Subcontractors and suppliers (a) have been paid from the
proceeds of previous progress payments; and (b) will be paid in a timely manner from the
proceeds of the progress payment currently due. In the event the Contractor has not paid or
does not pay as certified, such failure constitutes a ground for termination under Section
14.2, unless Owner agrees in Owner’s sole discretion that Contractor has a reasonable basis
for not having made the payment.
9.4.OWNER’S APPROVAL OF APPLICATIONS FOR PAYMENT
9.4.1.The Owner will, within seven (7) days after receipt of the Contractor's Application for Payment,
either approve the Application for Payment for such amount as the Owner determines is properly
due, or notify the Contractor in writing of the Owner's reasons for withholding certification in whole
or in part as provided in Subparagraph 9.5.1.
9.5.DECISIONS TO WITHHOLD APPROVAL OF APPLICATION FOR PAYMENT
9.5.1.The Owner may reject an Application for Payment in whole or in part, to the extent reasonably
necessary to protect the Owner, or, because of subsequently discovered evidence, may nullify
the whole or a part of an approval previously issued, to such extent as may be necessary to protect
the Owner from loss for which the Contractor is responsible, including loss resulting from acts
and omissions described in Subparagraph 3.3.4, because of:
9.5.1.1. defective Work not remedied;
9.5.1.2. third party claims filed or reasonable evidence indicating probable filing of such claims unless
security acceptable to the Owner is provided by the Contractor;
9.5.1.3. failure of the Contractor to make payments properly to Subcontractors or for labor, materials or
equipment;
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9.5.1.4. reasonable evidence that theWork cannot be completed for the unpaid balance of the Contract
Sum;
9.5.1.5. damage to the Owner or another contractor;
9.5.1.6. reasonable evidence that the Work will not be completed within the Contract Time, and that the
unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated
delay; or,
9.5.1.7. failure to carry out the Work in accordance with the Contract Documents.
9.5.2.When the above reasons for withholding approval are removed, payment approval will be given for
amounts previously withheld.
9.5.3.If the Owner withholds payment approval under Section 9.5.1.3, the Owner may, at its sole option,
issue joint checks to the Contractor and to any Subcontractor or material or equipment suppliers to
whom the Contractor failed to make payment for Work properly performed or material or equipment
suitably delivered. If the Owner makes payments by joint check, the Owner shall notify the
Contractor and the Contractor will reflect such payment on the next Application for Payment.
9.6.PROGRESS PAYMENTS
9.6.1.After the Owner has approved an Application for Payment, the Owner shall make payment in the
manner and within the time provided in the Contract Documents.
9.6.2.The Contractor shall promptly pay each Subcontractor no later than seven (7) days after receipt
of payment from the Owner the amount to which said Subcontractor is entitled, reflecting
percentages actually retained from payments to the Contractor on account of such
Subcontractor's portion of the Work. The Contractor shall, by appropriate agreement with each
Subcontractor, require each Subcontractor to make payments to Sub-subcontractors in a similar
manner.
9.6.3.The Contractor is prohibited from holding higher amounts in retainage on any Subcontractor than
the Owner is holding from the Contractor.
9.6.4.The Owner will, on request, furnish to a Subcontractor, if practicable, information regarding
percentages of completion or amounts applied for by the Contractor and action taken thereon
by the Owner on account of portions of the Work done by such Subcontractor.
9.6.5.The Owner shall have no obligation to pay, or to see to the payment of, money to a Subcontractor
except as may otherwise be required by law.
9.6.6.Contractor payment to material suppliers shall be treated in a manner similar to that provided in
Subparagraphs 9.6.2, 9.6.3, 9.6.4, and 9.6.5.
9.6.7.A progress payment, or partial or entire use or occupancy of the Project by the Owner shall not
constitute acceptance of Work not in accordance with the Contract Documents.
9.6.8.A one percent (1%) Montana Gross Receipts Tax will be withheld from all payments to the
Contractor in accordance with 15-50-205, et seq., MCA. The Contractor shall be responsible for
withholding the 1% gross receipts tax from payments made by the Owner to the Contractor for
Work performed by Subcontractors and the Contractor will file and transmit the necessary forms to
the Montana Department of Revenue attendant to such subcontracts within ten (10) days of the
award of the subcontract. All amounts withheld for the 1% gross receipts tax are in addition to any
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retainage amounts otherwise authorized under the Agreement.
9.7.FAILURE OF PAYMENT
9.7.1.If the Owner does not pay the Contractor within thirty (30) days after the Contractor submits an
Application for Payment, the Contractor may file a claim in accordance with Section 4.3 of this
Contract.
9.8.SUBSTANTIAL COMPLETION
9.8.1.Substantial Completion is the stage in the progress of the Work when the Work or designated
portion thereof issufficientlycompleteinaccordancewiththeContractDocuments sothattheOwner
can occupy or utilize the Work for its intended use.
9.8.2.When the Contractor considers that the Work, or a portion thereof which the Owner agrees to
accept separately, is Substantially Complete, the Contractor shall prepare and submit to the Owner
a comprehensive list of items to be completed or corrected (“Punch List”) prior to final payment.
Failure to include an item on such list does not alter the responsibility of the Contractor to complete
all Work in accordance with the Contract Documents.
9.8.3.In addition to the Punch List, the Contractor must submit the following with its request for a
determination of Substantial Completion:
a. A use and occupancy permit;
b. final test reports as required by the Contract and certificates of inspection and approval
required for use and occupancy;
c. Fire Inspection or report;
d. approvals from, and transfer documents for, all utilities;
e. Warranties and Guarantees and provided in this Contract; and
f. schedule to complete the Punch List and value of Work not yet complete.
9.8.4.Uponreceipt of the Contractor's Punch List,theOwner willmake an inspectionto determine whether
the Work or designated portion thereof is substantially complete. If the Owner's Inspection
discloses any item, whether or not included on the Contractor's list, which is not sufficiently
complete in accordance with the Contract Documents so that the Owner can occupy or utilize the
Work or designated portion thereof for its intended use, the Contractor shall, before issuance of the
Certificate of Substantial Completion, complete or correct such item upon notification by the Owner.
In such case, the Contractor shall then submit a request for another inspection by the Owner to
determine Substantial Completion.
9.8.5.The Contractor shall ensure the project is Substantially Complete prior to requesting any inspection
by the Owner so that no more than one (1) inspection is necessary to determine Substantial
Completion for all or any portion of the Work. If the Contractor does not perform adequate
inspections to develop a comprehensive list as required in Subparagraph 9.8.2 and does not
complete or correct such items upon discovery or notification, the Contractor shall be responsible
and pay for the costs of the Owner’s additional inspections to determine Substantial Completion.
Prior to the inspection, the Contractor shall complete the final clean-up of the Project site which,
unless otherwise stated in the Contract Documents, shall consist of:
9.8.5.1 Removal of all debris and waste. All construction debris and waste shall be removed from the
campus grounds. Use of the Owner trash containers will not be permitted;
9.8.5.2 Removal of all stains, smears, marks of any kind from surfaces including existing surfaces if
said damage is the result of the work; and,
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9.8.5.3 Removal of all temporary structures and barricades.
9.8.6.When the Owner agrees that the Work or designated portion thereof is Substantially Complete,
the Contractor will prepare a Certificate of Substantial Completion which shall establish the date
of Substantial Completion and which shall establish responsibilities of the Owner and Contractor
for security, maintenance, heat, utilities, damage to the Work and insurance. After issuance of the
Certificate of Substantial Completion, the Contractor shall finish and complete all remaining items
within thirty (30) days of the date on the Certificate. The Owner shall identify and fix the time for
completion of specific items which may be excluded from the thirty (30) calendar day time limit.
Failure to complete any items within the specified time frames may be deemed by the Owner as
default of the Contract on the part of the Contractor.
9.8.7.The Certificate of Substantial Completion shall be submitted to the Owner for its written acceptance
of responsibilities assigned to Owner and Contractor in such Certificate. Upon such acceptance
and consent of surety if there are claims or past payment issues, the Owner shall make payment of
retainage applying to such Work or designated portion thereof. Such payment shall be adjusted for
Work that is incomplete or not in accordance with the requirements of the Contract Documents.
9.8.8.To the extent provided in the Contract Documents or in the Certificate of Substantial Completion,
the Owner, upon execution of the Certificate of Substantial Completion or occupation by the Owner
of the Work in accordance with Section 9.9, whichever occurs first, will assume responsibility for
security, operation, safety, maintenance, heat, utilities, damage to the Work (other than damage
caused by the Contractor) and insurance.
9.8.9.Upon execution of the Certificate of Substantial Completion, the Contractor will deliver custody and
control of such Work to the Owner. The Owner will thereafter provide the Contractor reasonable
access to such Work to permit the Contractor to fulfill the correction, completion and other
responsibilities remaining under the Contract and the Certificate of Substantial Completion.
9.8.10. At the time of Substantial Completion, in addition to removing rubbish and leaving the building
“broom clean,” the Contractor must replace any broken or damaged materials, remove stains,
spots, marks and dirt from decorated Work, and comply with such additional requirements, if any,
which may be specified in the Contract Documents.
9.9. PARTIAL OCCUPANCY OR USE
9.9.1.The Owner may occupy or use any completed or partially completed portion of the Work at any
stage when such portion is designated by separate agreement with the Contractor, provided such
occupancy or use is consented to by the insurer and authorized by public authorities having
jurisdiction over the Work.Such partialoccupancyor use maycommencewhether or nottheportion
is substantially complete, provided the Owner and Contractor have accepted in writing the
responsibilities assigned to each of them for payments, retainage, if any, security, maintenance,
heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the
period for correction of the Work and commencement of warranties required by the Contract
Documents. When the Contractor considers a portion Substantially Complete, the Contractor shall
prepare and submit a list to the Owner as provided under Subparagraph 9.8.2. Consent of the
Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the
progress of the Work shall be determined by written agreement between the Owner andContractor.
9.9.2.Immediately prior to such partial occupancy or use, the Owner and Contractor shall jointly inspect
the area to be occupied or portion of the Work to be used in order to determine and record the
conditionoftheWork. Unlessotherwiseagreedupon,partialoccupancyoruseofaportionorportions
of the Work shall not constitute acceptance of Work not complying with the requirements of the
Contract Documents.
9.9.3.Any agreement as to the acceptance of Work not complying with the requirements of the Contract
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Documents shall not be valid unless in writing. Unless otherwise agreed upon in writing, partial
occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not
complying with the requirements of the Contract Documents.
9.10. FINAL COMPLETION AND FINAL PAYMENT
9.10.1. When the Contractor has completed or corrected all items on the final Punch List and considers
that the Work is complete and ready for final acceptance, the Contractor must give written notice
to the Owner and request a final inspection of the Work as provided in Section 9.10.2. The
Contractor’s notice and request for final inspection must be accompanied by a final Application for
Payment and the Submittals required by Section 9.10.3.
9.10.2. Upon receipt of Contractor’s written notice that the Work is ready for final inspection and acceptance
and upon receipt of a final Application for Payment, the Owner will promptly make such inspection
and, when the Owner concurs that the Work has been fully completed and is acceptable
under the Contract Documents, the Contractor will prepare and submit a Certificate of Final
Completion to the Owner. The Contractor’s notice and request for final inspection constitutes
a representation by the Contractor to the Owner that the Work has been completed in
accordance with the terms and conditions of the Contract Documents. The Owner will promptly
notify the Contractor if the Owner does not concur that the Work is finally complete. In such
case, the Contractor must bear the reasonable cost of any additional services of the Owner
until the Work is determined to be finally complete. When the Owner concurs the Work has
been fully completed, Owner will approve the Contractor’s final Application for Payment.
9.10.3. Neither final payment nor any remaining retainage shall become due until the Contractor submits
to the Owner:
9.10.3.1 an affidavit that payrolls, bills for materials and equipment, and other indebtedness
connected with the Work for which the Owner or the Owner's property might be responsible
or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied;
9.10.3.2 a release or waiver of all claims except those that are pending. Notwithstanding applicable
Montana law, if any liens have been filed Contractor shall release, waive or indemnify
Owner therefrom;
9.10.3.3 a certificate evidencing that the Contractor’s liability insurance and Performance Bond
required by the Contract Documents remain in effect during the two-year correction
period following Substantial Completion as set forth in Section 12.2.2.1 and 12.2.2.2,
and will not be canceled or allowed to expire until at least thirty (30) days' prior written
notice has been given to the Owner;
9.10.3.4 a written statement that the Contractor knows of no substantial reason that the insurance
will not be renewable to cover the period required by the Contract Documents;
9.10.3.5 Consent of Surety Company to Final Payment or other form prescribed by the Owner; and,
9.10.3.6 if required by the Owner, other data establishing payment or satisfaction of obligations,
such as receipts, releases and waivers of liens, claims, security interests or encumbrances
arising out of the Contract, to the extent and in such form as may be designated by the
Owner;
9.10.3.7 a certified building location survey and as-built site plan in the form and number required
by the Contract Documents;
9.10.3.8 all warranties and bonds required by the Contract Documents;
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9.10.3.9 Record Documents as provided in Section 3.11;
9.10.3.10 Attic stock items as required by the Contract Documents; and
9.10.3.11 documentation of approval by all authorities having jurisdiction that all necessary permits
and licenses have been issued in the name of the Owner as to allow closeout and
satisfaction of all requirements including the submission of acceptable as-built drawings
and other required documents.
9.10.3.12 final, approved operating and maintenance manuals; and
9.10.3.13 all documents and verification of training required in accordance with any Commissioning
Plan.
9.10.4. The Contractor and his surety accepts and assumes responsibility, liability, and costs for and
agrees to defend and hold harmless the Owner for and against any and all actions as a result of the
Owner making final payment.
9.10.5. By submitting any Application for Payment to the Owner the Contractor and his surety certify and
declare that all bills for materials, supplies, utilities and for all other things furnished or caused to be
furnished by the Contractor and all Subcontractors and used in the execution of the Contract will be
fully paid upon receipt of Final Payment and that there are no unpaid obligations, liens, claims,
security interests, encumbrances, liabilities and/or demands of State Agencies, subcontractors,
suppliers, mechanics, laborers or any others resulting from or arising out of any work done, caused
to be done or ordered to be done by the Contractor under the Contract.
9.10.6. The date of Final Payment by the Owner shall constitute Final Acceptance of the Work. The
determining date for the expiration of the warranty period shall be as specified in Paragraphs 3.5
and 12.2.2.
9.10.7. If, after SubstantialCompletion of theWork, final completionthereof is materially delayedthrough no
fault of the Contractor or by issuance of Change Orders affecting final completion, the Owner shall,
upon application by the Contractor, and without terminating the Contract, make payment of the
balance due for that portion of the Work fully completed and accepted. If the remaining balance
for Work not fully completed or corrected is less than retainage stipulated in the Contract
Documents, and if bonds have been furnished, the written consent of surety to payment of the
balance due for that portion of the Work fully completed and accepted shall be submitted by the
Contractor to the Owner. Such payment shall be made under terms and conditions governing final
payment, except that it shall not constitute a waiver of claims.
9.10.8. Acceptance of final payment by the Contractor, a Subcontractor, or material supplier, shall
constitute a waiver of any and all obligations, liens, claims, security interests, encumbrances and/or
liabilities against the Owner except those previously made in writing per the requirements of
Paragraph 4.3 and as yet unsettled at the time of submission of the final Application for Payment.
9.10.9. The Owner’s issuance of Final Payment does not constitute a waiver or release of any kind
regarding any past, current, or future claim the Owner may have against the Contractor and/or the
surety.
10. ARTICLE 10 – PROTECTION OF PERSONS AND PROPERTY
10.1. SAFETY PRECAUTIONS AND PROGRAMS
The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and
programs in connection with the performance of the Contract. The Contractor shall maintain on site a
material safety data sheet on all chemicals and potentially hazardous materials brought on site by the
Contractor or any subcontractor, supplier, or employee or agent of a subcontractor or supplier, including but
not limited to paints, thinners, glues, mastics and solvents. The safety data sheets will be provided to the
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Owner upon Final Completion.
10.2 SAFETY OF PERSONS AND PROPERTY
10.2.1 The Contractor must take reasonable precautions for the safety of, and must provide reasonable
protection to prevent damage, injury or loss to:
10.2.1.1 All persons at the Site and other persons who may be affected by the Work or other
operations of the Contractor;
10.2.1.2 the Work and materials and equipment to be incorporated therein or otherwise utilized in
the performance of the Contract, whether in storage on or off the Site, under care,
custody or control of the Contractor or the Contractor’s Subcontractors or Sub-
subcontractors; and
10.2.1.3 other property at the Site or adjacent thereto, such as trees, shrubs, lawns, walks,
pavements, roadways, structures and utilities not designated for removal, relocation or
replacement in the course of construction.
10.2.2 The Contractor must repair and/or replace that portion of the work and any materials or
equipment to be incorporated therein and any tools or equipment of the Contractor necessary or
beneficial to performance of the Work which are damaged or stolen due to vandalism, theft or any
other criminal mischief at its expense whether or not covered by insurance. No increase in the
Contract Sum will be granted to the Contractor as a consequence of any delay, impacts or
inefficiencies resulting from any act of vandalism, theft or other criminal mischief whether or not
caused or contributed to by the Contractor’s negligence. The Parties may agree to an extension
of Contract Time in such circumstances as they agree is appropriate.
10.2.3 The Contractor must implement and maintain, as required by the Contract Documents, applicable
laws and regulations and orders of public authorities having jurisdiction (without limitation OSHA
and State of Montana safety agencies and authorities), manufacturers’ instructions or
recommendations, existing conditions and performance of the Contract, reasonable safeguards
for safety and protection, including issuing appropriate notices, distributing material safety data
sheets and other hazard communication information, providing protective clothing and equipment,
posting danger signs and other warnings against hazards, promulgating safety regulations and
notifying owners and users of adjacent sites and utilities.
10.2.4 The Contractor shall erect and maintain, as required by existing conditions and performance of
the Contract, reasonable safeguards for safety and protection, including posting danger signs and
other warnings against hazards, promulgating safety regulations and notifying owners and users
of adjacent sites and utilities.
10.2.5 The Contractor must not load nor permit any part of any structure at the Site to be loaded or
subjected to stresses or pressures so as to endanger its safety or that of adjacent structures or
property.
10.2.6 The Contractor shall reject the use of any Hazardous Material in the construction of the Project,
including but not limited to asbestos, asbestos products, polychlorinated biphenyl (PCB) or other
toxic substances. It is the Owner's intent to specify and approve only materials and products for
this Project that are free of such hazardous material. If the Contractor becomes aware of that any
Subcontractor, material supplier or manufacturer intends to supply or install products or services
for the Project that contain such materials, the Contractor shall promptly notify the Owner in
writing. Further, if any such materials are discovered in the course of the construction, the
Contractor shall notify the Owner immediately. Construction Manager shall comply with all hazard
communication requirements dictated by the Environmental Protection Agency, the Montana
Department of Agriculture, OSHA, Hazard Communications Standard, 29 CFR 1910.1200, and
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applicable City of Bozeman ordinances. When explosives or other hazardous materials or
equipment are stored or used or unusual methods are employed in the performance of the Work,
the Contractor must exercise utmost care and conduct such activities under supervision of
properly qualified personnel.
10.2.7 If either party suffers injury or damage to person or property because of an act or omission of the
other party, or of any of the other party’s employees or agents, or of others for whose acts it is
contended that the other party is liable, written notice of such injury or damage, whether or not
insured, must be given to the other party within a reasonable time not exceeding twenty-one (21)
days after the onset or occurrence of such damage or injury or such shorter time as may be
required by the Occupational Safety Hazards Administration (OSHA). The notice must provide
sufficient detail to enable the other party to investigate the matter. If notice is not received within
the time specified, any claim arising from the occurrence will be deemed to be conclusively
waived, except to the extent of any applicable insurance (excluding self-insurance) coverage
covering such occurrence. The provisions of this Section may not be used by the Contractor in
lieu of the requirements of Article 7 when the Contractor is seeking an adjustment in the Contract
Sum and are in addition to the requirements of Article 8 when the Contractor is seeking an
adjustment in the Contract Time.
10.2.8 The Contractor must promptly remedy, at its sole cost and expense, damage and loss to property
referred to in Sections 10.2.1.2 and 10.2.1.3 caused in whole or in part by the Contractor, a
Subcontractor, a Sub-subcontractor, or anyone directly or indirectly employed by any of them, or
by anyone for whose acts they may be liable, unless otherwise instructed in writing by the Owner.
This obligation is in addition to, and not in limitation of, the Contractor’s obligations for
indemnification under Section 3.18 and the Contractor’s responsibility to repair and or replace
that portion of the Work and any materials and equipment to be incorporated therein which are
damaged as a result of criminal mischief as specified in Section 10.2.2.
10.2.9 The Contractor shall designate a responsible member of the Contractor’s organization at the Site
whose duty shall be the prevention of accidents. This person shall be the Contractor’s
superintendent unless otherwise designated by the Contractor in writing to the Owner.
10.3 HAZARDOUS MATERIALS
10.3.1 A “Hazardous Environmental Condition” means the presence at the Site of asbestos, PCBs,
Petroleum, Hazardous Waste (as defined in Section 1004 of the Solid Waste Disposal Act, 42
SUSC Section 6903, as amended), or radioactive material (“Hazardous Materials”), in such
quantities or circumstances that may present a substantial danger to persons or property exposed
thereto in connection with the Work.
10.3.2 The Contractor is responsible for compliance with any requirements included in the Contract
Documents regarding hazardous materials. In the event the Contractor encounters on the Site
material reasonably believed to be a Hazardous Material (other than those for which the Contractor
may have specific responsibility for remediation under the Contract), and the Contractor’s
reasonable precautions will be inadequate to prevent foreseeable damage or injury and the
Contractor cannot proceed with the Work in the absence of the removal, containment or
remediation of the Hazardous Material, the Contractor must immediately stop Work in the area
affected and report the condition to the Owner immediately upon discovery, followed by notice in
writing within 24 hours of discovery.
10.3.2 Upon receipt of notice of suspected Hazardous Materials, Owner will cause an investigation to be
made to verify the presence and extent of such materials, to determine whether such materials are
in fact hazardous, and the steps necessary for their removal, containment or remediation. Owner
shall be responsible for the cost of any such investigation, removal, containment or remediation.
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10.3.3 If the Owner’s investigation confirms the presence of Hazardous Materials which present a risk of
injury or damage which will not be adequately protected against by the Contractor’s reasonable
precautions, then the Work in the affected area must not thereafter be resumed except at the written
direction of the Owner. The Work in the affected area will be resumed promptly (i) in the absence
of a finding of Hazardous Material by the Owner, (ii) upon the removal, containment or remediation
of the Hazardous Materials, or (iii) upon the establishment of appropriate safety precautions.
10.3.4 The Contractor may request a change in the Contract Sum or Contract Time if the Contractor incurs
additional costs on account of or is delayed by the Owner’s work to remove, contain or remediate
Hazardous Materials which has not been rendered harmless at the Site unless the Contractor is
responsible for same under the Contract. Any such requested change in the Contract Sum or
Contract Time must be made in writing within ten (10) days of discovery of any Hazardous
Materials, which has not been rendered harmless giving rise to the request for the change and
must fully comply with Articles 7, 8, and 15 or any claim will be deemed conclusively waived by the
Contractor.
10.3.5 The Owner shall not be responsible under this Section 10.3 for materials or substances the
Contractor brings to the Site unless such materials or substances are required by the Contract
Documents. The Owner shall be responsible for materials or substances required by the Contract
Documents, except to the extent of the Contractor’s fault or negligence in the use and handling of
such materials or substances.
10.3.6 To the fullest extent permitted by law, the Contractor shall defend, indemnify and hold harmless
the Owner from and against all claims, costs, losses, and damages (including but not limited to all
fees and charges of engineers, architects, attorneys, and other professionals and all court, or other
dispute resolution costs) arising out of or relating to a Hazardous Environmental Condition created
by Contractor or by anyone for whom Contractor is responsible, except to the extent such claims
are due to the Owner’s fault or negligence.
10.3 EMERGENCIES
In an emergency affecting safety of persons or property, the Contractor must take all necessary action, without
the necessity for any special instruction or authorization from the Owner, to prevent threatened damage, injury
or loss. The Contractor must promptly, but in all events within twenty-four (24) hours of the emergency, report
such action in writing to the Owner. If the Contractor incurs additional costs on account of or is delayed by
such emergency, the Contractor may request a change in the Contract Sum or Contract Time to account for
such additional costs or delay in accordance with Articles 7, 8 and 15. The Contractor must file any such
request within ten (10) days of the emergency or it is deemed waived. Any adjustment in the Contract Sum
or Contract Time shall be limited to the extent that the emergency work is not attributable to the fault or neglect
of the Contractor or otherwise the responsibility of the Contractor under the Contract Documents.
10.4. UTILITIES
10.4.1. Underground Utilities: Buried utilities, including, but not limited to, electricity, gas, water,
telephone, sewer, broadband coaxial computer cable,and fiber optic cables are very vulnerable and
damage could result in loss of service.
10.4.2. "One Call” must be notified by phone and in writing at least 72 hours (3 business days) prior to
digging to arrange and assist in the location of buried utilities in the field. (Dial 811). The Contractor
shall mark the boundary of the work area. The boundary area shall be indicated with white paint
and white flags. In winter, pink paint and flags will be accepted.
10.4.3. After buried utilities have been located, the Contractor shall be responsible for anyutilities damaged
while digging. Such responsibility shall include all necessary care including hand digging.
Contractor’s responsibility shall also include maintaining markings after initial locate. The area for
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such responsibility, unless otherwise indicated, shall extend 24 inches to either side of the marked
center line of a buried utility line.
10.4.4. The Contractor's responsibility shall include repair or replacement of damaged utilities. The
Contractor will also be responsible for all costs associated with reterminations and recertification.
10.4.5. Any buried utilities exposed by the operations of the Contractor shall be marked on the plans
and adequately protected by the Contractor. If any buried utilities not located are exposed, the
Contractor shall immediately contact the Owner. If, after exposing an unlocated buried utility, the
Contractor continues digging without notifying Owner and further damages the utility, the
Contractor will be fully and solely responsible.
10.4.6. Damage to irrigation systems during seasons of no irrigation that are not immediately and
adequately repaired and tested will require the Contractor to return when the system is in service
to complete the repair.
11. ARTICLE 11 - INSURANCE AND BONDS
11.1. CONTRACTOR'S LIABILITY INSURANCE
11.1.1 The Contractor shall carry and maintain, as part of the Contract Sum, the following insurance
coverage insuring the Owner and Project while under construction and all material and supplies
purchased in connection with the construction of the Project against all risks and losses.
Contractor shall give Owner immediate notice of any material reduction, cancellation, termination
or non-renewal of the insurance required by this Section 11.1. Any company writing this
insurance shall at all times be licensed and qualified to do business in the State of Montana.
Contractor’s insurance shall be primary and non-contributory. Such insurance shall include:
11.1.1.1 Commercial General Liability with a minimum limit of liability of Ten Million Dollars
($10,000,000), for bodily injury and property damage coverage per occurrence including
the following coverages: Contractual Liability; Premises and Operations; Independent
Contractors; Personal Injury; Products and Completed Operations; and explosion,
collapse and underground event. The policy must name the City of Bozeman as
additional insureds.
11.1.1.2 Automobile Liability Insurance of not less than Two Million Dollars ($2,000,000)
combined single limit per occurrence to include coverage for owned, non-owned, hired
motor vehicles, and automobile contractual liability. Coverage for
underinsured/uninsured motorists shall be for not less than One Million Dollars
($1,000,000). The policy must name Gallatin County and the City of Bozeman as
additional insureds.
11.1.1.3 Worker’s Compensation/Employer’s Liability meeting all statutory requirements of the
State of Montana and with the following minimum Employers’ Liability limits: bodily injury
by accident –One Million Dollars ($1,000,000)each accident; bodily injury by disease –
One Million Dollars ($1,000,000)policy limits; and bodily injury by disease –One
Million Dollars ($1,000,000)each employee.
Contractor shall not commence work under this Agreement until such insurance has been
obtained and certificates of insurance, with binders, or certified copies of the insurance policy
including additional insureds endorsement shall have been filed with the Owner.
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The insurance requirements of this Section 11.1 shall also apply in full to all Subcontractors hired
to perform the Work, provided Contractor and Owner may mutually agree in writing to different
coverage limits for Subcontractor(s).
11.1.2 The insurance required by Section 11.1.1 shall be written for not less than limits of liability
specified in the Contract Documents or required by law, whichever coverage is greater.
Coverages, whether written on an occurrence or claims-made basis, shall be maintained without
interruption from the date of commencement of the Work until two years after the date of
Substantial Completion, and, with respect to the Contractor’s completed operations coverage,
until the expiration of the period for correction of Work or for such other period for maintenance of
completed operations coverage as specified in the Contract Documents.
11.1.3 Certificates of insurance acceptable to the Owner shall be filed with the Owner prior to
commencement of the Work and thereafter upon renewal or replacement of each required policy
of insurance and upon request by Owner. An additional certificate evidencing continuation of
liability coverage, including coverage for completed operations, shall be submitted with the final
Application for Payment as required by Section 9.10.2 and thereafter upon renewal or
replacement of such coverage until the expiration of the time required by Section 11.1.2.
Information concerning reduction of coverage on account of revised limits or claims paid under
the General Aggregate, or both, shall be furnished by the Contractor within seven (7) days unless
an alternative period is agreed to by the parties.
11.1.4 The Contractor shall cause the commercial liability coverage required by the Contract Documents
to include the City of Bozeman as additional insured for claims caused in whole or in part by the
Contractor’s negligent acts or omissions during the Contractor’s operations; and (2) the City of
Bozeman as additional insured for claims caused in whole or in part by the Contractor’s negligent
acts or omissions during the Contractor’s completed operations.
11.2 OWNER’S LIABILITY INSURANCE
The City shall maintain coverage for its risks through the Montana Municipal Interlocal Authority.
11.3 PROPERTY INSURANCE
11.3.1 Unless otherwise provided, the Contractor shall purchase and maintain, in a company or
companies lawfully authorized to do business in Montana, property insurance written on a
builder’s risk “all-risk” policy form in the amount of the initial Contract Sum, plus value of
subsequent Contract Modifications and cost of materials supplied or installed by others,
comprising total value for the entire Project at the site on a replacement cost basis without
optional deductibles. Such property insurance shall be maintained, unless otherwise provided in
the Contract Documents or otherwise agreed in writing by all persons and entities who are
beneficiaries of such insurance, until final payment has been made as provided in Section 9.10 or
until no person or entity other than the Owner has an insurable interest in the property required by
this Section 11.3 to be covered, whichever is later. This insurance shall include interests of the
Owner, the Contractor, Subcontractors and Sub-subcontractors in the Project.
11.3.1.1 Property insurance shall be on an “all-risk” policy form and shall include, without
limitation, insurance against the perils of fire (with extended coverage) and physical loss
or damage including, without duplication of coverage, theft, vandalism, malicious
mischief, collapse, earthquake, flood, windstorm, falsework, testing and startup,
temporary buildings and debris removal including demolition occasioned by enforcement
of any applicable legal requirements, and shall cover reasonable compensation for
Contractor’s services and expenses required as a result of such insured loss. The
Parties may mutually agree in writing to separate limits for insurance covering the risk of
flood and/or earthquake.
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11.3.1.2 If the property insurance requires deductibles, the Owner shall pay costs not covered
because of such deductibles. The Owner waives all rights of action against the
Contractor for loss of use of the Owner’s property, including consequential losses due to
fire or other hazards however caused.
11.3.1.3 This property insurance shall cover portions of the Work stored off the site, and also
portions of the Work in transit.
11.3.1.4 Partial occupancy or use in accordance with Section 9.9 shall not commence until the
insurance company or companies providing property insurance have consented to such
partial occupancy or use by endorsement or otherwise. The Owner and the Contractor
shall take reasonable steps to obtain consent of the insurance company or companies
and shall, without mutual written consent, take no action with respect to partial occupancy
or use that would cause cancellation, lapse or reduction of insurance.
11.3.2 BOILER AND MACHINERY INSURANCE
The Contractor shall purchase and maintain boiler and machinery insurance required by the
Contract Documents or by law, which shall specifically cover such insured objects during
installation and until final acceptance by the Owner; this insurance shall include interests of the
Owner, Contractor, Subcontractors and Sub-subcontractors in the Work, and the Owner and
Contractor shall be named insureds.
11.3.3 LOSS OF USE INSURANCE
The Owner, at the Owner’s option, may maintain such insurance as will insure the Owner against
loss of use of the Owner’s property due to fire or other hazards, however caused. The Owner
waives all rights of action against the Contractor for loss of use of the Owner’s property, including
consequential losses due to fire or other hazards however caused.
11.3.4 If the Contractor requests in writing that insurance for risks other than those described herein or
other special causes of loss be included in the property insurance policy, the cost thereof shall be
charged to the Contractor by appropriate Change Order.
11.3.5 If Asbestos Abatement is identified as part of the Work under this contract, the Contractor or
any subcontractor involved in asbestos abatement shall purchase and maintain Asbestos
Liability Insurance for coverage of bodily injury, sickness, disease, death, damages, claims, errors
or omissions regarding the asbestosportionof the work inaddition to the CGL Insurancebyreason
of any negligence in part or in whole, error or omission committed or alleged to have been
committed by the Contractor or anyone for whom the Contractor is legally liable. Such insurance
shall be in “per occurrence” form and shall clearly state on the certificate that asbestos work is
included in the following limits:
$1,000,000 per occurrence; aggregate limit of $2,000,000.
Asbestos Liability Insurance as carried by the asbestos abatement subcontractor in these limits in
lieu of the Contractor’s coverage is acceptable provided the Contractor and the City of Bozeman
are named as additional insureds and that the abatement subcontractor’s insurance is PRIMARY
as respects both the Owner and the Contractor. If the Contractor or any other subcontractor
encounters asbestos, all operations shall be suspended until abatement with the associated
air monitoring clearances are accomplished. The certificate of coverage shall be provided by
the asbestos abatement subcontractor to both the Contractor and the Owner.
11.3.6 Before an exposure to loss may occur, the Contractor shall file with the Owner a copy of each
policy that includes insurance coverages required by this Section 11.3. Each policy shall contain
all generally applicable conditions, definitions, exclusions and endorsements related to this
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Project. Each policy shall contain a provision that the policy will not be canceled or allowed to
expire, and that its limits will not be reduced, until at least thirty (30) days’ prior written notice has
been given to the Owner.
11.3.7 A loss insured under the Contractor’s property insurance shall be adjusted by the Contractor and
made payable to the Contractor, subject to requirements of any applicable mortgagee clause.
The Contractor shall pay Subcontractors their just shares of insurance proceeds received by the
Contractor, and by appropriate agreements, written where legally required for validity, shall
require Subcontractors to make payments to their Sub-subcontractors in similar manner.
11.4 PERFORMANCE BOND AND LABOR & MATERIAL PAYMENT BOND (BOTH ARE REQUIRED
ON THIS PROJECT)
11.4.1 The Contractor shall furnish a Performance Bond and Labor and Material Payment Bond meeting
all statutory requirements of the State of Montana, in form and substances satisfactory to the Owner
and, without limitation, complying with the following specific requirements:
11.4.1.1 Except as otherwise required by statute, the form and substance of such bond(s) shall be
satisfactory to the Owner in the Owner’s sole judgment.
11.4.1.2 Bond(s) shall be executed by a responsible surety licensed in Montana and listed in the
latest U.S. Dept. of Treasury Circular #570, with a Best’s rating of no less than A/XII. Said
bonds shall remain in effect through the warranty period, and until all of the Contractor’s
obligations to the Owner are fulfilled.
11.4.1.3 The Performance Bond and the Labor and Material Payment Bond shall be in an amount
equal to or exceeding one hundred percent (100%) of the Contract Sum.
11.4.1.4 The Contractor shall require the attorney-in-fact who executes the required bond(s) on
behalf of the surety to affix thereto a certified and current copy of his power of attorney
indicating the monetary limit of such power.
11.4.1.5 Every Bond under this Paragraph 11.4.1 must display the Surety’s Bond Number. A rider
including the following provision shall be attached to each Bond: (1)Surety agrees
that it is obligated under the bond(s) to any successor, grantee or assignee of the Owner.
11.4.1.6 The City of Bozeman shall be named as obligee on the bonds.
The Contractor shall deliver the required bonds to the Owner not later than three (3) days
following the date the Guaranteed Maximum Price Amendment is executed and prior to the
commencement of the Construction Phase. Premiums for all bonds shall be part of the Contract
Sum.
11.4.2 Upon the request of any person or entity appearing to be a potential beneficiary of bonds
covering payment of obligations arising under the Contract, the Contractor shall promptly furnish
a copy of the bonds or shall authorize a copy to be furnished.
11.4.3 The Contractor shall keep the surety informed of the progress of the Work, and, where
necessary, obtain the surety’s consent to, or waiver of: (a) notice of changes in the Work; (b)
request for reduction or release of retention; (c) request for final payment; and (d) any other
material required by the surety. The Owner may, in the Owner’s sole discretion, inform surety of
the progress of the Work and obtain consents as necessary to protect the Owner’s rights,
interest, privileges and benefits under and pursuant to any bond issued in connection with the
Work.
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12 ARTICLE 12 - UNCOVERING AND CORRECTION OF WORK
12.1. UNCOVERING OF WORK
12.1.1. If a portion of the Work is covered contrary to the Owner's request or to requirements
specifically expressed in the Contract Documents, it must, if required in writing by the Owner, be
uncovered for the Owner's examination and be replaced at the Contractor's expense without
change in the Contract Time.
12.1.2. If a portion of the Work has been covered which the Owner has not specifically requested to
examine prior to it being covered, the Owner may request to see such Work and it shall be
uncovered by the Contractor. If such Work is in accordance with the Contract Documents,
costs of uncovering and replacement shall, by appropriate Change Order, be at the Owner's
expense. If such Work is not in accordance with the Contract Documents, correction shall be at the
Contractor's expense unless the condition was caused by the Owner or a separate contractor in
which event the Owner shall be responsible for payment of such costs.
12.2. CORRECTION OF WORK
12.2.1. BEFORE OR AFTER SUBSTANTIAL COMPLETION
12.2.1.1.The Contractor shall promptly correct Work that fails to conform to the requirements of
the Contract Documents or that is rejected by the Owner, whether discovered before or
after Substantial Completion and whether or not fabricated, installed or completed. Costs
of correcting such rejected Work, including additional testing and inspections and
compensation for the Owner’s expenses made necessary thereby, shall be at the
Contractor's expense. The Contractor is responsible to discover and correct all defective
work and shall not rely upon the Owner’s observations.
12.2.1.2.Rejection and Correction of Work in Progress. During the course of the Work, the
Contractor shall inspect and promptly reject any Work that:
12.2.1.2.1. does not conform to the Construction Documents; or,
12.2.1.2.2. does not comply with any applicable law, statute, building code, rule or regulation of
any governmental, public and quasi-public authorities, and agencies having
jurisdiction over the Project.
12.2.1.3.The Contractor shall promptly correct or require the correction of all rejected Work,
whether observed before or after Substantial Completion. The Contractor shall bear
all costs of correcting such Work, including additional testing, inspections, and
compensation for all services and expenses necessitated by such corrective action.
12.2.2.AFTER SUBSTANTIAL COMPLETION AND AFTER FINAL ACCEPTANCE
12.2.2.1.In addition to the Contractor's obligations under Paragraph 3.5, if, within two years after the
date of Final Acceptance of the Work or designated portion thereof or after the date for
commencement of warranties, or by terms of an applicable special warranty required by
the Contract Documents, any of the Work is found to be not in accordance with the
requirements oftheContractDocuments,theContractorshallcorrectitpromptlyafterreceipt
of written notice from the Owner to do so unless the Owner has previously given the
Contractor a written acceptance of such condition The Owner shall give such notice
promptly after discovery of the condition. During the two-year period for correction of
Work, if the Owner fails to notify the Contractor and give the Contractor an opportunity
to make the correction, the Owner waives the rights to require correction by the Contractor
and to make a claim for breach of warranty. If the Contractor fails to correct nonconforming
Work within a reasonable time during that period after receipt of notice from the Owner,
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the Owner may correct it in accordance with Paragraph 2.3.
12.2.2.1.1. The Contractor shall remedy any and all deficiencies due to faulty materials or
workmanship and pay for any damage to other work resulting there from, which shall
appear within the period of Substantial Completion through two (2) years from the
date of Final Acceptance in accordance with the terms and conditions of the Contract
and with any special guarantees or warranties provided in the Contract Documents.
The Owner shall give notice of observed deficiencies with within seven (7) days unless
an alternative period is agreed to by the parties. All manufacturer, product and supplier
warranties are in addition to this Contractor warranty.
12.2.2.1.2. The Contractor shall respond within seven (7) days after notice of observed
deficiencies has been given and he shall proceed to immediately remedy these
deficiencies.
12.2.2.1.3. Should the Contractor fail to respond to the notice or not remedy those
deficiencies; the Owner shall have this work corrected at the expense of the
Contractor.
12.2.2.1.4. Latent defects shall be in addition to those identified above and shall be the
responsibility of the Contractor per the statute of limitations for a written contract (27- 2-
208 MCA) starting from the date of Final Acceptance.
12.2.2.2.The two-year period for correction of Work shall be extended with respect to portions of
Work first performed after Substantial Completion by the period of time between
Substantial Completion and the actual performance of the Work.
12.2.2.3.The two-year period for correction of Work shall not be extended by corrective Work
performed by the Contractor pursuant to this Paragraph 12.2.
12.2.3. The Contractor shall remove from the site portions of the Work which are not in accordance with
the requirements of the Contract Documents and are neither corrected by the Contractor nor
accepted by the Owner.
12.2.4. The Contractor shall bear the cost of correcting destroyed or damaged construction, whether
completed or partially completed, of the Owner or separate contractors caused by the
Contractor's correction or removal of Work which is not in accordance with the requirements of the
Contract Documents.
12.2.5. Nothing contained in this Paragraph 12.2 shall be construed to establish a period of limitation with
respect to other obligations which the Contractor might have under the Contract Documents.
Establishment of the two-year period for correction of Work as described in Subparagraph 12.2.2
relatesonlytothespecific obligation of the Contractor to correct the Work, and has no relationship
to the time within which the obligation to comply with the Contract Documents may be sought to
be enforced, nor to the time within which proceedings may be commenced to establish the
Contractor's liability with respect to the Contractor's obligations other than specifically to correct the
Work.
12.3. ACCEPTANCE OF NONCONFORMING WORK
12.3.1. If the Owner prefers to accept Work which is not in accordance with the requirements of the
Contract Documents, the Owner may do so instead of requiring its removal and correction, in
which case the Contract Sum will be reduced as appropriate and equitable. Such adjustment shall
be effected whether or not final payment has been made.
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13. ARTICLE 13 - MISCELLANEOUS PROVISIONS
13.1. GOVERNING LAW
13.1.1. The Contract shall be governed by the laws of the State of Montana and venue for all legal
proceedings shall be the Eighteenth Judicial District, Gallatin County.
13.2. SUCCESSORS AND ASSIGNS
13.2.1. The Owner and Contractor respectively bind themselves, their partners, successors, assigns and
legal representatives to the other party hereto and to partners, successors, assigns and legal
representatives of such other party in respect to covenants, agreements and obligations
contained in the Contract Documents. Neither party to the Contract shall assign the Contract as a
whole without written consent of the other. If either party attempt to make such assignment
without such consent, that party shall nevertheless remain legally responsible for all obligations
under the Contract.
13.3. WRITTEN NOTICE
13.3.1. Written notices are to be provided to the representatives of the parties designated in this Contract.
Written notices are deemed to have been duly served if delivered in person to the addressee for
whom it was intended, or if delivered by electronic mail, fax, certified mail, or overnight courier. The
date of any notice is deemed to be the date of personal delivery, fax, or electronic mail; one day
after delivery to the overnight courier; and three (3) days after mailing by certified mail.
13.4. RIGHTS AND REMEDIES
13.4.1. Duties and obligations imposed by the Contract Documents and rights and remedies available
thereunder shall be in addition to and not a limitation of duties, obligations, rights and remedies
otherwise imposed or available by law.
13.4.2. No action or failure to act by the Owner or Contractor shall constitute a waiver of a right or duty
afforded them under the Contract, nor shall such action or failure to act constitute approval of or
acquiescence in a breach thereunder, except as may be specifically agreed in writing.
13.5. TESTS AND INSPECTIONS
13.5.1. Tests, inspections and approvals of portions of the Work required by the Contract Documents or by
laws, ordinances, rules, regulations or orders of public authorities having jurisdiction shall be
made at an appropriate time. Unless otherwise provided, the Contractor shall make
arrangements for such tests, inspections and approvals with an independent testing laboratory or
entity acceptable to the Owner, or with the appropriate public authority, and shall bear all related
costs of tests, inspections and approvals. The Contractor shall give the Owner timely notice of
when and where tests and inspections are to be made so that the Owner may be present for such
procedures. The Owner shall bear costs of tests, inspections or approvals which do not become
requirements until after bids are received or negotiations concluded.
13.5.2. If the Owner or public authorities having jurisdiction determine that portions of the Work require
additional testing, inspection or approval not included under Subparagraph 13.5.1, the Owner
will instruct the Contractor to make arrangements for such additional testing, inspection or
approval by an entity acceptable to the Owner, and the Contractor shall give timely notice to
the Owner of when and where tests and inspections are to be made so that the Owner may be
present for such procedures. Such costs, except as provided in Subparagraph 13.5.3 shall be at
the Owner's expense.
13.5.3. If such procedures for testing, inspection or approval under Subparagraphs 13.5.1 and 13.5.2
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reveal failure of the portions of the Work to comply with requirements established by the Contract
Documents, all costs made necessary by such failure including those of repeated procedures and
compensation for the Owner’s expenses shall be at the Contractor's expense.
13.5.4. Required certificates of testing, inspection or approval shall, unless otherwise required by the
Contract Documents, be secured by the Contractor and promptly delivered to the Owner.
13.5.5. If the Owner is to observe tests, inspections or approvals required by the Contract Documents,
the Owner will do so promptly and, where practicable, at the normal place of testing.
13.5.6. Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to
avoid unreasonable delay in the Work.
13.6. INTEREST
13.6.1. Payments due and unpaid under the Contract Documents shall bear interest from the date
payment is due at such rate as the parties may agree upon in writing or, in the absence thereof,
at the legal rate prevailing from time to time at the place where the Project is located.
13.7. COMMENCEMENT OF STATUTORY LIMITATION PERIOD
13.7.1. As between the Owner and Contractor:
13.7.1.1.Before Substantial Completion.As to acts or failures to act occurring prior to the
relevant date of Substantial Completion, any applicable statute of limitations shall
commence to run and any alleged cause of action shall be deemed to have accrued in
any and all events not later than such date of Substantial Completion;
13.7.1.2.Between Substantial Completion and Owner’s Approval of Contractor’s Final
Application for Payment.As to acts or failures toact occurringsubsequenttothe relevant
date of Substantial Completion and prior to Owner’s approval of the Contractor’s final
Application for Payment, any applicable statute of limitations shall commence to run and
any alleged cause of action shall be deemed to have accrued in any and all events not
later than the date of Owner’s approval of the final Application for Payment; and,
13.7.1.3.After Final Payment.As to acts or failures to act occurring after the relevant date of
Owner’s approval of the Contractor’s final Application for Payment, any applicable statute
of limitations shall commence to run and any alleged cause of action shall be deemed to
have accrued in any and all events not later than the date of any act or failure to act by
the Contractor pursuant to any Warranty provided under Paragraph 3.5, the date of any
correction of the Work or failure to correct the Work by the Contractor under Paragraph
12.2, or the date of actual commission of any other act or failure to perform any duty or
obligation by the Contractor or Owner, whichever occurs last.
13.8. DOCUMENT RETENTION AND AUDIT PROVISIONS
13.8.1. Contractor shall account for all materials, equipment and labor entering into the Work and must
keep such full and detailed records as may be necessary for proper financial management pursuant
to the Contract Documents for a period of five (5) years after final payment. Furthermore, the Owner
has the right to examine the Contractor’s and its Subcontractors’ and suppliers’ records directly or
indirectly pertaining or relating to the Work or the Contract and the Contractor must grant the Owner
access to and an opportunity to copy such records at all reasonable times during the Contract
period and for five (5) years after final payment.
14. ARTICLE 14 – TERMINATION OR SUSPENSION OF THE CONTRACT
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14.1. TERMINATION BY THE CONTRACTOR
14.1.1. The Contractor may terminate the Contract if the Work is stopped for a period of thirty (30)
consecutive days through no act or fault of the Contractor or a Subcontractor, Sub-
subcontractor or their agents or employees or any other persons or entities performing portions
of the Work under direct or indirect contract with the Contractor, for any of the following reasons:
14.1.1.1.issuance of an order of a court or other public authority having jurisdiction which
requires all Work to be stopped; or,
14.1.1.2.an act of government, such as a declaration of national emergency which requires all
Work to be stopped.
14.1.2. The Contractor may terminate the Contract if, through no act or fault of the Contractor or a
Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities
performing portions of the Work under direct or indirect contract with the Contractor, repeated
suspensions, delays or interruptions of the entire Work by the Owner as described in Paragraph
1.4.3 constitute in the aggregate more than 100 percent of the total number of days scheduled for
completion, or 120 days in any 365-day period, whichever is less.
14.1.3. If one of the reasons described in Subparagraph 14.1.1 or 14.1.2 exists, the Contractor may, upon
seven (7) days' written notice to the Owner, terminate the Contract and recover from the Owner
payment for Work executed and for proven loss with respect to materials, equipment, tools, and
construction equipment and machinery, including reasonable overhead and profit but not damages.
14.1.4. If the Work is stopped for a period of sixty (60) consecutive days through no act or fault of the
Contractor or a Subcontractor or their agents or employees or any other persons performing
portions of the Work under contract with the Contractor because the Owner has persistently failed
to fulfill the Owner's obligations under the Contract Documents with respect to matters important
to the progress of the Work, the Contractor may, upon seven (7) additional days' written notice
to the Owner, terminate the Contract and recover from the Owner as provided in Subparagraph
14.1.3.
14.2. TERMINATION BY THE OWNER FOR CAUSE
14.2.1. The Owner may terminate the Contract if the Contractor:
14.2.1.1.repeatedly refuses or fails to supply enough properly skilled workers or proper materials;
14.2.1.2.fails tomake paymentto Subcontractorsfor materialsor laborin accordance withthe
respective agreements between the Contractor and the Subcontractors;
14.2.1.3.fails to comply with any laws, ordinances, or rules, regulations or orders of a public
authority having jurisdiction;
14.2.1.4.Fails to perform the Work in accordance with the Contract Documents or otherwise
materially breaches any provision of the Contract Documents;
14.2.1.5.Anticipatorily breaches or repudiates the Contract; or
14.2.1.6.Fails to make satisfactory progress in the prosecution of the Work required by the
Contract.
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14.2.2. The Owner may terminate the Contract, in whole or in part, whenever the Owner determines in
good faith that sufficient cause for termination exist as provided in Subsection 14.2.1. The Owner
will provide the Contractor with a written ten (10) day notice to cure the default. If the default is not
cured, the termination for default is effective on the date specified in the Owner’s written notice.
However, if the Owner determinates that default contributes to the curtailment of an essential
service or poses an immediate threat to life, health, or property, the Owner may terminate the
Contract immediately upon issuing oral or written notice to the Contractor without any prior notice
or opportunity to cure. In addition to any other remedies provided by law or the Contract, the
Contractor must compensate the Owner for additional costs actually incurred by the Owner to
obtain substitute performance. Following written notice for the Owner of termination, the Owner
may, subject to any prior rights of the surety:
14.2.2.1.take possession of the site and of all materials, equipment, tools, and construction
equipment and machinery thereon owned by the Contractor;
14.2.2.2.accept assignment of subcontracts pursuant to Paragraph 5.4; and,
14.2.2.3.finish the Work by whatever reasonable method the Owner may deem expedient. Upon
request of the Contractor, the Owner shall furnish to the Contractor a detailed accounting
of the costs incurred by the Owner in finishing the Work.
14.2.3. Upon receipt of written notice from the Owner of termination, the Contractor must:
14.2.3.1 Cease operations as directed by the Owner in the notice and, if required by the Owner,
reasonably cooperate in an inspection of the Work with the Owner to record the extent of
completion thereof, to identify the Work remaining to be completed or corrected;
14.2.3.2 Complete or correct the items directed by the Owner, and take actions necessary, or that
the Owner may direct, for the protection and preservation of any stored materials and
completed Work;
14.2.3.3 Remove its tools, equipment and construction machinery from the Site; and
14.2.3.4 Except as directed by the Owner, terminate all existing subcontracts and purchase orders
and enter into no further subcontracts or purchase orders.
14.2.4. When the Owner terminates the Contract for one of the reasons stated in Subparagraph 14.2.1,
the Contractor shall not be entitled to receive further payment until the Work is finished.
14.2.5. If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including
compensation for the Owner’s expenses made necessary thereby, and other damages incurred by
the Owner and not expressly waived, such excess shall be paid to the Contractor. If such costs
and damages exceed the unpaid balance, the Contractor shall pay the difference to the Owner.
This obligation for payment shall survive termination of the Contract.
14.2.6. If the Contractor files for protection, or a petition is filed against it, under the Bankruptcy laws, and
Contractor wishes to affirm the Contract, Contractor shall immediately file with the Bankruptcy Court
a motion to affirm the Contract and shall provide satisfactory evidence to Owner and to the Court
of its ability to cure all present defaults and its ability to timely and successfully complete the Work.
If Contractor does not make such an immediate filing, Contractor accepts that Owner shall petition
the Bankruptcy Court to lift the Automatic Stay and permit Owner to terminate the Contract.
14.3. SUSPENSION BY THE OWNER FOR CONVENIENCE
14.3.1. The Owner may, without cause, order the Contractor in writing to suspend, delay or interrupt the
Work in whole or in part for such period of time as the Owner may determine.
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14.3.2. The Contract Sum and Contract Time shall be equitably adjusted for increases in the cost and
time caused by suspension, delay or interruption as described in Subparagraph 14.3.1. Adjustment
of the Contract Sum shall include profit. No adjustment shall be made to the extent:
14.3.2.1.that performance is, was or would have been so suspended, delayed or interrupted by
another cause for which the Contractor is responsible; or,
14.3.2.2.that an equitable adjustment is made or denied under another provision of the Contract.
14.4. TERMINATION BY THE OWNER FOR CONVENIENCE
14.4.1. The Owner may, at any time, terminate the Contract or any portion thereof or of the Work for the
Owner's convenience and without cause.
14.4.2. Upon receipt of written notice from the Owner of such termination for the Owner's convenience,
the Contractor shall:
14.4.2.1.cease operations as directed by the Owner in the notice and, if required by the Owner,
participate in an inspection of the Work with the Owner to record the extent of completion
thereof, to identify the Work remaining to be completed or corrected;
14.4.2.2.Complete or correct the items directed by the Owner, and take actions necessary, or that
the Owner may direct, for the protection and preservation of the Work;
14.4.2.3.Remove its tools, equipment and construction machinery from the Site; and
14.4.2.4.Except for Work directed to be performed prior to the effective date of termination stated in
the notice, terminate all existing subcontracts and purchase orders and enter into no
further subcontracts and purchase orders.
14.4.3 Following written notice from the Owner of termination, the Owner may:
14.4.3.1 Take possession of the Site and of all materials for which the Owner has paid;
14.4.3.2 Accept assignment of subcontracts and purchase orders; and
14.4.3.3 Complete the Work by whatever reasonable method the Owner may deem expedient.
14.4.4. In case of such termination for the Owner's convenience, the Contractor shall be entitled to
compensation only for the following items:
14.4.4.1 Payment for acceptable Work performed up to the date of termination, including
Contractor’s fee;
14.4.4.2 The costs of preservation and protection of the Work if requested to do so by the Owner;
14.4.4.3 The cost of terminating the following contracts including:
(i.)Purchased materials but only if not returnable and provided to the Owner, or the
restocking or return charge, if any, if returnable at the Owner’s written election;
(ii.)Equipment rental contracts if not terminable at no cost but not to exceed an amount
equal to thirty (30) days rental;
14.4.4.4 Documented transportation costs associated with removing Contractor-owned equipment;
and
14.4.4.5 Documented demobilization and close-out costs.
The Contractor will not be compensated for the cost of terminating subcontracts, which must be
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terminable at no cost to the Owner if the Contract is terminated, except for those costs listed in Section
14.4.4.1 through 14.4.4.5. If the Owner and the Contractor are unable to agree upon the amounts
specified in this subsection, the Contractor may submit a Claim as provided in Section 4.3. The Claim
must be limited to resolution of the amounts specified in Subsections 14.4.4.1, 14.4.4.2, 14.4.4.3,
14.4.4.4, and 14.4.4.5 of this Subsection 14.4.4. No other cost, damages or expenses may be claimed
or paid to the Contractor or considered as part of the Claim, the same being hereby conclusively and
irrevocably waived by the Contractor. Any such Claim must be delivered to the Owner within thirty (30)
days of the termination of the Contract and must contain a written statement setting forth the specific
reasons and supporting calculations and documentation as to the amounts the Contractor claims to be
entitled to under this Subsection as a result of the termination of the Contract.
14.4.5. The Contractor’s obligations surviving final payment under the Contract, including without limitation
those with respect to insurance, indemnification, and correction of Work that has been completed
at the time of termination, remains effective notwithstanding termination for convenience of the
Owner.
14.4.6. In the event of termination or cancellation of any or all pre-construction services and/or decision
not pursue a GMP Amendment/Contract, the Contractor shall not be due any costs, or overhead, or
profit on any portion of the Work, but shall be paid for the completed portion of Pre-Construction
Phase Services documented by Contractor.
15. ARTICLE 15 – EQUAL OPPORTUNITY
The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of
merit and qualifications. The Contractor shall have a policy to provide equal employment opportunity in accordance
with all applicable state and federal anti-discrimination laws, regulations, and contracts. The City of Bozeman
requires that Contractor shall not refuse employment to a person, bar a person from employment, or discriminate
against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion,
creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity,
physical or mental disability, except when the reasonable demands of the position require an age, physical or mental
disability, marital status or sex distinction. The Contractor shall require these nondiscrimination terms of its
Subcontractors.
[END OF GENERAL CONDITIONS]
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NONDISCRIMINATION AND EQUAL PAY AFFIRMATION
____________________________________(name of entity submitting) hereby affirms it will not
discriminate on the basis of race, color, religion, creed, sex, age, marital status, national origin,
or because of actual or perceived sexual orientation, gender identity or disability and
acknowledges and understands the eventual contract will contain a provision prohibiting
discrimination as described above and this prohibition on discrimination shall apply to the hiring
and treatments or proposer’s employees and to all subcontracts.
In addition, ____________________________________(name of entity submitting) hereby
affirms it will abide by the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal
Pay Act), and has visited the State of Montana Equal Pay for Equal Work “best practices” website,
https://equalpay.mt.gov/BestPractices/Employers, or equivalent “best practices publication and
has read the material.
______________________________________
Name and title of person authorized to sign on behalf of submitter
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Memorandum
REPORT TO:City Commission
FROM:David Fine, Economic Development Program Manager
Brit Fontenot, Economic Development Director
SUBJECT:Authorize the City Manager to Sign a Professional Services Agreement with
Ken VanDeWalle Architect AIA, Inc. for Architectural Services for East Aspen
Pedestrian Bridge
MEETING DATE:November 9, 2021
AGENDA ITEM TYPE:Agreement - Vendor/Contract
RECOMMENDATION:Authorize the City Manager to sign a professional services agreement with
Ken VanDeWalle Architect AIA, Inc.
STRATEGIC PLAN:2.2 Infrastructure Investments: Strategically invest in infrastructure as a
mechanism to encourage economic development.
BACKGROUND:The City Commission designated a pedestrian bridge over Bozeman Creek as
an urban renewal project. The Fiscal Year 2021 work plan and budget for the
Northeast Urban Renewal District included funding for design of pedestrian
connections and abutments for a bridge. This contract covers design for an
architectural design for the bridge itself to be places on the previously
designed abutments. The bridge is listed in the FY2022 work plan and budget
as a future project, but the urban renewal board recently voted to
reprioritize the bridge project since street reconstruction tied to the
Cottonwood and Ida project is on indefinite hold with the demise of that
project.
UNRESOLVED ISSUES:None at this time.
ALTERNATIVES:As suggested by the City Commission.
FISCAL EFFECTS:The total cost of the professional services agreement is $19,500. Funding for
the project is available in the approved budget for the Northeast Urban
Renewal District.
Attachments:
Architectural Services Agreement November 2021.docx
Aspen Street Pedestrian Bridge Professional Fee Proposal.pdf
Report compiled on: October 21, 2021
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Professional Services Agreement for Architectural Services
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PROFESSIONAL ARCHITECTURAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this _____ day of ____________, 20___
(“Effective Date”), by and between the CITY OF BOZEMAN, MONTANA,a self-governing
municipal corporation organized and existing under its Charter and the laws of the State of Montana,
121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT
59771, hereinafter referred to as “City,” and, Ken VanDeWalle AIA, Inc., 408 Plum Ave., Bozeman,
MT 59715, hereinafter referred to as “Consultant” or “Architect.” The City and Architect may be
referred to individually as “Party” and collectively as “Parties.”
In consideration of the mutual covenants and agreements herein contained, the receipt and
sufficiency whereof being hereby acknowledged, the parties hereto agree as follows:
1.Purpose: City agrees to hire Consultant as an independent contractor to perform for
City services described in the Scope of Services attached hereto as Exhibit A and by this reference
made a part hereof.
2.Effective Date: This Agreement is effective upon the Effective Date and will expire
on the _____ day of ____________, 20___, unless earlier terminated in accordance with this
Agreement.
3.Scope of Work: Consultant will perform the work and provide the services in
accordance with the requirements of the Scope of Services attached hereto. For conflicts between
this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement
governs.
4.Payment: City agrees to pay Architect the amount specified in the Scope of Services.
Any alteration or deviation from the described work that involves additional costs above the
Agreement amount will be performed by Architect after written request by the City, and will become
an additional charge over and above the contract amount. The parties must agree in writing upon any
additional charges.
5. Consultant’s Representations:
To induce City to enter into this Agreement, Architect makes the following representations:
a.Architect has familiarized itself with the nature and extent of this Agreement, the
Scope of Services, and with all local conditions and federal, state and local laws, growth policies,
adopted plans of the City, ordinances, rules, and regulations that in any manner may affect cost,
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progress or performance of the Scope of Services.
b.Architect represents and warrants to City that it has the experience and ability to
perform the services required by this Agreement; that it will perform the services in a professional,
competent and timely manner and with diligence and skill; that it has the power to enter into and
perform this Agreement and grant the rights granted in it; and that its performance of this Agreement
shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark,
privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal,
state and municipal laws. The City will not determine or exercise control as to general procedures or
formats necessary to have these services meet this warranty.
6.Independent Contractor Status: The parties agree that Architect is an independent
contractor for purposes of this Agreement and is not to be considered an employee of the City for any
purpose. Architectis not subject to the terms and provisions of the City’s personnel policies handbook
and may not be considered a City employee for workers’ compensation or any other purpose.
Architect is not authorized to represent the City or otherwise bind the City in any dealings between
Architect and any third parties.
Architect shall comply with the applicable requirements of the Workers’ Compensation Act,
Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of
Montana, Title 39, Chapter 71, MCA. Architect shall maintain workers’ compensation coverage for
all members and employees of Architect’s business, except for those members who are exempted by
law.
Architect shall furnish the City with copies showing one of the following: (1) a binder for
workers’ compensation coverage by an insurer licensed and authorized to provide workers’
compensation insurance in the State of Montana; or (2) proof of exemption from workers’
compensation granted by law for independent contractors.
7.Indemnity/Waiver of Claims/Insurance: For other than professional services
rendered, to the fullest extent permitted by law, Architect agrees to defend, indemnify, and hold the
City, its agents, representatives, employees, and officers (collectively referred to for purposes of this
Section as the City)harmless against claims, demands, suits, damages, losses, and expenses connected
therewith that may be asserted or claimed against, recovered from or suffered by the City by reason
of any injury or loss, including but not limited to, personal injury, including bodily injury or death,
property damage, occasioned by, growing out of, or in any way arising or resulting from any
intentional or negligent act on the part of Architect or Architect’s agents or employees.
For the professional services rendered, to the fullest extent permitted by law, Architect agrees
to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and
expenses, including reasonable defense attorney fees, to the extent caused by the negligence or
intentional misconduct of the Architect or Architect’s agents or employees.
Architect also waives any and all claims and recourse against the City, including the right of
contribution for loss or damage to person or property arising from, growing out of, or in any way
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connected with or incident to the performance of this Agreement except “responsibility for [City’s]
own fraud, for willful injury to the person or property of another, or for violation of law, whether
willful or negligent” as per 28-2-702, MCA.
Such obligationsshall not be construed to negate, abridge, or reduce other rights or obligations
of indemnity that would otherwise exist. The indemnification obligations of this Section must not be
construed to negate, abridge, or reduce any common-law or statutory rights of the City as
indemnitee(s) which would otherwise exist as to such indemnitee(s).
Contractor’s indemnity under this Section shall be without regard to and without any right to
contribution from any insurance maintained by City. Should City be required to bring an action
against the Architect to assert its right to defense or indemnification under this Agreement or under
the Architect’s applicable insurance policies required below the City shall be entitled to recover
reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only
if a court of competent jurisdiction determines the Architect was obligated to defend the claim(s) or
was obligated to indemnify the City for a claim(s) or any portion(s) thereof.
The obligations of this Section shall survive termination of this Agreement and the services
performed hereunder.
In addition to and independent from the above, Architect shall secure insurance coverage
acceptable to the City and furnish to the City an accompanying certificate of insurance issued by a
company authorized to do business in the State of Montana in amounts not less than as follows:
Workers’ Compensation - statutory
Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate
Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate
Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000 annual
aggregate
Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate
The City of Bozeman shall be endorsed as an additional or named insured on a primary non-
contributory basis on both the Commercial General and Automobile Liability policies. The insurance
and required endorsements must be in a form suitable to City and shall include no less than a thirty
(30) day notice of cancellation or non-renewal. The City must approve all insurance coverage and
endorsements prior to the Architect commencing work.
8.Professional Service: Architect agrees that all services and work performed
hereunder will be accomplished in a professional manner.
9.Compliance with Laws: Architect agrees to comply with all federal, state and local
laws, ordinances, rules and regulations, including the safety rules, codes, and provisions of the
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Montana Safety Act in Title 50, Chapter 71, MCA. Architect agrees to purchase a City business
license.
10.Nondiscrimination and Equal Pay: The Architect agrees that all hiring by Architect
of persons performing this Agreement shall be on the basis of merit and qualifications. The Architect
will have a policy to provide equal employment opportunity in accordance with all applicable state
and federal anti-discrimination laws, regulations, and contracts. The Architect 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 Architect 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.
Architect 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).
Architect must report to the City any violations of the Montana Equal Pay Act that Architect has been
found guilty of within 60 days of such finding for violations occurring during the term of this
Agreement.
Architect shall require these nondiscrimination terms of its subcontractors providing services
under this Agreement.
11.Default and Termination: If either Party fails to comply with any condition of this
Agreement at the time or in the manner provided for, the other Party, at its option, may terminate this
Agreement and be released from all obligations if the default is not cured within ten (10) days after
written notice is provided to the defaulting Party. Said notice shall set forth the items to be cured.
Additionally, the non-defaulting Party may bring suit for damages, specific performance, and any
other remedy provided by law. These remedies are cumulative and not exclusive. Use of one remedy
does not preclude use of the others. Notices shall be provided in writing and hand-delivered or mailed
to the Parties at the addresses set forth in the first paragraph of this Agreement.
12.Modification and Assignability: This document contains the entire agreement
between the parties and no statements, promises or inducements made by either party or agents of
either party, which are not contained in this written Agreement, may be considered valid or binding.
This Agreement may not be enlarged, modified or altered except by written agreement signed by both
parties hereto. The Architect may not subcontract or assign Architect’s rights, including the right to
compensation or duties arising hereunder, without the prior written consent of the City. Any
subcontractor or assignee will be bound by all of the terms and conditions of this Agreement.
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13.Ownership and Publication of Materials: All reports, information, data, and other
materials prepared by the Architect pursuant to this Agreement, except those separately identified in
the Scope of Services or in other written agreements between the parties, are jointly owned by the
Architect and the City. The City has authority to release, publish or otherwise use, in whole or part,
reports, information, data and other materials prepared by Architect pursuant to this Agreement,
except those separately identified in the Scope of Services or in other written agreements between the
parties. Any re-use without written verification or adaptation by the Architect for the specific purpose
intended will be at the City’s sole risk and without liability or legal exposure to the Architect. No
material produced in whole or in part under this Agreement may be copyrighted or patented in the
United States or in any other country without the prior written approval of the City.
14.Representatives and Notices:
a.City’s Representative: The City’s Representative for the purpose of this
Agreement shall be David Fine, Economic Development Program Manager, or such other
individual as City shall designate in writing. Whenever approval or authorization from or
communication or submission to City is required by this Agreement, such communication or
submission shall be directed to the City’s Representative and approvals or authorizations shall
be issued only by such Representative; provided, however, that in exigent circumstances when
City’s Representative is not available, Architect may direct its communication or submission
to other designated City personnel or agents as designated by the City in writing and may
receive approvals or authorization from such persons.
b.Architect’s Representative: The Architect’s Representative for the purpose
of this Agreement shall be or such other individual as Architect shall designate in writing.
Whenever direction to or communication with Architect is required by this Agreement, such
direction or communication shall be directed to Architect’s Representative; provided,
however, that in exigent circumstances when Architect’s Representative is not available, City
may direct its direction or communication to other designated Architect personnel or agents.
c.Notices:All notices required by this Agreement shall be in writing and
shall be provided to the Representatives named in this Section. Notices shall be deemed given
when delivered, if delivered by courier to Party’s address shown above during normal business
hours of the recipient; or when sent, if sent by email or fax (with a successful transmission
report) to the email address or fax number provided by the Party’s Representative; or on the
fifth business day following mailing, if mailed by ordinary mail to the address shown above,
postage prepaid.
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15.Applicability: This Agreement and any extensions hereof shall be governed and
construed in accordance with the laws of the State of Montana.
16. Reports/Accountability/Public Information: Architect agrees to develop and/or
provide documentation as requested by the City demonstrating Architect’s compliance with the
requirements of this Agreement. Architect shall allow the City, its auditors, and other persons
authorized by the City to inspect and copy its books and records for the purpose of verifying that the
reimbursement of monies distributed to Architect pursuant to this Agreement was used in compliance
with this Agreement and all applicable provisions of federal, state, and local law. The Architect shall
not issue any statements, releases or information for public dissemination without prior approval of
the City.
17.Non-Waiver: A waiver by either Party of any default or breach by the other party of
any terms or conditions of this Agreement does not limit the other Party’s right to enforce such term
or conditions or to pursue any available legal or equitable rights in the event of any subsequent default
or breach.
18.Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
20.Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
21.Dispute Resolution:
a.Any claim, controversy, or dispute between the parties, their agents,
employees, or representatives shall be resolved first by negotiation between senior-level
personnel from each party duly authorized to execute settlement agreements. Upon mutual
agreement of the parties, the parties may invite an independent, disinterested mediator to assist
in the negotiated settlement discussions.
b.If the parties are unable to resolve the dispute within thirty (30) days from the
date the dispute was first raised, then such dispute may only be resolved in a court of
competent jurisdiction in compliance with the Applicable Law provisions of this Agreement.
22.Survival: Contractor’s indemnification shall survive the termination or expiration of
this Agreement for the maximum period allowed under applicable law.
23.Headings: The headings used in this Agreement are for convenience only and are not
be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to
which they refer.
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24.Severability: If any portion of this Agreement is held to be void or unenforceable, the
balance thereof shall continue in effect.
25.Applicable Law: The parties agree that this Agreement is governed in all respects by
the laws of the State of Montana.
26.Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs,
legal representatives, successors, and assigns of the parties.
27.No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party.
28.Attorney’s Fees and Costs: In the event it becomes necessary for either Party to
retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice
required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable
attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City
Attorney’s Office staff.
29.Consent to Electronic Signatures: The Parties have consented to execute this
Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act,
Title 30, Chapter 18, Part 1, MCA.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
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IN WITNESS WHEREOF,the parties hereto have executed this instrument the day and year
first above written or as recorded in an electronic signature.
CITY OF BOZEMAN, MONTANA ____________________________________
ARCHITECT (Type Name Above)
By________________________________By__________________________________
Jeff Mihelich, City Manager
Print Name:
Print Title: ____________________________
APPROVED AS TO FORM:
By_______________________________
Greg Sullivan, Bozeman City Attorney
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126
Memorandum
REPORT TO:City Commission
FROM:David Fine, Economic Development Program Manager
Brit Fontenot, Economic Development Director
SUBJECT:Authorize the City Manager to Sign a Professional Services Agreement with
Morrison Maierle for North Seventh Streetscape Project Engineering
MEETING DATE:November 9, 2021
AGENDA ITEM TYPE:Agreement - Vendor/Contract
RECOMMENDATION:Authorize the City Manager to sign a professional services agreement with
Morrison Maierle for North Seventh Streetscape Project engineering.
STRATEGIC PLAN:2.2 Infrastructure Investments: Strategically invest in infrastructure as a
mechanism to encourage economic development.
BACKGROUND:Morrison Maierle has been the City's long-term engineering consultant on
the North Seventh Streetscape Project. Due to the longstanding nature of
the project, it is beneficial to the City to engage the consultant for future
work using the City's most up-to-date standard contract documents, rather
than amending the previous contract.
The scope of work for this contract includes additional engineering related to
the conclusion of the most recent phase of the Streetscape Project and an
operation and maintenance manual for the recently installed streetscape
elements.
UNRESOLVED ISSUES:None at this time.
ALTERNATIVES:As suggested by the City Commission.
FISCAL EFFECTS:The total cost of this contract is $44,230. Funding for this project is included
in the North Seventh Improvements Project Fund and the Midtown Urban
Renewal District budget for Fiscal Year 2022.
Attachments:
Short Form PSA Engineering_MMI_Midtown Oct 2021.pdf
Report compiled on: October 28, 2021
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PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this day of , 2021
(“Effective Date”), by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal
corporation organized and existing under its Charter and the laws of the State of Montana, 121
North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT
59771, hereinafter referred to as “City,” and Morrison Maierle with a mailing address of 2880
Technology Boulevard West, Bozeman, Montana 59718, hereinafter referred to as “Consultant.”
The City and Consultant may be referred to individually as “Party” and collectively as “Parties.”
In consideration of the mutual covenants and agreements herein contained, the receipt and
sufficiency whereof being hereby acknowledged, the parties hereto agree as follows:
1. Purpose: City agrees to enter this Agreement with Consultant to perform for City services
described in the Scope of Services attached hereto as “Attachment A” and “Attachment A.1” and
by this reference made a part hereof for the Project: North Seventh Streetscape Project.
2. Term/Effective Date: This Agreement is effective upon the date of its execution and will
terminate upon satisfactory completion of the agreed Scope of Services, which may be amended
from time to time by the mutual agreement of the Parties pursuant to terms of this agreement,
as determined by the City.
3. Scope of Services: Consultant will perform the work and provide the services in
accordance with the requirements of the Scope of Services, as provided herewith as “Attachment
A”. For conflicts between this Agreement and the Scope of Services, unless specifically provided
otherwise, the Agreement governs. Consultant may, at its own risk, use or rely upon design
elements and information ordinarily or customarily furnished by others, including, but not limited
to, specialty contractors, Sub-consultants, manufacturers, suppliers, and publishers of technical
standards.
4. Payment for Scope of Services: City agrees to pay Consultant for the completion of the
Scope of Services. The Consultant’s Direct Labor Costs in $/hr for its employee classes and a
detailed breakdown of personnel hours directly assigned to each task of the Scope of Services is
provided herewith as “Attachment A.1”.
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5. Reimbursable Expenses: As defined in section 8 of this Agreement, for completion of the
Scope of Services and approved Additional Services, reimbursable expenses shall be paid to the
Consultant by the City in the actual amount of the costs incurred up to an amount not to exceed
$ 6,929.06, which includes $ 4,725.00 for Sub-consultants hired by the Consultant and $ 2,204.06
for all other reimbursable expenses. The estimated reimbursable expenses are provided
herewith as “Attachment A.1”. The administrative markup factor being applied by the Consultant
for any of its Sub-consultants shall be indicated on Attachment A.1 and be no higher than 1.05.
6. Additional Services: If the City requests Consultant to perform any Additional Services
not otherwise provided for in this Agreement, City shall so instruct the Consultant in writing, and
the Consultant shall perform, or direct its Sub-consultants to perform, such services necessary to
complete the Additional Services requested. The City and Consultant shall mutually agree upon
a basis of payment for the Additional Services requested prior to the Consultant proceeding with
such Additional Services.
7. Times of Payments: The Consultant may submit monthly statements for the Scope of
Services and approved Additional Services rendered and for Reimbursable Expenses incurred.
The statements shall be based upon Consultant’s estimate of the proportion of the total Scope
of Services actually completed for each task at the time of billing.
8. Meaning of Terms:
a. Additional Services: Additional Services means services resulting from significant
changes in the general scope, extent or character of the Project or major changes in
documentation previously accepted by the City where changes are due to causes beyond the
Consultant’s control. Additional Services can also mean providing other services not otherwise
provided for in the Agreement that are substantially similar to and generally consistent with the
nature of services contained in the Scope of Services.
b. Agreement: As used herein the term “this Agreement” refers to the contents of
this document and its Attachments and Exhibits attached hereto and referred to as if they were
part of one and the same document.
c. Direct Labor Costs: Direct Labor Costs used as a basis for payment mean the
actual salaries and wages paid to all of the Consultant’s personnel engaged directly on the Scope
of Services but does not included indirect payroll related costs or fringe benefits.
d. Reimbursable Expenses: Reimbursable expenses mean the actual expenses
incurred by the Consultant or its Sub-consultants directly in connection with the Project, such as
expenses for: transportation and subsistence incidental thereto; toll telephone calls; specialized
technology or software subscription charges; reproduction of reports, technical memoranda,
drawings, renderings and similar Project-related items.
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e. Sub-consultants: Sub-consultants means any independent professional
associates working on the Project that are not directly employed by the Consultant and have
rather been hired by the Consultant to serve a particular role or offer a particular service for the
Project.
9. Consultant’s Representations: To induce City to enter into this Agreement, Consultant
makes the following representations:
a. Consultant has familiarized itself with the nature and extent of this Agreement,
the Scope of Services, and with all local conditions and federal, state and local laws, ordinances,
rules, and regulations that in any manner may affect cost, progress or performance of the Scope
of Services.
b. Consultant represents and warrants to City that it has the experience and ability
to perform the services required by this Agreement; that it will perform the services in a
professional, competent and timely manner and with diligence and skill; that it has the power to
enter into and perform this Agreement and grant the rights granted in it; and that its performance
of this Agreement shall not infringe upon or violate the rights of any third party, whether rights
of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature
whatsoever, or violate any federal, state and municipal laws. The City will not determine or
exercise control as to general procedures or formats necessary to have these services meet this
warranty.
10. Independent Contractor Status/Labor Relations: The parties agree that Consultant is an
independent Contractor for purposes of this Agreement and is not to be considered an employee
of the City for any purpose. Consultant is not subject to the terms and provisions of the City’s
personnel policies handbook and may not be considered a City employee for workers’
compensation or any other purpose. Consultant is not authorized to represent the City or
otherwise bind the City in any dealings between Consultant and any third parties.
Consultant shall comply with the applicable requirements of the Workers’ Compensation
Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of
Montana, Title 39, Chapter 71, MCA. Consultant shall maintain workers’ compensation coverage
for all members and employees of Consultant’s business, except for those members who are
exempted by law.
11. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered,
to the fullest extent permitted by law, Consultant agrees to release, defend, indemnify, and hold
harmless the City, its agents, representatives, employees, and officers (collectively referred to
for purposes of this Section as the City) from and against any and all claims, demands, actions,
fees and costs (including attorney’s fees and the costs and fees of expert witness and
consultants), losses, expenses, liabilities (including liability where activity is inherently or
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intrinsically dangerous) or damages of whatever kind or nature connected therewith and without
limit and without regard to the cause or causes thereof or the negligence of any party or parties
that may be asserted against, recovered from or suffered by the City occasioned by, growing or
arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional
misconduct of the Consultant; or (ii) any negligent, reckless, or intentional misconduct of any of
the Consultant’s agents.
For the professional services rendered, to the fullest extent permitted by law, Consultant
agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses,
and expenses, including reasonable defense attorney fees, to the extent caused by the negligence
or intentional misconduct of the Consultant or Consultant’s agents or employees.
Such obligations shall not be construed to negate, abridge, or reduce other rights or
obligations of indemnity that would otherwise exist. The indemnification obligations of this
Section must not be construed to negate, abridge, or reduce any common-law or statutory rights
of the City as indemnitee which would otherwise exist as to such indemnitee(s).
Consultant’s indemnity under this Section shall be without regard to and without any right
to contribution from any insurance maintained by City.
Should the City be required to bring an action against the Consultant to assert its right to
defense or indemnification under this Agreement or under the Consultant’s applicable insurance
policies required below the City shall be entitled to recover reasonable costs and attorney fees
incurred in asserting its right to indemnification or defense but only if a court of competent
jurisdiction determines the Consultant was obligated to defend the claim(s) or was obligated to
indemnify the City for a claim(s) or any portion(s) thereof.
In the event of an action filed against City resulting from the City’s performance under
this Agreement, the City may elect to represent itself and incur all costs and expenses of suit.
Consultant also waives any and all claims and recourse against the City, including the right of
contribution for loss or damage to person or property arising from, growing out of, or in any way
connected with or incident to the performance of this Agreement except “responsibility for
[City’s] own fraud, for willful injury to the person or property of another, or for violation of law,
whether willful or negligent” as per 28-2-702, MCA.
These obligations shall survive termination of this Agreement and the services performed
hereunder.
In addition to and independent from the above, Consultant shall at Consultant’s expense
secure insurance coverage through an insurance company or companies duly licensed and
authorized to conduct insurance business in Montana which insures the liabilities and obligations
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specifically assumed by the Consultant in this Section. The insurance coverage shall not contain
any exclusion for liabilities specifically assumed by the Consultant in this Section.
The insurance shall cover and apply to all claims, demands, suits, damages, losses, and
expenses that may be asserted or claimed against, recovered from, or suffered by the City
without limit and without regard to the cause therefore and which is acceptable to the City.
Consultant shall furnish to the City an accompanying certificate of insurance and accompanying
endorsements in amounts not less than as follows:
· Workers’ Compensation – statutory;
· Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;
· Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
· Automobile Liability - $1,000,000 property damage/bodily injury per accident; and
· Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate.
The above amounts shall be exclusive of defense costs. The City of Bozeman shall be
endorsed as an additional or named insured on a primary non- contributory basis on both the
Commercial General and Automobile Liability policies. The insurance and required endorsements
must be in a form suitable to City and shall include no less than a thirty (30) day notice of
cancellation or non-renewal. The City must approve all insurance coverage and endorsements
prior to the Consultant commencing work. Consultant shall notify City within two (2) business
days of Consultant’s receipt of notice that any required insurance coverage will be terminated or
Consultant’s decision to terminate any required insurance coverage for any reason.
12. Termination for Consultant’s Fault:
a. If Consultant refuses or fails to timely do the work, or any part thereof, or fails to
perform any of its obligations under this Agreement, or otherwise breaches any terms or
conditions of this Agreement, the City may, by written notice, terminate this Agreement and the
Consultant’s right to proceed with all or any part of the work (“Termination Notice Due to
Consultant’s Fault”). The City may then take over the work and complete it, either with its own
resources or by re-letting the contract to any other third party.
b. In the event of a termination pursuant to this Section 12, Consultant shall be
entitled to payment only for those services Consultant actually rendered.
c. Any termination provided for by this Section 12 shall be in addition to any other
remedies to which the City may be entitled under the law or at equity.
d. In the event of termination under this Section 12, Consultant shall, under no
circumstances, be entitled to claim or recover consequential, special, punitive, lost business
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opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
13. Termination for City’s Convenience:
a. Should conditions arise which, in the sole opinion and discretion of the City, make
it advisable to the City to cease performance under this Agreement, the City may terminate this
Agreement by written notice to Consultant (“Notice of Termination for City’s Convenience”). The
termination shall be effective in the manner specified in the Notice of Termination for City’s
Convenience and shall be without prejudice to any claims that the City may otherwise have
against Consultant.
b. Upon receipt of the Notice of Termination for City’s Convenience, unless
otherwise directed in the Notice, the Consultant shall immediately cease performance under this
Agreement and make every reasonable effort to refrain from continuing work, incurring
additional expenses or costs under this Agreement and shall immediately cancel all existing
orders or contracts upon terms satisfactory to the City. Consultant shall do only such work as may
be necessary to preserve, protect, and maintain work already completed or immediately in
progress.
c. In the event of a termination pursuant to this Section 13, Consultant is entitled to
payment only for those services Consultant actually rendered on or before the receipt of the
Notice of Termination for City’s Convenience.
d. The compensation described in Section 13(c) is the sole compensation due to
Consultant for its performance of this Agreement. Consultant shall, under no circumstances, be
entitled to claim or recover consequential, special, punitive, lost business opportunity, lost
productivity, field office overhead, general conditions costs, or lost profits damages of any nature
arising, or claimed to have arisen, as a result of the termination.
14. Limitation on Consultant’s Damages; Time for Asserting Claim:
a. In the event of a claim for damages by Consultant under this Agreement,
Consultant’s damages shall be limited to contract damages and Consultant hereby expressly
waives any right to claim or recover consequential, special, punitive, lost business opportunity,
lost productivity, field office overhead, general conditions costs, or lost profits damages of any
nature or kind.
b. In the event Consultant wants to assert a claim for damages of any kind or nature,
Consultant shall provide City with written notice of its claim, the facts and circumstances
surrounding and giving rise to the claim, and the total amount of damages sought by the claim,
within thirty (30) days of the Consultant becoming aware of the facts and circumstances giving
rise to the claim. In the event Consultant fails to provide such notice, Consultant shall waive all
rights to assert such claim.
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15. Representatives and Notices:
a. City’s Representative: The City’s Representative for the purpose of this Agreement
shall be David Fine or such other individual as City shall designate in writing. Whenever approval
or authorization from or communication or submission to City is required by this Agreement,
such communication or submission shall be directed to the City’s Representative and approvals
or authorizations shall be issued only by such Representative; provided, however, that in exigent
circumstances when City’s Representative is not available, Consultant may direct its
communication or submission to other designated City personnel or agents as designated by the
City in writing and may receive approvals or authorization from such persons.
b. Consultant’s Representative: The Consultant’s Representative for the purpose of
this Agreement shall be Kevin Jacobsen or such other individual as Consultant shall designate in
writing. Whenever direction to or communication with Consultant is required by this Agreement,
such direction or communication shall be directed to Consultant’s Representative; provided,
however, that in exigent circumstances when Consultant’s Representative is not available, City
may direct its direction or communication to other designated Consultant personnel or agents.
c. Notices: All notices required by this Agreement shall be in writing and shall
be provided to the Representatives named in this Section. Notices shall be deemed given when
delivered, if delivered by courier to Party’s address shown above during normal business hours
of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to
the email address or fax number provided by the Party’s Representative; or on the fifth business
day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid.
16. Permits: Consultant shall provide all notices, comply with all applicable laws, ordinances,
rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business
license, and inspections from applicable governmental authorities, and pay all fees and charges
in connection therewith.
17. Laws and Regulations: Consultant shall comply fully with all applicable state and federal
laws, regulations, and municipal ordinances including, but not limited to, all workers’
compensation laws, all environmental laws including, but not limited to, the generation and
disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules,
codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City,
County, and State building and electrical codes, the Americans with Disabilities Act, and all non-
discrimination, affirmative action, and utilization of minority and small business statutes and
regulations.
18. Nondiscrimination and Equal Pay: The Consultant agrees that all hiring by
Consultant of persons performing this Agreement shall be on the basis of merit and qualifications.
The Consultant will have a policy to provide equal employment opportunity in accordance with
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all applicable state and federal anti-discrimination laws, regulations, and contracts. The
Consultant 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 Consultant 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.
Consultant 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). Consultant must report to the City any violations of the Montana Equal Pay Act that
Consultant has been found guilty of within 60 days of such finding for violations occurring during
the term of this Agreement.
Consultant shall require these nondiscrimination terms of its subcontractors providing
services under this Agreement.
19. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Consultant shall not
permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by
any employee or agent engaged in services to the City under this Agreement while on City
property or in the performance of any activities under this Agreement. Consultant acknowledges
it is aware of and shall comply with its responsibilities and obligations under the U.S. Department
of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and
related testing. City shall have the right to request proof of such compliance and Consultant shall
be obligated to furnish such proof.
The Consultant shall be responsible for instructing and training the Consultant's
employees and agents in proper and specified work methods and procedures. The Consultant
shall provide continuous inspection and supervision of the work performed. The Consultant is
responsible for instructing its employees and agents in safe work practices.
20. Modification and Assignability: This Agreement may not be enlarged, modified,
amended or altered except by written agreement signed by both parties hereto. The Consultant
may not subcontract or assign Consultant’s rights, including the right to compensation or duties
arising hereunder, without the prior written consent of the City. Any Sub-consultant or assignee
will be bound by all of the terms and conditions of this Agreement.
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21. Reports/Accountability/Public Information: Consultant agrees to develop and/or
provide documentation as requested by the City demonstrating Consultant’s compliance with
the requirements of this Agreement. Consultant shall allow the City, its auditors, and other
persons authorized by the City to inspect and copy its books and records for the purpose of
verifying that the reimbursement of monies distributed to Consultant pursuant to this Agreement
was used in compliance with this Agreement and all applicable provisions of federal, state, and
local law. The Consultant shall not issue any statements, releases or information for public
dissemination without prior approval of the City.
22. Non-Waiver: A waiver by either party of any default or breach by the other party of any
terms or conditions of this Agreement does not limit the other party’s right to enforce such term
or conditions or to pursue any available legal or equitable rights in the event of any subsequent
default or breach.
23. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an
attorney to enforce any of the terms or conditions of this Agreement or to give any notice
required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable
attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City
Attorney’s Office staff.
24. Taxes: Consultant is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
25. Dispute Resolution:
a. Any claim, controversy, or dispute between the parties, their agents, employees,
or representatives shall be resolved first by negotiation between senior-level personnel from
each party duly authorized to execute settlement agreements. Upon mutual agreement of the
parties, the parties may invite an independent, disinterested mediator to assist in the negotiated
settlement discussions.
b. If the Parties are unable to resolve the dispute within thirty (30) days from the
date the dispute was first raised, then such dispute may only be resolved in a court of competent
jurisdiction in compliance with the Applicable Law provisions of this Agreement.
26. Survival: Consultant’s indemnification shall survive the termination or expiration of this
Agreement for the maximum period allowed under applicable law.
27. Headings: The headings used in this Agreement are for convenience only and are not be
construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs
to which they refer.
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28. Severability: If any portion of this Agreement is held to be void or unenforceable, the
balance thereof shall continue in effect.
29. Applicable Law: The parties agree that this Agreement is governed in all respects by the
laws of the State of Montana.
30. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs,
legal representatives, successors, and assigns of the parties.
31. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties,
does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced
by a third party.
32. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
33. Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained herein or made a part
thereof by reference, are not binding upon the parties. There are no understandings between
the parties other than as set forth in this Agreement. All communications, either verbal or
written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless
specifically made a part of this Agreement by reference.
34. Standard of Care: In providing services under this Agreement, Consultant will perform in
a manner consistent with the degree of care and skill ordinarily exercised by members of the
same profession currently practicing under similar circumstances. If any service should be found
to be not in conformance with this standard, the Consultant shall, at the City’s request, re-
perform the service at its own expense. Consultant shall also, at its own expense, make such
changes, modifications or additions to the project which are made necessary as a result of the
initial non-performance or the re-performance of services. The City’s rights herein are in addition
to any other remedies the City may have under the law
35. Ownership and Reuse of Documents: Upon payment in full by City to Consultant for all
monies due Consultant under this Agreement, Consultant’s work products produced under this
Agreement shall become the sole property of the City. The City’s use, reuse, alteration, or
modification of the work products will be at City’s sole risk and without liability or legal exposure
to Consultant or to its officers, directors, members, partners, agents, employees, and
consultants.
36. 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.
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**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
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In witness whereof, the Parties hereto do make and execute this Agreement.
CITY OF BOZEMAN, MONTANA CONSULTANT
BY: BY:
Jeff Mihelich, City Manager Travis Eickman, Bozeman Operations Manager
DATE: DATE:
ATTEST:
BY:
Mike Maas, City Clerk
APPROVED AS TO FORM:
BY:
Greg Sullivan, City Attorney
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1
Attachment A - Scope of Services for N. 7th Streetscape Project
August 2021
This scope of services covers the following items, as noted below, for the Bozeman Midtown Urban
Renewal Board.
100. West Short Street / North 6th Street Design Assistance and Construction
Administration
Coordination with the city and contractor on numerous modifications to the West
Short Street roadway and streetscape. Work is nearing completion.
Redesign, survey, and testing and inspection for the alley just east of the Speedy
Lube entrance. Includes redesign of the southern curb between the alley and North
7th Avenue.
Review multiple iterations of the Elm building streetscape plans that were completed
by others. Coordinated with the city, contractor, and Elm site engineer on alternate
roadway solutions based on a curb that was poured lower than originally planned.
Complete inspection, testing and documentation of base material, concrete, asphalt,
and water main per City of Bozeman requirements. Record drawings will be prepared
and included with the North 7th Avenue streetscape closeout documentation.
200. Water Meter replacement coordination with the City of Bozeman
The water meter at 310 North 7th Avenue was located under the sidewalk and was out
of date. The water department at the city wanted to replace it and move it beyond the
sidewalk. We prepared estimates for the site work being completed by the on-site
contractor and coordinated with the city and contractor to have this work completed.
Work is complete.
300. Midtown Operations & Maintenance Manual
Produce an O&M manual for use by the city for guidance on operating the systems
recently installed along North 7th Avenue and West Aspen Street. Items in manual
will likely include concrete, pervious pavers, luminaires/string lights, banner arms,
plant hangers, electrical lines/appurtenances, street signs, landscaping, trees, tree
wrap, tree cells, tree grates, tree guards, planter boxes, planting soil, weed fabric, bike
racks, curb inlets, irrigation, landscaping, water meter, etc. Record drawings will be
included.
We will address the key features of the systems, inventory, product
manufacture/types, operator and/or management responsibilities, maintenance
requirements/schedule, startup/shutdowns, and key contacts.
Deliverables to include the following.
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2
· 65% review draft (for Midtown Board review).
· 95% review draft (for Midtown Board review).
· Publish final document. Four (4) hard copy manuals as well as a complete
electronic copy. Additional hard copies can be provided upon request.
400. Miscellaneous Engineering
Engineering services as requested by city staff and the Midtown Board. Currently
includes ongoing efforts coordinating intersection improvements along North 7th
Avenue with the Montana Department of Transportation and gas line coordination
with the city, contractor, and Northwestern Energy at 431 North 7th Avenue.
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Attachment A.1 - Payment for Scope of Services
City of Bozeman, MT - Midtown Engineering
North 7th Streetscape Project
Short Street CA, MDT Coordination, Operations and Maintenance Manual
Prepared For: David Fine, City of Bozeman Economic Development
Engineering Services
Staff Labor Labor Total
Task or Division Assigned Hours Rate Labor Cost
Engineer Intern II 12.00 $143.00 $1,716.00
Senior Engineer I 16.00 $163.00 $2,608.00
102. Topograhic Survey / Boundary Survey (alley
adjacent to Speedy Lube Land Surveyor II 20.00 $126.00 $2,520.00
Technical Intern II 28.00 $124.00 $3,472.00
Engineer Intern II 18.00 $143.00 $2,574.00
Technical Intern I 12.00 $109.00 $1,308.00
Technical Intern II 6.00 $124.00 $744.00
Technical Intern I 12.00 $109.00 $1,308.00
Technical Intern II 6.00 $124.00 $744.00
Technical Intern I 6.00 $109.00 $654.00
Technical Intern II 4.00 $124.00 $496.00
107. Quality Assurance/Quality Control Senior Engineer I 2.00 $163.00 $326.00
Engineer Intern II 6.00 $143.00 $858.00
Senior Engineer I 3.00 $163.00 $489.00
151.00 $19,817.00
Engineer Intern II 6.00 $143.00 $858.00
Senior Engineer I 2.00 $163.00 $326.00
Technical Intern I 4.00 $109.00 $436.00
Technical Intern II 2.00 $124.00 $248.00
14.00 $1,868.00
Engineer Intern II 16.00 $124.00 $1,984.00
Senior Engineer I 8.00 $163.00 $1,304.00
Engineer Intern II 12.00 $124.00 $1,488.00
Senior Engineer I 4.00 $163.00 $652.00
Engineer Intern II 10.00 $124.00 $1,240.00
Senior Engineer I 4.00 $163.00 $652.00
Engineer Intern II 8.00 $124.00 $992.00
Senior Engineer I 4.00 $163.00 $652.00
305. Landscape Architect Consultant (TBD)Markup Not to Exceed 1.05 Rate Schedule $0.00 $4,725.00
306. Quality Assurance/Quality Control Senior Engineer I 4.00 $163.00 $652.00
70.00 $14,341.00
401. Miscellaneous Engineering - Additional
Requested Not to Exceed Rate Schedule $0.00 $6,000.00
0.00 $6,000.00
235.00 $42,026.00
Direct Expenses Charge Rate Total Expense
Vehicle (mi)$0.68 $278.80
Soil Proctor $400.00 $0.00
Nuclear Density Meter (days)$35.00 $105.00
Concrete Strength Testing (4 sets)$200.00 $800.00
Mylar Record Drawings (sets)$450.00 $0.00
Miscellaneous Expense (1.0%)1.0%$420.26
Survey Equipment (day)$240.00 $600.00
$2,204.06
$44,230.06
Rounded to an even $44,230.00
0
2.5
4
410
$42,026.00
Subtotal - Construction Phase
201. Coordinate with City and Contractor
3
Subtotal - Bidding or Negotiation Phase
400 - Miscellaneous Engineering
Project Total - Engineering Services
Subtotal - Engineering Services Direct Expenses
Subtotal - Engineering Services Labor Costs
Quantity or Duration
0.00
101. Review and coordinate design, on-site meetings
(C&H design)
Subtotal - Final Design Phase
100 - West Short Steet / North 6th Street Design Assistance and Construction Administration
200 - Water Meter Replacement Coordination
300 - Midtown Operations and Maintenance Manual
301. Document Outline and Research
104. Concrete Strength, Air, Temp, Slump (Flatwork)
(The ELM ROW - Short / 6th))
105. Subgrade and Base Densities (The ELM ROW -
Short / 6th)
103. Resident Project Representative -Inspection
Subtotal - Miscellaneous Services
106. Hydrant Inspection (The ELM ROW - Short / 6th)
108. Final Closeout / Record Drawings
202. Subgrade and Base Densities
303. 2nd Review Draft (Parks, Forestry,
Sustainability, Engineering)
302. 1st Review Draft (Parks, Forestry, Sustainability,
Engineering)
304. Final Review Draft (Parks, Forestry,
Sustainability, Engineering)
N:\0417\063\Contracts-Client\New Contract_2021\Attachment A - Eng Fee_Midtown 2021.xls 8/23/2021
142
1700 W. Koch Street, Unit 6
Bozeman, MT 59715 406-570-3784 office@greatergallatin.com
EXECUTIVE PROPOSAL
October 4, 2021
Kevin Jacobsen
Sr. Civil Engineer
Morrison-Maierle
Bozeman, MT
(406)-922-6823
RE: N. 7th O&M Manual
Dear Kevin,
We appreciate the opportunity to provide a proposal to develop a landscape operations and
maintenance manual for the N. 7th project. As the landscape contractors of the project, we find it
appropriate to be the ones to describe the systems in place that we installed. In addition, we
provide over 15 years of commercial landscape and irrigation maintenance experience and have a
full understanding of what it will take for the City to maintain our installation.
Project Understanding
This document serves as an outline for our scope of services and fees to provide the landscape
operations and maintenance documentation you have requested. Below is a list that frames our
understanding of the project based on our recent conversations:
Morrison-Maierle is to supply Greater Gallatin Landscape Contractors with the outline/
template of the document in which the landscape maintenance and operations portion will
be incorporated into.
Morrison-Maierle is to seek out detail drawings from DMH Design to be used and be
modified into exhibits for the operations and maintenance manual.
The scope of work covers all landscape work that was completed on N. 7th Ave. and W.
Aspen Street. The drafted document will cover the following topics:
o Tree species planted, tree replacement instructions, tree grates, tree maintenance
and pruning.
143
1700 W. Koch Street, Unit 6
Bozeman, MT 59715 406-570-3784 office@greatergallatin.com
o Soil cells, soil amendments, and soil cell utility replacement instructions.
o Pervious pavers, paver maintenance and replacement. o Irrigation, hook ups, as built drawing layout, and winterizing. o Planter boxes, soil, maintenance, and weed fabric.
o Bike racks, maintenance and repairs.
Additional landscape topics may be added as documentation progresses.
A maintenance schedule and an outline of approximate anticipated costs will be added into
the document.
As built drawings, detail drafting, site photos will be incorporated into the document as
exhibits. Greater Gallatin Landscape Contractors and Morrison-Maierle are to collaborate on
exhibit layout/standards for the document prior to commencing work. This is to ensure the
document remains consistent.
65% Operations & Maintenance Draft Document
This progress document will include all required text for the documentation for each of the topics
listed above. During this phase, some details and exhibits will be drafted or used as placeholders in
the document. Greater Gallatin Landscape Contractors will send the documentation back for your
review and feedback before proceeding.
95% Operations & Maintenance Draft Document
At this time, we will incorporate any feedback and begin fully drafting any of the plans/ details/
exhibits that are required to help describe the processes and maintenance needed. Greater
Gallatin Landscape Contractors will send the documentation back for final comments and review.
Document Polishing
At this stage, any remaining comments will be addressed, and any remaining edits will be made to
create a polished document for completion.
Fee Proposal
The following design fee structure is based on the scope of work listed above and is tallied on a
lump sum basis. This proposal is valid for 90 days. After that time, we reserve the right to
renegotiate the proposed fees.
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1700 W. Koch Street, Unit 6
Bozeman, MT 59715 406-570-3784 office@greatergallatin.com
Documentation Process
65% Draft Document …………………………………………………… $2,500
95% Draft Document …………………………………………………… $1,500
Polished Document …………………………………………………..…. $500
$4,500
Based on current workload, we estimate that the design process will begin in the late fall-winter
timeframe. Exact due dates will be established by Morrison-Maierle.
Thank you for considering Greater Gallatin Landscape Contractors for this opportunity. We are
confident that you will find our work to be well thought out, detailed, and comprehensive. We look
forward to collaborating with you on this project. In the meantime, if you have any questions, please
feel free to reach out to us.
Sincerely,
Mark Haarer
Mark Haarer
Principal
By signing this document, you understand and agree to the scope of work that Greater Gallatin
Landscape Contractors will perform. Any additional work beyond this scope will be evaluated as a
change order.
________________________________________________ __________________
Signature Date
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Memorandum
REPORT TO:City Commission
FROM:Lance Lehigh, PE, CFM, Interim City Engineer
Scott Shirley, Interim Public Works Director
SUBJECT:Authorize the City Manager to Sign an Amendment 1 to the Professional
Services Agreement with Advanced Engineering and Environmental Services,
Inc. for the Bozeman Wastewater Collection System Model Update
MEETING DATE:November 9, 2021
AGENDA ITEM TYPE:Agreement - Vendor/Contract
RECOMMENDATION:Authorize the City Manager to sign an amendment no. 1 to the professional
services agreement with Advanced Engineering and Environmental Services,
Inc. for the Bozeman Wastewater Collection System Model Update.
STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and
maintenance for existing and new infrastructure.
BACKGROUND:The City’s Wastewater Collection Facilities Plan Update (Plan) was last
completed in 2015. The Plan evaluated existing infrastructure capacity,
identified system deficiencies, determined future infrastructure needs, and
ultimately provided a roadmap for the development of a comprehensive
facilities plan that addressed both present and future system requirements.
The Plan also identified the need for several future lift stations in the
northwest quadrant of the overall service boundary in order to support
future growth and development, specifically, the Hidden Valley Lift Station
(HVLS). The HVLS service area, also known as the Baxter Creek Drainage
Basin, is approximately 1,300 acres and is located northwest of the
intersection of East Valley Center Road & East Valley Center Road Spur (see
attached Exhibit A).
In 2020, Advanced Engineering and Environmental Services (AE2S) was
selected to complete an update of the City’s wastewater collection model
(Phase I) and wastewater collection facility plan (Phase II). Phase I of the
project is currently under contract with Phase II anticipated to be completed
summer of 2022.
As of recent, a private development has requested that the City evaluate and
ultimately consider the possibility of splitting the HVLS into two smaller lift
stations instead of one single large lift station as shown in the adopted 2015
Plan. Splitting the HVLS into two smaller lifts stations could create a more
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logical buildout approach to the northwest as well as provide sewer service
to available land adjacent to the City’s existing service boundary. If the
evaluation demonstrates that two smaller lift stations are a practical
approach, then this stand-alone analysis would formally amend the adopted
2015 Plan in regards to the HVLS, and the findings would be incorporated
into Phase II of the current facility planning effort.
Lastly, the City would allow the proposed private development to proceed
under the amended lift station analysis, which would open a significant
portion of developable land west of Davis Lane.
The HVLS is currently unscheduled within the City’s capital improvement
plan and the City does not have the funds in place to pay for a new lift
station. The private development would be responsible for the design,
construction, and associated infrastructure as identified in the analysis. The
lift station would be formally reviewed by the City’s engineering department
throughout the entire process. Upon completion and acceptance by the City,
the City would take ownership of the new lift station along with the cost
accompanying long-term operation and maintenance in perpetuity.
The attached Amendment No. 1 to the Professional Services Agreement
(PSA) with AE2S is to evaluate splitting the HVLS into two smaller lift stations
as presented in Exhibit A of the amendment.
UNRESOLVED ISSUES:None.
ALTERNATIVES:As suggested by the Commission.
FISCAL EFFECTS:The negotiated scope and fee for Amendment No. 1 totals $15,680. The
project is privately funded by Virga Capital, a private development company
looking to build a new subdivision in the identified HVLS service area.
Sufficient funding is available for the project.
Attachments:
Amendment No. 1 to Professional Services Agreement
Original Professional Services Agreement
Figure - Exhibit A
Report compiled on: October 25, 2021
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Engineer’s Project #: P05097-2018-006 Page 1 of 2
Amendment No. 1 to Professional Services Agreement
for: Wastewater Collection System Model Update – Phase 1
THIS AGREEMENT is made as of this ________ day of ____________________, 20 ,
between THE CITY OF BOZEMAN, a Municipal Corporation, Bozeman, Montana, herein referred
to as CITY and Advanced Engineering and Environmental Services, LLC an Engineering Consulting
Firm of Bozeman, Montana, herein referred to as Consultant.
WHEREAS, the parties have entered into a Professional Services Agreement dated February
24, 2020, herein referred to as Original Agreement for professional engineering services; and
WHEREAS, the parties desire to further amend the provisions of this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS
CONTAINED HEREIN, the parties agree as follows:
Amend Section 1. Purpose: of the Original Agreement to add a new paragraph to read: City and
Consultant agree to incorporate and Consultant agrees to perform additional Scope of Services attached
hereto as “Attachment A – Wastewater Collection System Model Update – Phase 1 – Amendment 1”.
Amend Section 4. Payment for Scope of Services: of the Original Agreement to add a new
paragraph to read: City agrees to pay Consultant for the completion of the additional Scope of Services
attached hereto as “Attachment A – Wastewater Collection System Model Update – Phase 1 –
Amendment 1” a lump sum amount of $15,680.00. The Consultant’s billing rates in $/hr for its
employees are included with this Attachment A as Table 1.
Except as specifically amended herein, the Original Agreement shall remain in full force and effect and
the Parties shall be bound by all terms and conditions therein.
IN WITNESS WHEREOF, the parties hereto do make and execute this Agreement on the day
and year first above written.
CITY OF BOZEMAN
___________________________________
Jeff Mihelich
City Manager
ATTEST:
________________________________________
Mike Maas
City Clerk
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Engineer’s Project #: P05097-2018-006 Page 2 of 2
APPROVED AS TO FORM
____________________________________
Greg Sullivan
City Attorney
CONSULTANT
By:_______________________________________
Its:______________________________________
ATTEST:
By:___________________________________
Operations Manager
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Attachment A of Amendment No. 1 to Professional Services Agreement for:
Wastewater Collection System Model Update – Phase I
Page 1 of 1
ATTACHMENT A – Wastewater Collection System Model Update – Phase 1 – Amendment 1
DESCRIPTION OF SERVICES:
Gallatin Meadows Subdivision Wastewater Collection System Analysis:
CONTRACTOR will evaluate the proposed Gallatin Meadows Subdivision adjusted sewershed,
proposed private lift station and alternative location for a regional lift station. CONTRACTOR will
analyze collection system scenarios in hydraulic model. This work will include:
· Delineate new / revised sewersheds served by the proposed private lift station and
alternative regional lift station.
· Compute full build-out wastewater demand to new private lift station and alternative
regional lift station.
· Determine require pump(s) size for each lift station.
· Develop recommended subdivision sewer network layout, including pipe size and
invert elevations.
· Develop forcemain alignment and size and connection point for each lift station.
· Develop model scenario to reflect proposed private lift station and alternative
regional lift station.
· Summarize data used, calculations, methods, assumptions, and results of private lift
station analysis in a Technical Memorandum.
Deliverable: Technical Memorandum.
Table 1: Hourly Billing Rates for Personnel to be Utilized on Amendment No. 1
Personnel, Classification Hourly Labor Rate
Zach Magdol, Engineer III $168.00
Donovan Voeller, Engineer III $168.00
Maddie Thompson, Engineer I $119.00
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Memorandum
REPORT TO:City Commission
FROM:Michael Veselik, Parking Manager
Brit Fontenot, Economic Development Director
SUBJECT:Authorize the City Manager to Sign the Second Amendment to Professional
Services Agreement with MacDonald Consulting for Lobbying Services
MEETING DATE:November 9, 2021
AGENDA ITEM TYPE:Agreement - Vendor/Contract
RECOMMENDATION:Approve
STRATEGIC PLAN:1.3 Public Agencies Collaboration: Foster successful collaboration with other
public agencies and build on these successes.
BACKGROUND:The City of Bozeman is increasing the not to exceed limit on its contract with
MacDonald consulting from $5,000 to $10,000. When entering the interim
session, staff and the lobbyists did not anticipate the increased activity of
the legislature due to COVID-19 relief funding and work related to future
land use planning and affordable housing. The interim session is a critical
time for the City to get involved in how legislation is being considered ahead
of the short 90-day biannual session.
UNRESOLVED ISSUES:No Unresolved Issues.
ALTERNATIVES:Discontinue the city's lobbying efforts in the interim session.
FISCAL EFFECTS:Up to $5,000.
Attachments:
Second PSA Amendment for lobbying services with
MacDonald Consulting.docx
Report compiled on: October 28, 2021
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XXX Amendment to Professional Services Agreement for [insert from original PSA]
FY 202x – FY 202x
Page 1 of 2
SECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT
THIS SECOND AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT
FOR lobbying services dated October 20, 2020 (the “Agreement”) is made and entered into this
9th day of November, 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 John MacDonald Consulting, 512
Clark St, Helena, MT, hereinafter referred to as “Contractor.”
In consideration of the mutual covenants and agreements herein contained, the receipt and
sufficiency whereof being hereby acknowledged, the parties hereto agree to amend the Agreement
as follows:
1.Updated Fee Schedule. During the interim session the contractor will continue to bill the
City of Bozeman at a rate of $110/hour for lobbying services provided to include legislative
monitoring, research, and testimony on topics of interest to the City and as identified by
the City Manager or their designated representative. The City is increasing the not to
exceed limit to $10,000 from the original $5,000. This increase reflects the additional
amount of work in this interim legislative session.
2.Agreement still valid. All remaining terms and provisions of the Agreement remain valid.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
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XXX Amendment to Professional Services Agreement for [insert from original PSA]
FY 202x – FY 202x
Page 2 of 2
IN WITNESS WHEREOF,the parties hereto have executed this instrument the day and
year first above written.
CITY OF BOZEMAN, MONTANA JOHN MACDONALD CONSULTING
By________________________________By_____________________________
Jeff Mihelich, City Manager Print Name: John MacDonald
Title: Owner/Manager
APPROVED AS TO FORM
By_______________________________
Greg Sullivan, Bozeman City Attorney
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Memorandum
REPORT TO:City Commission
FROM:Jim Veltkamp, Chief of Police
SUBJECT:Resolution 5351 Confirming the Appointment of a Police Officer in
Accordance with Montana Code Annotated 7-32-4108 and 7-32-4113
MEETING DATE:November 9, 2021
AGENDA ITEM TYPE:Resolution
RECOMMENDATION:Approve Resolution 5351, confirming the appointment of a police officer in
accordance with Montana Code Annotated 7-32-4108 and 7-32-4113.
STRATEGIC PLAN:7.2 Employee Excellence: Recruit, retain and value a diverse, well-trained,
qualified and motivated team capable of delivering superior performance.
Be accountable and expect accountability from others. Make demonstrated
use of good judgement a part of the evaluation process for promotions.
BACKGROUND:
Section 7-32-4108, Montana Code Annotated, provides that all appointments
to the “police force” must be confirmed by the City Commission.
Section 7-32-4113, Montana Code Annotated, requires that in order to be
submitted to the City Commission for confirmation, every applicant will have
passed an examination and received a certificate from the police commission
noting that the applicant has qualified for appointment. Additionally, the
applicant must successfully complete a probationary period before being
submitted to the City Commission for confirmation as a member of the
“police force.”
Officer Daniel Fitzpatrick has met the above-noted requirements and has
successfully completed his probationary period. As such, Resolution Number
5351 was written to confirm his appointment.
UNRESOLVED ISSUES:None.
ALTERNATIVES:As suggested by the City Commission.
FISCAL EFFECTS:None.
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Attachments:
Commission Resolution - Fitzpatrick Confirmation.pdf
Report compiled on: October 20, 2021
184
RESOLUTION NO. 5351
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA, CONFIRMING THE APPOINTMENT OF A POLICE OFFICER IN
ACCORDANCE WITH MONTANA CODE ANNOTATED 7-32-4108 AND 7-32-4113.
WHEREAS, Section 7-32-4108, Montana Code Annotated, provides that all appointments
to the “police force” must be confirmed by the city council or commission; and
WHEREAS, the following listed officer has passed the required examinations, has been
certified by the Police Commission, has successfully completed the probationary period, and has
been appointed to the City’s police force by the chief of police.
NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of
Bozeman, Montana: that the following listed officer is confirmed as a member of the Bozeman
Police Department.
DANIEL FITZPATRICK
PASSED, ADOPTED, AND APPROVED by the City Commission of the City of
Bozeman, Montana, at a regular session thereof held on the 9th day of November, 2021.
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__________________________________
CYNDY ANDRUS Mayor
ATTEST:
____________________________________ MIKE MAAS City Clerk
APPROVED AS TO FORM:
___________________________________
GREG SULLIVAN City Attorney
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Memorandum
REPORT TO:City Commission
FROM:Bob Murray, Project Engineer
Scott Shirley, Interim Director of Public Works
SUBJECT:Resolution 5352 Authorizing Change Order 4 with COP Construction for the
Davis Lane Lift Station and Norton East Ranch Outfall Sewer Project
MEETING DATE:November 9, 2021
AGENDA ITEM TYPE:Resolution
RECOMMENDATION:Approve Resolution 5352 Authorizing Change Order No. 4 with COP
Construction for the Davis Lane Lift Station and Norton East Ranch Outfall
Sewer Project.
STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and
maintenance for existing and new infrastructure.
BACKGROUND:Attached is a copy of Resolution 5352 and change order number 4 for the
above referenced project. The purpose of the change is to provide a final
reconciliation of all of the unit priced items. Although not typically done on
City projects, it is required when funding agencies are involved as is the case
here. During the design of projects, the quantities for all of unit price items
are estimated for the purposes of bidding. During the course of the work,
the actual amount of work completed for each item is paid. At the end of
the project, the reconciliation change order is executed to contractually
establish the final quantities and set the final contract amount. In this case
between the extra work on the project and the differences in quantities
installed, the final contract amount is $15,679,499.52 or $807,987.48 less
than the contract award amount.
UNRESOLVED ISSUES:None.
ALTERNATIVES:As suggested by the City Commission.
FISCAL EFFECTS:Establishes the final contract amount at $15,679,499.52, a reduction of
$807,987.48 from the contract award amount.
Attachments:
Norton-Davis Resolution 5352 and Change Order No. 4.pdf
Report compiled on: October 25, 2021
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Memorandum
REPORT TO:City Commission
FROM:Anna Saverud, Assistant City Attorney
Greg Sullivan, City Attorney
SUBJECT:Ordinance 2084 Final Adoption: Ordinance Generally Revising Laws and
Regulations Related to Marijuana
MEETING DATE:November 9, 2021
AGENDA ITEM TYPE:Ordinance
RECOMMENDATION:I move to approve Ordinance 2084: Generally Revising Laws and Regulations
Related to Marijuana and the Montana Marijuana Regulation and Taxation
Act.
STRATEGIC PLAN:3.1 Public Safety: Support high quality public safety programs, emergency
preparedness, facilities, and leadership.
BACKGROUND:
In November 2020, Montanan’s voted to approve Constitutional Initiative
118 and Initiative 190, legalizing recreational marijuana for those 21 years of
age and older and establishing a regulatory framework for legalization.
During the 2021 Montana Legislative Session, House Bill 701 became the
omnibus marijuana bill which amended and replaced much of I-190 and
created the Montana Marijuana Regulation and Taxation Action codified in
Title 16, Chapter 12, MCA.
The sale of recreational marijuana and other marijuana businesses related to
recreational use, including cultivating, manufacturing, transporting, testing,
etc. are legal beginning January 1, 2022. Ordinance 2084 is proposed to
bring the Bozeman Municipal Code into compliance with state law and allow
the city to plan and prepare for what the future of the marijuana industry
will look within in the city.
UNRESOLVED ISSUES:
During first read of Ordinance 2084 on October 19, 2021, the City
Commission voted 3-2 to amend Section 4 of the proposed ordinance
language and revise the separation requirements in 38.360.180 to mirror
those in HB 701.
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Similar separation requirements exist for alcohol establishments in state law
and specific administrative rules for alcohol establishments have been
adopted to assist the state with licensing. To date, the Department of
Revenue (DOR) has not adopted administrative rules as to how the
separation requirements will be measured for marijuana businesses. DOR
will draw on ARM 42.12.129 (related to alcohol establishments) for guidance
when issuing marijuana licenses, but issues remain concerning
postsecondary schools. The postsecondary school separation requirement is
unique to marijuana businesses. Under ARM 42.12.129, separation
measurements rely on physical addresses and separation is only required
when the addresses of the school/place of worship and alcohol
establishment have physical addresses on the same street. Buildings on
postsecondary campuses such as MSU campus typically do not have physical
street addresses. This creates a unique issue for municipalities with
postsecondary campuses and marijuana businesses as DOR has not
developed rules to implement the separation requirements passed in HB
701. Staff has confirmed with DOR that rules further interpreting separation
requirements are not currently being drafted and thus this gray area will not
have clarification before January 1, 2022. Staff identifies this to inform the
Commission of the uncertainty at the state level and the effects of the
amendment.
ALTERNATIVES:Amend or revise as deemed appropriate by the City Commission.
FISCAL EFFECTS:Unknown. Considerable staff time will be transitioning from medical
marijuana licensing to recreational licensing, and reviewing applications and
separation requirements. The City Commission passed Resolution 5348
setting an annual fee of $750.00 for a marijuana business to offset costs.
Attachments:
ORDINANCE NO 2084 Final Adoption.pdf
HB0701 final.pdf
Report compiled on: October 27, 2021
194
ORDINANCE NO. 2084 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA GENERALLY REVISING LAWS AND REGULATIONS RELATED TO
MARIJUANA AND THE MONTANA MARIJUANA REGULATION AND TAXATION
ACT.
WHEREAS, the City of Bozeman (the “City”) is authorized by the City Charter and
Montana law to establish programs and laws to protect public the health, safety and welfare of the
citizens of Bozeman; and
WHEREAS, pursuant to its Charter, the Montana Constitution, and state law, the City may
exercise any power not prohibited by the constitution, law or charter and neither the Montana
Constitution, state law, or the City Charter prohibits the City Commission from adopting this
Ordinance; and
WHEREAS, Title 7, Chpt. 5, Part 1, Montana Code Annotated (MCA), provides standards
and procedures for adoption of local ordinances; and
WHEREAS, Title 76, Chpt. 2, Part 3, MCA, authorizes municipalities to enact zoning to
regulate the use and development of land and the activities of individuals and businesses within its
boundaries subject to certain standards of procedure; and
WHEREAS, the citizens of the State of Montana voted to approve Constitutional Initiative
118 and Initiative No. 190 (I-190) in November 2020, which became effective January 1, 2021
and legalized recreational marijuana use and limited possession for adults over the age of 21 and
provided a framework for commercial licensing, taxation, decriminalization and expungement of
criminal convictions related to marijuana amongst other provisions; and
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Page 2 of 14
Ordinance 2084: Generally Revising Laws and Regulations Related to Marijuana
WHEREAS, the Montana Legislature passed, and Governor Gianforte signed into law,
House Bill 701 (“HB 701”) which revised, amended and supplemented the text of I-190 and
established the Montana Regulation and Taxation Act (16-12-101, MCA et seq. (the “Act”)); and
WHEREAS, a codified purpose of the Act pursuant to Section 37 amending Section 16-
12-101(2(j), MCA is to provide local governments authority to allow for the operation of marijuana
businesses in their community and establish standards for the cultivation, manufacture, and sale of
marijuana that protect the public health, safety, and welfare of residents within their jurisdictions;
and
WHEREAS, Section 59 of the Act pursuant to Section 16-12-301, MCA, provides that to
protect the public health, safety, or welfare, a local government may by ordinance or otherwise
regulate a marijuana business that operates within the local government’s jurisdictional area; and
WHEREAS, Section 54 of the Act pursuant to Section 16-12-207, MCA, provides a
locality may require marijuana businesses be a greater distance from schools and places of worship
then required by state law; and
WHEREAS, the City Commission understands the need to create specific provisions
related to the licensing of marijuana businesses to ensure those businesses and their employees are
in full conformance with the Act and the Bozeman Municipal Code; and
WHEREAS, the City Commission reviewed and considered the relevant Unified
Development (UDC) text amendment criteria established by Title 76, Chpt. 2, Part 3, MCA and
found the proposed UDC text amendments to be in compliance with the purposes of zoning as
locally adopted in Section 38.100.040, BMC; and
WHEREAS, at its public hearing, the City Commission found that the proposed UDC text
amendments would be in compliance with Bozeman’s adopted growth policy and applicable
statutes and would be in the public interest; and
WHEREAS, marijuana continues to be classified as a Schedule I narcotic under the federal
Controlled Substances Act and under Sec. 50-32-222, MCA, such that the cultivation, distribution,
and possession of marijuana, except as provided for in the Act, constitutes criminal activity; and
WHEREAS, the City Commission finds a legitimate governmental interest in regulating
the locations where a marijuana business may be located and in licensing marijuana businesses
and in doing so confirming such locations are in compatible zoning districts and adequately
distanced from schools and places of worship to protect the general health, safety or welfare of the
citizens of Bozeman.
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NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF BOZEMAN, MONTANA:
Section 1
That the entirety of current Chapter 16, Article 8 of the Bozeman Municipal Code shall
repealed and replaced with the following:
Article 8: Marijuana
Division 1. Generally
Sec. 16.08.150. – Purpose; Applicability; failure to maintain state licensure
A. The purpose of this article is to implement the provisions of the Montana Marijuana
Regulation and Taxation Act (MCA 16-12-101 et seq. (the “Act”)). The provisions of this
article shall apply to all marijuana business within the city, including both medical and
recreational marijuana cultivation, manufacturing, transporting, testing and dispensaries,
unless otherwise stated herein.
B. Any individual or entity licensed under this article to conduct any marijuana business, in
addition to the requirements of this article, is subject to all other requirements of this code,
the Act, and any applicable administrative rules established by the state or city. Should
such rules or laws change, any person or entity licensed under this article shall immediately
come into compliance with any newly adopted rules.
C. Notwithstanding the above, nothing in this code shall be construed to authorize any
individual or entity to perform any act or conduct any enterprise not in conformance with
state law.
D. Compliance with this code does not shield any person, corporation, or other legal entity
from the requirements of, or enforcement by, other governing entities, or from civil
liabilities.
E. Each individual or entity issued a license under this article shall at all times maintain
authorization from the state to acquire, possess, cultivate, manufacture, deliver,
transfer, test, transport, dispense or sell marijuana. Failure to maintain applicable
licensure(s) with the state is cause for immediate suspension of a license issued under
this article, may be cause for revocation resulting in a moratorium on an individual or
entity’s ability to engage in marijuana business, and may be cause for criminal
prosecution as provided by law.
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Sec. 16.08.160. - Incorporation of state law
For the purposes of this article, words, phrases and expressions, not otherwise defined below, are
subject to the definitions set forth in 16-12-102, MCA. The provisions of state code and any rules
or regulations promulgated thereunder are incorporated herein by reference except to the extent
that more restrictive or additional regulations are set forth in this article.
Sec. 16.08.170. – Definitions
The following words, terms and phrases, when used in this article, shall have the meanings ascribed
to them in this section.
A. “Adult-use dispensary” means a premises licensed by the state from which
marijuana or marijuana products may be sold and obtained by registered cardholders,
persons 21 years of age or older, or both.
B. “Cultivator” means a person licensed by the state to plant, cultivate, grow, harvest, and
dry marijuana; or a person licensed by the state to package and relabel marijuana produced
at the location in a natural or naturally dried form that has not been converted, concentrated,
or compounded for sale though a licensed dispensary.
C. “Dispensary” means both an adult-use dispensary and/or a medical marijuana
dispensary.
D. “Licensee” means a person holding a state license issued pursuant to state law and a
city marijuana license.
E. “Manufacturer” means a person licensed by the state to convert or compound marijuana
into marijuana products, marijuana concentrates, or marijuana extracts and package,
repackage, label, or relabel marijuana products as allowed under state law and this article.
F. “Marijuana” means all plant material from the genus Cannabis containing
tetrahydrocannabinol (THC) or seeds of the genus capable of germination. This term does
not include hemp and its derivatives as specified in §16-12-102(20)(b) or (c), MCA.
G. “Marijuana business” means a cultivator, manufacturer, adult-use dispensary, medical
marijuana dispensary, combined-use marijuana licensee, testing laboratory, marijuana
transporter, or any other marijuana business or function that is licensed by the state and
city.
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H. “Marijuana product” means a product that contains marijuana and is intended for use
by a consumer by a means other than smoking. The term includes but is not limited to
edible products, ointments, tinctures, marijuana derivatives, and marijuana concentrates.
I. “Medical marijuana” means marijuana or marijuana products that are for sale solely to
a cardholder who is registered with the state.
J. “Medical marijuana dispensary” means the location from which a registered cardholder
may obtain marijuana or marijuana products.
K. “Registered cardholder” or “cardholder” means a Montana resident with a debilitating
medical condition who has received and maintains a valid registry identification card issued
by the state.
L. “Testing laboratory” means the qualified person licensed by the state that provides
testing of representative samples of marijuana and marijuana products; and provides
information regarding the chemical composition and potency of a sample, as well as the
presence of molds, pesticides, or other contaminants in a sample.
Division 2. Licensing and Sales
Sec. 16.08.180. – License, Fees, Regulations and Procedures
A. Marijuana License required. Any individual or entity desiring to operate a marijuana business
within the city must first obtain, and at all times while operating have, a marijuana license issued
by the city. No separate business license is required by the city; all requirements are contained in
this article. Applications should be submitted for approval to the Director of Community
Development.
A person or entity desiring to engage in a marijuana business within the city must, along with an
application for a city marijuana license, submit a copy of their state license(s) for the marijuana
business. If an applicant does not yet have a state license, conditional approval that the proposed
marijuana business meets the requirements of chapter 38 of this code may be issued by the city. A
marijuana business may not begin growing, manufacturing, testing, transporting, dispensing or
otherwise selling marijuana or marijuana products without a state license and final marijuana
license approved by the city.
B. Types of marijuana businesses permitted in the city. Marijuana licenses are available for the
following types of marijuana businesses permitted by the state within the city: canopy,
manufacturing, transporting, dispensary, and testing. All marijuana businesses are subject to state
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law, the provisions set forth below, and applicable zoning provisions in chapter 38 of this code,
including but not limited to, the provisions set forth in 38.360.180.
1. Marijuana Canopy License: Any cultivator licensed by the state must have a city
issued canopy license. Only indoor cultivation is permitted within the city. Marijuana
plants may not be visible by normal, unaided vision from a public place. All marijuana
plants must be housed in a secured and locked space.
2. Marijuana Manufacturing License: Any manufacturer licensed by the state must
have a city marijuana manufacturing license.
3. Marijuana Dispensary License: A marijuana dispensary license is required for all
dispensaries. No on premise consumption or smoking of marijuana or marijuana products
is permitted at a dispensary located within the city.
4. Marijuana Testing License: Any testing laboratory licensed by the state and located
within the city is required to obtain a city marijuana testing license. Testing laboratories
located outside the city but obtaining samples and testing marijuana and marijuana products
obtained within the city limits are not required to obtain a marijuana testing license.
5. Transporting Marijuana License: Any individual or entity licensed by the state that
as a business, provides any logistics, distribution, delivery, or storage of marijuana and
marijuana products with the city limits must obtain a city marijuana transporters license.
No marijuana or marijuana products may be stored at the transporters residence where
commercial activity is prohibited by applicable zoning and or prohibited by home based
business requirements. A marijuana transporter who obtains a licensed premises in which
to temporarily store marijuana or marijuana products must disclose so on the application
to the city, and ensure the location meets all state and location regulations. No separate
license is needed for the storage premises. Delivery of marijuana and marijuana products
is permitted between one or more legally licensed marijuana businesses or to registered
medical marijuana cardholders.
C. Fee. Marijuana license fees and allocation of fees shall be established by resolution of the city
commission.
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Sec. 16.08.190 – Administrative procedures; Application requirements.
The Director of Community Development may adopt and from time to time amend, administrative
procedures to implement this article. Administrative procedures may include, but are not limited
to, determining necessary information required for applications, determining an orderly transition
for medical marijuana businesses currently licensed by the city prior to the [effective date of
ordinance], and any application revisions or administrative procedures necessary in order
effectuate the provisions of this article.
Sec. 16.08.200. – Renewal, multiple establishments, multiple types of marijuana businesses,
transfer.
A. Annual Renewal. Licenses issued under this article must be renewed annually.
B. Separate license for multiple establishments. A license must be obtained in the manner
prescribed herein for each branch establishment or location of a marijuana business, as if each such
branch establishment or location were a separate business.
C. Single license required for multiple marijuana business activities occurring at same location
with same owner. A separate city marijuana license is not required for each type of marijuana
business occurring at the same location, so long as the operations belong to and are controlled by
the same legal entity for each marijuana businesses. Applicants seeking a city marijuana license
who engage in two or more marijuana businesses at the same location must disclose the various
marijuana businesses that will occur at the location, and must provide proof of applicable state
licensures for each marijuana business and ensure compliance with chapter 38 of this code prior
to conducting any marijuana business within the city.
D. Change of location. A licensed marijuana business may change the location of the licensed
business provided that the licensee shall comply with zoning, building, engineering, and fire
regulations. A change in location requires a new marijuana license application and fee be submitted
for approval.
E. No transfer of license. City marijuana licenses may not be transferred. Any change in ownership
requires a new city license be obtained in the manner prescribed herein.
F. No license required. No marijuana license is required for individuals or businesses engaged in
professional activities related to marijuana businesses whose work occurs in premises where
marijuana or marijuana products are not physically present or handled, including but not limit a
duly licensed medical doctor who reviews a person's medical condition for purposes of
recommending medical marijuana and who does not provide marijuana to a registered cardholder.
No marijuana license is required for those who pass through or enter into the city
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within the scope and course of their employment related to marijuana business but who do not
conduct their operations or business in the city.
Sec. 16.08.210. – Denial, Suspension, or Revocation of marijuana business licensure
A. The city may deny, suspend, or revoke a license for a marijuana business if the city has
reasonable cause to believe the licensee has, or the issuance of the city license to the licensee
would, violate a provision of this code or state law. The City Manager may suspend or revoke any
marijuana license if it learns a licensee’s state license(s) have been suspended or revoked. A
licensee’s city marijuana license shall remain suspended until a final adjudication on the state
license, including any penalty imposed by the state has been satisfied and the state license is
reinstated. While a license is suspended or revoked, a marijuana business is prohibited from
engaging in marijuana business within the city. A marijuana business operating without a license
may result in criminal prosecution under Title 45, MCA.
B. An applicant may appeal any decision of the city to deny, suspend, or revoke a marijuana
license provided for by this chapter to the 18th Judicial District Court. An appeal must be made by
filing a complaint setting forth the grounds for relief and the nature of relief demanded with the
district court within 30 days following receipt of notice of the city’s final decision.
Sec. 16.08.220. – Inspection.
As a condition of receiving a marijuana license under this article, a city employee, including but
not limited to all police, fire, building inspectors, city engineers, zoning officials, and other
employees or officials designated by the city manager, may without notice during normal business
hours inspect any premises under license pursuant to this article to determine compliance with the
Act and any other state or local regulations. All persons authorized herein to inspect licensees and
businesses shall have the authority to enter, with or without search warrant, during normal business
hours, premises which require a marijuana license, premises holding a marijuana license, and
premises for which the marijuana license has been suspended or revoked.
Sec. 16.08.230. State law superseded and applicable.
The provisions of this article shall supersede the Act in so far as this division expands the
limitations on the use of marijuana authorized under by the Act. All other provisions of state law
related to marijuana shall be applicable.
Sec. 16.08.240. No private right of action.
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Nothing in this article shall be construed to create a private right of action regarding the acquisition,
possession, cultivation, manufacture, delivery, transfer, transport, sale or dispensing of marijuana.
Section 2
That Chapter 12 of the Bozeman Municipal Code shall be amended as follows and any
sections not amended herein shall remain in effect:
Sec. 12.01.010. – Definitions.
A. The following words, terms and phrases, when used in this chapter and other related
regulations in this Code, shall have the meanings ascribed to them in this section, except
where the context clearly indicates a different meaning:
7. "Marijuana" and "usable marijuana" have the meanings as defined in the Montana
Marijuana Act (MCA 50-46-301 et seq.).
8. "Marijuana" means the uses of marijuana as authorized pursuant to and defined in the
Montana Marijuana Act (MCA 50-46-301 et seq.).
Sec. 12.02.040. Exemptions.
F. The exemptions listed in subsections A, B, C, D and E of this section do not apply to a
transaction, use, or business involving marijuana.
Section 3
That Chapter 34 of the Bozeman Municipal Code shall be amended as follows and any
sections not amended herein shall remain in effect:
Section 34.07.040. Advertising standard.
14. Advertisements that portray or depict any activities, products, or services related to
marijuana as authorized pursuant to and defined in the Montana Marijuana Act (MCA
50-46-301 et seq.).
Section 4
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That Chapter 38 of the Bozeman Municipal Code shall be amended as follows and any
sections not amended herein shall remain in effect:
Section 38.360.180 Medical marijuana Marijuana.
A. Any activity involving a marijuana business a medical marijuana as defined in chapter 16 of
this code must meet all requirements of state law including, but not limited to, the standards
of title 16, chapter 12, title 50, chapter 46 Montana Code Annotated (MCA 16-12-101 et seq.),
and limits on possession, clean air, etc., and any applicable administrative rules established
by the state. Should such rules or laws change, any medical marijuana business facility must
immediately begin any required process to come into compliance with the new rules. This
includes submittal for review of applications to the city as they may relate to zoning, business
licensing, or other municipal requirements programs. Compliance with city zoning
regulations does not shield any person, corporation, or other legal entity from the
requirements of, or enforcement by, other governing entities, or from civil liabilities.
1. Unless specifically exempted, any person or existing or proposed entity intending to
conduct activities which meet the definitions of "agriculture," "manufacturing," "office"
or "retail" as established in division 38.700 of this chapter which is for the purpose of
cultivation growing, manufacturing, processing, transporting, testing, distribution, sale
and/or any other activity related to medical marijuana business must, in addition to this
section, comply with all other provisions of this cCode, and must not be located within
400 500 linear feet of the exterior property line of and on the same street as:
a. All schools or facilities, where students are regularly present, owned or operated by
Bozeman School District 7 whether located inside or outside the city limits; or
b. All private schools, not including home schools, where students are regularly
present, whether located inside or outside the city limits, which provide instruction in
the class range from kindergarten to 12th grade and which are either subject to MCA
20-5-109, or listed as a kindergarten provider by the county superintendent of schools.
c. Any postsecondary school defined by 20-5-402, MCA, where students are regularly
present.
d. A building used exclusively as a church, synagogue, or other place of worship as
defined for the purposes of this section by the state.
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e. For purposes of this section, specified distances will be measured pursuant to state
law and rules promulgated by the state. in a straight line, without regard to intervening
structures from the property line of a school as stated in subsections 1.a and b of this
section, regardless of whether those schools are located within the jurisdictional limits
of the city, to the property line of the business providing medical marijuana.
2. All medical marijuana businesses within the city limits that were duly licensed and
authorized to conduct medical marijuana business by the city on or before [effective date
of ordinance] are exempt from the above requirements in 38.360.180 A(1)(a-e) and may
continue to operate, including conducting businesses related to non-medical marijuana,
in the established location at the size and capacity originally licensed. Any marijuana
business that is duly licensed by the state and city to operate in a location and is
operational prior to a school, postsecondary school, church, synagogue, or other place of
worship establishing a location that would have precluded the marijuana business from
being licensed based on the restrictions in a-e, may continue to operate in the established
location at the size and capacity originally licensed.
3 2. Any activities meeting the definitions of "agriculture," "manufacturing," "office" or
"retail" as established in article 7 of this chapter which is for the purpose of cultivating,
growing, processing, manufacturing, testing, transporting, distribution, and/or any other
activity related to medical marijuana business where marijuana or marijuana product is
physically present may not be located in the R-4 and R-5 districts, or on properties
adjacent to Main Street within the core area of the B-3 district as defined in section
38.300.110.D.
4 3. The requirements of subsections 1 and 2 of this section do not apply to personal use or
personal growing of marijuana plants permitted by state law.
a. An individual registered qualifying patient who possesses marijuana in accordance
with the limits and requirements of title 50, chapter 46, Montana Code Annotated
(MCA 50-46-101 et seq.) solely for that qualifying patient's own use; or
b. To a caregiver providing care to not more than two qualifying patients who reside
within the same dwelling as the caregiver. The caregiver and qualifying patients must
maintain appropriate state agency qualification at all times when medical marijuana is
present.
5 4. Establishing a medical marijuana facility business may result in a change in the
designation of building code occupancy type. A change in use or occupancy type may
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require physical modifications to the structure, which must be approved by the building
division prior to any construction as required by section 38.200.100.
6 5. Air discharge control. Any medical marijuana cultivation, growing, manufacturing or
processing operation that contains 24 or more marijuana plants at any one time must
provide a forced air vent discharge point that is:
a. Located no closer than 30 feet from an adjacent property line or a residence; or
b. pProvides a mechanical filtration system to control discharges of particulates and odors.
The ventilation filtration system must be designed by a mechanical engineer licensed
to practice in the state such that odors and particulates may not be detected by unaided
human observation at the property boundary, and noise produced by the system must be
controlled and minimized.
7 6. Any person applying for making application for a zoning approval for a medical
marijuana business must provide evidence of DPHHS state licensure approval as a
caregiver at the time of application and must maintain such DPHHS state licensure
approval at all times. Failure to maintain approval any and all state licensing
requirements may immediately suspends zoning approval to operate a medical marijuana
business in the city.
8 7. These regulations are for review of applications to the city and do not restrict
property owners from establishing more stringent standards for their properties.
Section 5
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 6
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.
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Section 7
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 8
Codification Instruction.
The provisions of Section 1 shall be codified as appropriate in Chapter 16 of the Bozeman
Municipal Code. The provisions of Section 2 shall be codified as appropriate in Chapter 12 of the
Bozeman Municipal Code. The provisions of Section 3 shall be codified as appropriate in Chapter
34 of the Bozeman Municipal Code. The provisions of Section 4 shall be codified as appropriate
in Chapter 38 of the Bozeman Municipal Code.
Section 9
Effective Date.
This ordinance shall be in full force and effect thirty (30) days after final adoption.
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PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman,
Montana, on first reading at a regular session held on the 19th day of October, 2021.
CYNTHIA L. ANDRUS
Mayor
ATTEST:
MIKE MAAS
City Clerk
APPROVED AS TO FORM:
GREG SULLIVAN
City Attorney
FINALLY PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, on second reading at a regular session therefor held on the 9th day of November, 2021.
____________________________________ CYNTHIA L. ANDRUS Mayor
ATTEST:
_______________________________ MIKE MAAS City Clerk
APPROVED AS TO FORM:
________________________________ GREG SULLIVAN City Attorney
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ENROLLED BILL
AN ACT GENERALLY REVISING LAWS RELATED TO THE REGULATION AND TAXATION OF
MARIJUANA; TRANSFERRING AUTHORITY OVER THE LICENSING, CULTIVATION, AND SALE OF
MEDICAL MARIJUANA TO REGISTERED CARDHOLDERS TO THE DEPARTMENT OF REVENUE ;
CREATING SEPARATE LICENSE CATEGORIES FOR CULTIVATION, MANUFACTURING, DISPENSING,
AND TRANSPORTING MARIJUANA; PROVIDING FOR EIGHT COMBINED-USE MARIJUANA LICENSES;
CREATING A MARIJUANA WORKER PERMIT; PROVIDING FOR A LOCAL-OPTION MARIJUANA EXCISE
TAX; REQUIRING LOCAL GOVERNMENT APPROVAL FOR A MARIJUANA BUSINESS TO OPERATE IN A
LOCAL JURISDICTION; PROVIDING APPROPRIATIONS; PROVIDING RULEMAKING AUTHORITY;
PROVIDING FOR EXPUNGEMENT OF CRIMINAL CONVICTIONS RELATED TO MARIJUANA; PROVIDING
FOR CONTINGENT VOIDNESS; AMENDING SECTIONS 3-5-113, 3-5-115, 5-5-223, 5-5-227, 7-22-2101, 15-
64-101, 15-64-102, 15-64-103, 15-64-104, 15-64-105, 15-64-106, 15-64-111, 15-64-112, 16-12-101, 16-12-
102, 16-12-104, 16-12-105, 16-12-106, 16-12-107, 16-12-108, 16-12-109, 16-12-110, 16-12-111, 16-12-112,
16-12-113, 16-12-201, 16-12-202, 16-12-203, 16-12-204, 16-12-206, 16-12-207, 16-12-208, 16-12-209, 16-12-
210, 16-12-211, 16-12-301, 16-12-302, 18-7-101, 37-1-136, 37-1-316, 37-3-203, 39-2-210, 39-2-313, 39-71-
407, 41-5-216, 45-9-101, 45-9-102, 45-9-103, 45-9-110, 45-9-127, 45-9-203, 45-10-103, 45-10-107, 46-18-202,
50-46-302, 50-46-303, 50-46-307, 50-46-319, 50-46-345, 50-46-346, 50-46-347, 53-6-1201, 53-21-1207, 61-8-
402, 61-8-404, 61-8-405, 61-8-409, 61-8-442, 61-11-101, AND 80-1-104, MCA; AMENDING SECTION 56,
INITIATIVE MEASURE NO. 190, APPROVED NOVEMBER 3, 2020; REPEALING SECTIONS 16-12-205, 16-
12-401, 16-12-402, 16-12-403, 16-12-404, 16-12-405, 16-12-406, 16-12-407, 16-12-408, 50-46-301, 50-46-
302, 50-46-303, 50-46-304, 50-46-305, 50-46-307, 50-46-308, 50-46-309, 50-46-310, 50-46-311, 50-46-312,
50-46-317, 50-46-318, 50-46-319, 50-46-320, 50-46-326, 50-46-327, 50-46-328, 50-46-329, 50-46-330, 50-46-
331, 50-46-332, 50-46-339, 50-46-340, 50-46-341, 50-46-342, 50-46-343, 50-46-344, 50-46-345, 50-46-346,
AND 50-46-347, MCA; REPEALING SECTIONS 37 AND 52, INITIATIVE MEASURE NO. 190, APPROVED
NOVEMBER 3, 2020; AND PROVIDING EFFECTIVE DATES AND TERMINATION DATES.
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ENROLLED BILL
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Hotline. (1) The department shall create and maintain a hotline to receive reports of
suspected abuse of the provisions of this chapter.
(2) An individual making a complaint must be a resident and shall provide the individual's name, street
address, and phone number.
(3) (a) The department shall provide a copy of the complaint to the person or licensee that is the
subject of the complaint.
(b) The department may not redact the individual's name or city of residence from the complaint copy.
(4) The department may:
(a) investigate reports of suspected abuse of the provisions of this chapter; or
(b) refer reports of suspected abuse to the law enforcement agency having jurisdiction in the area
where the suspected abuse is occurring.
Section 2. Department to conduct background checks. (1) In addition to any other requirement
imposed under this chapter, before issuing any license under this chapter the department shall conduct:
(a) a fingerprint-based background check meeting the requirements for a fingerprint-based
background check by the department of justice and the federal bureau of investigation in association with an
application for initial licensure and every 5 years thereafter; and
(b) a name-based background check in association with an application for initial licensure and each
year thereafter except years that an applicant is required to submit fingerprints for a fingerprint-based
background check.
(2) For the purpose of the background records check required under subsection (1), the department
shall obtain fingerprints from each individual listed on an application submitted under this chapter and each
individual who has a controlling beneficial ownership or financial interest in the license or prospective license,
including:
(a) each partner of an applicant that is a limited partnership;
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ENROLLED BILL
(b) each member of an applicant that is a limited liability company;
(c) each director and officer of an applicant that is a corporation;
(d) each individual who holds a 5% financial interest in the license applicant or is a controlling
beneficial owner of the person applying for the license; and
(e) each individual who is a partner, member, director, or officer of a legal entity that holds a 5%
financial interest in the license applicant or is a controlling beneficial owner of the person applying for the
license.
(3) (a) Except as provided in subsection (3)(b), an employee of a marijuana business shall undergo a
criminal background check prior to beginning employment.
(b) An employee of a former medical marijuana licensee in good standing with the department as of
[the effective date of this section] shall undergo a criminal background check within 90 days of [the effective
date of this section].
(4) The department may establish procedures for obtaining fingerprints for the fingerprint-based and
name-based background checks required under this section.
Section 3. Licensing of marijuana transporters. (1) (a) A marijuana transporter license may be
issued to a person to provide logistics, distribution, delivery, and storage of marijuana and marijuana products.
A marijuana transporter license is valid for 2 years. A licensed marijuana transporter is responsible for the
marijuana and marijuana products once it takes control of the marijuana or marijuana product.
(b) A marijuana transporter may contract with multiple licensed marijuana businesses.
(c) On or after March 1, 2022, and except as otherwise provided in this section, all persons who
transport marijuana or marijuana products shall hold a valid marijuana transporter license. The department shall
begin accepting applications on or after January 1, 2022. The department may allow for a reasonable grace
period for complying with this requirement.
(d) The department shall establish by rule the requirements for licensure, and the applicable fee for a
marijuana transporter license or the renewal of a transporter license. The department may not license a person
to be a marijuana transporter if the applicant meets any of the criteria established for denial of a license under
16-12-203(2).
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(2) A person who is not licensed under this chapter must apply for and obtain a marijuana transporter
license in order to transport marijuana or marijuana products.
(3) A registered cardholder or consumer is not required to possess a marijuana transporter license
when purchasing marijuana or marijuana products at a dispensary.
(4) A person who obtains a cultivator license, manufacturer license, adult-use dispensary license,
medical marijuana dispensary license, or testing laboratory license or is an employee of one of those licensees,
may:
(a) transport marijuana or marijuana products between other licensed premises without a transporter
license so long as such transportation:
(i) complies with rules implementing the seed-to-sale tracking system set forth in 16-12-105; and
(ii) includes a printed manifest containing information as required by the department; and
(b) deliver marijuana from a dispensary to a registered cardholder provided that the person delivering
the marijuana or marijuana products:
(i) complies with rules adopted by the department; and
(ii) includes a printed delivery manifest from a dispensary to a registered cardholder containing the
registered cardholder's address and cardholder number and the dispensary’s address and license number.
(5) (a) A marijuana transporter licensee may maintain a licensed premises to temporarily store
marijuana and marijuana products and to use as a centralized distribution point in a jurisdiction where the local
government approval provisions contained in 16-12-301 have been satisfied or in a county in which the majority
of voters voted to approve Initiative Measure No. 190 in the November 3, 2020, general election.
(b) The licensed premises must be located in a jurisdiction that permits the operation of a marijuana
business and comply with rules adopted by the department.
(c) A marijuana transporter may store and distribute marijuana and marijuana products from this
location. A storage facility must meet the same security requirements that are required to obtain a license under
this chapter.
(6) A marijuana transporter shall use the seed-to-sale tracking system developed pursuant to 16-12-
105 to create shipping manifests documenting the transport of retail marijuana and retail marijuana products
throughout the state.
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(7) A marijuana transporter may deliver marijuana or marijuana products to licensed premises or
registered cardholders only and may not make deliveries of marijuana or marijuana products to individual
consumers.
(8) A person delivering marijuana or marijuana products for a marijuana transporter must possess a
valid marijuana worker permit provided for under [section 7] and be a current employee of the marijuana
transporter licensee.
Section 4. Licensing of cultivators. (1) (a) The department shall license cultivators according to a
tiered canopy system. Except as provided in subsection (6), all cultivation that is licensed under this chapter
may only occur at an indoor cultivation facility.
(b) Except as provided in subsection (6), the system shall include, at a minimum, the following
license types:
(i) A micro tier canopy license allows for a canopy of up to 250 square feet at one indoor cultivation
facility.
(ii) A tier 1 canopy license allows for a canopy of up to 1,000 square feet at one indoor cultivation
facility.
(iii) A tier 2 canopy license allows for a canopy of up to 2,500 square feet at up to two indoor cultivation
facilities.
(iv) A tier 3 canopy license allows for a canopy of up to 5,000 square feet at up to three indoor
cultivation facilities.
(v) A tier 4 canopy license allows for a canopy of up to 7,500 square feet at up to four indoor
cultivation facilities.
(vi) A tier 5 canopy license allows for a canopy of up to 10,000 square feet at up to five indoor
cultivation facilities.
(vii) A tier 6 canopy license allows for a canopy of up to 13,000 square feet at up to five indoor
cultivation facilities.
(viii) A tier 7 canopy license allows for a canopy of up to 15,000 square feet at up to five indoor
cultivation facilities.
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(ix) A tier 8 canopy license allows for a canopy of up to 17,500 square feet at up to five indoor
cultivation facilities.
(x) A tier 9 canopy license allows for a canopy of up to 20,000 square feet at up to six indoor cultivation
facilities.
(xi) A tier 10 canopy license allows for a canopy of up to 30,000 square feet at up to seven indoor
cultivation facilities.
(xii) A tier 11 canopy license allows for a canopy of up to 40,000 square feet at up to eight indoor
cultivation facilities.
(xiv) A tier 12 canopy license allows for a canopy of up to 50,000 square feet at up to nine indoor
cultivation facilities.
(c) A cultivator shall demonstrate that the local government approval provisions in 16-12-301 have
been satisfied for the jurisdiction where each proposed indoor cultivation facility or facilities is or will be located
if a proposed facility would be located in a county in which the majority of voters voted against approval of
Initiative Measure No. 190 in the November 3, 2020, general election.
(d) When evaluating an initial or renewal license application, the department shall evaluate each
proposed indoor cultivation facility for compliance with the provisions of 16-12-207 and 16-12-210.
(e) (i) Except as provided in subsection (1)(e)(iii), a cultivator who has reached capacity under the
existing license may apply to advance to the next licensing tier in conjunction with a regular renewal application
by demonstrating that:
(A) the cultivator is using the full amount of canopy currently authorized;
(B) the tracking system shows the cultivator is selling at least 80% of the marijuana produced by the
square footage of the cultivator's existing license over the 2 previous quarters or the cultivator can otherwise
demonstrate to the department that there is a market for the marijuana it seeks to produce; and
(C) its proposed additional or expanded indoor cultivation facility or facilities are located in a
jurisdiction where the local government approval provisions contained in 16-12-301 have been satisfied or that
they are located in a county in which the majority of voters voted to approve Initiative Measure No. 190 in the
November 3, 2020, general election.
(ii) Except as provided in subsection (1)(e)(iii), the department may increase a licensure level by only
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one tier at a time.
(iii) Between January 1, 2022, and June 30, 2023, a cultivator may increase its licensure level by more
than one tier at a time, up to a tier 5 canopy license, without meeting the requirements of subsection (1)(e)(i)(A)
and (1)(e)(i)(B).
(iv) The department shall conduct an inspection of the cultivator's registered premises and proposed
premises within 30 days of receiving the application and before approving the application.
(f) A marijuana business that has not been issued a license before July 1, 2023, must be initially
licensed at a tier 2 canopy license or lower.
(2) The department is authorized to create additional tiers as necessary.
(3) The department may adopt rules:
(a) for inspection of proposed indoor cultivation facilities under subsection (1); and
(b) for investigating owners or applicants for a determination of financial interest; and
(c) in consultation with the department of agriculture and based on well-supported science, to require
licensees to adopt practices consistent with the prevention, introduction, and spread of insects, diseases, and
other plant pests into Montana.
(4) Initial licensure and annual fees for these licensees are:
(a) $1,000 for a cultivator with a micro tier canopy license;
(b) $2,500 for a cultivator with a tier 1 canopy license;
(c) $5,000 for a cultivator with a tier 2 canopy license;
(d) $7,500 for a cultivator with a tier 3 canopy license;
(e) $10,000 for a cultivator with a tier 4 canopy license;
(f) $13,000 for a cultivator with a tier 5 canopy license;
(g) $15,000 for a cultivator with a tier 6 canopy license;
(h) $17,500 for a cultivator with a tier 7 canopy license;
(i) $20,000 for a cultivator with a tier 8 canopy license;
(j) $23,000 for a cultivator with a tier 9 canopy license;
(k) $27,000 for a cultivator with a tier 10 canopy license;
(l) $32,000 for a cultivator with a tier 11 canopy license; and
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(m) $37,000 for a cultivator with a tier 12 canopy license.
(5) The fee required under this part may be imposed based only on the tier of licensure and may not
be applied separately to each indoor cultivation facility used for cultivation under the licensure level.
(6) A former medical marijuana licensee who engaged in outdoor cultivation before November 3,
2020, may continue to engage in outdoor cultivation.
Section 5. Licensing of dispensaries. (1) Except as provided in 16-12-201(2), an applicant for a
dispensary license shall demonstrate that the local government approval provisions in 16-12-301 have been
satisfied in the jurisdiction where each proposed dispensary is located if the proposed dispensary would be
located in a county in which the majority of voters voted against approval of Initiative Measure No. 190 in the
November 3, 2020, general election.
(2) When evaluating an initial or renewal application, the department shall evaluate each proposed
dispensary for compliance with the provisions of 16-12-207 and 16-12-210.
(3) An adult-use dispensary licensee may operate at a shared location with a medical marijuana
dispensary if the adult-use dispensary and medical marijuana dispensary are owned by the same person.
(4) A medical marijuana dispensary is authorized to sell exclusively to registered cardholders
marijuana, marijuana products, and live marijuana plants.
(5) An adult-use dispensary is authorized to sell marijuana, marijuana products, and live marijuana
plants to consumers or registered cardholders.
(6) The department shall charge a dispensary license fee for an initial application and at each
renewal. The dispensary license fee is $5,000 for each location that a licensee operates as an adult-use
dispensary or a medical marijuana dispensary.
(7) The department may adopt rules:
(a) for inspection of proposed dispensaries;
(b) for investigating owners or applicants for a determination of financial interest; and
(c) establishing or limiting the THC content of the marijuana or marijuana products that may be sold at
an adult-use dispensary or medical marijuana dispensary.
(8) (a) Marijuana and marijuana products sold at a dispensary are regulated and sold on the basis of
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the concentration of THC in the products and not by weight.
(b) Except as provided in subsection (8)(c), for purposes of this chapter, a single package is limited
to:
(i) for marijuana sold as flower, 1 ounce of usable marijuana. The total potential psychoactive THC of
marijuana flower may not exceed 35%.
(ii) for a marijuana product sold as a capsule, no more than 100 milligrams of THC per capsule and no
more than 800 milligrams of THC per package.
(iii) for a marijuana product sold as a tincture, no more than 800 milligrams of THC;
(iv) for a marijuana product sold as an edible or a food product, no more than 100 milligrams of THC. A
single serving of an edible marijuana product may not exceed 10 milligrams of THC.
(v) for a marijuana product sold as a topical product, a concentration of no more than 6% THC and no
more than 800 milligrams of THC per package;
(vi) for a marijuana product sold as a suppository or transdermal patch, no more than 100 milligrams of
THC per suppository or transdermal patch and no more than 800 milligrams of THC per package; and
(vii) for any other marijuana product, no more than 800 milligrams of THC.
(c) A dispensary may sell marijuana or marijuana products having higher THC potency levels than
described in subsection (8) to registered cardholders.
(9) A licensee or employee is prohibited from conducting a transaction that would result in a
consumer or registered cardholder exceeding the personal possession amounts set forth in 16-12-106 and
[section 16].
Section 6. Combined-use marijuana licensing -- requirements. (1) The department may issue a
total of eight combined-use marijuana licenses to entities that are:
(a) a federally recognized tribe located in the state; or
(b) a business entity that is majority-owned by a federally recognized tribe located in the state.
(2) A combined-use marijuana license consists of one tier 1 canopy license and one dispensary
license allowing for the operation of a dispensary. Cultivation and dispensary facilities must be located at the
same licensed premises.
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(3) A combined-use marijuana licensee shall operate its cultivation and dispensary facilities on land
that is located:
(a) within 150 air-miles of the exterior boundary of the associated tribal reservation or, for the Little
Shell Chippewa tribe only, within 150 air-miles of the tribal service area; and
(b) in a county that has satisfied the local government approval provisions in 16-12-301 if the majority
of voters in the county voted against approval of Initiative Measure No. 190 in the November 3, 2020, general
election.
(4) An applicant under this section must satisfy all licensing requirements under this chapter and is
subject to all fees and taxes associated with the cultivation and sale of marijuana or marijuana products
provided for in this chapter.
(5) A license granted under this section must be operated in compliance with all requirements
imposed under this chapter.
(6) After a tribe or a majority-owned business of that tribe is licensed under this section, that tribe or
another majority-owned business of that tribe may not obtain another combined-use license until the prior
license is relinquished, lapses, or is revoked by the department.
Section 7. Marijuana worker permit -- requirements. (1) A marijuana worker permit is required for
an employee who performs work for or on behalf of a marijuana business if the individual participates in any
aspect of the marijuana business.
(2) (a) Except as provided in subsection (2)(b), a marijuana business may not allow an employee to
perform any work at the licensed premises until it has verified that that the employee has obtained a valid
marijuana worker permit issued in accordance with this chapter.
(b) An employee of a former medical marijuana licensee in good standing with the department as of
[the effective date of this section] shall obtain a marijuana worker permit within 90 days of [the effective date of
this section].
(3) An applicant for a marijuana worker permit shall submit:
(a) an application on a form prescribed by the department with information including the applicant's:
(i) name;
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(ii) mailing address;
(iii) date of birth;
(iv) signature; and
(v) response to conviction history questions requested by the department;
(b) a copy of a driver's license or identification card issued by one of the fifty states in the United
States or a passport;
(c) annual proof of having passed training that includes identification, prevention, and reporting for
human trafficking, rules and regulations for legal sales of marijuana in Montana, and any other training required
by the department; and
(d) a fee established by the department.
(4) (a) Except as provided in subsection (4)(b), an application that does not contain the elements set
forth in subsection (3) is incomplete.
(b) The department may review an application prior to receiving the fee but may not issue a permit
until the fee is received.
(5) The department shall deny an initial or renewal application if the applicant:
(a) is not 18 years of age or older;
(b) has had a marijuana license or worker permit revoked for a violation of this chapter or any rule
adopted under this chapter within 2 years of the date of the application;
(c) has violated any provision of this chapter; or
(d) makes a false statement to the department.
(6) An employee of a licensee shall carry the employee's worker permit at all times when performing
work on behalf of a marijuana business.
(7) A person who holds a marijuana worker permit must notify the department in writing within 10
days of:
(a) a conviction for a felony;
(b) the issuance of any citation for violating a marijuana law imposed under this chapter or the
marijuana laws of any other state; or
(c) the issuance of any citation for selling or dispensing alcohol or tobacco products to a minor.
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Section 8. Unlawful possession of marijuana, marijuana products, or marijuana paraphernalia
in motor vehicle on highway. (1) Except as provided in subsection (2), a person commits the offense of
unlawful possession of marijuana, marijuana products, or marijuana paraphernalia in a motor vehicle if the
person knowingly possesses marijuana, marijuana products, or marijuana paraphernalia, as those terms are
defined in 16-12-102, within the passenger area of a motor vehicle on a highway.
(2) This section does not apply to marijuana, marijuana products, or marijuana paraphernalia:
(a) purchased from a dispensary and that remains in its unopened, original packaging;
(b) in a locked glove compartment or storage compartment;
(c) in a motor vehicle trunk or luggage compartment or in a truck bed or cargo compartment;
(d) behind the last upright seat of a motor vehicle that is not equipped with a trunk; or
(e) in a closed container in the area of a motor vehicle that is not equipped with a trunk and that is not
normally occupied by the driver or a passenger.
(3) (a) A person convicted of the offense of unlawful possession of marijuana, marijuana products, or
marijuana paraphernalia in a motor vehicle shall be fined an amount not to exceed $100.
(b) A violation of this section is not a criminal offense within the meaning of 3-1-317, 3-1-318, 45-2-
101, 46-18-236, 61-8-104, or 61-8-711 and may not be recorded or charged against a driver's record, and an
insurance company may not hold a violation of this section against the insured or increase premiums because
of the violation. The surcharges provided for in 3-1-317, 3-1-318, and 46-18-236 may not be imposed for a
violation of this section.
Section 9. Purpose. The purpose of [sections 9 through 23] is to:
(1) provide a regulatory system for providing marijuana for the use of individuals with debilitating
medical conditions, including posttraumatic stress disorder, in order to alleviate the symptoms of the debilitating
medical condition;
(2) allow for the limited cultivation, manufacture, delivery, and possession of marijuana as permitted
by this chapter;
(3) allow persons to assist registered cardholders with the cultivation of marijuana and manufacture of
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marijuana products permitted by this chapter.
(4) provide for a registry of individuals with debilitating medical conditions entitled to purchase
marijuana and marijuana products at the tax rate specified in 15-64-102; and
(5) provide the process for obtaining a registry identification card.
Section 10. Definitions. As used in [sections 9 through 23], the following definitions apply:
(1) "Referral physician" means an individual who:
(a) is licensed under Title 37, chapter 3; and
(b) is the physician to whom a patient's treating physician has referred the patient for physical
examination and medical assessment.
(2) "Standard of care" means, at a minimum, the following activities when undertaken in person or
through the use of telemedicine by a patient's treating physician or referral physician if the treating physician or
referral physician is providing written certification for a patient with a debilitating medical condition:
(a) obtaining the patient's medical history;
(b) performing a relevant and necessary physical examination;
(c) reviewing prior treatment and treatment response for the debilitating medical condition;
(d) obtaining and reviewing any relevant and necessary diagnostic test results related to the
debilitating medical condition;
(e) discussing with the patient and ensuring that the patient understands the advantages,
disadvantages, alternatives, potential adverse effects, and expected response to the recommended treatment;
(f) monitoring the response to treatment and possible adverse effects; and
(g) creating and maintaining patient records that remain with the physician.
(3) "Telemedicine" has the meaning provided in 37-3-102.
(4) "Treating physician" means an individual who:
(a) is licensed under Title 37, chapter 3; and
(b) has a bona fide professional relationship with the individual applying to be a registered cardholder.
(5) "Written certification" means a statement signed by a treating physician or referral physician that
meets the requirements of [section 13] and is provided in a manner that meets the standard of care.
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Section 11. Medical marijuana registry -- department responsibilities -- issuance of cards --
confidentiality. (1) The department shall establish and maintain a registry of persons who receive registry
identification cards under [sections 9 through 23].
(2) The department shall issue registry identification cards to Montana residents who have debilitating
medical conditions and who submit applications meeting the requirements of [sections 9 through 23].
(3) (a) Registry identification cards issued pursuant to [sections 9 through 23] must:
(i) be laminated and produced on a material capable of lasting for the duration of the time period for
which the card is valid;
(ii) state the name, address, and date of birth of the registered cardholder;
(iii) indicate whether the cardholder is obtaining marijuana and marijuana products through the system
of licensed cultivators, manufacturers, or dispensaries;
(iv) state the date of issuance and the expiration date of the registry identification card;
(v) contain a unique identification number; and
(vi) contain other information that the department may specify by rule.
(b) Except as provided in subsection (3)(c), in addition to complying with subsection (3)(a), registry
identification cards issued pursuant to this part must:
(i) include a picture of the registered cardholder; and
(ii) be capable of being used to track registered cardholder purchases.
(c) (i) The department shall issue a temporary registry identification card on receipt of an application.
The cards are valid for 60 days and are exempt from the requirements of subsection (3)(b). Printing of the
temporary registry identification cards is exempt from the provisions of Title 18, chapter 7.
(ii) A card may be issued before an applicant's payment of the fee has cleared. The department shall
cancel the temporary registry identification card after 60 days and may not issue a permanent registry
identification card until the fee is paid.
(4) (a) The department shall review the information contained in an application or renewal submitted
pursuant to this part and shall approve or deny an application or renewal within 30 days of receiving the
application or renewal and all related application materials.
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(b) If the department fails to act on a completed application within 30 days of receipt, the department
shall refund the fee paid by an applicant for a registry identification card.
(c) Applications that are not processed within 30 days of receipt remain active until the department
takes final action.
(d) The department shall issue a registry identification card within 5 days of approving an application
or renewal.
(5) Review of a rejection of an application or renewal may be conducted as a contested case hearing
pursuant to the provisions of the Montana Administrative Procedure Act.
(6) Registry identification cards expire 1 year after the date of issuance unless a physician has
provided a written certification stating that a card is valid for a shorter period of time.
(7) (a) A registered cardholder shall notify the department of any change in the cardholder's name,
address, or physician, or a change in the status of the cardholder's debilitating medical condition within 10 days
of the change.
(b) If a change occurs and is not reported to the department, the registry identification card is void.
(8) The department shall maintain a confidential list of individuals to whom the department has issued
registry identification cards. Individual names and other identifying information on the list must be confidential
and is not subject to disclosure, except to:
(a) authorized employees of the department as necessary to perform the official duties of the
department;
(b) authorized employees of state or local government agencies, including law enforcement agencies,
only as necessary to verify that an individual is a lawful possessor of a registry identification card;
(c) a judge, magistrate, or other authorized judicial officer in response to an order requiring disclosure;
and
(d) another person or entity when the information pertains to a cardholder who has given written
consent to the release and has specified:
(i) the type of information to be released; and
(ii) the person or entity to whom it may be released.
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Section 12. Individuals with debilitating medical conditions -- requirements -- minors --
limitations. (1) Except as provided in subsections (2) through (5), the department shall issue a registry
identification card to an individual with a debilitating medical condition who submits the following, in accordance
with department rules:
(a) an application on a form prescribed by the department;
(b) an application fee or a renewal fee;
(c) the individual's name, street address, and date of birth;
(d) proof of Montana residency;
(e) a statement, on a form prescribed by the department, that the individual will not divert to any other
individual the marijuana or marijuana products that the individual cultivates, manufactures, or obtains through
the system of licensed providers for the individual's debilitating medical condition;
(f) the name of the individual's treating physician or referral physician and the street address and
telephone number of the physician's office;
(g) the street address where the individual is cultivating marijuana or manufacturing marijuana
products if the individual is cultivating marijuana or manufacturing marijuana products for the individual's own
use; and
(h) the written certification and accompanying statements from the individual's treating physician or
referral physician as required pursuant to [section 13].
(2) The department shall issue a registry identification card to a minor if the materials required under
subsection (1) are submitted and the minor's custodial parent or legal guardian with responsibility for health
care decisions:
(a) provides proof of legal guardianship and responsibility for health care decisions if the individual is
submitting an application as the minor's legal guardian with responsibility for health care decisions; and
(b) signs and submits a written statement that:
(i) the minor's treating physician or referral physician has explained to the minor and to the minor's
custodial parent or legal guardian with responsibility for health care decisions the potential risks and benefits of
the use of marijuana;
(ii) indicates whether the minor's custodial parent or legal guardian will be obtaining marijuana or
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marijuana products for the minor through the system of licensed dispensaries provided for in this chapter; and
(iii) the minor's custodial parent or legal guardian with responsibility for health care decisions:
(A) consents to the use of marijuana by the minor;
(B) agrees to control the acquisition of marijuana and the dosage and frequency of the use of
marijuana by the minor; and
(C) agrees that the minor will use only marijuana products and will not smoke marijuana;
(c) if the parent or guardian will be serving as the minor's cultivator, undergoes background checks in
accordance with subsection (3). The parent or legal guardian shall pay the costs of the background check and
may not obtain a license under this chapter if the parent or legal guardian does not meet the requirements set
forth in this chapter.
(d) pledges, on a form prescribed by the department, not to divert to any individual any marijuana
purchased for the minor's use in a marijuana product.
(3) A parent serving as a minor's cultivator shall submit fingerprints to facilitate a fingerprint and
background check by the department of justice and federal bureau of investigation upon the minor's initial
application for a registry identification card and every 5 years after that. The department shall conduct a name-
based background check in years when a fingerprint background check is not required.
(4) An application for a registry identification card for a minor must be accompanied by the written
certification and accompanying statements required pursuant to [section 13] from a second physician in
addition to the minor's treating physician or referral physician, unless the minor's treating physician or referral
physician is an oncologist, neurologist, or epileptologist.
(5) An individual may not be a registered cardholder if the individual is in the custody of or under the
supervision of the department of corrections or a youth court.
Section 13. Written certification -- accompanying statements. (1) The written certification
provided by a physician must be made on a form prescribed by the department and signed and dated by the
physician. The written certification must:
(a) include the physician's name, license number, and office address and telephone number on file
with the board of medical examiners and the physician's business e-mail address, if any; and
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(b) the name, date of birth, and debilitating medical condition of the patient for whom the physician is
providing written certification.
(2) A treating physician or referral physician who is providing written certification for a patient shall
provide a statement initialed by the physician that must:
(a) confirm that the physician is:
(i) the patient's treating physician and that the patient has been under the physician's ongoing medical
care as part of a bona fide professional relationship with the patient; or
(ii) the patient's referral physician;
(b) confirm that the patient suffers from a debilitating medical condition;
(c) describe the debilitating medical condition, why the condition is debilitating, and the extent to
which it is debilitating;
(d) confirm that the physician has assumed primary responsibility for providing management and
routine care of the patient's debilitating medical condition after obtaining a comprehensive medical history and
conducting a physical examination, whether in person or, in accordance with subsection (4), through the use of
telemedicine, that included a personal review of any medical records maintained by other physicians and that
may have included the patient's reaction and response to conventional medical therapies;
(e) describe the medications, procedures, and other medical options used to treat the condition;
(f) confirm that the physician has reviewed all prescription and nonprescription medications and
supplements used by the patient and has considered the potential drug interaction with marijuana;
(g) state that the physician has a reasonable degree of certainty that the patient's debilitating medical
condition would be alleviated by the use of marijuana and that, as a result, the patient would be likely to benefit
from the use of marijuana;
(h) confirm that the physician has explained the potential risks and benefits of the use of marijuana to
the patient;
(i) list restrictions on the patient's activities due to the use of marijuana;
(j) specify the time period for which the use of marijuana would be appropriate, up to a maximum of 1
year;
(k) state that the physician will:
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(i) continue to serve as the patient's treating physician or referral physician; and
(ii) monitor the patient's response to the use of marijuana and evaluate the efficacy of the treatment;
and
(l) contain an attestation that the information provided in the written certification and accompanying
statements is true and correct.
(3) A physician who is the second physician recommending marijuana for use by a minor shall submit:
(a) a statement initialed by the physician that the physician conducted a comprehensive review of the
minor's medical records as maintained by the treating physician or referral physician;
(b) a statement that in the physician's professional opinion, the potential benefits of the use of
marijuana would likely outweigh the health risks for the minor; and
(c) an attestation that the information provided in the written certification and accompanying
statements is true and correct.
(4) A physician who is providing written certification through the use of telemedicine:
(a) shall comply with the administrative rules adopted for telemedicine by the board of medical
examiners provided for in 2-15-1731; and
(b) may not use an audio-only visit unless the physician has first established a physician-patient
relationship through an in-person encounter.
(5) If the written certification states that marijuana should be used for less than 1 year, the department
shall issue a registry identification card that is valid for the period specified in the written certification.
Section 14. Registry identification card to be exhibited on demand -- photo identification
required. (1) A registered cardholder shall keep the individual's registry identification card in the individual's
immediate possession at all times. The registry identification card and a valid photo identification must be
displayed upon demand of a law enforcement officer, justice of the peace, or city or municipal judge.
(2) The department shall ensure that law enforcement officers have access to accurate and up-to-
date information on persons registered under [sections 9 through 23].
(3) Beginning on January 1, 2022, a registered cardholder may request, at their next annual renewal,
that the department include on his or her registry identification card the name of up to two individuals who are
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authorized to acquire and deliver marijuana or marijuana products to the cardholder from a licensed dispensary.
Any individual so identified must be at least 21 years of age, possess the registry identification card at all
relevant times, and otherwise comply with the daily possession limits set forth in this chapter and rules adopted
by the department.
Section 15. Health care facility procedures for patients with marijuana for use. (1) (a) A health
care facility as defined in 50-5-101 shall take the following measures when a patient who is a registered
cardholder has marijuana in the patient's possession upon admission to the health care facility:
(i) require the patient to remove the marijuana from the premises before the patient is admitted if the
patient is able to do so; or
(ii) make a reasonable effort to contact the patient's cultivator, manufacturer, or medical marijuana
dispensary, court-appointed guardian, or individual with a power of attorney, if any.
(b) If a patient is unable to remove the marijuana or the health care facility is unable to contact an
individual as provided in subsection (1)(a), the facility shall contact the local law enforcement agency having
jurisdiction in the area where the facility is located.
(2) A cultivator, manufacturer, or medical marijuana dispensary, court-appointed guardian, or
individual with a power of attorney, if any, contacted by a health care facility shall remove the marijuana and
deliver it to the patient's residence.
(3) A law enforcement agency contacted by a health care facility shall respond by removing and
destroying the marijuana.
(4) A health care facility may not be charged for costs related to removal of the marijuana from the
facility's premises.
Section 16. Legal protections -- allowable amounts. (1) (a) A registered cardholder who has
elected to obtain marijuana and marijuana products through the system of licensed cultivators, manufacturers,
or dispensaries may:
(i) possess up to 1 ounce of usable marijuana; and
(ii) purchase a maximum of 5 ounces of usable marijuana a month and no more than 1 ounce of
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usable marijuana a day.
(b) (i) A registered cardholder may petition the department for an exception to the monthly limit on
purchases. The request must be accompanied by a confirmation from the physician who signed the
cardholder's written certification that the cardholder's debilitating medical condition warrants purchase of an
amount exceeding the monthly limit.
(ii) If the department approves an exception to the limit, the approval must establish the monthly
amount of usable marijuana that the cardholder may purchase and the limit must be entered into the seed-to-
sale tracking system.
(2) Except as provided in 16-12-108 and subject to the provisions of subsection (7) of this section, an
individual who possesses a registry identification card issued pursuant to [sections 9 through 23] may not be
arrested, prosecuted, or penalized in any manner or be denied any right or privilege, including but not limited to
civil penalty or disciplinary action by a professional licensing board or the department of labor and industry,
solely because:
(a) the person cultivates, manufactures, possesses, or transports marijuana in the amounts allowed
under this section; or
(b) the registered cardholder acquires or uses marijuana.
(3) A physician may not be arrested, prosecuted, or penalized in any manner or be denied any right or
privilege, including but not limited to civil penalty or disciplinary action by the board of medical examiners or the
department of labor and industry, solely for providing written certification for a patient with a debilitating medical
condition.
(4) Nothing in this section prevents the imposition of a civil penalty or a disciplinary action by a
professional licensing board or the department of labor and industry if:
(a) a registered cardholder's use of marijuana impairs the cardholder's job-related performance; or
(b) a physician violates the standard of care or other requirements of [sections 9 through 23].
(5) (a) An individual may not be arrested or prosecuted for constructive possession, conspiracy as
provided in 45-4-102, or other provisions of law or any other offense solely for being in the presence or vicinity
of the use of marijuana and marijuana products as permitted under [sections 9 through 23].
(b) This subsection (5) does not prevent the arrest or prosecution of an individual who is in the vicinity
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of a registered cardholder's use of marijuana if the individual is in possession of or is using marijuana in excess
of the amounts otherwise provided in this chapter and is not a registered cardholder.
(6) Possession of or application for a registry identification card does not alone constitute probable
cause to search the person or individual or the property of the person or individual or otherwise subject the
person or individual or property of the person or individual possessing or applying for the card to inspection by
any governmental agency, including a law enforcement agency.
(7) The provisions of this section relating to protection from arrest or prosecution do not apply to an
individual unless the individual has obtained a registry identification card prior to an arrest or the filing of a
criminal charge. It is not a defense to a criminal charge that an individual obtains a registry identification card
after an arrest or the filing of a criminal charge.
(8) (a) A registered cardholder is presumed to be engaged in the use of marijuana as allowed by
[sections 9 through 23] if the person:
(i) is in possession of a valid registry identification card; and
(ii) is in possession of an amount of marijuana that does not exceed the amount permitted under
[sections 9 through 23].
(b) The presumption may be rebutted by evidence that the possession of marijuana was not for the
purpose of alleviating the symptoms or effects of a registered cardholder's debilitating medical condition and
exceeded the allowable amount of marijuana otherwise provided for in [sections 9 through 23].
Section 17. Prohibitions on physician affiliation with licensees -- sanctions. (1) (a) A physician
who provides written certifications may not:
(i) accept or solicit anything of value, including monetary remuneration, from a person licensed under
this chapter;
(ii) offer a discount or any other thing of value to a patient who uses or agrees to use a person licensed
under this chapter; or
(iii) examine a patient for the purposes of diagnosing a debilitating medical condition at a licensed
premises or a testing laboratory.
(b) Subsection (1)(a) does not prevent a physician from accepting a fee for providing medical care to
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a person licensed under this chapter if the physician charges the individual the same fee that the physician
charges other patients for providing a similar level of medical care.
(2) A person licensed under this chapter may not:
(a) arrange for a physician to conduct a physical examination or review of medical records required
under [sections 9 through 23], either in the physician's office or at another location; or
(b) pay all or a portion of the costs for an individual to be seen by a physician for the purposes of
obtaining a written certification.
(3) If the department has cause to believe that a physician has violated this section, has violated a
provision of rules adopted pursuant to [sections 9 through 23], or has not met the standard of care required
under [sections 9 through 23], the department may refer the matter to the board of medical examiners provided
for in 2-15-1731 for review pursuant to 37-1-308.
(4) A violation of this section constitutes unprofessional conduct under 37-1-316. If the board of
medical examiners finds that a physician has violated this section, the board shall restrict the physician's
authority to provide written certification for the use of marijuana. The board of medical examiners shall notify the
department of the sanction.
(5) If the board of medical examiners believes a physician's practices may harm the public health,
safety, or welfare, the board may summarily restrict a physician's authority to provide written certification for the
use of marijuana for a debilitating medical condition.
(6) (a) If the department has reason to believe a person licensed under this chapter has violated this
section, the department shall refer the matter to the law enforcement entity and county attorney having
jurisdiction where the person licensed under this chapter is doing business.
(b) If a person licensed under this chapter is found to have violated the provisions of this section, the
department shall revoke the person's license. A person whose license has been revoked for a violation of this
section is prohibited from reapplying for licensure under this chapter.
(7) (a) A law enforcement entity or county attorney who investigates a suspected violation of this
section shall report the results of the investigation to the department.
(b) The department may receive the results of this investigation even if the information constitutes
confidential criminal justice information as defined in 44-5-103.
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Section 18. Unlawful conduct by cardholders -- penalties. (1) The department shall revoke and
may not reissue the registry identification card of an individual who:
(a) is convicted of a drug offense; or
(b) allows another individual to be in possession of the individual's:
(i) registry identification card, except as provided for in [section 14]; or
(ii) mature marijuana plants, seedlings, usable marijuana, or marijuana products.
(2) If no other penalty is specified under [sections 9 through 23], a registered cardholder who violates
[sections 9 through 23] is punishable by a fine not to exceed $500 or by imprisonment in a county jail for a term
not to exceed 6 months, or both, unless otherwise provided in [sections 9 through 23] or unless the violation
would constitute a violation of Title 45. An offense constituting a violation of Title 45 must be charged and
prosecuted pursuant to the provisions of Title 45.
(3) Review of a department action imposing a fine, suspension, or revocation under this section must
be conducted as a contested case hearing under the provisions of the Montana Administrative Procedure Act.
Section 19. Fraudulent representation -- penalties. (1) In addition to any other penalties provided
by law, an individual who fraudulently represents to a law enforcement official that the individual is a registered
cardholder is guilty of a misdemeanor punishable by imprisonment in a county jail for a term not to exceed 1
year or a fine not to exceed $1,000, or both.
(2) A physician who purposely and knowingly misrepresents any information required under [section
13] is guilty of a misdemeanor punishable by imprisonment in a county jail for a term not to exceed 1 year or a
fine not to exceed $1,000, or both.
Section 20. Confidentiality of registry information -- penalty. (1) Except as provided in 37-3-203,
a person, including an employee or official of the department, commits the offense of disclosure of confidential
information related to registry information if the person knowingly or purposely discloses confidential information
in violation of [sections 9 through 23].
(2) A person convicted of a violation of this section shall be fined not to exceed $1,000 or imprisoned
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in the county jail for a term not to exceed 6 months, or both.
Section 21. Law enforcement authority. Nothing in this chapter may be construed to limit a law
enforcement agency's ability to investigate unlawful activity in relation to an individual with a registry
identification card.
Section 22. Legislative monitoring. (1) The economic affairs interim committee shall provide
oversight of the department's activities pursuant to [sections 9 through 23], including but not limited to
monitoring of:
(a) the number of registered cardholders; and
(b) the number and type of violations committed by registered cardholders, together with the penalties
imposed upon registered cardholders by the department.
(2) The committee shall identify issues likely to require future legislative attention and develop
legislation to present to the next regular session of the legislature.
(3) (a) The department shall periodically report to the economic affairs interim committee and submit
a report to the legislative clearinghouse, as provided in 5-11-210, on persons who are registered pursuant to
[sections 9 through 23]. The report must include:
(i) the number of applications for registry identification cards and the number of registered
cardholders approved;
(ii) the nature of the debilitating medical conditions of the cardholders;
(iii) the number of registry identification cards and licenses revoked; and
(iv) the number of physicians providing written certification for registered cardholders and the number
of written certifications each physician has provided.
(b) The report may not provide any identifying information of cardholders or physicians.
(4) The board of medical examiners shall report annually to the economic affairs interim committee on
the number and types of complaints the board has received involving physician practices in providing written
certification for the use of marijuana, pursuant to 37-3-203.
(5) The reports provided for in subsections (3) and (4) must also be provided to the revenue interim
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committee provided for in 5-5-227.
Section 23. Rulemaking authority -- fees. The department may adopt rules to implement [sections
9 through 23] as authorized in this section to specify:
(1) the manner in which the department will consider applications for registry identification cards for
individuals with debilitating medical conditions and renewal of registry identification cards;
(2) the acceptable forms of proof of Montana residency;
(3) notice and contested case hearing procedures for fines or registry identification card revocation,
suspension, or modification;
(4) the procedures for obtaining fingerprints for the fingerprint and background check required under
[section 12];
(5) the amount of usable marijuana that a registered cardholder who has elected not to use the
system of licensees provided for under this chapter may possess; and
(6) the fees for cardholders. The annual cardholder license fee may not be less than $20.
Section 24. Section 5-5-223, MCA, is amended to read:
"5-5-223. Economic affairs interim committee. (1) The economic affairs interim committee has
administrative rule review, draft legislation review, program evaluation, and monitoring functions for the
following executive branch agencies and the entities attached to agencies for administrative purposes:
(a) department of agriculture;
(b) department of commerce;
(c) department of labor and industry;
(d) department of livestock;
(e) office of the state auditor and insurance commissioner;
(f) office of economic development;
(g) the state compensation insurance fund provided for in 39-71-2313, including the board of directors
of the state compensation insurance fund established in 2-15-1019;
(h) the division of banking and financial institutions provided for in 32-1-211; and
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(i) the division of the department of revenue that administers the Montana Alcoholic Beverage Code
and the Montana Marijuana Regulation and Taxation Act.
(2) The state compensation insurance fund shall annually provide to the committee a report on its
budget as approved by the state compensation insurance fund board of directors."
Section 25. Section 3-5-113, MCA, is amended to read:
"3-5-113. Judges pro tempore -- special masters -- scope of authority in criminal and civil
cases. (1) (a) A civil action in the district court may be tried by a judge pro tempore or special master, who
must be a member of the bar of the state, agreed upon in writing by the parties litigant or their attorneys of
record, appointed by the court as provided in 3-5-115 or 3-20-102, or [section 102] and sworn to try the cause
before entering upon the duties in trying the cause.
(b) The judge pro tempore or special master has the authority and power of an elected district court
judge in the particular civil action tried in the manner provided for in this subsection (1). All proceedings before
a judge pro tempore or special master must be conducted in accordance with the rules of evidence and
procedure governing district courts.
(c) Any order, judgment, or decree made or rendered in a civil case by the judge pro tempore or
special master has the same force and effect as if made or rendered by the district court with the regular judge
presiding.
(2) (a) Preliminary, nondispositive proceedings in criminal actions in a district court may be
conducted by a judge pro tempore or special master. The judge pro tempore or special master in a criminal
case must be appointed by a district court judge or judges as provided in 3-5-122.
(b) All proceedings before a judge pro tempore or special master in a criminal case must be
conducted in accordance with the rules of evidence and procedure governing district courts.
(c) The judge pro tempore or special master in a criminal case has the authority and power of a
district court judge to issue orders pursuant to Title 46, chapter 9, concerning bail and conditions of release or
detention of persons pending trial, and to conduct arraignments, initial appearances on warrants, and initial
appearances on probation revocations. An order made by the judge pro tempore or special master in a criminal
case has the same force and effect as if made by a district court judge.
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(d) Within 10 days after issuance of an order by a judge pro tempore or special master in a criminal
case, a party may object to the order as provided by rules of court and a district court judge shall make a de
novo determination of that portion of the order to which objection is made. The district court judge may accept,
reject, or modify the order in whole or in part. The district court judge may also receive further evidence or
recommit the matter to the judge pro tempore or special master with instructions.
(e) All proceedings before a judge pro tempore or special master in a criminal case must be
conducted in a suitable room in the courthouse, subject to the provisions of Title 46 relating to the use of two-
way electronic audio-video communication. All records must be filed and kept in accordance with the rules
governing the district court."
Section 26. Section 3-5-115, MCA, is amended to read:
"3-5-115. Agreement, petition, and appointment of judge pro tempore -- waiver of jury trial. (1)
Prior to trial and upon written agreement of all the parties to a civil action, the parties may petition for the
appointment of a judge pro tempore. Except as provided in 3-20-102, if the district court judge having
jurisdiction over the case where the action was filed finds that the appointment is in the best interest of the
parties and serves justice, the district court judge may appoint the judge pro tempore nominated by the parties
to preside over the whole action or any aspect of the action as if the regular district court judge were presiding.
(2) Except as provided in 3-20-102, an appointment of a judge pro tempore constitutes a waiver of the
right to trial by jury by any party having the right.
(3) The supreme court shall appoint the asbestos claims judge as provided in 3-20-102.
(4) The supreme court shall appoint a judge to determine the expungement or resentencing of
marijuana convictions as provided in [section 102]."
Section 26. Section 5-5-227, MCA, is amended to read:
"5-5-227. Revenue interim committee -- powers and duties -- revenue estimating and use of
estimates. (1) The revenue interim committee has administrative rule review, draft legislation review, program
evaluation, and monitoring functions for the state tax appeal board established in 2-15-1015 and for the
department of revenue and the entities attached to the department for administrative purposes, except the
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division divisions of the department that administers administer the Montana Alcoholic Beverage Code and the
Montana Marijuana Regulation and Taxation Act.
(2) (a) The committee must have prepared by December 1 for introduction during each regular
session of the legislature in which a revenue bill is under consideration an estimate of the amount of revenue
projected to be available for legislative appropriation.
(b) The committee may prepare for introduction during a special session of the legislature in which a
revenue bill or an appropriation bill is under consideration an estimate of the amount of projected revenue. The
revenue estimate is considered a subject specified in the call of a special session under 5-3-101.
(3) The committee's estimate, as introduced in the legislature, constitutes the legislature's current
revenue estimate until amended or until final adoption of the estimate by both houses. It is intended that the
legislature's estimates and the assumptions underlying the estimates will be used by all agencies with
responsibilities for estimating revenue or costs, including the preparation of fiscal notes.
(4) The legislative services division shall provide staff assistance to the committee. The committee
may request the assistance of the staffs of the office of the legislative fiscal analyst, the legislative auditor, the
department of revenue, and any other agency that has information regarding any of the tax or revenue bases of
the state.
(5) The committee shall review tax credits [scheduled to expire] as provided in 15-30-2303."
Section 28. Section 7-22-2101, MCA, is amended to read:
"7-22-2101. Definitions. As used in this part, unless the context indicates otherwise, the following
definitions apply:
(1) "Board" means a district weed board created under 7-22-2103.
(2) "Commissioners" means the board of county commissioners.
(3) "Coordinator" means the person employed by the county to conduct the district noxious weed
management program and supervise other district employees.
(4) "Department" means the department of agriculture provided for in 2-15-3001.
(5) "District" means a weed management district organized under 7-22-2102.
(6) "Integrated weed management program" means a program designed for the long-term
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management and control of weeds using a combination of techniques, including hand-pulling, cultivation, use of
herbicide, use of biological control, mechanical treatment, prescribed grazing, prescribed burning, education,
prevention, and revegetation.
(7) "Native plant" means a plant indigenous to the state of Montana.
(8) "Native plant community" means an assemblage of native plants occurring in a natural habitat.
(9) (a) "Noxious weeds" or "weeds" means any exotic plant species established or that may be
introduced in the state that may render land unfit for agriculture, forestry, livestock, wildlife, or other beneficial
uses or that may harm native plant communities and that is designated:
(i) as a statewide noxious weed by rule of the department; or
(ii) as a district noxious weed by a board, following public notice of intent and a public hearing.
(b) A weed designated by rule of the department as a statewide noxious weed must be considered
noxious in every district of the state.
(c) Marijuana, as defined in 16-12-102, may not be considered a noxious weed.
(10) "Person" means an individual, partnership, corporation, association, or state or local government
agency or subdivision owning, occupying, or controlling any land, easement, or right-of-way, including any
county, state, or federally owned and controlled highway, drainage or irrigation ditch, spoil bank, barrow pit, or
right-of-way for a canal or lateral.
(11) "Weed management" or "control" means the use of an integrated weed management program for
the containment, suppression, and, where possible, eradication of noxious weeds."
Section 29. Section 15-64-101, MCA, is amended to read:
"15-64-101. Definitions. As used in this part, the following definitions apply:
(1) "Adult-use dispensary" has the meaning provided in 16-12-102.
(1)(2) "Department" means the department of revenue provided for in 2-15-1301.
(3) "Dispensary" means an adult-use dispensary or a medical marijuana dispensary.
(4) "Licensee" means a licensee operating an adult-use dispensary or a medical marijuana
dispensary.
(5) "Marijuana" has the meaning provided in 16-12-102.
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(2) (6) "Marijuana product" means marijuana as defined in 50-32-101 and marijuana-infused products
as defined in 50-46-302 has the meaning provided in 16-12-102.
(3) "Marijuana product provider" means provider or a marijuana-infused products provider as those
terms are defined in 50-46-302.
(7) "Medical marijuana dispensary" has the meaning provided in 16-12-102.
(4)(8) "Person" means an individual, firm, partnership, corporation, association, company, committee,
other group of persons, or other business entity, however formed.
(5)(9) "Purchaser" means a person to whom a sale of marijuana or a marijuana product is made.
(6)(10) "Retail price" means the established price for which a marijuana product provider an adult-use
dispensary or medical marijuana dispensary sells marijuana or a marijuana product to a purchaser before any
discount or reduction.
(7)(11) "Sale" or "sell" means any transfer of marijuana or marijuana products for consideration,
exchange, barter, gift, offer for sale, or distribution in any manner or by any means."
Section 30. Section 15-64-102, MCA, is amended to read:
"15-64-102. Tax on marijuana product providers sales. (1) (a) There For a medical marijuana
dispensary, there is a 4% tax equal to the percentage provided in subsection (1)(b) on a marijuana product
provider's gross sales on the retail price of marijuana, marijuana products, and live marijuana plants for use by
individuals with debilitating medical conditions that is payable four times a year.
(b) The percentage of tax on gross sales in subsection (1)(a) is as follows:
(i) for gross sales during the calendar quarters beginning October 1, 2019, and ending September 30,
2021, the amount is 4%; and
(ii) for gross sales during the calendar quarters beginning October 1, 2021, and thereafter, the amount
is 2%.
(2) For an adult use-dispensary, there is a 20% tax on the retail price of marijuana, marijuana
products, and live marijuana plants.
(3) The taxes set forth in subsections (1) and (2) are imposed on the purchaser and must be
collected at the time of the sale and paid by the seller to the department for deposit in the marijuana state
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special revenue account provided for in 16-12-111.
(2)(4) A marijuana product provider dispensary licensed under Title 16, chapter 12, shall submit a
quarterly report to the department listing the total dollar amount of sales from any registered premises, as
defined in 50-46-302, operated by the marijuana product provider, including dispensaries. The report must be:
(a) made on forms prescribed by the department; and
(b) submitted within 15 days of the end of each calendar quarter.
(3)(5) At the time the report is filed, the marijuana product provider dispensary shall submit a payment
equal to the percentage provided in subsection (1)(b) or (2) of the total dollar amount of sales.
(4)(6) The department shall deposit the taxes paid under this section in the medical marijuana state
special revenue account provided for in 50-46-345 16-12-111 within the state special revenue fund established
in 17-2-102.
(5)(7) The tax imposed by this part and related interest and penalties are a personal debt of the
person required to file a return from the time that the liability arises, regardless of when the time for payment of
the liability occurs.
(6)(8) For the purpose of determining liability for the filing of statements and the payment of taxes,
penalties, and interest owed under 15-64-103 through 15-64-106:
(a) the officer of a corporation whose responsibility it is to truthfully account for and pay to the state
taxes provided for in 15-64-103 through 15-64-106 and who fails to pay the taxes is liable to the state for the
taxes and the penalty and interest due on the amounts;
(b) each officer of the corporation, to the extent that the officer has access to the requisite records, is
individually liable along with the corporation for filing statements and for unpaid taxes, penalties, and interest
upon a determination that the officer:
(i) possessed the responsibility to file statements and pay taxes on behalf of the corporation; and
(ii) possessed the responsibility on behalf of the corporation for directing the filing of statements or the
payment of other corporate obligations and exercised that responsibility, resulting in the corporation's failure to
file statements required by this part or pay taxes due as required by this part;
(c) each partner of a partnership is jointly and severally liable, along with the partnership, for any
statements, taxes, penalties, and interest due while a partner;
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(d) each member of a limited liability company that is treated as a partnership or as a corporation for
income tax purposes is jointly and severally liable, along with the limited liability company, for any statements,
taxes, penalties, and interest due while a member;
(e) the member of a single-member limited liability company that is disregarded for income tax
purposes is jointly and severally liable, along with the limited liability company, for any statements, taxes,
penalties, and interest due while a member; and
(f) each manager of a manager-managed limited liability company is jointly and severally liable, along
with the limited liability company, for any statements, taxes, penalties, and interest due while a manager.
(7)(9) In determining which corporate officer is liable, the department is not limited to considering the
elements set forth in subsection (6)(a) (8)(a) to establish individual liability and may consider any other
available information.
(8)(10) In the case of a bankruptcy, the liability of the individual remains unaffected by the discharge
of penalty and interest against the corporation. The individual remains liable for any statements and the amount
of taxes, penalties, and interest unpaid by the entity.
(11) The tax levied pursuant to this section is separate from and in addition to any general state and
local sales and use taxes that apply to retail sales, which must continue to be collected and distributed as
provided by law.
(12) The tax levied under this section must be used as designated in 16-12-111."
Section 31. Section 15-64-103, MCA, is amended to read:
"15-64-103. Returns -- payment -- recordkeeping -- authority of department. (1) Each marijuana
product provider dispensary licensed under Title 16, chapter 12, shall file a return, on a form provided by the
department, and pay the tax due as provided in 15-64-102.
(2) Each return must be authenticated by the person filing the return or by the person's agent
authorized in writing to file the return.
(3) (a) A person required to pay to the department the taxes imposed by this part shall keep for 5
years:
(i) all receipts issued; and
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(ii) an accurate record of all sales of marijuana and marijuana products, showing the name and
address of each purchaser, the date of sale, and the quantity, kind, and retail price of each product sold.
(b) For the purpose of determining compliance with the provisions of this part, the department is
authorized to examine or cause to be examined any books, papers, records, or memoranda relevant to making
a determination of the amount of tax due, whether the books, papers, records, or memoranda are the property
of or in the possession of the person filing the return or another person. In determining compliance, the
department may use statistical sampling and other sampling techniques consistent with generally accepted
auditing standards. The department may also:
(i) require the attendance of a person having knowledge or information relevant to a return;
(ii) compel the production of books, papers, records, or memoranda by the person required to attend;
(iii) implement the provisions of 15-1-703 if the department determines that the collection of the tax is
or may be jeopardized because of delay;
(iv) take testimony on matters material to the determination; and
(v) administer oaths or affirmations.
(4) Pursuant to rules established by the department, returns may be computer-generated and
electronically filed."
Section 32. Section 15-64-104, MCA, is amended to read:
"15-64-104. Deficiency assessment -- penalty and interest -- statute of limitations. (1) If the
department determines that the amount of the tax due is greater than the amount disclosed by a return, it shall
mail to the marijuana product provider licensee a notice, pursuant to 15-1-211, of the additional tax proposed to
be assessed. The notice must contain a statement that if payment is not made, a warrant for distraint may be
filed. The marijuana product provider licensee may seek review of the determination pursuant to 15-1-211.
(2) Penalty and interest must be added to a deficiency assessment as provided in 15-1-216. The
department may waive any penalty pursuant to 15-1-206.
(3) The amount of tax due under any return may be determined by the department within 5 years after
the return was filed, regardless of whether the return was filed on or after the last day prescribed for filing. For
purposes of this section, a return due under this part and filed before the last day prescribed by law or rule is
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considered to be filed on the last day prescribed for filing."
Section 33. Section 15-64-105, MCA, is amended to read:
"15-64-105. Procedure to compute tax in absence of statement -- estimation of tax -- failure to
file -- penalty and interest. (1) If the marijuana product provider licensee fails to file any return required by 15-
64-103 within the time required, the department may, at any time, audit the marijuana product provider licensee
or estimate the taxes due from any information in its possession and, based on the audit or estimate, assess
the marijuana product provider licensee for the taxes, penalties, and interest due the state.
(2) The department shall impose penalty and interest as provided in 15-1-216. The department shall
mail to the marijuana product provider licensee a notice, pursuant to 15-1-211, of the tax, penalty, and interest
proposed to be assessed. The notice must contain a statement that if payment is not made, a warrant for
distraint may be filed. The marijuana product provider licensee may seek review of the determination pursuant
to 15-1-211. The department may waive any penalty pursuant to 15-1-206."
Section 34. Section 15-64-106, MCA, is amended to read:
"15-64-106. Authority to collect delinquent taxes. (1) (a) The department shall collect taxes that
are delinquent as determined under this part.
(b) If a tax imposed by this part or any portion of the tax is not paid when due, the department may
issue a warrant for distraint as provided in Title 15, chapter 1, part 7.
(2) In addition to any other remedy, in order to collect delinquent taxes after the time for appeal has
expired, the department may direct the offset of tax refunds or other funds due the marijuana product provider
licensee from the state, except wages subject to the provisions of 25-13-614 and retirement benefits.
(3) As provided in 15-1-705, the marijuana product provider licensee has the right to a review of the
tax liability prior to any offset by the department.
(4) The department may file a claim for state funds on behalf of the marijuana product provider
licensee if a claim is required before funds are available for offset."
Section 35. Section 15-64-111, MCA, is amended to read:
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"15-64-111. Information -- confidentiality -- agreements with another state. (1) (a) Except as
provided in subsections (2) through (5), in accordance with 15-30-2618 and 15-31-511, it is unlawful for an
employee of the department or any other public official or public employee to disclose or otherwise make known
information that is disclosed in a return or report required to be filed under this part or information that concerns
the affairs of the person making the return and that is acquired from the person's records, officers, or
employees in an examination or audit.
(b) This section may not be construed to prohibit the department from publishing statistics if they are
classified in a way that does not disclose the identity of a person making a return or the content of any
particular report or return. A person violating the provisions of this section is subject to the penalty provided in
15-30-2618 or 15-31-511 for violating the confidentiality of individual income tax or corporate income tax
information.
(2) (a) This section may not be construed to prohibit the department from providing information
obtained under this part to:
(i) the department of justice, the internal revenue service, or law enforcement to be used for the
purpose of investigation and prevention of criminal activity, noncompliance, tax evasion, fraud, and abuse
under this part; or
(ii) the department of public health and human services to be used for the purpose of investigation and
prevention of noncompliance, fraud, and abuse under the Montana Medical Marijuana Act.
(b) The department may enter into an agreement with the taxing officials of another state for the
interpretation and administration of the laws of their state that provide for the collection of a sales tax or use tax
in order to promote fair and equitable administration of the laws and to eliminate double taxation.
(c) In order to implement the provisions of this part, the department may furnish information on a
reciprocal basis to the taxing officials of another state if the information remains confidential under statutes
within the state receiving the information that are similar to this section.
(3) In order to facilitate processing of returns and payment of taxes required by this part, the
department may contract with vendors and may disclose data to the vendors. The data disclosed must be
administered by the vendor in a manner consistent with this section.
(4) (a) The officers charged with the custody of the reports and returns may not be required to
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produce them or evidence of anything contained in them in an action or proceeding in a court, except in an
action or proceeding:
(i) to which the department is a party under the provisions of this part or any other taxing act; or
(ii) on behalf of a party to any action or proceedings under the provisions of this part or other taxes
when the reports or facts shown by the reports are directly involved in the action or proceedings.
(b) The court may require the production of and may admit in evidence only as much of the reports or
of the facts shown by the reports as are pertinent to the action or proceedings.
(5) This section may not be construed to limit the investigative authority of the legislative branch, as
provided in 5-11-106, 5-12-303, or 5-13-309."
Section 36. Section 15-64-112, MCA, is amended to read:
"15-64-112. Department to make rules. The department of revenue shall prescribe rules necessary
to carry out the purposes of imposing and collecting the marijuana tax on gross sales on marijuana product
providers the sale of marijuana and marijuana products."
Section 37. Section 16-12-101, MCA, is amended to read:
"16-12-101. (Effective October 1, 2021 January 1, 2022) Short title -- purpose. (1) This chapter
may be cited as the "Montana Marijuana Regulation and Taxation Act".
(2) The purpose of this chapter is to:
(a) provide for legal possession and use of limited amounts of marijuana legal for adults 21 years of
age or older;
(b) provide for the licensure and regulation of the commercial cultivation, manufacture, production,
distribution, transportation, and sale of marijuana and marijuana-infused marijuana products;
(c) allow for limited cultivation, manufacture, delivery, and possession of marijuana as permitted by
this chapter;
(d)(c) eliminate the illicit market for marijuana and marijuana-infused marijuana products;
(e)(d) prevent the distribution of marijuana sold under this chapter to persons under 21 years of age;
(f)(e) ensure the safety of marijuana and marijuana-infused marijuana products;
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(g)(f) ensure the security of registered licensed premises and adult-use dispensaries;
(h)(g) establish reporting requirements for adult-use providers and adult-use marijuana-infused
products providers licensees;
(i)(h) establish inspection requirements for registered premises licensees, including data collection on
energy use, chemical use, water use, and packaging waste to ensure a clean and healthy environment;
(j)(i) provide for the testing of marijuana and marijuana products by licensed testing laboratories;
(k)(j) give local governments a role in establishing standards for authority to allow for the operation of
marijuana businesses in their community and establishing standards for the cultivation, manufacture, and sale
of marijuana that protect the public health, safety, and welfare of residents within their jurisdictions;
(l)(k) tax the sale of marijuana and marijuana-infused marijuana products to generate revenue for the
state and provide compensation for the economic and social costs of past and current marijuana cultivation,
processing, and use, by directing funding to:
(i) conservation programs to offset the use of water and soil in marijuana cultivation;
(ii) substance abuse treatment and prevention programs;
(iii) veterans' services and support;
(iv) health care;
(v) localities where marijuana is sold; and
(vi) the state general fund;
(m)(l) authorize courts to resentence persons who are currently serving sentences for acts that are
permitted under this chapter or for which the penalty is reduced by this chapter and to redesignate or expunge
those offenses from the criminal records of persons who have completed their sentences as set forth in this
chapter; and
(m) preserve and protect Montana’s well-established hemp industry by drawing a clear distinction
between those participants and programs and the participants and programs associated with the marijuana
industry.
(3) Marijuana and marijuana products are not agricultural products, and the cultivation, processing,
manufacturing or selling of marijuana or marijuana products is not considered agriculture subject to regulation
by the department of agriculture unless expressly provided."
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Section 38. Section 16-12-102, MCA, is amended to read:
"16-12-102. (Effective October 1, 2021 January 1, 2022) Definitions. As used in this chapter, the
following definitions apply:
(1) "Adult-use dispensary" means a registered licensed premises from which a licensed adult-use
provider or adult-use marijuana-infused products provider is approved by the department to dispense marijuana
or marijuana-infused products to a consumer person licensed by the department may:
(a) obtain marijuana or marijuana products from a licensed cultivator, manufacturer, dispensary, or
other licensee approved under this chapter; and
(b) sell marijuana or marijuana products to registered cardholders, adults that are 21 years of age or
older, or both.
(2) "Adult-use marijuana-infused products provider" means a person licensed by the department to
manufacture and provide marijuana-infused products for consumers as allowed by this chapter.
(3) "Adult-use provider" means a person licensed by the department to cultivate and process
marijuana for consumers as allowed by this chapter.
(2) "Affiliate" means a person that directly, or indirectly through one or more intermediaries, controls
or is controlled by, or is under common control with, another person.
(3) "Beneficial owner of", "beneficial ownership of", or "beneficially owns an" is determined in
accordance with section 13(d) of the federal Securities and Exchange Act of 1934, as amended.
(4) "Canopy" means the total amount of square footage dedicated to live plant production at a
registered licensed premises consisting of the area of the floor, platform, or means of support or suspension of
the plant.
(5) "Consumer" means a person 21 years of age or older who obtains or possesses marijuana or
marijuana-infused marijuana products for personal use from a licensed dispensary or for use by persons who
are at least 21 years of age, but not for resale.
(6) "Control", "controls", "controlled", "controlling", "controlled by", and "under common control with"
mean the possession, direct or indirect, of the power to direct or cause the direction of the management or
policies of a person, whether through the ownership of voting owner's interests, by contract, or otherwise.
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(7) "Controlling beneficial owner" means a person that satisfies one or more of the following:
(a) is a natural person, an entity that is organized under the laws of and for which its principal place of
business is located in one of the states or territories of the United States or District of Columbia, a publicly
traded corporation, and:
(i) acting alone or acting in concert, owns or acquires beneficial ownership of 5% or more of the
owner's interest of a marijuana business;
(ii) is an affiliate that controls a marijuana business and includes, without limitation, any manager; or
(iii) is otherwise in a position to control the marijuana business; or
(b) is a qualified institutional investor acting alone or acting in concert that owns or acquires beneficial
ownership of more than 15% of the owner's interest of a marijuana business.
(6)(8) "Correctional facility or program" means a facility or program that is described in 53-1-202(2) or
(3) and to which an individual may be ordered by any court of competent jurisdiction.
(9) "Cultivator" means a person licensed by the department to:
(a) plant, cultivate, grow, harvest, and dry marijuana; and
(b) package and relabel marijuana produced at the location in a natural or naturally dried form that
has not been converted, concentrated, or compounded for sale through a licensed dispensary.
(10) "Debilitating medical condition" means:
(a) cancer, glaucoma, positive status for human immunodeficiency virus, or acquired immune
deficiency syndrome when the condition or disease results in symptoms that seriously and adversely affect the
patient's health status;
(b) cachexia or wasting syndrome;
(c) severe chronic pain that is a persistent pain of severe intensity that significantly interferes with
daily activities as documented by the patient's treating physician;
(d) intractable nausea or vomiting;
(e) epilepsy or an intractable seizure disorder;
(f) multiple sclerosis;
(g) Crohn's disease;
(h) painful peripheral neuropathy;
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(i) a central nervous system disorder resulting in chronic, painful spasticity or muscle spasms;
(j) admittance into hospice care in accordance with rules adopted by the department; or
(k) posttraumatic stress disorder.
(7)(11) "Department" means the department of revenue provided for in 2-15-1301.
(8)(12) (a) "Employee" means an individual employed to do something for the benefit of an employer.
(b) The term includes a manager, agent, or director of a partnership, association, company,
corporation, limited liability company, or organization.
(c) The term does not include a third party with whom a licensee has a contractual relationship.
(9)(13) (a) "Financial interest" means a legal or beneficial interest that entitles the holder, directly or
indirectly through a business, an investment, or a spouse, parent, or child relationship, to 1% 5% or more of the
net profits or net worth of the entity in which the interest is held.
(b) The term does not include interest held by a bank or licensed lending institution or a security
interest, lien, or encumbrance but does include holders of private loans or convertible securities.
(14) "Former medical marijuana licensee" means a person that was licensed by or had an application
for licensure pending with the department of public health and human services to provide marijuana to
individuals with debilitating medical conditions on November 3, 2020.
(15) (a) "Indoor cultivation facility" means an enclosed area used to grow live plants that is within a
permanent structure using artificial light exclusively or to supplement natural sunlight.
(b) The term may include:
(i) a greenhouse;
(ii) a hoop house; or
(iii) a similar structure that protects the plants from variable temperature, precipitation, and wind.
(16) "Licensed premises" means all locations related to, or associated with, a specific license that is
authorized under this chapter and includes all enclosed public and private areas at the location that are used in
the business operated pursuant to a license, including offices, kitchens, restrooms, and storerooms.
(10)(17) "Licensee" means a person holding a state license issued pursuant to this chapter.
(11)(18) "Local government" means a county, a consolidated government, or an incorporated city or
town.
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(12) "Manufacturing" means the production of marijuana concentrate.
(19) “Manufacturer" means a person licensed by the department to convert or compound marijuana
into marijuana products, marijuana concentrates, or marijuana extracts and package, repackage, label, or
relabel marijuana products as allowed under this chapter.
(13)(20) (a) "Marijuana" means all plant material from the genus Cannabis containing
tetrahydrocannabinol (THC) or seeds of the genus capable of germination.
(b) The term does not include hemp, including any part of that plant, including the seeds and all
derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a
delta-9 tetrahydrocannabinol concentration of not more than 0.3% on a dry weight basis, or commodities or
products manufactured with hemp, or any other ingredient combined with marijuana to prepare topical or oral
administrations, food, drink, or other products.
(c) The term does not include a drug approved by the United States food and drug administration
pursuant to section 505 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301, et seq.
(21) "Marijuana business" means a cultivator, manufacturer, adult-use dispensary, medical marijuana
dispensary, combined-use marijuana licensee, testing laboratory, marijuana transporter, or any other business
or function that is licensed by the department under this chapter.
(14)(22) "Marijuana concentrate" means any type of marijuana product consisting wholly or in part of
the resin extracted from any part of the marijuana plant.
(15)(23) "Marijuana derivative" means any mixture or preparation of the dried leaves, flowers, resin, or
byproducts of the marijuana plant, including but not limited to marijuana concentrates and marijuana-infused
other marijuana products.
(16)(24) "Marijuana-infused Marijuana product" means a product that contains marijuana and is
intended for use by a consumer by a means other than smoking. The term includes but is not limited to edible
products, ointments, and tinctures, marijuana derivatives, and marijuana concentrates.
(25) "Marijuana transporter" means a person that is licensed to transport marijuana and marijuana
products from one marijuana business to another marijuana business, or to and from a testing laboratory, and
to temporarily store the transported retail marijuana and retail marijuana products at its licensed premises, but
is not authorized to sell marijuana or marijuana products to consumers under any circumstances.
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(17)(26) "Mature marijuana plant" means a harvestable female marijuana plant that is flowering.
(27) "Medical marijuana" means marijuana or marijuana products that are for sale solely to a
cardholder who is registered under [sections 9 through 23].
(28) "Medical marijuana dispensary" means the location from which a registered cardholder may obtain
marijuana or marijuana products.
(18) "Owner" means a principal officer, director, board member, or individual who has a financial
interest or voting interest of 10% or greater in an adult-use dispensary, adult-use provider, or adult-use
marijuana-infused products provider.
(29) "Outdoor cultivation" means live plants growing in an area exposed to natural sunlight and
environmental conditions including variable temperature, precipitation, and wind.
(30) "Owner's interest" means the shares of stock in a corporation, a membership in a nonprofit
corporation, a membership interest in a limited liability company, the interest of a member in a cooperative or in
a limited cooperative association, a partnership interest in a limited partnership, a partnership interest in a
partnership, and the interest of a member in a limited partnership association.
(19)(31) "Paraphernalia" has the meaning provided for "drug paraphernalia" in 45-10-101.
(32) "Passive beneficial owner" means any person acquiring an owner's interest in a marijuana
business that is not otherwise a controlling beneficial owner or in control.
(20)(33) "Person" means an individual, partnership, association, company, corporation, limited liability
company, or organization.
(21) "Registered premises" means a location that is licensed pursuant to this chapter and includes:
(a) all enclosed public and private areas at the location that are used in the business operated
pursuant to a license, including offices, kitchens, restrooms, and storerooms; and
(b) if the department has specifically licensed a location for outdoor cultivation, production,
manufacturing, wholesale sale, or retail sale of adult-use marijuana and adult-use marijuana-infused products,
the entire unit of land that is created by subsection or partition of land that the licensee owns, leases, or has the
right to occupy.
(34) "Qualified institutional investor" means:
(a) a bank or banking institution including any bank, trust company, member bank of the federal
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reserve system, bank and trust company, stock savings bank, or mutual savings bank that is organized and
doing business under the laws of this state, any other state, or the laws of the United States;
(b) a bank holding company as defined in 32-1-109;
(c) a company organized as an insurance company whose primary and predominant business activity
is the writing of insurance or the reinsuring of risks underwritten by insurance companies, and that is subject to
regulation or oversight by the insurance department of the office of the state auditor or a similar agency of
another state, or any receiver or similar official or any liquidating agent for such a company, in their capacity as
such.an insurance company;
(d) an investment company registered under section 8 of the federal Investment Company Act of
1940, as amended;
(e) an employee benefit plan or pension fund subject to the federal Employee Retirement Income
Security Act of 1974, excluding an employee benefit plan or pension fund sponsored by a licensee or an
intermediary holding company licensee that directly or indirectly owns 10% or more of a licensee;
(f) a state or federal government pension plan; or
(g) any other entity identified by rule by the department.
(35) "Registered cardholder" or "cardholder" means a Montana resident with a debilitating medical
condition who has received and maintains a valid registry identification card.
(36) "Registry identification card" means a document issued by the department pursuant to [section
11] that identifies an individual as a registered cardholder.
(22)(37) (a) "Resident" means an individual who meets the requirements of 1-1-215.
(b) An individual is not considered a resident for the purposes of this chapter if the individual:
(i) claims residence in another state or country for any purpose; or
(ii) is an absentee property owner paying property tax on property in Montana.
(23)(38) "Seedling" means a marijuana plant that has no flowers and is less than 12 inches in height
and 12 inches in diameter.
(24)(39) "State laboratory" means the laboratory operated by the department of public health and
human services to conduct environmental analyses.
(25)(40) "Testing laboratory" has the meaning as provided in 50-46-302 means a qualified person,
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licensed under this chapter that:
(a) provides testing of representative samples of marijuana and marijuana products; and
(b) provides information regarding the chemical composition and potency of a sample, as well as the
presence of molds, pesticides, or other contaminants in a sample.
(26) "Unduly burdensome" means requiring such a high investment of money, time, or any other
resource or asset to achieve compliance that a reasonably prudent businessperson would not operate.
(41) (a) "Usable marijuana" means the dried leaves and flowers of the marijuana plant that are
appropriate for the use of marijuana by an individual.
(b) The term does not include the seeds, stalks, and roots of the plant."
Section 39. Section 16-12-104, MCA, is amended to read:
"16-12-104. (Effective October 1, 2021 January 1, 2022) Department responsibilities --
licensure. (1) The department shall establish and maintain a registry of persons who receive licenses under
this chapter.
(2) (a) The department shall issue the following license types to persons who submit applications
meeting the requirements of this chapter:
(a) licenses:
(i) to persons who apply to operate as adult-use providers or adult-use marijuana-infused products
providers and who submit applications meeting the requirements of this chapter; and
(ii) for adult-use dispensaries established by adult-use providers or adult-use marijuana-infused
products providers; and
(b) endorsements for manufacturing to an adult-use provider or an adult-use marijuana-infused
products provider that applies for a manufacturing endorsement and meets requirements established by the
department by rule.
(i) cultivator license;
(ii) manufacturer license;
(iii) adult-use dispensary license or a medical marijuana dispensary license;
(iv) testing laboratory license.
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(v) marijuana transporter license.
(vi) combined-use marijuana license.
(b) The department may establish other license types, sub-types, endorsements, and restrictions it
considers necessary for the efficient administration of this chapter.
(2) A person who obtains an adult-use provider license, adult-use marijuana-infused products
provider license, or adult-use dispensary license or an employee of a licensed adult-use provider or adult-use
marijuana-infused products provider is authorized to cultivate, manufacture, possess, sell, and transport
marijuana as allowed by this chapter.
(3) A person who obtains a testing laboratory license or an employee of a licensed testing laboratory
is authorized to possess, test, and transport marijuana as allowed by this chapter.
(4) The department shall conduct criminal history background checks as required by 50-46-307 and
50-46-308 before issuing a license to a person named as a provider or marijuana-infused products provider.
(5) Licenses issued pursuant to this chapter must:
(a) be laminated and produced on a material capable of lasting for the duration of the time period for
which the license is valid;
(b) indicate whether an adult-use provider or an adult-use marijuana-infused products provider has an
endorsement for manufacturing;
(c) state the date of issuance and the expiration date of the license; and
(d) contain other information that the department may specify by rule.
(6) (a) The department shall make application forms available and begin accepting applications for
licensure and endorsement under this chapter on or before January 1, 2022.
(3) A licensee may not cultivate hemp or engage in hemp manufacturing at a licensed premises.
(4) A person licensed to cultivate or manufacture marijuana or marijuana products is subject to the
provisions contained in the Montana Pesticides Act provided for in Title 80, chapter 8.
(5) The department shall assess applications for licensure or renewal to determine if an applicant,
controlling beneficial owner, or a person with a financial interest in the applicant meets any of the criteria
established in this chapter for denial of a license.
(6) A license issued pursuant to this chapter must be displayed by the licensee as provided for in rule
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by the department.
(b)(7) (a) The department shall review the information contained in an application or renewal
submitted pursuant to this chapter and shall approve or deny an application:
(i) within 30 60 days of receiving the application or renewal and all related application materials from a
former medical marijuana licensee or an existing licensed provider or marijuana-infused products provider
licensee under this chapter; and
(ii) within 90 120 days of receiving the application and all related application materials from a new
applicant.
(c)(b) If the department fails to act on a completed application within the time allowed under
subsection (6)(b) (7)(a), the department shall:
(i) reduce the cost of the licensing fee for a new applicant for licensure or endorsement or for a
licensee seeking renewal of a license by 5% each week that the application is pending; and
(ii) allow a licensee to continue operation until the department takes final action.
(d) Applications that are not processed within the time allowed under subsection (6)(b) remain active
until the department takes final action.
(e)(c) (i) The department may not take final action on an application for a license or renewal of a
license until the department has completed a satisfactory inspection as required by this chapter and related
administrative rules.
(ii) Failure by the department to complete the required inspection within the time allowed under
subsection (6)(b) does not prevent an application from being considered complete for the purpose of subsection
(6)(c).
(f)(d) The department shall issue a license or endorsement within 5 days of approving an application
or renewal.
(7)(8) Review of a rejection of an application or renewal may be conducted as a contested case
hearing before the department's office of dispute resolution pursuant to the provisions of the Montana
Administrative Procedure Act.
(a) A person may appeal any decision of the department of revenue concerning the issuance,
rejection, suspension, or revocation of a license provided for by this chapter to the district court in the county in
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which the person operates or proposes to operate. If a person operates or seeks to operate in more than one
county, the person may seek judicial review in the district court with jurisdiction over actions arising in any of the
counties where it operates or seeks to operate.
(b) An appeal pursuant to subsection (8)(a) must be made by filing a complaint setting forth the
grounds for relief and the nature of relief demanded with the district court within 30 days following receipt of
notice of the department's final decision.
(8)(9) Licenses and endorsements issued to adult-use providers and adult-use marijuana-infused
products providers under this chapter must be renewed annually.
(9)(10) (a) The department shall provide the names and phone numbers of adult-use providers and
adult-use marijuana-infused products providers persons licensed under this chapter and the city, town, or
county where registered licensed premises and testing laboratories are located to the public on the
department's website. The Except as provided in subsection (10)(b), the department may not disclose the
physical location or address of an adult-use provider, adult-use marijuana-infused products provider, adult-use
dispensary, or testing laboratory a marijuana business.
(b) The department may share the physical location or address of a marijuana business with another
state agency, political subdivision, and the state fire marshal.
(10)(11) The department may not prohibit an adult-use provider, adult-use marijuana-infused products
provider, a cultivator, manufacturer, or adult-use dispensary licensee operating in compliance with the
requirements of this chapter from operating at a shared location with a provider, marijuana-infused products
provider, or dispensary as defined in 50-46-302 if the provider, marijuana-infused products provider, or
dispensary is owned by the same person medical marijuana dispensary.
(11)(12) The department may not adopt rules requiring a consumer to provide an adult-use provider,
adult-use marijuana-infused products provider, or adult-use dispensary a licensee with identifying information
other than government-issued identification to determine the consumer's age or require the recording of
personal information about consumers other than information typically required in a retail transaction. A
licensee that scans a person's driver's license using an electronic reader to determine the person's age:
(a) may only use data or metadata from the scan determine the person's age;
(b) may not transfer or sell that data or metadata to another party; and
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(c) shall permanently delete any data or metadata from the scan within 180 days, unless otherwise
provided for in this chapter or by the department.
(13) (a) Except as provided in subsection (13)(b), licenses issued by the department under this
chapter are nontransferable.
(b) A licensee may sell its marijuana business, including live plants, inventory, and material assets to
a person who is licensed by the department under the provisions of this chapter. The department may, in its
discretion, issue a temporary license to the acquiring party to facilitate the transfer of the licensee’s marijuana
business.
(14) A person who is not a controlling beneficial owner in a licensee may not receive or otherwise
obtain an ownership interest in a licensee that results in the person becoming a controlling beneficial owner
unless the licensee notifies, in writing, the department of the proposed transaction, and the department
determines that the person qualifies for ownership under the provisions of this chapter."
Section 40. Section 16-12-105, MCA, is amended to read:
"16-12-105. (Effective October 1, 2021 January 1, 2022) Department responsibility to monitor
and assess marijuana production, testing, sales, and license revocation. (1) (a) The department shall
implement a system for tracking marijuana, marijuana concentrate, and marijuana-infused and marijuana
products from either the seed or the seedling stage until the marijuana, marijuana concentrate, or marijuana-
infused product it is sold to a consumer or registered cardholder.
(b) The system must:
(i) ensure that the marijuana, marijuana concentrate, or marijuana-infused product and marijuana
products cultivated, manufactured, possessed, and sold under this chapter is are not sold or otherwise provided
to an individual who is under 21 years of age and who is not a medical marijuana unless that person is a
registered cardholder; and
(ii)(c) The system must be made available to adult-use providers, adult-use marijuana-infused products
providers, adult-use dispensaries, and testing laboratories at no additional cost licensees, except that licensees
shall bear the responsibility and cost for procuring unique identification tracking tags to facilitate the tracking of
marijuana and marijuana products.
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(2) The department shall if technology allows, require use of a mandatory semicashless payment
system occurring at the point of sale for all dispensaries. Adult-use dispensaries and medical marijuana
dispensaries are required to utilize a semicashless point of sale system when selling marijuana and marijuana
products to consumers or registered cardholders. The department may establish by rule the requirements,
standards, and private company that a licensee must use when utilizing such a system in a dispensary. The
semicashless processor is authorized to make deposits to an account specified by the department for tax
collection.
(3) The department is authorized to share seed-to-sale information with the licensee’s depository
institution, any other government agency, or the semicashless processor.
(b) The department may implement the same system that is used to track marijuana, marijuana
concentrate, and marijuana-infused products pursuant to 50-46-304.
(2) The department shall assess applications for an adult-use provider or adult-use marijuana-infused
products provider license to determine if a person with a financial interest in the applicant meets any of the
criteria established in 16-12-203 for denial of a license.
(3) Before issuing or renewing a license, the department shall inspect the proposed registered
premises of an adult-use provider or adult-use marijuana-infused products provider and shall inspect the
property to be used to ensure an applicant for licensure or license renewal is in compliance with this chapter.
The department may not issue or renew a license if the applicant does not meet the requirements of this
chapter.
(4) (a) The department shall license providers and marijuana-infused products providers according to
a tiered canopy system.
(b) (i) The system shall include, at a minimum, the following license types:
(A) A micro tier canopy license allows for a canopy of up to 250 square feet at one registered
premises.
(B) A tier 1 canopy license allows for a canopy of up to 1,000 square feet at one registered premises.
A minimum of 500 square feet must be equipped for cultivation.
(C) A tier 2 canopy license allows for a canopy of up to 2,500 square feet at up to two registered
premises. A minimum of 1,100 square feet must be equipped for cultivation.
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(D) A tier 3 canopy license allows for a canopy of up to 5,000 square feet at up to three registered
premises. A minimum of 2,600 square feet must be equipped for cultivation.
(E) A tier 4 canopy license allows for a canopy of up to 7,500 square feet at up to four registered
premises. A minimum of 5,100 square feet must be equipped for cultivation.
(F) A tier 5 canopy license allows for a canopy of up to 10,000 square feet at up to five registered
premises. A minimum of 7,750 square feet must be equipped for cultivation.
(G) A tier 6 canopy license allows for a canopy of up to 13,000 square feet at up to five registered
premises. A minimum of 10,250 square feet must be equipped for cultivation.
(H) A tier 7 canopy license allows for a canopy of up to 15,000 square feet at up to five registered
premises. A minimum of 13,250 square feet must be equipped for cultivation.
(I) A tier 8 canopy license allows for a canopy of up to 17,500 square feet at up to five registered
premises. A minimum of 15,250 square feet must be equipped for cultivation.
(J) A tier 9 canopy license allows for a canopy of up to 20,000 square feet at up to six registered
premises. A minimum of 17,775 square feet must be equipped for cultivation.
(K) A tier 10 canopy license allows for a canopy of up to 30,000 square feet at up to seven registered
premises. A minimum of 24,000 square feet must be equipped for cultivation.
(ii) As used in this subsection (4)(b), "equipped for cultivation" means that the space is either ready for
cultivation or in use for cultivation.
(c) An adult-use provider or adult-use marijuana-infused products provide) who has reached capacity
under the existing license may apply to advance to the next licensing tier. The department:
(i) may increase a licensure level by only one tier at a time; and
(ii) shall conduct an inspection of the adult-use provider or adult-use marijuana-infused products
provider's registered premises and proposed premises within 30 days of receiving the application and before
approving the application.
(d) The department may create additional licensing tiers by rule if a provider with a tier 10 canopy
license petitions the department to create a new licensure level and:
(i) the producer or provider demonstrates that the licensee is using the full amount of canopy currently
authorized; and
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(ii) the tracking system shows the licensee is selling at least 80% of the marijuana or marijuana-infused
products produced by the square footage of the licensee's existing license over the 2 previous quarters or the
licensee can otherwise demonstrate to the department that there is a market for the marijuana or marijuana-
infused products it seeks to produce.
(e) The department is authorized to create additional tiers as necessary, including an adjusted tier
system to account for outdoor cultivation.
(f) The registered premises limitations for each tier of licensing apply only to registered premises at
which marijuana is cultivated. The limitations do not apply to the number of adult-use dispensaries an adult-use
provider or adult-use marijuana-infused products provider may have.
(g) The department shall require evidence that the licensee is able to successfully cultivate the
minimum amount of space allowed for the tier and sell the amount of marijuana produced by the minimum
cultivation level before allowing a licensee to move up a tier. Annual licensing fees must be prorated based on
the time licensed at a specific tier if less than 1 year.
(h) No person may be initially licensed greater than a tier 2 unless the person is purchasing a
business licensed at a tier higher than tier 2 or the person is already licensed at higher than tier 2 under Title
50, chapter 46, part 3, and is applying for the equivalent size tier under this chapter."
Section 41. Section 16-12-106, MCA, is amended to read:
"16-12-106. Personal use and cultivation of marijuana -- penalties. (1) Subject to the limitations in
16-12-108, the following acts are lawful and may not be an offense under state law or the laws of any local
government within the state, be a basis to impose a civil fine, penalty, or sanction, or be a basis to detain,
search, or arrest, or otherwise deny any right or privilege, or to seize or forfeit assets under state law or the
laws of any local government for a person who is 21 years of age or older:
(a) possessing, purchasing, obtaining, using, ingesting, inhaling, or transporting 1 ounce or less of
usable marijuana, except that not more than 8 grams may be in a concentrated form and not more than 800
milligrams of THC may be in edible marijuana products meant to be eaten or swallowed in solid form;
(b) transferring, delivering, or distributing without consideration, to a person who is 21 years of age or
older, 1 ounce or less of usable marijuana, except that not more than 8 grams may be in a concentrated form
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and not more than 800 milligrams of THC may be in edible marijuana products meant to be eaten or swallowed
in solid form;
(c) in or on the grounds of a private residence, possessing, planting, or cultivating up to four two
mature marijuana plants and four two seedlings, or four mature marijuana plants and four seedlings for a
registered cardholder, and possessing, harvesting, drying, processing, or manufacturing the marijuana,
provided that:
(i) marijuana plants and any marijuana produced by the plants in excess of 1 ounce must be kept in a
locked space in or on the grounds of one private residence and may not be visible by normal, unaided vision
from a public place;
(ii) not more than twice the number of marijuana plants permitted under this subsection (1)(c) may be
cultivated in or on the grounds of a single private residence simultaneously;
(iii) a person growing or storing marijuana plants under this subsection (1)(c) must own the private
residence where the plants are cultivated and stored or obtain written permission to cultivate and store
marijuana from the owner of the private residence; and
(iv) no portion of a private residence used for cultivation of marijuana and manufacture of marijuana-
infused marijuana products for personal use may be shared with, rented, or leased to an adult-use provider or
an adult-use marijuana-infused products provider a marijuana business;
(d) assisting another person who is at least 21 years of age in any of the acts permitted by this
section, including allowing another person to use one's personal residence for any of the acts described in this
section; and
(e) possessing, purchasing, using, delivering, distributing, manufacturing, transferring, or selling to
persons 18 years of age or older paraphernalia relating to marijuana.
(2) A person who cultivates marijuana plants that are visible by normal, unaided vision from a public
place in violation of subsection (1)(c)(i) is subject to a civil fine not exceeding $250 and forfeiture of the
marijuana.
(3) A person who cultivates marijuana plants or stores marijuana outside of a locked space is subject
to a civil fine not exceeding $250 and forfeiture of the marijuana.
(4) A person who smokes marijuana in a public place, other than in an area licensed for that activity
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by the department, is subject to a civil fine not exceeding $50.
(5) For a person who is under 21 years of age and is not a registered cardholder, possession, use,
ingestion, inhalation, transportation, delivery without consideration, or distribution without consideration of 1
ounce or less of marijuana is punishable by forfeiture of the marijuana and the underage person's choice
between:
(a) a civil fine not to exceed $100; or
(b) up to 4 hours of drug education or counseling in lieu of the fine.
(6) For a person who is under 18 years of age and is not a registered cardholder, possession, use,
transportation, delivery without consideration, or distribution without consideration of marijuana paraphernalia is
punishable by forfeiture of the marijuana paraphernalia and the underage person's choice between:
(a) a civil fine not to exceed $100; or
(b) up to 4 hours of drug education or counseling in lieu of the fine.
(7) Unless otherwise permitted under the provisions of Title 50, chapter 46, part 3 [sections 9 through
23], the possession, production, delivery without consideration to a person 21 years of age or older, or
possession with intent to deliver more than 1 ounce but less than 2 ounces of marijuana or more than 8 grams
but less than 16 grams of marijuana in a concentrated form is punishable by forfeiture of the marijuana and:
(a) for a first violation, the person's choice between a civil fine not exceeding $200 or completing up to
4 hours of community service in lieu of the fine;
(b) for a second violation, the person's choice between a civil fine not exceeding $300 or completing
up to 6 hours of community service in lieu of the fine;
(c) for a third or subsequent violation, the person's choice between a civil fine not exceeding $500 or
completing up to 8 hours of community service in lieu of the fine; and
(d) for a person under 21 years of age, the person's choice between a civil fine not to exceed $200 or
attending up to 8 hours of drug education or counseling in lieu of the fine.
(8) A person may not be denied adoption, custody, or visitation rights relative to a minor solely for
conduct that is permitted by this chapter.
(9) A person may not be denied access to or priority for an organ transplant or denied access to
health care solely for conduct that is permitted by this chapter.
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(10) A person currently under parole, probation, or other state supervision or released awaiting trial or
other hearing may not be punished or otherwise penalized solely for conduct that is permitted by this chapter.
(11) A holder of a professional or occupational license may not be subjected to professional discipline
for providing advice or services arising out of or related to conduct that is permitted by this chapter solely on the
basis that marijuana is prohibited by federal law.
(12) It is the public policy of the state of Montana that contracts related to the operation of licensees be
enforceable.
(8) A person may not be denied adoption, custody, or visitation rights relative to a minor solely for
conduct that is permitted by this chapter.
(9) A person may not be denied access to or priority for an organ transplant or denied access to
health care solely for conduct that is permitted by this chapter."
Section 42. Section 16-12-107, MCA, is amended to read:
"16-12-107. (Effective October 1, 2021 January 1, 2022) Legal protections -- allowable amounts.
(1) An adult-use provider or adult-use marijuana-infused products provider A cultivator may have the canopy
allotment allowed by the department. The canopy allotment is a cumulative total for all of the adult-use
provider's or adult-use marijuana-infused products provider's registered premises.
(2) Except as provided in 16-12-108, a person licensed under this chapter may not be arrested,
prosecuted, penalized, or denied any right or privilege, including but not limited to civil fine or disciplinary action
by a professional licensing board or the department of labor and industry, solely because the person cultivates,
manufactures, possesses, or transports marijuana in the amounts and manner allowed under this chapter.
(3) A person may not be arrested or prosecuted for possession, conspiracy as provided in 45-4-102,
or any other offense solely for being in the presence or vicinity of the use of marijuana and marijuana-infused
marijuana products as permitted under this chapter.
(4) Except as provided in 16-12-210, possession of or application for a license does not solely
constitute probable cause to search a person or the property of a person or otherwise subject a person or
property of a person to inspection by any governmental agency, including a law enforcement agency.
(5) The provisions of this section relating to protection from arrest or prosecution do not apply to a
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person unless the person has obtained a license prior to an arrest or the filing of a criminal charge. It is not a
defense to a criminal charge that a person obtains a license after an arrest or the filing of a criminal charge.
(6) An adult-use provider or adult-use marijuana-infused products provider A cultivator or
manufacturer is presumed to be engaged in the use of marijuana as allowed by this chapter if the person is in
possession of an amount of marijuana that does not exceed the amount permitted under this chapter."
Section 43. Section 16-12-108, MCA, is amended to read:
"16-12-108. Limitations of act. (1) This chapter does not permit:
(a) any individual to operate, navigate, or be in actual physical control of a motor vehicle, train,
aircraft, motorboat, or other motorized form of transport while under the influence of marijuana or marijuana
products;
(b) consumption of marijuana or marijuana products while operating or being in physical control of a
motor vehicle, train, aircraft, motorboat, or other motorized form of transport while it is being operated;
(c) smoking or consuming marijuana while riding in the passenger seat within an enclosed
compartment of a motor vehicle, train, aircraft, motorboat, or other motorized form of transport while it is being
operated;
(d) delivery or distribution of marijuana or marijuana products, with or without consideration, to a
person under 21 years of age;
(e) purchase, consumption, or use of marijuana or marijuana products by a person under 21 years of
age;
(f) possession or transport of marijuana or marijuana products by a person under 21 years of age
unless the underage person is at least 18 years of age and is an employee of an adult-use provider, adult-use
marijuana-infused products provider, or adult-use dispensary a marijuana business licensed under this chapter
and engaged in work activities;
(g) possession or consumption of marijuana or marijuana products, or possession of marijuana
paraphernalia:
(i) on the grounds of any property owned or leased by a school district, a public or private preschool,
school, or postsecondary school as defined in 20-5-402;
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(ii) in a school bus or other form of public transportation;
(iii) in a health care facility as defined in 50-5-101; or
(iv) on the grounds of any correctional facility; or
(v) in a hotel or motel room;
(h) smoking using marijuana or marijuana products in a location where smoking tobacco is prohibited;
(i) consumption of marijuana or marijuana products in a public place, except as allowed by the
department;
(j) conduct that endangers others;
(k) undertaking any task while under the influence of marijuana or marijuana products if doing so
would constitute negligence or professional malpractice; or
(l) performing solvent-based extractions on marijuana using solvents other than water, glycerin,
propylene glycol, vegetable oil, or food-grade ethanol unless licensed for this activity by the department.
(2) A person may not cultivate marijuana in a manner that is visible from the street or other public
area.
(3) A hospice or residential care facility licensed under Title 50, chapter 5, may adopt a policy that
allows use of marijuana by a registered cardholder.
(2)(4) Nothing in this chapter may be construed to:
(a) require an employer to permit or accommodate conduct otherwise allowed by this chapter in any
workplace or on the employer's property;
(b) prohibit an employer from disciplining an employee for violation of a workplace drug policy or for
working while intoxicated by marijuana or marijuana products;
(c) prevent an employer from declining to hire, discharging, disciplining, or otherwise taking an
adverse employment action against an individual with respect to hire, tenure, terms, conditions, or privileges of
employment because of the individual's violation of a workplace drug policy or intoxication by marijuana or
marijuana products while working;
(d) prohibit an employer from including in any contract a provision prohibiting the use of marijuana for
a debilitating medical condition; or
(e) permit a cause of action against an employer for wrongful discharge pursuant to 39-2-904 or
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discrimination pursuant to 49-1-102.
(3)(5) Nothing in this chapter may be construed to prohibit a person from prohibiting or otherwise
regulating the consumption, cultivation, distribution, processing, sale, or display of marijuana, marijuana-infused
marijuana products, and marijuana paraphernalia on private property the person owns, leases, occupies, or
manages, except that a lease agreement executed after January 1, 2021, may not prohibit a tenant from
lawfully possessing and consuming marijuana by means other than smoking unless required by federal law or
to obtain federal funding, except that a lease agreement executed after January 1, 2021, may not prohibit a
tenant from lawfully possessing and consuming marijuana by means other than smoking unless required by
federal law or to obtain federal funding.
(4) Nothing in this chapter limits the rights, privileges, immunities, or defenses provided under Title
50, chapter 46, part 3.
(5)(6) An adult-use provider or adult-use marijuana-infused products provider A licensee who violates
15-64-103 or 15-64-104 or fails to pay any other taxes owed to the department under Title 15, is subject to
revocation of the person's license from the date of the violation until a period of up to 1 year after the
department of revenue certifies compliance with 15-64-103 or 15-64-104.
(7) Unless specifically exempted by this chapter, the provisions of Title 45, chapter 9, apply to the
conduct of consumers, licensees, and registered cardholders."
Section 44. Section 16-12-109, MCA, is amended to read:
"16-12-109. (Effective October 1, 2021 January 1, 2022) Unlawful conduct by licensees --
penalties. (1) If the department has reasonable cause to believe that a licensee has violated a provision of this
chapter or a rule of the department, it may, in its discretion and in addition to any other penalties prescribed:
(a) reprimand a licensee;
(b) revoke the license of the licensee;
(c) suspend the license for a period of not more than 3 months;
(d) refuse to grant a renewal of the license after its expiration; or
(e) impose a civil penalty not to exceed $3,000.
(2) The department shall consider mitigating circumstances and may adjust penalties within penalty
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ranges based on its consideration of mitigating circumstances. Examples of mitigating circumstances are:
(a) compliance with the provisions of this chapter within the prior 3 years;
(b) the licensee has made good faith efforts to prevent a violation; or
(c) the licensee has cooperated in the investigation of the violation and the licensee or an employee
or agent of the licensee accepts responsibility.
(3) The department shall consider aggravating circumstances and may adjust penalties within penalty
ranges based on its consideration of aggravating circumstances. Examples of aggravating circumstances are:
(a) prior warnings about compliance problems;
(b) prior violations of the provisions of this chapter within the past 3 years;
(c) lack of written policies governing employee conduct;
(d) additional violations revealed during the course of the investigation;
(e) efforts to conceal a violation;
(f) intentional violations; or
(g) involvement of more than one patron or employee in a violation.
(4) For each licensing program regulated by the department under this chapter, the department is
designated as a criminal justice agency within the meaning of 44-5-103 for the purpose of obtaining confidential
criminal justice information regarding licensees and license applicants and regarding possible unlicensed
practice.
(1)(5) The department shall revoke and may not reissue a license or endorsement belonging to an
individual who a person:
(a) whose controlling beneficial owner is an individual convicted of a felony drug offense;
(b) who allows another individual person not authorized or lawfully allowed to be in possession of the
individual's license; or
(c) fails to cooperate with the department concerning an investigation or inspection if the individual is
licensed and cultivating marijuana, engaging in manufacturing, or manufacturing marijuana-infused products.
(c) who transports marijuana or marijuana products outside of Montana, unless otherwise allowed by
federal law;
(d) who operates a carbon dioxide or hydrocarbon extraction system without obtaining a
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manufacturing license;
(e) who purchases marijuana from an unauthorized source in violation of this chapter; or
(f) who sells, distributes, or transfers marijuana or marijuana products to a person the licensee knows
or should know is under 21 years of age.
(2) The department shall revoke a license issued under this chapter if the licensee:
(a) purchases marijuana from an unauthorized source in violation of this chapter;
(b) sells marijuana, marijuana concentrate, or marijuana-infused products to a person the licensee
knows or should know is under 21 years of age;
(c) operates a carbon dioxide or hydrocarbon extraction system without obtaining a manufacturing
endorsement; or
(d) transports marijuana or marijuana-infused products outside of Montana, unless allowed by federal
law.
(3) A licensee who violates the advertising restrictions imposed under 16-12-211 is subject to:
(a) a written warning for the first violation;
(b) a 5-day license suspension or a $500 fine for a second violation;
(c) a 5-day license suspension or a $1,000 fine for a third violation;
(d) a 30-day license suspension or a $2,500 fine for a fourth violation; and
(e) a license revocation for a fifth violation.
(4) Except for the license revocations required under this section, a licensee shall choose whether to
pay a fine or be subject to a license suspension when a penalty is imposed under this section.
(5)(6) A licensee whose license is revoked may not reapply for licensure for 3 years from the date of
the revocation.
(6) If no other penalty is specified under this chapter, an adult-use provider or adult-use marijuana-
infused products provider who violates this chapter is punishable by a civil fine not to exceed $500, unless
otherwise provided in this chapter or unless the violation would constitute a violation of Title 45. An offense
constituting a violation of Title 45 must be charged and prosecuted pursuant to the provisions of Title 45.
(7) Review of a department action imposing a fine, suspension, or revocation under this chapter must
be conducted as a contested case hearing before the department's office of dispute resolution under the
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provisions of the Montana Administrative Procedure Act.
(a) A person may appeal any decision of the department concerning the issuance, rejection,
suspension, or revocation of a license provided for by this chapter to the district court in the county in which the
person operates or proposes to operate. If a person operates or seeks to operate in more than one county, the
person may seek judicial review in the district court with jurisdiction over actions arising in any of the counties
where it operates or seeks to operate.
(b) An appeal pursuant to subsection (7)(a) shall be made by filing a complaint setting forth the
grounds for relief and the nature of relief demanded with the district court within 30 days following receipt of
notice of the department's final decision."
Section 45. Section 16-12-110, MCA, is amended to read:
"16-12-110. (Effective October 1, 2021 January 1, 2022) Legislative monitoring. (1) The revenue
interim economic affairs committee shall provide oversight of the department's activities pursuant to this
chapter, including but not limited to monitoring of:
(a) the number of licensees;
(b) issues related to the cultivation, manufacture, sale, testing, and use of marijuana; and
(c) the development, implementation, and use of the seed-to-sale tracking system established in
accordance with 16-12-105.
(2) The revenue economic affairs interim committee shall identify issues likely to require future
legislative attention and develop legislation to present to the next regular session of the legislature.
(3) (a) The department shall periodically report to the revenue economic affairs interim committee
and submit a report to the legislative clearinghouse, as provided in 5-11-210, on persons who are licensed or
registered pursuant to 16-12-203. The report must include:
(i) the number of adult-use providers, adult-use marijuana-infused products providers, cultivators,
manufacturers, and adult-use dispensaries licensed pursuant to this chapter;
(ii) the number of endorsements approved for manufacturing and type of violations committed by
licensees;
(iii) the number of licenses revoked; and
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(iv) the amount of marijuana and marijuana products cultivated and sold pursuant to this chapter.
(b) The report may not provide any identifying information of adult-use providers, adult-use marijuana-
infused products providers, or adult-use cultivators, manufacturers, and dispensaries except basic geographic
or other statistical information.
(4) The report on inspections required under 16-12-210 must include, at a minimum, the following
information for both announced and unannounced inspections:
(a) the number of inspections conducted, by canopy licensure tier;
(b) the number of adult-use providers or adult-use marijuana-infused products providers licensees
that were inspected more than once during the year;
(c) the number of inspections that were conducted because of complaints made to the department;
and
(d) the types of enforcement actions taken as a result of the inspections.
(5) The reports provided for in this section must also be provided to the transportation interim
committee provided for in 5-5-233."
Section 46. Section 16-12-111, MCA, is amended to read:
"16-12-111. (Effective October 1, 2021) Marijuana compensation state special revenue account
-- operating reserve -- transfer of excess funds. (1) There is a dedicated marijuana compensation state
special revenue account within the state special revenue fund established in 17-2-102, to be administered by
the department.
(2) The account consists of:
(a) money deposited into the account pursuant to this chapter;
(b) the taxes collected pursuant to Title 15, chapter 64, part 1;
(c) license and registered cardholder fees deposited into the account pursuant to this chapter;
(d) taxes deposited into the account pursuant to [section 95]; and
(e) civil penalties collected under this chapter.
(3) Except as provided in subsection (4), money in the account must be used by the department for
the purpose of administering the provisions of this chapter.
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(4) At the end of each fiscal year, the department shall transfer funds in excess of a 3-month
operating reserve necessary to fund operating costs at the beginning of the next fiscal year in the following
order:
(a) an amount not to exceed $6 million must be transferred to the marijuana healing and ending
addiction through recovery and treatment (HEART) fund account established in 17-6-606 [section 100];
(b) the net balance remaining after distribution to the HEART fund account must be distributed as
follows:
(i) 20% to the credit of the department of fish, wildlife, and parks to be used solely as funding for
wildlife habitat in the same manner as funding generated under 87-1-242(3) and used pursuant to 87-1-209;
(ii) 4% to the state park account established in 23-1-105(1);
(iii) 4% to the trails and recreational facilities account established in 23-2-108;
(iv) 4% to the nongame wildlife account established in 87-5-121;
(v) 3% or $200,000, whichever is less, to the veterans and surviving spouses state special revenue
account provided for in [section 93];
(vi) for the biennium beginning July 1, 2021, $300,000 to the department of justice to administer grant
funding to local and state law enforcement agencies for the purpose of purchasing and training drug-detection
canines and canine handlers, including canines owned by local law enforcement agencies to replace canines
who were trained to detect marijuana;
(vii) $150,000 to the board of crime control to fund crisis intervention team training as provided in 44-7-
110; and
(viii) the remainder to the general fund.
(2) Marijuana sales taxes collected under the provisions of part 4 of this chapter must, in accordance
with the provisions of17-2-124, be deposited into the account along with any interest and income earned on the
account.
(3) Funds deposited into the account must be transferred in the following amounts to provide funding
as set out below:
(a) 4.125% of the funds to be deposited into the nongame wildlife account established in 87-5-121;
(b) 4.125% of the funds to be deposited into the state park account established in 23-1-105(1);
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(c) 4.125% of the funds to be deposited into the trails and recreational facilities account established in
23-2-108;
(d) 37.125% of the funds to be deposited to the credit of the department of fish, wildlife, and parks to
be used solely as funding for wildlife habitat in the same manner as funding generated under 87-1-242(3) and
used pursuant to 87-1-209;
(e) 10.5% to the state general fund; and
(f) the remainder in the subaccounts provided for in this subsection (3)(f). There are subaccounts in
the marijuana compensation special revenue account established by subsection (1). Funding deposited into this
account under subsection (2) is further deposited into subaccounts to be used only as follows:
(i) 10% of the funds to be deposited into a subaccount to be administered by the department of public
health and human services to provide grants to existing agencies and not-for-profit organizations, whether
government or community-based, to increase access to evidence-based low-barrier drug addiction treatment,
prioritizing medically proven treatment and overdose prevention and reversal methods and public or private
treatment options with an emphasis on reintegrating recipients into their local communities, to support overdose
prevention education, and to support job placement, housing, and counseling for those with substance use
disorders;
(ii) 10% of the funds to be deposited into a subaccount to be administered by the department of
commerce for distribution to the local government representing the locality where the retail sales occurred;
(iii) 10% of the funds to be deposited into a subaccount to be administered by the veterans' affairs
division of the department of military affairs to provide services and assistance for all Montana veterans and
surviving spouses and dependents; and
(iv) 10% of the funds to be deposited into a subaccount to be administered by the Montana department
of public health and human services to administer medicaid rate increases that provide for a wage increase to
health care workers who provide direct medicaid-funded home and community health services for elderly and
disabled persons.
(4) (a) Funds transferred from the accounts and subaccounts provided in subsection (3) may be used
only to increase revenue for the purposes specified and may not be used to supplant other sources of revenue
used for these purposes.
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(b) Funds deposited into the account provided in subsection (1) may be used only to increase
revenue to each special revenue account or subaccount set forth in subsection (3) and may not be used to
supplant other sources of revenue for these purposes."
Section 47. Section 16-12-112, MCA, is amended to read:
"16-12-112. (Effective October 1, 2021 January 1, 2022) Rulemaking authority -- fees. (1) The
department may adopt rules to implement and administer this chapter, including:
(a) the manner in which the department will consider applications for licenses, permits, and
endorsements and renewal of licenses, permits, and endorsements;
(b) the acceptable forms of proof of Montana residency;
(c) the procedures for obtaining fingerprints for the fingerprint-based and name-based background
checks required under 16-12-203 [section 2];
(d) the security and operating requirements for adult-use dispensaries licensees;
(e) the security and operating requirements for manufacturing, including but not limited to
requirements for:
(i) safety equipment;
(ii) extraction methods, including solvent-based and solvent-free extraction; and
(iii) post-processing procedures;
(f) notice and contested case hearing procedures for fines or license and endorsement revocations,
suspensions, or modifications;
(g) implementation of a system to allow the tracking of marijuana and marijuana-infused marijuana
products as required by 16-12-105;
(h) labeling and packaging standards that protect public health by requiring the listing of
pharmacologically active ingredients, including, but not limited to, tetrahydrocannabinol (THC) THC, cannabidiol
(CBD) and other cannabinoid content, the THC and other cannabinoid amount in milligrams per serving, the
number of servings per package, and quantity limits per sale to comply with the allowable possession amount;
(i) investigating and making rules to limit, if necessary, the appropriate THC potency percentages for
marijuana and marijuana products;
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(i)(j) requirements that packaging and labels may not be made to be attractive to children, required
warning labels as set forth in [section 109], and that marijuana and marijuana-infused marijuana products be
sold in resealable, child-resistant exit packaging to protect public health as provided in 16-12-208;
(j)(k) requirements and standards for the testing and retesting of marijuana and marijuana-infused
marijuana products, including testing of samples collected during the department's inspections of registered
licensed premises;
(k)(l) the amount of variance allowable in the results of raw testing data that would warrant a
departmental investigation of inconsistent results as provided in 16-12-202;
(l)(m) requirements and standards to prohibit or limit marijuana, marijuana-infused marijuana
products, and marijuana accessories that are unsafe or contaminated;
(m)(n) the activities that constitute advertising in violation of 16-12-211;
(n)(o) requirements and incentives to promote renewable energy, reduce water usage, and reduce
packaging waste to maintain a clean and healthy environment in Montana;
(p) procedures for collecting and destroying samples of marijuana and marijuana products that fail to
meet testing requirements pursuant to 16-12-209; and
(o)(q) the fees for endorsements for manufacturing, testing laboratories, additional canopy licensure
tiers created in accordance with 16-12-105, and the fingerprint-based and name-based background checks
required under 16-12-203 [section 2], employee certification, the marijuana transporter license, marijuana
worker permits, and other fees necessary to administer and enforce the provisions of this chapter. The fees and
other revenue collected through the taxes paid under 16-12-401 established by the department, taxes collected
pursuant to Title 15, chapter 64, part 1, civil penalties imposed pursuant to this chapter, and the licensing fees
established by rule and in 16-12-201 part 2 of this chapter must be sufficient to offset the expenses of
administering this chapter but may not exceed the amount necessary to cover the costs to the department of
implementing and enforcing this chapter.
(2) The department may not adopt any rule or regulation that is unduly burdensome or undermines
the purposes of this chapter.
(3) The department may consult or contract with other public agencies in carrying out its duties under
this chapter."
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Section 48. Section 16-12-113, MCA, is amended to read:
"16-12-113. Decriminalized acts -- petition for expungement or resentencing -- retroactive
application. (1) A person currently serving a sentence for an act that is permitted under this chapter or is
punishable by a lesser sentence under this chapter than the person was awarded may petition for an
expungement of the conviction or resentencing.
(2) Upon receiving a petition under subsection (1), the expungement or resentencing of marijuana
conviction court, as provided in [sections 101 through 103], shall presume the petitioner satisfies the criteria in
subsection (1) unless the county attorney proves by clear and convincing evidence that provides the court with
a reasonable basis on which the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in
subsection (1), the court shall grant the petition unless the court determines that granting the petition would
pose an unreasonable risk of danger to public safety.
(3) A person who is serving a sentence and is resentenced pursuant to subsection (1) must be given
credit for any time already served and may not be subject to supervision.
(4) Resentencing under this section may not result in the imposition of a term longer than the original
sentence or the reinstatement of charges dismissed pursuant to a negotiated plea agreement.
(5) (a) A person who has completed a sentence for an act that is permitted under this chapter or is
punishable by a lesser sentence under this chapter than the person was awarded may petition the sentencing
court to:
(i) expunge the conviction; or
(ii) redesignate the conviction as a misdemeanor or civil infraction in accordance with this chapter.
(b) The petition must be served on the county attorney for the county where the petition is filed.
(6) Upon receiving a petition under subsection (5), the court shall presume the petitioner satisfies the
criteria in subsection (5) unless the county attorney proves by clear and convincing evidence that provides the
court with a reasonable basis on which the petitioner does not satisfy the criteria. Once the applicant satisfies
the criteria in subsection (5), the court shall redesignate the conviction as a misdemeanor or civil infraction or
expunge the conviction as legally invalid pursuant to this chapter.
(7) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed
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under subsection (5).
(8) Any felony conviction that is recalled under subsection (1) or designated as a misdemeanor or civil
infraction under subsection (5) must be considered a misdemeanor or civil infraction for all purposes. Any
misdemeanor conviction that is recalled and resentenced under subsection (1) or designated as a civil
infraction under subsection (5) must be considered a civil infraction for all purposes.
(9) Nothing in this section constitutes a waiver of any right or remedy otherwise available to the
petitioner or applicant.
(10) Nothing in this chapter is intended to impact the finality of judgment in any case not falling within
the purview of this chapter.
(11) The provisions of this section apply equally to juvenile cases if the juvenile would not have been
guilty of an offense or would have been guilty of a lesser offense under this chapter.
(12) Petitioning for expungement or resentencing pursuant to this section does not make a person
ineligible to petition for misdemeanor expungement pursuant to Title 46, chapter 18, part 11."
Section 49. Section 16-12-201, MCA, is amended to read:
"16-12-201. (Effective October 1, 2021 Effective January 1, 2022) Licensing of providers,
marijuana-infused products providers, and dispensaries for adult use cultivators, manufacturers, and
dispensaries. No later than October 1, 2021, the department shall promulgate rules and regulations to
administer and enforce this chapter and shall begin accepting applications for and issuing licenses. The rules
may not be unduly burdensome. For the first 12 months after the department begins to receive applications, (1)
(a) Between January 1, 2022, and June 30, 2023, the department shall may only accept applications from and
issue licenses to providers, marijuana-infused products providers, and dispensaries licensed under Title 50,
chapter 46, part 3, that are former medical marijuana licensees that were licensed by or had an application
pending with the department of public health and human services on November 3, 2020, and are in good
standing with the department of public health and human services and in compliance with this chapter, and
rules adopted by the department, and any applicable local regulations or ordinances as of [the effective date of
this section].
(b) The department shall begin accepting applications for and issuing licenses to cultivate,
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manufacture, or sell marijuana or marijuana products to applicants who are not former medical marijuana
licensees under subsection (1)(a) on or after July 1, 2023.
(2) (a) The department shall adopt rules to govern the operation of former medical marijuana
licensees and facilitate the process of transitioning former medical marijuana licensees to the appropriate
license under this chapter with a minimum of disruption to business operations.
(b) Beginning on January 1, 2022, a former medical marijuana licensee may sell marijuana and
marijuana products to registered cardholders at the medical tax rate set forth in 15-64-102 and to consumers at
the adult-use marijuana tax rate set forth in 15-64-102 under the licensee's existing license in a jurisdiction that
allows for the operation of marijuana businesses pursuant to 16-12-301 until the former medical marijuana
licensee's next license renewal date, by which time the former medical licensee must have applied for and
obtained the appropriate licensure under this chapter to continue operations, unless an extension of time is
granted by the department.
(c) (i) Except as provided in subsection (2)(c)(ii), for the purpose of this subsection (2), "appropriate
licensure" means a cultivator license, medical marijuana dispensary license, adult-use dispensary license, and,
if applicable, a manufacturer license.
(ii) A former medical marijuana licensee who sells marijuana and marijuana products exclusively to
registered cardholders is not required to obtain an adult-use dispensary license.
(3) The department may amend or issue licenses to provide for staggered expiration dates. The
department may provide for initial license terms of greater than 12 months but no more than 23 months in
adopting staggered expiration dates. Thereafter, licenses expire annually. License fees for the license term
implementing staggered license terms may be prorated by the department."
Section 50. Section 16-12-202, MCA, is amended to read:
"16-12-202. (Effective October 1, 2021 January 1, 2022) Testing laboratories -- licensing --
inspection -- dual licensure -- state laboratory responsibility. (1) (a) A person who obtains a testing
laboratory license or is an employee of a licensed testing laboratory is authorized to possess and test marijuana
as allowed by this chapter.
(b) A person who is a controlling beneficial owner of a testing laboratory or holds a financial interest in
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a licensed testing laboratory may not be a controlling beneficial owner or have a financial interest in any entity
involved in the cultivation, manufacture, or sale of marijuana or marijuana products for whom testing services
are performed.
(2)(1) (a) The state laboratory shall license endorse a testing laboratories laboratory to perform the
testing required under 16-12-206 and 16-12-209 before a testing laboratory may apply for licensure or renewal
with the department.
(b) (i) The state laboratory shall inspect a testing laboratory before issuing or renewing a license
endorsing a testing laboratory for licensure or renewal and may not issue or renew a license endorse a testing
laboratory for licensure or renewal if the applicant does not meet the requirements of 16-12-206 and this
section.
(ii) The state laboratory may not issue a temporary license while an inspection is pending.
(iii) Inspections conducted under this section must include the review provided for in 50-46-311(1)(b).
(3) An inspection conducted for licensure or renewal of a license must include a review of an
applicant's or testing laboratory's:
(a) physical premises where testing will be conducted;
(b) instrumentation;
(c) protocols for sampling, handling, testing, reporting, security and storage, and waste disposal;
(d) raw data on tests conducted by the laboratory, if the inspection is for renewal of a license; and
(e) vehicles used for transporting marijuana or marijuana product samples for testing purposes.
(4) Upon receiving an endorsement from the state laboratory for licensure or annual renewal, a
testing laboratory must apply for licensure, or renewal, with the department by submitting to the department:
(a) the information required by 16-12-203; and
(b) a fee that the department shall establish by rule.
(2)(5) The state laboratory shall:
(a) use the criteria established under 50-46-311 in evaluating and approving licenses issued under
this section;
(b) use the criteria established under 50-46-304(6) to establish and enforce standard operating
procedures and testing standards for testing laboratories to ensure that consumers receive consistent and
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uniform information about the potency and quality of the marijuana and marijuana-infused products they
receive; and
(c) investigate inconsistent test results using the procedure provided for in 50-46-304(7).
(a) measure the tetrahydrocannabinol, tetrahydrocannabinolic acid, cannabidiol, and cannabidiolic
acid content of marijuana and marijuana products;
(b) test marijuana and marijuana products for pesticides, solvents, moisture levels, mold, mildew, and
other contaminants; and
(c) establish and enforce standard operating procedures and testing standards for testing laboratories
to ensure that consumers and registered cardholders receive consistent and uniform information about the
potency and quality of the marijuana and marijuana products they receive. The state laboratory shall:
(i) consult with independent national or international organizations that establish testing standards for
marijuana and marijuana products;
(ii) require testing laboratories to follow uniform standards and protocols for the samples accepted for
testing and the processes used for testing the samples; and
(iii) track and analyze the raw data for the results of testing conducted by testing laboratories to ensure
that the testing laboratories are providing consistent and uniform results.
(6) The department may retain the services of the analytical laboratory provided by the department of
agriculture pursuant to 80-1-104 for the testing contemplated in this section.
(3)(7) If an analysis of raw testing data indicates that licensees are providing test results that vary
among testing laboratories by an amount determined by the state laboratory by rule, the department shall
investigate the inconsistent results and determine within 60 days the steps the testing laboratories must take to
ensure that each testing laboratory provides accurate and consistent results.
(4)(8) If the analysis of raw testing data indicates a testing laboratory may be providing inconsistent
results, the state laboratory shall may suspend the testing laboratory's license until additional testing
determines whether the results are consistent. A suspension must be based on rules adopted by the state
laboratory.
(5)(9) The state laboratory department shall revoke a testing laboratory's license upon a determination
that the laboratory is:
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(a) providing test results that are fraudulent or misleading; or
(b) providing test results without having:
(i) the equipment needed to test marijuana, marijuana concentrates, or marijuana-infused marijuana
products; or
(ii) the equipment required under this chapter to conduct the tests for which the laboratory is providing
results.
(6)(10) A revocation under this section is subject to judicial review.
(7) The state laboratory:
(a) may license a testing laboratory to perform both the testing required under this chapter and under
Title 50, chapter 46; and
(b) shall use the same administrative rules for testing laboratories licensed under this chapter and
under Title 50, chapter 46."
Section 51. Section 16-12-203, MCA, is amended to read:
"16-12-203. (Effective October 1, 2021 January 1, 2022) Provider Licensing types --
requirements -- limitations -- activities. (1) (a) Subject to subsections (1)(b) and subsection (3) and this
subsection (1), the department shall issue a license to or renew a license for a person who is applying to be an
adult-use provider or adult-use marijuana-infused products provider a cultivator, manufacturer, medical-
marijuana dispensary, adult-use dispensary, or testing laboratory if the person submits to the department:
(i) the person's name, date of birth, and street address on a form prescribed by the department;
(ii) proof that the natural person having day-to-day operational control over the business is a Montana
resident;
(iii) fingerprints meeting the requirements for a fingerprint-based background check by the department
of justice and the federal bureau of investigation:
(A) with the application for initial licensure; and
(B) every 3 years thereafter;
(iv)(iii) a statement, on a form prescribed by the department, that the person:
(A) will not divert to any other person the marijuana that the person cultivates or the marijuana-
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infused marijuana products that the person manufactures for consumers or registered cardholders, unless the
marijuana or marijuana-infused marijuana products are sold to another adult-use provider or licensee as part of
a sale of a business as allowed under this section; and
(B) has no pending citations for violations occurring under this chapter or the marijuana laws of any
other state or jurisdiction;
(v)(iv) the street address of the location at which marijuana, marijuana concentrates, or marijuana-
infused marijuana products will be cultivated, or manufactured, sold, or tested; and
(vi) a fee as determined by the department not to exceed the costs of required background checks and
associated administrative costs of processing the license.
(v) proof that the applicant has source of funding from a suitable source. A lender or other source of
money or credit may be found unsuitable if the source:
(A) is a person whose prior financial or other activities or criminal record:
(B) poses a threat to the public interest of the state;
(C) poses a threat to the effective regulation and control of marijuana and marijuana products; or
(D) creates a danger of illegal practices, methods, or activities in the conduct of the licensed
business.
(b) If the person to be licensed consists of more than one individual, the names of all owners must be
submitted along with the fingerprints and date of birth of each owner having at least a 5% controlling beneficial
ownership interest.
(c) Nonindividuals who apply for the issuance of a marijuana business license shall disclose to the
department the following:
(i) a complete and accurate organizational chart of the marijuana business disclosing the identity and
ownership percentages of its controlling beneficial owners;
(ii) whether the applicant has ever filed for bankruptcy;
(iii) whether the applicant has ever been a party to a lawsuit, either as a plaintiff or defendant;
(iv) any financial interests held by the applicant in another marijuana business in any state;
(v) if the controlling beneficial owner is a publicly traded corporation, the controlling beneficial owners'
managers and any beneficial owners that directly or indirectly beneficially own 5% or more of the owner's
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interest in the controlling beneficial owner;
(vi) if the controlling beneficial owner is not a publicly traded corporation, the controlling beneficial
owner's managers and any beneficial owners that directly or indirectly beneficially own 5% or more of the
owner's interest in the controlling beneficial owner;
(vii) if the controlling beneficial owner is a natural person, the natural person's identifying information;
(viii) a person that is both a passive beneficial owner and a financial interest holder in the marijuana
business; and
(ix) any financial interest holder that holds two or more financial interests in the marijuana business or
that is contributing over 50% of the operating capital of the marijuana business.
(d) The department may request that the marijuana business disclose each beneficial owner and
affiliate of an applicant, or marijuana business, or controlling beneficial owner that is not a publicly traded
corporation.
(e) An applicant or marijuana business that is not a publicly traded corporation shall affirm under
penalty of perjury that it exercised reasonable care to confirm that its passive beneficial owners, financial
interest holders, and qualified institutional investors are not persons prohibited pursuant to this section, or
otherwise restricted from holding an interest under this chapter. An applicant's or marijuana business's failure to
exercise reasonable care is a basis for denial, fine, suspension, revocation, or other sanction by the
department.
(f) An applicant or marijuana business that is a publicly traded corporation shall affirm under penalty
of perjury that it exercised reasonable care to confirm that its passive beneficial owners, financial interest
holders, and qualified institutional investors are not persons prohibited pursuant to this section, or otherwise
restricted from holding an interest under this chapter. An applicant's or marijuana business's failure to exercise
reasonable care is a basis for denial, fine, suspension, revocation, or other sanction by the department.
(g) This section does not restrict the department’s ability to reasonably request information or records
at renewal or as part of any other investigation following initial licensure of a marijuana business.
(2) The department shall conduct:
(a) a fingerprint-based background check in association with an application for initial licensure and
every 3 years thereafter; and
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(b) a name-based background check in association with an application for initial licensure and each
year thereafter except years that an applicant is required to submit fingerprints for a fingerprint-based
background check.
(3)(2) The department may not license a person under this chapter if the person or an owner,
including a person with a financial interest:
(a) has a felony conviction involving fraud, deceit, or embezzlement or for distribution of drugs to a
minor within the past 5 years and, after an investigation, the department finds that the applicant has not been
sufficiently rehabilitated as to warrant the public trust;
(b) is in the custody of the department of corrections or a youth court;
(c) has been convicted of a violation under 16-12-302;
(d) has resided in Montana for less than 1 year; or
(e) is under 18 years of age.
(a) has a felony conviction or a conviction for a drug offense, including but not limited to, a conviction
for a violation of any marijuana law in any other state within the past 5 years and, after an investigation, the
department finds that the applicant has not been sufficiently rehabilitated as to warrant the public trust;
(b) is in the custody of or under the supervision of the department of corrections or a youth court;
(c) has been convicted of a violation under [section 19] or of making a fraudulent representation under
the former medical marijuana program administered by the department of public health and human services;
(d) is under 21 years of age;
(e) has failed to:
(i) pay any taxes, interest, penalties, or judgments due to a government agency;
(ii) comply with any provisions of Title 15 or Title 16, including the failure to file any tax return or report;
(iii) stay out of default on a government-issued student loan;
(iv) pay child support; or
(v) remedy an outstanding delinquency for child support or for taxes or judgments owed to a
government agency; or
(f) has had a license issued under this chapter or a former medical marijuana license revoked within 3
years of the date of the application; or
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(g) has resided in Montana for less than 1 year.
(4)(3) Marijuana for use pursuant to this chapter must be cultivated and manufactured in Montana
until unless federal law otherwise allows for the interstate distribution of marijuana.
(5)(4) Except as provided in 16-12-209, an adult-use provider or adult-use marijuana-infused products
provider a cultivator, manufacturer, medical marijuana dispensary, or adult-use dispensary shall:
(a) prior to selling marijuana or marijuana-infused marijuana products, submit samples to a testing
laboratories laboratory pursuant to this chapter and administrative rules;
(b) allow the department to collect samples of marijuana or marijuana-infused marijuana products
during inspections of registered licensed premises for testing as provided by the department by rule; and
(c) participate as required by the department by rule in a seed-to-sale tracking system established by
the department pursuant to 16-12-105; and
(d) obtain the license from the department of agriculture if required by80-7-106for the adult-use
provider or adult-use marijuana-infused products provider that sells live plants as part of a sale of the adult-use
provider's business. An adult-use provider or adult-use marijuana-infused products provider required to obtain a
nursery license is subject to the inspection requirements of 80-7-108.
(6)(5) (a) Except as provided in 16-12-205, a person licensed under this section may cultivate
marijuana and manufacture marijuana-infused marijuana products for use by consumers or registered
cardholders only at one of the following locations:
(i) a property that is owned by the adult-use provider or adult-use marijuana-infused products provider
licensee; or
(ii) with written permission of the property owner filed with the department when applying for, or
renewing a license, a property that is rented or leased by the adult-use provider or adult-use marijuana-infused
products provider licensee.
(b) Except as provided in 16-12-205, no portion of the property used for cultivation of marijuana or
manufacture of marijuana-infused marijuana products or marijuana concentrate may be shared with or rented
or leased to another adult-use provider, adult-use marijuana-infused products provider, or testing laboratory
licensee.
(c) Marijuana or marijuana products may not be consumed on the premises of any licensed premises
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(7) A licensed adult-use provider or adult-use marijuana-infused products provider may:
(a)(6) A cultivator licensed under this chapter in accordance with licensing requirements set forth in
this chapter and rules adopted by the department:
(i)(a) may operate adult-use dispensaries; and
(ii)(b) may engage in manufacturing;; and
(c) may not engage in outdoor cultivation of marijuana, except as provided in [section 4(6)].
(b) employ employees to cultivate marijuana, manufacture marijuana concentrates and marijuana-
infused products, and dispense and transport marijuana and marijuana-infused products;
(c) provide a small amount of marijuana, marijuana concentrate, or marijuana-infused product
cultivated or manufactured on the registered premises to a licensed testing laboratory or the department of
agriculture;
(d) sell the adult-use provider's business, including live plants, inventory, material assets, and all
licenses in accordance with rules adopted by the department; and
(e) hold a provider or marijuana-infused products provider license issued pursuant to Title 50, chapter
46, part 3.
(8) (a) Except as provided in subsection (8)(b), an adult-use provider or adult-use marijuana-infused
products provider:
(i) shall sell marijuana the adult-use provider has cultivated or marijuana products derived from
marijuana the adult-use marijuana-infused products provider has cultivated for at least 50% of the provider's
total annual sales;
(ii) may sell marijuana or marijuana-infused products to another adult-use provider for subsequent
resale for up to 50% of the adult-use provider's total annual sales;
(iii)(7) A cultivator or manufacturer:
(a) may contract or otherwise arrange for another party that is licensed to process the adult provider's
or adult marijuana-infused products provider's marijuana into marijuana-infused products or marijuana
concentrates and return the marijuana-infused products or marijuana concentrates to the adult-use provider for
sale a cultivator's or manufacturer's marijuana into marijuana products and return the marijuana products to the
cultivator or manufacturer for sale; and
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(iv)(b) except as allowed pursuant to 16-12-207, may not open a dispensary or allow for any on-site
use before obtaining the required license or and before the department has completed the inspection required
under this chapter unless permitted to do so pursuant to 16-12-207.
(b) The department may adjust the percentages set forth in subsection (8)(a) for an individual license
holder based on unforeseen circumstances leading to the loss of plants or products."
Section 51. Section 16-12-204, MCA, is amended to read:
"16-12-204. (Effective October 1, 2021 January 1, 2022) Adult-use marijuana-infused products
provider Manufacturer -- requirements -- limitations -- fees. (1) A person licensed as an adult-use
marijuana-infused products provider a manufacturer shall:
(a) prepare marijuana-infused marijuana products at a registered licensed premises exclusively; and
(b) use equipment that is used exclusively for the manufacture and preparation of marijuana-infused
marijuana products.
(2) An adult-use marijuana-infused products provider:
(a) may cultivate marijuana only for the purpose of making marijuana-infused products; and
(b) may not provide a consumer with marijuana in a form that may be used for smoking unless the
adult-use marijuana-infused products provider is also a licensed adult-use provider.
(3)(2) All registered licensed premises on which marijuana-infused marijuana products are
manufactured must meet any applicable standards set by a local board of health for a retail food establishment
as defined in 50-50-102.
(3) An applicant for a manufacturer license shall demonstrate that the local government approval
provisions contained in 16-12-301 have been satisfied in the jurisdiction where each proposed manufacturing
facility is located if a proposed facility would be located in a county in which the majority of voters voted against
approval of Initiative Measure No. 190 in the November 3, 2020, general election.
(4) When evaluating an initial or renewal application, the department shall evaluate each proposed
manufacturing facility for compliance with the provisions of 16-12-207 and 16-12-210.
(4)(5) Marijuana-infused Marijuana products may not be considered a food or drug for the purposes of
Title 50, chapter 31.
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(6) (a) The department shall charge a manufacturer license fee for an initial application and at each
renewal. The license fee is based on the amount of concentrate produced at a manufacturing facility on a
monthly basis. The annual fees for licensees are:
(i) $5,000 for each manufacturing facility that produces, on a monthly basis, less than 1 pound of
concentrate and up to 10 pounds of concentrate;
(ii) $10,000 for each manufacturing facility that produces, on a monthly basis, between 10 pounds of
concentrate and 15 pounds of concentrate; and
(iii) $20,000 for each manufacturing facility that produces, on a monthly basis, 15 pounds or more of
concentrate.
(b) The department may create additional fee levels as necessary.
(c) A manufacturer may apply to advance to the next licensing level in conjunction with a regular
renewal application by demonstrating that its proposed additional or expanded manufacturing facility or facilities
are located in a jurisdiction where the local government approval provisions contained in 16-12-301 have been
satisfied or that they are located in a county in which the majority of voters voted to approve Initiative Measure
No. 190 in the November 3, 2020, general election.
(7) The department may adopt rules:
(a) for the inspection of proposed manufacturing facilities;
(b) for investigating the amount of concentrate produced at a manufacturing facility; and
(c) for investigating owners or applicants for a determination of beneficial ownership or financial
interest."
Section 53. Section 16-12-206, MCA, is amended to read:
"16-12-206. (Effective October 1, 2021 January 1, 2022) Testing laboratories -- licensing
inspections. (1) A testing laboratory licensed pursuant to Title 50, chapter 46, part 3, shall may:
(a) measure the tetrahydrocannabinol, tetrahydrocannabinolic acid, cannabidiol, and cannabidiolic
acid content of marijuana and marijuana-infused marijuana products; and
(b) test marijuana and marijuana-infused marijuana products for pesticides, solvents, moisture levels,
mold, mildew, and other contaminants. A testing laboratory may transport samples to be tested.
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(2) The analytical laboratory services provided by the department of agriculture pursuant to 80-1-104
may be used for the testing provided for in this section.
(3) A person with a financial interest in a licensed testing laboratory may not have a financial interest
in any entity involved in the cultivation of marijuana or manufacture of a marijuana-infused product or marijuana
concentrate for whom testing services are performed.
(2) A licensed testing laboratory shall employ a scientific director who is responsible for ensuring the
achievement and maintenance of quality standards of practice. A scientific director must have the following
minimum qualifications:
(a) a doctorate in chemical or biological sciences from a college or university accredited by a national
or regional certifying authority and a minimum of 2 years of postdegree laboratory experience; or
(b) a master's degree in chemical or biological sciences from a college or university accredited by a
national or regional certifying authority and a minimum of 4 years of postdegree laboratory experience.
(3) All owners and employees of a testing laboratory shall submit fingerprints to the department to
facilitate a fingerprint and background check as set forth in [section 2]. A testing laboratory may not be owned,
operated, or staffed by a person who has been convicted of a felony offense.
(4) To qualify for licensure, a testing laboratory shall demonstrate that:
(a) staff members are proficient in operation of the laboratory equipment; and
(b) the laboratory:
(i) maintains the equipment and instrumentation required by rule;
(ii) has all equipment and instrumentation necessary to certify results that meet the quality assurance
testing requirements established by rule, including the ability to certify results at the required level of sensitivity;
(iii) meets insurance and bonding requirements established by rule;
(iv) has the capacity and ability to serve rural areas of the state; and
(v) has passed a proficiency program approved by the state laboratory that demonstrates it is able to
meet all testing requirements.
(4)(5) Except as provided in 16-12-209, a testing laboratory shall conduct tests of:
(a) samples of marijuana, marijuana concentrate, and marijuana-infused products submitted by adult-
use providers and adult-use marijuana-infused products providers and marijuana products submitted by
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cultivators and manufacturers pursuant to 16-12-209 and related administrative rules prior to sale of the
marijuana or marijuana-infused marijuana products;
(b) samples of marijuana or marijuana-infused marijuana products collected by the department during
inspections of registered licensed premises; and
(c) samples submitted by consumers or registered cardholders."
Section 54. Section 16-12-207, MCA, is amended to read:
"16-12-207. (Effective October 1, 2021 January 1, 2022) Licensing as privilege -- criteria. (1) An
adult-use provider license, adult-use marijuana-infused products provider license, adult-use dispensary license,
or endorsement for manufacturing A cultivator license, manufacturer license, adult-use dispensary license,
medical marijuana dispensary license, combined-use marijuana license, marijuana transporter license, or any
other license authorized under this chapter is a privilege that the state may grant to an applicant and is not a
right to which an applicant is entitled. In making a licensing decision, the department shall consider:
(a) the qualifications of the applicant; and
(b) the suitability of the proposed registered licensed premises, including but not limited to cultivation
centers, dispensaries, and manufacturing facilities.
(2) The department may deny or revoke a license based on proof that the applicant made a knowing
and material false statement in any part of the original application or renewal application.
(3) (a) The department may deny an adult-use provider license, adult-use marijuana-infused products
provider license, adult-use dispensary license, or endorsement for manufacturing shall deny a cultivator license,
manufacturer license, adult-use dispensary license, or medical marijuana license if the applicant's proposed
registered licensed premises:
(i) is situated within a zone of a locality where an activity related to the use of marijuana conflicts with
an ordinance, a certified copy of which has been filed with the department;.
(4) (a) The department may deny a license for an adult-use provider, adult-use marijuana-infused
products provider, or adult-use dispensary or an endorsement for manufacturing if the applicant's proposed
registered premises:
(i)(ii) is not approved by local building, health, or fire officials as provided for in this chapter; or
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(ii)(iii) (A) except as provided in subsection (3)(a)(iii)(B), is within 500 feet of and on the same street as
a building used exclusively as a church, synagogue, or other place of worship or as a school or postsecondary
school other than a commercially operated school, unless the locality allows for a reduced requires a greater
distance. This distance must be measured in a straight line from the center of the nearest entrance of the place
of worship or school to the nearest entrance of the licensee's premises.
(B) Subsection (3)(a)(iii)(A) does not apply if the application is for license renewal and the licensed
premises was established before the church, synagogue, or other place of worship or school or postsecondary
school existed on the same street.
(b) For the purposes of this subsection (4) (3), "school" and "postsecondary school" have the
meanings provided in 20-5-402.
(5) An adult-use provider, adult-use marijuana-infused products provider, or adult-use dispensary
licensee may operate at a shared location with a provider, marijuana-infused products provider, or dispensary
as defined in 50-46-302 if the provider, marijuana-infused products provider, or dispensary is owned by the
same person.
(4) A licensee may not sell or otherwise transfer marijuana or marijuana products through a drive-up
window, except that a dispensary may hand-deliver marijuana or marijuana products to a registered cardholder
in a vehicle that is parked immediately outside the subject dispensary.
(5) A marijuana business may not dispense or otherwise sell marijuana or marijuana products from a
vending machine or allow such a vending machine to be installed at the interior or exterior of the premises.
(6) A marijuana business may not utilize the United States postal service or an alternative carrier
other than a licensed marijuana transporter to transport, distribute, ship, or otherwise deliver marijuana or
marijuana products.
(7) A marijuana business may not provide free marijuana or marijuana products or offer samples of
marijuana or marijuana products.
(8) Marijuana or a marijuana product may not be given as a prize, premium, or consideration for a
lottery, contest, game of chance, game of skill, or competition of any kind.
(9) (a) Except as provided in subsection (9)(c), an adult-use dispensary or medical marijuana
dispensary must have a single, secured entrance for patrons and shall implement strict security measures to
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deter and prevent the theft of marijuana and unauthorized entrance in accordance with department rule.
(b) Except as provided in subsection (9)(c), a marijuana business that is not an adult-use dispensary
or medical marijuana dispensary must implement security measures in accordance with department rule to
deter and prevent the theft of marijuana and unauthorized entrance.
(c) The provisions of this subsection (9) do not supersede any state or local requirements relating to
minimum numbers of points of entry or exit, or any state or local requirements relating to fire safety.
(10) Each marijuana business shall install a video monitoring system that must, at a minimum:
(a) allow for the transmission and storage, by digital means, of a video feed that displays the interior
and exterior of the cannabis establishment; and
(b) be capable of being recorded as prescribed by the department.
(11) An adult-use dispensary or medical marijuana dispensary may not operate between the hours of 8
p.m. and 9 a.m. daily.
(12) A person under 21 years of age is not permitted inside a marijuana business unless the person is
a registered cardholder."
Section 55. Section 16-12-208, MCA, is amended to read:
"16-12-208. (Effective October 1, 2021 January 1, 2022) Restrictions. (1) An adult-use provider or
adult-use marijuana-infused products provider A cultivator or manufacturer may not cultivate marijuana or
manufacture marijuana concentrates or marijuana-infused products in a manner that is visible from the street or
other public area without the use of binoculars, aircraft, or other optical aids.
(2) An adult-use provider or adult-use marijuana-infused products provider A cultivator or
manufacturer may not cultivate, process, test, or store marijuana at any location other than the registered
licensed premises approved by the department and within an enclosed area that is secured in a manner that
prevents access by unauthorized persons.
(3) An adult-use provider or adult-use marijuana-infused products provider shall secure the provider's
inventory and equipment during and after operating hours to deter and prevent theft of marijuana.
(4)(3) An adult-use provider or adult-use marijuana-infused products provider A licensee shall make
the registered licensed premises, books, and records available to the department for inspection and audit under
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16-12-210 during normal business hours.
(5)(4) An adult-use provider or adult-use marijuana-infused products provider A licensee may not
allow a person under 18 years of age to volunteer or work for the licensee.
(6)(5) Edible marijuana-infused marijuana products manufactured as candy may not be sold in
shapes or packages that are attractive to children or that are easily confused with commercially sold candy that
does not contain marijuana.
(7)(6) (a) Marijuana or a marijuana-infused product marijuana products must be sold or otherwise
transferred in resealable, child-resistant exit packaging that complies with federal child resistance standards
and is designed to be significantly difficult for children under 5 years of age to open and not difficult for adults to
use properly.
(b) Subsection (7)(a) does not apply to marijuana consumed on the premises where it is sold, if
permitted by department rule.
(b) (i) Packaging of individual products may contain only the following design elements and language
on a white label:
(A) the seller's business name and any accompanying logo or design mark;
(B) the name of the product; and
(C) the THC content or CBD content, health warning messages as provided in [section 109], and
ingredients.
(ii) All packaging and outward labeling, including business logos and design marks, must also comply
with any standards or criteria established by the department, including but not limited to allowable symbols and
imagery.
(8)(7) An adult-use provider or adult-use marijuana-infused products provider An adult-use dispensary
or medical marijuana dispensary may not sell or otherwise transfer tobacco hemp or alcohol from a registered
licensed premises.
(8) (a) Prior to selling, offering for sale, or transferring marijuana or marijuana product that is for
ultimate sale to a consumer or registered cardholder, a licensee or license applicant shall submit both a
package and a label application, in a form prescribed by the department, to receive approval from the
department.
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(b) The initial submission shall be made electronically if required by the department. The licensee,
license or applicant shall submit a physical prototype upon request by the department.
(c) If a license applicant submits packages and labels for preapproval, final determination for
packages and labels may not be made until the applicant has been issued a license.
(d) A packaging and label application must include:
(i) a fee provided for in rule by the department;
(ii) documentation that all exit packaging has been certified as child-resistant by a federally qualified
third-party child-resistant package testing firm;
(iii) a picture or rendering of and description of the item to be placed in the each package; and
(iv) for label applications for inhalable marijuana products that contain nonmarijuana additives:
(A) the nonmarijuana additive's list of ingredients; and
(B) in a form and manner prescribed by the department, information regarding the additive or additives
and the manufacturer of the additive or additives.
(9) For the purpose of this section, "exit packaging" means a sealed, child-resistant certified
receptacle into which marijuana or marijuana products already within a container are placed at the retail point of
sale."
Section 56. Section 16-12-209, MCA, is amended to read:
"16-12-209. (Effective October 1, 2021 January 1, 2022) Testing of marijuana and marijuana-
infused marijuana products. (1) An adult-use provider or adult-use marijuana-infused products provider A
cultivator, manufacturer, adult-use dispensary, or medical marijuana dispensary may not sell marijuana or
marijuana-infused marijuana products until the marijuana or marijuana products have been tested by a testing
laboratory or the department of agriculture and meet the requirements of 50-46-326 this section. The licensee
shall pay for the testing.
(2) An adult-use provider or adult-use marijuana-infused products provider A licensee shall submit
material that has been collected in accordance with a sampling protocol established by the state laboratory by
rule. The protocol must address the division of marijuana and marijuana-infused marijuana products into batch
sizes for testing. Each batch must be tested in the following categories:
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(a) flower;
(b) concentrate; and
(c) marijuana-infused product.
(3) The state laboratory shall apply the same rules adopted pursuant to Title 50, chapter 46, part 3,
regarding the types of tests, inspections, analysis, and certification that must be performed to ensure product
safety and consumer protection to marijuana and marijuana products tested pursuant to this chapter adopt
rules regarding the types of tests that must be performed to ensure product safety and consumer protection.
Rules must include but are not limited to testing for:
(a) the potency of the cannabinoids present; and
(b) the presence of contaminants.
(4) The testing laboratory shall conduct a visual inspection of each batch to determine the presence of
levels of foreign matter, debris, insects, and visible mold.
(5) The state laboratory shall establish by rule the acceptable levels of moisture, pesticides, residual
solvents, mold, mildew, foreign matter, debris, insects, and other contaminants that marijuana products may
contain.
(6) The testing laboratory shall:
(a) issue a certificate of analysis certifying the test results; and
(b) report the results to the seed-to-sale tracking system established pursuant to 16-12-105.
(4)(7) An adult-use provider or adult-use marijuana-infused products provider A licensee may request
that material that has failed to pass the required tests be retested in accordance with the rules adopted by the
state laboratory providing for retesting parameters and requirements.
(5)(8) Marijuana or a marijuana-infused marijuana product must include a label indicating that the
marijuana or marijuana-infused marijuana product has been tested.
(9) (a) The department shall collect and, except as provided in subsection (9)(b), destroy samples of
marijuana and marijuana products that fail to meet the acceptable levels to ensure product safety and
consumer protection.
(b) If a sample fails due to THC levels in excess of the allowable limit and is not deficient in any other
respect, the department may dispose of the sample by means other than destruction in accordance with rule.
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(c) The department may contract for the duties under this subsection (9)."
Section 57. Section 16-12-210, MCA, is amended to read:
"16-12-210. (Effective October 1, 2021 January 1, 2022) Inspections -- procedures -- prohibition
on inspector affiliation with licensees. (1) (a) The department shall conduct unannounced inspections of
registered licensed premises.
(b) The department may not conduct more than two unannounced inspections of a licensed premises
per year unless a citation has been issued to a licensee at the premises within the last 2 years or there is other
just and reasonable cause.
(2) (a) The department shall inspect annually each registered premises operated by a licensee.
(b) The department may collect samples during the inspection of a registered licensed premises and
submit the samples to all registered testing laboratories a testing laboratory or the state laboratory for testing as
provided by the department by rule.
(3) (a) Each adult-use provider and adult-use marijuana-infused products provider licensee shall
keep a complete set of records necessary to show all transactions with consumers and registered cardholders.
The records must be open for inspection by the department or state laboratory, as appropriate, and state or
local law enforcement agencies during normal business hours.
(b) Each testing laboratory shall keep:
(i) a complete set of records necessary to show all transactions with adult-use providers and adult-
use marijuana-infused products providers a licensee; and
(ii) all data, including instrument raw data, pertaining to the testing of marijuana and marijuana-infused
marijuana products.
(c) The records and data required under this subsection (3) must be open for inspection by the
department and state or local law enforcement agencies during normal business hours.
(d) The department may require an adult-use provider, adult-use marijuana-infused products provider,
or testing laboratory a licensee to furnish information that the department considers necessary for the proper
administration of this chapter.
(4) (a) Registered Each licensed premises, including any places of storage, where marijuana is
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cultivated, manufactured, sold, stored, or tested are subject to entry by the department or state or local law
enforcement agencies for the purpose of inspection or investigation during normal business hours.
(b) If any part of the registered a licensed premises consists of a locked area, the provider or
marijuana-infused products provider licensee shall make the area available for inspection immediately upon
request of the department or state or local law enforcement officials.
(5) If the department conducts an inspection because of a complaint against a licensee or registered
licensed premises and does not find a violation of this chapter, the department shall give the licensee a copy of
the complaint with the name of the complainant redacted.
(6)(5) The department may not hire or contract with a person to be an inspector if the person, has
worked during the previous 4 years, was or worked for a Montana business or facility operating under this
chapter or Title 50, chapter 46, part 3 a former medical marijuana licensee.
(6) In addition to any other penalties provided under this chapter, the department may revoke,
suspend for up to 1 year, or refuse to renew a license or endorsement issued under this chapter if, upon
inspection and subsequent notice to the licensee, the department finds that any of the following circumstances
exist:
(a) a cause for which issuance of the license or endorsement could have been rejected had it been
known to the department at the time of issuance;
(b) a violation of an administrative rule adopted to carry out the provisions of this chapter; or
(c) noncompliance with any provision of this chapter.
(6)(7) The department may suspend or modify a license or endorsement without advance notice upon
a finding that presents an immediate threat to the health, safety, or welfare of consumers, employees of the
licensee, or members of the public. The department may establish by rule the applicable procedures for
securing or disposing of the inventory in such circumstances.
(7)(8) (a) Review of a department action imposing a suspension, revocation, or other modification
under this chapter must be conducted as a contested case hearing before the department's office of dispute
resolution under the provisions of the Montana Administrative Procedure Act.
(b) A person may appeal any decision of the department of revenue concerning the issuance,
rejection, suspension, or revocation of a license provided for by this chapter to the district court in the county in
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which the person operates or proposes to operate. If a person operates or seeks to operate in more than one
county, the person may seek judicial review in the district court with jurisdiction over actions arising in any of the
counties where it operates or seeks to operate.
(c) An appeal pursuant to subsection (8)(b) shall be made by filing a complaint setting forth the
grounds for relief and the nature of relief demanded with the district court within 30 days following receipt of
notice of the department's final decision.
(10)(9) The department shall establish a training protocol to ensure uniform application and
enforcement of the requirements of this chapter.
(11)(10) The department shall report biennially to the revenue economic affairs interim committee
concerning the results of inspections conducted under this section. The report must include the information
required under 16-12-110."
Section 58. Section 16-12-211, MCA, is amended to read:
"16-12-211. (Effective October 1, 2021 January 1, 2022) Advertising prohibited. (1) Persons with
licenses may not advertise marijuana or marijuana-related marijuana products in any medium, including
electronic media.
(2) A listing in a directory of businesses authorized under this chapter is not advertising for the
purposes of this section.
(3) A licensee may have a website but may not:
(a) include prices on the website; or
(b) actively solicit consumers or out-of-state consumers through the website.
(4) The department shall adopt rules to clearly identify the activities that constitute advertising that are
prohibited under this section."
Section 59. Section 16-12-301, MCA, is amended to read:
"16-12-301. (Effective October 1, 2021) Local government authority to regulate -- opt-in
requirement in certain counties -- exemption for existing licensees. (1) (a) Except as provided in
subsection (1)(b), a marijuana business may not operate in a county in which the majority of voters voted
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against approval of Initiative Measure No. 190 in the November 3, 2020, general election until:
(i) the category or categories of license that the marijuana business seeks has or have been
approved by the local jurisdiction where the marijuana BUSINESS intends to operate as provided in subsection
(3) or (4); and
(ii) the business is licensed by the department pursuant to this chapter.
(b) A former medical marijuana licensee that does not apply for licensure as an adult-use dispensary
may operate in its existing premises in compliance with rules adopted by the department pursuant to 16-12-
201(2) notwithstanding a local jurisdiction's failure to take action pursuant to subsections (3) through (6).
(c) A former medical marijuana licensee that intends to apply for licensure as a cultivator,
manufacturer, adult-use dispensary, or testing laboratory may operate in compliance with rules adopted by the
department pursuant to 16-12-201(2) notwithstanding a local jurisdiction's failure to take action pursuant to
subsections (3) through (6), provided that the former marijuana licensee has remained in good standing with
the department of public health and human services and the department.
(d) For the purpose of this section, the marijuana business categories that must be approved by a
local jurisdiction under subsections (3) through (6) in a county in which the majority of voters voted against
approval of Initiative Measure No. 190 in the November 3, 2020, general election before a business may
operate are:
(i) cultivator;
(ii) manufacturer;
(iii) medical marijuana dispensary, except as provided in subsection (1)(b);
(iv) adult-use dispensary;
(v) combined-use marijuana licensee;
(vi) testing laboratory; and
(vii) marijuana transporter facility.
(e) Marijuana businesses located in counties in which the majority of voters voted to approve Initiative
Measure No. 190 in the November 3, 2020, general election are not subject to the local government approval
process under subsections (3) through (6).
(2) (a) To protect the public health, safety, or welfare, a local government may by ordinance or
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resolution otherwise regulate an adult-use provider or adult-use marijuana-infused products provider a
marijuana business that operates within the local government's jurisdictional area. The regulations may include
but are not limited to inspections of registered licensed premises, including but not limited to indoor cultivation
facilities, dispensaries, manufacturing facilities, and testing laboratories in order to ensure compliance with any
public health, safety, and welfare requirements established by the department or the local government.
(b) A local government may not adopt ordinances or regulations that are unduly burdensome.
(b) A former medical marijuana licensee that does not apply for licensure as an adult-use dispensary
is exempt from complying with any local governmental regulations that are adopted under this subsection after
[the effective date of this section] until its first license renewal date occurring after January 1, 2022, or the
expiration of any grace period granted by the locality, whichever is later.
(2) The qualified electors of an incorporated municipality, county, or consolidated city-county may
request an election on whether to prohibit by ordinance adult-use dispensaries from being located within the
jurisdiction of the local government by filing a petition in accordance with 7-5-131 through 7-5-135 and 7-5-137.
(3) An election regarding whether to approve any or all of the marijuana business categories listed in
subsection (1)(c) to be located within a local jurisdiction may be requested by filing a petition in accordance with
7-5-131 through 7-5-135 and 7-5-137 by:
(a) the qualified electors of a county; or
(b) the qualified electors of a municipality.
(3)(4) (a) An election held pursuant to this section must be called, conducted, counted, and
canvassed in accordance with Title 13, chapter 1, part 4.
(b) Except as provided in subsection (3)(c), an election held pursuant to this section may not be held
within 70 days before or after a primary, general, or regular local election.
(c)(b) An election pursuant to this section may be held in conjunction with a regular election of the
governing body, general election, or a regular local or special election.
(4)(5) If the qualified electors of an incorporated municipality, county, or consolidated city-county vote
to prohibit adult-use dispensaries from being a county vote to approve a type of marijuana business to be
located in the jurisdiction, the governing body shall enter the prohibition approval into the records of the local
government and notify the department of the election results.
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(5)(6) (a) If an election is held pursuant to this section in a county that contains within its limits a
municipality of more than 5,000 persons according to the most recent federal decennial census:
(i) it is not necessary for the registered qualified electors in the municipality to file a separate petition
asking for a separate or different vote on the question of whether to prohibit adult-use dispensaries PROHIBIT a
category of marijuana business from being located in the municipality; and
(ii) the county shall conduct the election in a manner that separates the votes in the municipality from
those in the remaining parts of the county.
(b) If a majority of the qualified electors in the county, including the qualified electors in the
municipality, vote to prohibit adult-use dispensaries from being approve a category of marijuana business to be
located in the county, the county may not allow adult-use dispensaries that category of marijuana business to
operate in the county.
(c) (i) If a majority of the qualified electors in the municipality vote to prohibit adult-use dispensaries
from being approve a category of marijuana business to be located in the municipality, the municipality may not
allow adult-use dispensaries that type of marijuana business to operate in the municipality.
(ii) If a majority of the qualified electors in the municipality vote to prohibit a category of marijuana
business from being located in the municipality, the municipality may not allow that type of marijuana business
to operate in the municipality.
(d) Nothing contained in this subsection (5) (6) prevents any municipality from having a separate
election under the terms of this section.
(6)(7) (a) An incorporated municipality, county, or consolidated city-county A county or municipality
that has voted to prohibit adult-use dispensaries from being approve a category of marijuana business to be
located in the jurisdiction or a county in which the majority of voters voted to approve Initiative Measure No. 190
in the November 3, 2020, general election may vote to discontinue the prohibition and to allow the prohibit the
previously prohibited approved or allowed operations within the incorporated municipality, county, or
consolidated city-county jurisdiction.
(b) A vote overturning a prohibition on operation of adult-use dispensaries the approval of a category
of marijuana business or prohibiting the previously permitted operation of marijuana businesses is effective on
the 90th day after the local election is held.
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(7) A local government may temporarily prohibit retail sales regulated under this chapter from being
located within its jurisdiction through local ordinance until an election can be held pursuant to this section.
(8)(8) A local government may not prohibit the transportation of marijuana within or through its
jurisdiction on public roads by any person licensed to do so by the department or as otherwise allowed by this
chapter."
Section 60. Section 16-12-302, MCA, is amended to read:
"16-12-302. (Effective October 1, 2021 January 1, 2022) Fraudulent representation -- penalties.
(1) In addition to any other penalties provided by law, an individual who fraudulently represents to a law
enforcement official that the individual is an adult-use provider or an adult-use marijuana-infused products
provider a cultivator, manufacturer, adult-use dispensary, medical marijuana dispensary, testing laboratory,
marijuana transporter, or has a marijuana worker permit is guilty of a civil fine not to exceed $1,000.
(2) An individual convicted under this section may not be licensed under this chapter as an adult-use
provider or adult-use marijuana-infused products provider under 16-12-203."
Section 61. Section 18-7-101, MCA, is amended to read:
"18-7-101. Power to contract for printing -- exceptions. (1) Except as provided in 1-11-301 and 50-
46-303, 16-12-104, and [section 11], the department has exclusive power, subject to the approval of the
governor, to contract for all printing for any purpose used by the state in any state office (elective or appointive),
agency, or institution.
(2) The department shall supervise and attend to all public printing of the state as provided in this
chapter and shall prevent duplication and unnecessary printing.
(3) Unless otherwise provided by law, the department, in letting contracts as provided in this chapter,
for the printing, binding, and publishing of all laws, journals, and reports of the state agencies and institutions
may determine the quantity, quality, style, and grade of all such printing, binding, and publishing.
(4) The provisions of this chapter do not apply to the state compensation insurance fund for purposes
of external marketing or educational materials."
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Section 62. Section 37-1-136, MCA, is amended to read:
"37-1-136. Disciplinary authority of boards -- injunctions. (1) Subject to 37-1-138, each licensing
board allocated to the department has the authority, in addition to any other penalty or disciplinary action
provided by law, to adopt rules specifying grounds for disciplinary action and rules providing for:
(a) revocation of a license;
(b) suspension of its judgment of revocation on terms and conditions determined by the board;
(c) suspension of the right to practice for a period not exceeding 1 year;
(d) placing a licensee on probation;
(e) reprimand or censure of a licensee; or
(f) taking any other action in relation to disciplining a licensee as the board in its discretion considers
proper.
(2) Any disciplinary action by a board shall be conducted as a contested case hearing under the
provisions of the Montana Administrative Procedure Act.
(3) Notwithstanding any other provision of law, a board may maintain an action to enjoin a person
from engaging in the practice of the occupation or profession regulated by the board until a license to practice is
procured. A person who has been enjoined and who violates the injunction is punishable for contempt of court.
(4) An action may not be taken against a person who is in compliance with Title 50, chapter 46
[sections 9 through 23].
(5) Rules adopted under subsection (1) must provide for the provision of public notice as required by
37-1-311."
Section 63. Section 37-1-316, MCA, is amended to read:
"37-1-316. Unprofessional conduct. The following is unprofessional conduct for a licensee or
license applicant governed by this part:
(1) conviction, including conviction following a plea of nolo contendere, of a crime relating to or
committed during the course of the person's practice or involving violence, use or sale of drugs, fraud, deceit, or
theft, whether or not an appeal is pending;
(2) permitting, aiding, abetting, or conspiring with a person to violate or circumvent a law relating to
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licensure or certification;
(3) fraud, misrepresentation, deception, or concealment of a material fact in applying for or assisting
in securing a license or license renewal or in taking an examination required for licensure;
(4) signing or issuing, in the licensee's professional capacity, a document or statement that the
licensee knows or reasonably ought to know contains a false or misleading statement;
(5) a misleading, deceptive, false, or fraudulent advertisement or other representation in the conduct
of the profession or occupation;
(6) offering, giving, or promising anything of value or benefit to a federal, state, or local government
employee or official for the purpose of influencing the employee or official to circumvent a federal, state, or local
law, rule, or ordinance governing the licensee's profession or occupation;
(7) denial, suspension, revocation, probation, fine, or other license restriction or discipline against a
licensee by a state, province, territory, or Indian tribal government or the federal government if the action is not
on appeal, under judicial review, or has been satisfied;
(8) failure to comply with a term, condition, or limitation of a license by final order of a board;
(9) revealing confidential information obtained as the result of a professional relationship without the
prior consent of the recipient of services, except as authorized or required by law;
(10) use of alcohol, a habit-forming drug, or a controlled substance as defined in Title 50, chapter 32,
to the extent that the use impairs the user physically or mentally in the performance of licensed professional
duties;
(11) having a physical or mental disability that renders the licensee or license applicant unable to
practice the profession or occupation with reasonable skill and safety;
(12) engaging in conduct in the course of one's practice while suffering from a contagious or infectious
disease involving serious risk to public health or without taking adequate precautions, including but not limited
to informed consent, protective gear, or cessation of practice;
(13) misappropriating property or funds from a client or workplace or failing to comply with a board rule
regarding the accounting and distribution of a client's property or funds;
(14) interference with an investigation or disciplinary proceeding by willful misrepresentation of facts,
by the use of threats or harassment against or inducement to a client or witness to prevent them from providing
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evidence in a disciplinary proceeding or other legal action, or by use of threats or harassment against or
inducement to a person to prevent or attempt to prevent a disciplinary proceeding or other legal action from
being filed, prosecuted, or completed;
(15) assisting in the unlicensed practice of a profession or occupation or allowing another person or
organization to practice or offer to practice by use of the licensee's license;
(16) failing to report the institution of or final action on a malpractice action, including a final decision
on appeal, against the licensee or of an action against the licensee by a:
(a) peer review committee;
(b) professional association; or
(c) local, state, federal, territorial, provincial, or Indian tribal government;
(17) failure of a health care provider, as defined in 27-6-103, to comply with a policy or practice
implementing 28-10-103(3)(a);
(18) conduct that does not meet the generally accepted standards of practice. A certified copy of a
malpractice judgment against the licensee or license applicant or of a tort judgment in an action involving an act
or omission occurring during the scope and course of the practice is conclusive evidence of but is not needed to
prove conduct that does not meet generally accepted standards.
(19) the sole use of any electronic means, including teleconferencing, to obtain the information
required for the written certification and accompanying statements used to apply for a registry identification card
pursuant to Title 50, chapter 46, part 3 [sections 9 through 23]."
Section 64. Section 37-3-203, MCA, is amended to read:
"37-3-203. Powers and duties -- rulemaking authority. (1) The board may:
(a) adopt rules necessary or proper to carry out the requirements in Title 37, chapter 3, parts 1
through 4, and of chapters covering podiatry, acupuncture, physician assistants, nutritionists, and emergency
care providers as set forth in Title 37, chapters 6, 13, 20, and 25, and 50-6-203, respectively. Rules adopted for
emergency care providers with an endorsement to provide community-integrated health care must address the
scope of practice, competency requirements, and educational requirements.
(b) hold hearings and take evidence in matters relating to the exercise and performance of the powers
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and duties vested in the board;
(c) aid the county attorneys of this state in the enforcement of parts 1 through 4 and 8 of this chapter
as well as Title 37, chapters 6, 13, 20, and 25, and Title 50, chapter 6, regarding emergency care providers
licensed by the board. The board also may assist the county attorneys of this state in the prosecution of
persons, firms, associations, or corporations charged with violations of the provisions listed in this subsection
(1)(c).
(d) review certifications of disability and determinations of eligibility for a permit to hunt from a vehicle
as provided in 87-2-803(11); and
(e) fund additional staff, hired by the department, to administer the provisions of this chapter, by
increasing license fees as necessary.
(2) (a) The board shall establish a medical assistance program to assist and rehabilitate licensees
who are subject to the jurisdiction of the board and who are found to be physically or mentally impaired by
habitual intemperance or the excessive use of addictive drugs, alcohol, or any other drug or substance or by
mental illness or chronic physical illness.
(b) The board shall ensure that a licensee who is required or volunteers to participate in the medical
assistance program as a condition of continued licensure or reinstatement of licensure must be allowed to
enroll in a qualified medical assistance program within this state and may not require a licensee to enroll in a
qualified treatment program outside the state unless the board finds that there is no qualified treatment program
in this state.
(3) (a) The board shall report annually on the number and types of complaints it has received
involving physician practices in providing written certification, as defined in 50-46-302 [section 10], for the use
of marijuana for a debilitating medical condition provided for in Title 50, chapter 46 [sections 9 through 23]. The
report must contain:
(i) the number of complaints received by the board pursuant to 37-1-308;
(ii) the number of complaints for which a reasonable cause determination was made pursuant to 37-1-
307;
(iii) the general nature of the complaints;
(iv) the number of investigations conducted into physician practices in providing written certification;
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and
(v) the number of physicians disciplined by the board for their practices in providing written
certification for the use of marijuana for a debilitating medical condition.
(b) Except as provided in subsection (3)(c), the report may not contain individual identifying
information regarding the physicians about whom the board received complaints.
(c) For each physician against whom the board takes disciplinary action related to the physician's
practices in providing written certification for the use of marijuana for a debilitating medical condition, the report
must include:
(i) the name of the physician;
(ii) the general results of the investigation of the physician's practices; and
(iii) the disciplinary action taken against the physician.
(d) The board shall provide the report to the children, families, health, and human services economic
affairs interim committee by August 1 of each year and shall make a copy of the report available on the board's
website.
(4) The board may enter into agreements with other states for the purposes of mutual recognition of
licensing standards and licensing of physicians and emergency care providers from other states under the
terms of a mutual recognition agreement."
Section 65. Section 39-2-210, MCA, is amended to read:
"39-2-210. Limitation on adverse action. Except as provided in 50-46-320 16-12-108, no adverse
action, including followup testing, may be taken by the employer if the employee presents a reasonable
explanation or medical opinion indicating that the original test results were not caused by illegal use of
controlled substances or by alcohol consumption. If the employee presents a reasonable explanation or
medical opinion, the test results must be removed from the employee's record and destroyed."
Section 66. Section 39-2-313, MCA, is amended to read:
"39-2-313. Discrimination prohibited for use of lawful product during nonworking hours --
exceptions. (1) For purposes of this section, "lawful product" means a product that is legally consumed, used,
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or enjoyed and includes food, beverages, and tobacco, and marijuana.
(2) Except as provided in subsections (3) and (4), an employer may not refuse to employ or license
and may not discriminate against an individual with respect to compensation, promotion, or the terms,
conditions, or privileges of employment because the individual legally uses a lawful product off the employer's
premises during nonworking hours.
(3) Subsection (2) does not apply to:
(a) use of a lawful product, including the use of marijuana for a debilitating medical condition as
defined in 50-46-302, that:
(i) affects in any manner an individual's ability to perform job-related employment responsibilities or
the safety of other employees; or
(ii) conflicts with a bona fide occupational qualification that is reasonably related to the individual's
employment;
(b) an individual who, on a personal basis, has a professional service contract with an employer and
the unique nature of the services provided authorizes the employer, as part of the service contract, to limit the
use of certain products; or
(c) an employer that is a nonprofit organization that, as one of its primary purposes or objectives,
discourages the use of one or more lawful products by the general public.
(4) An employer does not violate this section if the employer takes action based on the belief that the
employer's actions are permissible under an established substance abuse or alcohol program or policy,
professional contract, or collective bargaining agreement.
(5) An employer may offer, impose, or have in effect a health, disability, or life insurance policy that
makes distinctions between employees for the type or price of coverage based on the employees' use of a
product if:
(a) differential rates assessed against employees reflect actuarially justified differences in providing
employee benefits;
(b) the employer provides an employee with written notice delineating the differential rates used by
the employer's insurance carriers; and
(c) the distinctions in the type or price of coverage are not used to expand, limit, or curtail the rights or
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liabilities of a party in a civil cause of action."
Section 67. Section 39-71-407, MCA, is amended to read:
"39-71-407. (Temporary) Liability of insurers -- limitations. (1) For workers' compensation injuries,
each insurer is liable for the payment of compensation, in the manner and to the extent provided in this section,
to an employee of an employer covered under plan No. 1, plan No. 2, and the state fund under plan No. 3 that it
insures who receives an injury arising out of and in the course of employment or, in the case of death from the
injury, to the employee's beneficiaries, if any.
(2) An injury does not arise out of and in the course of employment when the employee is:
(a) on a paid or unpaid break, is not at a worksite of the employer, and is not performing any specific
tasks for the employer during the break; or
(b) engaged in a social or recreational activity, regardless of whether the employer pays for any
portion of the activity. The exclusion from coverage of this subsection (2)(b) does not apply to an employee
who, at the time of injury, is on paid time while participating in a social or recreational activity or whose
presence at the activity is required or requested by the employer. For the purposes of this subsection (2)(b),
"requested" means the employer asked the employee to assume duties for the activity so that the employee's
presence is not completely voluntary and optional and the injury occurred in the performance of those duties.
(3) (a) Subject to subsection (3)(c), an insurer is liable for an injury, as defined in 39-71-119, only if
the injury is established by objective medical findings and if the claimant establishes that it is more probable
than not that:
(i) a claimed injury has occurred; or
(ii) a claimed injury has occurred and aggravated a preexisting condition.
(b) Proof that it was medically possible that a claimed injury occurred or that the claimed injury
aggravated a preexisting condition is not sufficient to establish liability.
(c) Objective medical findings are sufficient for a presumptive occupational disease as defined in 39-
71-1401 but may be overcome by a preponderance of the evidence.
(4) (a) An employee who suffers an injury or dies while traveling is not covered by this chapter
unless:
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(i) the employer furnishes the transportation or the employee receives reimbursement from the
employer for costs of travel, gas, oil, or lodging as a part of the employee's benefits or employment agreement
and the travel is necessitated by and on behalf of the employer as an integral part or condition of the
employment; or
(ii) the travel is required by the employer as part of the employee's job duties.
(b) A payment made to an employee under a collective bargaining agreement, personnel policy
manual, or employee handbook or any other document provided to the employee that is not wages but is
designated as an incentive to work at a particular jobsite is not a reimbursement for the costs of travel, gas, oil,
or lodging, and the employee is not covered under this chapter while traveling.
(5) Except as provided in subsection (6), an employee is not eligible for benefits otherwise payable
under this chapter if the employee's use of alcohol or drugs not prescribed by a physician is the major
contributing cause of the accident.
(6) (a) An employee who has received written certification, as defined in 50-46-302 [section 10], from
a physician for the use of marijuana for a debilitating medical condition and who is otherwise eligible for benefits
payable under this chapter is subject to the limitations of subsections (6)(b) through (6)(d).
(b) An employee is not eligible for benefits otherwise payable under this chapter if the employee's use
of marijuana for a debilitating medical condition, as defined in 50-46-302 [16-12-102], is the major contributing
cause of the injury or occupational disease.
(c) Nothing in this chapter may be construed to require an insurer to reimburse any person for costs
associated with the use of marijuana for a debilitating medical condition, as defined in 50-46-302 [16-12-102].
(d) In an accepted liability claim, the benefits payable under this chapter may not be increased or
enhanced due to a worker's use of marijuana for a debilitating medical condition, as defined in 50-46-302 [16-
12-102]. An insurer remains liable for those benefits that the worker would qualify for absent the worker's use of
marijuana for a debilitating medical condition.
(7) The provisions of subsection (5) do not apply if the employer had knowledge of and failed to
attempt to stop the employee's use of alcohol or drugs not prescribed by a physician. This subsection (7) does
not apply to the use of marijuana for a debilitating medical condition because marijuana is not a prescribed
drug.
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(8) If there is no dispute that an insurer is liable for an injury but there is a liability dispute between two
or more insurers, the insurer for the most recently filed claim shall pay benefits until that insurer proves that
another insurer is responsible for paying benefits or until another insurer agrees to pay benefits. If it is later
proven that the insurer for the most recently filed claim is not responsible for paying benefits, that insurer must
receive reimbursement for benefits paid to the claimant from the insurer proven to be responsible.
(9) If a claimant who has reached maximum healing suffers a subsequent nonwork-related injury to
the same part of the body, the workers' compensation insurer is not liable for any compensation or medical
benefits caused by the subsequent nonwork-related injury.
(10) Except for cases of presumptive occupational disease as provided in 39-71-1401 and 39-71-1402,
an employee is not eligible for benefits payable under this chapter unless the entitlement to benefits is
established by objective medical findings that contain sufficient factual and historical information concerning the
relationship of the worker's condition to the original injury.
(11) (a) For occupational diseases, every employer enrolled under plan No. 1, every insurer under
plan No. 2, or the state fund under plan No. 3 is liable for the payment of compensation, in the manner and to
the extent provided in this chapter, to an employee of an employer covered under plan No. 1, plan No. 2, or the
state fund under plan No. 3 if the employee is diagnosed with a compensable occupational disease.
(b) The provisions of subsection (11)(a) apply to presumptive occupational disease if the employee is
diagnosed and meets the conditions of 39-71-1401 and 39-71-1402.
(12) An insurer is liable for an occupational disease only if the occupational disease:
(a) is established by objective medical findings; and
(b) arises out of or is contracted in the course and scope of employment. An occupational disease is
considered to arise out of or be contracted in the course and scope of employment if the events occurring on
more than a single day or work shift are the major contributing cause of the occupational disease in relation to
other factors contributing to the occupational disease. For the purposes of this subsection (12), an occupational
disease is not the same as a presumptive occupational disease.
(13) When compensation is payable for an occupational disease or a presumptive occupational
disease, the only employer liable is the employer in whose employment the employee was last injuriously
exposed to the hazard of the disease.
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(14) When there is more than one insurer and only one employer at the time that the employee was
injuriously exposed to the hazard of the disease, the liability rests with the insurer providing coverage at the
earlier of:
(a) the time that the occupational disease or presumptive occupational disease was first diagnosed by
a health care provider; or
(b) the time that the employee knew or should have known that the condition was the result of an
occupational disease or a presumptive occupational disease.
(15) In the case of pneumoconiosis, any coal mine operator who has acquired a mine in the state or
substantially all of the assets of a mine from a person who was an operator of the mine on or after December
30, 1969, is liable for and shall secure the payment of all benefits that would have been payable by that person
with respect to miners previously employed in the mine if acquisition had not occurred and that person had
continued to operate the mine, and the prior operator of the mine is not relieved of any liability under this
section.
(16) As used in this section, "major contributing cause" means a cause that is the leading cause
contributing to the result when compared to all other contributing causes. (Void on occurrence of contingency--
sec. 7, Ch. 158, L. 2019.)
39-71-407. (Effective on occurrence of contingency) Liability of insurers -- limitations. (1) For
workers' compensation injuries, each insurer is liable for the payment of compensation, in the manner and to
the extent provided in this section, to an employee of an employer covered under plan No. 1, plan No. 2, and
the state fund under plan No. 3 that it insures who receives an injury arising out of and in the course of
employment or, in the case of death from the injury, to the employee's beneficiaries, if any.
(2) An injury does not arise out of and in the course of employment when the employee is:
(a) on a paid or unpaid break, is not at a worksite of the employer, and is not performing any specific
tasks for the employer during the break; or
(b) engaged in a social or recreational activity, regardless of whether the employer pays for any
portion of the activity. The exclusion from coverage of this subsection (2)(b) does not apply to an employee
who, at the time of injury, is on paid time while participating in a social or recreational activity or whose
presence at the activity is required or requested by the employer. For the purposes of this subsection (2)(b),
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"requested" means the employer asked the employee to assume duties for the activity so that the employee's
presence is not completely voluntary and optional and the injury occurred in the performance of those duties.
(3) (a) An insurer is liable for an injury, as defined in 39-71-119, only if the injury is established by
objective medical findings and if the claimant establishes that it is more probable than not that:
(i) a claimed injury has occurred; or
(ii) a claimed injury has occurred and aggravated a preexisting condition.
(b) Proof that it was medically possible that a claimed injury occurred or that the claimed injury
aggravated a preexisting condition is not sufficient to establish liability.
(4) (a) An employee who suffers an injury or dies while traveling is not covered by this chapter
unless:
(i) the employer furnishes the transportation or the employee receives reimbursement from the
employer for costs of travel, gas, oil, or lodging as a part of the employee's benefits or employment agreement
and the travel is necessitated by and on behalf of the employer as an integral part or condition of the
employment; or
(ii) the travel is required by the employer as part of the employee's job duties.
(b) A payment made to an employee under a collective bargaining agreement, personnel policy
manual, or employee handbook or any other document provided to the employee that is not wages but is
designated as an incentive to work at a particular jobsite is not a reimbursement for the costs of travel, gas, oil,
or lodging, and the employee is not covered under this chapter while traveling.
(5) Except as provided in subsection (6), an employee is not eligible for benefits otherwise payable
under this chapter if the employee's use of alcohol or drugs not prescribed by a physician is the major
contributing cause of the accident.
(6) (a) An employee who has received written certification, as defined in 50-46-302 [section 10], from
a physician for the use of marijuana for a debilitating medical condition and who is otherwise eligible for benefits
payable under this chapter is subject to the limitations of subsections (6)(b) through (6)(d).
(b) An employee is not eligible for benefits otherwise payable under this chapter if the employee's use
of marijuana for a debilitating medical condition, as defined in 50-46-302 [16-12-102], is the major contributing
cause of the injury or occupational disease.
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(c) Nothing in this chapter may be construed to require an insurer to reimburse any person for costs
associated with the use of marijuana for a debilitating medical condition, as defined in 50-46-302 [16-12-102].
(d) In an accepted liability claim, the benefits payable under this chapter may not be increased or
enhanced due to a worker's use of marijuana for a debilitating medical condition, as defined in 50-46-302 [16-
12-102]. An insurer remains liable for those benefits that the worker would qualify for absent the worker's use of
marijuana for a debilitating medical condition.
(7) The provisions of subsection (5) do not apply if the employer had knowledge of and failed to
attempt to stop the employee's use of alcohol or drugs not prescribed by a physician. This subsection (7) does
not apply to the use of marijuana for a debilitating medical condition because marijuana is not a prescribed
drug.
(8) If there is no dispute that an insurer is liable for an injury but there is a liability dispute between two
or more insurers, the insurer for the most recently filed claim shall pay benefits until that insurer proves that
another insurer is responsible for paying benefits or until another insurer agrees to pay benefits. If it is later
proven that the insurer for the most recently filed claim is not responsible for paying benefits, that insurer must
receive reimbursement for benefits paid to the claimant from the insurer proven to be responsible.
(9) If a claimant who has reached maximum healing suffers a subsequent nonwork-related injury to
the same part of the body, the workers' compensation insurer is not liable for any compensation or medical
benefits caused by the subsequent nonwork-related injury.
(10) An employee is not eligible for benefits payable under this chapter unless the entitlement to
benefits is established by objective medical findings that contain sufficient factual and historical information
concerning the relationship of the worker's condition to the original injury.
(11) For occupational diseases, every employer enrolled under plan No. 1, every insurer under plan
No. 2, or the state fund under plan No. 3 is liable for the payment of compensation, in the manner and to the
extent provided in this chapter, to an employee of an employer covered under plan No. 1, plan No. 2, or the
state fund under plan No. 3 if the employee is diagnosed with a compensable occupational disease.
(12) An insurer is liable for an occupational disease only if the occupational disease:
(a) is established by objective medical findings; and
(b) arises out of or is contracted in the course and scope of employment. An occupational disease is
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considered to arise out of or be contracted in the course and scope of employment if the events occurring on
more than a single day or work shift are the major contributing cause of the occupational disease in relation to
other factors contributing to the occupational disease.
(13) When compensation is payable for an occupational disease, the only employer liable is the
employer in whose employment the employee was last injuriously exposed to the hazard of the disease.
(14) When there is more than one insurer and only one employer at the time that the employee was
injuriously exposed to the hazard of the disease, the liability rests with the insurer providing coverage at the
earlier of:
(a) the time that the occupational disease was first diagnosed by a health care provider; or
(b) the time that the employee knew or should have known that the condition was the result of an
occupational disease.
(15) In the case of pneumoconiosis, any coal mine operator who has acquired a mine in the state or
substantially all of the assets of a mine from a person who was an operator of the mine on or after December
30, 1969, is liable for and shall secure the payment of all benefits that would have been payable by that person
with respect to miners previously employed in the mine if acquisition had not occurred and that person had
continued to operate the mine, and the prior operator of the mine is not relieved of any liability under this
section.
(16) As used in this section, "major contributing cause" means a cause that is the leading cause
contributing to the result when compared to all other contributing causes."
Section 68. Section 41-5-216, MCA, is amended to read:
"41-5-216. Disposition of youth court, law enforcement, and department records -- sharing and
access to records. (1) Formal and informal youth court records, law enforcement records, and department
records that are not exempt from sealing under subsections (4) and (6) and that pertain to a youth covered by
this chapter must be physically sealed on the youth's 18th birthday. In those cases in which jurisdiction of the
court or any agency is extended beyond the youth's 18th birthday, the records must be physically sealed upon
termination of the extended jurisdiction.
(2) Except as provided in subsection (6), when the records pertaining to a youth pursuant to this
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section are sealed, an agency, other than the department, that has in its possession copies of the sealed
records shall destroy the copies of the records. Anyone violating the provisions of this subsection is subject to
contempt of court.
(3) Except as provided in subsection (6), this section does not prohibit the destruction of records with
the consent of the youth court judge or county attorney after 10 years from the date of sealing.
(4) The requirements for sealed records in this section do not apply to medical records, fingerprints,
DNA records, photographs, youth traffic records, records in any case in which the youth did not fulfill all
requirements of the court's judgment or disposition, records referred to in 42-3-203, or the information referred
to in 46-23-508, in any instance in which the youth was required to register as a sexual offender pursuant to
Title 46, chapter 23, part 5.
(5) After formal and informal youth court records, law enforcement records, and department records
are sealed, they are not open to inspection except, upon order of the youth court, for good cause to:
(a) those persons and agencies listed in 41-5-215(2); and
(b) adult probation and parole staff preparing a presentence report on an adult with an existing sealed
youth court record.
(6) (a) When formal youth court records, law enforcement records, and department records are
sealed under subsection (1), the electronic records of the management information system maintained by the
office of court administrator and by the department relating to the youth whose records are being sealed must
be preserved for the express purpose of research and program evaluation.
(b) The department of public health and human services, the office of court administrator, and the
department shall disassociate the offense and disposition information from the name of the youth in the
respective management information system. The offense and disposition information must be maintained
separately and may be used only:
(i) for research and program evaluation authorized by the office of court administrator or by the
department and subject to any applicable laws; and
(ii) as provided in Title 5, chapter 13.
(7) (a) Informal youth court records for a youth for whom formal proceedings have been filed must be
physically sealed on the youth's 18th birthday or, in those cases in which jurisdiction of the court or any agency
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is extended beyond the youth's 18th birthday, upon termination of the extended jurisdiction and may be
inspected only pursuant to subsection (5).
(b) The informal youth court records are confidential and may be shared only with those persons and
agencies listed in 41-5-215(2).
(c) Except as provided in subsection (7)(a), when a youth becomes 18 years of age or when extended
supervision ends and the youth was involved only in informal proceedings, informal youth court records that are
in hard-copy form must be destroyed and any electronic records in the youth court management information
system must disassociate the offense and disposition information from the name of the youth and may be used
only for the following purposes:
(i) for research and program evaluation authorized by the office of the court administrator and subject
to any applicable laws; and
(ii) as provided in Title 5, chapter 13.
(8) Nothing in this section prohibits the sharing of formal or informal youth court records within the
juvenile probation management information system to a person or agency listed in 41-5-215(2).
(9) This section does not prohibit the sharing of formal or informal youth court records within the
department's youth management information system. Electronic records of the department's youth
management information system may not be shared except as provided in subsection (5). A person or agency
receiving the youth court record shall destroy the record after it has fulfilled its purpose.
(10) This section does not prohibit the sharing of formal or informal youth court records with a short-
term detention center, a youth care facility, a youth assessment center, or a youth detention facility upon
placement of a youth within the facility.
(11) This section does not prohibit access to formal or informal youth court records, including
electronic records, for purposes of conducting evaluations as required by 41-5-2003 and studies conducted
between individuals and agencies listed in 41-5-215(2).
(12) This section does not prohibit the office of court administrator, upon written request from the
department of public health and human services revenue, from confirming whether a person applying for a
registry identification card pursuant to 50-46-307 [section 11] or a license pursuant to 50-46-308 16-12-203 is
currently under youth court supervision."
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Section 69. Section 45-9-101, MCA, is amended to read:
"45-9-101. Criminal distribution of dangerous drugs. (1) Except as provided in Title 16, chapter
12, or Title 50, chapter 46, a person commits the offense of criminal distribution of dangerous drugs if the
person sells, barters, exchanges, gives away, or offers to sell, barter, exchange, or give away any dangerous
drug, as defined in 50-32-101.
(2) A person convicted of criminal distribution of dangerous drugs involving giving away or sharing
any dangerous drug, as defined in 50-32-101, shall be sentenced as provided in 45-9-102.
(3) A person convicted of criminal distribution of dangerous drugs not otherwise provided for in
subsection (1), (2), or (4) shall be imprisoned in the state prison for a term not to exceed 25 years or be fined
an amount of not more than $50,000, or both.
(4) A person who was an adult at the time of distribution and who is convicted of criminal distribution
of dangerous drugs to a minor shall be sentenced as follows:
(a) For a first offense, the person shall be imprisoned in the state prison for a term not to exceed 40
years and may be fined not more than $50,000.
(b) For a second or subsequent offense, the person shall be imprisoned in the state prison for a term
not to exceed life and may be fined not more than $50,000.
(5) Practitioners, as defined in 50-32-101, and agents under their supervision acting in the course of a
professional practice are exempt from this section."
Section 70. Section 45-9-102, MCA, is amended to read:
"45-9-102. Criminal possession of dangerous drugs. (1) Except as provided in Title 16, chapter
12, or 50-32-609, or Title 50, chapter 46, a person commits the offense of criminal possession of dangerous
drugs if the person possesses any dangerous drug, as defined in 50-32-101, [in an amount] greater than
permitted or for which a penalty is not specified under Title 16, chapter 12.
(2) A person convicted of criminal possession of dangerous drugs shall be imprisoned in the state
prison for a term not to exceed 5 years or be fined an amount not to exceed $5,000, or both.
(3) A person convicted of a first violation under this section is presumed to be entitled to a deferred
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imposition of sentence of imprisonment.
(4) Ultimate users and practitioners, as defined in 50-32-101, and agents under their supervision
acting in the course of a professional practice are exempt from this section."
Section 71. Section 45-9-103, MCA, is amended to read:
"45-9-103. Criminal possession with intent to distribute. (1) Except as provided in Title 16,
chapter 12, or Title 50, chapter 46, a person commits the offense of criminal possession with intent to distribute
if the person possesses with intent to distribute any dangerous drug as defined in 50-32-101 [in an amount]
greater than permitted or for which a penalty is not specified under Title 16, chapter 12.
(2) A person convicted of criminal possession with intent to distribute shall be imprisoned in the state
prison for a term of not more than 20 years or be fined an amount not to exceed $50,000, or both.
(3) Practitioners, as defined in 50-32-101, and agents under their supervision acting in the course of a
professional practice are exempt from this section."
Section 72. Section 45-9-110, MCA, is amended to read:
"45-9-110. Criminal production or manufacture of dangerous drugs. (1) Except as provided in
Title 16, chapter 12, or Title 50, chapter 46, a person commits the offense of criminal production or manufacture
of dangerous drugs if the person knowingly or purposely produces, manufactures, prepares, cultivates,
compounds, or processes a dangerous drug, as defined in 50-32-101.
(2) A person convicted of criminal production or manufacture of dangerous drugs, as defined in 50-
32-101, shall be imprisoned in the state prison for a term of not more than 25 years and may be fined an
amount not to exceed $50,000.
(3) A person convicted of production of marijuana or tetrahydrocannabinol in an amount greater than
permitted or for which a penalty is not specified under Title 16, chapter 12, or Title 50, chapter 46, or
manufacture without the appropriate license and endorsement pursuant to Title 16, chapter 12, or Title 50,
chapter 46, shall be imprisoned in the state prison for a term of not more than 5 years and may be fined an
amount not to exceed $5,000, except that if the total weight is more than a pound or the number of plants is
more than 30, the person shall be imprisoned in the state prison for a term of not more than 25 years and may
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be fined an amount not to exceed $50,000. "Weight" means the weight of the dry plant and includes the leaves
and stem structure but does not include the root structure.
(4) Practitioners, as defined in 50-32-101, and agents under their supervision acting in the course of a
professional practice are exempt from this section."
Section 73. Section 45-9-127, MCA, is amended to read:
"45-9-127. Carrying dangerous drugs on train -- penalty. (1) Except as provided in Title 16,
chapter 12, or Title 50, chapter 46, a person commits the offense of carrying dangerous drugs on a train in this
state if the person is knowingly or purposely in criminal possession of a dangerous drug and boards any train.
(2) A person convicted of carrying dangerous drugs on a train in this state is subject to the penalties
provided in 45-9-102."
Section 74. Section 45-9-203, MCA, is amended to read:
"45-9-203. Surrender of license. (1) If a court suspends or revokes a driver's license under 45-9-
202(2)(e), the defendant shall, at the time of sentencing, surrender the license to the court. The court shall
forward the license and a copy of the sentencing order to the department of justice. The defendant may apply to
the department for issuance of a probationary license under 61-2-302.
(2) If a person with a registry identification card or license issued pursuant to 50-46-307 [section 11]
or 50-46-308 16-12-203 is convicted of an offense under this chapter, the court shall:
(a) at the time of sentencing, require the person to surrender the registry identification card; and
(b) notify the department of public health and human services revenue of the conviction in order for
the department to carry out its duties under 50-46-330 [section 18] or 16-12-109."
Section 75. Section 45-10-103, MCA, is amended to read:
"45-10-103. Criminal possession of drug paraphernalia. Except as provided in Title 16, chapter 12,
or 50-32-609, or Title 50, chapter 46, it is unlawful for a person to use or to possess with intent to use drug
paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process,
prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into
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the human body a dangerous drug. A person who violates this section is guilty of a misdemeanor and upon
conviction shall be imprisoned in the county jail for not more than 6 months, fined an amount of not more than
$500, or both. A person convicted of a first violation of this section is presumed to be entitled to a deferred
imposition of sentence of imprisonment."
Section 76. Section 45-10-107, MCA, is amended to read:
"45-10-107. Exemptions. The provisions of this part do not apply to:
(1) practitioners, as defined in 50-32-101, and agents under their supervision acting in the course of a
professional practice;
(2) persons acting in compliance with Title 50, chapter 46;
(3)(2) persons acting in compliance with Title 16, chapter 12; or
(4)(3) persons acting as employees or volunteers of an organization, including a nonprofit community-
based organization, local health department, or tribal health department, that provides needle and syringe
exchange services to prevent and reduce the transmission of communicable diseases."
Section 77. Section 46-18-202, MCA, is amended to read:
"46-18-202. Additional restrictions on sentence. (1) The sentencing judge may also impose any of
the following restrictions or conditions on the sentence provided for in 46-18-201 that the judge considers
necessary to obtain the objectives of rehabilitation and the protection of the victim and society:
(a) prohibition of the offender's holding public office;
(b) prohibition of the offender's owning or carrying a dangerous weapon;
(c) restrictions on the offender's freedom of association;
(d) restrictions on the offender's freedom of movement;
(e) a requirement that the defendant provide a biological sample for DNA testing for purposes of Title
44, chapter 6, part 1, if an agreement to do so is part of the plea bargain;
(f) a requirement that the offender surrender any registry identification card issued under [section 11]
or license issued under 50-46-303 16-12-203;
(g) any other limitation reasonably related to the objectives of rehabilitation and the protection of the
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victim and society.
(2) Whenever the sentencing judge imposes a sentence of imprisonment in a state prison for a term
exceeding 1 year, the sentencing judge may also impose the restriction that the offender is ineligible for parole
and participation in the supervised release program while serving that term. If the restriction is to be imposed,
the sentencing judge shall state the reasons for it in writing. If the sentencing judge finds that the restriction is
necessary for the protection of society, the judge shall impose the restriction as part of the sentence and the
judgment must contain a statement of the reasons for the restriction.
(3) If a sentencing judge requires an offender to surrender a registry identification card issued under
[section 11] or license issued under 50-46-303 16-12-203, the court shall return the card or license to the
department of public health and human services revenue and provide the department with information on the
offender's sentence. The department shall revoke the card for the duration of the sentence and shall return the
card if the offender successfully completes the terms of the sentence before the expiration date listed on the
card."
Section 78. Section 50-46-302, MCA, is amended to read:
"50-46-302. Definitions. As used in this part, the following definitions apply:
(1) "Canopy" means the total amount of square footage dedicated to live plant production at a
registered premises consisting of the area of the floor, platform, or means of support or suspension of the plant.
(2) "Chemical manufacturing" means the production of marijuana concentrate.
(3) "Correctional facility or program" means a facility or program that is described in 53-1-202 and to
which an individual may be ordered by any court of competent jurisdiction.
(4) "Debilitating medical condition" means:
(a) cancer, glaucoma, positive status for human immunodeficiency virus, or acquired immune
deficiency syndrome when the condition or disease results in symptoms that seriously and adversely affect the
patient's health status;
(b) cachexia or wasting syndrome;
(c) severe chronic pain that is persistent pain of severe intensity that significantly interferes with daily
activities as documented by the patient's treating physician;
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(d) intractable nausea or vomiting;
(e) epilepsy or an intractable seizure disorder;
(f) multiple sclerosis;
(g) Crohn's disease;
(h) painful peripheral neuropathy;
(i) a central nervous system disorder resulting in chronic, painful spasticity or muscle spasms;
(j) admittance into hospice care in accordance with rules adopted by the department; or
(k) posttraumatic stress disorder.
(5) "Department" means the department of public health and human services revenue provided for in
2-15-2201 2-15-1301.
(6) "Dispensary" means a registered premises from which a provider or marijuana-infused products
provider is approved by the department to dispense marijuana or marijuana-infused products to a registered
cardholder.
(7) (a) "Employee" means an individual employed to do something for the benefit of an employer.
(b) The term includes a manager, agent, or director of a partnership, association, company,
corporation, limited liability company, or organization.
(c) The term does not include a third party with whom a licensee has a contractual relationship.
(8) "Financial interest" means a legal or beneficial interest that entitles the holder, directly or indirectly
through a business, an investment, or a spouse, parent, or child relationship, to 1% or more of the net profits or
net worth of the entity in which the interest is held.
(9) "Local government" means a county, a consolidated government, or an incorporated city or town.
(10) "Marijuana" has the meaning provided in 50-32-101.
(11) "Marijuana concentrate" means any type of marijuana product consisting wholly or in part of the
resin extracted from any part of the marijuana plant.
(12) "Marijuana derivative" means any mixture or preparation of the dried leaves, flowers, resin, and
byproducts of the marijuana plant, including but not limited to marijuana concentrates and marijuana-infused
products.
(13) (a) "Marijuana-infused product" means a product that contains marijuana and is intended for use
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by a registered cardholder by a means other than smoking.
(b) The term includes but is not limited to edible products, ointments, and tinctures.
(14) (a) "Marijuana-infused products provider" means a person licensed by the department to
manufacture and provide marijuana-infused products for a registered cardholder.
(b) The term does not include the cardholder's treating or referral physician.
(15) "Mature marijuana plant" means a harvestable female marijuana plant that is flowering.
(16) "Paraphernalia" has the meaning provided in 45-10-101.
(17) "Person" means an individual, partnership, association, company, corporation, limited liability
company, or organization.
(18) (a) "Provider" means a person licensed by the department to assist a registered cardholder as
allowed under this part.
(b) The term does not include a cardholder's treating physician or referral physician.
(19) "Referral physician" means an individual who:
(a) is licensed under Title 37, chapter 3; and
(b) is the physician to whom a patient's treating physician has referred the patient for physical
examination and medical assessment.
(20) "Registered cardholder" or "cardholder" means a Montana resident with a debilitating medical
condition who has received and maintains a valid registry identification card.
(21) "Registered premises" means the location at which a provider or marijuana-infused products
provider:
(a) has indicated that marijuana will be cultivated, chemical manufacturing will occur, or marijuana-
infused products will be manufactured for registered cardholders; or
(b) has established a dispensary for sale of marijuana or marijuana-infused products to registered
cardholders.
(22) "Registry identification card" means a document issued by the department pursuant to 50-46-303
that identifies an individual as a registered cardholder.
(23) (a) "Resident" means an individual who meets the requirements of 1-1-215.
(b) An individual is not considered a resident for the purposes of this part if the individual:
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(i) claims residence in another state or country for any purpose; or
(ii) is an absentee property owner paying property tax on property in Montana.
(24) "Second degree of kinship by blood or marriage" means a mother, father, brother, sister, son,
daughter, spouse, grandparent, grandchild, mother-in-law, father-in-law, brother-in-law, sister-in-law, son-in-
law, daughter-in-law, grandparent-in-law, grandchild-in-law, stepfather, stepmother, stepbrother, stepsister,
stepson, stepdaughter, stepgrandparent, or stepgrandchild.
(25) "Seedling" means a marijuana plant that has no flowers and is less than 12 inches in height and
12 inches in diameter.
(26) "Standard of care" means, at a minimum, the following activities when undertaken in person or
through the use of telemedicine by a patient's treating physician or referral physician if the treating physician or
referral physician is providing written certification for a patient with a debilitating medical condition:
(a) obtaining the patient's medical history;
(b) performing a relevant and necessary physical examination;
(c) reviewing prior treatment and treatment response for the debilitating medical condition;
(d) obtaining and reviewing any relevant and necessary diagnostic test results related to the
debilitating medical condition;
(e) discussing with the patient and ensuring that the patient understands the advantages,
disadvantages, alternatives, potential adverse effects, and expected response to the recommended treatment;
(f) monitoring the response to treatment and possible adverse effects; and
(g) creating and maintaining patient records that remain with the physician.
(27) "State laboratory" means the laboratory operated by the department to conduct environmental
analyses.
(28) "Telemedicine" has the meaning provided in 33-22-138.
(29) "Testing laboratory" means a qualified person, licensed by the department, who meets the
requirements of 50-46-311 and:
(a) provides testing of representative samples of marijuana and marijuana-infused products; and
(b) provides information regarding the chemical composition, the potency of a sample, and the
presence of molds, pesticides, or other contaminants in a sample.
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(30) "Treating physician" means an individual who:
(a) is licensed under Title 37, chapter 3; and
(b) has a bona fide professional relationship with the individual applying to be a registered cardholder.
(31) (a) "Usable marijuana" means the dried leaves and flowers of the marijuana plant and any
marijuana derivatives that are appropriate for the use of marijuana by an individual with a debilitating medical
condition.
(b) The term does not include the seeds, stalks, and roots of the plant.
(32) "Written certification" means a statement signed by a treating physician or referral physician that
meets the requirements of 50-46-310 and is provided in a manner that meets the standard of care."
Section 79. Section 50-46-303, MCA, is amended to read:
"50-46-303. Medical marijuana registry -- department responsibilities -- issuance of cards and
licenses -- confidentiality. (1) The department shall establish and maintain a registry of persons who receive
registry identification cards or licenses under this part. The department shall issue:
(a) registry identification cards to Montana residents who have debilitating medical conditions and
who submit applications meeting the requirements of this part;
(b) licenses:
(i) to persons who apply to operate as providers or marijuana-infused products providers and who
submit applications meeting the requirements of this part;
(ii) for dispensaries established by providers or marijuana-infused products providers; and
(iii) through the state laboratory, to testing laboratories that submit applications meeting the
requirements of this part; and
(c) endorsements for chemical manufacturing to a provider or a marijuana-infused products provider
who applies for a chemical manufacturing endorsement and meets requirements established by the department
by rule.
(2) (a) An individual who obtains a registry identification card and indicates the individual will not use
the system of licensed providers and marijuana-infused products providers to obtain marijuana or marijuana-
infused products is authorized to cultivate, manufacture, possess, and transport marijuana as allowed by this
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part.
(b) An individual who obtains a registry identification card and indicates the individual will use the
system of licensed providers and marijuana-infused products providers to obtain marijuana or marijuana-
infused products is authorized to possess marijuana as allowed by this part.
(c)(a) A person who obtains a provider, marijuana-infused products provider, or dispensary license or
an employee of a licensed provider or marijuana-infused products provider is authorized to cultivate,
manufacture, possess, sell, and transport marijuana as allowed by this part.
(d)(b) A person who obtains a testing laboratory license or an employee of a licensed testing
laboratory is authorized to possess, test, and transport marijuana as allowed by this part.
(3) The department shall conduct criminal history background checks as required by 50-46-307 and
50-46-308 before issuing a license to a provider or marijuana-infused products provider.
(4) (a) Registry identification cards and licenses issued pursuant to this part must:
(i) be laminated and produced on a material capable of lasting for the duration of the time period for
which the card or license is valid;
(ii) state the name, address, and date of birth of the registered cardholder;
(iii) indicate whether the cardholder is obtaining marijuana and marijuana-infused products through the
system of licensed providers and marijuana-infused products providers;
(iv) indicate whether a provider or marijuana-infused products provider has an endorsement for
chemical manufacturing;
(v) state the date of issuance and the expiration date of the registry identification card or license;
(vi) contain a unique identification number; and
(vii) contain other information that the department may specify by rule.
(b) Except as provided in subsection (4)(c), in addition to complying with subsection (4)(a), registry
identification cards issued pursuant to this part must:
(i) include a picture of the registered cardholder; and
(ii) be capable of being used to track registered cardholder purchases.
(c) (i) The department shall issue temporary registry identification cards upon receipt of an
application. The cards are valid for 60 days and are exempt from the requirements of subsection (4)(b). Printing
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of the temporary identification cards is exempt from the provisions of Title 18, chapter 7.
(ii) The cards may be issued before an applicant's payment of the fee has cleared. The department
shall cancel the temporary card after 60 days and may not issue a permanent card until the fee is paid.
(5) (a) The department or state laboratory, as applicable, shall review the information contained in an
application or renewal submitted pursuant to this part and shall approve or deny an application or renewal
within 30 days of receiving the application or renewal and all related application materials.
(b) If the department fails to act on a completed application within 30 days of receipt, the department
shall:
(i) refund the fee paid by an applicant for a registry identification card;
(ii) reduce the cost of the licensing fee for a new applicant for licensure or for a licensee seeking
renewal of a license by 5% each week that the application is pending; and
(iii) if a licensee is unable to operate because a license renewal application has not been acted on,
reimburse the licensee 50% of the gross sales the licensee reported in the most recent quarter for the purpose
of the tax provided for in 15-64-102.
(c) Applications that are not processed within 30 days of receipt remain active until the department
takes final action.
(d) An application for a license or renewal of a license is not considered complete until the department
has completed a satisfactory inspection as required by this part and related administrative rules.
(e) The department shall issue a registry identification card, license, or endorsement within 5 days of
approving an application or renewal.
(6) Review of a rejection of an application or renewal may be conducted as a contested case hearing
pursuant to the provisions of the Montana Administrative Procedure Act.
(7) (a) Registry identification cards expire 1 year after the date of issuance unless a physician has
provided a written certification stating that a card is valid for a shorter period of time.
(b) Licenses and endorsements issued to providers, marijuana-infused products providers, and
testing laboratories must be renewed annually.
(8) (a) A registered cardholder shall notify the department of any change in the cardholder's name,
address, or physician or change in the status of the cardholder's debilitating medical condition within 10 days of
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the change.
(b) A registered cardholder who possesses mature plants or seedlings under 50-46-319(1) shall notify
the department of the location of the plants and seedlings or any change of location of plants or seedlings. The
department shall provide the names and locations of cardholders who possess mature plants or seedlings to
the local law enforcement agency having jurisdiction in the area in which the plants or seedlings are located.
The law enforcement agency and its employees are subject to the confidentiality requirements of 50-46-332.
(c)(b) If a change occurs and is not reported to the department, the registry identification card is void.
(9) The department shall maintain a confidential list of individuals to whom the department has issued
registry identification cards. Except as provided in subsections (8)(b) and subsection (10), individual names and
other identifying information on the list must be confidential and are not subject to disclosure, except to:
(a) authorized employees of the department as necessary to perform the official duties of the
department;
(b) authorized employees of state or local government agencies, including law enforcement agencies,
only as necessary to verify that an individual is a lawful possessor of a registry identification card;
(c) a judge, magistrate, or other authorized judicial officer in response to an order requiring disclosure;
and
(d) another person or entity when the information pertains to a cardholder who has given written
consent to the release and has specified:
(i) the type of information to be released; and
(ii) the person or entity to whom it may be released.
(10) The department shall provide the names and phone numbers of providers and marijuana-infused
products providers and the city, town, or county where registered premises and testing laboratories are located
to the public on the department's website. The department may not disclose the physical location or address of
a provider, marijuana-infused products provider, dispensary, or testing laboratory.
(11) The department may share only information about providers, marijuana-infused products
providers, dispensaries, and testing laboratories with the department of revenue for the purpose of investigation
and prevention of noncompliance with tax laws, including but not limited to evasion, fraud, and abuse. The
department of revenue and its employees are subject to the confidentiality requirements of 15-64-111(1)."
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Section 80. Section 50-46-307, MCA, is amended to read:
"50-46-307. Individuals with debilitating medical conditions -- requirements -- minors --
limitations. (1) Except as provided in subsections (2) through (5), the department shall issue a registry
identification card to an individual with a debilitating medical condition who submits the following, in accordance
with department rules:
(a) an application on a form prescribed by the department;
(b) an application fee or a renewal fee;
(c) the individual's name, street address, and date of birth;
(d) proof of Montana residency;
(e) a statement that the individual will be cultivating marijuana and manufacturing marijuana-infused
products for the individual's use or will be obtaining marijuana or marijuana-infused products through the
system of licensed providers and marijuana-infused products providers;
(f)(e) a statement, on a form prescribed by the department, that the individual will not divert to any
other individual the marijuana or marijuana-infused products that the individual cultivates, manufactures, or
obtains through the system of licensed providers and marijuana-infused products providers for the individual's
debilitating medical condition;
(g)(f) the name of the individual's treating physician or referral physician and the street address and
telephone number of the physician's office;
(h)(g) the street address where the individual is cultivating marijuana or manufacturing marijuana-
infused products if the individual is cultivating marijuana or manufacturing marijuana-infused products for the
individual's own use; and
(i)(h) the written certification and accompanying statements from the individual's treating physician or
referral physician as required pursuant to 50-46-310.
(2) The department shall issue a registry identification card to a minor if the materials required under
subsection (1) are submitted and the minor's custodial parent or legal guardian with responsibility for health
care decisions:
(a) provides proof of legal guardianship and responsibility for health care decisions if the individual is
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submitting an application as the minor's legal guardian with responsibility for health care decisions; and
(b) signs and submits a written statement that:
(i) the minor's treating physician or referral physician has explained to the minor and to the minor's
custodial parent or legal guardian with responsibility for health care decisions the potential risks and benefits of
the use of marijuana;
(ii) indicates whether the parent or legal guardian will be obtaining marijuana or marijuana-infused
products for the minor through the system of licensed providers and marijuana-infused products providers; and
(iii) the minor's custodial parent or legal guardian with responsibility for health care decisions:
(A) consents to the use of marijuana by the minor;
(B) agrees to control the acquisition of marijuana and the dosage and frequency of the use of
marijuana by the minor;
(C) agrees that the minor will use only marijuana-infused products and will not smoke marijuana;
(c) if the parent or guardian will be serving as the minor's provider, undergoes background checks in
accordance with subsection (3). The parent or legal guardian shall pay the costs of the background check and
may not obtain a license as a marijuana-infused products provider if the parent or legal guardian does not meet
the requirements of 50-46-308.
(d) pledges, on a form prescribed by the department, not to divert to any individual any marijuana
cultivated or obtained for the minor's use in a marijuana-infused product.
(3) A parent serving as a minor's provider shall submit fingerprints to facilitate a fingerprint and
background check by the department of justice and federal bureau of investigation upon the minor's initial
application for a registry identification card and every 3 5 years after that. The department shall conduct a
name-based background check in years when a fingerprint background check is not required.
(4) An application for a registry identification card for a minor must be accompanied by the written
certification and accompanying statements required pursuant to 50-46-310 from a second physician in addition
to the minor's treating physician or referral physician.
(5) An individual may not be a registered cardholder if the individual is in the custody of or under the
supervision of the department of corrections or a youth court.
(6) A registered cardholder who elects to obtain marijuana or marijuana-infused products through the
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system of licensed providers and marijuana-infused products providers may not cultivate marijuana or
manufacture marijuana-infused products for the cardholder's use unless the registered cardholder is a licensed
provider or marijuana-infused products provider.
(7) A registered cardholder may cultivate marijuana and manufacture marijuana-infused products as
allowed under 50-46-319 only:
(a) at a property that is owned by the cardholder; or
(b) with written permission of the property owner, at a property that is rented or leased by the
cardholder.
(8) No portion of the property used for cultivation of marijuana and manufacture of marijuana-infused
products for use by the registered cardholder may be shared with or rented or leased to a provider, a
marijuana-infused products provider, or a registered cardholder unless the property is owned, rented, or leased
by cardholders who are related to each other by the second degree of kinship by blood or marriage."
Section 81. Section 50-46-319, MCA, is amended to read:
"50-46-319. Legal protections -- allowable amounts. (1) (a) A registered cardholder who has
elected to obtain marijuana and marijuana-infused products through the system of licensed providers and
marijuana-infused products providers may:
(i) possess up to 1 ounce of usable marijuana; and
(ii) purchase a maximum of 5 ounces of usable marijuana a month and no more than 1 ounce of
usable marijuana a day.
(b) (i) A registered cardholder who has elected not to use the system of licensed providers and
marijuana-infused products providers may possess up to 4 mature plants, 4 seedlings, and the amount of
usable marijuana allowed by the department by rule.
(ii) If two or more registered cardholders share a residence and have elected not to use the system of
licensed providers and marijuana-infused products providers, the cardholders may have a maximum of 8
mature plants, 8 seedlings, and the amount of usable marijuana allowed by the department by rule. The limits in
this subsection (1)(b)(ii) apply regardless of the location of the plants and seedlings.
(iii) A registered cardholder who possesses mature plants or seedlings shall notify the department of
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the location of the plants and seedlings pursuant to 50-46-303(8)(b).
(c)(b) A provider or marijuana-infused products provider may have the canopy allowed by the
department for the provider or marijuana-infused products provider. The canopy allotment is a cumulative total
for all of the provider's or marijuana-infused products provider's registered premises and may not be interpreted
as an allotment for each premises.
(d)(c) (i) A registered cardholder may petition the department for an exception to the monthly limit on
purchases. The request must be accompanied by a confirmation from the physician who signed the
cardholder's written certification that the cardholder's debilitating medical condition warrants purchase of an
amount exceeding the monthly limit.
(ii) If the department approves an exception to the cap, the approval must establish the monthly
amount of usable marijuana that the cardholder may purchase and the limit must be entered into the seed-to-
sale tracking system.
(2) Except as provided in 50-46-320 and subject to the provisions of subsection (7) of this section, an
individual who possesses a registry identification card or license issued pursuant to this part may not be
arrested, prosecuted, or penalized in any manner or be denied any right or privilege, including but not limited to
civil penalty or disciplinary action by a professional licensing board or the department of labor and industry,
solely because:
(a) the person cultivates, manufactures, possesses, or transports marijuana in the amounts allowed
under this section; or
(b) the registered cardholder acquires or uses marijuana.
(3) A physician may not be arrested, prosecuted, or penalized in any manner or be denied any right or
privilege, including but not limited to civil penalty or disciplinary action by the board of medical examiners or the
department of labor and industry, solely for providing written certification for a patient with a debilitating medical
condition.
(4) Nothing in this section prevents the imposition of a civil penalty or a disciplinary action by a
professional licensing board or the department of labor and industry if:
(a) a registered cardholder's use of marijuana impairs the cardholder's job-related performance; or
(b) a physician violates the standard of care or other requirements of this part.
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(5) (a) An individual may not be arrested or prosecuted for constructive possession, conspiracy as
provided in 45-4-102, or other provisions of law or any other offense solely for being in the presence or vicinity
of the use of marijuana and marijuana-infused products as permitted under this part.
(b) This subsection (5) does not prevent the arrest or prosecution of an individual who is in the vicinity
of a registered cardholder's use of marijuana if the individual is in possession of or is using marijuana and is not
a registered cardholder.
(6) Except as provided in 50-46-329, possession of or application for a license or registry identification
card does not alone constitute probable cause to search the person or individual or the property of the person
or individual or otherwise subject the person or individual or property of the person or individual possessing or
applying for the license or card to inspection by any governmental agency, including a law enforcement agency.
(7) The provisions of this section relating to protection from arrest or prosecution do not apply to an
individual unless the individual has obtained a license or registry identification card prior to an arrest or the filing
of a criminal charge. It is not a defense to a criminal charge that an individual obtains a license or registry
identification card after an arrest or the filing of a criminal charge.
(8) (a) A registered cardholder, a provider, or a marijuana-infused products provider is presumed to
be engaged in the use of marijuana as allowed by this part if the person:
(i) is in possession of a valid registry identification card or license; and
(ii) is in possession of an amount of marijuana that does not exceed the amount permitted under this
part.
(b) The presumption may be rebutted by evidence that the possession of marijuana was not for the
purpose of alleviating the symptoms or effects of a registered cardholder's debilitating medical condition."
Section 82. Section 50-46-345, MCA, is amended to read:
"50-46-345. Medical marijuana state special revenue account -- operating reserve -- transfer of
excess funds. (1) There is a medical marijuana state special revenue account within the state special revenue
fund established in 17-2-102.
(2) The account consists of:
(a) money deposited into the account pursuant to 50-46-344 and 50-46-347;
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(b) the tax collected pursuant to Title 15, chapter 64, part 1; and
(c) civil penalties collected under this part.
(3) Except as provided in subsection (4), money in the account must be used by the department for
the purpose of administering the Montana Medical Marijuana Act and tracking system development.
(4) (a) At the end of each fiscal year, the department shall transfer funds in excess of a $250,000
operating reserve as provided in this subsection (4).
(b) At the end of fiscal year 2019:
(i) the first $2.5 million in excess funds must be transferred to the mental health services special
revenue account provided for in 53-21-1207; and
(ii) any remaining excess funds must be transferred to the pain management education and treatment
special revenue account provided for in 50-46-346.
(c) At the end of fiscal year 2020 and subsequent fiscal years, any excess funds must be transferred
to the pain management education and treatment special revenue account provided for in 50-46-346.
(4) The account’s balance shall be transferred to the marijuana state special revenue account
provided for in 16-12-111:
(a) on July 1, 2021; and
(b) on December 31, 2021."
Section 83. Section 50-46-346, MCA, is amended to read:
"50-46-346. Pain management education and treatment special revenue account. (1) There is a
pain management education and treatment account in the state special revenue fund provided for in 17-2-102
to the credit of the department.
(2) The account consists of money transferred into the account as provided in 50-46-345.
(3) Money in the account must be used by the department for:
(a) efforts to educate the public about using pain management techniques and treatments that do not
involve the use of opioid drugs; and
(b) a block grant program to pay the costs of the following alternative pain management treatments
for individuals who have no other payment source for the treatments:
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(i) acupuncture;
(ii) chiropractic;
(iii) physical therapy; and
(iv) naturopathic physician services.
(4) The block grant program must be operated in accordance with criteria established by the
department as allowed under 53-24-204.
(5) On July 1, 2021, the account’s balance shall be transferred to the marijuana state special revenue
account provided for in 16-12-111."
Section 84. Section 50-46-347, MCA, is amended to read:
"50-46-347. Provider licensing fees. (1) Unless reduced as allowed under 50-46-303(5)(b), annual
license fees for providers and marijuana-infused products providers are based on the volume of the provider's
production of marijuana.
(2) Annual fees for providers and marijuana-infused products providers are:
(a) $500 for a provider with a micro tier canopy license;
(b) $1,000 for a provider with a tier 1 canopy license;
(c) $2,500 for a provider with a tier 2 canopy license;
(d) $5,000 for a provider with a tier 3 canopy license;
(e) $7,500 for a provider with a tier 4 canopy license;
(f) $10,000 for a provider with a tier 5 canopy license;
(g) $13,000 for a provider with a tier 6 canopy license;
(h) $15,000 for a provider with a tier 7 canopy license;
(i) $17,500 for a provider with a tier 8 canopy license; and
(j) $20,000 for a provider with a tier 9 canopy license.
(3) A provider of both marijuana and marijuana-infused products is required to have only one canopy
license.
(4) The fee required under this part may be imposed based only on the tier of licensure and may not
be applied separately to each registered premises used for cultivation under the licensure level.
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(5) The department shall charge an annual dispensary license fee in addition to the canopy license
fee provided for in subsection (2). The dispensary license fee is based on the total number of registered
premises used as dispensaries as follows:
(a) one registered premises, $500;
(b) two or three registered premises, $5,000
(c) four or five registered premises, $25,000; and
(d) six or more registered premises, $100,000.
(6) Money collected from license fees paid pursuant to this section must be deposited in the special
revenue account provided for in 50-46-345 16-12-111."
Section 85. Section 53-6-1201, MCA, is amended to read:
"53-6-1201. (Subsection (2)(c) effective October 1, 2021) Special revenue fund -- health and
medicaid initiatives. (1) There is a health and medicaid initiatives account in the state special revenue fund
established by 17-2-102. This account is to be administered by the department of public health and human
services.
(2) There must be deposited in the account:
(a) money from cigarette taxes deposited under 16-11-119(2)(c);
(b) money from taxes on tobacco products other than cigarettes deposited under 16-11-119(4)(b);
and
(c) money from marijuana taxes deposited under 16-12-111; and
(d)(c) any interest and income earned on the account.
(3) This account may be used only to provide funding for:
(a) the state funds necessary to take full advantage of available federal matching funds in order to
administer the plan and maximize enrollment of eligible children under the healthy Montana kids plan, provided
for under Title 53, chapter 4, part 11, and to provide outreach to the eligible children;
(b) a new need-based prescription drug program established by the legislature for children, seniors,
chronically ill, and disabled persons that does not supplant similar services provided under any existing
program;
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(c) increased medicaid services and medicaid provider rates. The increased revenue is intended to
increase medicaid services and medicaid provider rates and not to supplant the general fund in the trended
traditional level of appropriation for medicaid services and medicaid provider rates.
(c) increased medicaid services and medicaid provider rates. The increased revenue is intended to
increase medicaid services and medicaid provider rates and not to supplant the general fund in the trended
traditional level of appropriation for medicaid services and medicaid provider rates.
(d)(d) an offset to loss of revenue to the general fund as a result of new tax credits; and
(e)(e) grants to schools for suicide prevention activities, for the biennium beginning July 1, 2017.
(4) (a) On or before July 1, the budget director shall calculate a balance required to sustain each
program in subsection (3) for each fiscal year of the biennium. If the budget director certifies that the reserve
balance will be sufficient, then the agencies may expend the revenue for the programs as appropriated. If the
budget director determines that the reserve balance of the revenue will not support the level of appropriation,
the budget director shall notify each agency. Upon receipt of the notification, the agency shall adjust the
operating budget for the program to reflect the available revenue as determined by the budget director.
(b) Until the programs or credits described in subsections (3)(b) and (3)(d) (3)(C) (3)(d) are
established, the funding must be used exclusively for the purposes described in subsections subsections (3)(a)
and (3)(c) and (3)(c).
(5) The phrase "trended traditional level of appropriation", as used in subsection (3)(c), means the
appropriation amounts, including supplemental appropriations, as those amounts were set based on eligibility
standards, services authorized, and payment amount during the past five biennial budgets.
(5) The phrase "trended traditional level of appropriation", as used in subsection (3)(c), means the
appropriation amounts, including supplemental appropriations, as those amounts were set based on eligibility
standards, services authorized, and payment amount during the past five biennial budgets.
(6)(6) The department of public health and human services may adopt rules to implement this
section."
Section 86. Section 53-21-1207, MCA, is amended to read:
"53-21-1207. Mental health services special revenue account. (1) There is a mental health
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services special revenue account within the state special revenue fund established in 17-2-102.
(2) The account consists of:
(a) money transferred into the account as provided in 50-46-345; and
(b) money appropriated by the legislature.
(3) Money in the account must be used by the department to pay for services provided by behavioral
health peer support specialists pursuant to 53-6-101."
Section 87. Section 61-8-402, MCA, is amended to read:
"61-8-402. Implied consent -- blood or breath tests for alcohol, blood or oral fluid for drugs, or
testing for both alcohol and drugs using recognized methods for each -- refusal to submit to test --
administrative license suspension. (1) A person who operates or is in actual physical control of a vehicle
upon ways of this state open to the public is considered to have given consent to a test or tests of the person's
blood or breath for the purpose of determining any measured amount or detected presence of alcohol, or blood
or oral fluid for the purpose of determining any measured amount or detected presence of drugs in the person's
body.
(2) (a) The test or tests must be administered at the direction of a peace officer when:
(i) the officer has reasonable grounds to believe that the person has been driving or has been in
actual physical control of a vehicle upon ways of this state open to the public while under the influence of
alcohol, drugs, or a combination of the two and the person has been placed under arrest for a violation of 61-8-
401 or 61-8-465;
(ii) the person is under the age of 21 and has been placed under arrest for a violation of 61-8-410; or
(iii) the officer has probable cause to believe that the person was driving or in actual physical control of
a vehicle:
(A) in violation of 61-8-401 and the person has been involved in a motor vehicle accident or collision
resulting in property damage;
(B) involved in a motor vehicle accident or collision resulting in serious bodily injury, as defined in 45-
2-101, or death; or
(C) in violation of 61-8-465.
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(b) The arresting or investigating officer may designate which test or tests are administered.
(3) A person who is unconscious or who is otherwise in a condition rendering the person incapable of
refusal is considered not to have withdrawn the consent provided by subsection (1).
(4) If an arrested person refuses to submit to one or more tests requested and designated by the
officer as provided in subsection (2), the refused test or tests may not be given except as provided in
subsection (5), but the officer shall, on behalf of the department, immediately seize the person's driver's license.
The peace officer shall immediately forward the license to the department, along with a report certified under
penalty of law stating which of the conditions set forth in subsection (2)(a) provides the basis for the testing
request and confirming that the person refused to submit to one or more tests requested and designated by the
peace officer. Upon receipt of the report, the department shall suspend the license for the period provided in
subsection (8).
(5) If the arrested person has refused to provide a breath, blood, or urine, or oral fluid sample under
61-8-409 or this section in a prior investigation in this state or under a substantially similar statute in another
jurisdiction or the arrested person has a prior conviction or pending offense for a violation of 45-5-104, 45-5-
106, 45-5-205, 61-8-401, 61-8-406, or 61-8-411 or a similar statute in another jurisdiction, the officer may apply
for a search warrant to be issued pursuant to 46-5-224 to collect a sample of the person's blood for testing.
(6) (a) An arrested person who refuses to submit to one or more tests as provided in subsection (4)
shall pay the department an administrative fee of $300, which must be deposited in the state special revenue
account established pursuant to subsection (6)(b).
(b) There is a blood-draw search warrant processing account in the state special revenue fund
established pursuant to 17-2-102(1)(b). Money provided to the department of justice pursuant to this subsection
(6) must be deposited in the account and may be used only for the purpose of providing forensic analysis of a
driver's blood to determine the presence of alcohol or drugs.
(c) The department shall adopt rules establishing procedures for the collection, distribution, and strict
accountability of any funds received pursuant to this section.
(7) Upon seizure of a driver's license, the peace officer shall issue, on behalf of the department, a
temporary driving permit, which is effective 12 hours after issuance and is valid for 5 days following the date of
issuance, and shall provide the driver with written notice of the license suspension and the right to a hearing
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provided in 61-8-403.
(8) (a) Except as provided in subsection (8)(b), the following suspension periods are applicable upon
refusal to submit to one or more tests:
(i) upon a first refusal, a suspension of 6 months with no provision for a restricted probationary
license;
(ii) upon a second or subsequent refusal within 5 years of a previous refusal, as determined from the
records of the department, a suspension of 1 year with no provision for a restricted probationary license.
(b) If a person who refuses to submit to one or more tests under this section is the holder of a
commercial driver's license, in addition to any action taken against the driver's noncommercial driving
privileges, the department shall:
(i) upon a first refusal, suspend the person's commercial driver's license for a 1-year period; and
(ii) upon a second or subsequent refusal, suspend the person's commercial driver's license for life,
subject to department rules adopted to implement federal rules allowing for license reinstatement, if the person
is otherwise eligible, upon completion of a minimum suspension period of 10 years. If the person has a prior
conviction of a major offense listed in 61-8-802(2) arising from a separate incident, the conviction has the same
effect as a previous testing refusal for purposes of this subsection (8)(b).
(9) A nonresident driver's license seized under this section must be sent by the department to the
licensing authority of the nonresident's home state with a report of the nonresident's refusal to submit to one or
more tests.
(10) The department may recognize the seizure of a license of a tribal member by a peace officer
acting under the authority of a tribal government or an order issued by a tribal court suspending, revoking, or
reinstating a license or adjudicating a license seizure if the actions are conducted pursuant to tribal law or
regulation requiring alcohol or drug testing of motor vehicle operators and the conduct giving rise to the actions
occurred within the exterior boundaries of a federally recognized Indian reservation in this state. Action by the
department under this subsection is not reviewable under 61-8-403.
(11) A suspension under this section is subject to review as provided in this part.
(12) This section does not apply to tests, samples, and analyses of blood, or breath, or urine used for
purposes of medical treatment or care of an injured motorist, related to a lawful seizure for a suspected
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violation of an offense not in this part, or performed pursuant to a search warrant.
(13) This section does not prohibit the release of information obtained from tests, samples, and
analyses of blood or breath for law enforcement purposes as provided in 46-4-301 and 61-8-405(6)."
Section 88. Section 61-8-404, MCA, is amended to read:
"61-8-404. Evidence admissible -- conditions of admissibility. (1) Upon the trial of a criminal
action or other proceeding arising out of acts alleged to have been committed by a person in violation of 61-8-
401, 61-8-406, 61-8-410, 61-8-411, 61-8-465, or 61-8-805:
(a) evidence of any measured amount or detected presence of alcohol, drugs, or a combination of
alcohol and drugs in the person at the time of a test, as shown by an analysis of the person's blood, or breath,
or oral fluid, is admissible. A positive test result does not, in itself, prove that the person was under the influence
of a drug or drugs at the time the person was in control of a motor vehicle. A person may not be convicted of a
violation of 61-8-401 based upon the presence of a drug or drugs in the person unless some other competent
evidence exists that tends to establish that the person was under the influence of a drug or drugs while driving
or in actual physical control of a motor vehicle within this state.
(b) a report of the facts and results of one or more tests of a person's blood, or breath, or oral fluid is
admissible in evidence if:
(i) a breath test, oral fluid screening test, or preliminary alcohol screening test was performed by a
person certified by the forensic sciences division of the department to administer the test;
(ii) a blood sample was analyzed in a laboratory operated or certified by the department or in a
laboratory exempt from certification under the rules of the department and the blood was withdrawn from the
person by a person competent to do so under 61-8-405(1);
(c) a report of the facts and results of a physical, psychomotor, or physiological assessment of a
person is admissible in evidence if it was made by a person trained by the department or by a person who has
received training recognized by the department.
(2) If the person under arrest refused to submit to one or more tests under 61-8-402, whether or not a
sample was subsequently collected for any purpose, proof of refusal is admissible in any criminal action or
proceeding arising out of acts alleged to have been committed while the person was driving or in actual
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physical control of a vehicle upon the ways of this state open to the public, while under the influence of alcohol,
drugs, or a combination of alcohol and drugs. The trier of fact may infer from the refusal that the person was
under the influence. The inference is rebuttable.
(3) The provisions of this part do not limit the introduction of any other competent evidence bearing on
the question of whether the person was under the influence of alcohol, drugs, or a combination of alcohol and
drugs."
Section 89. Section 61-8-405, MCA, is amended to read:
"61-8-405. Administration of tests. (1) Only a physician, registered nurse, or other qualified person
acting under the supervision and direction of a physician or registered nurse may, at the request of a peace
officer, withdraw blood for the purpose of determining any measured amount or detected presence of alcohol,
drugs, or any combination of alcohol and drugs in the person. This limitation does not apply to the sampling of
breath.
(2) In addition to any test administered at the direction of a peace officer, a person may request that
an independent blood sample be drawn by a physician or registered nurse for the purpose of determining any
measured amount or detected presence of alcohol, drugs, or any combination of alcohol and drugs in the
person. The peace officer may not unreasonably impede the person's right to obtain an independent blood test.
The officer may but has no duty to transport the person to a medical facility or otherwise assist the person in
obtaining the test. The cost of an independent blood test is the sole responsibility of the person requesting the
test. The failure or inability to obtain an independent test by a person does not preclude the admissibility in
evidence of any test given at the direction of a peace officer.
(3) Upon the request of the person tested, full information concerning any test given at the direction of
the peace officer must be made available to the person or the person's attorney.
(4) A physician, registered nurse, or other qualified person acting under the supervision and direction
of a physician or registered nurse does not incur any civil or criminal liability as a result of the proper
administering of a blood test when requested in writing by a peace officer to administer a test.
(5) The department in cooperation with any appropriate agency shall adopt uniform rules for the
giving of tests and may require certification of training to administer the tests as considered necessary.
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(6) If a peace officer has probable cause to believe that a person has violated 61-8-401, 61-8-406, 61-
8-410, 61-8-411, 61-8-465, or 61-8-805 and a sample of blood, breath, urine, oral fluid, or other bodily
substance is taken from that person for any reason, a portion of that sample sufficient for analysis must be
provided to a peace officer if requested for law enforcement purposes and upon issuance of a subpoena as
provided in 46-4-301."
Section 90. Section 61-8-409, MCA, is amended to read:
"61-8-409. Preliminary alcohol or drug screening test. (1) A person who operates or is in actual
physical control of a vehicle upon ways of this state open to the public is considered to have given consent to a
preliminary alcohol screening test of the person's breath, for the purpose of estimating the person's alcohol
concentration, or a preliminary drug screening test of a person’s oral fluid for the purpose of estimating the
person’s drug concentration(s), upon the request of a peace officer who has a particularized suspicion that the
person was driving or in actual physical control of a vehicle upon ways of this state open to the public while
under the influence of alcohol, drugs, or a combination of alcohol and drugs or in violation of 61-8-410 or 61-8-
465.
(2) The person's obligation to submit to a test under 61-8-402 is not satisfied by the person submitting
to a preliminary alcohol screening test, preliminary drug screening test, or both pursuant to this section.
(3) The peace officer shall inform the person of the right to refuse the test and that the refusal to
submit to the preliminary alcohol screening test, preliminary drug screening test, or both will result in the
suspension for up to 1 year of that person's driver's license.
(4) If the person refuses to submit to a test under this section, a test will not be given except as
provided in 61-8-402(5). However, the refusal is sufficient cause to suspend the person's driver's license as
provided in 61-8-402.
(5) A hearing as provided for in 61-8-403 must be available. The issues in the hearing must be limited
to determining whether a peace officer had a particularized suspicion that the person was driving or in actual
physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol or in
violation of 61-8-410 and whether the person refused to submit to the alcohol test.
(6) The provisions of 61-8-402(3) through (10) that do not conflict with this section are applicable to
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refusals under this section. If a person refuses a test requested under 61-8-402 and this section for the same
incident, the department may not consider each a separate refusal for purposes of suspension under 61-8-402.
(7) A test may not be conducted or requested under this section unless both the peace officer and the
instrument used to conduct the preliminary alcohol screening test or preliminary drug screening test have been
certified by the department pursuant to rules adopted under the authority of 61-8-405(5)."
Section 91. Section 61-8-442, MCA, is amended to read:
"61-8-442. Driving under influence of alcohol or drugs -- driving with excessive alcohol
concentration -- ignition interlock device -- 24/7 sobriety and drug monitoring program -- forfeiture of
vehicle. (1) In addition to the punishments provided in 61-8-714, 61-8-722, and 61-8-465, regardless of
disposition and if a probationary license is recommended by the court, the court may, for a person convicted of
a first offense under 61-8-401, 61-8-406, 61-8-411, or 61-8-465:
(a) restrict the person to driving only a motor vehicle equipped with a functioning ignition interlock
device during the probationary period and require the person to pay the reasonable cost of leasing, installing,
and maintaining the device; or
(b) require the person to participate in a court-approved alcohol or drug detection testing program and
pay the fees associated with the testing program.
(2) If a person is convicted of a second or subsequent violation of 61-8-401, 61-8-406, 61-8-411, or
61-8-465, in addition to the punishments provided in 61-8-714, 61-8-722, and 61-8-465, regardless of
disposition, the court shall:
(a) if recommending that a probationary license be issued to the person, restrict the person to driving
only a motor vehicle equipped with a functioning ignition interlock device during the probationary period and
require the person to pay the reasonable cost of leasing, installing, and maintaining the device;
(b) require the person to participate in the 24/7 sobriety and drug monitoring program provided for in
44-4-1203 and pay the fees associated with the program or require the person to participate in a court-
approved alcohol or drug detection testing program and pay the fees associated with the testing program; or
(c) order that each motor vehicle owned by the person at the time of the offense be seized and
subjected to the forfeiture procedure provided under 61-8-421.
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(3) Any restriction or requirement imposed under this section must be included in a report of the
conviction made by the court to the department in accordance with 61-11-101 and placed upon the person's
driving record maintained by the department in accordance with 61-11-102.
(4) The duration of a restriction imposed under this section must be monitored by the department.
(5) All court-approved alcohol or drug detection testing programs allowed under this section are
required to use the state’s data management system pursuant to 44-4-1203."
Section 92. Section 61-11-101, MCA, is amended to read:
"61-11-101. Report of convictions and suspension or revocation of driver's licenses --
surrender of licenses. (1) If a person is convicted of an offense for which chapter 5 or chapter 8, part 8,
makes mandatory the suspension or revocation of the driver's license or commercial driver's license of the
person by the department, the court in which the conviction occurs shall require the surrender to it of all driver's
licenses then held by the convicted person. The court shall, within 5 days after the conviction, forward the
license and a record of the conviction to the department. If the person does not possess a driver's license, the
court shall indicate that fact in its report to the department.
(2) A court having jurisdiction over offenses committed under a statute of this state or a municipal
ordinance regulating the operation of motor vehicles on highways, except for standing or parking statutes or
ordinances, shall forward a record of the conviction, as defined in 61-5-213, to the department within 5 days
after the conviction. The court may recommend that the department issue a restricted probationary license on
the condition that the individual comply with the requirement that the person attend and complete a chemical
dependency education course, treatment, or both, as ordered by the court under 61-8-732.
(3) A court or other agency of this state or of a subdivision of the state that has jurisdiction to take any
action suspending, revoking, or otherwise limiting a license to drive shall report an action and the adjudication
upon which it is based to the department within 5 days on forms furnished by the department.
(4) (a) On a conviction referred to in subsection (1) of a person who holds a commercial driver's
license or who is required to hold a commercial driver's license, a court may not take any action, including
deferring imposition of judgment, that would prevent a conviction for any violation of a state or local traffic
control law or ordinance, except a parking law or ordinance, in any type of motor vehicle, from appearing on the
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person's driving record. The provisions of this subsection (4)(a) apply only to the conviction of a person who
holds a commercial driver's license or who is required to hold a commercial driver's license and do not apply to
the conviction of a person who holds any other type of driver's license.
(b) For purposes of this subsection (4), "who is required to hold a commercial driver's license" refers
to a person who did not have a commercial driver's license but who was operating a commercial motor vehicle
at the time of a violation of a state or local traffic control law or ordinance resulting in a conviction referred to in
subsection (1).
(5) (a) If a person who holds a valid registry identification card or license issued pursuant to 50-46-
307 [section 12] or 50-46-308 16-12-203 is convicted of or pleads guilty to any offense related to driving under
the influence of alcohol or drugs when the initial offense with which the person was charged was a violation of
61-8-401, 61-8-406, 61-8-410, or 61-8-411, the court in which the conviction occurs shall require the person to
surrender the registry identification card or license.
(b) Within 5 days after the conviction, the court shall forward the registry identification card and a copy
of the conviction to the department of public health and human services department of revenue."
Section 93. Veterans and surviving spouses state special revenue account. (1) There is a
veterans and surviving spouses account in the state special revenue fund to be administered by the veterans'
affairs division of the department of military affairs. The account consists of revenue deposited pursuant to 16-
12-111.
(2) The account must be used to provide services and assistance for all Montana veterans and
surviving spouses and dependents.
Section 94. Local government taxing authority -- specific delegation. As required by 7-1-112,
[sections 94 through 98] specifically delegate to the qualified electors of a county the power to authorize their
county to impose a local-option marijuana excise tax within the corporate boundary of the county.
Section 95. Limit on local-option marijuana excise tax rate -- goods subject to tax. (1) The rate
of the local-option marijuana excise tax must be established by the election petition or resolution provided for in
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[section 96], and the rate may not exceed 3%.
(2) The local-option marijuana excise tax is a tax on the retail value of all marijuana and marijuana
products sold at an adult-use dispensary or medical marijuana dispensary within a county.
(3) If a county imposes a local-option marijuana excise tax:
(a) 50% of the resulting tax revenue must be retained by the county;
(b) 45% of the resulting tax revenue must be apportioned to the municipalities on the basis of the ratio
of the population of the city or town to the total county population; and
(c) the remaining 5% of the resulting tax revenue must be retained by the department to defray costs
associated with administering [sections 94 through 98]. The funds retained by the department under this
subsection (3)(c) must be deposited into the marijuana state special revenue account established under 16-12-
111.
(4) For the purposes of this section, "tax revenue" means the combined taxes collected under any
local-option marijuana excise tax collected on retail sales within the county.
Section 96. Local government excise tax-- election required -- procedure -- notice. (1) A county
that has permitted an adult-use dispensary or medical marijuana dispensary to operate within its borders
pursuant to 16-12-301 or a county in which the majority of voters voted to approve Initiative Measure No. 190 in
the November 3, 2020, general election, may not impose or, except as provided in this section, amend or
repeal a local-option marijuana excise tax unless the local-option marijuana excise tax question has been
approved by a majority of the qualified electors voting on the question.
(2) The local-option marijuana excise tax question may be presented to the qualified electors of a
county by a petition of the electors as provided in 7-5-131, 7-5-132, 7-5-134, 7-5-135, and 7-5-137 or by a
resolution of the governing body of the county.
(3) The petition or resolution referring the taxing question must state:
(a) the rate of the tax, which may not exceed 3% of the retail value of all marijuana and marijuana
products sold at an adult-use dispensary or medical marijuana dispensary;
(b) the date when the tax becomes effective, which may not be earlier than 90 days after the election;
and
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(c) the purposes that may be funded by the tax revenue.
(4) On receipt of an adequate petition, the county’s governing body shall hold an election in
accordance with Title 13, chapter 1, part 5.
(5) (a) Before the local-option marijuana excise tax question is submitted to the electorate, the county
shall provide notice of the goods subject to the local-option marijuana excise tax by a method described in 13-
1-108.
(b) The notice must be given two times, with at least 6 days separating the notices. The first notice
must be given not more than 45 days prior to the election, and the last notice must be given not less than 30
days prior to the election.
(6) Notice of the election must be given as provided in 13-1-108 and include the information listed in
subsection (3) of this section.
(7) The question of the imposition of a local-option marijuana excise tax may not be placed before the
qualified electors more than once in any fiscal year.
Section 97. Tax administration. (1) Not less than 90 days prior to the date that the local-option
marijuana excise tax becomes effective, the county shall notify the department of the results of the election and
coordinate with the department to facilitate the administration and collection of the local-option marijuana excise
taxes.
(2) The department shall establish by rule:
(a) the times that taxes collected by businesses are to be remitted to the department;
(b) the office or employee of the department responsible for receiving and accounting for the local-
option marijuana excise tax receipts;
(c) the office or employee of the department responsible for enforcing the collection of local-option
marijuana excise taxes and the methods and procedures to be used in enforcing the collection of local-option
marijuana excise taxes due; and
(d) the penalties for failure to report taxes due, failure to remit taxes due, and violations of the
administrative ordinance. The penalties may include:
(i) criminal penalties not to exceed a fine of $1,000 or 6 months' imprisonment, or both;
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(ii) civil penalties if the department prevails in a suit for the collection of local-option marijuana excise
taxes, not to exceed 50% of the local-option marijuana excise taxes found due plus the costs and attorney fees
incurred by the department in the action;
(iii) revocation of an adult-use dispensary license or medical marijuana dispensary license held by the
offender; and
(iv) any other penalties that may be applicable for violation of an ordinance.
(3) The department’s rules may also include:
(a) further clarification and specificity in the categories of goods that are subject to the local-option
marijuana excise tax;
(b) authorization for business administration and prepayment discounts. The discount authorization
may allow each vendor and commercial establishment to withhold up to 5% of the local-option marijuana excise
taxes collected to defray their costs for the administration of the tax collection.
(c) other administrative details necessary for the efficient and effective administration of the tax.
(4) A county and the department may exchange information collected under the provisions of this
chapter that is necessary to implement and administer a local-option marijuana excise tax or the tax collected
under Title 15, chapter 64, part 1.
Section 98. Use of local-option marijuana excise tax revenue. Unless otherwise restricted, a
county or municipality may appropriate and expend revenue derived from a local-option marijuana excise tax
for any activity, undertaking, or administrative service that the municipality is authorized by law to perform,
including costs resulting from the imposition of the tax or due to administrative burdens imposed on the
municipality as a result of licensing or regulatory requirements imposed in this chapter.
Section 99. Section 80-1-104, MCA, is amended to read:
"80-1-104. (Bracketed language effective October 1, 2021) Analytical laboratory services --
rulemaking authority -- deposit of fees. (1) The department is authorized to provide analytical laboratory
services for:
(a) programs it operates under this title;
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(b) other state or federal agencies;
(c) providers and marijuana-infused products providers as those terms are defined in 50-46-302;
[(d) adult-use marijuana providers and adult-use marijuana-infused products providers as those terms
are defined in 16-12-102;]
(e)(c) the department of public health and human services revenue for the purposes of [Title Title 16,
chapter 12, and] Title 50, chapter 46, part 3, as allowed by federal law; and
(f)(d) private parties.
(2) The department may enter into a contract or a memorandum of understanding for the space and
equipment necessary for operation of the analytical laboratory.
(3) (a) The department may adopt rules establishing fees for testing services required under this title
or provided to another state agency, a federal agency, or a private party.
(b) Money collected from the fees must be deposited in the appropriate related account in the state
special revenue fund to the credit of the department to pay costs related to analytical laboratory services
provided pursuant to this section."
Section 100. Healing and ending addiction through recovery and treatment account. (1) There
is a healing and ending addiction through recovery and treatment account in the state special revenue fund.
The account consists of money transferred to the account pursuant to 16-12-111.
(2) Revenue in the account must be used to provide statewide programs for:
(a) substance use disorder prevention;
(b) mental health promotion; and
(c) crisis, treatment, and recovery services for substance use and mental health disorders.
(3) The programs must be designed to:
(a) increase the number of individuals choosing treatment over incarceration;
(b) improve access to, utilization of, and engagement and retention in prevention, treatment, and
recovery support services;
(c) expand the availability of community-based services that reflect best practices or are evidence-
based;
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(d) leverage additional federal funds when available for the healthy Montana kids plan provided for in
Title 53, chapter 4, part 11, and the medicaid program provided for in Title 53, chapter 6, for the purposes of
this section;
(e) provide funding for programs and services that are described in subsections (2)(a) through (2)(c)
and provided on an Indian reservation located in this state; or
(f) provide funding for grants and services to tribes for use in accordance with this section.
(4) (a) An amount not to exceed $500,000, including eligible federal matching sources when
applicable, must be used to provide funding for grants and services to tribes for tobacco prevention and
cessation, substance use disorder prevention, mental health promotion, and substance use disorder and
mental health crisis, treatment, and recovery services.
(b) The department of public health and human services shall manage the programs funded by the
special revenue account and shall adopt rules to implement the programs.
(5) The legislature shall appropriate money from the state special revenue account provided for in this
section for the programs referred to in this section.
(6) Programs funded under this section must be funded through contracted services with service
providers.
Section 101. Definitions. As used in [sections 101 through 103], unless the context clearly indicates
otherwise, the following definitions apply:
(1) "Expungement or resentencing of marijuana conviction court" means the court that is responsible
for determining petitions for expungement and resentencing as provided in 16-12-113.
(2) "Petition for expungement or resentencing" means a petition filed pursuant to 16-12-113 seeking
expungement or resentencing of a marijuana conviction.
Section 102. Appointment of judge. (1) A petition for expungement or resentencing of a marijuana
conviction filed as provided in 16-12-113 may be determined by a judge pro tempore or special master, who
must be a member of the bar of the state, agreed on in writing by the petitioner and the county attorney,
appointed by the supreme court as provided in 3-5-115, and sworn to determine whether the petitioner meets
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the criteria for expungement or resentencing as provided in 16-12-113. On appointment, the individual must be
designated as the decriminalized marijuana conviction expungement judge.
(2) A judge appointed under subsection (1) has the authority and power of an elected district court
judge in the civil action involving petitions filed as provided in 16-12-113. All proceedings must be conducted in
accordance with the rules of evidence and procedure governing district courts.
(3) Any determination rendered in a petition by the judge has the same force and effect as if
determined by the district court with the regular judge presiding.
(4) A party stipulating to have a petition determined by the judge appointed under subsection (1) may
not file a motion for substitution of the judge pursuant to 3-1-804.
(5) All filings relating to a petition filed as provided in 16-12-113 must be filed with the clerk of court in
the judicial district in which the marijuana conviction took place. The applicant and the county attorney shall
provide a copy of each filing to the judge appointed as provided in subsection (1).
Section 103. Petition for expungement -- venue. When the applicant requests a hearing, as
provided in 16-12-113, the judge appointed as provided in [section 102] may hear the petition in any venue
stipulated by the petitioner and the county attorney, as provided in 25-2-202, or in any venue otherwise
determined by the judge in accordance with a stipulation of the petitioner and the county attorney. In stipulating
venue, the petitioner and the county attorney shall take into consideration the availability of courtroom facilities.
The judge may prepare a list of available courtroom facilities for consideration.
Section 104. Repealer. The following sections of the Montana Code Annotated are repealed:
16-12-205. (Effective October 1, 2021) Contracted services.
16-12-401. (Effective October 1, 2021) Tax on marijuana sales.
16-12-402. (Effective October 1, 2021) Returns -- payment -- recordkeeping -- authority of department.
16-12-403. (Effective October 1, 2021) Deficient assessment -- penalty and interest -- statute of limitations.
16-12-404. (Effective October 1, 2021) Procedure to compute tax in absence of statement -- estimation of
tax -- failure to file -- penalty and interest.
16-12-405. (Effective October 1, 2021) Authority to collect delinquent taxes.
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16-12-406. (Effective October 1, 2021) Refunds -- interest -- limitations.
16-12-407. (Effective October 1, 2021) Information -- confidentiality -- agreements with another state.
16-12-408. (Effective October 1, 2021) Department to make rules.
50-46-301. Short title -- purpose.
50-46-302. Definitions.
50-46-304. Department responsibility to monitor and assess medical marijuana production, testing, and
sales -- license revocation.
50-46-303. Medical marijuana registry -- department responsibilities -- issuance of cards and licenses —
confidentiality.
50-46-305. Canopy tiers -- requirements.
50-46-307. Individuals with debilitating medical conditions -- requirements -- minors -- limitations.
50-46-308. Provider types -- requirements -- limitations -- activities.
50-46-309. Marijuana-infused products provider -- requirements -- allowable activities.
50-46-310. Written certification -- accompanying statements.
50-46-311. Testing laboratories -- licensing inspections.
50-46-312. License as privilege -- criteria.
50-46-317. Registry card or license to be exhibited on demand -- photo identification required.
50-46-318. Health care facility procedures for patients with marijuana for use.
50-46-319. Legal protections -- allowable amounts.
50-46-320. Limitations of act.
50-46-326. Testing of marijuana and marijuana-infused products.
50-46-327. Prohibitions on physician affiliation with providers and marijuana-infused products providers --
sanctions.
50-46-328. Local government authority to regulate.
50-46-329. Inspections -- procedures -- prohibition on inspector affiliation with licensees.
50-46-330. Unlawful conduct by cardholders or licensees -- penalties.
50-46-331. Fraudulent representation -- penalties.
50-46-332. Confidentiality of registry information -- penalty.
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50-46-339. Law enforcement authority.
50-46-340. Forfeiture.
50-46-341. Advertising prohibited.
50-46-342. Hotline.
50-46-343. Legislative monitoring.
50-46-344. Rulemaking authority -- fees.
50-46-345. Medical marijuana state special revenue account -- operating reserve -- transfer of excess
funds.
50-46-346. Pain management education and treatment special revenue account.
50-46-347. Provider licensing fees.
Section 105. Transfer of funds. On July 1, 2021, the department of public health and human
services is authorized to transfer the fund balances in 50-46-345 and 50-46-346 to the marijuana state special
revenue account provided for under 16-12-111.
Section 106. Repealer. Sections 37 and 52, Initiative Measure No. 190, approved November 3,
2020, are repealed.
Section 107. Section 56, Initiative Measure No. 190, approved November 3, 2020, is amended to read:
"Section 56. Effective dates. (1) [Sections 8, 16, 23, 36, and 40 through 49] are effective January 1,
2021.
(2) Except as provided in subsection subsections (1) and (3), [this act] is effective on October 1, 2021
January 1, 2022.
(3) [Sections 18 and 35] are effective July 1, 2021."
Section 108. Appropriation. (1) There is appropriated from the marijuana state special revenue
account provided for in 16-12-111 to the department of revenue:
(a) $6,930,492 for fiscal year 2022, which comprises 34 total FTE. 22 of the 34 FTE represent
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positions transferred from the department of public health and human services to the department of revenue.
(b) $4,136,011 for fiscal year 2023 and which comprises 34 total FTE. 22 of the 34 FTE represent
positions transferred from the department of public health and human services to the department of revenue.
(c) The appropriations described in subsections (1)(a) and (1)(b) must be used by the department of
revenue for the operating costs it incurs when administering the provisions of [this act].
(d) The appropriation provided for in this subsection (1) must be considered a part of the base budget
for the 2025 biennium.
(2) (a) (I) The following amounts are appropriated for each year of the 2023 biennium to the
department of public health and human services for eligible services and programs in accordance with the
HEART fund that is set forth in 17-6-606 [section 100]:
(A) $6 million in state special revenue funds; and
(B) $19 million in federal special revenue funds.
(II) It is the intent of the legislature that these appropriation amounts be included as part of the base
budget for the department of public health and human services for the biennium beginning July 1, 2023.
(b) For the 2023 biennium, $300,000 is appropriated to the department of justice for the purposes
described in 16-12-111.
(c) (i) For each year of the 2023 biennium, $150,000 is appropriated to the board of crime control for
the purposes described in 44-7-110.
(ii) It is the intent of the legislature that this appropriation amount be included as part of the base budget
for the board of crime control for the biennium beginning July 1, 2023.
(3) (a) The following amounts are appropriated for fiscal year 2022:
(i) the amount distributed pursuant to 16-12-111(4)(b)(ii) but not to exceed $650,000 to the
department of fish, wildlife and parks from the state park account established in 23-1-105(1);
(ii) the amount distributed pursuant to 16-12-111(4)(b)(iii) but not to exceed $650,000 to the
department of fish, wildlife, and parks from the trails and recreational facilities account established in 23-2-108;
(iii) the amount distributed pursuant to 16-12-111(4)(b)(iv) but not to exceed $650,000 to the
department of fish, wildlife, and parks from the nongame wildlife account established in 87-5-121; and
(iv) $200,000 to the veterans' affairs division of the department of military affairs from the account
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provided for in [section 93].
(b) The following amounts are appropriated for the fiscal year 2023:
(i) $5,412,000 from the marijuana state special revenue account provided for in 16-12-111 to the
department of fish, wildlife, and parks to be used solely as funding for permanent easements and maintenance;
(ii) $1,082,000 to the department of fish, wildlife, and parks from the state park account established in
23-1-105(1);
(iii) $1,082,000 to the department of fish, wildlife, and parks from the trails and recreational facilities
account established in 23-2-108;
(iv) $1,082,000 to the department of fish, wildlife, and parks from the nongame wildlife account
established in 87-5-121; and
(v) $200,000 to the veterans' affairs division of the department of military affairs from the account
provided for in [section 93].
Section 109. Required warning labels. A person may not manufacture package, sell, or transfer
any marijuana or marijuana product unless the package containing the marijuana or marijuana product bears
the following statements in a form required by the department:
(1) "WARNING: Consumption of marijuana may cause anxiety, agitation, paranoia, psychosis, and
cannabinoid hyperemesis."
(2) "WARNING: Consumption of marijuana by pregnant women may result in fetal injury and low birth
weight."
(3) "WARNING: Consumption of marijuana by nursing mothers may result in infant hyperactivity and
poor cognitive function."
Section 110. Notification to tribal governments. The secretary of state shall send a copy of [this
act] to each federally recognized tribal government in Montana.
Section 111. Direction to department of revenue, department of public health and human
services, and local governments -- notification to legislature -- transition. (1) The legislature directs the
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department of revenue to adopt rules to implement the Marijuana Regulation and Taxation Act.
(2) The legislature directs the department of public health and human services to assist the
department of revenue with the transfer of FTE, information, materials, and any other marijuana-related asset
that the department of revenue considers necessary to implement the regulation and taxation of marijuana in
the state and exercise authority over the regulation of all types of marijuana licenses and the medical marijuana
registry in the state.
(3) On or after July 1, 2021, the department of public health and human services is authorized to
transfer the fund balances in 50-46-345 and 50-46-346 to the marijuana state special revenue account provided
for under 16-12-111.
(4) In fiscal years 2021 and 2022, the department of revenue is not required to seek competitive
solicitations or requests for proposals when procuring the products and services associated with the taxation
and regulation of marijuana in the state. The department of administration shall allow the department to award a
contract to a vendor relating to the development and implementation of an integrated marijuana licensing and
taxation system pursuant to the sole source procurement process provided for under 18-4-306.
(5) (a) On July 1, 2021, the department of health and human services shall transfer to the
department of revenue the existing license and applicable endorsements for any provider or marijuana-infused
products provider that was licensed or had applied for a license with the department of public health and human
services on November 3, 2020, and is in good standing with the department of public health and human
services as of the date of the transfer.
(b) Existing licenses transferred pursuant to subsection (5)(a) shall be accepted and administered by
the department of revenue in accordance with 16-12-201(2) and rules adopted by the department of revenue
for the time periods set forth in 16-12-201(2).
(c) The intent of the legislature with this subsection (5) and the provisions of 16-12-201(2) is that a
provider or marijuana-infused products provider that was licensed or had applied for a license with the
department of public health and human services on November 3, 2020, will be able to continue providing
marijuana and marijuana products to registered cardholders without disruption while also obtaining the
appropriate licensure under this Act in an expedient manner.
(6) Local governments are encouraged to begin the process to approve any or all marijuana business
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categories in accordance with [16-12-301], if required, implement the local-option excise tax in accordance with
[sections 94 through 98], or both beginning on July 1, 2021, in anticipation of the department of revenue
beginning to accept applications for licensure on January 1, 2022.
Section 112. Codification instruction. (1) [Sections 1, 2, and 101 through 103] are intended to be
codified as an integral part of Title 16, chapter 12, part 1, and the provisions of Title 16, chapter 12, part 1,
apply to [sections 1, 2, and 101 through 103].
(2) [Sections 3 through 7 and 109] are intended to be codified as an integral part of Title 16, chapter
12, part 2, and the provisions of Title 16, chapter 12, part 2, apply to [sections 3 through 7 and 109].
(3) [Section 8] is intended to be codified as an integral part of Title 61, chapter 8, part 4, and the
provisions of Title 61, chapter 8, part 4, apply to [section 8].
(4) [Sections 9 through 23 and 100] are intended to be codified as a new part in Title 16, chapter 12,
and the provisions of Title 16, chapter 12, apply to [sections 9 through 23 and 100].
(5) [Section 93] is intended to be codified as an integral part of Title 10, chapter 2, and the provisions
of Title 10, chapter 2, apply to [section 93].
(6) [Sections 94 through 98] are intended to be codified as an integral part of Title 16, chapter 12, part
3, and the provisions of Title 16, chapter 12, part apply to [sections 94 through 98].
Section 113. Severability. If a part of [this act] is invalid, all valid parts that are severable from the
invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in
effect in all valid applications that are severable from the invalid applications.
Section 114. Coordination instruction. If both Senate Bill No. 156 and [this act] are passed and
approved, then [section 3 of Senate Bill No. 156], amending 16-12-104, is void.
Section 115. Contingent voidness. If the Montana supreme court determines that Initiative Measure
No. 190, approved November 3, 2020, other than the portions relating to revenue distribution, is in violation of
the Montana constitution and the constitutional infirmity invalidates the entire initiative, then both Initiative
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Measure No. 190 and [this act] are void.
Section 116. Effective dates. (1) Except as provided in subsections (2) and (3), [this act] is effective
January 1, 2022.
(2) [Sections 41(1)(a), (1)(b), (1)(c), and (10) through (12); 79(2) and (8)(b); 80, 81, 107, 111, 114, and
this section] are effective on passage and approval.
(3) [Sections 46, 59, 78, 79(11), 82 through 84, 101 through 103, 105, 106, and 108] are effective July
1, 2021.
Section 117. Termination. (1) [Section 38(15)(b)(ii)] terminates October 1, 2023. After October 1,
2023, a hoop house is not an indoor cultivation facility.
(2) [Section 46(4)(b)(vi)] terminates June 30, 2025.
- END -
359
I hereby certify that the within bill,
HB 701, originated in the House.
___________________________________________
Chief Clerk of the House
___________________________________________
Speaker of the House
Signed this _______________________________day
of____________________________________, 2021.
___________________________________________
President of the Senate
Signed this _______________________________day
of____________________________________, 2021.
360
HOUSE BILL NO. 701
INTRODUCED BY M. HOPKINS, R. MARSHALL
AN ACT GENERALLY REVISING LAWS RELATED TO THE REGULATION AND TAXATION OF MARIJUANA;
TRANSFERRING AUTHORITY OVER THE LICENSING, CULTIVATION, AND SALE OF MEDICAL
MARIJUANA TO REGISTERED CARDHOLDERS TO THE DEPARTMENT OF REVENUE ; CREATING
SEPARATE LICENSE CATEGORIES FOR CULTIVATION, MANUFACTURING, DISPENSING, AND
TRANSPORTING MARIJUANA; PROVIDING FOR EIGHT COMBINED-USE MARIJUANA LICENSES;
CREATING A MARIJUANA WORKER PERMIT; PROVIDING FOR A LOCAL-OPTION MARIJUANA EXCISE
TAX; REQUIRING LOCAL GOVERNMENT APPROVAL FOR A MARIJUANA BUSINESS TO OPERATE IN A
LOCAL JURISDICTION; PROVIDING APPROPRIATIONS; PROVIDING RULEMAKING AUTHORITY;
PROVIDING FOR EXPUNGEMENT OF CRIMINAL CONVICTIONS RELATED TO MARIJUANA; PROVIDING
FOR CONTINGENT VOIDNESS; AMENDING SECTIONS 3-5-113, 3-5-115, 5-5-223, 5-5-227, 7-22-2101, 15-
64-101, 15-64-102, 15-64-103, 15-64-104, 15-64-105, 15-64-106, 15-64-111, 15-64-112, 16-12-101, 16-12-102,
16-12-104, 16-12-105, 16-12-106, 16-12-107, 16-12-108, 16-12-109, 16-12-110, 16-12-111, 16-12-112, 16-12-
113, 16-12-201, 16-12-202, 16-12-203, 16-12-204, 16-12-206, 16-12-207, 16-12-208, 16-12-209, 16-12-210, 16-
12-211, 16-12-301, 16-12-302, 18-7-101, 37-1-136, 37-1-316, 37-3-203, 39-2-210, 39-2-313, 39-71-407, 41-5-
216, 45-9-101, 45-9-102, 45-9-103, 45-9-110, 45-9-127, 45-9-203, 45-10-103, 45-10-107, 46-18-202, 50-46-302,
50-46-303, 50-46-307, 50-46-319, 50-46-345, 50-46-346, 50-46-347, 53-6-1201, 53-21-1207, 61-8-402, 61-8-
404, 61-8-405, 61-8-409, 61-8-442, 61-11-101, AND 80-1-104, MCA; AMENDING SECTION 56, INITIATIVE
MEASURE NO. 190, APPROVED NOVEMBER 3, 2020; REPEALING SECTIONS 16-12-205, 16-12-401, 16-12-
402, 16-12-403, 16-12-404, 16-12-405, 16-12-406, 16-12-407, 16-12-408, 50-46-301, 50-46-302, 50-46-303, 50-
46-304, 50-46-305, 50-46-307, 50-46-308, 50-46-309, 50-46-310, 50-46-311, 50-46-312, 50-46-317, 50-46-318,
50-46-319, 50-46-320, 50-46-326, 50-46-327, 50-46-328, 50-46-329, 50-46-330, 50-46-331, 50-46-332, 50-46-
339, 50-46-340, 50-46-341, 50-46-342, 50-46-343, 50-46-344, 50-46-345, 50-46-346, AND 50-46-347, MCA;
REPEALING SECTIONS 37 AND 52, INITIATIVE MEASURE NO. 190, APPROVED NOVEMBER 3, 2020; AND
PROVIDING EFFECTIVE DATES AND TERMINATION DATES.
361
Memorandum
REPORT TO:City Commission
FROM:Chris Saunders, Community Development Manager
Martin Matsen, Community Development Director
SUBJECT:Ordinance 2088 Final Adoption of the Gran Cielo Subdivision Phase 2 Zone
Map Amendment to Change 8.552 Acres From R-4, Residential High Density
District to R-5, Residential Mixed Use High Density District at the Northwest
Corner of the Intersection of S 27th Avenue and Bennett Boulevard,
Application 21095
MEETING DATE:November 9, 2021
AGENDA ITEM TYPE:Ordinance
RECOMMENDATION:Final Adoption of Ordinance 2088 as presented.
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 City Commission considered this application on August 3, 2021. After
conducting the required public hearing the City Commission preliminarily
approved this application subject to contingencies. The contingencies are
met and the implementing ordinance is presented for adoption. The City
Commission is the decision maker for all ordinances.
Staff report and application materials for the initial consideration on August
3rd are available at
https://d2kbkoa27fdvtw.cloudfront.net/bozeman/ee9f04b8ab9282c405815f8a6dda29070.pdf
Minutes of the City Commission meeting are available at
https://weblink.bozeman.net/WebLink/DocView.aspx?
id=255750&dbid=0&repo=BOZEMAN.
The ordinance was provisionally adopted by the City Commission on October
19, 2021.
UNRESOLVED ISSUES:None.
ALTERNATIVES:As determined by the City Commission.
FISCAL EFFECTS:None.
362
Attachments:
Ordinance 2088 Gran Cielo Phase 2 ZMA 21095.pdf
GRAN CIELO ZMA MAP 10-07-21.pdf
Report compiled on: October 8, 2021
363
Ord 2083
Page 1 of 5
ORDINANCE 2088
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA AMENDING THE CITY OF BOZEMAN ZONING MAP ON 8.552 ACRES
FROM R-4, HIGH DENSITY RESIDENTIAL DISTRICT, TO R-5, RESIDENTIAL
MIXED USE HIGH DENSITY DISTRICT, GRAN CIELO SUBDIVISION PHASE 2 ZONE
MAP AMENDMENT, APPLICATION 21095.
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 37 of the Bozeman Unified Development Code sets forth
the procedures and review criteria for zoning map amendments; and
WHEREAS, after proper notice, the Bozeman Zoning Commission held a public hearing
on July 26, 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. 21095 the Gran Cielo Subdivision Phase 2 Zone Map
Amendment, be approved as requested by the applicant; and
WHEREAS, after proper notice, the City Commission held its public hearing on August
3, 2021, to receive and review all written and oral testimony on the request for the zone map
amendment; and
364
Ordinance No. 2088, Gran Cielo Subdivision Phase 2 Zone Map Amendment
Page 2 of 5
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
Legislative Findings
The City Commission hereby makes the following findings in support of adoption of this
Ordinance:
1. The City adopted a growth policy, the Bozeman Community Plan 2020, by Resolution
5133 to establish policies for development of the community including zoning;
2. The Bozeman Community Plan 2020, Chapter 5, sets forth the policies by which the City
reviews and applies the criteria for amendment of zoning established in 76-3-304, MCA;
3. Zoning, including amendments to the zoning map, must be in accordance with an adopted
growth policy;
4. A staff report analyzing the required criteria for a zone map amendment, including
accordance to the Bozeman Community Plan 2020, found that the required criteria are
satisfied;
5. The two required public hearings were advertised as required in state law and municipal
code and all persons have had opportunity to review the materials applicable to the
application and provide comment prior to a decision;
6. The Bozeman Zoning Commission has been established as required in state law and
conducted their required public hearing; and after consideration of application materials,
staff analysis and report, and all submitted public comment recommended approval of the
requested R-5 district.
7. The City Commission conducted a public hearing to provide all interested parties the
opportunity to provide evidence and testimony regarding the proposed amendment prior to
the City Commission acting on the application.
365
Ordinance No. 2088, Gran Cielo Subdivision Phase 2 Zone Map Amendment
Page 3 of 5
8. The City Commission considered the application materials, staff analysis and report,
Zoning Commission recommendation, all submitted public comment, and all other relevant
information.
9. The City Commission determines that, as set forth in the staff report and incorporating the
staff findings as part of their decision, the required criteria for approval of Application No.
21095, the Gran Cielo Subdivision Phase 2 Zone Map Amendment have been satisfied.
Section 2
That the zoning district designation of the following-described property is hereby established as
R-5, Residential Mixed Use High Density District:
The property is described as:
All those portions of Tract 1 and Tract 3 of Certificate of Survey No. 2725, located in the
Northwest One-Quarter of Section 23, Township 2 South, Range 5 East, P.M.M., City of
Bozeman, Gallatin County, Montana, more particularly described as follows;
Beginning at the southwest corner of said Tract 3, a 2" Allen aluminum cap;
thence N 01°22'34" E a distance of 640.81' to a calculated point;
thence S 89°24'55" E a distance of 670.36' to a calculated point;
thence S 01°27'30" W a distance of 62.26' to an Alpine aluminum cap;
thence 99.39' along a curve concave to the west, having a radius of 300.00', a chord
bearing of
S 10°56'57" W and a chord length of 98.93', to an Alpine aluminum cap;
thence 74.00' along a curve concave to the west, having a radius of 300.00', a chord
bearing of
S 27°30'22" W and a chord length of 73.81', to an Alpine aluminum cap;
thence S 34°34'21" W a distance of 101.25' to an Alpine aluminum cap;
thence 173.39' along a curve concave to the east, having a radius of 300.00', a chord
bearing of
S 18°00'55" W and a chord length of 170.98', to an Alpine aluminum cap;
thence S 01°27'30" W a distance of 169.67' to an Alpine aluminum cap;
thence N 89°15'48" W a distance of 516.65' to the point of beginning;
containing 8.552 acres, more or less.
All as depicted on the Gran Cielo Subdivision Phase 2 Zone Map Amendment map, Exhibit
A to this ordinance.
366
Ordinance No. 2088, Gran Cielo Subdivision Phase 2 Zone Map Amendment
Page 4 of 5
Section 3
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 4
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 5
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 6
Codification.
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 7
Effective Date.
This ordinance shall be in full force and effect thirty (30) days after final adoption.
367
Ordinance No. 2088, Gran Cielo Subdivision Phase 2 Zone Map Amendment
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 19th 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
368
369
Memorandum
REPORT TO:City Commission
FROM:Jennifer A. Giuttari, Assistant City Attorney
Greg Sullivan, City Attorney
SUBJECT:Ordinance 2092 Final Adoption Amending Bozeman Municipal Code Section
2.03.540 governing Gifts, Gratuities, and Favors
MEETING DATE:November 9, 2021
AGENDA ITEM TYPE:Ordinance
RECOMMENDATION:I move to finally adopt Ordinance 2092.
STRATEGIC PLAN:7.1 Values-Driven Culture: Promote a values-driven organizational culture
that reinforces ethical behavior, exercises transparency and maintains the
community’s trust.
BACKGROUND:On October 26, 2021, the City Commission provisionally adopted Ordinance
2092. As part of its provisional adoption, the Commission approved having
City Staff review the Ordinance and amend the language, if appropriate in
Section 2.03.540(A) BMC.
UNRESOLVED ISSUES:City staff reviewed Ordinance 2092 and per the Deputy Mayor's
recommendation during the October 26, 2021 Commission Meeting, made
the following changes to subsection(A) of the Ordinance's proposed
language:
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, 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 and public officers 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
370
public trust.
During this review, City staff noticed three other minor, grammatical typos
and made the necessary changes. No other changes were made.
ALTERNATIVES:None.
FISCAL EFFECTS:None.
Attachments:
211027 Gifts-Ethics Ordinance_final.pdf
Report compiled on: October 27, 2021
371
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,
372
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
373
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 a 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 a 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 a
private 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.
374
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.
375
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
376
Memorandum
REPORT TO:City Commission
FROM:Tom Rogers, Senior Planner
Marty Matsen, Community Development Director
SUBJECT:Ordinance 2094 Final 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:November 9, 2021
AGENDA ITEM TYPE:Ordinance
RECOMMENDATION:Finally 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.
377
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
378
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
379
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
380
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.
381
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.
382
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
383
t
384
Memorandum
REPORT TO:City Commission
FROM:Chris Saunders, Community Development Manager
Martin Matsen, Community Development Director
SUBJECT:Ordinance 2093 Final Adoption of the Gallatin County Rest Home Zone Map
Amendment to Revise the Zoning Map on 9.8 acres at 1221 Durston Road
from R3 Medium Density Residential to R4 High Density Residential,
Application 21330
MEETING DATE:November 9, 2021
AGENDA ITEM TYPE:Ordinance
RECOMMENDATION:Final adoption of Ordinance 2093, Final Adoption of the Gallatin County Rest
Home Zone Map Amendment to Revise the Zoning Map on 9.8 acres at 1221
Durston Road from R3 Medium Density Residential to R4 High Density
Residential.
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 City Commission conducted its public hearing and provisionally adopted
Ordinance 2093 on November 19, 2021. The ordinance was provisionally
adopted on a vote of 4-1. The packet materials for the Nov. 19th hearing is
available at
https://d2kbkoa27fdvtw.cloudfront.net/bozeman/93fd395d841940b1ae1820f99a53ca290.pdf
The video of the meeting is available at
https://bozeman.granicus.com/player/clip/168?view_id=1&redirect=true.
An ordinance must be approved twice by the City Commission before it can
go into effect. The effective date of the ordinance is 30 days after final
approval. The ordinance sets the standards applicable for development on
the site. The ordinance does not authorize any construction.
UNRESOLVED ISSUES:None.
ALTERNATIVES:As identified by the Commission.
FISCAL EFFECTS:No budgeted funds will be affected by this ordinance.
Attachments:
385
Ordinance 2093.pdf
Report compiled on: October 20, 2021
386
Ord 2083
Page 1 of 5
ORDINANCE 2093
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA AMENDING THE CITY OF BOZEMAN ZONING MAP ON 9.8 ACRES
FROM R-3, MEDIUM DENSITY RESIDENTIAL DISTRICT, TO R-4, RESIDENTIAL
HIGH DENSITY DISTRICT, GALLATIN COUNTY REST HOME ZONE MAP
AMENDMENT, APPLICATION 21330.
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 37 of the Bozeman Unified Development Code sets forth
the procedures and review criteria for zoning map amendments; and
WHEREAS, after proper notice, the Bozeman Zoning Commission held a public hearing
on October 11, 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. 21330 the Gallatin County Rest Home Zone Map Amendment,
be approved as requested by the applicant; and
WHEREAS, after proper notice, the City Commission held its public hearing on October
19, 2021, to receive and review all written and oral testimony on the request for the zone map
amendment; and
387
Ordinance No. 2093, Gallatin County Rest Home Zone Map Amendment
Page 2 of 5
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
Legislative Findings
The City Commission hereby makes the following findings in support of adoption of this
Ordinance:
1. The City adopted a growth policy, the Bozeman Community Plan 2020, by Resolution
5133 to establish policies for development of the community including zoning;
2. The Bozeman Community Plan 2020, Chapter 5, sets forth the policies by which the City
reviews and applies the criteria for amendment of zoning established in 76-3-304, MCA;
3. Zoning, including amendments to the zoning map, must be in accordance with an adopted
growth policy;
4. A staff report analyzing the required criteria for a zone map amendment, including
accordance to the Bozeman Community Plan 2020, found that the required criteria are
satisfied;
5. The two required public hearings were advertised as required in state law and municipal
code and all persons have had opportunity to review the materials applicable to the
application and provide comment prior to a decision;
6. The Bozeman Zoning Commission has been established as required in state law and
conducted their required public hearing; and after consideration of application materials,
staff analysis and report, and all submitted public comment recommended approval of the
requested R-4 district.
7. The City Commission conducted a public hearing to provide all interested parties the
opportunity to provide evidence and testimony regarding the proposed amendment prior to
the City Commission acting on the application.
388
Ordinance No. 2093, Gallatin County Rest Home Zone Map Amendment
Page 3 of 5
8. The City Commission considered the application materials, staff analysis and report,
Zoning Commission recommendation, all submitted public comment, and all other relevant
information.
9. The City Commission determines that, as set forth in the staff report and incorporating the
staff findings as part of their decision, the required criteria for approval of Application No.
21330 the Gallatin County Rest Home Zone Map Amendment have been satisfied.
Section 2
That the zoning district designation of the following-described property is hereby established as
R-4, Residential High Density District:
The property is described as:
Certificate of Survey 2349, Parcel B and to the centerline of adjacent streets.
Section 3
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 4
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 5
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
389
Ordinance No. 2093, Gallatin County Rest Home Zone Map Amendment
Page 4 of 5
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 6
Codification.
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 7
Effective Date.
This ordinance shall be in full force and effect thirty (30) days after final adoption.
PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman,
Montana, on first reading at a regular session held on the 19th 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.
_________________________________
390
Ordinance No. 2093, Gallatin County Rest Home Zone Map Amendment
Page 5 of 5
CYNTHIA L. ANDRUS
Mayor
ATTEST:
_______________________________
MIKE MAAS
City Clerk
APPROVED AS TO FORM:
_________________________________
GREG SULLIVAN
City Attorney
391
Memorandum
REPORT TO:City Commission
FROM:Kristin Donald, Finance Director
SUBJECT:First Quarter Financial Report
MEETING DATE:November 9, 2021
AGENDA ITEM TYPE:Finance
RECOMMENDATION:None.
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:Special presentation on the FY2022 First Quarter Financial Report.
UNRESOLVED ISSUES:None.
ALTERNATIVES:None.
FISCAL EFFECTS:None.
Attachments:
FY22 QTR 1 Report .pdf
Report compiled on: October 26, 2021
392
FISCAL YEAR 2022
1st Quarter
Financial
Report
Ending 1st Quarter,
9/30/21
Issued: 10/21/21 By: Kristin Donald, Finance Director
Information is unaudited and is as of date pulled
393
1 | Page
City of Bozeman Quarterly Budget Report
Fiscal Year 2022
Ending 1st Quarter, 9/30/2021
Issued: 10.26.2021 By: Kristin Donald, Finance Director
Information is unaudited
All City Funds
After the first quarter, the City is in line to stay on budget for the Fiscal Year 2022. For all City funds, there remains more
than 75% of budget allocations for all categories with $32.8 million expended or 21% of the budget.
Revenue recorded during the first quarter of the fiscal year totaled $42M. This represents 19% of the total revenue
budgeted.
23%23%18%
2%
17%
77%77%82%
98%
83%
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Personnel Operations Capital* Debt
Service
Transfers
City as a Whole - Expenditures
Through 1st Qtr FY21
Budget Allocation Used Remaining
24%
0%2%
101%
30%
2%
32%
2% 2%
76%
100%98%
-1%
70%
98%
68%
98% 98%
-20%
0%
20%
40%
60%
80%
100%
City as a Whole - Revenues
Through 1st QTR FY21
Received Estimated Remaining
50%
7%10%0%
30% 30%31%
0%15%
50%
93%90%100%
70% 70%69%
100%85%
0%10%20%30%40%50%60%70%
80%
90%
100%
City as a Whole - Revenues
Through 1st QTR FY22
Received Estimated Remaining
22%21%20%
1%
25%
78%79%80%
99%
75%
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Personnel Operations Capital* Debt
Service
Transfers
City as a Whole - Expenditures
Through 1st Qtr FY22
Budget Allocation Used Remaining
394
2 | Page
General Fund
The General Fund is used to account for all financial
resources of the City, except for those required to be
accounted for in another fund.
Expenditures
As of the first quarter, spending is in line to stay under
budget. As of the first quarter $8.5 million has been
expended or 22% on the budget.
Revenues
As of the end of the first quarter the General fund has
received $3.3M of the estimated $36.5M or 9% of budgeted
revenues. The largest single source of revenue for the
general fund is tax dollars and first‐half payments of over
50% of budget are typically received from Gallatin County in
December. The second largest source is the State
Entitlement Share, which will also be received in the second
quarter. Many of these sources have a seasonal component
that effects collections at this point in the year. Charges for
services are seeing staffing shortages impacts specifically in
Recreation programs and we will continue to monitor them
closely.
23%38%
4%25%
77%62%
96%75%
0%
20%
40%
60%
80%
100%
120%
Personnel Operations Capital Transfers
General Fund- Expenditures
Through 1st Qtr FY22
Budget Allocation Used Remaining
10%6%14%1%
91%
31%19%
90%94%86%99%
9%
69%81%
0%
20%
40%
60%
80%
100%
120%
Generl Fund- Revenue Through
1st QTR FY22
Received Estimated Remaining
24%20%
47%
21%
76%80%
53%
79%
0%
20%
40%
60%
80%
100%
120%
Personnel Operations Capital Transfers
General Fund- Expenditures
Through 1st Qtr FY21
Budget Allocation Used Remaining
29%
0% 0%
23%16%27%13%
71%
100% 100%
77%84%73%87%
0%
20%
40%
60%
80%
100%
120%
General Fund- Revenue Through
1st QTR FY21
Received Estimated Remaining
395
3 | Page
Other Governmental Funds- Special
Revenue Funds
Special Revenue Funds are used to account for the
proceeds of specific revenue source, usually required to
be restricted by statute or ordinance. While we have
dozens of special revenue funds, of note are the Building
Inspection fund and the Community Development fund.
The Building Inspection Fund is supported entirely by
the revenue from building fees and permits. Revenue and
expenditures are statutorily restricted to amounts that
support the division. The fund has collected as of the first
quarter $696k or 31% of budgeted revenues. Fund
expenditures amounted to $551k through the 1st quarter,
or 19% of the budgeted $2.9M for the fiscal year.
The Community Development Fund is a separate fund
that accounts for revenues and expenditures related to
planning and zoning operations. Total revenues
amounted to $364K through the 1st quarter, or 15% of
budgeted revenues for the year. Community
Development Fund expenditures amounted to $520K
through the 1st quarter, or 16% of the budgeted $3.3M
for the fiscal year.
Impact Fee Fund update
Total revenue from Impact Fees was $6 Million through
the 1st quarter of FY22 or 32% of the budgeted revenues
for Street, Fire, Water and Wastewater Impact Fees
combined. The nature of impact fees make the revenue
collected a difficult number to estimate accurately. The
projects for these funds are prepared as part of the
Capital Improvement Plan.
Electrical
6%
Plumbing
10%
Moving
Permits
0%
Demolition
Permits
0%
Plan Checks
47%
Building
Permits
37%
Penalties
0%
Building Inspection Revenue
0%18%5%26%21%
100%82%95%74%79%
0%20%40%60%
80%100%120%
Comminuty Development
Revenues
% Collected % Remaining
**Budget Actual
% Collected/
Expended
Revenues 2,064,806$ 1,513,227$ 73%
Expenditures 2,206,241$ 248,120$ 11%
**Budget Actual
% Collected/
Expended
Revenues * 10,773,706$ 928,931$ 9%
Expenditures 4,947,102$ 13,442$ 0%
** Budget DOES NOT include 2021 carry forward project budgets
* Includes other funding sources for debt and ARPA funding transfers
Water Impact Fees
Waste Water Impact Fees
**Budget Actual
% Collected/
Expended
Revenues 5,788,830$ 3,426,475$ 59%
Expenditures 3,943,392$ 376,121$ 10%
Budget Actual
% Collected/
Expended
Revenues 531,181$ 186,354$ 35%
Expenditures 25,560$ ‐$ 0%
** Budget DOES NOT include 2021 carry forward project budgets
Street Impact Fees
Fire Impact Fees
396
4 | Page
Enterprise Funds
Enterprise Funds are used to account for operations that
are financed and operated in a manner similar to private
business enterprises. Enterprise Funds account for the
City's water, wastewater, solid waste, Stormwater and
parking services.
Expenditures
All funds are in line to stay on budget with $4.6 million
of the $33 million budget or 14% expended. Many
divisions are under staff so the funds are seeing vacancy
savings along with capital projects will start ramping up
during the third quarter.
Revenues
For this point of the year revenues are in line with
estimates with $12 million received of the $34.1 million
estimated or 35%.
13% 13%
19%6%18%
87% 87%81%94%82%
0%
20%
40%
60%
80%
100%
120%
Enterprise Funds Expenditures
QTR FY22
Budget Allocation Used Remaining
19%23%22%14%20%
81%77%78%86%80%
0%
20%
40%
60%
80%
100%
120%
Enterprise Funds Expenditures
QTR FY21
Budget Allocation Used Remaining
36%36%36%30%26%
64%64%64%70%74%
0%
20%
40%
60%
80%
100%
120%
Enterprise Funds Revenue
Recieved QTR1 FY22
Received Estimated Remaining
34%25%26%25%20%
66%75%74%75%80%
0%
20%
40%
60%
80%
100%
120%
Enterprise Funds Revenue
Recieved QTR1 FY21
Received Estimated Remaining
397
Memorandum
REPORT TO:City Commission
FROM:Bernie Massey, Assistant Treasurer
Laurae Clark, Treasurer
Kristin Donald, Finance Director
SUBJECT:Resolution 5338 Creation of Special Improvement Lighting District 766,
Northwest Crossing Phase 1
MEETING DATE:November 9, 2021
AGENDA ITEM TYPE:Resolution
RECOMMENDATION:Adopt Commission Resolution 5338 Creation of Special Improvement
Lighting District 766, Northwest Crossing Phase 1.
STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable
sources of funding for appropriate City services, and deliver them in a lean
and efficient manner.
BACKGROUND:The Commission did on October 19, 2021 adopt Commission Resolution No.
5337 / Intent to Create Special Improvement Lighting District #766,
Northwest Crossing Phase 1 as per MCA 7-12-4301. The property owner has
been noticed of the public hearing on this date. Creating a lighting district is
a requirement of final plat approval.
UNRESOLVED ISSUES:None
ALTERNATIVES:As suggested by the City Commission
FISCAL EFFECTS:As a result of creating this lighting district, the City will pay the associated
power bills and schedule system maintenance. We will recover these costs
by billing property owners each year on their City Assessment bill. It is
estimated to cost $59.14 per acre within the district or $948.48 annually for
the entire district, or on an average size lot of 53,746 square feet the annual
estimated cost would be $72.99, which is payable semiannually.
Attachments:
Resolution 5338-Creation of SILD 766.docx
Report compiled on: September 23, 2021
398
Version April 2020
RESOLUTION 5338
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA, RELATING TO LIGHTING DISTRICT NO. 766 (NORTHWEST
CROSSING PHASE 1) CREATING THE DISTRICT FOR THE PURPOSE OF
MAINTAINING LIGHTING IMPROVEMENTS AND ASSESSING THE COSTS OF
MAINTENANCE AND ENERGY THEREFOR TO BENEFITTED PROPERTY BY THE
LEVY OF SPECIAL ASSESSMENT.
NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman,
Montana, to wit:
Section 1
Passage of Resolution of Intention. This Commission, on October 19, 2021, adopted Resolution
No. 5337 (the “Resolution of Intention”), pursuant to which this Commission declared its intention
to create a special lighting district, designated as Special Lighting District No. 766
(NORTHWEST CROSSING PHASE 1) of the City (the “District”), under Montana Code
Annotated, Title 7, Chapter 12, Part 43, as amended (the “Act”), for the purpose of financing costs
of certain local improvements described generally therein (the “Improvements”) and paying costs
incidental thereto, including costs associated with the creation and administration of the District.
Section 2
Notice and Public Hearing. Notice of passage of the Resolution of Intention was duly published,
posted and mailed in all respects in accordance with law, and on November 9, 2021, this
Commission conducted a public hearing on the creation of the District and the making of the
399
Version April 2020
Improvements. The meeting of this Commission at which this resolution was adopted is the first
regular meeting of the Commission following the expiration of the period ended 15 days after the
first date of publication of the notice of passage of the Resolution of Intention (the “Protest
Period”).
Section 3
Protests. Within the Protest Period, no protests were filed with the City Clerk.
Section 4
Creation of the District; Insufficiency of Protests. The District is hereby created on the terms and
conditions set forth in and otherwise in accordance with, the Resolution of Intention. The findings
and determinations made in the Resolution of Intention are hereby ratified and confirmed.
Section 5
Preparation and Levying of Assessments. It shall be the duty of the City Clerk to prepare all
necessary schedules and resolutions for the levying of assessments in the District necessary to
finance the Improvements and present such resolution to this Commission for adoption in
conformance with Section 7-12-4328, M.C.A., on or before the first Monday in October.
The City Clerk is authorized to provide notice of the resolution of assessment and
schedule a public hearing therefore in conformance with Sections 7-12-4329 and 7-12-4330,
M.C.A., and upon final passage of such resolution deliver it to the City Treasurer.
Section 6
Lighting District Fund Established. There is hereby created a fund to be known as the Special
Lighting District No. 766 Fund (the “Fund”). All money derived from the collection of the
assessments as provided in Section 5 herein and the Act shall be deposited in the Fund and used
to pay costs of the Improvements.
400
Version April 2020
PASSED, ADOPTED, AND APPROVED by the City Commission of the City of
Bozeman, Montana, at a regular session thereof held on the 9th day of November, 2021.
___________________________________
CYNTHIA L. ANDRUS
Mayor
ATTEST:
___________________________________
MIKE MAAS
City Clerk
APPROVED AS TO FORM:
___________________________________
GREG SULLIVAN
City Attorney
401
Version April 2020
CERTIFICATE AS TO RESOLUTION AND ADOPTING VOTE
I, the undersigned, being the duly qualified and acting recording officer of the City of
Bozeman, Montana (the “City”), hereby certify that the attached resolution is a true copy of
Resolution No. 5338 entitled: A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF BOZEMAN, MONTANA, RELATING TO LIGHTING DISTRICT 766
(NORTHWEST CROSSING PHASE 1); CREATING THE DISTRICT FOR THE
PURPOSE OF MAINTAINING LIGHTING IMPROVEMENTS AND ASSESSING THE
COSTS FOR MAINTENANCE AND ENERGY THEREFOR TO BENEFITTED
PROPERTY BY THE LEVY OF SPECIAL ASSESSMENT,(the “Resolution”), on file in the
original records of the City in my legal custody; that the Resolution was duly adopted by the City
Commission of the City at a meeting on November 9, 2021 and that the meeting was duly held by
the City Commission and was attended throughout by a quorum, pursuant to call and notice of
such meeting given as required by law; and that the Resolution has not as of the date hereof been
amended or repealed.
I further certify that, upon vote being taken on the Resolution at said meeting, the
following Commissioners voted in favor thereof:______________________________________
_______________________________ ; voted against the same: _________________________;
abstained from voting thereon: ________________ ; or were absent:__________________.
WITNESS my hand officially this 10th day of November, 2021.
__________________________________
_
MIKE MAAS
City Clerk
402
Memorandum
REPORT TO:City Commission
FROM:Bernie Massey, Assistant Treasurer
Laurae Clark, Treasurer
Kristin Donald, Finance Director
SUBJECT:Resolution 5340 Creation of Special Improvement Lighting District 768 for
Allison Subdivision Phase 4A
MEETING DATE:November 9, 2021
AGENDA ITEM TYPE:Resolution
RECOMMENDATION:Approve Commission Resolution No. 5340/Creation of Special Improvement
Lighting District #768 for Allison Subdivision Phase 4A.
STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable
sources of funding for appropriate City services, and deliver them in a lean
and efficient manner.
BACKGROUND:The Commission did on October 19, 2021 approve Commission Resolution
No. 5339/Intent to Create Special Improvement Lighting District #768 for
Allison Subdivision Phase 4A as per MCA 7-12-4301. The property owners
have been noticed of the public hearing on this date. Creating a lighting
district is a requirement of final plat approval.
UNRESOLVED ISSUES:None
ALTERNATIVES:As suggested by the City Commission
FISCAL EFFECTS:As a result of creating this lighting district, the City will pay the associated
power bills and schedule system maintenance. We will recover these costs
by billing property owners each year on their City Assessment bill. It is
estimated to cost $27.72 per acre within the district or $366.96 annually for
the entire district
Attachments:
Resolution 5340-Creation of SILD 768 Allison Subdivison Ph
4A.docx
Report compiled on: September 20, 2021
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RESOLUTION 5340
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA, RELATING TO LIGHTING DISTRICT NO. 768 (ALLISON SUBDIVISION
PHASE 4A) CREATING THE DISTRICT FOR THE PURPOSE OF MAINTAINING
LIGHTING IMPROVEMENTS AND ASSESSING THE COSTS OF MAINTENANCE
AND ENERGY THEREFOR TO BENEFITTED PROPERTY BY THE LEVY OF
SPECIAL ASSESSMENT.
NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of
Bozeman, Montana, to wit:
Section 1
Passage of Resolution of Intention. This Commission, on October 19, 2021, adopted Resolution
No. 5339 (the “Resolution of Intention”), pursuant to which this Commission declared its intention
to create a special lighting district, designated as Special Lighting District No. 768 (Allison
Subdivision Phase 4A) of the City (the “District”), under Montana Code Annotated, Title 7,
Chapter 12, Part 43, as amended (the “Act”), for the purpose of financing costs of certain local
improvements described generally therein (the “Improvements”) and paying costs incidental
thereto, including costs associated with the Creation and administration of the District.
Section 2
Notice and Public Hearing. Notice of passage of the Resolution of Intention was duly published,
posted and mailed in all respects in accordance with law, and on November 9, 2021, this
Commission conducted a public hearing on the Creation of the District and the making of the
Improvements. The meeting of this Commission at which this resolution was adopted is the first
regular meeting of the Commission following the expiration of the period ended 15 days after the
404
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first date of publication of the notice of passage of the Resolution of Intention (the “Protest
Period”).
Section 3
Protests. Within the Protest Period, no protests were filed with the City Clerk.
Section 4
Creation of the District; Insufficiency of Protests. The District is hereby created on the terms and
conditions set forth in and otherwise in accordance with, the Resolution of Creation. The findings
and determinations made in the Resolution of Intention are hereby ratified and confirmed.
Section 5
Preparation and Levying of Assessments. It shall be the duty of the City Clerk to prepare all
necessary schedules and resolutions for the levying of assessments in the District necessary to
finance the Improvements and present such resolution to this Commission for adoption in
conformance with Section 7-12-4328, M.C.A., on or before the first Monday in October.
The City Clerk is authorized to provide notice of the resolution of assessment and
schedule a public hearing therefore in conformance with Sections 7-12-4329 and 7-12-4330,
M.C.A., and upon final passage of such resolution deliver it to the City Treasurer.
Section 6
Lighting District Fund Established. There is hereby created a fund to be known as the Special
Lighting District No. 768 Fund (the “Fund”). All money derived from the collection of the
assessments as provided in Section 5 herein and the Act shall be deposited in the Fund and used
to pay costs of the Improvements.
PASSED, ADOPTED, AND APPROVED by the City Commission of the City of
Bozeman, Montana, at a regular session thereof held on the 9th day of November, 2021.
___________________________________
CYNTHIA L. ANDRUS
Mayor
405
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ATTEST:
___________________________________
MIKE MAAS
City Clerk
APPROVED AS TO FORM:
___________________________________
GREG SULLIVAN
City Attorney
406
Memorandum
REPORT TO:City Commission
FROM:Bernie Massey, Assistant Treasurer
Laurae Clark, Treasurer
Kristin Donald, Finance Director
SUBJECT:Resolution 5342 Creation of Special Improvement Lighting District 767,
Bozeman Gateway Subdivision PUD Phase 4 (West Garfield St.)
MEETING DATE:November 9, 2021
AGENDA ITEM TYPE:Resolution
RECOMMENDATION:Adopt Commission Resolution 5342 Creation of Special Improvement
Lighting District 767, Bozeman Gateway Subdivision PUD Phase 4 (West
Garfield St.).
STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable
sources of funding for appropriate City services, and deliver them in a lean
and efficient manner.
BACKGROUND:The Commission did on October 19, 2021 adopt Commission Resolution No.
5341 / Intent to Create Special Improvement Lighting District #767, Bozeman
Gateway Subdivision PUD Phase 4 (West Garfield St.) as per MCA 7-12-4301.
The property owner has been noticed of the public hearing on this date.
Creating a lighting district is a requirement of final plat approval.
UNRESOLVED ISSUES:None
ALTERNATIVES:As suggested by the City Commission
FISCAL EFFECTS:As a result of creating this lighting district, the City will pay the associated
power bills and schedule system maintenance. We will recover these costs
by billing property owners each year on their City Assessment bill. It is
estimated to cost $7.63 per acre within the district or $360.00 annually for
the entire district, or on an average size lot of 73,355 square feet the annual
estimated cost would be $12.91, which is payable semiannually.
Attachments:
Resolution 5342-Creation of SILD 767 .doc
Report compiled on: October 6, 2021
407
Page 1 of 4
RESOLUTION 5342
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA, RELATING TO LIGHTING DISTRICT NO. 767 BOZEMAN GATEWAY
SUBDIVISION PUD PHASE 4 (WEST GARFIELD ST.)CREATING THE DISTRICT FOR
THE PURPOSE OF MAINTAINING LIGHTING IMPROVEMENTS AND ASSESSING
THE COSTS OF MAINTENANCE AND ENERGY THEREFOR TO BENEFITTED
PROPERTY BY THE LEVY OF SPECIAL ASSESSMENT.
BE IT RESOLVED by the City Commission (the “Commission”) of the City of
Bozeman, Montana (the “City”), as follows:
Section 1
Passage of Resolution of Intention. This Commission, on October 19, 2021, adopted Resolution No.
5341 (the “Resolution of Intention”), pursuant to which this Commission declared its intention to
create a special lighting district, designated as Special Lighting District No. 767 (BOZEMAN
GATEWAY SUBDIVISION PUD PHASE 4 (WEST GARFIELD ST.)of the City (the
“District”), under Montana Code Annotated, Title 7,Chapter12,Part 43, as amended (the “Act”), for
the purpose of financing costs of certain local improvements described generally therein (the
“Improvements”) and paying costs incidental thereto, including costs associated with the creation
and administration of the District.
Section 2
Notice and Public Hearing. Notice of passage of the Resolution of Intention was duly published,
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Resolution 5342, Creation of SILD 767 – Bozeman Gateway Subdivision PUD Phase 4 (West Garfield St.)
Page 2 of 4
posted and mailed in all respects in accordance with law, and on November 9, 2021, this
Commission conducted a public hearing on the creation of the District and the making of the
Improvements. The meeting of this Commission at which this resolution was adopted is the first
regular meeting of the Commission following the expiration of the period ended 15 days after the
first date of publication of the notice of passage of the Resolution of Intention (the “Protest Period”).
Section 3
Protests. Within the Protest Period, no protests were filed with the City Clerk.
Section 4
Creation of the District; Insufficiency of Protests. The District is hereby created on the terms and
conditions set forth in and otherwise in accordance with, the Resolution of Intention. The findings
and determinations made in the Resolution of Intention are hereby ratified and confirmed.
Section 5
Preparation and Levying of Assessments. It shall be the duty of the City Clerk to prepare all
necessary schedules and resolutions for the levying of assessments in the District necessary to
finance the Improvements and present such resolution to this Commission for adoption in
conformance with Section 7-12-4328, M.C.A., on or before the first Monday in October.
The City Clerk is authorized to provide notice of the resolution of assessment and schedule
a public hearing therefore in conformance with Sections 7-12-4329 and 7-12-4330, M.C.A., and
upon final passage of such resolution deliver it to the City Treasurer.
Section 6
Lighting District Fund Established. There is hereby created a fund to be known as the Special
Lighting District No. 767 Fund (the “Fund”). All money derived from the collection of the
409
Resolution 5342, Creation of SILD 767 – Bozeman Gateway Subdivision PUD Phase 4 (West Garfield St.)
Page 3 of 4
assessments as provided in Section 5 herein and the Act shall be deposited in the Fund and used to
pay costs of the Improvements.
PASSED, ADOPTED, AND APPROVED by the City Commission of the City of
Bozeman, Montana, at a regular session thereof held on the 9
th day of November, 2021.
___________________________________
CYNTHIA ANDRA
Mayor
ATTEST:
________________________________________
MIKE MAAS
City Clerk
APPROVED AS TO FORM:
___________________________________
GREG SULLIVAN
City Attorney
410
Resolution 5342, Creation of SILD 767 – Bozeman Gateway Subdivision PUD Phase 4 (West Garfield St.)
Page 4 of 4
CERTIFICATE AS TO RESOLUTION AND ADOPTING VOTE
I, the undersigned, being the duly qualified and acting recording officer of the City of
Bozeman, Montana (the “City”), hereby certify that the attached resolution is a true copy of
Resolution No. 5342 entitled: A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF BOZEMAN, MONTANA, RELATING TO LIGHTING DISTRICT 767 (BOZEMAN
GATEWAY SUBDIVISION PUD PHASE 4 (WEST GARFIELD ST.); CREATING THE
DISTRICT FOR THE PURPOSE OF MAINTAINING LIGHTING IMPROVEMENTS AND
ASSESSING THE COSTS FOR MAINTENANCE AND ENERGY THEREFOR TO
BENEFITTED PROPERTY BYTHE LEVY OF SPECIAL ASSESSMENT,(the “Resolution”),
on file in the original records of the City in my legal custody; that the Resolution was duly adopted
by the City Commission of the City at a meeting on November 9, 2021and thatthe meeting was duly
held by the City Commission and was attended throughout by a quorum, pursuant to call and notice
of such meeting given as required by law; and that the Resolution has not as of the date hereof been
amended or repealed.
I further certify that, upon vote being taken on the Resolution at said meeting, the
following Commissioners voted in favor thereof:______________________________________
_______________________________ ; voted against the same: _________________________;
abstained from voting thereon: ________________ ; or were absent:__________________.
WITNESS my hand officially this 10th day of November, 2021.
___________________________________
MIKE MAAS
City Clerk
411
Memorandum
REPORT TO:City Commission
FROM:Kristin Donald, Finance Director
Kaitlin Johnson, Budget Analyst
SUBJECT:Resolution 5349 Amending the City Annual Budget for the Street Impact Fee
Fund and the Arterial & Collector District Fund FY22 Appropriations and
Amend the Capital Improvement Plan
MEETING DATE:November 9, 2021
AGENDA ITEM TYPE:Finance
RECOMMENDATION:Move to Approve Resolution 5349 Amending the city Annual Budget for
Street Impact Fee Fund and Arterial & Collector District Fund Fy22
Appropriations and Amend the Capital Improvement Plan
STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and
maintenance for existing and new infrastructure.
BACKGROUND:Capital projects SIF086: Baxter & Cottonwood Intersection Improvements for $2.5
million and SIF138: Cottonwood Road, Oak to Baxter for $4 million were initially
scheduled for construction in FY23. A recent reevaluation of the expected costs
concluded that each project will cost an additional $800,000.
The Impact Fee Advisory Committee on October 29, 2021 approved the Capital
Improvement Plan change to FY22.
UNRESOLVED ISSUES:None.
ALTERNATIVES:As suggested by the Commission.
FISCAL EFFECTS:
This amendment will increase FY22 capital expenditures for the Arterial &
Collector District Fund by $2,550,00 and Street Impact Fee Fund by
$5,437,635. These will be funded through cash on hand and cash flow
timing with multi-year projects.
Attachments:
A&C and SIF Budget Amendment.docx
Resolution 5349 Budget Amendment SIF and A&CD.docx
Report compiled on: October 29, 2021
412
Budget Amendment & Capital Improvement Plan Update
Arterial & Collector District and Street Impact Fee Funds
Background
Capital projects SIF086: Baxter & Cottonwood Intersection Improvements for $2.5 million and SIF138: Cottonwood Road,
Oak to Baxter for $4 million were initially scheduled for construction in FY23. A recent reevaluation of the expected costs
concluded that each project will cost an additional $800,000. As the two
projects are to be funded out of the Arterial & Collector District Fund and the
Street Impact Fee Fund, the additional $1.6 million will be split between the
two funds, see table below:
As both projects are ready for construction, this amendment moves both projects to FY22 with updated costs.
Additionally, SIF118: Babcock (15th to 19th) was budgeted for $1.3 million in FY23, funded by both Arterial & Collector
District ($750,000) and Street Impact Fee ($550,000) funds. Recently, the rightof way acquisition for SIF118 was quoted
at $1,187,635. In order to obtain right of way in FY22 as planned,
the Street Impact Fee fund needs an additional allocation of
$637,635. Remaining expenses for SIF118 is scheduled in the CIP
for FY26.
For all three projects, the total budget amendment amounts to $2,550,000 in the Arterial & Collector District fund and
$5,437,635 in the Street Impact Fee fund, see table below:
Budget Information:
This amendment will increase FY22 capital expenditures for the Arterial & Collector District Fund from $2,735,000 to
$5,285,000 and Street Impact Fee Fund from $3,600,000 to $9,037,653. These changes combined with the capital carry
forwards will result in negative fund balances in both Arterial & Collector and Street Impact Fee funds at FY22 year-end.
However, current capital plans for FY23 will allow both funds to recover and show positive fund balances by year-end of
FY23.
**Changes presented to and approved by IFAC on 10/29/2021.
A&C SIF A&C SIF
SIF086 500,000$ 2,000,000$ 900,000$ 2,400,000$
SIF138 2,000,000$ 2,000,000$ 2,400,000$ 2,400,000$
TOTAL 2,500,000$ 4,000,000$ 3,300,000$ 4,800,000$
PREVIOUS NEW
A&C SIF
SIF086 BAXTER & COTTONWOOD INTERSECTION 900,000$ 2,400,000$
SIF138 COTTONWOOD RD (OAK TO BAXTER)2,400,000$ 2,400,000$
SIF118 BABCOCK (15TH TO 19TH)-$ 1,187,635$
TOTAL 3,300,000$ 5,987,635$
LESS FY22 APPROPRIATION FOR SIF118 (750,000)$ (550,000)$
TOTAL AMENDMENT AMOUNT 2,550,000$ 5,437,635$
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RESOLUTION 5345
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA, AMENDING THE CITY’S ANNUAL BUDGET AND CAPITAL
IMPROVEMENT PLAN TO MAKE CHANGES TO THE CAPITAL APPROPRIATIONS
FOR THE ARTERIAL & COLLECTOR DISTRICT FUND AND STREET IMPACT FEE
FUND. APPROPRIATIONS WILL BE FUNDED BY FUND RESERVES AND CAPITAL
PROJECT DELAYS.
WHEREAS,the City Commission did, on the 22nd day of December, 2020, after due
and proper legal notice, conduct a public hearing and adopt a Capital Improvement Plan for Fiscal
Years 2022-2026; and
WHEREAS,the City Commission did, on the 22nd day of June, 2021, after due and
proper legal notice, conduct a public hearing and adopt a municipal budget for Fiscal Year 2021-
2022 (Fiscal Year 2022); and
WHEREAS,the City Commission did, on the 9th day of November, 2021, after due and
proper legal notice, conduct a public hearing on proposed amendments to the municipal budget.
NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of
Bozeman, Montana, to wit:
Section 1 – Appropriation Additions
The City Commission of the City of Bozeman, Montana, does hereby authorize
additional expenditures in the Arterial & Collector District Fund increasing appropriation by
$2,550,000 and additional expenditures in the Street Impact Fee Fund increasing appropriation by
$5,437,653, for additional costs of capital projects.
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Section 2 – Use of Cash on Hand in the Arterial & Collector District and Street Impact Fee
Funds and Delaying Other Projects
The increased appropriation will be funded with cash on hand in the Arterial &
Collector District and Street Impact Fee Funds and delaying other projects to later fiscal years.
Section 3
Pursuant to Section 7-6-4030, M.C.A., this resolution, upon its passage, shall be in full
force and effect on July 1, 2021.
Section 4
That should it be found by any court of competent jurisdiction that any section, clause,
portion, sentence, word, or phrase of this resolution is deemed to be contrary to any existing law
or regulations, that in this instance, it is the intent of the City Commission of the City of Bozeman,
Montana, that all other portions, sections, words, clauses, phrases, or paragraphs of this document
shall remain in full force and effect.
PASSED, ADOPTED, AND APPROVED by the City Commission of the City of
Bozeman, Montana, at a regular session thereof held on the 9th day of November, 2021.
___________________________________
CYNTHIA L. ANDRUS
Mayor
ATTEST:
___________________________________
MIKE MAAS
City Clerk
APPROVED AS TO FORM:
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___________________________________
GREG SULLIVAN
City Attorney
416
Memorandum
REPORT TO:City Commission
FROM:Kristin Donald, Finance Director
SUBJECT:Resolution 5350 Amending the City Annual Budget for the Building
Inspection Fund FY22 Appropriations.
MEETING DATE:November 9, 2021
AGENDA ITEM TYPE:Finance
RECOMMENDATION:Move to Approve Resolution 5350 Amending the City Annual Budget for the
Building Inspection Fund FY22 Appropriations.
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:As the Building Inspection division has retired fleet vehicles and hired new
inspectors there is a need for new vehicles. This amendment would fund two
new inspection vehicles.
UNRESOLVED ISSUES:None.
ALTERNATIVES:As suggested by the Commission.
FISCAL EFFECTS:
This amendment will increase FY22 expenditures by $72,000. The Fund has
cash on hand to support these expenditures.
Attachments:
Resolution 5350 Budget Amendment Building Inspection
Fund.docx
Report compiled on: October 29, 2021
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RESOLUTION 5350
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA, AMENDING THE CITY’S ANNUAL BUDGET TO MAKE CHANGES TO
THE APPROPRIATIONS FOR THE BUILDING INSPECTION FUND.
APPROPRIATIONS WILL BE FUNDED BY FUND RESERVES.
WHEREAS,the City Commission did, on the 22nd day of June, 2021, after due and
proper legal notice, conduct a public hearing and adopt a municipal budget for Fiscal Year 2021-
2022 (Fiscal Year 2022); and
WHEREAS,the City Commission did, on the 9th day of November, 2021, after due and
proper legal notice, conduct a public hearing on proposed amendments to the municipal budget.
NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of
Bozeman, Montana, to wit:
Section 1 – Appropriation Additions
The City Commission of the City of Bozeman, Montana, does hereby authorize
additional expenditures in the Building Inspection Fund increasing appropriation by $72,000 for
purchasing two vehicles for Building Inspection staff.
Section 2 – Use of Cash on Hand in the Building Inspection Fund
The increased appropriation will be funded with cash on hand in the Building
Inspection Fund.
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Section 3
Pursuant to Section 7-6-4030, M.C.A., this resolution, upon its passage, shall be in full
force and effect on July 1, 2021.
Section 4
That should it be found by any court of competent jurisdiction that any section, clause,
portion, sentence, word, or phrase of this resolution is deemed to be contrary to any existing law
or regulations, that in this instance, it is the intent of the City Commission of the City of Bozeman,
Montana, that all other portions, sections, words, clauses, phrases, or paragraphs of this document
shall remain in full force and effect.
PASSED, ADOPTED, AND APPROVED by the City Commission of the City of
Bozeman, Montana, at a regular session thereof held on the 9th day of November, 2021.
___________________________________
CYNTHIA L. ANDRUS
Mayor
ATTEST:
___________________________________
MIKE MAAS
City Clerk
APPROVED AS TO FORM:
___________________________________
GREG SULLIVAN
City Attorney
419
Memorandum
REPORT TO:City Commission
FROM:Jeff Mihelich, City Manager
Anna Rosenberry, Assistant City Manager
Greg Sullivan, City Attorney
SUBJECT:Annexation Policy for City Initiated Annexations
MEETING DATE:November 9, 2021
AGENDA ITEM TYPE:Policy Discussion
RECOMMENDATION:Give City Manager direction regarding Annexation Policy for City Initiated
Annexations:
1. Does an annexation policy for city initiated annexations remain a priority
for the Commission?
2. Does the Commission wish to consider adopting a policy for city initiated
annexations of wholly surrounded properties?
3. If so, should the City Manager and staff develop a preliminary
implementation plan for Commission consideration?
STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and
maintenance for existing and new infrastructure.
BACKGROUND:The City's Strategic Plan states: 4.3.e Strategic Infrastructure Choices -
Annexation of Islands and Critical Adjacent Lands. Investigate the
development of new annexation policies to address long term tax fairness
for public services, locations of infrastructure, and locations for future infill
and growth.
In the weeks prior to the COVID pandemic shut-downs, the City Manager's
office was preparing to present the City Commission with the Resolution No.
5156 - Extension of Services Plan for City Initiated Annexations. The
resolution was a policy document that established a framework for the city
to proceed with the annexation of wholly-surrounded parcels (islands). The
document had been developed by staff based upon Commission direction
and public comment that was received during an October 28, 2019
Commission work session on annexation policies. The Resolution and an
accompanying staff memo were published for the March 23, 2020
Commission Meeting.
The topic of city-initiated annexations is of significant public interest and the
City Manager's office had been engaged in public outreach in the community
and with effected property owners. Outreach consisted of:
420
a city project webpage for "Annexation of Unincorporated Areas" to
house information and inform the public about the proposed policy.
mailed invitations to property addresses in the effected areas,
notifying them of an "open house" hosted by the City Manager before
the work session - approximately 100 people attended.
a subscribers list that people could enroll in to receive targeted notices
for public meetings related to proceeding with the policy. This list
received emails specifically informing about the time and date that the
policy would be considered for adoption. The subscribers list
contained 158 active subscribers. Subscribers received the last
detailed notice in February 2020. We most recently used the
subscriber list to advertise the work session tonight.
The meeting agenda and materials were advertised and released on the City
website, but the pandemic caused the City to cancel its March 23, 2020
meeting and delay consideration of the policy. We did notify those
stakeholders on the subscribers list about the November 9, 2021
Commission Work Session.
UNRESOLVED ISSUES:There are numerous unresolved issues regarding if and how to proceed.
ALTERNATIVES:None.
FISCAL EFFECTS:While annexation of parcels has numerous fiscal effects, the work session
tonight has no immediate financial impacts.
Attachments:
Staff Memo 3 23 20 Annexation.pdf
Resolution 5156 Adopting Extension of Services Plan 3 23
20.docx
Extension of Servcies Plan DRAFT 3 13 20.pdf
Report compiled on: October 25, 2021
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Page 1 of 8
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Dennis M. Taylor, City Manager
Anna Rosenberry, Assistant City Manager
Greg Sullivan, City Attorney
SUBJECT: Adoption of Resolution 5156 –Extension of Services Plan and
Report for City-Initiated Annexations
MEETING DATE: March 23, 2020
AGENDA ITEM TYPE: Action
RECOMMENDATION: Approve Resolution 5156.
RECOMMENDED MOTIONS: I move to adopt Resolution 5156.
STRATEGIC PLAN:
Section 4 of the City’s Strategic Plan calls for a Well Planned City stating, “4.3 Strategic
Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new
infrastructure.” To implement this goal, the Strategic Plan (Section 4.3(e)) calls for the City
to “Investigate the development of new annexation policies to address long term tax fairness for
public services, locations of infrastructure, and locations for future infill and growth.” Since
adoption of the Strategic Plan the Commission has included this item as one of its top priorities.
BACKGROUND:
After the City Commission determined this item to be a priority, we, along with many other staff
members, have been working to develop this project in several phases. The first was the adoption
of adjustments to policies regarding landowner-initiated annexations. You did this last October
by adoption of Resolution 5076. The adoption of an Extension of Services Plan (the “ESP”) is a
necessary step to establish general policies that will form the basis for how the City would
potentially annex specific groups of parcels. As such, this ESP is the second step in implanting
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the Strategic Plan initiative. If you adopt this ESP we plan to bring to you the third step later this
Spring: (i) a discussion on our investigation of the infrastructure and facility conditions of the
groups of properties which are wholly surrounded by the City; and (ii) City Manager
recommendations on options regarding which groups to move forward with possible annexation.
Following this third step, should the Commission desire to continue moving forward, the City
Commission must then direct the City Manager to begin formal annexation procedures of
specific groups of properties.
This item does not annex any property nor does it begin formal annexation proceedings for
any property. After adoption of an Extension of Services Plan, the City Commission will later
consider whether to begin annexation of properties that are wholly surrounded by the City.
On October 28, 2019 the Commission adopted by a vote of 3-1 the following motion: “Direct the
City Manager to bring back the Extension of Services Plan for Commission consideration and
possible adoption in early 2020.” This item fulfills that direction.
For background information on this draft we urge the Commission and the public to review the
video from October 28, 2019 Commission meeting. The video can be found at
www.bozeman.net through the Commission Video link. Please scroll through to find the October
28, 2019 video. The portion of the agenda item related to the draft ESP begins at 8:00 PM (2:02
minutes into the meeting). A direct link to that video is here.
Attached to this memorandum are several documents that are important to consider as you
review this memorandum. These include:
• A track changes version of the Extension of Services Plan to enable you to see the
changes from the October 28th version;
• A document that provides information on the reorganization of policies;
• Resolution 5156 adopting the ESP should you choose to do so; and
• A clean (no track changes version) of the Extension of Services Plan should you decide
to adopt the Resolution.
This memorandum will not discuss the general principles behind this item. For information
on that please refer to the October 28, 2019 Commission packet. For additional
information please also refer to the packet material from the Commission’s April 22, 2019
work session.
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Page 3 of 8
ADJUSTMENTS TO THE ESP FROM THE OCTOBER 28, 2019 DRAFT:
You requested numerous adjustments to the ESP during your discussion on October 28th. When a
policy number is referenced below, we refer to the number as positioned in the clean version
available for adoption. These include but are not limited to, the following:
• Reorganization to locate policies related to financing of extensions of services closer to
each other and within close proximity to basic policies on determination of adequate
public services. See the attached reference chart.
• Adjusted the procedural steps in Policy #1 to provide additional flexibility to the
Commission and City Manager in how annexation of a particular group of parcels will
begin.
• Added a statement in the section on Extension of Services related to water rights and
water conservation and a new statement in Policy 33.j requiring an Area Plan to address
water rights.
• Added a new section titled Determination of Adequacy of Facilities and Services (see
discussion below).
• Modified the policy No Annexation Unless Adequate Public Facilities and Services Exist
(Policy #6) to reflect only the statutorily mandated policies. Previously, a Commissioner
inquired as to the completeness of this list. We recommend you limit this policy to only
the statutorily mandated items required to be addressed in an extension of services plan.
• Added a requirement that prior to submitting a resolution of intent to annex the City
Manager must, if infrastructure is to be constructed to ensure services are adequate,
identify the nature and extent of the infrastructure, the costs to property owners and the
City and the method for financing it. See Policy #1.d.
• Removed the Montana Department of Environmental Quality (DEQ) and the City-County
Health from the entities that could determine adequacy. The intent has always been the
final decision on adequacy lies with the City; the new draft brings the Health Department
and the DEQ into the process on a consultation basis. See Policy #3.
• Added an optional policy for your consideration regarding how the City would address
properties with on-site septic systems that are within 200 feet of an existing sanitary
sewer main. See addition to Policy #5.
• Combined former policy #30 (latecomer agreements) with a new section on the West
Babcock Street and Durston Road Annexation Areas (now Policy #9). For more
information, see the discussion below.
• Added a reference in Policy #11 to the general policy of the City regarding private
demand driving the need for the extension of services. This policy directly reflects state
law and existing City policy.
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• Added additional information in the policy related to general laws of the City. See Policy
#18.
• Added clarification to the policy on when payment of impact fees would be required. See
Policy #20.
• Added clarity to the policy that indicates the City will not require additional right-of-way
for City initiated annexation. See Policy #22. The clarity indicates that if additional right-
of-way is necessary to connect a property to City sewer or water services the property
owner may be required to dedicate such right-of-way to the City.
• Added a new policy related to affordable housing. See Policy #34.
DURSTON ROAD AND WEST BABCOCK STREET IMPROVEMENT ANNEXATION
AREAS:
In the mid-2000s the City proposed and completed major improvements to both Durston Road
and West Babcock Street. In doing so, the City financed some of the construction costs using a
special improvement district (SID) for each project. After Gallatin County refused to create an
extended SID that would have included unannexed land benefiting from the improvements, the
City Commission created “improvement annexation areas” for properties the Commission
determined, at the time, benefitted from the improvements. See Resolution 4359 (attached).
Maps of the properties included in each annexation area are attached to Resolution 4359. The
resolution creating these annexation areas require the property to “contribute, as a term of
annexation, to the improvements, repair and/or maintenance of [the annexation areas].” Section 5
of Resolution 4359 instructs the City to “require a financial contribution from all properties
within the West Babcock Street Improvement Annexation Area and the Durston Road
Improvement Annexation Area for all existing residential units…” (emphasis in original). This
section of the Resolution then provides a formula to determine the required financial contribution
for properties within each annexation area.
We are uncertain whether at the time of creation of these improvement annexation areas the City
Commission determined the financial contribution to apply only to landowner-initiated
annexations or also to City-initiated annexations. We note at that time the City was not in the
practice of initiating annexation of wholly surrounded property and that Resolution 4359 does
not directly speak to this issue.
Section 6 of the Resolution 4359 provides a formula to be used “in addition to” the requirement
in Section 5” (discussed above) and “at the time of future subdivision or development of the
annexed property [].”
We recognize an important consideration in implementing this Strategic Plan initiative is to
minimize financial impact to properties proposed for City-initiated annexation. Therefore, we
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recommend the Commission establish a policy that makes it clear for City-initiated annexations
only the financial contribution provided for in Section 5 of Resolution 4359 (the financial
contribution at the time of annexation) not be assessed by the City at the time of annexation. We
also recommend, however, that a financial contribution be required pursuant to Section 6 of
Resolution 4359 if the property develops after annexation but only during the time of the
annexation areas, which are set to expire for West Babcock Street on April 1, 2024 and for
Durston Road on April 1, 2025.
This approach is implemented through Policy #9.
OTHER PAYBACK DISTRICTS:
When the City or a private developer installs public infrastructure that may benefit future
development, the City may create a “payback district” that requires developers who connect to
infrastructure installed by others to reimburse the entity that provided the initial investment. The
City takes this approach to ensure initial investments in public infrastructure are sized pursuant
to its facility plans which ensure the most efficient and economical development of
infrastructure. After an initial investment is made in infrastructure, the City may, after giving
notice to property owners, establish a “district” where in properties within the district may be
required at the time of future development to reimburse either the city or the private developer
for a proportionate share of the original costs.
The City’s public works online viewer (available at www.bozeman.net under “Maps and Data”)
contains a data layer showing the location of all existing payback districts throughout the City.
By clicking on the map and clicking on the Payback District item, residents can find information
related to a specific payback district.
Proposed Policy #9 addresses the applicability of a payback district to properties subject to a
City-initiated annexation. The proposed policy indicates the City will not require property
owners to contribute financially at the time of a City-initiated annexation; however, the City may
require the property owner to do so at the time of future development or connection to the
facilities, which are the subject to the payback agreement. We believe this approach is consistent
with the overall approach to this Strategic Plan initiative and is consistent with our
recommendation on the improvement annexation areas discussed above.
FINANCING EXTENSION OF SERVICES:
City Commissioners asked numerous questions regarding the financial impacts of extending city
water and sewer services pursuant to a City-initiated annexation. It is important to emphasize
that properties that have adequate services and facilities at the time of annexation there will be no
financing needed.
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Later, if service connections are needed, the costs of the connections could be funded with a
combination of: property owner payments, loan/grant programs, Special Improvement Districts,
or a City utility connection fee or annexation fee. We recognize the City does not currently have
a fee program to cover the costs of installation of a local service line or local main within the
City’s utility rates and charges, but these types of charges can be found in other systems around
Montana and country. The City would need to develop the criteria for these fees so that they
complied with state law and the City’s existing rates and charges. We are clearly not
recommending the City finance the costs of all service lines or local mains throughout town;
rather, we would be looking towards a fee that could be used in the special cases where it was
needed, based primarily on immediate environmental concerns.
The Gallatin City-County Health Department (GCCHD) has informed us they have grant funding
to assist property owners in connecting to centralized sewer systems. (See attached letter.) The
GCCHD is working with the Human Resources Development Council (HRDC) on establishing
criteria and administration of the program. This is a potential source of financial assistance for
property owners needing to connect to the City’s wastewater or water distribution systems.
If systems are not adequate and the City wishes to pursue annexation, the infrastructure needs to
be planned in a Capital Improvement Plan and presented to the property owners for approval.
Upon completion of a Capital Improvement Plan (including estimated costs), the City should
also present financing options and tools. The financing tools will likely consist of a combination
of the same possible sources: property owner payments, loan/grant programs, Special
Improvement Districts, or a City utility connection fee or annexation fee. Please reference
proposed Policy 1.d.
The HRDC has indicated a willingness to assist property owners in planning for the costs of
utility connections. They have offered to play a role by attending outreach meetings described in
Policy #1. HRDC’s Home Ownership Center and/or Financial Opportunity Center may be able
to provide assistance to affected property owners.
DETERMINATION OF ADEQUACY OF FACILITIES AND SERVICES
During the Commission discussion on October 28, 2019, the Commission asked questions
regarding how the City would determine, in an Area Plan, whether facilities and services existing
for an area were adequate at the time of annexation. The purpose of a determination of adequacy
is to ensure that residents or businesses of an area proposed for annexation will, upon
annexation, have available to them adequate services to continue to operate their property as they
had prior to annexation. Several policies have been proposed to address this issue.
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Based on Commission’s questions and comments (and those from the public) we propose a new
section in the Extension of Services Plan to provide basic principles for how the City will make a
determination of adequacy at the time the Commission directs the City Manager commence
annexation procedures and to draft an Area Plan. As previously noted, the Area Plan will be the
document that details adequacy of all required services). We want to emphasize the general
principles included in the Extension of Services Plan are intended to be guiding principles and
not direct metrics. We suggest this approach as the circumstances on the ground in each of the
parcel groups vary widely and adopting specific metrics at this time may prevent flexibility in
the City’s approach.
For example, based on communication from the community and from Commissioners, we know
many properties that are wholly surrounded by the City have individual septic tanks as their
primary source of wastewater treatment. We recognize the community desires to find solutions
that are economically feasible to reducing the number of on-site wastewater facilities especially
as those facilities age. (See letter from Matt Kelley of the City-County Health Department,
attached). As such, we propose several guiding principles related to how the City would
determine, for each area, whether onsite wastewater treatment systems are adequate.
Due to the variety of circumstances with wholly surrounded properties we recommend, as a base
policy, the City will assume onsite wastewater treatment systems to be adequate absent direct
evidence such a system is failing. The City may also consider factors such as the age of the
septic system.
The Commission also inquired as to the applicability of State regulations regarding mandatory
connection to public sewer systems if a property is within 200 feet of a sewer main. See
17.36.914(6), Admin. R. Mont. We drafted an optional policy for your consideration. As such,
we recommend you consider whether to include a policy on adequacy based upon state law that
requires a property to connect to the City’s wastewater treatment system if the property is within
200 feet of a City wastewater main. Please also refer to Policy #5. The Commission may also
consider addressing this circumstance through development of an Area Plan.
NEXT STEPS: As noted, the adoption of the Extension of Services Plan is the second of many
steps in implementing the Commission’s Strategic Plan initiative. If the Commission adopts
Resolution 5156, the next step will be for us to return to the Commission in late April with the
work we have been doing analyzing the infrastructure and facilities in the various groups of
parcels which are wholly surrounded by the City. At that time, the City Manager will also
recommend which group(s) of parcels should be the priorities for annexation. After that, we will
return to this Commission with a draft Area Plan for those groups seeking the Commission’s
direction to commence formal annexation proceedings.
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We also recognize the Commission inquired as to the creation of a brochure that would provide
information to property owners and residents of an area proposed for annexation. If the
Commission determines to continue to move forward with this Strategic Plan initiative, at the
time of annexation we will develop materials to assist property owners and residents to
understand the implications of annexation.
UNRESOLVED ISSUES: None identified based on this step in the process. During this agenda
item, we are available to discuss next steps and the timing for moving this Strategic Plan item
forward.
Property owners have inquired as to when the City may determine their property is exempt from
annexation under 7-2-4503, MCA if their property is “used for agricultural, mining, smelting,
refining, transportation, or any industrial or manufacturing purpose or for the purpose of
maintaining or operating a golf or country club, an athletic field or aircraft landing field, a
cemetery, or a place for public or private outdoor entertainment or any purpose incident thereto."
As discussed during the October 28, 2019 meeting, we propose that the analysis of whether
property is exempt from annexation under Montana law occur only at the time the Commission
directs us to further investigate the efficacy of annexation of a specific group of parcels.
ALTERNATIVES: As suggested by the City Commission.
FISCAL EFFECTS: The Extension of Services Plan, if adopted, will generate additional work
for staff, including the costs to prepare areas for annexation, public notice requirements and other
costs associated with bringing areas into the corporate limits of Bozeman. Taxes and other fees
or assessments or costs for improving infrastructure associated with City-initiated annexation
will be identified later on a case-by-case basis.
Attachments:
• Resolution 5156
• Attachment A to Resolution 5156 – City of Bozeman Extension of Services Plan and
Report for City Initiated Annexations (version for adoption)
• Tracked Changes Version of Attachment A (for comparison with October 28, 2019 draft)
• Letter from Matt Kelley, Health Officer for Gallatin City-County Health Department
• Resolution 4359 (Annexation Areas for West Babcock Street and Durston Road)
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Resolution 5156
Page 1 of 2
COMMISSION RESOLUTION NO. 5156
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA, ADOPTING AN EXTENSION OF SERVICES PLAN AND REPORT
FOR CITY INITIATED ANNEXATIONS.
WHEREAS, the City of Bozeman’s Strategic Plan calls for a Well Planned City stating, “4.3
Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new
infrastructure;” and
WHEREAS, to implement goal, the Strategic Plan Section 4.3(e) then calls for the City
to “Investigate the development of new annexation policies to address long term tax fairness for public
services, locations of infrastructure, and locations for future infill and growth;” and
WHEREAS, the City Commission held a work session on city-initiated annexation on April 22,
2019 and were presented with a draft of an extension of services plan and accompanying policies on
October 28, 2019, and
WHEREAS, at the October 28, 2019 Commission meeting, the City Commission directed the City
Manager to return to the Commission with updated Extension of Services Plan and Report for
consideration and possible adoption by the Commission; and
WHEREAS, pursuant to Montana law, at the time the City annexes property it must also have in
place a plan for the extension of services to newly annexed property; and
WHEREAS, the City Commission determines the attached Extension of Services Plan and Report
(the “Plan”) (when used in conjunction with an addendum to the Plan that provides details on how the
extension of services will work for a specific parcel or group of parcels) meets the requirements of
Montana law and may form the basis for a City-initiated annexation.
NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman,
Montana, to wit:
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Resolution 5156
Page 2 of 2
Section 1
The City Commission hereby adopts the Extension of Services Plan and Report (the “Plan”), dated March
23, 2020 (Attachment A). In addition, for each parcel or group of parcels wherein the City initiates
annexation, as opposed to a landowner initiated annexation, the City Commission must, at the time of
annexation, adopt an addendum to the Plan (to be known as an “Area Plan”). The Area Plan must provide
additional information specific to a given area on how adequate services will be available a specific parcel
or group of parcels. The Area Plan and the Plan, when considered together, are intended to provide the
overall plan for the extension of services required by Montana law.
Section 2
This Resolution is effective upon passage and approval.
PASSED AND ADOPTED by the City Commission of the City of Bozeman, Montana, at a regular
session thereof held on the 23rd day of March, 2020.
____________________________________
Chris Mehl
Mayor
ATTEST:
____________________________________
Mike Maas
City Clerk
APPROVED AS TO FORM:
___________________________
Greg Sullivan
City Attorney
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CITY OF BOZEMAN
EXTENSION OF SERVICES PLAN AND REPORT FOR
CITY - INITIATED ANNEXATIONS
March 23, 2020
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City of Bozeman Extension of Services Plan and Report VERSION: March 23, 2020 Page 1 of 36
City of Bozeman Extension of Services Plan and Report
for City-Initiated Annexations
TABLE OF CONTENTS
INTRODUCTION 2
STATUTORY REQUIREMENTS 3
RELATIONSHIP TO THE BOZEMAN GROWTH POLICY 3
AND CITY FACILITY PLANS
MUNICIPAL PLANNING AREA 4
Economic Conditions and Trends 4
Physical Growth Trends 4
Impediments to Growth 5
Growth Stimulants 6
Prevailing Growth Patterns 7
EXTENSION OF CITY SERVICES 10
DETERMINATION OF ADEQUATE PUBLIC FACILITIES 21
POLICIES FOR CITY-INITIATED ANNEXATION OF LAND 26
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City of Bozeman Extension of Services Plan and Report VERSION: March 23, 2020 Page 2 of 36
INTRODUCTION
While the City of Bozeman’s preferred method of annexation is through landowner initiated
annexation, tThis Extension of Services Plan and Report (the “Plan”) is the guiding plan and
report for the provision of City of Bozeman services in circumstances where the City initiates
annexation.
The Plan serves the following objectives:
• Ensure the efficient use of public infrastructure and tax revenue through compact,
orderly, safe, and efficient growth;
• Meet Montana statutory requirements for the extension of services plan and report for
the annexation of lands into the City;
• Provide policies for the extension of municipal services when the City initiates
annexation of land including identifying methods of financing and extending municipal
services and the party or parties responsible therefore; and
• Provide a framework, in concert with the City’s adopted Strategic Plan, and other plans
of the City including, among others, the City of Bozeman’s Growth Policy (Community
Plan), the Wastewater Collection Facilities Plan, the Water Facility Plan, the Integrated
Water Resources Plan, the Greater Bozeman Area Transportation Master Plan, the Parks,
Recreation, and Open space Plan, the City’s Stormwater Facilities Plan, and its Fire and
EMS plans, as well as the City’s Economic Development Plan.
This Plan incorporates all currently adopted and any future adopted City plans for City
infrastructure and services.
In addition, this Plan provides a general description of the procedures and requirements for City
initiated annexation of properties. As the City moves to annex specific parcels or groups of
parcels at the time of such annexation the City must adopt an area plan as an addendum to this
Plan addressing the specifics of how annexed parcels will be provided services.
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STATUTORY REQUIREMENTS
As required by Montana law, the City must demonstrate how services will be provided to areas
the City proposes to annex. Specifically, the City must provide a plan for the extension of services.
This Plan must anticipate the services needed for a minimum of five years into the future and
must include the availability of water, sewer, storm drainage, solid waste disposal, streets,
police protection and fire protection, among others.
If the City determines it is necessary to extend streets, water, sewer, or other municipal services
such as parks and recreation, lighting, tree maintenance and sidewalk/trails into an area to be
annexed, an area plan must be adopted by the City Commission that, when considered in
conjunction with this Plan, meets the requirements of 7-2-4731, MCA, and 7-2-4732, MCA. If
the area to be annexed is currently served by adequate water, sewer and streets, and if the City
determines that capital improvements are not necessary, the City must provide plans of how it
intends to provide other services, mainly police protection, fire protection and solid waste disposal.
The location of the municipal growth area is determined by considering available undeveloped and
underdeveloped lands in the context of existing municipal services and the logical extension of
these services. In addition, past community growth trends, as well as existing community growth
stimulants and deterrents, are taken into consideration in projecting growth area boundaries.
The proposed growth area is the boundary of the City’s adopted growth policy.
RELATIONSHIP TO THE BOZEMAN GROWTH POLICY
AND CITY FACILITY PLANS
This Plan hereby incorporates by reference the current and future Bozeman growth policy and the
various adopted City facility and service plans, including those for fire, emergency services, and
police, including any future updates to such plans. The growth policy and the various City facility
and service plans support this Plan. The adoption and implementation of this Plan will, likewise,
assist the City in achieving the goals and objectives of the growth policy and the various facility
and service plans.
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MUNICIPAL PLANNING AREA
The municipal planning area is the projected service area in which municipal services can or may
be extended, depending upon needs and demand. Boundaries of the municipal planning area are
established based on prevailing and anticipated growth trends, with consideration given to growth
stimulants as well as growth deterrents or impediments. In establishing this area, the City considers
population and economic trends that affect community growth or decline. Trends are subject to
fluctuation and the City’s planning area looks at the long term probable outcomes, not short term
exigencies.
Economic Conditions and Trends
The City is the primary economic engine of Southwest Montana. The City’s population will soon
surpass 50,000 people yet serves significantly more people in terms of business activity. This
population milestone will move the City into a metropolitan community status with many impacts
to the community.
There were roughly 18,000 more people in Gallatin County in 2017 than there were in 2010.
During this time, the City grew by nearly 9,300 people, or 25%. The City’s growth rate has
routinely exceeded that of Gallatin County as a whole over the past 20 years with annual growth
rates as high as 6%. The area's population continues to grow steadily with the potential for
continued growth over the next twenty years. Details of population and economic growth are
available through the US Decennial Census, American Community Survey, and other state and
federal agency reports.
Physical Growth Trends
In addition to the increase in population, the City has regular annexation activity increasing its
physical size. Maps showing the location and timing of annexations are available through the
City’s website. Annexations range from small annexations, such as individual properties seeking
to connect to City utilities, to parcels as large as or larger than 160 acres. Annexation occurs
throughout the City but occurs predominantly in the City’s northwest and southwest quadrants..
As for future annexations, the City has seen development using up the City’s undeveloped property
reserve that was created in the 2000s. The City expects additional properties will seek annexation
as the development potential of property with municipal services is higher than without them.
Property owners seeking additional development have, historically, voluntarily approached the
City seeking annexation. The City does not generally extend its utility services outside of its
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boundaries.
As new development is proposed in areas contiguous to or wholly surrounded by the City new
development or redevelopment is generally required to connect to municipal water and sewer.
When this occurs, utility extensions must be in accordance with City standards and annexation is
generally required prior to receiving service. The location and schedule for such development is
driven by private demand and cannot be predicted in detail at this time. The City’s future land use
map from the Bozeman growth policy depicts areas where future urban development is expected.
There exist certain influencing factors that can either stimulate or impede the physical growth of
the City. In conjunction with the ability to provide services, these influencing factors must also be
considered in the establishment of future service and growth area boundaries.
Impediments to Growth
Identified impediments to growth in and around Bozeman are water supply, access or capacity in
sanitary sewers, lands of agricultural significance, large tracts of land under public ownership,
soils unsuitable for development, seasonally high groundwater, and steep slopes, among others.
The existence of certain types of soils renders some areas of the valley more expensive for urban
development because of low bearing strength requiring additional investments for stable roads and
building foundations. Although some soils may be unfavorable for development, most
disadvantages can be overcome through engineering solutions and construction techniques. It
should be noted that while the disadvantages of these soils can be overcome, such circumstances
will likely result in added expense to the public, in providing services such as streets, sewer and
water service, and storm drainage, and to the property owner, in terms of construction and
engineering costs.
The State of Montana owns large areas of land within and adjacent to the City. Some properties
are held for research purposes for the Montana University System or are designated school trust
lands. The MSU properties are primarily located on the bench in the Southeast quadrant of the
municipal planning area, main campus, and adjacent research facilities along College Street. As
the purpose of these properties is not for profit, the extension of infrastructure through these areas
is more difficult than typically experienced on private property. The City and Montana State
University work together on many infrastructure issues to enable the continued expansion of the
City and university.
Seasonally high ground water is found frequently in the northwest and southwest quadrants. High
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ground water impacts the ability to accommodate on-site sewage disposal systems. Ground water
levels are elevated by irrigation facilities and practices. Also, expensive construction techniques
are required in many locations throughout the City area to build stable, long lasting roads.
Slopes generally exceeding twenty five percent (25%) are considered a potential impediment to
urban development. Development on such slopes, including buildings, roads, driveways and other
improvements, can have significant impacts on existing drainage patterns, riparian vegetation,
wildlife, adjacent (particularly downhill) properties, and the existing natural scenic qualities of the
community. While the City is generally situated on the valley floor, instances of steep slopes occur
along the Peet’s Hill ridge and in the northeast quadrant with the Story Hills and Bridger Mountain
range foothills.
The Gallatin Valley is at the top of its drainage system, and therefore, water supply is of high
quality while limited in quantity. The City has an active program developing and protecting its
water supply and the rights to use it. The City actively pursues development of water resources,
conservation of water, and integrated strategies to maintain an adequate supply for its continued
growth. The adopted Integrated Water Resources Plan looks at long-term needs and trends to help
maintain an adequate water supply.
The City actively invests in sanitary sewer upgrades each year. Sanitary sewer upgrades are
completed to expand the service area of the City, replace old and aging pipes, and to increase pipe
sizes and associated capacity. The City maintains a hydraulic model to understand available
capacity in the sanitary sewer system and direct capital plan investments. Some capacity
limitations exist in the system that are addressed as growth demands improvements to the system.
Low density, subdivisions not annexed to the City impede the logical and cost effective extensions
of municipal water and sewer systems. Retrofitting such development is expensive and often
opposed by residents. Avoidance of such development is therefore prudent to avoid impediments
to municipal growth. The City’s growth policy promotes protection of rural lands around the
perimeter of the City and limits development of these lands until the time when large projects with
the ability to extend City infrastructure are ready for development.
Growth Stimulants
Growth stimulants are matters forces exerted upon a city that may cause or encourage a city to
grow in a particular direction. Growth stimulants may be physical factors such as a scenic
environment or a proximity to services and/or utilities. A desirous quality of life or a strong
economy can also stimulate the growth of a city. The physical beauty of the Gallatin Valley,
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Bozeman’s strong economic reputation, and its perceived quality of life has spurred substantial
growth over the past 20 years. It is expected that the growth of the area will continue due to its
appealing life style, strong economy, proximity to excellent recreation, and ready access to
Bozeman Yellowstone International Airport.
Prevailing Growth Patterns
Bozeman has been expanding in all directions. This includes redevelopment and intensification of
existing municipal areas. Multiple large buildings have been constructed or are under construction
in the Downtown and along N. 7th Avenue. Accessory Dwelling Units are being added to many
lots in the core of the community. Few areas within the City remain undeveloped.
The character of the surrounding areas into which the City is expanding are distinct. In order to
describe the nature of these areas more easily, the following discussion divides the city into four
quadrants with a center point at the intersection of Main Street and 19th Avenue. The prevailing
growth patterns in the Bozeman area, and the probable growth stimulants associated therewith,
follow:
Northeast Projected Growth Area
The area of this quadrant is generally flat and incorporates some of the original town- site area.
The mix of land uses shows substantial areas of residential, institutional, and industrial users. At
the outer eastern edges of this quadrant the land rises into the Story Hills and Bridger Mountain
range. The East Gallatin River crosses this area as does Interstate 90. Both of these are limits on
the street grid and influence the placement of water and sewer mains. Expansion of the City is
expected but is likely the least expansive of any of the four quadrants due to the degree of slopes
in the outer area. Growth of population and expansion of incorporated land in the area is possible.
There are several unannexed wholly surrounded areas and unannexed areas that receive municipal
fire service. There is potential for additional development within the wholly surrounded areas.
Municipal water and sewer are in near proximity to some of the wholly surrounded areas.
The City recognizes there are no overwhelming barriers that would impede the physical growth of
the City during the next five years. There are known needs for expansion of water and sewer
services that are described in the facility plans. The Montana Department of Transportation is
presently expanding Rouse Avenue to provide needed transportation capacity.
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Southeast Projected Growth Area
The area of this quadrant is generally moderately sloped and incorporates some of the original
town- site area. Bozeman Creek crosses this portion of the community. A large ridge on the eastern
side divides this area into two areas. The western area is mostly developed down to Kagy Blvd
with Montana State University and Downtown being the two most notable destinations. South of
Kagy Boulevard lies large open areas suitable for urban development. There are several large rural
subdivisions in this area. East of the ridge is Bozeman Health’s main campus and residential areas.
There is substantial land remaining for development east of the ridge. There are several suburban
developments in this area primarily utilizing individual water and sewer systems. There are several
wholly surrounded areas in this quadrant. These are located primarily along the Kagy Boulevard
corridor.
It is recognized that there are no overwhelming barriers that would impede the physical growth of
the City during the next five years. There are known needs for expansion of water and sewer
services which are described in the facility plans. The City is presently expanding water storage
capacity at its water treatment plant which will improve water pressure to this area.
Southwest Projected Growth Area
The area of this quadrant is quite flat and has the fewest topographic features which might restrict
expansion of the City. Large sections of this quadrant are presently outside of the City. Large
university landholdings restricted extension of municipal utilities for many years. With services
now made available, development is occurring along the S. 19th corridor and beginning to occur
south of Huffine Lane. Areas north of Huffine Lane have been annexed and infilling since the late
1970’s. There are several small residential unannexed inholdings within this quadrant and one
large existing and planned commercial area. High groundwater is prevalent in this quadrant,
especially south of Huffine Lane with many small spring creeks. There are continuing agricultural
operations in this area and very low density residential development scattered throughout it.
The City recognizes there are no overwhelming barriers that would impede the physical growth of
the City during the next five years. There are known needs for expansion of water and sewer
services that are described in the facility plans. The City is presently expanding water storage
capacity at its water treatment plant that will improve water pressure to this area. The City is also
constructing a new lift station and sewer interceptor pipe that will expand sewer capacity that will
serve this area.
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Northwest Projected Growth Area
This quadrant has seen the greatest amount of growth over the past 15 years. Several very large
annexations have been building out. The City along with private developers has invested heavily
in major transportation and sewer service improvements in this area that have facilitated growth.
Development in this area is primarily residential and institutional with substantial capacity for
commercial development to occur. This quadrant has the greatest number of unannexed
inholdings. Most of these inholdings are residential development but several have potential for
substantial intensification of use. The construction of Bozeman Gallatin High School, the Sports
Park, and impending construction of Billing Clinic Hospital support an expectation of substantial
additional growth in this area.
The greatest restriction on development in this area is sewer services. The City is constructing the
new Davis Lift Station and the Norton East Ranch Interceptor to support construction of the new
high school and hospital. This construction will also open considerable capacity for additional
annexation and development.
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EXTENSION OF CITY SERVICES
The City’s growth policy and its facility and service plans (along with its Strategic Plan) seek
compact, orderly and efficient municipal growth. In addition, all plans support infill development
as well as outward expansion. Doing so minimizes the expenditure of municipal funds and ensures
such funds are used in the most efficient and rational manner. To implement the goals and
objectives of the growth policy and various facility and service plans, the City develops and
continually implements plans for the extension of municipal services through its capital-planning
program. When extending services into annexed areas, the City must identify the services available
and the manner in which the City will provide those services to the annexed area. In doing so, the
City identifies those responsible for extending services and the methods of financing such
extensions.
Initially, because of the extensive urban development in unannexed areas within and adjacent to
the City boundaries, roads and water and sewer mains are already in place through or beside many
areas where annexation may occur.
The facilities and services, which the City considers for extension into the future growth areas of
the City, include streets, sanitary sewer, storm sewer, water, police protection, fire protection, and
solid waste collection, among others. Generally, many of these services must be provided
concurrent with annexation.
In areas where services or facilities do not exist, it is generally the responsibility of a property
owner developing property to construct and pay for facilities such as roads, sewer, stormwater,
and water (for domestic and fire suppression). The City then will provide the services that use such
facilities, such as police and fire protection, solid waste collection, and water and wastewater
treatment. In areas that are currently developed, the City may, based on its growth policy and
facility and service plans, and in compliance with its adopted regulations, allow developed
properties to continue to use existing facilities such as on-site water wells and septic systems.
The City in cooperation with property owners must generally provide services concurrently with
development of the property. As such, for undeveloped areas, the City may allow a property owner
to defer the development of certain facilities until future development as long as basic services
such as police and fire are provided to the property. For example, if undeveloped property is
annexed anticipating future development, the City may not require development of additional
facilities for the property upon annexation as long as basic services can be provided at the time of
annexation.
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For developed areas, the City may authorize the use of existing facilities at the time of annexation
as long as such facilities can provide adequate services. For example, if the City annexes an
existing neighborhood with established streets and water and wastewater facilities, the City may,
depending on the condition of the facilities, authorize property owners to continue using such
facilities as long as the facilities are adequate to serve the property. As such, under this example,
property owners may continue to use on-site septic systems and wells and roads even though roads
may not have been built to current City standards and the City does notrarely authorizes wells and
septic tanks for domestic services. At the time of future development or when those services have
outlived their useful life or failed, these facilities must be upgraded to City standards.
This remainder of this section addresses the various types of facilities and services and, in
conjunction with the policies described below, the City’s plan for how each will be provided at the
time of annexation.
Streets
The transportation network within and around the City plays a significant role in the physical
development and growth of the City. This network of streets, roads and highways is designed to
form a system that not only provides efficient internal circulation, but also facilitates through
traffic. Since streets serve two basic functions, moving traffic and providing access to abutting
lands, the City, through its adopted transportation plan, classifies each street for the specific
function or combination of functions that it serves. This functional classification system forms the
basis for planning, designing, constructing, maintaining and operating the street system. Street
classification is also used as an equitable and practical method of allocating responsibility for street
and road construction expenditures. For these reasons urban streets are generally designed and
developed in a hierarchy comprised of the following types:
Major Arterials
A major arterial is described in the City’s adopted transportation plan. Generally, it is a road or
highway with moderate to high speeds and traffic volumes. Major arterials provide access to the
regional transportation network, and move traffic within the City. Access to abutting lands is
limited.
Minor Arterials
A minor arterial is also described in the City’s adopted transportation plan. Generally, it is a road
with moderate speeds designed to collect or move traffic from one major part of the City to another
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or to move traffic to and from the major arterial system.
Collector Streets
Again, the City’s transportation plan describes collector streets. Generally, it is a secondary or
intermediate street with moderate speeds and moderate volumes. Such streets would collect local
traffic from neighborhoods and carry it to adjacent neighborhoods or transfer the traffic to the
arterial system. Such streets would typically serve a neighborhood or local area.
Local Streets
These are minor streets intended to serve individual sites, homes, buildings or lots. Local streets
either feed into collectors or provide direct access to much of the land within the City.
As noted above, arterial and collector streets within Bozeman are listed according to functional
classification in the City’s adopted transportation plan. The transportation plan and the street
reconstruction priority ratings, prepared by the City Engineering staff, have been developed as a
tool for scheduling reconstruction, overlays and preventative maintenance for public streets,
excluding State and Federal highways, in the projected urban area. The City’s street system
includes approximately 294 miles of streets and alleys.
The transportation plan and supplemental staff analysis identify priority projects for the street
systems, which, if implemented, result in a benefit to existing traffic system performance. The
proposed improvements will also serve future development needs as urban development expands
into the adjacent rural areas surrounding Bozeman. The transportation plan, in addition to
identifying deficiencies and recommending improvements, identifies potential funding sources.
The top priority projects identified in the transportation plan involve, for the most part, either
arterials or collectors. All proposed developments that impact the existing or proposed street
network may be subject to conditions of approval intended to mitigate impacts. It is generally the
responsibility of a landowner to provide streets built to City standards, including curbs, gutters,
sidewalks, boulevards, street signs, streetlights and street trees. Standards for such improvements
are contained in the City of Bozeman's Unified Development Code, the City's Design Standards
and Specifications Policy, and the City of Bozeman Modifications to Montana Public Works
Standard Specifications. The policy section of this plan supports these requirements.
The City may authorize developed areas to be served by the existing street network even though
such network does not meet current standards.
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The City levies an arterial & collector street assessment to provide for construction and
maintenance of arterial and collector streets, according to the City’s adopted capital plans.
Currently, the assessment is $0.006408 per square foot of property area for all properties. The
assessment is limited to a maximum of 15,000 square feet for single-family household residential
properties, a maximum 15,000 square feet for undeveloped commercial properties, and a
maximum of one quarter of the total area for properties zoned public lands and institutions. This
assessment is subject to change depending on priorities for capital improvements.
Street Maintenance
The City maintains, sweeps, and plows most streets which have been dedicated to the public within
the City, while the Montana Department of Transportation maintains and plows its highways
through the City totaling approximately 23 miles of roads. The County Road Department also
maintains and plows approximately nine miles and several segments of roads in the City that are
under County jurisdiction as adjacent land has been annexed. However, generally, County roads
will be incorporated into the City system as annexation occurs.
To address maintenance of City maintained streets, the City levies a street assessment. This
assessment provides for snow removal and deicing, asphalt patching and overlays, and street
sweeping. Currently, the assessment is $0.028924 per square foot of property area for all
properties. The assessment is limited to a maximum of 15,000 square feet for single-family
household residential properties, a maximum 15,000 square feet for undeveloped commercial
properties, and a maximum of one quarter of the total area for properties zoned public lands and
institutions. As with the arterial and collector assessment, the street maintenance assessment is
subject to change depending on priorities for capital improvements.
Some neighborhoods and homeowners associations elect to manage additional snow removal on
their own, to achieve a higher level of service than the City can provide. In certain circumstances,
the City may require or authorize such private service of local streets. In addition, there exist streets
within the City that have not been dedicated to the public. The City does not generally maintain
these. For streets in areas proposed for annexation, homeowners may continue to be responsible
for maintenance of streets and street right-of-way for streets that have never been previously
dedicated to the public. The City may consider accepting dedication and the resulting maintenance
responsibilities. The manner in which this will be addressed will be discussed in an Area Plan.
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Sanitary Sewer/Wastewater Treatment
A sewerage system is a network of sewers used to collect the liquid wastes of a city for subsequent
treatment. The location and capacity of main sewer lines and treatment plants are a factor in
determining both the density and location of development within a community. Generally, the
design of main sewer lines and plant capacity is reflective of anticipated land uses and population
projections of a predetermined service area.
In contrast to a pressurized water distribution system, sewage is primarily collected by a gravity
flow system, wherein sewer lines are laid out in a manner as to flow continually downhill. Where
grades are insufficient to provide gravity flow, pumping of the sewage becomes necessary. Adding
pump stations to the system correspondingly adds expense and maintenance needs and is generally
discouraged. The City Water & Sewer Division currently maintains more than 210 miles of gravity
sewer mains, 4,200 manholes, and twelve lift stations. As the land area of the City expands, the
collection system likewise expands.
The City operates a mechanical wastewater treatment plant with secondary treatment and
biological nutrient removal. The plant is located on the northwest edge of the city on Springhill
Road. The treatment plant is designed to accommodate a flow of approximately 8.5 million gallons
per day (mgd). A plant of this capacity is able to serve a population of approximately 66,000. The
treatment plant is designed to facilitate future expansion. The plant is currently treating an average
of approximately five mgd of effluent. The City’s wastewater treatment plant typically provides a
higher degree of treatment and therefore better protection of public health and a clean environment
than is provided by on-site septic systems.
High groundwater infiltration and storm runoff inflow are hasving a significantly negative impact
on the City's collection and treatment systems. Infiltration and inflow are extraneous waters that
can enter the sewer system and thus reduce the sewage carrying capacity of the sewer, pump station
and treatment systems. As the amount of infiltration and inflow is reduced through improvements
to infrastructure, the ability of the plant to serve a larger population is increased. Much of the storm
runoff inflow has been eliminated through the ongoing construction of underground storm
drainage facilities, elimination of cross-connected stormwater catch basins and disconnection of
roof drains from sanitary sewer lines. Storm drainage is being improved as the City's stormwater
capital plan is implemented.
The design of new sewage collection systems must meet the current requirements of the Montana
Department of Environmental Quality, the Montana Public Works Standard Specifications, the
City's Design Standards and Specifications Policy, and the City of Bozeman Modifications to the
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Montana Public Works Standard Specifications, and the policies for extending services described
in this plan.
Residential neighborhoods utilizing on-site sewage disposal systems may be found throughout the
Bozeman sewer service area, both inside and outside the City limits. Over the next 15 to 20 years,
many of these neighborhoods will eventually undertake the extension of City sewer mains as
higher density development is desired and as on-site disposal systems outlive their useful life. The
location and schedule for such improvements will be driven by private demand and cannot be
predicted in detail at this time.
In accordance with the City of Bozeman Design Standards and Specifications Policy and
Modifications to the Montana Public Works Standard Specifications (MPWSS), future
development projects throughout the Bozeman sewer service area must prepare detailed
engineering studies to identify appropriate locations and design criteria for sewer mains and lift
stations. Consideration will be given to individual development goals, as well as the long range,
overall needs of the surrounding area and the sewage collection/treatment system as a whole.
The City may authorize developed areas proposed for annexation to be served by the existing
onsite septic systems network even though such systems do not meetmay not be constructed to
current regulatory standards . Such systems must be abandoned and the Property must connect to
the City’s sanitary sewer if property redevelops or the systems fail.
Storm Water Management
Storm water runoff is the water flowing over the surface of the ground as a result of a rainfall or
snow melt. The primary goals in the management of storm water runoff are to minimize hazards
to life and property and to provide treatment of runoff before it enters streams and rivers. This is
accomplished by using storm sewers, detention, and treatment systems to collect, carry, detain,
and treat surface water and ultimately discharge that water to a natural water course or body of
water in such a way as to prevent flooding and the resultant damage.
The City’s stormwater collection system consists of a variety of infrastructure facilities that collect
urban runoff and either treat stormwater on site or convey it to local waterways, such as Bozeman
Creek, Bridger Creek, the East Gallatin River, and numerous small spring creeks. Currently,
system components include over 107 miles of underground pipe, 3,675 inlets, 1,625 utility holes,
and 629 individual discharge points spread across the City. In areas built post-1980, there are 519
surface and subsurface stormwater facilities that act as flood and water quality controls. The
majority of these facilities are owned and operated by property owner associations or private
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parties. As the land area of the City expands, this system likewise expands.
As new streets are constructed, and as existing streets are improved, storm drainage infrastructure
is likewise installed or improved. Those persons developing property have the responsibility to
convey storm water from their property to an appropriate point of treatment and disposal. The
quantity and rate of runoff from a developed piece of property should not exceed that which would
occur had the property remained undeveloped. In instances where developing property cannot be
drained to an appropriate point of disposal, storm water must be detained and handled on site.
The City may recognize developed areas proposed for annexation may be served by existing
stormwater systems even though such systems do not meet current standards.
Water
The City must ensure dwellings and business have access to safe, potable and palatable water for
the needs of the City’s domestic, institutional, industrial and commercial consumers. The City
must also ensure adequate water exists to meet firefighting needs.
The City provides domestic water from the Hyalite/Sourdough Water Treatment Plant and the
Lyman Spring Water System. The present supply capacity is approximately 22 million gallons per
day (mgd), and the peak demand periods of late summer are approximately 9 mgd. The maximum
day demand has been observed at approximately 12 mgd.
Water storage tanks are used to equalize pressure throughout the 271-mile long distribution system
and to provide emergency supply in case of an interruption of power, a failure of pumping
equipment, or to provide water for firefighting. This system also provides the flow necessary to
meet peak demands. The amount and location of stored water represents a key component of the
water system's ability to deliver water for the purpose of fire suppression. The city currently
utilizes four storage tanks with a total capacity of 16.6 million gallons. Under the requirements of
the Safe Drinking Water Act, the City tests the water supply for a wide variety of contaminants on
a regular basis. Extensive testing for microorganisms, disinfection byproducts, disinfectants,
inorganic chemicals, organic chemicals, and radionuclides has shown that Bozeman's water is of
the highest quality.
The City’s water facility and service plan guides the extension of water mains into areas of growth
as and when development occurs. The plan is based on the objective of providing adequate water
flow to meet household, commercial, industrial and irrigation demands, while meeting fire
protection needs as well. The distribution system must be able to deliver water in sufficient
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quantity to all residents and businesses at all times. Ideally, a water distribution is of a grid layout
with supply and storage facilities strategically located to equalize pressure during periods of heavy
usage. Dead-end lines should be avoided and reduce the number of customers who would be out
of water during periods of line repair.
The provision of water for firefighting purposes is as important as, and as consumptive as, that
required for domestic and commercial uses, and must be considered when evaluating transmission,
storage and distribution facilities.
For the City to provide water for domestic and commercial uses and fire protection services
through the City’s water treatment and distribution system the City must continue to address its
legal access to its sources of water. The City invests in securing and maintain its legal access to
water guides by its Integrated Water Resources Plan and its employees make ongoing efforts to
protect existing water rights and obtain new water rights. The most important priority for the City
to ensure long-term availability of water is through water conservation. These efforts will continue.
The City may authorize developed areas proposed for annexation to be served by the existing wells
even though the use of wells does not meet current standards. Such systems must be abandoned or
used solely for irrigation if property redevelops or if a property owner must connect to the City’s
water system.
Solid Waste Management
Solid waste collection, recycling, and disposal services are provided within the City by both the
City and private haulers subject to the provisions of Chapter 32 of the Bozeman Municipal
Code and Title 75 of the Montana Code Annotated. Refuse collected within city limits is
transported to the Logan landfill located approximately 27 miles west of Bozeman. All properties
within the City must use a solid waste collection service. Recycling services are optional.
The City provides weekly residential pick-up of refuse, while businesses receive, if needed,
multiple pick-ups each week. The City utilizes an automated side-arm loader for collection and
transportation of garbage to the landfill. The City of Bozeman also supports recycling efforts with
bi-weekly residential pick-up. The demand for solid waste collection is typically proportionate to
the size of the community. Therefore, as the City of Bozeman accepts annexations, its solid waste
service area will increase as well. The City recognizes the provisions of 7-2-4736, MCA in regards
to solid waste collection services.
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Fire Protection
Fire protection is dependent upon the size and type of fire protection work force, availability of
adequate water, type of equipment and the response time involved.
The Bozeman Fire Department currently consists of 46 paid personnel, of which 45 are sworn
uniformed fire rescue personnel and one civilian support staff. The City levies property taxes to
pay for fire protection services.
To provide fire protection within the city, the City must develop and maintain adequate firefighting
apparatus, equipment, housing, personnel, and facilities. Mutual aid between the Bozeman Fire
Department and departments outside the City, including Central Valley, Hyalite, and Fort Ellis
Fire Departments, provide resources that can be requested by any of the departments if additional
assistance is needed.
Currently, the City of Bozeman has an insurance class rating of “2”. The department was last
reevaluated in 2017 by the Insurance Services Office (ISO). ISO collects data for more than
48,000 communities and fire districts throughout the country. This data is then analyzed using a
proprietary Fire Suppression Rating Schedule. This analysis then results in a Public Protection
Classification score between 1 and 10 for the community, with Class 1 representing "superior
property fire protection" and Class 10 indicating that an area does not meet the minimum criteria
set by the ISO.
Currently, hydrant locations in the City could be considered adequate in most areas. The Public
Works Department and Fire Department work together to identify needs and install new fire
hydrants in developed areas that are served by City owned water mains of sufficient capacity to
deliver fire flows. At the time of annexation, the City determines how to provide fire protection
services; in circumstances of annexation of developed properties, the City may use existing
facilities to provide service.
Law Enforcement
Police services and public safety are vital components of the essential services the City provides
to all residents and visitors to the city. The Bozeman Police Department is currently authorized
for sixty-six sworn police officers, two animal control officers, one crash investigator, four
information specialists, one evidence technician, one digital forensic analyst, one fleet
maintenance staffer and a number of volunteers. The primary service area is within the city limits
of Bozeman. The department also participates in shared teams that work both inside and outside
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the city limits such as the city-county Special Response Team, the Missouri River Drug Task Force
and the Montana Internet Crimes Against Children Task Force.
The Bozeman Police Department is responsible for public safety services for all persons who live,
work and play within the City. In addition to Bozeman residents, the service demands on the
department are also largely influenced by Montana State University student and staff populations,
as well as the county residents living outside the city limits that come to Bozeman to work, shop,
dine, or recreate. The department’s service population also includes visitors that travel through or
stay in Bozeman.
These factors obviously affect the numbers of calls for service the department responds to. Other
factors that influence the department’s workload are the number, frequency and location of
criminal activity, motor vehicle crashes and general calls for assistance. As is the case with all
departments within the City, the community’s current rate of growth has the largest impact on the
delivery of public safety services. As the City grows both geographically and in population, it is
necessary to continue to staff and resource the police department accordingly.
For the annexation of property, law enforcement services are provided at the time of annexation.
Parks and Recreation
The City provides maintained, publically accessible, parks and trails to all residents and
community members. The City’s Park and Recreation Department currently maintains 42 44 park
spaces consisting of pocket parks, neighborhood parks, special use parks and community parks.
The Department manages and maintains all associated infrastructure within these park spaces (i.e.
irrigation systems, pavilions, restrooms, bridges, play structures, etc…). The Parks Division of
the Department also maintains 61.7 miles of trail and path within the City for transportation and
recreation. Many neighborhood parks and trails throughout the City are maintained by
homeowners associations.
The Department also provides a myriad of recreation and aquatic services to the public of all ages.
Under the Department’s cost of service plan, cost recovery is subsidized by the City for some age
groups and specific programs resulting in resident discounts.
The Department services are tracked for time, equipment and materials allowing the Department
to forecast future costs of potential annexations. The City generally maintains public parks and
trails currently in existence at time of annexation at the current standard. Recreational services
would be extended to residents of newly annexed property at the current resident rate. Finally, all
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public park and street trees are added to the City tree inventory and maintained as a part of the
City’s urban forestry management program.
The Forestry Division of the Department manages and maintains over 24,000 street, park and
cemetery trees. Forestry also provides and installs at least 175 trees annually in public right-of-
way at a subsidized cost to the adjacent property owner. Forestry utilizes a Forestry Management
Plan and Emerald Ash Borer Course of Action Plan as master plans in the urban forest management
of the City. The City will maintain trees in public parks and rights-of-way at the time property is
annexed.
As of the date of this Plan, the City of Bozeman levies a tree maintenance assessment on properties
within the City. Currently, the assessment is $0.003548 per square foot of property area for all
properties. The assessment is limited to a maximum of 15,000 square feet for single-family
residential properties, a maximum 15,000 square feet for undeveloped commercial properties, and
a maximum of one quarter of the total area for properties zoned public lands and institutions.
Residents and property owners within areas proposed for annexation must recognize assessments
are subject to change on an annual basis.
Other City Services
In addition to the above, the City provides other facilities and services such as Library, sidewalk
maintenance, weed abatement, etc. As the City annexes land, these facilities and services will be
available to residents and owners of annexed property.
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DETERMINATION OF ADEQUATE PUBLIC FACILITEIS AND SERVICES
Montana law requires, at the time of annexation that certain basic services be adequate for the
property being served. These services include police and fire protection, streets and street
maintenance, solid waste collection and wastewater collection and treatment, and the
provision of potable water. As such, this section provides a discussion on the facilities and
services required to be addressed by Montana law. The City may provide these services at the
time of annexation or the services may be provided by other entities. For example, the City
may annex a property and, through its own services, provide police and fire protection and
make its solid waste services available. The collection of solid waste may also be provided by
private companies. Likewise, the City may determine land proposed for annexation is
adequately served by existing on-site wastewater and water services such as septic tanks and
wells.
This section provides general guidance on the factors the City will consider when analyzing
whether existing facilities, infrastructure, or services are adequate to provide basic services to
a property proposed for annexation.
The City recognizes areas proposed for annexation may have developed under different
standards than are required currently in the City for new development. For example, a
neighborhood may have developed when the requirement for paved streets with concrete curb
and gutter and sidewalks did not exist. Likewise, a neighborhood may have developed where
centralized water and wastewater collection systems were not required to be constructed or
available to the property. Even though these types of neighborhoods do not meet current City
development standards, (i.e. the standards required if the neighborhood were permitted today)
the City may nonetheless determine these facilities such as streets and wastewater collection
to be adequate as those facilities continue to serve the needs of the owners or residents of the
properties.
In general, adequate means sufficient for a specific need or requirement or of a quality that is
acceptable. The City must determine, for each area that is proposed for annexation, whether
the services necessary for a property are, at the time of annexation, sufficient to meet the needs
of the residents. This analysis will be conducted in the Area Plan serving as an addendum to
this Plan that must be developed for each area proposed for annexation. As such, the analysis
of whether the services are sufficient to meet the needs of the residents (i.e. are adequate) will
be done on a case by case basis as each area will have different infrastructure and facility
needs.
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In doing so, the City will analyze certain factors which are described herein.
Streets
For streets, the most important consideration for the City to consider in determining whether
existing streets are adequate is whether the streets, as they exist at the time of annexation, can
provide legal and physical access to the property for its residents and access for mail and
delivery services. In addition, another critical consideration is whether the streets can provide
access for emergency vehicles for police, fire, and emergency medical response. Other
considerations include whether the streets can provide access for solid waste collection. As
noted above, the City may annex property even if the street is not constructed to the current
standard for new development; there exist currently areas within the City that developed prior
to modern standards and the City recognizes these existing areas are adequate.
The City determines whether a street is adequate for these purposes and in doing so the City
recognizes streets vary in their quality – from streets with deferred maintenance to newly
constructed streets – and that streets of varying quality may still be adequate to serve the adjacent
properties.
Street maintenance
The City recognizes, as noted above, at the time of annexation, the City will assume
maintenance of newly annexed streets where the street and its accompanying right-of-way
have been dedicated to the public. As such, if the City annexes property with a street and its
right-of-way that has been dedicated to the public the City must maintain the streets providing
access to the property regardless of whether the street meets current City standards. In
circumstances where the street and its right-of-way has not been previously dedicated to the
public the City may consider accepting a dedication at the time of annexation; if not, the
owners of the street may continue to be responsible for maintenance. The manner in which
maintenance responsibilities will occur after annexation will be addressed in an Area Plan.
If the area proposed for annexation is currently included in a Rural Improvement District (RID)
established by Gallatin County, the implications of annexation on a property owner’s RID
payments (if any) will be discussed in the Area Plan.
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Wastewater Treatment/Sanitary Sewer
Montana law recognizes domestic and commercial wastewater may be treated in several ways.
These methods include centralized wastewater collection and treatment systems such as
provided by the City through its sanitary sewer collection system and its Water Reclamation
Facility (WRF). Other systems recognized by Montana law as being adequate to treat
wastewater include on-site septic systems. Currently, there are locations within the City that
are served by septic systems; as such, like streets that are not built to current City standards,
the City recognizes septic systems can be an adequate, although not preferred, method to treat
wastewater.
While the City’s preference is property connect to its wastewater collection and treatment
system it also recognizes the significant costs to property owners in doing so; as a result, the
City may consider existing on-site septic systems as adequate to serve the needs of the
property. Factors the City will consider in an Area Plan include, primarily, whether property
owners have indicated to the City their septic system is failing. The City may consider other
factors including the age of septic systems within an area proposed for annexation but absent
direct evidence a property’s septic is failing, the City may consider existing on-site treatment
systems as continuing to be adequate.
The City also recognizes that it must determine, in each Area Plan, whether sufficient capacity
exists in the City’s wastewater collection system and at its WRF to handle wastewater from
the properties proposed for annexation should those properties decide, after annexation, to
connect to the City’s system.
For the purposes of determining adequacy for annexation, if a property is located within 200
feet of an existing sanitary sewer main the City may consider existing on-site wastewater
treatment systems adequate regardless of other factors.
Solid Waste Collection
The City requires all property within the City to subscribe to solid waste collection services
either through the City’s Solid Waste Division or through a private entity. Subject to the
provisions of Chapter 32 of the Bozeman Municipal Code and Title 75 of the Montana Code
Annotated, these services will be available to all properties proposed for annexation.
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Water
As with wastewater collection and treatment, Montana law recognizes water for domestic and
commercial uses may be provided through centralized systems or through individual on-site
wells. Currently, there are locations within the City that are served by wells; as such, like
streets that are not built to current City standards, the City recognizes wells may be an
adequate source of potable water.
While the City’s preference is property connect to its centralized water system it also
recognizes the significant costs to property owners in doing so; as a result, the City may
consider existing on-site wells as adequate to serve the needs of the property. Factors the City
will consider in an Area Plan include, primarily, whether property properties proposed for
annexation have physical and legal access to water and have indicated to the City there potable
water system is not able to be used. Absent direct evidence a property’s well is not able to be
used, the City may consider the existence of a well as adequate for the supply of potable water.
Some properties proposed for annexation may currently be served by a community water
supply system. Prior to annexation of these properties, the City will analyze whether such
existing water systems have significant deferred maintenance or any outstanding water quality
or other violations of law; if so, the City may determine such facilities are not adequate. If
such facilities are determined to be in compliance with existing State requirements, the City
may consider such facilities as adequate. In such a case, the City may annex such properties
allowing such centralized systems to continue to operate under its existing management and
oversight structure.
The City also recognizes that it must determine, in each Area Plan, whether sufficient capacity
exists in the City’s water treatment facilities to provide potable water to the properties
proposed for annexation should those properties decide, after annexation, to connect to the
City’s system. Finally, the City must also analyze whether the City’s water rights are sufficient
to ensure it has the legal authority to use the water that is physically available
Fire Protection
As noted above, at the time of annexation, the City must determine how to provide fire protection
services to areas proposed for annexation. The City will do so in the Area Plan. If property is
already developed at the time of annexation, the City may determine existing facilities are adequate
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to provide service. As with other services, not all locations within the City have fire hydrants
installed to standards new development is required to meet. Factors the City must consider in
analyzing whether the City can provide adequate fire protection services include but are not limited
to: (i) the availability of mutual aid from another fire protection agency; (ii) the proximity of
existing hydrant systems with adequate flow and pressure; (iii) if known, the fire protection status
of buildings that may exist on the property proposed for annexation (e.g., sprinkler systems); and
(iv) response times. Notwithstanding the above, the City may consider existing facilities adequate
for fire protection even if the nearest fire hydrant is further from a property than existing city
development standards require.
Law Enforcement
Currently, the City considers its law enforcement services sufficient to serve most property
proposed for annexation. The City recognizes that with significant growth in calls for service from
newly annexed areas the City may need to increase its capacity to handle increased calls for service
through additional officers and additional capital investments to support the work of the officers.
In each Area Plan, the City must analyze at the time of annexation, whether law enforcement
services are adequate to meet the demands of the properties proposed for annexation and, if not,
the additional resources the City must develop at the time of or prior to annexation to adequately
respond to increased calls for service.
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POLICIES FOR CITY INITIATED ANNEXATION OF LAND AND PLAN FOR THE
EXTENSION OF SERVICES
The policies in this section apply to City initiated annexations including annexation of property
wholly surrounded by the City. The City may adopt additional policies, amend these policies, or
replace them in their entirety as the City considers the annexation of specific areas. In doing so,
the City will adopt an area plan as an addenda to this Plan. This Plan contains general policies and
plans for how the City will extend services and facilities to areas proposed for annexation and how
the costs and expenses of extending such services and facilities will be borne by property owners,
the City, all property owners and residents in the City, or a combination of the above. Again, area
plans, in the form of an addenda to this Plan, will contain supplemental provisions for the extension
of services to the specific area proposed to be annexed.
1. Public Involvement in City Initiated Annexations. After the City Commission votes to
commence directs the City Manager to investigate the feasibility of annexing a certain area,
the annexation process for a given area, and prior to the initiation of formal annexation
proceedings, the City Manager must establish a plan for engagement of the residents and
owners of areas proposed for annexation. As part of the plan for engagement, the City
Manager must, prior to submission to the City Commission of a resolution of intent to
annex a parcel or group of parcels:
a. Establish a project page on the City’s website with all pertinent information
regarding the proposed annexation.
b. Mail to all property owners as shown in the records of the Gallatin County Clerk
and Recorder and to all physical addresses within the area proposed for annexation
a notice of an open house to discuss the proposal. The City Manager must conduct
the open house at least two months prior to submitting a proposed resolution of
intent to the City Commission.
c. At the open house, make available the draft area plan addendum to this Plan with
the contents required in this Plan, provide estimates of the general tax and
assessment charges applicable to the properties upon annexation, and provide
documentation which describes the services and facilities the City will extend and
which facilities and services the City Manager proposes to determine adequate to
remain until connection or development of the property.
c.d. If the City proposes to annex property and require the construction of infrastructure
at the time of annexation, the City’s Area Plan must identify the nature and extent
of the infrastructure proposed to be constructed, the anticipated costs to property
owners and to the City, and the method of financing the infrastructure.
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d.e. Provide the owners and residents a description of the procedures to be used for
annexation, the opportunities for the public to be involved in the process, and the
estimated timeline for the annexation process.
2. Public Eengagement as Pprotest Nnot Aavailable. As protest of annexation is not available
to property wholly surrounded by the City (see 7-2-4502, MCA), the City will seek the
active participation and engagement of all property owners and residents in an area wholly
surrounded by the City that is proposed for annexation. If the City proposes in an Area Plan
to install capital improvements at the time of annexation, the City must, in the Area Plan,
provide for a methodology for the property owners to vote on the capital improvements
pursuant to 7-2-4733, MCA.
3. Existing Rroads, Wwells, and Sseptic Sservices. As a general policy, the City will allow
existing services such as existing roads, stormwater, domestic and irrigation water supply,
and sanitary sewer such as on-site septic, to remain servicing the property unless such
facilities or services are deemed inadequate by the City. To assist in its determination, the
City may consult with the Gallatin City-County Health Department, or the Montana
Department of Environmental Quality. or until redevelopment of the property or
connection to city water or sewer is necessary.
4. City to Document Condition of Existing Facilities and Services. At the time of annexation,
the City must document existing facilities and services and describe the sewer and water
services, roads, and other facilities and services necessary to serve the inhabitants of the
annexed area. This includes analyzing existing City facility and service plans and
describing, if known, the planned location of parks and trails and City utilities. The City
must include this description in an area plan addendum to this Plan containing the
components described below. The addendum for a certain area, once adopted, is a
supplement to this Plan.
5. Determination of Adequate Facilities and Services. At the time of annexation, based upon
the description of existing services and facilities, the City must determine whether the same
are adequate to provide service to the annexing land or whether the same must be improved
or developed. This analysis must examine the capacities of the City’s water treatment and
water reclamation facilities, sewer and water mains serving or that could serve the land,
whether police and fire protection can be provided, the condition of existing roads, and
stormwater facilities, the availability of solid waste, etc. The City may require new
facilities to serve the annexed property or the City may determine adequate capacity is
available in existing facilities to serve the land without requiring improvements or
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extensions of facilities and thus allow the land to continue to use existing facilities. This
determination will be made for each facility and service. Notwithstanding the above, if a
property is located within 200 feet of an existing City sanitary sewer main, the City may,
regardless of the condition of on-site wastewater treatment of such a property, consider the
provision of wastewater treatment facilities to the property to be adequate based on the
proximity of the wastewater main.
6. No Annexation Unless Adequate Facilities and Services Exist. The City will not annex land
unless there is at the time of annexation adequate water, sewer, fire, police, solid waste,
stormwater, and streets systems to accommodate the existing demands from the land to be
annexed. The City may determine existing onsite water and wastewater treatment systems
are adequate to serve the property. As such, if the City accepts a petition for annexation or
initiates annexation it has determined adequate sewer, waterwater, sewer, fire, police, solid
waste, streets and other services can be made available or already exist to serve the land to
be annexed.
7. City Not to Establish New Funding Sources; Exception. Unless otherwise determined by
the City Commission, the City will not establish new or special funding sources to provide
facilities or services to property proposed for annexation. The City Commission may
determine to establish new or special funding sources.
8. City Discretion to Assist in Financing Extension of Services. In cases where a property
annexes to address wastewater or potable water supply issues, the property owner must pay
for the extension of the facilities necessary to serve the property. For all annexations, upon
the request of property owners, the City may assist in creating financing tools for the
property owner(s). In doing so, the City may agree to assist the property owner(s) by
financing the costs of improvements over years through financing tools such as special
improvement districts, special purpose districts, payback districts (late-comer agreements),
or location specific assessments.
9. Late Comer AgreementsPayback Districts/ Durston Road and West Babcock Street
Improvement Annexation AreasPayback Districts. The City has from time to time created
“payback districts” which require properties annexing into the City or connecting to certain
infrastructure located within a payback district to participate in the costs of prior
investments for the extension of sewer, water, or transportation infrastructure. These
include payback districts established to pay the City for the City’s investments or to pay a
private party for a portion of the private party’s oversizing of infrastructure. The City,
recognizing the extension of services by private parties may benefit others, may create a
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payback district requiring, upon certain conditions, the later payment by properties
connecting to sewer or water mains or roads, to the parties paying the costs of such
extensions of services. The City may establish criteria and policies for the creation of
payback districts.
Specifically, pursuant to Resolution 4359, the City Commission created the Durston Road
Improvement Annexation Area and the West Babcock Street Improvement Annexation
Area. At the time of annexation, for properties located within the Durston Road and West
Babcock Annexation Areas because the City is the beneficiary of the payback the City will
not require property owners to pay the financial contribution required by Section 5 of
Resolution 4359 at the time of annexation. However, pursuant to Section 6 of Resolution
4359, upon further development of any property within the Durston Road and West
Babcock Street Annexation Areas, and only for such time prior to the expiration of the
payback as stated in Sections 9 and 10 of Resolution 4359, financial contribution will be
due at the time of further development.
For payback districts where a party other than the City paid for the initial capital investment
and the City consented to create a payback district and attempt to require as a condition of
future development latecomers within a payback district pay the original land developer,
the City will not require property owners to contribute financially to the payback at
annexation but may do so upon further development of the property or connection to
services subject to the payback agreement.
If paybacks are required the City must address the methodology in the Area Plan.
10. City Not to Extend Sewer or Water Mains or Roads. Generally, unless otherwise noted in
an addendum to thisArea Plan, the City will not pay for the extension of sewer or water
mains or roads for the annexed area because the need for any such extensions will be
initiated and driven by private demand and therefore cannot be predicted by the City.
11. Private Demand Pays for New Facilities. Generally, unless otherwise noted in an
addendum to thisArea Plan, construction of any new water or sewer mains or roads will be
paid for by the private party desiring development or connection to existing sewer and/or
water facilities or roads. The City’s policy regarding the extension of water and sewer
mains being driven by private demand requires an owner of real property developing land
to pay or guarantee payment for part or all of the costs of extending capital facilities related
to public health and safety, including but not limited to public roads, sewer lines, water
supply lines, and storm drains. At the time of future development, facilities necessary to
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serve the property will be evaluated with the corresponding development application
pursuant to City requirements including the City’s Unified Development Code.
12. City to Assume Right of Way and Maintenance of Existing Roads. The City will assume all
maintenance responsibilities for public roads within an annexed area unless otherwise
requested by the property owners. Property owners associations who have historically
maintained roads prior to annexation may continue to maintain such roads; the City intends
to conduct its basic maintenance programs of snowplowing, grading, etc. to ensure such
roads are adequate for the intended uses. The Area Plan must set forth the scope of the
City’s maintenance including how weeds within the right-of-way will be controlled.
13. Prediction of Location of New Development. Although the City plans for the future location
of sewer and water mains, roads and other facilities, private parties seeking development
or connection to City services generally initiate and drive development or connection. As
such, the City cannot predict the specific timing or the exact location of new sewer and
water mains, roads and other facilities. Unless otherwise noted in an addendum to this Plan,
the City does not intend to extend new sewer or water mains, roads, or other facilities into
the areas to be annexed until such time as the demand of private development requires such
extension.
14. City May Extend Facilities to Annexed Areas. Although the construction of new roads,
sewer and water mains, and other facilities are generally initiated by private demand, in
some cases the same may be initiated by the City. In cases where the City’s adopted
transportation plan calls for extensions of arterial and collector streets, or the City’s
Wastewater Collection Facilities Plan or Water Facilities Plan calls for construction of
sewer and water mains, the City may extend such infrastructure and, at the time of future
development but not at the time of annexation, require property owners within the annexed
area to pay a local share of such extensions. The City may establish payback or latecomer
districts or other financing methods to implement the above.
15. Consent to Annexation Required for Continued Sewer and Water Service in Areas Not Yet
Annexed. Except for instances where the City must connect a property to sewer and/or
water service pursuant to law a regulatory requirement imposed upon the City or where the
City determines to connect a property for any reason, the City may, at any time, require a
property owner’s consent to annexation as a condition of continued sewer and/or water
service. When the City determines to require such consent from a particular property
owner, the City may notify the property owner, in writing, that the City seeks such consent,
and that if such consent is not given, the City will require that the property owner
discontinue receiving sewer and/or water service. If the property owner has not, within ten
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(10) days, made firm written arrangements to discontinue sewer and water service, then the
City shall be entitled to treat the property owner as having consented to annexation of the
property upon expiration of such 10-day period. If the property owner consents to
annexation (by failing to make arrangements to disconnect the service), then the City shall
be entitled to disregard any protest that such property owner makes to a proposed
annexation of his or her property.
16. City Services Available Upon Request. After annexation, parcels within annexed areas that
are not currently receiving City sewer/water may connect to City services at any time by
paying for the costs of connection to such services including any necessary extension of
sewer or water mains or other necessary infrastructure.
17. City Commission to Determine Zoning Designation. At the time of annexation, the City
will determine, based on an analysis of the City’s adopted growth policy, required legal
criteria, and public comment including comment from property owners within the annexed
area, the zoning that will be applicable to the annexed land. The City must follow a zone
map amendment process concurrent with the annexation process so that zoning is effective
simultaneously with annexation.
18. General Laws of City Applicable Upon Annexation. Upon annexation, all laws of the City
become immediately applicable to the annexed properties. This includes, but is not limited
to, laws related to the general health, safety, and general welfare as provided for in the
Bozeman Municipal Code and to development of real property. For example, this includes
laws related to land use development, animal control and licensing, building permits,
business licensing, weed control, noise, fireworks, discrimination in housing, employment,
and public accommodation, and solid waste collection, parking, etc. .
19. No Fees for Annexation Procedure. The City will not require property owners to pay
application processing fees or noticing fees for annexations initiated by the City.
20. Impact Fees Applicable. Upon annexation, the payment of impact fees pursuant to Chapter
2, Article 6, Division 9 of the Bozeman Municipal Code are applicable when property is
developed or connected to City water or sewer systems. Generally, impact fees are not due
at annexation but may become due after annexation if a property owner seeks to connect
to city sewer or water services or seek to obtain development approval including a permit
that will result in construction that will generate increased demand for services.
21. Fire Protection Services. If fire protection services in the area to be annexed have been
provided by a fire district organized under Title 7, chapter 33, part 21, the area plan must
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include provisions for coordinating the transfer of fire protection services to the City and
compensating the district, if necessary, for equipment and district expenses or describe the
municipality's plans to annex to the rural fire district pursuant to 7-33-4115, MCA.
22. City Not to Require Additional Right-of-Way. As required by law, the City will annex all
existing public right-of-way within or adjacent to a City initiated annexation. For City-
initiated annexations, the City may cannot require a landowner to provide additional right-
of-way for municipal, public, or private utilities. If additional right-of-way is required to
connect a property to City water or sewer services the property owner may be required to
dedicate such right-of-way to the City in consideration of the City providing connection to
the sewer or water service. TNotwithstanding the above, in other situations, the City may
request or negotiated with such a landowner for the dedication of such rights-of-way.
Nothing herein may be deemed a waiver of the City’s power of eminent domain. Any
existing County right-of-way or easements will become City right-of-way or easements
upon annexation.
23. Policies in Place at the Time of Future Development Control. Future development of
annexed lands after annexation must comply with the City’s regulations and policies in
effect for development of real property and the extension of services at the time of the
future development.
24. City to Provide Notice to Affected Governmental Agencies. Prior to initiating formal
annexation proceedings, the City will provide notice of proposed annexations to Gallatin
County and to any fire district or fire service area providing service to the land proposed
for annexation.
25. Benefit of City Services Available Upon Annexation. Upon annexation, the benefits
available to residents of the City take effect for newly annexed residents and businesses.
This includes eligibility to vote in City elections, access to recreation facilities at resident
rates, access to City solid waste and recycling collections, access to City police and fire
protection, etc.
26. City to Prepare Maps. Prior to initiating annexation, the City must prepare maps of the
area(s) proposed to be annexed and make the same available for public viewing.
27. Improvements by Sspecial Iimprovement Ddistrict (SID) at Rrequest of Aaffected
Pproperty Oowners. If property owners making up greater than 50% of a potential Special
Improvement District (SID) approach the City to construct new public infrastructure using
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a SID, the City will schedule the proposed improvements as allowed relative to other
projects in the City’s infrastructure capital improvements plan. Along with their request,
property owners must submit waivers of right to protest a SID for the proposed
improvements sufficient to meet the protest threshold for a SID.
28. All Property Shares in Taxation for Costs of City Services. All property within the City
shares in the tax burden for services funded through property taxes. Except for tax-exempt
property, all property within the City is subject to City imposed property taxes, which are
used to pay for general city facilities and services such as police and other criminal justice
functions, fire protection, parks and recreation, and general governmental services such as
library and business licensing. When property is annexed, it becomes subject to taxation in
the same manner as all other city properties and correspondingly shares in the costs of such
services and the benefits of such services.
29. All Property Shares in Assessments for Costs of City Services. All property within the City
shares in the assessment burden for services funded through assessments. Generally, all
property within the City is subject to certain assessments such as for arterial and collector
streets, street maintenance, tree maintenance, etc. Upon annexation, the property is subject
to City assessments in the same manner as other city property and correspondingly shares
in the costs of such services and, in return, shares in the benefits of the service.
30. Users of Utilities Pay for Services. Properties within the City connected to City sewer and
water facilities and using City solid waste collection pay for the operations of such facilities
and services pursuant to City adopted utility rates and impact fees.
31. Redevelopment or Connection to Services Requires Payment for Services. Where annexing
property does not directly connect to city sewer or water and the properties continue to use
on-site septic and/or wells, such property owners will not pay rates associated with use of
the City’s sewer and/or water facilities. However, upon redevelopment or connection to
the City’s utilities, property owners must pay impact fees (as applicable) and begin to pay
for the operational and capital costs of the services in the same manner as all other
properties in the City through the payment of water and sewer rates.
32. Area Plan as Addendum to Address Whether Extensions Are Necessary and Method of
Paying Costs. At the time of a City initiated annexation, the City must adopt an area plan
as an addendum to this Plan describing whether roads, sewer, or water must be extended
or improved and if extensions or improvements are necessary to serve the annexed
property, the manner in which such extensions or improvements will be paid for. The
addendum must indicate whether the costs of the extension of or improvements to facilities
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will be borne solely by the property owner(s) and to what extent, if any, the City will
contribute to the costs of the extensions. The City may determine extensions are necessary
and that the City will not participate financially in the extensions. The City may, however,
agree to participate financially using generally applicable funds, may create financing
systems for the property owners, or a combination of any financing methods available.
33. Contents of Area Plan as an Addendum to this Plan. Prior to initiating formal annexation
procedures, the City must prepare an area plan as an addendum to this Plan, which will
supplement this Plan if adopted, and make the area plan available to the public. The An
Aarea Pplan must include, at a minimum:
a. Map of the boundaries of the area proposed for annexation and which show existing
streets, major trunk water mains, sewer interceptors and outfalls and other utility
lines and the proposed extension of the same, if any will occur.
b. A description of the existing services to the area including how properties are
currently served for police and fire protection, solid waste collection, domestic
water supply, wastewater treatment, etc. If the County, a special district, or
improvement district currently provides services, the specific steps for the orderly
transfer of those services, developed in consultation with the governing body of the
entity providing the services.
c. A plan for the future extension of facilities and services to the area. If the extension
of or improvements to public infrastructure is not required, the Area Plan must
address how other City services will be provided to the annexed property. , if not
adequately addressed in the Plan.
d. A timetable for the extension of infrastructure if the City determines the extension
of infrastructure is necessary to provide adequate service to the area at the time of
annexation. The City may indicate extensions of infrastructure or capital
improvements are not necessary or not anticipated.
e. Whether the City anticipates requiring improvements to existing infrastructure at
the time of annexation to serve the property being annexed and if so, whether the
City intends to participate financially in the costs of design and construction of such
public infrastructure. If the City determines to not participate in the costs, whether
the City will make available financing for the property owners through a special
improvement or purpose district.
f. A statement whether landowners within the area proposed for annexation have
formally requested the creation of a special improvement or purpose district to fund
the extension of sewer or water mains, streets, or stormwater infrastructure or make
improvements to roads or other facilities.
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g. A statement regarding the capacity of the City’s water treatment and water
reclamation facilities to provide service to the area at the existing density if the area
is to be connected to those systems at the time of annexation. If the area to be
annexed has the potential for redevelopment, the area plan must address the manner
in which the city will require future development to participate in funding
improvements to the City’s water treatment and distribution system and its
wastewater collection and treatment facilities.
h. A statement regarding the ability of the City’s police and fire departments to
provide adequate service to the area.
i. A statement regarding how the collection of solid waste will occur.
i.j. A statement regarding whether the City’s current water rights are adequate to
provide water to serve the properties should the properties be connected to the
city’s potable water treatment and distribution systems. This statement may
recognize the City’s ongoing efforts related to water conservation and acquiring
new water rights and securing existing rights.
j.k. The conclusion of the City whether the area proposed for annexation meets the
requirements of Sections 7-2-4734 and 7-2-4735, MCA.
34. Affordable Housing at the Time of Annexation. The City’s affordable housing program,
including its financial tools such as grants, are available to all city property including newly
annexed property.
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