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HomeMy WebLinkAbout11-16-21 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.FYI E.Commission Disclosures F.Consent F.1 Accounts Payable Claims Review and Approval (Stewart) F.2 Authorize the Mayor to Sign a Findings of Fact and Order for the Annie Subdivision Phase 4 Preliminary Plat, Application 21201(Miller) THE CITY COMMISSION OF BOZEMAN, MONTANA REGULAR MEETING AGENDA Tuesday, November 16, 2021 This meeting will be held using Webex, an online videoconferencing system. You can join this meeting: Via Webex: https://cityofbozeman.webex.com/cityofbozeman/onstage/g.php?MTID=eda7f3ce88f53a2738e4309d949deede1 Click the Register link, enter the required information, and click submit. Click Join Now to enter the meeting. Via Phone: This is for listening only if you cannot watch the stream or channel 190 United States Toll +1-650-479-3208 Access code: 2553 448 7263 If you are interested in commenting in writing on items on the agenda please send an email to agenda@bozeman.net prior to 12:00pm on the day of the meeting. You may also comment by visiting the Commission's comment page . You can also comment by joining the Webex meeting. If you do join the Webex meeting, we ask you please be patient in helping us work through this online meeting. If you are not able to join the Webex meeting and would like to provide oral comment you may send a request to agenda@bozeman.net with your phone number, the item(s) you wish to comment on, and the City Clerk will call you during the meeting to provide comment. You may also send the above information via text to 406-224-3967. As always, the meeting will be streamed through the Commission's video page and available in the City on cable channel 190. 1 F.3 Authorize the City Manager Sign a Montana Forest Action Plan Grant Agreement with the Montana Department of Natural Resources and Conservation for the Bozeman Municipal Watershed Cross-Boundary Forest Collaboration Project to Provide Funding for Phase 3 of the Sourdough Fuels Reduction Project(Heaston) F.4 Authorize the City Manager Sign a Forest Health Program Subaward Agreement with the Montana Department of Natural Resources and Conservation for the Sourdough Creek Fuels Reduction Project Campaign(Heaston) F.5 Authorize the City Manager to Sign a Master Services Purchase Agreement and Statement of Work with Upstate Wholesale Supply Company D/B/A “Briteâ€​, to Purchase a Fully Integrated Body-Worn Camera, Interview Room Video, Patrol Car Video, and Mobile Data Terminal System, Including Hardware, Software, Cloud Storage and Warranty.(Klumb) F.6 Authorize the City Manager to Sign a Professional Services Agreement with Advantage Spraying Services Inc. to Provide Snow Removal Services for the City of Bozeman Parks and Trails District(Kline ) F.7 Authorize the City Manager to Sign a Professional Services Agreement with Clean Slate Group LLC. to Provide Snow Removal Services for the City of Bozeman Parks and Trails District(Kline ) F.8 Authorize the City Manager to Sign a Task Order 7 of the Stormwater Design Professional Services Master Task Order Agreement with DOWL, LLC for the South Tracy Stormwater Improvements(Oliver) F.9 Resolution 5356 Authorizing Prime Change Order 14 with Langlas and Associates for Construction of the Bozeman Public Safety Center(Winn) F.10 Resolution 5358 Appointing the Billings City Attorney as a Special Prosecutor in the Matter of KB(Saverud) F.11 Ordinance 2062 Final Adoption to Revise Language for Clarity and Consistent Application of First Floor Required Height Standards in Five Mixed-Use and Non-Residential Zoning Districts, and Revise Paragraph A.1 of Subchapter 4b of the Bozeman Guidelines for Historic Preservation and the Neighborhood Conservation Overlay District. No Changes to Maximum Height Dimensional Standards are Included with this Amendment. Revise Affected Sections to Implement the City Commission Directed Revisions(Miller) F.12 Ordinance 2092 Final Adoption Amending Bozeman Municipal Code Section 2.03.540 governing Gifts, Gratuities, and Favors(Giuttari) G.Public Comment This is the time to comment on any matter falling within the scope of the Bozeman City Commission. There will also be time in conjunction with each agenda item for public comment relating to that item but you may only speak once. Please note, the City Commission cannot take action on any item which does not appear on the agenda. All persons addressing the City Commission shall speak in a civil and courteous manner and members of the audience shall be respectful of others. Please state your name and address in an audible tone of voice for the record 2 and limit your comments to three minutes. H.Special Presentation H.1 Fifth Quarterly Report on Bozeman as an Inclusive City (Mihelich ) I.Action Items I.1 Ordinance 2091 Provisional Adoption to Update to Accessory Dwelling Unit (ADU) Standards  to Revise the Standards for Ground Floor ADUs in All Applicable Zoning Districts by Requiring that Ground Floor ADUs Must Either Have Alley Access or a Pedestrian Connection to a Sidewalk or the Adjacent Right-of-way; This amendment Will Also Revise the Standards for all ADUs by Removing the Requirement to Provide Minimum Parking(Miller) I.2 Ordinance 2089 Provisional Adoption Amending Chapter 38 Unified Development Code to for Subdivision Review Procedures And Associated Development Standards Update Text Amendment to Conform to Amended State Law and Improve Processes,  Application 21338(Saunders) J.Appointments J.1 Appointments to Citizen Advisory Boards (Maas) K.FYI / Discussion L.Adjournment City Commission meetings are open to all members of the public. If you have a disability that requires assistance, please contact our ADA Coordinator, Mike Gray, at 582-3232 (TDD 582-2301). Commission meetings are televised live on cable channel 190 and streamed live at www.bozeman.net. City Commission meetings are re-aired on cable Channel 190 Wednesday night at 4 p.m., Thursday at noon, Friday at 10 a.m. and Sunday at 2 p.m. In order for the City Commission to receive all relevant public comment in time for this City Commission meeting, please submit via www.bozeman.net or by emailing agenda@bozeman.net no later than 12:00 PM on the day of the meeting. Public comment may be made in person at the meeting as well. 3 Memorandum REPORT TO:City Commission FROM:Levi Stewart, Interim Accounting Technician Kristin Donald, Finance Director SUBJECT:Accounts Payable Claims Review and Approval MEETING DATE:November 16, 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:None 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: November 4, 2021 4 Memorandum REPORT TO:City Commission FROM:Jacob Miller, Associate Planner Martin Matsen, Director of Community Development SUBJECT:Authorize the Mayor to Sign a Findings of Fact and Order for the Annie Subdivision Phase 4 Preliminary Plat, Application 21201 MEETING DATE:November 16, 2021 AGENDA ITEM TYPE:Community Development - Quasi-Judicial RECOMMENDATION:Authorize the Mayor to Sign a Findings of Fact and Order for the Annie Subdivision Phase 4 Preliminary Plat, Application 21201 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 Department of Community Development received a Preliminary Plat Application on June 2, 2021 requesting to subdivide 3.241 acres to create 20 townhouse lots, 2 multi-household lots, 1 single-household lot and 1 open space lots. The property will have access from the continuation of Rogers Way onto N. 25th Ave. The property is zoned R-3. After the City Commission reviewed and considered the application materials, staff report, advisory review board recommendations, public comment, and all the information presented, they made individual findings and voted 5:0 to approve the motion to approve the application. The Commission agreed that the application met the criteria established by the Bozeman Municipal Code. Therefore, the application was approved with conditions and applicable code provisions outlined in these findings. The City Commission’s review, deliberation and findings may be found under the linked minutes and recorded video of the meetings located at this web paged filed under October 5, 2021: https://www.bozeman.net/government/city- commission/city-commission-video UNRESOLVED ISSUES:None. ALTERNATIVES:1. Approve the application with the recommended conditions; 2. Approve the application with modifications to the recommended conditions; 3. Deny the application based on the Commission’s findings of non-compliance with the applicable criteria contained within the staff report; or 4. Continue the public hearing on the application, with specific direction to staff or the 5 subdivider to supply additional information or to address specific items. FISCAL EFFECTS:Fiscal impacts are undetermined at this time, but will include increased property tax revenues from new development, along with increased costs to deliver municipal services to the property. Impact fees will be collected at the time of issuance of building permits for individual developments along with City sewer and water connection fees. Attachments: 21201 Annie Subdivision Ph. 4 PP FOF.pdf PlatSheet1of3_07262021.pdf PlatSheet2of3_07262021.pdf PlatSheet3of3_07262021.pdf Report compiled on: November 2, 2021 6 21201 Findings of Fact for Annie Ph. 4 Major Subdivision Page 1 of 23 Bozeman City Commission Findings of Fact and Order for the Annie Ph. 4 Major Subdivision Preliminary Plat 21201 Public Hearing Date: Planning Board meeting was held Monday, September 20, 2021 at 6:00 pm. Link: https://bozeman.granicus.com/player/clip/152?view_id=1&redirect=true City Commission meeting was held Tuesday, October 5, 2021 at 6:00 pm via WebEx. Link: https://bozeman.granicus.com/player/clip/158?view_id=1&redirect=true Project Description: A major preliminary plat subdivision application of 3.241 acres that includes 16 townhouse lots, 2 multi-household lots, 1 single-household lot, and 1 open space lot. Project Location: The property is legally described as Lot 1 of Annie Subdivision Ph. 3C, Section 2, Township 2S, Range 5E. Recommendation: The application conforms to standards and is sufficient for approval with conditions and code provisions. Recommended Motion: Having reviewed and considered the application materials, public comment, and all the information presented, I hereby adopt the findings presented in the staff report for application 21201 and move to approve the subdivision with conditions and subject to all applicable code provisions. Report Date: November 2, 2021 Staff Contact: Jacob Miller, Associate Planner Karl Johnson, Project Engineer Agenda Item Type: Action (Quasi-judicial) EXECUTIVE SUMMARY Unresolved Issues. There are no unresolved issues with this application. Project Summary This report is based on the application materials submitted and any public comment received to date. The Department of Community Development received a Preliminary Plat Application on June 2, 2021 requesting to subdivide 3.241 acres to create 20 townhouse lots, 2 multi-household lots, 1 single-household lot and 1 open space lot. The site had an existing single-household lot and shop 7 21201 Finding of Fact for Annie Ph. 4 Major Subdivision Page 2 of 23 that have been permitted to be demolished. The property will have access from the continuation of Rogers Way onto N. 25th Ave. The property is zoned R-3. On September 2, 2021 the Development Review Committee (DRC) found the application adequate for continued review and recommends the conditions and code provisions identified in this report. The subdivider did not request any subdivision or zoning variances with this application. The City did not receive any written public comment on the application as of the writing of this report. The final decision for a Major Subdivision Preliminary Plat with less than 50 lots must be made within 60 working days of the date it was deemed adequate. The Development Review Committee (DRC) deemed the application adequate for continued review on September 2, 2021. Pursuant to BMC 38.240.130 the city commission shall approve, conditionally approve or deny the subdivision application by November 10, 2021, unless there is a written extension from the developer, not to exceed one year. The public hearing date for the City Commission meeting was held Tuesday, October 5, 2021 at 6:00 pm via WebEx. The City Commission met to consider the application for a preliminary plat for the subdivision of 3.241 acres into 20 lots, including 16 townhouse lots, 2 multi-household lots, 1 single- household lot, and 1 open space lot. There were no public comments at the hearing. After the City Commission reviewed and considered the application materials, staff report, advisory review board recommendations, public comment, and all the information presented, they made individual findings and voted 5:0 to approve the motion to approve the application. The Commission agreed that the application met the criteria established by the Bozeman Municipal Code. Therefore, the application was approved with conditions and applicable code provisions outlined in these findings. The City Commission’s review, deliberation and findings may be found under the linked minutes and recorded video of the meetings located at this web paged filed under October 5, 2021: https://www.bozeman.net/government/city-commission/city-commission-video Alternatives 1. Approve the application with the recommended conditions; 2. Approve the application with modifications to the recommended conditions; 3. Deny the application based on the Commission’s findings of non-compliance with the applicable criteria contained within the staff report; or 8 21201 Finding of Fact for Annie Ph. 4 Major Subdivision Page 3 of 23 4. Continue the public hearing on the application, with specific direction to staff or the subdivider to supply additional information or to address specific items. TABLE OF CONTENTS EXECUTIVE SUMMARY ............................................................................................................ 1 Unresolved Issues. .............................................................................................................. 1 Project Summary ................................................................................................................. 1 Alternatives ......................................................................................................................... 2 SECTION 1 – MAP SERIES .......................................................................................................... 5 SECTION 2 – REQUESTED VARIANCES ................................................................................. 9 SECTION 3 – RECOMMENDED CONDITIONS OF APPROVAL ............................................ 9 SECTION 4 – CODE REQUIREMENTS REQUIRING PLAT CORRECTIONS ....................... 9 SECTION 5 – RECOMMENDATION AND FUTURE ACTIONS ............................................ 12 SECTION 6 – STAFF ANALYSIS and findings ......................................................................... 12 Applicable Subdivision Review Criteria, Section 38.240.130.A.5.e, BMC. .................... 13 Primary Subdivision Review Criteria, Section 76-3-608 ................................................. 15 Preliminary Plat Supplements ........................................................................................... 16 APPENDIX A – PROJECT SITE ZONING AND GROWTH POLICY..................................... 19 APPENDIX B – DETAILED PROJECT DESCRIPTION .......................................................... 22 9 21201 Finding of Fact for Annie Ph. 4 Major Subdivision Page 4 of 23 APPENDIX C – NOTICING AND PUBLIC COMMENT ......................................................... 23 APPENDIX D – OWNER INFORMATION AND REVIEWING STAFF ................................. 23 FISCAL EFFECTS ....................................................................................................................... 23 ATTACHMENTS ......................................................................................................................... 23 10 21201 Finding of Fact for Annie Ph. 4 Major Subdivision Page 5 of 23 SECTION 1 – MAP SERIES Exhibit 1 – Zoning 11 21201 Findings of Fact for Annie Ph. 4 Major Subdivision Page 6 of 23 Exhibit 2 – Community Plan 2020 Future Land Use 12 21201 Findings of Fact for Annie Ph. 4 Major Subdivision Page 7 of 23 Exhibit 3 – Current Land Use 13 21201 Finding of Fact for Annie Ph. 4 Major Subdivision Page 8 of 23 Exhibit 4 – Preliminary Plat Exhibit 5 – Landscaping Plan 14 21201 Findings of Fact for Annie Ph. 4 Major Subdivision Page 9 of 23 SECTION 2 – REQUESTED VARIANCES The subdivider did not request any subdivision or zoning variances with this preliminary plat application. SECTION 3 – RECOMMENDED CONDITIONS OF APPROVAL Please note that these conditions are in addition to any required code provisions identified in this report. These conditions are specific to this project. Recommended Conditions of Approval: 1. The applicant is advised that unmet code provisions, or code provisions that are not specifically listed as conditions of approval, does not, in any way, create a waiver or other relaxation of the lawful requirements of the Bozeman Municipal Code or state law. 2. The final plat must conform to all requirements of the Bozeman Municipal Code and the Uniform Standards for Subdivision Plats (Uniform Standards for Certificates of Survey and Subdivision Plats (24.183.1104 ARM) and shall be accompanied by all required documents, including certification from the City Engineer that as-built drawings for public improvements were received, a platting certificate, and all required and corrected certificates. The Final Plat application shall include three (3) signed reproducible copies on a 3 mil or heavier stable base polyester film (or equivalent). The Gallatin County Clerk & Recorder’s office has elected to continue the existing medium requirements of 2 mylars with a 1½” binding margin on one side for both plats and COS’s. The Clerk and Recorder will file the new Conditions of Approval sheet as the last same sized mylar sheet in the plat set. 3. The watercourse setback must be removed from the plat prior to final plat approval. 4. The existing sewer septic system(s) must properly abandoned prior to final plat approval. 5. The applicant must complete the installation of the Rapid Rectangular Flashing Beacon (RRFB) at the intersection of N. 25th Ave. and Durston Rd. as called for in the Transportation Master Plan, prior to approval of Final Plat. 6. The applicant must provide and file with the County Clerk and Recorder's office executed Waivers of Right to Protest Creation of Special Improvement Districts (SID’s) or special districts. The provided draft SID waiver is acceptable. The applicant must provide a copy of the filed SID waiver prior to Final Plat approval. 7. Due to the known high groundwater conditions in the area no basements will be permitted with future development of the site. No crawl spaces will be permitted with future development of the site, unless a professional engineer registered in the State of Montana certifies that the lowest point of any proposed structure is located above the seasonal high groundwater level and provide supporting groundwater data prior to the release of building permit. In addition, sump pumps are not allowed to be connected to the sanitary sewer 15 21201 Finding of Fact for Annie Ph. 4 Major Subdivision Page 10 of 23 system or the drainage system unless capacity is designed into the drainage system to accept the pumped water. Water from sump pumps may not be discharged onto streets, such as into the curb and gutters where they may create a safety hazard for pedestrians and vehicles. 8. The responsibility of maintenance for the stormwater facilities, stormwater open space lots, pedestrian open space lots and street frontage landscaping for the perimeter streets must be that of the property owners’ association. Maintenance responsibility must include, all vegetative ground cover, boulevard trees and irrigation systems in the public right-of-way boulevard strips along all external perimeter development streets. The property owners’ association must be responsible for levying annual assessments to provide for the maintenance, repair, and upkeep of all perimeter street frontage landscaping and stormwater facilities and all open space landscaping. 9. Remove General Notes 2 and 3 on the Conditions of Approval sheet. The utility easement language is already present in the legal description and a separate easement document will be required to clarify location and size of the easement. A separate public access easement must be provided to grant public access over the open space lot. SECTION 4 – CODE REQUIREMENTS 1. Sec. 38.220.070. - Final plat. a. The final plat must conform to all requirements of the Bozeman Municipal Code and the Uniform Standards for Monumentation, Certificates of Survey, and Final Subdivision Plats (24.183.1101 ARM, 24.183.1104 ARM, 24.183.1107 ARM) and must be accompanied by all required documents, including certification from the City Engineer that record drawings for public improvements were received, a platting certificate, and all required and corrected certificates. b. A letter from the city engineer certifying that the following documents have been received: i. As-built drawings, i.e., copies of final plans, profiles, grades and specifications for public improvements, including a complete grading and drainage plan. c. Noxious weed MOU. Prior to final plat approval, a memorandum of understanding must be entered into by the weed control district and the developer. The memorandum of understanding must be signed by the district and the developer prior to final plat approval, and a copy of the signed document must be submitted to the community development department with the application for final plat approval. d. Irrigation system as-builts. The developer must provide irrigation system as-builts, for all irrigation installed in public rights-of-way and/or land used to meet parkland dedication requirements, once the irrigation system is installed. The as-builts must include the exact locations and type of lines, including accurate depth, water source, heads, electric valves, quick couplers, drains and control box. 16 21201 Finding of Fact for Annie Ph. 4 Major Subdivision Page 11 of 23 e. A conditions of approval sheet addressing the criteria listed in this section must be provided with the final plat as set forth in 24.183.1107 ARM and must: i. Be entitled "Conditions of Approval of Annie Phase 4 Subdivision with a title block including the quarter-section, section, township, range, principal meridian, county, and, if applicable, city or town in which the subdivision is located. ii. Contain any text and/or graphic representations of requirements by the governing body for final plat approval including, but not limited to, setbacks from streams or riparian areas, floodplain boundaries, no-build areas, building envelopes, or the use of particular parcels. iii. Include a certification statement by the landowner that the text and/or graphics shown on the conditions of approval sheet(s) represent(s) requirements by the governing body for final plat approval and that all conditions of subdivision application have been satisfied. iv. Include a notation stating that the information shown is current as of the date of the certification, and that changes to any land-use restrictions or encumbrances may be made by amendments to covenants, zoning regulations, easements, or other documents as allowed by law or by local regulations. v. Include a notation stating that buyers of property should ensure that they have obtained and reviewed all sheets of the plat and all documents recorded and filed in conjunction with the plat, and that buyers of property are strongly encouraged to contact the local community development department and become informed of any limitations on the use of the property prior to closing. vi. List all associated recorded documents and recorded document numbers. vii. List easements, including easements for agricultural water user facilities. 2. Sec. 38.270.030 - Completion of Improvements. a. If it is the developer’s intent to file the plat prior to the completion of all required improvements, an Improvements Agreement shall be entered into with the City of Bozeman guaranteeing the completion of all improvements in accordance with the preliminary plat submittal information and conditions of approval. If the final plat is filed prior to the installation of all improvements, the developer shall supply the City of Bozeman with an acceptable method of security equal to 150 percent of the cost of the remaining improvements. 3. Sec. 38.240.450 - Certificate of completion of non-public improvements. a. Certificate must specifically list all installed improvements and financially guaranteed improvements. 4. Sec. 38.410.060. - Easements. a. All Easements indicated below must be provided on city standard easements templates. Drafts must be prepared for review and approval by the city. Signed hard copies of the easements must be submitted to the City prior final plat 17 21201 Finding of Fact for Annie Ph. 4 Major Subdivision Page 12 of 23 approval. The applicant may contact the review engineer to receive standard templates. b. The applicant must provide a ten foot utility easement (power, gas, communication, etc.) along the developments property frontage. c. The applicant must provide a storm drainage easement along the proposed storm sewer main and detention facility. d. The final plat must provide all necessary utility easements and they must be described, dimensioned and shown on each subdivision block of the final plat in their true and correct location. 5. Sec. 38.410.130 - Water Adequacy. a. Subject to subsections B and C, prior to final approval by the review authority of development occurring under this chapter or chapter 10, the applicant must offset the entire estimated increase in annual municipal water demand attributable to the development pursuant to subsection D. i. Payment-in-lieu of water rights must be made for the townhouse lots prior to final plat approval. 6. Sec. 38.410.130.C.2 - Water Adequacy. a. Compliance with this section is deferred for the following developments until the occurrence of future development if the applicant records a notice of restriction on future development in a form acceptable to the review authority with the Gallatin County Clerk and Recorder: Individual lots of a subdivision final plat planned for future multiple-household development. i. A note must be included in the conditions of approval sheet indicating lots which will require future payment of cash-in-lieu of water rights upon future development. SECTION 5 – RECOMMENDATION AND FUTURE ACTIONS The Development Review Committee (DRC) determined the application was adequate for continued review and recommended approval with conditions on September 1, 2021. Planning Board meeting was held Monday, September 20, 2021 at 6:00 pm. Link: https://bozeman.granicus.com/player/clip/152?view_id=1&redirect=true The City Commission’s review, deliberation and findings may be found under the linked minutes and recorded video of the meetings located at this web paged filed under October 5, 2021. https://www.bozeman.net/government/city-commission/city-commission-video 18 21201 Finding of Fact for Annie Ph. 4 Major Subdivision Page 13 of 23 SECTION 6 – STAFF ANALYSIS AND FINDINGS Analysis and resulting recommendations are based on the entirety of the application materials, municipal codes, standards, plans, public comment, and all other materials available during the review period. Collectively this information is the record of the review. The analysis in this report is a summary of the completed review. Applicable Subdivision Review Criteria, Section 38.240.130.A.5.e, BMC. In considering applications for subdivision approval under this title, the advisory boards and City Commission shall consider the following: 1) Compliance with the survey requirements of Part 4 of the Montana Subdivision and Platting Act The preliminary plat was prepared in accordance with the surveying and monumentation requirements of the Montana Subdivision and Platting Act by a Professional Engineer registered in the State of Montana. As noted in the code requirements, the final plat must comply with State statute, Administrative Rules of Montana, and the Bozeman Municipal Code. 2) Compliance with the local subdivision regulations provided for in Part 5 of the Montana Subdivision and Platting Act The final plat must comply with the standards identified and referenced in the Bozeman Municipal Code. The subdivider is advised that unmet code provisions, or code provisions not specifically listed as a condition of approval, do not, in any way, create a waiver or other relaxation of the lawful requirements of the Bozeman Municipal Code or State law. Sections 3 and 4 of this report identify conditions and code provisions necessary to meet all municipal standards. The listed code requirements address necessary documentation and compliance with standards. Therefore, upon satisfaction of all conditions and code corrections the subdivision will comply with the subdivision regulations. 3) Compliance with the local subdivision review procedures provided for in Part 6 of the Montana Subdivision and Platting Act The Bozeman Planning Board and City Commission public hearings were properly noticed in accordance with the Bozeman Municipal Code. Based on the recommendation of the Development Review Committee (DRC) and other applicable review agencies, as well as any public testimony received on the matter, the City Commission will make the final decision on the subdivider’s request. The Department of Community Development received a preliminary plat application on June 2, 2021. The DRC reviewed the preliminary plat application and determined the submittal did not contained detailed, supporting information that was sufficient to allow for the continued review of the proposed subdivision on July 7, 2021. 19 21201 Finding of Fact for Annie Ph. 4 Major Subdivision Page 14 of 23 A revised application was received on August 4, 2021. The DRC determined the application was adequate for continued review on September 1, 2021 and recommended conditions of approval and code corrections for the staff report. The City scheduled public notice for this application for publication in the legal advertisements section of the Bozeman Daily Chronicle on Friday, September 3, 2021 for postings on Sundays, September 5 and September 12, 2021. The applicant posted public notice on the subject property on September 5, 2021. The applicant sent public notice to physically adjacent landowners via certified mail, and to all other landowners of record within 200-feet of the subject property via first class mail, on September 5, 2021. Four written public comments have been received as of the writing of this report. Three of the public comments expressed concern over the subdivision and the increased traffic at the intersection of North 25th Avenue and Durston Road and the safety issues this causes for school children and pedestrians crossing Durston Road. This issue will largely be resolved with the installation of a Rectangular Rapid Flashing Beacon at the intersection. One public comment supported the additional density and housing diversity that the subdivision will provide On September 16, 2021 this major subdivision staff report was completed and forwarded with a recommendation of conditional approval for consideration to the Planning Board. 4) Compliance with Chapter 38, BMC and other relevant regulations Community Development staff and the DRC reviewed the preliminary plat against all applicable regulations and the application complies with the BMC and all other relevant regulations with conditions and code corrections. This report includes Conditions of Approval and required code provisions as recommended by the DRC for consideration by the City Commission to complete the application processing for final plat approval. All municipal water and sewer facilities will conform to the regulations outlined by the Montana Department of Environmental Quality and the requirements of the Design Standards and Specifications Policy and the City of Bozeman Modifications to Montana Public Works Standard Specifications. 5) The provision of easements to and within the subdivision for the location and installation of any necessary utilities The final plat will provide and depict all necessary utilities and required utility easements. Code requirement No. 4, requires that all easements, existing and proposed, must be accurately depicted and addressed on the final plat and in the final plat application. Public utilities are located within dedicated street right of ways. 6) The provision of legal and physical access to each parcel within the subdivision and the notation of that access on the applicable plat and any instrument transferring the parcel The final plat will provide legal and physical access to each parcel within the subdivision. All of the proposed lots will have frontage on public streets constructed to City standards with lot frontage meeting minimum standards shown on the preliminary plat. 20 21201 Finding of Fact for Annie Ph. 4 Major Subdivision Page 15 of 23 Primary Subdivision Review Criteria, Section 76-3-608 1) The effect on agriculture This subdivision will not impact agriculture. The City of Bozeman Community Plan designates the subject property as Urban Neighborhood designation which allows for the proposed uses. The lot is currently vacated residential land with no significant agricultural uses. 2) The effect on Agricultural water user facilities This subdivision will not impact agricultural water user facilities. No irrigation facilities are present on the lots. No water body alterations are proposed. 3) The effect on Local services Water/Sewer – The existing water and sewer mains located in Roger’s Way will be extended with this development and will provide adequate service to all newly constructed residential uses. Utilities – Utilities to serve the residential lots will be constructed with phase I and will connect to the main extensions provided with this development. Standard 10-foot front yard utility easements have been provided across the lots. Streets – This project will construct the continuation and connection of Roger’s Way and Daffodil Street through the site, completing the street grid in the area and providing a higher level of connectivity for the existing neighborhoods. Per City Pre-Application comments, the applicant will construct a Rapid Rectangular Flashing Beacon (RRFB) at the intersection of N. 25th and Durston Road. The existing curb cuts along Durston will be abandoned as part of the project. The applicant has also requested to construct the Roger’s Way at a grade of 0.43% which is less than the minimum allowable of 0.5%. This has been reviewed by the Engineering Division and found to be acceptable. Police/Fire – The City’s Police and Fire emergency response area includes the subject property. This subdivision does not impact the City’ ability to provide emergency services to the property. Stormwater – Stormwater is proposed to be managed on-site with this development. Two drainage basins are proposed due to the grading of Roger’s Way. A detention pond located in the open space lot will manage stormwater from the larger (east) basin. Stormwater will convey to the pond via curbflow and an underground pipe located within a stormwater drainage easement between lots 9 and 10. The smaller (west) basin will allow infiltration through a low-impact stormwater design constructed from cobble infiltration galleries adjacent to the lot. The applicant has requested that the stormwater drain pipe that crosses Roger’s Way near the north-center portion of the site be allowed to be buried to a minimum depth of 12 inches, as opposed to the standard of 2 feet. This has been reviewed by the Engineering Division and found to be acceptable. Parkland – Cash-in-lieu of parkland will be provided with this development, as determined by the Parks Department. 21 21201 Finding of Fact for Annie Ph. 4 Major Subdivision Page 16 of 23 4) The effect on the Natural environment No significant physical or topographical features have been identified, (e.g., outcroppings, geological formations, steep slopes), on the subject property. Provisions will be made to address the control of noxious weeds and maintenance of the property and will be further addressed by inclusion in the existing protective covenants and compliance with the recommended conditions of approval. 5) The effect on Wildlife and wildlife habitat The subdivision will not significantly impact wildlife and wildlife habitat. The subdivision is zoned for residential development and is surrounded by adjacent residentially zoned properties that are fully developed. There are no known endangered or significant wildlife populations on the property. 6) The effect on Public health and safety With the recommended Conditions of Approval and required plat corrections, the subdivision will not significantly impact public health and safety. The intent of the regulations in Chapter 38 of the Bozeman Municipal Code is to protect the public health, safety and general welfare. The DRC reviewed the subsequent minor subdivision preliminary plat and determined that it is in compliance with the title. This staff report notes all other conditions deemed necessary to ensure compliance. In addition, all subdivisions must be reviewed against the criteria listed in 76-3- 608.3.b-d, Montana Code Annotated (MCA). As a result, the Department of Community Development reviewed this application against the listed criteria and further provides the following summary for submittal materials and requirements. This report includes findings to justify the recommended site-specific Conditions of Approval for reasonable mitigation of impacts from the proposed minor subdivision. Preliminary Plat Supplements The Development Review Committee (DRC) completed a subdivision pre-application plan review on February 10, 2021 and no variances were requested. The applicant requested and was granted waivers for Wildlife, Historical Features, Agriculture, and Neighborhood Center Plan. Staff offers the following summary comments on the supplemental information required with Article 38.220.060, BMC. 38.220.060.A.1 – Surface water This subdivision will not significantly impact surface water. An existing stream runs near the eastern boundary of the property and will be protected by a 50’ watercourse setback. 38.220.060.A.2 - Floodplains No mapped 100-year floodplains impact the subject property. A floodplain was mapped with Phase 3C of the subdivision and is well within the 50’ watercourse setback. No construction within or near the floodplain will occur. 22 21201 Finding of Fact for Annie Ph. 4 Major Subdivision Page 17 of 23 38.220.060.A.3 - Groundwater A geotechnical site evaluation was completed in March 2021 and included seven test pits, the majority of which remained dry, indicating there are no issues due to deep groundwater, however a condition of approval will restrict the construction of basements. 38.220.060.A.4 - Geology, Soils and Slopes This subdivision will not significantly impact the geology, soils or slopes. No significant geological features or slopes exist on the site. 38.220.060.A.5 - Vegetation This subdivision will not significantly impact vegetation. No critical plant communities identified on site. 38.220.060.A.6 - Wildlife This subdivision will not significantly impact wildlife. A waiver for wildlife was granted during the Pre-Application process. 38.220.060.A.7 - Historical Features This subdivision will not significantly impact historic features. A waiver for historical features was granted during the Pre-Application process. 38.220.060.A.8 - Agriculture This subdivision will not impact agriculture. A waiver for agriculture was granted during the Pre-Application process. 38.220.060.A.89 - Agricultural Water User Facilities This subdivision will not impact agricultural water user facilities. No irrigation facilities are present on the lots. No water body alterations are proposed. 38.220.060.A.10 - Water and Sewer The subdivision will not significantly impact city water and sewer infrastructure. Water and sewer improvements will be designed to meet City of Bozeman Standards and State Department of Environmental Quality Standards and Regulations. 38.220.060.A.111 - Stormwater Management The subdivision will not significantly impact stormwater infrastructure. See discussion above under primary review criteria. 38.220.060.A.12 - Streets, Roads and Alleys The subdivision will not significantly impact the City’s street infrastructure and will provide adequate improvements to support the development and the existing neighborhoods by completing the street grid in the area. The extension of Roger’s Way to N. 25th will give this proposed development quick access to Durston Rd., a minor arterial classified street. A traffic impact study was waived by Engineering upon reviewing a trip generation analysis provided by 23 21201 Finding of Fact for Annie Ph. 4 Major Subdivision Page 18 of 23 the applicant. The peak hour trips for the proposed development are shown to be that there would be 4 trips entering the development and 12 trips exiting during AM peak-hours, and 12 trips entering and 8 trips exiting during peak-hour trips. This proposed subdivision will include City standard sidewalks along Roger’s Way, increasing the pedestrian connectivity in the area as whole. 38.220.060.A.13 - Utilities This subdivision will not significantly impact existing utilities. See discussion above under primary review criteria. The applicant will extend existing public water/wastewater mains through Roger’s Way to support the proposed development. The applicant has received confirmation of future service from Northwestern Energy and internet providers. 38.220.060.A.14 - Educational Facilities This subdivision will not significantly impact educational facilities. The applicant has contacted the Director of Facilities for the Bozeman Public Schools who has indicated that the development will not significantly impact enrollment. 38.220.060.A.15 - Land Use The subdivision will not significantly impact land use. The proposed subdivision will create 16 townhouse lots, 2 multi-household lots, one single-household lot, and 1 open space lots. 38.220.060.A.16 - Parks and Recreation Facilities This proposed subdivision will be required to provide cash-in-lieu of parkland as determined by the Parks Department. Because this is an infill development of only 3.24 acres, there is not adequate land within the subject property to accommodate a new park. There are several parks in the area that are within a 10 minute walk from the proposed development; Harvest Creek Park which is part of a large north-south trail system that has connectivity throughout the west side of Bozeman, and Kirk Park which features baseball diamonds, large open fields and a skate park. 38.220.060.A.17 - Neighborhood Center Plan The subdivision was granted a waiver neighborhood center plan during Pre-Application review for the project because this project will not be providing a neighborhood center due to the relatively small size of the development area. 38.220.060.A.18 - Lighting Plan This subdivision will not significantly impact lighting. The applicant conducted an evaluation of the existing lighting along Durston Rd. which was reviewed by Engineering and determined that no additional lighting is required. 38.220.060.A.19 - Miscellaneous The proposed subdivision is not located within 200 feet of any public land access or within a delineated Wildland Urban Interface area. No health or safety hazards on-site or off-site will be created with this development. 24 21201 Finding of Fact for Annie Ph. 4 Major Subdivision Page 19 of 23 38.220.060.A.20 - Affordable Housing The City’s Legal Division has advised that due to the state’s adoption of HB 259 related to inclusionary zoning, the City will not enforce the requirements for affordable housing cash in lieu as originally required during the preliminary plat and as reflected in the findings of fact. The affordable housing plan and plat notes related to affordable housing and cash in lieu have been removed from this application or will be eliminated prior to final plat. SECTION 7 – FINDINGS OF FACT, ORDER AND APPEAL PROVISIONS A. PURSUANT to Chapter 38, Article 2, BMC, and other applicable sections of Chapter 38, BMC, public notice was given, opportunity to submit comment was provided to affected parties, and a review of the preliminary plat described in these findings of fact was conducted. B. The purposes of the preliminary plat review were to consider all relevant evidence relating to public health, safety, welfare, and the other purposes of Chapter 38, BMC; to evaluate the proposal against the criteria and standards of Chapter 38 BMC, BMC; and to determine whether the plat should be approved, conditionally approved, or denied. C. The matter of the preliminary plat application was considered by the City Commission at a public hearing on October 5, 2021 at which time the Department of Community Development Staff reviewed the project, submitted and summarized the conditions of approval, clarified unresolved issues and summarized the public comment submitted to the City prior to the public hearing. D. The applicant, WGM Group, acknowledged understanding and agreement with the recommended conditions of approval and code provisions. E. The City Commission requested public comment at the public hearing on June 8, 2021 and received one comment voicing opposition to the project. The public comment may be found under the linked minutes and recorded video of the meetings located at this web paged filed under October 5, 2021: https://www.bozeman.net/government/city-commission/city-commission-video F. It appeared to the City Commission that all parties and the public wishing to examine the proposed preliminary plat and offer comment were given the opportunity to do so. After receiving the recommendation of the relevant advisory bodies established by Section Chapter 38, BMC, and considering all matters of record presented with the application and during the public comment period defined by Chapter 38, BMC, the City Commission has found that the proposed preliminary plat would comply with the requirements of the Bozeman Municipal Code if certain conditions were imposed. Therefore, being fully advised of all matters having come before them regarding this application, the City Commission makes the following decision. 25 21201 Finding of Fact for Annie Ph. 4 Major Subdivision Page 20 of 23 G. The preliminary plat has been found to meet the criteria of Chapter 38, BMC, and is therefore approved, subject to the conditions listed in Section 3 of this report and the correction of any elements not in conformance with the standards of the Chapter including those identified in Section 3 of this report. The evidence contained in the submittal materials, advisory body review, public testimony, and this report, justify the conditions imposed on this development to ensure that the final site plan and subsequent construction complies with all applicable regulations, and all applicable criteria of Chapter 38, BMC. H. This City Commission order may be appealed by bringing an action in the Eighteenth District Court of Gallatin County, within 30 days after the adoption of this document by the City Commission, by following the procedures of Section 76-3-625, MCA. The preliminary approval of this single phased major subdivision shall be effective for two (2) years from the date of the signed Findings of Fact and Order approval. At the end of this period the City may, at the request of the subdivider, grant an extension to its approval by the Community Development Director for a period of mutually agreed upon time. DATED this ______ day of ___________, 2021 BOZEMAN CITY COMMISSION ____________________________ Cindy Andrus Mayor ATTEST _______________________ Mike Maas City Clerk APPROVED AS TO FORM: ___________________________ GREG SULLIVAN City Attorney 26 21201 Finding of Fact for Annie Ph. 4 Major Subdivision Page 21 of 23 APPENDIX A – PROJECT SITE ZONING AND GROWTH POLICY Zoning Designation and Land Uses: The subject property is zoned R-3, Residential Medium Density District. The intent of the R-3 residential medium density district is to provide for the development of one- to five-household residential structures near service facilities within the city. Adopted Growth Policy Designation: The subject property is designated as Urban Neighborhood. This category primarily includes urban density homes in a variety of types, shapes, sizes, and intensities. Large areas of any single type of housing are discouraged. In limited instances, an area may develop at a lower gross density due to site constraints and/or natural features such as floodplains or steep slopes. Complementary uses such as parks, home-based occupations, fire stations, churches, schools, and some neighborhood-serving commerce provide activity centers for community gathering and services. The Urban Neighborhood designation indicates that development is expected to occur within municipal boundaries. This may require annexation prior to development. This proposed subdivision is well-suited to implement the Urban Neighborhood by providing lots that will support a variety of housing types including townhouses, multi-household, and single household units in an existing developed residential area that is predominantly detached single-household units. The townhouse and multi-household lots will support construction of “missing middle” housing which is contemplated throughout the Bozeman Community Plan 2020. The proposed subdivision is also located in a central area with relatively quick access to a variety of goods and services. The growth policy encourages development to be walkable, which is defined in the glossary as: Walkable. A walkable area has: • A center, whether it’s a main street or a public space. • People: Enough people for businesses to flourish and for public transit to run frequently. • Parks and public space: Functional and pleasant public places to gather and play. • Pedestrian design: Buildings are close to the street, parking lots are relegated to the back. • Schools and workplaces: Close enough that walking to and from home to these destinations is realistic. • Complete streets: Streets designed for bicyclists, pedestrians, and transit. With the complexity of features needed to create a walkable environment, no one site is likely to provide all the needed elements. The additional density will help provide for element two with potential for additional persons in the area. 27 21201 Finding of Fact for Annie Ph. 4 Major Subdivision Page 22 of 23 The site has a Walk Score of 60, a Transit score of 24, and a Bike Score of 58. Average walk score for the city as a whole is 48 out of 100. These values are provided by Walk Score, a private organization which presents information on real estate and transportation through walkscore.com. The algorithm which produces these numbers is proprietary. A score is not an indication of safety or continuity of services or routes. Scores are influenced by proximity of housing, transit, and services and expected ability, as determined by the algorithm, to meet basic needs without using a car. This site is an infill development, surrounded by existing residential uses with complimentary uses such as schools, parks, grocery stores, and employment opportunities within a relatively short distance. There are no adopted development standards relating to the walk score. The proposed development is roughly 0.4 miles to Kirk Park, which provides a variety of recreational opportunities from sports fields, baseball/softball diamonds and a skate park. Harvest Creek Park, which is part of a larger predominantly north-south oriented trail system that connects to many prominent parks on the west side of Bozeman, including the Bozeman Pond and Gallatin Regional Park is roughly 0.2 miles away. The closest grocery store is the Town & Country Foods on N. 19th avenue which is roughly 0.7 miles from the proposed development. The two closest schools are the Emily Dickinson School and Summit School which are both within a half-mile from the proposed development. The Streamline Yellowline has a stop on Durston Rd. and Hunter’s Way which is rough 0.3 miles away from the proposed development. There are also a variety of office uses along N. 19th, a relatively short distance from the proposed development which may provide employment opportunities nearby. The proposed subdivision meets the following Bozeman Community Plan 2020 goals: N-1.1 Promote housing diversity, including missing middle housing N-1.10 Increase connectivity between parks and neighborhoods through continued trail and sidewalk development. Prioritize closing gaps within the network. N-1.11 Enable a gradual and predictable increase in density in developed area over time N-3.8 Promote the development of “Missing Middle” housing (townhouses, multi-household) APPENDIX B – DETAILED PROJECT DESCRIPTION Project Background and Description A preliminary plat application by the applicant, WGM Group, 109 E. Main St., Ste. B, Bozeman, MT 59715, representing the property owner Russell Hosner, LLC, 7003 Jackson Creek Road, Bozeman, MT 59715. 28 21201 Finding of Fact for Annie Ph. 4 Major Subdivision Page 23 of 23 APPENDIX C – NOTICING AND PUBLIC COMMENT Notice was provided at least 15 and not more than 45 days prior to the City Commission public hearing per BMC 38.220.420, The City scheduled public notice for this application on September 4, 2021 for publication in the legal advertisements section of the Bozeman Daily Chronicle on Sunday, September 5 and Sunday, September 12, 2021. The applicant posted public notice on the subject property on September 5, 2021. The City sent public notice to physically adjacent landowners via certified mail, and to all other landowners of record within 200-feet of the subject property via first class mail, on September 5, 2021. Four public comments were received by the time this report was compiled. The main themes of the comments were concern regarding existing trees and the traffic volume and crossing dangers at the intersection of 25th and Durston. All public comments can be viewed at the link below. APPENDIX D – OWNER INFORMATION AND REVIEWING STAFF Owner: Russell Hosner, LLC, 7003 Jackson Creek Road, Bozeman, MT 59715 Applicant: WGM Group, 109 E. Main St., Ste. B, Bozeman, MT 59715 Representative: WGM Group, 109 E. Main St., Ste. B, Bozeman, MT 59715 Report By: Jacob Miller, Associate Planner FISCAL EFFECTS No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this subdivision. ATTACHMENTS The full application and file of record can be viewed digitally at https://www.bozeman.net/government/planning/using-the-planning-map, select the “Project Documents Folder” link and navigate to application #21201, as well as digitally at the Community Development Department at 20 E. Olive Street, Bozeman, MT 59715. Application materials – Available through the Laserfiche archive linked agenda materials and the full file is linked below. https://weblink.bozeman.net/WebLink/Browse.aspx?startid=232508&cr=1 This project can be viewed on the Community Development Viewer interactive map directly with this link: https://gisweb.bozeman.net/Html5Viewer/?viewer=planning&FILE_NUMBER=21-201 Public Comment: https://weblink.bozeman.net/WebLink/Browse.aspx?id=254916&dbid=0&repo=BOZEMAN&cr =1 29 ANNIE SUBDIVISION, PHASE 4VICINITY MAPWGMGROUPWWW.WGMGROUP.COMNOWNER/SUBDIVIDER30 ZONING:R-3ZONING:R-4ZONING:R-3ZONING:R-3ZONING:R-3ZONING:R-3LEGEND-EXISTINGLEGEND-PROPOSEDAREASBASIS OF BEARINGSANNIE SUBDIVISION, PHASE 4ZONINGWGMGROUPWWW.WGMGROUP.COMNSITE ADDRESSLEGAL DESCRIPTIONVERTICAL DATUM31 ANNIE SUBDIVISION, PHASE 4WGMGROUPWWW.WGMGROUP.COM32 Memorandum REPORT TO:City Commission FROM:Brian Heaston, Senior Engineer Anna Rosenberry, Assistant City Manager Scott Shirley, Interim Public Works Director SUBJECT:Authorize the City Manager Sign a Montana Forest Action Plan Grant Agreement with the Montana Department of Natural Resources and Conservation for the Bozeman Municipal Watershed Cross-Boundary Forest Collaboration Project to Provide Funding for Phase 3 of the Sourdough Fuels Reduction Project MEETING DATE:November 16, 2021 AGENDA ITEM TYPE:Grant RECOMMENDATION:Authorize the City Manager Sign a Montana Forest Action Plan Grant Agreement with the Montana Department of Natural Resources and Conservation for the Bozeman Municipal Watershed Cross-Boundary Forest Collaboration Project to Provide Funding for Phase 3 of the Sourdough Fuels Reduction Project. STRATEGIC PLAN:1.3 Public Agencies Collaboration: Foster successful collaboration with other public agencies and build on these successes. BACKGROUND:The Montana Department of Natural Resources and Conservation has awarded the City of Bozeman $111,384 through the Montana Forest Action Plan grant program to conduct fuels management activities on City-owned land in the Sourdough Creek municipal watershed. The grant agreement is attached to this memo. The grant will be used by the City to fund Phase 3 of the Sourdough Fuels Project, which calls for hand-crew treatment of fuels located on City owned land surrounding the Sourdough municipal water supply intake. Slash generated with large diameter fuels removal under Phases 1 and 2 of the Sourdough Fuels Project will be hand piled during Phase 3. Phase 3 work will also include treatment of small diameter ladder fuels and some dead and down timber by cutting and piling these fuel types on approximately 200 acres of land that was not treated under Phases 1 and 2. Piles will be allowed to cure until dry and then burned when conditions are suitable. This Phase 3 work is anticipated to occur during the 2022 operating season. Burning may extend into 2023 if a burning window does not materialize next year. 33 The grant application for this project was prepared in collaboration with the Custer Gallatin National Forest. The Forest was awarded $238,493 for similar small diameter fuels treatments for its Bozeman Municipal Watershed fuels project. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:The grant provides $111,384 of funding and will be used to fund Phase 3 of the Sourdough Fuels Reduction Project. The grant reduces the total amount of local funding through the water enterprise fund necessary to complete the overall Sourdough Fuels Reduction Project. Attachments: MT Forest Action Plant Grant Agmt - Bozeman Report compiled on: November 1, 2021 34 FY 2022 Grant Agreement Page 1 of 9 MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION MONTANA FOREST ACTION PLAN - GRANT AGREEMENT Bozeman Municipal Watershed Cross-Boundary Forest Collaboration Project This Grant Agreement (Agreement) is accepted by City of Bozeman, hereinafter referred to as the “Grantee,” Federal ID No 81-6001238, DUNS# 083705293, and represented by Jeff Mihelich, City Manager, PO Box 1230, Bozeman, Montana 59771-1230, telephone (406) 582-2306, according to the following terms and conditions. This Agreement, awarded and administered by the Montana Department of Natural Resources and Conservation (DNRC), is consistent with the policies, procedures, and objectives of the State of Montana, DNRC, Forestry Division. SECTION 1. PURPOSE. The purpose of this Agreement is to establish mutually agreeable terms and conditions, specifications, and requirements to grant funds to the Grantee to reduce the potential severity of wildfire, reduce impacts to municipal drinking water supply infrastructure, reduce the risk to existing development in the WUI, mitigate the risk of high intensity wildfires, improve public and firefighter safety in the Bozeman municipal watershed. The purpose of the grant program is to accelerate the pace and scale of forest management in order to reduce wildland fire hazards, improve forest health, and enhance economic productivity on Montana’s forested lands. The approved project proposal and the addendum to the project proposal for this grant are attached as Appendix A and Appendix D respectively and are incorporated herein by reference. FOR DNRC USE ONLY Agreement # ACT-21-011C Maximum amount under this Agreement: $111,384.00 Amendment # N/A Source of Funds Approved by State of Montana: Fire Suppression Fund Fiscal LP Legal MP Program WF Division SC Fund Subclass Org Percent Amount Expiration Amendment 02847 555SU 5017421 100% $111,384.00 See Sect. 2 N/A Workers Comp X N/A Attached Exempt Will be forwarded 35 FY 2022 Grant Agreement Page 2 of 9 SECTION 2. TERM. This Agreement is effective on the date of last signature. The Grantee shall have until September 30, 2023, to complete the project and work described in Section 4, Project Scope. The DNRC may, pursuant to Section 18, Agreement Renewal, grant an extension for completion upon request and showing of good cause by the Grantee. Good cause is defined as external factors preventing the Grantee from completing the work, including but not limited to, wildland fire, extensive and prolonged inoperable weather conditions, forest closure, the assignment of employees or a contractor to the suppression of a wildland fire, or variations in project scope and/or landowner participation. A request for extension must be submitted in writing thirty (30) days prior to the termination date if an extension is to be considered by DNRC. SECTION 3. DNRC's ROLE. The DNRC is administering Grant funds to ensure that the funds are used according to the intent and procedures of the State of Montana, DNRC, Forestry Division under the authority of MCA 76-13-150. The DNRC will monitor project expenditures to assure payment eligibility. DNRC assumes no responsibility for the Grantee's obligation to faithfully perform the tasks and activities required by this Agreement. The DNRC assumes no responsibility for verifying the right of the Grantee to conduct project activities on properties identified in Appendix A, the approved project proposal. The Grantee is responsible for obtaining all appropriate permissions or permits to conduct activities. The technical specialist for the project is identified in Section 21. Principal Contacts. The roles and responsibilities of the technical specialist shall include but are not limited to, providing technical assistance to the Grantee to achieve intended outcomes of the project; conducting reviews of project plans, activities, and accomplishments upon request of Grantee or as often as deemed necessary by the DNRC; and assisting the Grantee in complying with Montana’s Forest Practices Laws and voluntary Best Management Practices in the course of carrying out project activities. The Grantee may contact the DNRC's Project Manager for guidance related to administration of the terms of this Agreement. All requests for information and assistance shall be submitted to the technical specialist, DNRC project manager or his designee. SECTION 4. PROJECT SCOPE. (a) The Grantee must use the proceeds provided pursuant to this Agreement to perform allowable activities under the Program. The key outcomes of the Agreement are completion of 178 acres of fuels reduction work through non-commercial timber thinning and piling and slash abatement. (b) Supporting Documents/attachments: The approved project proposal submitted for the complete cross-boundary project, Appendix A, describes the specific subset of activities to be performed by Grantee and the expected completion dates. Funding will not be provided if the requirements outlined in Appendix A are not fulfilled. In the event content in Appendix A, the original proposal, or Appendix D, the addendum to the project proposal differs from or is in conflict with terms presented elsewhere in the Agreement, the Agreement text takes precedence. SECTION 5. PROJECT BUDGET. Grant funds are allocated to the following budget categories: REMAINDER OF PAGE LEFT BLANK INTENTIONALLY 36 FY 2022 Grant Agreement Page 3 of 9 Project Funding Summary: Grantee salary/wages/benefits $0 Operating Expenses $0 Payments to Landowners (Beneficiaries) $0 Contracted Services $111,384 Subtotal – Direct Costs $111,384 Indirect Costs (0.0%) $0 Total Grant Amount $111,384 Match Required (15% additional to be met under ACT-21-011B.) $0 Total Project Funding under this Agreement: $111,384 This Agreement requires a match equal to the Total Grant Amount x 15%, in addition to the Total Grant Amount, in the form of cash contribution or in-kind services directly related to the project. Match required will be met by the cross-boundary project partner under a separate Agreement working on the same project objectives. Claimed match must be sufficiently documented to show compliance with requirements and to demonstrate how it supports the project. DNRC will determine whether match documentation submitted is adequate and may require additional documentation before approval. Additional cash or in-kind contributions, not listed in the Project Funding Summary table, may also be contributed to the project and considered additional leverage for purposes of project reporting. The indirect cost rate is shown above, expressed as a percentage of indirect costs to direct costs. Unless the rate has been formalized in a Negotiated Indirect Cost Rate Agreement (NICRA) between the Grantee and its cognizant federal agency, the rate shown above is hereby approved by the DNRC for the term of this Agreement and may not be changed except via written amendment. The Grantee may transfer up to ten percent (10%) of the total Agreement amount between budget categories as needed to complete the project. The Grantee must notify DNRC of such transfers. Transfers between budget categories in excess of ten percent (10%) of the Agreement amount must be requested by the Grantee, approved by DNRC, and documented in an amendment to the Agreement. If an approved project under the Agreement requires travel, approved travel expenses, mileage, per diem, lodging, will be reimbursed at state rates and in accordance with state travel policy for Employee Travel at the time travel occurs. Any travel expenses incurred above state rates or outside of policy will be the sole responsibility of the Grantee. The Montana Department of Administration maintains current state travel policy on the webpage: https://doa.mt.gov/employee-travel. Total payment for all purposes under this Agreement shall not exceed One Hundred Eleven Thousand Three Hundred Eighty-Four and no/100 Dollars ($111,384.00). When procuring goods or services under the Agreement, the Grantee shall follow all applicable procurement procedures as required by the Grantee Organization’s internal written policies. At a minimum, procurement procedures must ensure that the Grantee 1) avoids unnecessary or duplicative purchases, 2) conducts some form of cost/price analysis for every procurement 37 FY 2022 Grant Agreement Page 4 of 9 transaction, 3) encourages open competition among vendors, and 4) avoid conflicts of interest in procurement decisions. In the absence of internal written policies, the Grantee shall seek guidance on procurement procedures from DNRC Project Manager. SECTION 6. AVAILABILITY OF GRANT FUNDS. The Grantee acknowledges and understands that Agreement funds become available based on State of Montana legislative appropriations to DNRC. Costs incurred by the Grantee prior to the last signature on this Agreement are not eligible for reimbursement but may be counted as match funds upon prior written approval by DNRC. The commitment by the DNRC to expend money is contingent upon the DNRC receiving funds from the State of Montana Fire Suppression Fund. No liability shall accrue to the DNRC or its officials in the event such funds are not appropriated or allotted as authorized by the legislature. DNRC may, at its sole discretion, issue a temporary stop-work order, reduce the scope of project activities, or terminate this Agreement if available funding is reduced for any reason. The DNRC will provide the Grantee at least 10 days’ notice for a stop-work order and at least 30 days’ notice if termination of this Agreement is determined to be necessary due to unavailability of funds. Until DNRC notifies Grantee that obligated funds are unavailable, DNRC will continue to comply with the terms of this Agreement, including the disbursement of funds for eligible expenses incurred by Grantee up to the specified date and time of termination provided in a written notice. SECTION 7. GRANT DISBURSEMENTS. The Grantee shall submit claims for disbursement of Grant funds to the DNRC liaison using the “Request for Disbursement of DNRC Grant Funds / Financial Status Report” (Request) form, attached hereto as Appendix C and incorporated herein by reference. Documentation of reimbursable costs incurred must be submitted with the disbursement requests. Documentation may include but is not limited to itemized receipts, vendor invoices, inspection certificates, financial reports that clearly show expenditures, payroll records, copies of checks, bank statements, and other forms of proof of payment. DNRC will determine whether documentation submitted adequately supports the disbursement request and may require additional documentation before approving payment. The DNRC shall verify the claims and check them against the Reports required in Section 8 and the Budget provided in Section 5. The DNRC will disburse Grant funds to the Grantee only upon DNRC’s review and approval of the documentation submitted by the Grantee. Reimbursement of Grantee expenditures shall only be made for expenses included in the Budget provided in Section 5 and that are clearly and accurately supported by the Grantee's records. The DNRC may conduct an inspection of project progress, as described in Section 10, before a disbursement is approved. Grantee should seek timely reimbursement of claimed costs incurred under this Agreement. A minimum of one Request must be submitted annually to the DNRC. The annual period begins on the Agreement date of last signature. In the event no reimbursable costs are incurred in an annual period, a Request for zero dollars ($0.00) listing current grant balances must be submitted to the DNRC. Request for final disbursement of grant funds is due thirty (30) days following the Agreement termination date. The DNRC may withhold up to ten percent (10%) of the total authorized Grant amount until the project tasks outlined in Section 4, all slash abatement, all required inspections, and the Final Report required by Section 8 are completed and approved by the DNRC. The DNRC may determine the method of submission for disbursement requests. Methods may include requiring paper versions by US Mail, e-mail or state FTP portal transmission for 38 FY 2022 Grant Agreement Page 5 of 9 electronic versions, or entry in a registered Grantee account in a grant management system. If a required submission method changes during the term of the Agreement, the DNRC will provide thirty (30) days’ notice. SECTION 8. REPORTS. Quarterly progress reports for the periods ending each March, June, September and December shall be submitted to the DNRC during the term of the Agreement. Reports will provide status information for each project implementation objective. Status information will include, at a minimum, the percentage complete, costs incurred, funds remaining and projected completion date. The Grantee shall report on total project costs including those funded by the Grantee and other matching funds. Significant problems encountered shall be noted and necessary scope and/or timeline modifications requested. The quarterly report template is provided in Appendix B and is incorporated herein by reference. Quarterly reports must be submitted to the DNRC by the last day of the next month following the close of the quarterly period. The first quarter closes September 30, 2021, and the report is due on or before October 31, 2021. No claims for disbursements shall be honored by DNRC if the quarterly report has not been approved or if there is a delinquent report. A final report, using the Appendix B Quarterly Report format, that details the project completion, results, accomplishments and financial status shall be submitted to DNRC by the Grantee for approval upon project completion. Final disbursement of Agreement funds is contingent upon DNRC’s receipt and approval of the final report. The DNRC shall, if necessary, provide the Grantee with further instructions regarding the required reporting format and other specific reporting requirements when such requirements are mandated by the State of Montana. These new reporting requirements will be provided in writing to Grantee and will be added to the terms of this Agreement via an amendment should Grantee and the DNRC agree to those terms. The foregoing notwithstanding, Grantee must comply with the terms of any future reporting requirements that do not differ materially from those required by this Agreement. The DNRC may determine the method of submission for all reports. Methods may include requiring paper versions by US Mail, e-mail or state FTP portal transmission for electronic versions, or entry in a registered Grantee account in a grant management system. If a required submission method changes during the term of the Agreement, the DNRC will provide thirty (30) days’ notice. SECTION 9. RECORDS AND AUDITS. The Grantee must maintain appropriate and adequate records showing complete entries of all receipts, disbursements and other transactions relating to this Agreement for five (5) years after the later of either the final Agreement payment, or the termination or the expiration of this Agreement. The DNRC, the Montana Legislative Audit Division or the Montana Legislative Fiscal Division may, at any reasonable time, audit all records, reports and other documents that the Grantee maintains under or during the course of this Agreement to ensure compliance with its terms and conditions. SECTION 10. PROJECT MONITORING AND ACCESS FOR INSPECTION AND MONITORING. DNRC retains the right to make periodic inspections of the grant-funded project area to determine that the requirements of the Agreement are being met. If the Grantee fails to meet the requirements of the Agreement, the Grantee shall correct the deficiencies to meet DNRC approval before any disbursements are made. Inspections shall occur as often as deemed necessary by DNRC. Inspections may be required to certify work completed by the 39 FY 2022 Grant Agreement Page 6 of 9 Grantee before disbursement is made by DNRC. Inspections may include review of the adequacy of records and accounts. The Grantee may request inspection by DNRC for disbursement purposes or to clarify Agreement requirements. The Grantee shall accommodate requests for DNRC access to the site and records with due consideration for safety, private property rights, and convenience of everyone involved. SECTION 11. EMPLOYMENT STATUS AND WORKER'S COMPENSATION. The DNRC is not an owner or general contractor for the project and the DNRC does not control the work activities or work-site of the Grantee or any contractors that might be engaged by the Grantee for completion of the project. The Grantee is independent from and is not an employee, officer or agent of the DNRC. The Grantee, its employees and contractors, are not covered by the Workers' Compensation laws applicable to the DNRC as an employer. The Grantee is responsible for making sure that it and its employees are covered by Workers’ Compensation Insurance and that its contractors are in compliance with the coverage provisions of the Workers’ Compensation Act. SECTION 12. COMPLIANCE WITH APPLICABLE LAWS. All work performed under this Agreement must fully comply with all applicable federal, state, and local laws, rules, and regulations, including but not limited to, the Montana Human Rights Act, the Civil Rights Act of 1964, the Age Discrimination Act of 1975, the Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of 1973. Any subletting or subcontracting by the Grantee subjects subcontractors to the same provision. In accordance with 49-3-207, MCA, the Grantee agrees that the hiring of persons to perform this Agreement will be made on the basis of merit and qualifications and without discrimination based upon race, color, religion, creed, political ideas, sex, age, marital status, physical or mental disability, or national origin of the persons performing this Agreement. It shall be the Grantee's responsibility to obtain all permits, licenses or authorizations that might be required from government authorities for completion of the project. Procurement of labor, services, supplies, materials and equipment shall be conducted according to applicable federal, state and local statutes. DNRC’s signature on this Agreement does not guarantee the approval or issuance of any permits, licenses or any other form of authorization to take action for which Grantee must apply with DNRC or any other government entity and submit to DNRC to fulfill the terms of this Agreement. SECTION 13. AGENCY RECOGNITION REQUIREMENTS. Use of Agency Insignia. Grantee shall request in writing and receive written permission from DNRC before using the DNRC insignia on any published media, such as a webpage, printed publication or audiovisual production. Public Notices. Grantee is encouraged to give public notice of the receipt of this award of State of Montana grant funds and, from time to time, to announce progress and accomplishments. Press releases or other public notices should include a statement substantially as follows: “The funding for this project is derived in full or in part from an award of State of Montana funds through the Montana Department of Natural Resources and Conservation, Forestry Division.” Acknowledgment in Publications, Audiovisuals, and Electronic Media. Grantee shall acknowledge DNRC support as appropriate in any publications, audiovisuals, and electronic media developed as a result of this award of State of Montana grant funds. 40 FY 2022 Grant Agreement Page 7 of 9 SECTION 14. COPYRIGHT - GOVERNMENT RIGHT TO USE. Any graphic or audio-visual material developed under this Agreement may be copyrighted with the proviso that the State of Montana will have a royalty-free, nonexclusive, and irrevocable right to produce, publish or otherwise use, and authorize others to use the work for state government purposes. The Grantee must notify DNRC in writing when any patent rights arise from, or are purchased with, funds awarded under this Agreement. SECTION 15. FAILURE TO COMPLY. If the Grantee fails to comply with the terms and conditions of this Agreement, the DNRC may terminate this Agreement, refuse additional disbursements of grant funds, and take legal action to recover disbursed grant funds. Such termination will become a consideration in any future application for grants under the authority of the DNRC Forestry Division. SECTION 16. ASSIGNMENT AND AMENDMENT. The Grantee may not assign or transfer any portion of this Agreement without DNRC’s express written consent. Amendments will be in writing, signed by both parties, and attached as an integral component of this Agreement. This Agreement may be terminated by the mutual written consent of both parties. If this Agreement is terminated prior to the date specified in Section 2, the Grantee may not submit claims for reimbursement beyond the mutually agreed to termination date and final disbursement period. SECTION 17. MONTANA LAW AND VENUE. Any action or judicial proceeding for enforcement of the terms of this Grant shall be instituted only in the courts of Montana and shall be governed by the laws of Montana. Venue shall be in the First Judicial District, Lewis and Clark County, Montana. SECTION 18, AGREEMENT RENEWAL. The Agreement may, upon mutual agreement between the parties and according to the terms of the existing contract, be extended. SECTION 19. INDEMNITY AND LIABILITY (HOLD HARMLESS / INDEMNIFICATION). Grantee agrees to be financially responsible for any audit exception or other financial loss to the DNRC and the State of Montana which occurs due to the negligence, intentional acts, or failure by Grantee and/or its agents, employees, subcontractors, or representatives to comply with the terms of this Agreement. Grantee hereby agrees to defend, indemnify, and hold harmless the DNRC and the State of Montana and its agents from and against any and all claims, demands, or actions for damages to property or injury to persons or other damage to persons or entities arising out of, or resulting from the performance of this Agreement or the results of this Agreement, provided such damage to property or injury to persons is due to the negligent act or omission, recklessness, or intentional misconduct of Grantee or any of its employees. This Agreement is not intended to relieve a liable party of financial or legal responsibility. SECTION 20. INSURANCE REQUIREMENTS. General Requirements. The Grantee shall maintain for the duration of this Agreement, at its cost and expense, insurance against claims for injuries to persons or damages to property, including liability, which may arise from or in connection with the performance of the work by the Grantee, agents, employees, representatives, assigns, or contractors. This insurance shall cover such claims as may be caused by any negligent act or omission. 41 FY 2022 Grant Agreement Page 8 of 9 Specific Requirements for Commercial General Liability. The Grantee shall purchase and maintain occurrence coverage with combined single limits for bodily injury, personal injury, and property damage of $750,000 per occurrence and $1,500,000 aggregate per year to cover such claims as may be caused by any act, omission, or negligence of the Grantee or its officers, agents, representatives, assigns or contractors. SECTION 21. PRINCIPAL CONTACTS. As of Agreement execution, the principal contacts are as follows: DNRC Project Manager Contact DNRC Technical Specialist Name: Wyatt Frampton Title: Forest Action Plan Project Manager Address: 2705 Spurgin Road City, State, Zip: Missoula, MT 59804 Telephone: 406-542-4355 Email: WFrampton@mt.gov Name: Roger Ziesak Title: Forest Practices Program Manager Address: 2705 Spurgin Road City, State, Zip: Missoula, MT 59804 Telephone: 406-542-4388 Email: rziesak@mt.gov DNRC Administrative Contact Name: Lorie Palm Title: Grants and Agreements Specialist Address: 2705 Spurgin Road City, State, Zip: Missoula, MT 59804 Telephone: 406-542-4205 Email: lpalm@mt.gov Grantee Representative Name: Jeff Mihelich Title: City Manager Address: PO Box 1230 City, State, Zip: Bozeman, MT 59771-1230 Telephone: 406-582-2306 Email: Grantee Project Manager Contact Grantee Administrative Contact Name: Brian Heaston Title: Senior Engineer Address: PO Box 1230 City, State, Zip: Bozeman, MT 59771-1230 Telephone: 406-582-2282 Email: bheaston@bozeman.net Name: Kristin Donald Title: Finance Director Address: PO Box 1230 City, State, Zip: Bozeman, MT 59771-1230 Telephone: 406-582-2318 Email: 42 FY 2022 Grant Agreement Page 9 of 9 This Agreement consists of pages 1 – 9 plus the following appendices: • Appendix A [approved project proposal] • Appendix B [quarterly report template] • Appendix C [reimbursement request form] • Appendix D [addendum to the project proposal]. The Grantee hereby accepts this Agreement according to the above terms and conditions. By: Date Grantee Authorized Representative Printed name Date DNRC Authorized Representative Printed name Date DNRC Director Printed name 43 Appendix A 44 Appendix A 45 Appendix A 46 Appendix A 47 Appendix A 48 Appendix A 49 Appendix A 50 Appendix A 51 Appendix A 52 Appendix A 53 Appendix A 54 Appendix A 55 Appendix A Budget Superseded See Appendix D for Budget56 Appendix A 57 Appendix A 58 Appendix A 59 Appendix A 60 Appendix A 61 Appendix A 62 Appendix A 63 FOREST ACTION PLAN GRANT QUARTERLY REPORT GRANT NUMBER:______________________________________________________________ PROJECT NAME:_______________________________________________________________ LOCATION OF CURRENT WORK: __________________________________________________ REPORT FOR: 1st 2nd 3rd 4th Quarter DATE: _______________________ PERCENT OF PROJECT COMPLETE: ___________TOTAL PROJECT ACRES COMPLETED: ________ PROVIDE A BRIEF SUMMARY OF THE WORK ACCOMPLISHED IN THE LAST THREE MONTHS: ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ INDICATE WHAT WORK HAS BEEN PREVIOUSLY APPROVED BY DNRC AND WHAT IS READY FOR INSPECTION: ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ INDICATE WHICH GRANT PARTNERS HAVE BEEN ACTIVE IN THE LAST THREE MONTHS: ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ IDENTIFY CONTRACTORS AND APPROXIMATE NUMBER OF PEOPLE WHO ARE ACTIVELY WORKING ON THE PROJECT: ______________________________________________________________________________ ______________________________________________________________________________ ADDITIONAL INFORMATION YOU WOULD LIKE TO SHARE: ______________________________________________________________________________ ______________________________________________________________________________ IF POINT-OF-CONTACT HAS CHANGED PLEASE PROVIDE THE NAME(S) AND CONTACT INFO:_________________________________________________________________________ ______________________________________________________________________________ Appendix B 64 Grant Agreement Number / Project Name From (mm/dd/yy):To (mm/dd/yy): Direct Costs: Grantee Salary/Wages/Benefits $0.00 Operating Expenses $0.00 Payments to Landowners (Beneficiaries)$0.00 Contracted Services $0.00 SubTotal $0.00 $0.00 $0.00 $0.00 $0.00 Indirect Costs:$0.00 TOTAL $0.00 $0.00 $0.00 $0.00 $0.00 Date Grant balance remaining (after this request) Cumulative match expenses to date (if applicable) Request for Disbursement of DNRC Grant Funds / Financial Status Report Request for Reimbursement Grantee Name Period covered by this request: Request for Advance Grantee Representative / Preparer's Signature Total Grant Budget by category (from grant agreement) Funds received from DNRC (before this request) Disbursement amount requested Revised Aug 2015 Appendix C 65 From:Cota, Melanie - FS To:Frampton, Wyatt Subject:[EXTERNAL] RE: FAP - BMW Project Date:Tuesday, March 30, 2021 5:33:45 PM Attachments:image002.png image003.png image004.png image005.png BMW UPDATED PROJECT BUDGET.March2021docx.docx Hi Wyatt, Please see attached revised budget for the BMW Project to reflect the 350k grant award. In talking with the City, we think it would be the cleanest to do two separate agreements with DNRC if that is acceptable. The FS may be able to start some work this FY21, depending on when the agreement is finalized and if we can get an extension on our contacting deadlines. The City is not able to start their portion of the work until FY22 due to other contract work this summer/fall for BMW. I updated this in the deliverables. Please let me know if you need anything further at the moment and we look forward to working with you! Thanks again! Melanie Melanie Cota West Zone Implementation Coordinator Forest Service Custer Gallatin National Forest, Bozeman and Hebgen Lake Ranger Districts p: 406-522-2539 melanie.cota@usda.gov 3710 Fallon St, C Bozeman, MT 59718 www.fs.fed.us [fs.fed.us] [usda.gov] [twitter.com] [facebook.com] Caring for the land and serving people From: Frampton, Wyatt <WFrampton@mt.gov> Sent: Monday, March 29, 2021 2:37 PM To: Cota, Melanie - FS <Melanie.Cota@usda.gov> Subject: FAP - BMW Project Hey Melanie! I have you as the contact for the Bozeman municipal watershed project. I’d like to talk with you about a few next steps we need to get started on so that we can get our grant agreement generated. Please give me a call at your earliest convenience. Appendix D 66 Thanks! Wyatt Wyatt Frampton |Montana DNRC | Forest Action Plan Project Manager | 406-890-8471 This electronic message contains information generated by the USDA solely for the intended recipients. Any unauthorized interception of this message or the use or disclosure of the information it contains may violate the law and subject the violator to civil or criminal penalties. If you believe you have received this message in error, please notify the sender and delete the email immediately. Appendix D 67 Bozeman Municipal Watershed Project Updated Budget and Deliverables March 30th, 2021 PROJECT BUDGET: (complete tables) Budget Table 1: Funding for Activities Activity Ownership Unites (e.g. acres) Cost/Unit Total Cost Non-commercial thinning/piling USFS 382.2 acres $624/ac $238,492.80 Non-commercial thinning/piling City of Bozeman 178.5 acres $624/ac $111,384.00 Budget Table 2: Expenses Funds Requested Match Total Employee Salary/Wages/Benefits USFS $400,000 confirmed match and City $270,000 pending match $400,000.00 Supplies $123.20 Travel Payments to Landowners (Beneficiaries) Contractual Costs (incl. contract labor) $349,876.80 $811,512.30 $1,311,336.30 Other Costs (Specify) Indirect Costs (rate: xx.xx%) (up to 10% unless NICRA) Total $350,000 560.7 acres $1,711,336.30 Total Request: $350,000 Please briefly describe the details of how the grant funds will be spent for each budget category. (500 words) Appendix D 68 Bozeman Municipal Watershed Project Updated Budget and Deliverables March 30th, 2021 Grant funds would be spent on contract thinning and piling or masticating of generally small diameter and dead and down fuels. The USFS has existing pre-priced contracts for hand work and existing contracts for machine work where prices are bid. Prices were derived assuming hand treatment and an average cost was applied for all acres based upon a subset of already surveyed units. Some units will have lower or higher costs per acre. Machine piling or masticating will be utilized when it can meet objectives/constraints and is more cost effective. The USFS costs of admin, layout, and burning of fuels are already covered in house. The additional funding for supplies would go towards the BMW communication strategy for outreach and education on the project. DELIVERABLES: (250 words) Describe in narrative the activities to be completed and how this work will be accomplished. Activities: The collaborative project with the City of Bozeman would together treat 5,330 acres. This includes 4,700 acres on USFS System Lands and 638 acres on the City of Bozeman Lands. Project activities funded by this grant would include non-commercial thinning and piling on 382.2 acres of NFS lands and 178.5 acres of City of Bozeman lands. Additional acres are to be treated on both ownerships using other available funds and timber sale revenues. How: These activities would be achieved by utilizing contractors to complete work by hand or machine based upon the most economically available option and environmental limitations. Most work is expected to be done by hand. Follow up treatments of prescribed burning will occur as needed and conditions allow and be funded by other means. Thinning and piling treatments are expected to begin in the first funding year and conclude in the second. Prescribed fire treatments will begin in the second funding year and continue as needed and conditions allow. In the table below list the expected annual accomplishments and outcomes for this project (e.g. number of acres treated, number of homes protected, estimated MMBF of wood for forest products, jobs created, etc.) Year Deliverable 1 The USFS is hoping to award funding to contract for hand thinning/piling in FY 21, for a total of 104.8 acres. This is dependent on timing of agreement and granting of extension of contract deadlines. 2 178.5 acres treated by City of Bozeman thinning/piling by contract, and 382.2 acres (dependent on FY21 acres completed) USFS thinning/piling by way of contract 3 Reporting on a semi-annual basis describing project accomplishments and how funds are being utilized. A final report will be submitted stating how the funds were used and the outcomes that were achieved. Appendix D 69 Memorandum REPORT TO:City Commission FROM:Brian Heaston, Senior Engineer Scott Shirley, Interim Director of Public Works Anna Rosenberry, Assistant City Manager SUBJECT:Authorize the City Manager Sign a Forest Health Program Subaward Agreement with the Montana Department of Natural Resources and Conservation for the Sourdough Creek Fuels Reduction Project Campaign MEETING DATE:November 16, 2021 AGENDA ITEM TYPE:Grant RECOMMENDATION:Authorize the City Manager Sign a Forest Health Program Subaward Agreement with the Montana Department of Natural Resources and Conservation for the Sourdough Creek Fuels Reduction Project Campaign. STRATEGIC PLAN:1.1 Outreach: Continue to strengthen and innovate in how we deliver information to the community and our partners. BACKGROUND:Montana Department of Natural Resources and Conservation has awarded the City of Bozeman $20,000 through its Forest Health Program. The funding is available to reimburse the City’s contracted education/outreach campaign activities related to the Sourdough Fuels Reduction Project. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:The grant provides $20,000 to reimburse contracted public relations services for the Sourdough Fuels Reduction Project. Attachments: Sourdough OE Campaign Grant Agmt Report compiled on: November 4, 2021 70 FY22 – DNRC Forestry Subaward Page 1 of 8 FOREST HEALTH PROGRAM SUBAWARD AGREEMENT Sourdough Creek Fuels Reduction - Project Campaign This Subaward Agreement (Subaward) is accepted by City of Bozeman, hereinafter referred to as the “Subrecipient,” Federal ID No. 81-601238, DUNS# 083705293, and represented by Brian Heaston, Project Engineer, PO Box 1230, Bozeman, Montana 59771-1230, telephone (406) 582-2280, according to the following terms and conditions. This Subaward, awarded and administered by the Montana Department of Natural Resources and Conservation (DNRC), is consistent with the policies, procedures and objectives of the Cooperative Forestry Assistance Act of 1978, Public Law 95-313, as amended. This Subaward is awarded under federal grant #20-DG-11010000-024, Consolidated Payments Grant, executed on 06/29/2020, from the United States Department of Agriculture (USDA) – Forest Service (USFS) and Catalog of Federal Domestic Assistance (CFDA) number 10.664, “Cooperative Forestry Assistance.” SECTION 1. PURPOSE. The purpose of this Subaward is to establish mutually agreeable terms and conditions, specifications, and requirements to grant funds to the Subrecipient for the purpose of activities that increase public understanding of the importance of active, sustainable cross-boundary forest management that aims to reduce wildfire risks and increase forest health across the landscape/watersheds containing City of Bozeman’s municipal water source and infrastructure. Basis for this subaward is Forest Health Management Program which is administered through a partnership with the USFS and the DNRC. Permissible projects are those on non-federal lands. Projects can include any/all of the following: community/citizen education, wildland fire prevention programs, and monitoring. FOR DNRC USE ONLY Subaward # FHE-21-101 Maximum amount under this Subaward Agreement: $20,000.00 Amendment # N/A Source of Funds Approved by USDA FS Grant # 20-DG-11010000-024; CFDA # 10.664 Program EW Fiscal LP Legal MP Fund Subclass Org Percent Amount Expiration Amendment 03283 555YS 50479 100% $20,000.00 See Sect. 2 N/A Workers Comp: X N/A Attached Exempt Will be forwarded DocuSign Envelope ID: E2F03E8C-0A39-4050-84EB-BB8CC2D55169 In Process 71 FY22 – DNRC Forestry Subaward Page 2 of 8 SECTION 2. TERM. This Subaward is effective on the date of last signature. The Subrecipient shall have until May 31, 2023 to complete the project and work described in Section 4, Project Scope. The DNRC may, pursuant to Section 18, Agreement Extension, grant an extension for completion upon request and showing of good cause by the Subrecipient. Good cause is defined as external factors preventing the Subrecipient from completing the work, including, but not limited to, pandemic, inadequate staff, delays experienced by federal, other collaborative partners or contractors, or prolonged inoperable weather conditions. A request for extension must be submitted in writing no less than thirty (30) days prior to the termination date if an extension is to be considered by the DNRC. SECTION 3. DNRC's ROLE. The DNRC is administering grant funds awarded by the USFS to ensure that the funds are used according to the intent and procedures of the Forest Health Grant Program. The DNRC will monitor project expenditures to assure payment eligibility. The DNRC assumes no responsibility for the Subrecipient's obligation to faithfully perform the tasks and activities required by this Subaward. The DNRC assumes no responsibility for verifying the right of the Subrecipient to conduct project activities. The Subrecipient is responsible for obtaining all appropriate permissions to conduct activities. The Subrecipient may contact the DNRC's liaison Erik Warrington, at (406) 542-4303, 2705 Spurgin Road, Missoula, Montana 59804 for guidance related to administration of the terms of this Subaward. All requests for information and assistance shall be submitted to the DNRC liaison or his designee. SECTION 4. PROJECT SCOPE. (a) The Subrecipient must use the proceeds provided pursuant to this Subaward to perform allowable activities under the Program. The key outcomes of the project are the support of landowner and community outreach and engagement; development and promotion of media and material content which educates the audience on the important role healthy forests, intact watersheds, and fire adapted communities. The audience includes the general public, civic leaders, land management agencies, as well as targeted materials for adjacent private forest landowners, and recreation users of the municipal watershed trail systems. The project will utilize contracted professional services for campaign coordination and media development. Media content may include but is not limited to audio, visual, print, and social. The campaign is anticipated to run before, during, and up to the completion of the City of Bozeman’s Sourdough Creek Fuels Reduction Project. SECTION 5. PROJECT BUDGET. Subaward funds are allocated to the following budget categories: Project Funding Summary: Direct Costs Subrecipient salary/wages/benefits $0 Operating Expenses $0 Contracted Services $20,000 Subtotal – Direct Costs $20,000 Indirect Costs (0.0%) $0 Total Subaward Amount $20,000 Match Required (none) $0 Total Project Funding: $20,000 DocuSign Envelope ID: E2F03E8C-0A39-4050-84EB-BB8CC2D55169 In Process 72 FY22 – DNRC Forestry Subaward Page 3 of 8 No match is required for this Subaward. The indirect cost rate is shown above, expressed as a percentage of indirect costs to direct costs. Unless the rate has been formalized in a Negotiated Indirect Cost Rate Agreement (NICRA) between the Subrecipient and its cognizant federal agency, the rate shown above is hereby approved by the DNRC for the term of this Subaward and may not be changed except via written amendment. Total payment for all purposes under this Subaward shall not exceed Twenty Thousand and no/100 Dollars ($20,000.00). Subrecipient shall follow all applicable procurement procedures as required in Section 12, Compliance with Applicable Laws, and the applicable Federal Office of Management and Budget (OMB) in the Code of Federal Regulations (CFR) 2 CFR 200 §§ 200.317 – 200.326. SECTION 6. AVAILABILITY OF SUBAWARD FUNDS. The Subrecipient acknowledges and understands that Subaward funds become available based on federal awards to DNRC. Costs incurred by the Subrecipient on or after May 1, 2021 may be, upon approval by the DNRC, eligible for reimbursement or may be counted as match funds. The commitment by the DNRC to expend money is contingent upon the DNRC receiving funds under the Cooperative Forestry Assistance Act of 1978, Public Law 95-313, as amended. No liability shall accrue to the DNRC or its officials in the event such funds are not appropriated or issued as authorized under this legislation. The DNRC may, at its sole discretion, issue a temporary stop-work order, reduce the scope of project activities, or terminate this Subaward if appropriated funding is reduced or unavailable for any reason. The DNRC will provide Subrecipient at least 10 days’ notice for a stop-work order and at least 30 days’ notice if a reduction in scope or termination is determined to be necessary due to unavailability of funds. Until the DNRC notifies Subrecipient that obligated funds are unavailable, the DNRC will continue to comply with the terms of this Subaward, including the disbursement of funds for eligible expenses incurred by Subrecipient up to the specified date and time provided in a written notice. SECTION 7. DISBURSEMENTS. Subrecipient shall submit claims for disbursement of Subaward funds to the DNRC liaison, using the “Request for Disbursement of DNRC Grant Funds / Financial Status Report” (Request) form, attached hereto as Appendix D and incorporated herein by reference. Documentation of reimbursable costs incurred and paid must be submitted with the request. Documentation may include, but is not limited to, itemized receipts, vendor invoices, inspection certificates, transaction ledgers or other financial reports that clearly show expenditures, payroll records, copies of checks, bank statements, and other forms of proof of payment. The DNRC will determine whether documentation submitted adequately supports the disbursement request and may require additional documentation before approving payment. Reimbursement of Subrecipient’s expenditures will only be made for expenses included in the Project Budget in Section 5, that are clearly and accurately supported by the Subrecipient's records. Subrecipient should seek timely reimbursement of claimed costs incurred under this Subaward. A minimum of one Request must be submitted annually to the DNRC. The annual period begins on the Subaward date of last signature. In the event no reimbursable costs are incurred in an annual period, a Request for zero dollars ($0.00) listing current subaward balances must be DocuSign Envelope ID: E2F03E8C-0A39-4050-84EB-BB8CC2D55169 In Process 73 FY22 – DNRC Forestry Subaward Page 4 of 8 submitted to the DNRC. Request for final disbursement of Subaward funds is due 30 days following the subaward termination date. The DNRC may determine the method of submission for disbursement requests. Methods may include requiring paper versions by US Mail, e-mail or state FTP portal transmission for electronic versions, or entry in a registered Subrecipient account in a grant management system. If a required submission method changes during the term of the Subaward, the DNRC will provide thirty (30) days’ notice. The DNRC may withhold up to ten percent (10%) of the total authorized subaward amount until both the project tasks (outlined in Section 1 and Section 4) and the Final Report (required by Section 8) are completed by the Subrecipient and approved by the DNRC. SECTION 8. REPORTS. The Subrecipient shall immediately notify the DNRC of developments that have a significant impact on the activities supported under this Subaward. Notification must be given in the case of problems, delays or adverse conditions that materially impair the ability of the Subrecipient to meet the objectives of the Subaward. The notification must include a statement on action taken or contemplated, and any assistance needed to resolve the situation including requests for scope and/or timeline modifications as provided for below in Section 16, Assignment and Amendment. Quarterly progress reports for the periods ending each March, June, September and December must be submitted to the DNRC during the term of this Subaward. Reports will provide status information for each project implementation objective. Project status information will include, at a minimum, the percentage completed, costs incurred, funds remaining, and projected completion date. The Subrecipient shall report on total project costs, including grant- funded costs, Subrecipient-provided match, and match provided by other sources. Quarterly reports must be submitted to the DNRC by the last day of the next month following the close of the quarterly period. The first quarter closes December 31, 2021, and the report is due on or before January 31, 2022. The first quarterly should include all activities under this Subaward project to-date. The DNRC will review reports for completeness and accuracy, and will notify the Subrecipient if changes are necessary. No claims for disbursements will be honored by the DNRC until complete, accurate quarterly reports have been submitted by the Subrecipient. A suggested Quarterly Report format is attached hereto as Appendix B and incorporated herein by reference. A Final Report that details the project status, results, accomplishments, and financial status will be submitted to the DNRC by the Subrecipient for approval upon project completion. Final reports are due 30 days following the subaward termination date. Final disbursement of Subaward funds is contingent upon the DNRC’s receipt and approval of the Final Report. A suggested Final Report format is attached hereto as Appendix C and incorporated herein by reference. The DNRC may determine the method of submission for all Quarterly and Final reports. Methods may include requiring paper versions by US Mail, e-mail or state FTP portal transmission for electronic versions, or entry in a registered Subrecipient account in a grant management system. If a required submission method changes during the term of the Subaward, the DNRC will provide thirty (30) days’ notice. DocuSign Envelope ID: E2F03E8C-0A39-4050-84EB-BB8CC2D55169 In Process 74 FY22 – DNRC Forestry Subaward Page 5 of 8 SECTION 9. RECORDS AND AUDITS. The Subrecipient must maintain appropriate and adequate records showing complete entries of all receipts, disbursements, and other transactions relating to this Subaward for three (3) years after the later of either the final Subaward payment or the termination or expiration of this Subaward. The DNRC, the Montana Legislative Audit Division, or the Montana Legislative Fiscal Division may, at any reasonable time, audit all records, reports, and other documents that the Subrecipient maintains under or during the course of this Subaward to ensure compliance with its terms and conditions. SECTION 10. PROJECT MONITORING AND ACCESS FOR INSPECTION AND MONITORING. The DNRC or its agents may monitor and inspect all phases and aspects of the Subrecipient’s performance to determine compliance with this Subaward, including the adequacy of records and accounts. The Subrecipient shall accommodate requests for the DNRC access to the site and records with due consideration for safety, private property rights, and convenience of everyone involved. SECTION 11. EMPLOYMENT STATUS AND WORKER'S COMPENSATION. The DNRC is not an owner or general contractor for the project. The DNRC does not control the work activities or worksite of the Subrecipient or any contractors that might be engaged by the Subrecipient for completion of the project. The Subrecipient is independent from and is not an employee, officer, or agent of the DNRC. The Subrecipient, its employees and contractors, are not covered by the DNRC’s Workers' Compensation Insurance. The Subrecipient is responsible for making sure that it and its employees are covered by Workers’ Compensation Insurance and that its contractors are in compliance with the coverage provisions of the Workers’ Compensation Act. The Subrecipient shall ensure that all employees complete the I-9 form to certify they are eligible for lawful employment under the Immigration and Nationality Act (8 USC 1324a). Subrecipient shall comply with regulations regarding certification and retention of the completed forms. SECTION 12. COMPLIANCE WITH APPLICABLE LAWS. The Subrecipient must comply with the requirements of the Federal Office of Management and Budget (OMB) guidance in subparts A through F of 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, And Audit Requirements For Federal Awards, as adopted and supplemented by the USDA in 2 CFR Part 400. These regulations are available online at the following website: www.ecfr.gov. Subrecipient certifies that it will abide by all certifications and assurances set forth in USDA Form AD-1048, “Certification Regarding Debarment, Suspension, Ineligibility & Voluntary Exclusion Lower Tier Covered Transactions,” this form having been signed, attached hereto as Appendix A, and incorporated herein by reference. Per the terms of the federal award, the Subrecipient shall also require all second-tier subrecipients and contractors who will be paid with subaward funds to sign form AD-1048, and subrecipient shall keep completed forms on file. If the amount of this contract, sub-contract, or sub-grant is in excess of $100,000, the Subrecipient will comply with all applicable standards, orders, or requirements issued under section 306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR part 15). All work performed under this Subaward must fully comply with all applicable federal, state, and local laws, rules, and regulations, including but not limited to, the Montana Human Rights Act, the Civil Rights Act of 1964, the Age Discrimination Act of 1975, the Americans with Disabilities DocuSign Envelope ID: E2F03E8C-0A39-4050-84EB-BB8CC2D55169 In Process 75 FY22 – DNRC Forestry Subaward Page 6 of 8 Act of 1990, and Section 504 of the Rehabilitation Act of 1973. Any subletting or subcontracting by the Subrecipient subjects subcontractors to the same provision. In accordance with 49-3- 207, MCA, the Subrecipient agrees that the hiring of persons to perform this Subaward will be made on the basis of merit and qualifications and without discrimination based upon race, color, religion, creed, political ideas, sex, age, marital status, physical or mental disability, or national origin of the persons performing this Subaward. It shall be the Subrecipient's responsibility to obtain all permits, licenses, or authorizations that might be required from government authorities for completion of the project. Procurement of labor, services, supplies, materials and equipment shall be conducted according to applicable federal, state, and local statutes. The DNRC’s signature on this Subaward does not guarantee the approval or issuance of any permits, licenses, or any other form of authorization to take action for which Subrecipient must apply with the DNRC or any other government entity and submit to the DNRC to fulfill the terms of this Subaward. TRAFFICKING IN PERSONS. Subrecipients under this award and the Subrecipient’s employees may not: (1) Engage in severe forms of trafficking in persons during the period of time that the award is in effect; (2) Procure a commercial sex act during the period of time that the award is in effect; or (3) Use forced labor in performance of the award or subawards under the award. NONDISCRIMINATION STATEMENT – PRINTED, ELECTRONIC, OR AUDIOVISUAL MATERIAL. The Subrecipient shall include the following statement, in full, in any printed audiovisual material, or electronic media for public distribution developed or printed with any Federal funding. In accordance with Federal law and U.S. Department of Agriculture policy, this institution is prohibited from discriminating on the basis of race, color, national origin, sex, age, or disability. (Not all prohibited bases apply to all programs.) To file a complaint of discrimination, write USDA, Director, Office of Civil Rights, Room 326-W, Whitten Building, 1400 Independence Avenue, SW, Washington, DC 20250-9410 or call (202) 720-5964 (voice and TDD). USDA is an equal opportunity provider and employer. If the material is too small to permit the full statement to be included, the material must at minimum, include the following statement, in print size no smaller than the text: “This institution is an equal opportunity provider.” SECTION 13. AGENCY RECOGNITION REQUIREMENTS Use of Agency Insignia. Subrecipient shall request in writing permission from the USFS Northern Region and receive written permission from the USFS before using the USFS insignia on any published media, such as a webpage, printed publication, or audiovisual production. Subrecipient shall request in writing and receive written permission from the DNRC before using the DNRC insignia on any published media, such as a webpage, printed publication, or audiovisual production. Public Notices. Subrecipient is encouraged to give public notice of the receipt of this subaward of federal grant funds and, from time to time, to announce progress and accomplishments. Press releases or other public notices should include and all notices of funding opportunities or solicitation for project participants must include a statement substantially as follows: “The DocuSign Envelope ID: E2F03E8C-0A39-4050-84EB-BB8CC2D55169 In Process 76 FY22 – DNRC Forestry Subaward Page 7 of 8 funding for this project is derived in full [or in part] from a federal award of the U.S. Forest Service, Department of Agriculture, subawarded by the Montana Department of Natural Resources and Conservation, Forestry Division.” Acknowledgment in Publications, Audiovisuals, and Electronic Media. Subrecipient shall acknowledge USFS and DNRC support as appropriate in any publications, audiovisuals, and electronic media developed as a result of this subaward of USFS grant funds. Follow direction in USDA Supplemental 2 CFR 415.2. SECTION 14. COPYRIGHTING AND GOVERNMENT RIGHT TO USE. Subrecipient is granted sole and exclusive right to copyright any publications developed as a result of this award. The State of Montana and the USFS reserve a royalty-free, nonexclusive, and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use the work for government purposes. This provision includes any right of copyright to which Subrecipient purchases ownership with any federal contributions. No original text or graphics produced by the State of Montana or the USFS shall be copyrighted. SECTION 15. FAILURE TO COMPLY. If the Subrecipient fails to comply with the terms and conditions of this Subaward, the DNRC may terminate this Subaward and refuse additional disbursements of subaward funds and take legal action to recover disbursed subaward funds. Such termination will become a consideration in the DNRC’s evaluation of future applications for subawards. SECTION 16. ASSIGNMENT AND AMENDMENT. The Subrecipient may not assign or transfer any portion of this Subaward without the DNRC’s express written consent. Amendments will be in writing, signed by both parties, and attached as an integral component of this Subaward. This Subaward may be terminated by the mutual written consent of both parties. If this Subaward is terminated, the Subrecipient may not submit claims for reimbursement for costs incurred beyond the mutually agreed to termination date. SECTION 17. MONTANA LAW AND VENUE. Any action or judicial proceeding for enforcement of the terms of this Subaward shall be instituted only in the courts of Montana and shall be governed by the laws of Montana. Venue shall be in the First Judicial District, Lewis and Clark County, Montana. SECTION 18. AGREEMENT EXTENSION. This Subaward may, upon mutual written agreement between the parties and according to its terms, be extended. SECTION 19. INDEMNITY AND LIABILITY (HOLD HARMLESS / INDEMNIFICATION). Subrecipient agrees to be financially responsible for any audit exception or other financial loss to the DNRC and the State of Montana which occurs due to the negligence, intentional acts, or failure by Subrecipient and/or its agents, employees, subcontractors, or representatives to comply with the terms of this Subaward. Subrecipient hereby agrees to defend, indemnify, and hold harmless the DNRC and the State of Montana and its agents from and against any and all claims, demands, or actions for damages to property or injury to persons or other damage to persons or entities arising out of, or resulting from the performance of this Subaward or the results of this Subaward, provided such damage to property or injury to persons is due to the negligent act or DocuSign Envelope ID: E2F03E8C-0A39-4050-84EB-BB8CC2D55169 In Process 77 FY22 – DNRC Forestry Subaward Page 8 of 8 omission, recklessness, or intentional misconduct of Subrecipient or any of its employees. This Subaward is not intended to relieve a liable party of financial or legal responsibility. SECTION 20. INSURANCE REQUIREMENTS. General Requirements. The Subrecipient shall maintain for the duration of this Subaward, at its cost and expense, insurance against claims for injuries to persons or damages to property, including liability, which may arise from or in connection with the performance of the work by the Subrecipient, agents, employees, representatives, assigns, or contractors. This insurance shall cover such claims as may be caused by any negligent act or omission. Specific Requirements for Commercial General Liability. The Subrecipient shall purchase and maintain occurrence coverage with combined single limits for bodily injury, personal injury, and property damage of $750,000 per occurrence and $1,500,000 aggregate per year to cover such claims as may be caused by any act, omission, or negligence of the Subrecipient or its officers, agents, representatives, assigns or contractors. This Subaward consists of pages 1 – 8, plus the following appendices: • Appendix A [Form AD-1048] • Appendix B [Quarterly Report Format] • Appendix C [Final Report Format] • Appendix D [Request for Disbursement Form]. The Subrecipient hereby accepts this Subaward according to the above terms and conditions. __________________ By: ______________________________________________ Date Subrecipient or Subrecipient’s Authorized Representative _____________________________________________ Printed Name __________________ By: ______________________________________________ Date DNRC Authorized Representative ______________________________________________ Printed Name DocuSign Envelope ID: E2F03E8C-0A39-4050-84EB-BB8CC2D55169 Brian Heaston In Process 78 This form is available electronically. Form Approved – OMB No. 0505-0027 Expiration Date: 04/30/2022 Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion AD-1048 Lower Tier Covered Transactions The following statement is made in accordance with the Privacy Act of 1974 (5 U.S.C. § 552a, as amended). This certification is required by the regulations implementing Executive Order 12549, Debarment and Suspension, and 2 C.F.R. §§ 180.300, 180.335, Participants' responsibilities. The regulations were amended and published on August 31, 2005, in 70 Fed. Reg. 51865-51880. Copies of the regulations may be obtained by contacting the Department of Agriculture agency offering the proposed covered transaction. According to the Paperwork Reduction Act of 1995 an agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a valid OMB control number. The valid OMB control number for this information collection is 0505-0027. The time required to complete this information collection is estimated to average 15 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information . The provisions of appropriate criminal and civil fraud privacy, and other statutes may be applicable to the information provided. (Read instructions on page two before completing certification.) A.The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency; B.Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. ORGANIZATION NAME PR/AWARD NUMBER OR PROJECT NAME NAME(S) AND TITLE(S) OF AUTHORIZED REPRESENTATIVE(S) SIGNATURE(S) DATE In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident. Persons with disabilities who require alternative means of communication for program information (e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English. To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at How to File a Program Discrimination Complaint (https://www.ascr.usda.gov/filing-program-discrimination-complaint-usda-customer) and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by: (1) mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue, SW, Washington, D.C. 20250-9410; (2) fax: (202) 690-7442. Appendix ADocuSign Envelope ID: E2F03E8C-0A39-4050-84EB-BB8CC2D55169 City of Bozeman FHE-21-101 Brian Heaston In Process 79 Instructions for Certification (1)By signing and submitting this form, the prospective lower tier participant is providing the certification set out on page 1 in accordance with these instructions. (2)The certification in this clause is a material representation of fact upon which reliance was placed when this transaction wa s entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification , in addition to other remedies available to the Federal Government, the department or agency with which this transaction originat ed may pursue available remedies, including suspension or debarment. (3)The prospective lower tier participant shall provide immediate written notice to the person(s) to which this proposal is subm itted if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. (4)The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier covered transaction," "participant," "per son," "primary covered transaction," "principal," "proposal," and "voluntarily excluded," as used in this clause, have the meanings set o ut in the Definitions and Coverage sections of the rules implementing Executive Order 12549, at 2 C.F.R. Parts 180 and 417. You may contact the department or agency to which this proposal is being submitted for assistance in obtaining a copy of those regulations. (5)The prospective lower tier participant agrees by submitting this form that, should the proposed covered transaction be en tered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineli gible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or a gency with which this transaction originated. (6)The prospective lower tier participant further agrees by submitting this form that it will include this clause titled "Certif ication Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion -Lower Tier Covered Transactions," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. (7)A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determin es the eligibility of its principals. Each participant may, but is not required to, check the System for Award Management (SAM) database. (8)Nothing contained in the foregoing shall be construed to require establishment of a syste m of records to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. (9)Except for transactions authorized under paragraph (5) of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded fr om participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. Form AD-1048 (REV 12/18) Page 2 of 2 Appendix ADocuSign Envelope ID: E2F03E8C-0A39-4050-84EB-BB8CC2D55169 In Process 80 QUARTERLY REPORT FOR SUBAWARD AGREEMENT NUMBER: xxx - xx - xxx Reporting period: Select Quarter , Select Year Agreement termination date: Click to enter/select date List Outreach Activities # Educational Programs Completed This Quarter this quarter this quarter Enter Narrative Here. A narrative describing project progress, process, challenges, and other pertinent information is required. If project includes multiple geographic areas, please provide a detailed description of where project accomplishments occurred (e.g., 20 acres and 10 property assessments completed in Gold Creek, 1 community meeting held in Potomac, etc.). Include before/after photos and other representative information to support narrative. Enter Summary Here. A summary of a monitoring review held with DNRC staff member, as applicable. Appendix B SUBAWARD AGREEMENT SUGGESTED QUARTERLY REPORT FORMAT Enter Name of Organization Here DocuSign Envelope ID: E2F03E8C-0A39-4050-84EB-BB8CC2D55169 In Process 81 Subaward Agreement FINAL REPORT FORMAT Title Page: 1. Subrecipient’s name, address & telephone numbers. 2.Name, address, and telephone numbers of others who may be contacted concerning the project if the primary contacts are not available. 3.Funding: Total project cost and amount of subaward. Introduction: Describe the project history, project location, and the purpose of the project. Discussion and Results: 1.Document that project goals, objectives, and tasks identified in the Subaward have been completed. Copy the project goals, objectives, and tasks verbatim. After listing each goal, object, and task, document that they were completed. If any were not completed, explain why. It is very important that you provide evidence that the agreement was completed as agreed to in Section 4 of the Subaward, Project Scope. 2.Summarize any problems encountered and solutions adopted. What would you do differently? Public Benefits: List the anticipated overall public benefits of the project as stated in the grant application. Were these benefits realized? If not, explain why not. Subaward Administration & Project Costs: 1. Budget Include a summary of how the monies were spent by budget category and source of funding. Was the project completed according to budget? Explain any cost overruns or savings. Discuss any unbudgeted expenses that arose over the course of the project. 2.Matching Funds Identify the matching funds that were to be spent according to the Subaward. Document that these funds were spent. If not all matching funds were spent, explain why. Appendix C DocuSign Envelope ID: E2F03E8C-0A39-4050-84EB-BB8CC2D55169 In Process 82 Grant Agreement Number / Project Name From (mm/dd/yy):To (mm/dd/yy): Direct Costs: Subrecipient Salary/Wages/Benefits $0.00 Operating Expenses $0.00 Payments to Landowners (Beneficiaries)$0.00 Contracted Services $0.00 SubTotal $0.00 $0.00 $0.00 $0.00 $0.00 Indirect Costs:$0.00 TOTAL $0.00 $0.00 $0.00 $0.00 $0.00 Date Grant balance remaining (after this request) Cumulative match expenses to date (if applicable) Request for Disbursement of DNRC Grant Funds / Financial Status Report Request for Reimbursement Grantee Name Period covered by this request: Request for Advance Grantee Representative / Preparer's Signature Total Grant Budget by category (from grant agreement) Funds received from DNRC (before this request) Disbursement amount requested Revised Aug 2015 Appendix D DocuSign Envelope ID: E2F03E8C-0A39-4050-84EB-BB8CC2D55169 In Process 83 Certificate Of Completion Envelope Id: E2F03E8C0A39405084EBBB8CC2D55169 Status: Sent Subject: Please use included link to DocuSign DNRC agreement FHE-21-101 Source Envelope: Document Pages: 13 Signatures: 0 Envelope Originator: Certificate Pages: 4 Initials: 0 Lorie Palm AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-08:00) Pacific Time (US & Canada) 1539 11th Avenue Helena, MT 59601 lpalm@mt.gov IP Address: 161.7.39.7 Record Tracking Status: Original 11/4/2021 9:37:47 AM Holder: Lorie Palm lpalm@mt.gov Location: DocuSign Security Appliance Status: Connected Pool: StateLocal Storage Appliance Status: Connected Pool: Montana Dept of Natural Resources & Conservation Location: DocuSign Signer Events Signature Timestamp Brian Heaston bheaston@bozeman.net Security Level: Email, Account Authentication (None) Sent: 11/4/2021 9:48:33 AM Viewed: 11/4/2021 10:16:11 AM Electronic Record and Signature Disclosure: Accepted: 11/4/2021 10:16:11 AM ID: dbdda3c0-4603-485d-a8c2-83379a3e8b00 Erik Warrington ewarrington@mt.gov Security Level: Email, Account Authentication (None) Electronic Record and Signature Disclosure: Accepted: 9/29/2021 8:57:36 AM ID: 1d0f45d7-f9d7-4908-88b1-129d2b219653 In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Witness Events Signature Timestamp Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 11/4/2021 9:48:33 AM Payment Events Status Timestamps Electronic Record and Signature Disclosure In Process 84 ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, Montana Dept of Natural Resources & Conservation (we, us or Company) may be required by law to provide to you certain written notices or disclosures. Described below are the terms and conditions for providing to you such notices and disclosures electronically through the DocuSign system. Please read the information below carefully and thoroughly, and if you can access this information electronically to your satisfaction and agree to this Electronic Record and Signature Disclosure (ERSD), please confirm your agreement by selecting the check-box next to ‘I agree to use electronic records and signatures’ before clicking ‘CONTINUE’ within the DocuSign system. Getting paper copies At any time, you may request from us a paper copy of any record provided or made available electronically to you by us. You will have the ability to download and print documents we send to you through the DocuSign system during and immediately after the signing session and, if you elect to create a DocuSign account, you may access the documents for a limited period of time (usually 30 days) after such documents are first sent to you. After such time, if you wish for us to send you paper copies of any such documents from our office to you, you will be charged a $0.00 per-page fee. You may request delivery of such paper copies from us by following the procedure described below. Withdrawing your consent If you decide to receive notices and disclosures from us electronically, you may at any time change your mind and tell us that thereafter you want to receive required notices and disclosures only in paper format. How you must inform us of your decision to receive future notices and disclosure in paper format and withdraw your consent to receive notices and disclosures electronically is described below. Consequences of changing your mind If you elect to receive required notices and disclosures only in paper format, it will slow the speed at which we can complete certain steps in transactions with you and delivering services to you because we will need first to send the required notices or disclosures to you in paper format, and then wait until we receive back from you your acknowledgment of your receipt of such paper notices or disclosures. Further, you will no longer be able to use the DocuSign system to receive required notices and consents electronically from us or to sign electronically documents from us. All notices and disclosures will be sent to you electronically Electronic Record and Signature Disclosure created on: 11/13/2020 9:32:35 PM Parties agreed to: Brian Heaston, Erik Warrington In Process 85 Unless you tell us otherwise in accordance with the procedures described herein, we will provide electronically to you through the DocuSign system all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship with you. To reduce the chance of you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Thus, you can receive all the disclosures and notices electronically or in paper format through the paper mail delivery system. If you do not agree with this process, please let us know as described below. Please also see the paragraph immediately above that describes the consequences of your electing not to receive delivery of the notices and disclosures electronically from us. How to contact Montana Dept of Natural Resources & Conservation: You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: kgermaine@mt.gov To advise Montana Dept of Natural Resources & Conservation of your new email address To let us know of a change in your email address where we should send notices and disclosures electronically to you, you must send an email message to us at kgermaine@mt.gov and in the body of such request you must state: your previous email address, your new email address. We do not require any other information from you to change your email address. If you created a DocuSign account, you may update it with your new email address through your account preferences. To request paper copies from Montana Dept of Natural Resources & Conservation To request delivery from us of paper copies of the notices and disclosures previously provided by us to you electronically, you must send us an email to kgermaine@mt.gov and in the body of such request you must state your email address, full name, mailing address, and telephone number. We will bill you for any fees at that time, if any. To withdraw your consent with Montana Dept of Natural Resources & Conservation To inform us that you no longer wish to receive future notices and disclosures in electronic format you may: In Process 86 i. decline to sign a document from within your signing session, and on the subsequent page, select the check-box indicating you wish to withdraw your consent, or you may; ii. send us an email to kgermaine@mt.gov and in the body of such request you must state your email, full name, mailing address, and telephone number. We do not need any other information from you to withdraw consent.. The consequences of your withdrawing consent for online documents will be that transactions may take a longer time to process.. Required hardware and software The minimum system requirements for using the DocuSign system may change over time. The current system requirements are found here: https://support.docusign.com/guides/signer-guide- signing-system-requirements. Acknowledging your access and consent to receive and sign documents electronically To confirm to us that you can access this information electronically, which will be similar to other electronic notices and disclosures that we will provide to you, please confirm that you have read this ERSD, and (i) that you are able to print on paper or electronically save this ERSD for your future reference and access; or (ii) that you are able to email this ERSD to an email address where you will be able to print on paper or save it for your future reference and access. Further, if you consent to receiving notices and disclosures exclusively in electronic format as described herein, then select the check-box next to ‘I agree to use electronic records and signatures’ before clicking ‘CONTINUE’ within the DocuSign system. By selecting the check-box next to ‘I agree to use electronic records and signatures’, you confirm that:  You can access and read this Electronic Record and Signature Disclosure; and  You can print on paper this Electronic Record and Signature Disclosure, or save or send this Electronic Record and Disclosure to a location where you can print it, for future reference and access; and  Until or unless you notify Montana Dept of Natural Resources & Conservation as described above, you consent to receive exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you by Montana Dept of Natural Resources & Conservation during the course of your relationship with Montana Dept of Natural Resources & Conservation. In Process 87 Memorandum REPORT TO:City Commission FROM:Jeff Mihelich, City Manager Cory Klumb, Police Captain SUBJECT:Authorize the City Manager to Sign a Master Services Purchase Agreement and Statement of Work with Upstate Wholesale Supply Company D/B/A “Brite”, to Purchase a Fully Integrated Body-Worn Camera, Interview Room Video, Patrol Car Video, and Mobile Data Terminal System, Including Hardware, Software, Cloud Storage and Warranty. MEETING DATE:November 16, 2021 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign a Master Services Purchase Agreement and Statement of Work with Upstate Wholesale Supply Company D/B/A “Brite”, to Purchase a Fully Integrated Body-Worn Camera, Interview Room Video, Patrol Car Video, and Mobile Data Terminal System, Including Hardware, Software, Cloud Storage and Warranty. STRATEGIC PLAN:3.1 Public Safety: Support high quality public safety programs, emergency preparedness, facilities, and leadership. BACKGROUND:The Bozeman Police Department is committed to transparency to the citizens of Bozeman. Body-worn cameras (BWCs) are an important technological tool and will assist the department by improving evidentiary outcomes, increasing transparency, and enhancing the safety of the public and officers. Additionally, the BWC system purchase follows through on the City Manager’s recommendation in the 2020 Bozeman Inclusive City Report. While the BPD currently utilizes patrol car video and audio, there are proximal and storage limitations to the system. BWCs will fill this gap. Proper implementation and administration of a BWC system requires compatibility throughout the entire video network. This means that video and audio that is captured needs to seamlessly integrate with patrol car video, mobile data terminals, and the Bozeman Public Safety Center interview rooms to maximize efficiency through proper case and records management. Pursuant to a Request for Proposals issued in 2020, t he Bozeman Police Department and City of Bozeman IT Department conducted a comprehensive search by evaluating several vendors, weighing the ability of their products to effectively meet these needs with the overall costs. Through this RFP, we have tentatively entered into a purchase agreement 88 with Brite for the purchase of the Getac suite of products. Getac is a company with over 25 years of rugged computing history with a history of reliable products, service and warranties. We are confident that Brite/Getac will meet our needs for many years. Below is breakdown of costs associated with the system: FY22 - Getac Video In-Car systems: 24 vehicles; Installation, training, cloud storage, 5 year warranty - $240,547 FY 22-23 –7 interview room cameras at BPSC, with installation, cloud storage and 4 year warranty - $42,829 FY23 – 60 Body-worn cameras, with cloud storage, docks, installation and 4 year warranty - $146,972 FY24-FY26 – Unlimited Cloud storage and software maintenance - $201,000 (67K per year). UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:Patrol car video systems are within the department’s existing FY22 Capital Improvement Plan budget allocations. Subsequent costs are included in the Police Department’s future Capital Improvement Plan. Attachments: Brite Statement of Work.pdf Brite Master Services Purchase Agreement.pdf Report compiled on: November 9, 2021 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 BRITE 2021 CONFIDENTIAL 1 MASTER SERVICES AGREEMENT (Professional Services, BRITEPROTECT, BRITESTAR) This Master Services Agreement (the “MSA”) is effective as of the 5th day of November, 2021 (the “Effective Date”) between Upstate Wholesale Supply Company, Inc. D/B/A Brite ("Brite"), a New York corporation having a principal place of business at 7647 Main Street, Victor, NY 14564, on behalf of itself and its affiliates and the City of Bozeman, Montana (“Customer”), a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, on behalf of itself, its subsidiaries, and affiliates. Brite and Customer are individually referred to as a “Party” and collectively as the “Parties”. 1. SERVICES/STATEMENTS OF WORK. Brite shall provide Customer with certain professional services, managed IT services and/or managed security services (the “Work”) as specified on each executed Statement of Work. On and subject to the terms and conditions of this MSA and each executed Statement of Work, Brite shall perform and deliver the Work, and Customer shall accept and pay for the Work as described in each executed Statement of Work. Each Statement of Work shall be signed by the authorized signatory of each Party. Each Statement of Work shall be referenced by date and shall be deemed to be incorporated into this MSA. In the event of a conflict between the terms of this MSA and any Statement of Work entered into after the Effective Date of this MSA, the terms of the Statement of Work shall govern. 2. TERM. This MSA shall be effective the Effective Date and, unless sooner terminated as provided herein, this MSA shall continue for five (5) years (the “Initial Term”). Upon expiration of the Initial Term, this MSA shall continue a month to month basis (the “Renewal Term” and collectively with the Initial Term, the “Term”), terminable by either Party on thirty (30) days prior writ ten notice to the other Party. This MSA shall continue to apply to any Statement of Work in effect beyond the expiration of this MSA. 3. CHARGES. Brite shall submit to Customer periodic invoices for the Work rendered. Unless contrary payment terms are specified in the applicable Statement of Work, (i) monthly recurring charges for subscription services shall be billed in advance of the service period and non-recurring charges shall be billed in arrears; and (ii) the entire amount of such invoices shall be paid within thirty (30) days from the invoice date (the “Due Date”). A late charge equal to the lesser of 1.5% per month or the maximum amount permitted under applicable law shall be paid on any invoice past due until such delinquent invoice is paid. All invoices and payments shall be in U.S. dollars. If amounts due under the Invoice are not paid by the Due Date, Brite may, at its option, upon ten (10) days written notice, immediately suspend all Work under all Statement(s) of Work until payment is received in full (including without limitation suspension of access to any Licensed Software) and/or, upon thirty (30) days written notice, terminate all Statement(s) of Work for breach. Customer shall use all commercially reasonable efforts to notify Brite of any objection within thirty (30) calendar days of the invoice date, identifying the reasons there for in writing and timely paying that portion of the invoice not in dispute. Invoices will be considered acceptable to Customer if no such objections are made with 180 days of the invoice date. The rates for Work do not include any federal, state, county, local, or other taxes howsoever designated and whether levied or based upon such charges, this MSA, or any other service supplied hereunder (“Taxes”). Unless otherwise specified in a Statement of Work, Customer shall reimburse Brite for all reasonable travel and living expenses incurred by Brite in the course of performing any Work under this MSA, in accordance with the Customer’s travel policies which the Customer shall provide to Brite p rior to the commencement of any Work. Customer shall reimburse Brite for all pre-approved third party charges for software, hardware or other materials procured by Brite for Customer, which equipment shall, upon payment for the same to Brite, becomes the p roperty of the Customer. 4. CONFIDENTIALITY AND SECURITY A. During the Term of this MSA and anytime thereafter, the receiving Party (“Recipient”) shall not, without the prior written consent of the disclosing Party (“Disclosing Party”), use, exploit, reveal or disclose any information that which the Disclosing Party designates as being confidential or which, under the circumstances surrounding disclosure, the Recipient knows or has reason to know should be treated as confidential, including but not limited to financial or customer data, the processing system, programs, files, specifications, drawings, sketches, models, samples, tools or other data, oral, written or otherwise or any information relating to the Disclosing Party’s business, customers or confidential affairs of the Disclosing 112 BRITE 2021 CONFIDENTIAL 2 Party (“Information”); provided that (i) the Information may be disclosed to such of Recipient’s or Recipient’s affiliate companies’ employees and contractors who have a need to know for the purpose of fulfilling Recipient’s obligations under this MSA, and (ii) this MSA and the Information may be disclosed to either of the Party’s respective outside auditors, financial advisors, lenders, attorneys or professional advisors on a need to know basis with respect to any financing, audit or other engagement of such Party’s professional advisors. Recipient shall advise any such individuals that the Information is confidential and that by receiving such information such individuals are agreeing to be bound by the terms of this Section 4 (“Confidentiality”) and are agreeing not to use such information for any purpose other than described herein . Without the Disclosing Party’s prior written consent, Recipient shall not, and shall direct such individuals not to, disclose the Information in whole or in part, except to the extent compelled by law . B. The provisions of this Section 4 shall not apply to information of the Disclosing Party which: (i) is or becomes through no fault of the Recipient part of the public domain; (ii) was already known to the Recipient at the time of disclosure as evidenced by written documents; (iii) was independently developed by the Recipient without reference to or use of information received from the Disclosing Party; or (iv) is rightfully obtained by the Recipient from a third party outside of this MSA. The Recipient acknowledges that all information of the Disclosing Party shall be and remain the property of the Disclosing Party. The Recipient shall return to the Disclosing Party all documents received from the Disclosing Party promptly after a request by the Disclosing Party. C. The Recipient shall protect the information of the Disclosing Party with the same degree of care as the Recipient employs for the protection of the Recipient's own trade secrets and confidential information (but in no event shall such care be less than that which is commercially reasonable). In furtherance thereof, the Recipient shall establish and maintain commercially reasonable administrative, physical and technical safeguards to protect against the unauthorized access, use or disclosure of the other Par ty’s Information. Each Party agrees to promptly notify the other Party of any unauthorized use or disclosure of the Information and to provide assistance to such other Party, and its licensors, in the investigation and prosecution of such unauthorized use and disclosure. D. It is further understood and agreed that money damages may not be a sufficient remedy for any breach of Recipient’s obligations under this Section 4 (“Confidentiality”) by Recipient, or any employees, contractors or advisors under Recipient’s supervision and that the Disclosing Party shall be entitled to seek specific injunctive relief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for the breach of obligations under this Section 4 (“Confiden tiality”) but shall be in addition to all other available legal or equitable remedies. E. If the Parties have previously executed a Nondisclosure Agreement then the terms and conditions of such Nondisclosure Agreement are hereby incorporated into this MSA by reference. To the extent that there is a conflict between the terms and conditions of this MSA and such Nondisclosure Agreement, the more restrictive terms and conditions shall apply. 5. LIMITATION OF LIABILITY. Neither Customer nor Brite shall be liable to the other Party or to any third party for any lost profits; any loss of business; any cost of replacement services; or any indirect, consequential, incidental, or special losses or damages of any kind or nature whatsoever, howsoever cau sed, including without limitation loss of equipment, or software. The Parties agree that the terms in this Limitation of Liability section represent a reasonable allocation of risk given the nature of the Work to be provided hereunder. The sole and exclusive remedy of Brite and of Customer for any claim, loss, or damages in any way related to, or arising out of, this MSA or any Work provided or anticipated to be provided hereunder shall be limited to such Party's actual, direct damages. The limitations expressed in this section shall not preclude either Party from seeking injunctive relief. 6. WARRANTY. Brite represents and warrants to Customer that it shall perform the Work using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this MSA. Nothing in this MSA (including any Statement of Work) or any materials provided to Customer by Brite in connection with the Work shall be construed as a promise or guarantee as to the outcome of the Work. Brite 113 BRITE 2021 CONFIDENTIAL 3 makes no warranties for any third-party equipment, software and the like furnished by Brite and such warranties shall be limited to those warranties provided by the third-party equipment manufacturers and the software licensors. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 6, BRITE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE WORK AND EXPLICITLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT (WHETHER OR NOT BRITE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING. 7. COMPLIANCE WITH LAW. Each Party is responsible for ensuring that all materials and information provided to the other Party to be used in connection with the Work under this MSA, and the Work provided under this MSA, shall comply with all applicable laws and regulations in the jurisdictions in which the Work is provided hereunder. Each Party will be responsible for compliance with all laws, rules, and regulations involving, but not limited to, employment of labor, hours of labor, working conditions, payment of wages, and payment of taxes, such as unemployment, Social Security, and other payroll taxes, including applicable contributions from such persons when required by law. In accordance with data privacy laws and regulations applicable to this MSA, which may include, but not be limited to, the Gramm-Leach-Bliley Act (“GLBA”) and the Health Insurance Portability and Accountability Act (“HIPAA”), Brite shall not disclose or permit access to or use the non-public personal information of Customer or its customers made available by Customer to Brite for any purposes other than those specifically required to fulfill Brite’s contractual obligations with Customer. Further Brite represents that it shall lawfully protect data considered confidential criminal justice information under applicable law. Brite represents it will store all data in the United States. 8. INDEMNIFICATION. Brite shall release, indemnify and hold harmless, and defend Customer and its respective employees, officers, and directors from and against any and all claims, damages, losses, liabilities, actions, proceedings (whether legal or administrative), demands, and expenses (including but not limited to reasonable attorneys' fees) threatened, asserted or filed by a third party against Customer (the “Claims”), but only to the extent that such Claims (i) result from or in any way related to the negligent, reckless, or intentional misconduct of Brite, its employees, subcontractors, agents, and/or those that it is legally liable for in connection to the Work; (ii) relate to any personal injury or damage to property resulting from the negligence or willful misconduct of the Brite, its employees, subcontractors, agents and/or those that it is legally liable for in connection with the Work; or (iii) are based upon any claim that any materials supplied by Brite(including without limitation the Information) and used by Customer for its intended purpose and in accordance with the terms of this MSA infringes any copyright, trade secret or other proprietary right of any third party, provided that the provisions of the foregoing subsection (ii) shall not apply with respect to any third party software or equipment installed by Brite for Customer or distributed or sub -licensed to Customer by Brite as an agent or distributor or reseller of the licensor of such software or the equipment. The obligations of this Section 8 are contingent upon Customer (i) giving the Brite prompt written notice of any such claim; (ii) allowing Birte to control the defense and related settlement negotiations; and (iii) providing reasonable cooperation, at Brite’s expense, in the defense and all related settlement negotiations. Brite shall not enter into any agreement which results in liability to Customer without its prior written consent, which consent (or lack thereof) shall not be unreasonably delayed, except for liabilities for monetary damages to be paid by Brite. The obligations of this Section 8 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 Customer as indemnitee(s) which would otherwise exist as to such indemnitee(s). Brite’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by Customer. Should Customer be required to bring an action against Brite to assert its right to defense or indemnification under this MSA or under Brite’s applicable insurance policies required below, Customer 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 Brite was obligated to defend the claim(s) or was obligated to indemnify Customer for a claim(s) or any portion(s) thereof. In the event of an action filed against Customer resulting from the Customer’s performance under this MSA, Customer may elect to represent itself and incur all costs and expenses of suit. 114 BRITE 2021 CONFIDENTIAL 4 Brite also waives any and all claims and recourse against Customer, 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 MSA except “responsibility for [Customer’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. 9. ASSIGNMENT. This MSA may not be enlarged, modified or altered except by written agreement signed by both parties hereto. Brite may not subcontract or assign Brite’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the Customer. Any subcontractor or assignee will be bound by all of the terms and conditions of this MSA. Neither Party may assign the MSA (including any Statement of Work) without the prior written consent of the other Party, which consent shall not be unreasonably withheld, delayed or conditioned, to any entity affiliated with, controlling, controlled by or under common control with such Party, provided that such assignee affirmatively assumes in writing the obligations of the assigning Party hereunder. 10. FORCE MAJEURE. No Party shall be liable for any default or delay in the performance of its obligations under the MSA, excluding obligations for the payment of any invoices, if and to the extent the default or delay is caused, directly or indirectly, by fire, flood, elements of nature, acts of God, acts of war, terrorism or civil unrest, or any other similar unforeseeable cause beyond the reasonable control of the Party. In such event, the non-performing Party is excused from further performance for as long as such circumstances prevail and the Party continues to use commercially reasonable efforts to recommence performance. Any Party so delayed shall promptly notify the other and describe the circumstances causing the delay. For the avoidance of doubt, each Party understands and agrees that this contract is being entered into during a period of a COVID-19 pandemic and while each Party shall use all reasonable efforts to mitigate delays, the timing of deliverables under this agreement may be impacted by COVID-19 events. 11. LICENSED SOFTWARE AND INTELLECTUAL PROPERTY. To the extent that the Work includes the license of software for the Customer’s use during the Term (either on a licensed basis or through a software for services application) (collectively the “Licensed Software”), the Name and Version of the Licensed Software, the Name of the Licensor (the “Licensor”) and the number of Permitted Users shall be specified on the applicable Statement of Work. As applicable to any Licensed Software specified on a Statement of Work, Brite, (as the Licensor or the sub-licensor), hereby grants to Customer a non-exclusive, limited, revocable, non-transferable license to allow the Permitted Users to use the Licensed Software for its intended purposes, and, as applicable, in accordance with any end user license terms and conditions of the Licensor (the “EULA”) Customer may not, nor permit any third party to, copy the Licensed Software; modify, translate or otherwise create derivative works of the Licensed Software , or; reverse-engineer the Licensed Software. Customer understands and agrees that no title to the Licensed Software, or any improvement, modification or enhancement thereto, shall pass to the Customer under this MSA. Customer’s rights in the Licensed Software are limited to the limited license expressly granted herein. As between the Customer and Brite, Brite exclusively owns all intellectual property rights, title and interest in any ideas, concepts, know-how, documentation or techniques Brite provides under this MSA, and all technology available on the Brite servers and equipment (other than those components which ar e licensed from others). Brite shall have the right to use the techniques, methodologies, tools, ideas and other know-how gained during the performance of the Work in the furtherance of its own business and to perfect all intellectual property rights related thereto, subject to Brite’s obligations of confidentiality as set forth in Section 4 hereof with respect to the Customer’s Information. Notwithstanding any other provision of this MSA to the contrary, including the provisions of Section 17 (Dispute Resolution), Brite and/or its Licensors shall be entitled to pursue any and all remedies ava ilable at law or in equity in the event of a breach or threatened breach by Customer of the provisions of this Section 11 and/or the EULA, including preliminary and permanent injunctions. 12. APPLICABLE LAW AND BINDING EFFECT. This MSA shall be governed by and construed in accordance with the laws of the State of Montana and shall inure to the benefit of and be binding upon the parties hereto and their heirs, personal representatives, successors, and permitted assigns. Subject to the provisions of Section 16 (“Dispute Resolution”), the forum for any action brought under or arising out of this MSA shall be the federal or state courts of Gallatin County, Montana. 115 BRITE 2021 CONFIDENTIAL 5 13. TERMINATION. Notwithstanding the provisions regarding the term of this MSA set forth in Section 2 above, and in addition to the parties' rights of termination specifically provided elsewhere in this MSA, the following shall apply: A. Except during the term of any Statement(s) of Work, this MSA may be terminated by either Party for convenience on thirty (30) days advance written notice to the other Party, subject to payment of all amounts due for Work rendered prior to termination. B. In the event that one Party breaches any material obligation under this MSA or any Statement(s) of Work (other than payment obligations, which are governed by Section 3 above), the aggrieved Party shall give the breaching Party written notice of the breach and request that the breach be cured ("Cure Notice"). If the breaching Party fails to implement a reasonable corrective action plan and take reasonable action steps to accomplish the plan within thirty (30) days of receipt of the Cure Notice (or such other mutually agreed upon time), the aggrieved Party shall have the right to terminate this MSA and any or all applicable Statement(s) of Work immediately upon providing written notice to the breaching Party. The aggrieved Party shall have the sole discretion to determine whether the aforementioned corrective action plan and action steps are reasonable. If Brite’s performance of its obligations are prevented or delayed by any act or omission of Customer or its agents, subcontra ctors, consultants or employees, Brite shall not be deemed in breach of its obligations under this MSA. C. A Party may, at its option, terminate this MSA effective immediately upon written notice upon the occurrence of an "Insolvency Event of Default" (as defined below) with respect to the other Party. The occurrence of any one or more of the following events shall constitute an "Insolvency Event of Default": the other Party admits in writing its inability to pay its debts generally or makes a general ass ignment for the benefit of creditors; any affirmative act of insolvency by the other Party or the filing by or against the other Party (which is not dismissed within ninety (90) days) of any petition or action under any bankruptcy, reorganization, insolvency arrangement, liquidation, or dissolution; or the subjection of a material part of the other Party's property to any levy, seizure, assignment or sale for or by any creditor. D. In the event of termination of this MSA and/or any Statement(s) of Work by Brite for Customer’s uncured breach, or by Customer for its convenience, Customer shall pay Brite the ETF, if any, specified in the applicable Statement(s) of Work, which ETF shall be due and payable on the termination date. E. Upon termination of any Statement(s) of Work, Customer shall discontinue its use of any Licensed Software and return all equipment provided by Brite for Customer’s use in connection with the Work. Customer’s rights to any Brite Information or the Licensed Software shall immediately terminate. 14. NONDISCRIMINATION AND EQUAL PAY: Brite agrees that all hiring by Brite of persons performing this MSA shall be on the basis of merit and qualificatio ns. Brite will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti -discrimination laws, regulations, and contracts. Brite will not refuse employment to a person, bar a person from employment, or d iscriminate 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, p hysical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. Brite 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. Brite represents it is, and for the term of this MSA 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). Brite must report to Customer any violations of 116 BRITE 2021 CONFIDENTIAL 6 the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Brite shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 15. NOTICE. All notices and other communications under this MSA shall be in writing and addressed by name and address to the Party intended as follows: To Brite: with a copy to: Point of Contact Justin Smith President & COO Brite 7647 Main Street Victor, NY 14564 Fax: 585-758-0237 To Customer: with a copy to: Point of Contact Cory Klumb Detective Captain, Bozeman Police Department City of Bozeman 121 North Rouse P.O. Box 1230 Bozeman, MT 59771 Fax: or at such other address as a Party hereto may designate by written notice. Notice shall be deemed duly given (i) when delivered in person; (ii) upon confirmation of a facsimile transmission to the intended recipient; (iii) upon delivery of electronic mail to the host email system of the intended recipient; or (iv) upon delivery by registered or certified U.S. mail, return receipt requested, postage prepaid, or by other prepaid delivery service offering proof of delivery. 16. DISPUTE RESOLUTION. In the event of a dispute between the Parties, Customer and Brite agree to attempt a process of informal dispute resolution involving escalation within each Party’s management organizations. Upon mutual agreement of the Parties, the Parties may invite an independent, disinterested mediator to assist in negotiated settlement discussions. If the Parties are unable to resolve disputes through informal means or mediation, the any dispute, controversy, or claim arising out of or relating to this MSA, or the breach, termination, or invalidity thereof (whether in tort, contract, statute or otherwise) in a court of competent jurisdiction in compliance with the Applicable Law provisions of this MSA. 17. NO EXCLUSIVE AGREEMENT. Unless otherwise explicitly stated in an applicable Statement of Work, nothing in this MSA or any Statement of Work shall be deemed to grant to Brite an exclusive right or privilege to provide any Work to Customer or any Customer affiliate. Customer acknowledges that Brite provides a variety of services to other parties, and agrees that nothing in this MSA or any Statement of Work shall be deemed or construed to prevent Brite from (i) providing work or services to any other party, or (ii) developing for itself, or for others, materials that may be or are competitive to those produced as a result of the Work provided under this MSA, subject to Brite’s confidentiality obligations with respect to Customer Information in accordance with the provisions of Section 4 (“Confidentiality”) hereof. 18. PUBLICITY. Customer agrees that as further consideration for the Work, Brite may use the Customer’s name in Brite’s marketing and promotional materials (including listing the Customer as a customer of Brite on the Brite website), provided that Brite restricts such usage to identification of the Customer as a customer of Brite and 117 BRITE 2021 CONFIDENTIAL 7 makes no representation about the quality, quantity or type of work performed by Brite without the Customer’s written consent. 19. INSURANCE. Brite agrees to carry, at its sole expense, insurance coverage through insurance companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by Brite in Section 8, as specified in Exhibit A of this MSA. Customer shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General, Employer’s and Automobile Liability policies. Prior to or contemporaneously with the execution of this MSA, Brite shall furnish Customer certificates of the insurance required under this Section. 20. RELATIONSHIP OF THE PARTIES. Neither the making of this MSA nor the performance of provisions of this MSA or any Work shall be construed to constitute either Party hereto as an agent, employee or legal representative of the other Party for any purpose, nor shall this MSA be deemed to establish a joint venture or partnership between the Parties. Neither Party shall have any right or authority to create any obligation, warranty, representation or responsibility, express or implied, on behalf of the other Party, nor to bind the other Party in any manner whatsoever. The relationship of Brite to Customer under this MSA shall be deemed to be that of an independent contractor. 21. INVALID PROVISION. The invalidity or unenforceability of any term or provision of this MSA or the nonapplication of any such term or provision to any person or circumstance shall not impair or affect the remainder of this MSA, and the remaining terms and provisions hereto shall not be invalidated, but shall remain in full force and effect and shall be construed as if such invalid unenforceable, or nonapplicable provisions were omitted. 22. WAIVER OR MODIFICATION. No waiver or modification of this MSA or of any covenant, condition or limitation herein contained shall be valid unless in writing and duly executed by the Party to be charged therewith. Furthermore, no evidence of any waiver or modification shall be offered or received in evidence in any proceeding or litigation between the parties arising out of or affecting this MSA, or the rights or obligations of any Party hereunder, unless such waiver or modification is in writing and duly executed as aforesaid . The provisions of this paragraph may not be waived except as herein set forth. 23. SURVIVAL OF RIGHTS AND OBLIGATION. The provisions of Sections 4 (Confidentiality), 5 (Limitation of Liability), 6 (Warranty), 8 (Indemnification), 11 (Intellectual Property), 12 (Applicable Law), 13 (E) (Termination Damages),, 16 (Dispute Resolution) and 20 (Relationship of the Parties) shall survive the termination or expiration of this MSA. 24. NO THIRD-PARTY BENEFICIARIES. This MSA is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms. 25. COUNTERPARTS. This MSA (including any Statement of Work) may be executed in multiple original, facsimile or electronic counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 26. ENTIRE AGREEMENT. This MSA constitutes the entire agreement of the parties hereto with respect to the subject matter of this MSA and except as specifically stated herein, supersedes any and all prior negotiations, understanding and agreements with respect hereto. Section and paragraph headings used throughout this MSA are for reference and convenience and in no way define, limit or describe the scope or intent of this MSA or affect its provisions. 118 BRITE 2021 CONFIDENTIAL 8 IN WITNESS WHEREOF, the parties hereto have caused this MSA to be executed by their duly authorized representatives as of the day and year first above written. UPSTATE WHOLESALE SUPPLY, INC. City of Bozeman, Montana D/B/A BRITE By: By: Print Name: Print Name: Jeff Mihelich Title: Title: City Manager 119 BRITE 2021 CONFIDENTIAL 9 EXHIBIT A Insurance Requirements Commercial General Liability Insurance - Including Products and Completed Operations with coverage at least equivalent to the following except standard industry exclusions are permitted. Bodily Injury and Property Damage: $1,000,000 per occurrence Personal Injury: $1,000,000 General Aggregate: $2,000,000 The policy shall include an Additional Insured Endorsement including Customer as an Additional Insured for liability arising out of this MSA including ongoing operations, products liability and completed operations. This insurance shall be primary and not seek contribution from any other insurance or self -insurance available to Customer or its affiliates. Automobile Liability Insurance - Including owned, leased and non-owned vehicles with coverage at least equivalent to the following: Bodily Injury and Property Damage: $1,000,000 per occurrence This insurance shall be primary and not seek contribution from any other insurance or self -insurance available to Customer or its affiliates. Workers’ Compensation and Employers’ Liability - Workers’ Compensation - Statutory Employers’ Liability - $1,000,000 per person; $2,000,000 annual aggregate Crime Insurance – Including employee dishonesty coverage with an endorsement to provide third party fidelity coverage. Limit Each Occurrence: $1,000,000 Umbrella Liability – This policy shall provide an additional limit over Commercial General Liability Insurance, Auto Liability Insurance and Employers’ Liability with coverage at least as broad as the aforementioned underlying policies, including with respect to any additional insured status. Limit: $3,000,000 Professional/Errors & Omissions Liability Insurance – This policy shall cover errors or omissions related to the projects undertaken through this MSA including but not limited to claims for the loss or misuse of personal information, infringement of copyright, trade dress or other intellectual property and damage to Customer’s network or data. If written on a claims-made basis, this policy must remain in effect for thirty six (36) months after the conclusion of the work described herein. Annual Aggregate Limit: $3,000,000 Cyber Liability Insurance – This policy may be independent or specifically covered in the General Liability Insurance policy and shall cover data breaches and cyberattacks. Limit $1,000,000 per occurrence Technology Errors & Omissions Insurance – This policy shall cover errors or omissions related to the technology recommended, implemented and deployed through this MSA. This policy may be independent or specifically covered in a broad cyber liability insurance policy. 120 BRITE 2021 CONFIDENTIAL 10 Annual Aggregate Limit: $1,000,000 121 Memorandum REPORT TO:City Commission FROM: Luke Kline, Parks and Recreation Contracts Coordinator Mitch Overton, Parks and Recreation Department Director Chuck Winn, Assistant City Manager SUBJECT: Authorize the City Manager to Sign a Professional Services Agreement with Advantage Spraying Services Inc. to Provide Snow Removal Services for the City of Bozeman Parks and Trails District MEETING DATE:November 16, 2021 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign a Professional Services Agreement with Advantage Spraying Services Inc. to provide Snow Removal Services for the City of Bozeman Parks and Trails District. STRATEGIC PLAN:6.5 Parks, Trails & Open Space: Support the maintenance and expansion of an interconnected system of parks, trails and open spaces. BACKGROUND: The City of Bozeman Parks and Recreation Department conducted a request for proposals process to solicit and acquire professional snow removal services required to maintain parks grounds and landscape areas in the newly established City of Bozeman Parks and Trails Special District. On October 7, 2021 the City received three proposal responses submitted by qualified vendors to provide the Snow Removal Services. After careful evaluation of the proposal criteria and required scope of services requested, Advantage Spraying Services Inc. was determined to be a qualified, responsive, responsible vendor. Advantage Spraying Services Inc. has reputable experience providing services for the City Bozeman with an established ability to accomplish the snow removal services as requested. The selected contractor Advantage Spraying Services Inc. will complete the services as defined the attached Professional Services Agreement and described there in as Exhibit A: Scope of Services P&TD Snow Removal 122 Services and Exhibit B: P&TD Snow Removal Services Advantage Land Care. UNRESOLVED ISSUES:None. ALTERNATIVES: As suggested by the City Commission.FISCAL EFFECTS: Funding is currently allocated for this work within the FY21 and FY22 approved budget for the Parks and Trails District Maintenance Fund of the Parks and Recreation Department. Attachments: Professional Service Agreement Snow Removal Services Advantage Spraying Services Inc.pdf Report compiled on: October 20, 2021 123 Professional Services Agreement for Advantage Spraying Services Inc. Page 1 of 12 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of November, 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, Advantage Spraying Services Inc., 144 Wildcat Way, Bozeman MT 59718, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1.Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof. 2.Term/Effective Date: This Agreement is effective upon the Effective Date unless earlier terminated in accordance with this Agreement. 3.Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services in Exhibit A. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4.Payment: City agrees to pay Contractor the amount specified and attached hereto as Exhibit B . Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5.Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: 124 Professional Services Agreement for Advantage Spraying Services Inc. Page 2 of 12 a.Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6.Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. Contractor shall post a legible statement of all wages and fringe benefits to be paid to the Contractor’s employees and the frequency of such payments (i.e., hourly wage employees shall be paid weekly). Such posting shall be made in a prominent and accessible location at the Contractor’s normal place of business and shall be made no later than the first day of services provided under this Agreement. Such posting shall be removed only upon expiration or termination of this Agreement. 125 In performing the services under this Agreement, Contractor shall give preference to the employment of bona fide residents of Montana, as required by §18-2-403, MCA, as such term is defined by §18-2-401(1), MCA. When making assignments of work, Contractor shall use workers both skilled in their trade and specialized in their field of work for all work to which they are assigned. Pursuant to §§18-2-403 and 18-2-422, MCA, Contractor shall pay wages, fringe benefits, and expenses, including travel allowances as set forth in the current Montana Prevailing Wage Rate for Non Construction Services in effect and applicable to Gallatin County, Montana, which schedule is incorporated herein. Contractor shall pay all hourly wage employees on a weekly basis. Violation of the requirements set forth in the above State of Montana schedule of prevailing wage rates may subject the Contractor to the penalties set forth in §18-2-407, MCA. Contractor shall maintain payroll records during the term of this Agreement and for a period of three (3) years following termination of this Agreement. The Contractor shall ensure that any person, firm or entity performing any portion of the services under this Agreement for which the contractor, subcontractor or employer is responsible, is paid the applicable standard prevailing rate of wages. In the event that, during the term of this Agreement, any labor problems or disputes of any type arise or materialize which in turn cause any services to cease for any period of time, Contractor specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes and for any claims regarding underpaid prevailing wages. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or Professional Services Agreement for Advantage Spraying Services Inc. Page 3 of 12 126 damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. Professional Services Agreement for Advantage Spraying Services Inc. Page 4 of 12 127 Professional Services Agreement for Advantage Spraying Services Inc. Page 5 of 12 In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: •Workers’ Compensation – statutory; •Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; •Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; •Automobile Liability - $1,000,000 property damage/bodily injury per accident; and •Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a.If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due 128 Professional Services Agreement for Advantage Spraying Services Inc. Page 6 of 12 to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b.In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c.Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d.In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a.Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b.Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c.In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d.The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, 129 Professional Services Agreement for Advantage Spraying Services Inc. Page 7 of 12 be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a.In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b.In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11.Representatives and Notices: a.City’s Representative: The City’s Representative for the purpose of this Agreement shall be Luke Kline, Contracts Coordinator or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b.Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be Patrick Doran or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other 130 Professional Services Agreement for Advantage Spraying Services Inc. Page 8 of 12 designated Contractor personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12.Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13 Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14.Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). 131 Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 16. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 17. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. Professional Services Agreement for Advantage Spraying Services Inc. Page 9 of 12 132 Professional Services Agreement for Advantage Spraying Services Inc. Page 10 of 12 18. Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 19. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 21.Dispute Resolution: a.Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b.If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 22. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 23. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 24.Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 25.Applicable Law: The parties agree that this Agreement is governed in all respects by 133 the laws of the State of Montana. 26. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 28. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 29. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 30. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. 31. Extensions: this Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than three years. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** Professional Services Agreement for Advantage Spraying Services Inc. Page 11 of 12 134 Professional Services Agreement for Advantage Spraying Services Inc. Page 12 of 12 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. CITY OF BOZEMAN, MONTANA ____________________________________ CONTRACTOR (Type Name Above) By________________________________ By__________________________________ Jeff Mihelich, City Manager Print Name: ___________________________ Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 135 Page 1 of 23 REQUEST FOR PROPOSAL (RFP) PARKS & TRAILS DISTRICT SNOW REMOVAL SERVICES CITY OF BOZEMAN Bozeman, MT City of Bozeman PO Box 1230 Bozeman, MT 59771-1230 September 2021 Exhibit A 136 I.INTRODUCTION The City of Bozeman (Owner), is seeking proposals from qualified contractors to provide snow and ice removal services for the Parks and Recreation Department. The Owner intends to enter into a contract with the selected firm that will include snow and ice removal services on an “as-needed” basis beginning October 15, 2021 through April 30, 2022. Work is to be completed within 24 hours of notification from the Parks and Recreation Superintendent. This RFP shall not commit the Owner to enter into an agreement, to pay any expenses incurred in preparation of any response to this request, or to procure or contract for any supplies, goods or services. The Owner reserves the right to accept or reject all responses received as a result of this RFP if it is in the Owner’s best interest to do so. This procurement is governed by the laws of the State of Montana and venue for all legal proceedings shall be in the 18th Judicial District Court, Gallatin County. By offering to perform services under this RFP, all Submitters agree to be bound by the laws of the State of Montana and of the Owner, including, but not limited to, applicable wage rates, payments, gross receipts taxes, building codes, equal opportunity employment practices, safety, non-discrimination, etc. II.PROJECT BACKGROUND AND DESCRIPTION On May 5, 2020, the City of Bozeman approved the Bozeman Parks and Trails Special District (District). With the endorsement of Bozeman resident’s the District granted the City authorization to conduct annual levy assessments for funding to maintain and operate all of the City owned parks and trails. To accomplish the District objectives the City has developed a multi-year Parks and Trails District implementation plan designed to achieve steady calculated increases in level of service standards and sustainable maintenance practices in all City Parks. On July 1, 2020, the City’s Parks and Recreation Department assumed full responsibility for all of the District’s designated park properties including the addition of 217 acres of park land located within subdivision parks previously maintained by home owners/community associations. To address the requirements for all maintenance, operations, capital and deferred maintenance needed in the new District the City will establish contracts for professional services with qualified contractors. The City of Bozeman is seeking proposals from contractors to perform grounds and landscape maintenance for parks, trails and amenities within the District. Contractor will provide services to ensure that City landscapes are effectively and efficiently maintained for the benefit of the city and its residents. The selected contractor will begin snow removal services in October 2021 and continue services through the completion of the winter season at the end of April 2022. Exhibit A 137 The routine services will be conducted for approximately a 28 week period in total or approximately 7 months per year. III.SCOPE OF SERVICES The City of Bozeman Parks and Recreation Department is in need of a contractor to remove snow and ice from sidewalks and park areas within the Bozeman city limits. Snow removal will be performed on an “as needed” schedule during 2021-2022 winter season. The scope of services includes: 1.The Contractor is to perform snow and ice removal of sidewalks, pedestrian crossings any other areas as determined by the Parks Superintendent. Services shall be completed through various methods such as, but not limited to: chipping, ice melts, blowing, shoveling, plowing, etc. 2.The Contractor shall use equipment no wider than the sidewalk which is being cleaned. Equipment shall be of a weight that will not damage the sidewalk or adjacent property. The contractor shall maintain his operation within the public right of way. 3.Snow and ice must be completely removed from the sidewalks before payment will be made to the contractor and shall not be moved into streets. If salt or other chemicals are used to loosen ice, only the minimum amount of salt or other chemicals will be used to adequately perform this function and the contractor shall refrain from depositing any resulting salt/ice mixture onto private property, grassed, or landscaped area. 4.Snow and ice removal shall commence within twenty-four (24) hours after notice by the City is given to the contractor. The Contractor may be required to work on any day of the week, including holidays. Other related services may be requested on an as needed basis. Locations may be added or removed from the contract at any time. The final scope of services may change and will be contained in a professional services agreement to be executed by the City and the selected Contractor. IV.PROPOSAL REQUIREMENTS Firms interested in providing the services described above are requested to submit the following information. Responses to each item should appear in the same order as listed in this RFP and should identify the item to which the responses applies. Proposal shall provide the following information, include, at a minimum, the following items: Exhibit A 138 1.An executive summary not exceeding two pages which summarizes key points of the proposal and which is signed by an officer of the firm who is responsible for committing the firm’s resources. 2.A narrative describing the contractor’s qualifications as they relate to the Scope of Services, including the contractor’s availability of staffing to perform the tasks and response times for work requests submitted by the City Parks and Recreation Department. 3.Provide a quote for fixed per hour rate for services listed within Scope of Services. Cost must include and define all equipment, labor, materials provided and description for all service provided at fixed per hour rate. 4.Provide a quote for fixed per hour rate for additional services available if not listed in the scope of services. Include description of all equipment, labor and materials provided at fixed per hour cost. Provide additional information is needed to describe all services. 5.Contractor shall include any current industry professional certifications, relevant expertise or experience, three (3) references for similar completed work and work previously/currently being performed for the City of Bozeman. Affirmation of Nondiscrimination (see Appendix A) Non-completion of the Affirmation of Nondiscrimination is cause for disqualification of firms. V.TIMELINES, DELIVERY DEADLINE, AND INSTRUCTIONS EVENT DATE/TIME Publication dates of RFQ Sunday, September 19, 2021 Sunday, September 26, 2021 Deadline for receipt of proposals No later than 2 PM, MST, October 7, 2021 Evaluation of proposals TBD Interviews (if necessary) and Selection of consultants TBD With the exception of the advertising dates and advertised due date, the City reserves the right to modify the above timeline. Deliver RFPs via email to the City Clerk (agenda@bozeman.net) by October 7th at 2PM MST. It is the sole responsibility of the proposing party to ensure that proposals are received prior to the closing time as late submittals will not be accepted and will be returned unopened. All proposals must be provided as a single, searchable PDF document file and be submitted digitally as an email attachment to the RFP Recipient email address agenda@bozeman.net. Respondents are advised that Recipient’s email attachment size limit is 25MB and that only one Exhibit A 139 PDF file will be allowed per response. The subject line of the transmittal email shall clearly identify the RFP title, company name and due date/time. File sizes greater than 25MB in size may be uploaded to bzncloud.bozeman.net upon special arrangement of the Recipient; however, it is the respondent’s sole responsibility to ensure the file upload is completed, and that the Recipient is separately notified via email of same, prior to the given deadline. VI.AMENDMENTS TO SOLICITATION Any interpretation or correction of this request will be published on the City’s webpage. The deadline for questions related to this document is 2 PM MST on September 30th, 2021. VII.CONTACT INFORMATION Any administrative questions regarding proposal procedures should be directed to: Mike Maas, City Clerk, (406) 582-2321, agenda@bozeman.net Questions relating to scope of services should be directed to: Luke Kline, Contracts Coordinator, lkline@bozeman.net , and (406) 582-2290. VIII.SELECTION PROCEDURE A review committee will evaluate all responses to the RFP that meet the submittal requirements and deadline. Submittals that do not meet the requirement or deadline will not be considered. The review committee will rank the proposals and may arrange interviews with the finalist(s) prior to selection. Selection may be made directly based on the written RFP submission. If interviews occur, the selection of finalists to be interviewed will be made by a selection committee representing the City of Bozeman. The selection of interview candidates will be based on an evaluation of the written responses to the RFPs. All submitted proposals must be complete and contain the information required as stated in the "Request for Proposals.” IX.SELECTION CRITERIA Proposals will be evaluated based on the following criteria: • [10 points] Executive Summary •[60 points] Qualifications of the Firm for Scope of Services; Cost •[30 points] Related Experience with Similar Projects Exhibit A 140 X.FORM OF AGREEMENT The Contractor will be required to enter into a contract with the City in substantially the same form as the professional services agreement attached as Appendix B. XI.CITY RESERVATION OF RIGHTS / LIABILITY WAIVER All proposals submitted in response to this RFP become the property of the City and public records and, as such, may be subject to public review. A SUBMISSION IN RESPONSE TO THIS REQUEST FOR QUALIFICATIONS CONFERS NO RIGHTS UPON ANY RESPONDENTS AND SHALL NOT OBLIGATE THE CITY IN ANY MANNER WHATSOEVER. THE CITY RESERVES THE RIGHT TO MAKE NO AWARD AND TO SOLICIT ADDITIONAL REQUEST FOR QUALIFICATIONS AT A LATER DATE. A.This RFP may be canceled or any or all responses may be rejected in whole or in part, as specified herein, when it is in the best interests of the City. If the City cancels or revises this RFP, all Respondents who submitted will be notified using email. B.The City reserves the right to accept or reject any and all proposals; to add or delete items and/or quantities; to amend the RFP; to waive any minor irregularities, informalities, or failure to conform to the RFP; to extend the deadline for submitting proposals; to postpone award for up to 60 days; to award one or more contracts, by item or task, or groups of items or tasks, if so provided in the RFP and if multiple awards or phases are determined by the City to be in the public interest. C.The City of Bozeman reserves the right to reject the proposal of any person/firm who previously failed to perform properly to the satisfaction of the City of Bozeman, or complete on time agreements of similar nature, or to reject the proposal of any person/firm who is not in a position to perform such an agreement satisfactorily as determined by the City of Bozeman. D.The City of Bozeman reserves the right to determine the best qualified Contractor and negotiate a final scope of service and cost, negotiate a contract with another Contractor if an agreement cannot be reached with the first selected Contractor, or reject all proposals. E.The professional services contract between the City of Bozeman and the successful Contractor will incorporate the Contractor's scope of service and work schedule as part of the agreement (see Appendix B for form of professional services agreement. The professional services agreement presented to the Contractor may differ from this form as appropriate for the scope of services). F.This RFP does not commit the City to award a contract. The City assumes no liability or responsibility for costs incurred by firms in responding to this request for proposals or Exhibit A 141 request for interviews, additional data, or other information with respect to the selection process, prior to the issuance of an agreement, contract or purchase order. The Contractor, by submitting a response to this RFP, waives all right to protest or seek any legal remedies whatsoever regarding any aspect of this RFP. G.The City reserves the right to cancel, in part or in its entirety, this RFP including, but not limited to: selection procedures, submittal date, and submittal requirements. If the City cancels or revises this RFP, all Contractors who submitted proposals will be notified using email. H.Projects under any contract are subject to the availability of funds. XII.NONDISCRIMINATION AND EQUAL PAY POLICY The City of Bozeman requires each entity submitting under this notice shall affirm, on a separate form provided, that 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, sexual preference, gender identity, or disability in fulfillment of a contract entered into for the services identified herein and that this prohibition on discrimination shall apply to the hiring and treatment of the submitting entity’s employees and to all subcontracts it enters into in the fulfillment of the services identified herein. Failure to comply with this requirement shall be cause for the submittal to be deemed nonresponsive. The City also requires each entity submitting under this notice shall affirm 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. XIII.MISCELLANEOUS A.No Oral Agreements. No conversations or oral agreements with any officer, employee, or agent of the City shall affect or modify any term of this solicitation. Oral communications or any written/email communication between any person and City officer, employee or agent shall not be considered binding. B.No Partnership/Business Organization. Nothing in this solicitation or in any subsequent agreement, or any other contract entered into as a result of this solicitation, shall constitute, create, give rise to or otherwise be recognized as a partnership or formal business organization of any kind between or among the respondent and the City. C.Employment Restriction and Indemnity. No person who is an owner, officer, employee, contractor, or consultant of a respondent shall be an officer or employee of the City. No rights of the City’s retirement or personnel rules accrue to a respondent, Exhibit A 142 its officers, employees, contractors, or consultants. Respondents shall have the responsibility of all salaries, wages, bonuses, retirement, withholdings, worker’s compensation and occupational disease compensation, insurance, unemployment compensation other benefits and taxes and premiums appurtenant thereto concerning its officers, employees, contractors, and consultants. Each Respondent shall save and hold the City harmless with respect to any and all claims for payment, compensation, salary, wages, bonuses, retirement, withholdings, worker’s compensation and occupational disease compensation, insurance, unemployment compensation other benefits and taxes and premiums in any way related to each respondent’s officers, employees, contractors and consultants. D.Accessibility. Upon reasonable notice, the City will provide assistance for those persons with sensory impairments. For further information please contact the ADA Coordinator Mike Gray at 406-582-3232 or the City’s TTY line at 406-582-2301. E.Procurement. When discrepancies occur between words and figures in this solicitation, the words shall govern. No responsibility shall attach to a City employee for the premature opening of an RFP not properly addressed and identified in accordance with these documents. F.Governing Law. This solicitation and any disputes arising hereunder or under any future agreement shall be governed and construed and enforced in accordance with the laws of the State of Montana, without reference to principles of choice or conflicts of laws. XIV.ATTACHMENTS The following exhibits are incorporated in this RFP: Appendix A: Non-Discrimination Affirmation Appendix B: Form of Professional Services Agreement END OF RFP Exhibit A 143 Executive Summary Advantage LandCare is a large HOA, commercial, and residential snow removal company. A large grouping of our customers are located within the City of Bozeman. Our mission is to provide our customers with a professional snow removal service, and to exceed the expectations of our customers. At Advantage LandCare, we have been providing snow removal services for commercial accounts, residential homeowners, and large HOA’s within the City of Bozeman since 2008. Our approach to these projects is to provide a timely and high level of service on these properties. We do this by extensive training of our employees, as well as purchasing and maintaining proper equipment to handle projects of this size. We require a professional appearance from our staff, and keep our equipment in proper working order at all times. This is done by providing year-round salaried positions to our employees, proper equipment, as well as consistent upkeep and repair of our snow removal equipment. As owners we handle all maintenance duties to keep our equipment running smoothly throughout the winter season. Safety training for our employees, as well as proper personal protective equipment is also provided for their use at all times. Snow removal services from Advantage LandCare operate from November 1st through March 31st. However, we are available before and after those dates if requested. Patrick Doran Steve Lee Exhibit B 144 Contractor Narrative Advantage Landcare has been providing snow removal within the city of Bozeman since 2008. Before that Patrick Doran & Steve Lee (owners) were working for a local company providing snow removal for the previous 6 years. As owners of the company, we are directly involved with our snow removal operations during every event. We consider snow removal to be an emergency service, and because of that it must be completed in a consistent, timely, and professional manner. Our services include residential, commercial, and large HOA snow removal from parking lots & sidewalks. We also offer ice melt services on parking lots and sidewalks at our client’s request. At Advantage Landcare we are consistently providing training to our employees, as well as offering advancement within our company. Labor shortages in Bozeman have been a challenge throughout the past year. However, we have been able to remain fully staffed throughout these challenging times. We accomplish this through advertising, and offering competitive wages with benefits to our employees. Exhibit B 145 Scope Of Services Following Is A List Services With An Hourly Rate For These Services. •Snow Plowing From Sidewalks & Pedestrian Cross Walk Ramps: $125.00 Per Hour •Snow Blowing From Sidewalks & Pedestrian Cross Walk Ramps: $125.00 Per Hour •Ice Melt Services On Sidewalks & Pedestrian Cross Walk Ramps: $65.00 Per Bag Of Ice Melt Applied. Price Includes Labor & Materials. •Chipping Of Ice From Sidewalks & Pedestrian Cross Walk Ramps: $50.00 Per Hour Following Is A List Of Equipment Advantage Landcare Uses For Sidewalk Snow & Ice Removal. •(2) Ventrac 4500 Z’s with snow plow, broom, & snow blower. •(3) Boss Snowrators with plow •(1) Bobcat Toolcat with plow & blower •(2) ATV’s with plow •(10) Walk behind snow blowers •(1) Walk behind push spreader City Of Bozeman Accounts That Advantage Landcare Can Provide Service For •Any accounts in zone 1 that we are currently providing landscape maintenance on. Exhibit B 146 Professional References Kevin Black - Account Manager for Cook Development (406)579-0560 kblack@cookdevelopmentmt.com Kathi Thorsen – Property Manager/Owner Legacy Properties (406)577-1470 kathi@bozemanlegacy.com Tom White or Luke Kline – City Of Bozeman Parks Department TWhite@bozeman.net lkline@bozeman.net Exhibit B 147 NONDISCRIMINATION AND EQUAL PAY AFFIRMATION �uo-J'-.� L�s:.N----L..(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, �\�R.._ L�c.� (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://wayback.archive-it.org/499/20210701223409/https:/equalpay.mt.gov/, or equivalent "best practices publication and has read the material. ���'\)o,°">, \J �c�-\�\€.-s,�\- Name and title of person authorized to sign on behalf of submitter Exhibit B 148 Memorandum REPORT TO:City Commission FROM:Luke Kline, Parks and Recreation Contracts Coordinator Mitch Overton, Parks and Recreation Department Director Chuck Winn, Assistant City Manager SUBJECT:Authorize the City Manager to Sign a Professional Services Agreement with Clean Slate Group LLC. to Provide Snow Removal Services for the City of Bozeman Parks and Trails District MEETING DATE:November 16, 2021 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign a Professional Services Agreement with Clean Slate Group LLC. to provide Snow Removal Services for the City of Bozeman Parks and Trails District. STRATEGIC PLAN:6.5 Parks, Trails & Open Space: Support the maintenance and expansion of an interconnected system of parks, trails and open spaces. BACKGROUND: The City of Bozeman Parks and Recreation Department conducted a request for proposals process to solicit and acquire professional snow removal services required maintain parks grounds and landscape areas in the newly established City of Bozeman Parks and Trails Special District. On October 7, 2021 the City received three proposal responses submitted by qualified vendors to provide the Snow Removal Services. After careful evaluation of the proposal criteria and required scope of services requested, Clean Slate Group LLC. was determined to be a qualified, responsive and responsible vendor. The Clean Slate Group LLC. has a demonstrated history of providing services including park maintenance, graffiti removal and sanitation services to the City Bozeman since 2011. The Clean Slate Group LLC. snow removal division is capable of providing a diverse assortment of equipment, tools, materials and staff to complete snow removal tasks as requested by the City. The selected contractor Clean Slate Group LLC. will complete the services as defined the attached Professional Services Agreement and described there in as Exhibit A: Scope of Services P&TD Snow Removal Services and Exhibit B: 149 P&TD Snow Removal Services Clean Slate Group LLC. UNRESOLVED ISSUES:None. ALTERNATIVES: As suggested by the City Commission.FISCAL EFFECTS: Funding is currently allocated for this work within the FY21 and FY22 approved budget for the Parks and Trails District Maintenance Fund of the Parks and Recreation Department. Attachments: Professional Service Agreement Snow Removal Services Clean Slate Group LLC..pdf Report compiled on: October 21, 2021 150 Professional Services Agreement for Clean Slate Group LLC. Page 1 of 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of November, 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, Clean Slate Group LLC., 34 Outlier Way, Bozeman, MT 59718, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1.Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof. 2.Term/Effective Date: This Agreement is effective upon the Effective Date unless earlier terminated in accordance with this Agreement. 3.Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services in Exhibit A. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4.Payment: City agrees to pay Contractor the amount specified and attached hereto as Exhibit B. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5.Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, 151 Professional Services Agreement for Clean Slate Group LLC. Page 2 of 11 and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6.Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. Contractor shall post a legible statement of all wages and fringe benefits to be paid to the Contractor’s employees and the frequency of such payments (i.e., hourly wage employees shall be paid weekly). Such posting shall be made in a prominent and accessible location at the Contractor’s normal place of business and shall be made no later than the first day of services provided under this Agreement. Such posting shall be removed only upon expiration or termination of this Agreement. In performing the services under this Agreement, Contractor shall give preference to the employment of bona fide residents of Montana, as required by §18-2-403, MCA, as such term is defined by §18-2-401(1), MCA. When making assignments of work, Contractor shall use workers both skilled in their trade and specialized in their field of work for all work to which they are assigned. 152 Professional Services Agreement for Clean Slate Group LLC. Page 3 of 11 Pursuant to §§18-2-403 and 18-2-422, MCA, Contractor shall pay wages, fringe benefits, and expenses, including travel allowances as set forth in the current Montana Prevailing Wage Rate for Non Construction Services in effect and applicable to Gallatin County, Montana, which schedule is incorporated herein. Contractor shall pay all hourly wage employees on a weekly basis. Violation of the requirements set forth in the above State of Montana schedule of prevailing wage rates may subject the Contractor to the penalties set forth in §18-2-407, MCA. Contractor shall maintain payroll records during the term of this Agreement and for a period of three (3) years following termination of this Agreement. The Contractor shall ensure that any person, firm or entity performing any portion of the services under this Agreement for which the contractor, subcontractor or employer is responsible, is paid the applicable standard prevailing rate of wages. In the event that, during the term of this Agreement, any labor problems or disputes of any type arise or materialize which in turn cause any services to cease for any period of time, Contractor specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes and for any claims regarding underpaid prevailing wages. 7.Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor 153 Professional Services Agreement for Clean Slate Group LLC. Page 4 of 11 agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without 154 Professional Services Agreement for Clean Slate Group LLC. Page 5 of 11 limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury per accident; and • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business 155 Professional Services Agreement for Clean Slate Group LLC. Page 6 of 11 opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for City’s Convenience: a.Should conditions arise which, in the sole opinion and discretion of the City, make it advisable to the City to cease performance under this Agreement, the City may terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the City may otherwise have against Contractor. b.Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c.In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d.The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a.In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b.In the event Contractor wants to assert a claim for damages of any kind or 156 Professional Services Agreement for Clean Slate Group LLC. Page 7 of 11 nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11.Representatives and Notices: a.City’s Representative: The City’s Representative for the purpose of this Agreement shall be Luke Kline, Contracts Coordinator or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b.Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be Ryan Rickert or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12.Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 157 Professional Services Agreement for Clean Slate Group LLC. Page 8 of 11 13 Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees 158 Professional Services Agreement for Clean Slate Group LLC. Page 9 of 11 and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 16.Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 17.Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 18.Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 19.Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 21.Dispute Resolution: 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 159 Professional Services Agreement for Clean Slate Group LLC. Page 10 of 11 in the negotiated settlement discussions. b.If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 22. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 23. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 24.Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 25.Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 26.Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 27.No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 28.Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 29. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 30.Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. 160 Professional Services Agreement for Clean Slate Group LLC. Page 11 of 11 31.Extensions: this Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than three years. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. CITY OF BOZEMAN, MONTANA ____________________________________ CONTRACTOR (Type Name Above) By________________________________ By__________________________________ Jeff Mihelich, City Manager Print Name: ___________________________ Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 161 Page 1 of 23 REQUEST FOR PROPOSAL (RFP) PARKS & TRAILS DISTRICT SNOW REMOVAL SERVICES CITY OF BOZEMAN Bozeman, MT City of Bozeman PO Box 1230 Bozeman, MT 59771-1230 September 2021 Exhibit A 162 I.INTRODUCTION The City of Bozeman (Owner), is seeking proposals from qualified contractors to provide snow and ice removal services for the Parks and Recreation Department. The Owner intends to enter into a contract with the selected firm that will include snow and ice removal services on an “as-needed” basis beginning October 15, 2021 through April 30, 2022. Work is to be completed within 24 hours of notification from the Parks and Recreation Superintendent. This RFP shall not commit the Owner to enter into an agreement, to pay any expenses incurred in preparation of any response to this request, or to procure or contract for any supplies, goods or services. The Owner reserves the right to accept or reject all responses received as a result of this RFP if it is in the Owner’s best interest to do so. This procurement is governed by the laws of the State of Montana and venue for all legal proceedings shall be in the 18th Judicial District Court, Gallatin County. By offering to perform services under this RFP, all Submitters agree to be bound by the laws of the State of Montana and of the Owner, including, but not limited to, applicable wage rates, payments, gross receipts taxes, building codes, equal opportunity employment practices, safety, non-discrimination, etc. II.PROJECT BACKGROUND AND DESCRIPTION On May 5, 2020, the City of Bozeman approved the Bozeman Parks and Trails Special District (District). With the endorsement of Bozeman resident’s the District granted the City authorization to conduct annual levy assessments for funding to maintain and operate all of the City owned parks and trails. To accomplish the District objectives the City has developed a multi-year Parks and Trails District implementation plan designed to achieve steady calculated increases in level of service standards and sustainable maintenance practices in all City Parks. On July 1, 2020, the City’s Parks and Recreation Department assumed full responsibility for all of the District’s designated park properties including the addition of 217 acres of park land located within subdivision parks previously maintained by home owners/community associations. To address the requirements for all maintenance, operations, capital and deferred maintenance needed in the new District the City will establish contracts for professional services with qualified contractors. The City of Bozeman is seeking proposals from contractors to perform grounds and landscape maintenance for parks, trails and amenities within the District. Contractor will provide services to ensure that City landscapes are effectively and efficiently maintained for the benefit of the city and its residents. The selected contractor will begin snow removal services in October 2021 and continue services through the completion of the winter season at the end of April 2022. Exhibit A 163 The routine services will be conducted for approximately a 28 week period in total or approximately 7 months per year. III.SCOPE OF SERVICES The City of Bozeman Parks and Recreation Department is in need of a contractor to remove snow and ice from sidewalks and park areas within the Bozeman city limits. Snow removal will be performed on an “as needed” schedule during 2021-2022 winter season. The scope of services includes: 1.The Contractor is to perform snow and ice removal of sidewalks, pedestrian crossings any other areas as determined by the Parks Superintendent. Services shall be completed through various methods such as, but not limited to: chipping, ice melts, blowing, shoveling, plowing, etc. 2.The Contractor shall use equipment no wider than the sidewalk which is being cleaned. Equipment shall be of a weight that will not damage the sidewalk or adjacent property. The contractor shall maintain his operation within the public right of way. 3.Snow and ice must be completely removed from the sidewalks before payment will be made to the contractor and shall not be moved into streets. If salt or other chemicals are used to loosen ice, only the minimum amount of salt or other chemicals will be used to adequately perform this function and the contractor shall refrain from depositing any resulting salt/ice mixture onto private property, grassed, or landscaped area. 4.Snow and ice removal shall commence within twenty-four (24) hours after notice by the City is given to the contractor. The Contractor may be required to work on any day of the week, including holidays. Other related services may be requested on an as needed basis. Locations may be added or removed from the contract at any time. The final scope of services may change and will be contained in a professional services agreement to be executed by the City and the selected Contractor. IV.PROPOSAL REQUIREMENTS Firms interested in providing the services described above are requested to submit the following information. Responses to each item should appear in the same order as listed in this RFP and should identify the item to which the responses applies. Proposal shall provide the following information, include, at a minimum, the following items: Exhibit A 164 1.An executive summary not exceeding two pages which summarizes key points of the proposal and which is signed by an officer of the firm who is responsible for committing the firm’s resources. 2.A narrative describing the contractor’s qualifications as they relate to the Scope of Services, including the contractor’s availability of staffing to perform the tasks and response times for work requests submitted by the City Parks and Recreation Department. 3.Provide a quote for fixed per hour rate for services listed within Scope of Services. Cost must include and define all equipment, labor, materials provided and description for all service provided at fixed per hour rate. 4.Provide a quote for fixed per hour rate for additional services available if not listed in the scope of services. Include description of all equipment, labor and materials provided at fixed per hour cost. Provide additional information is needed to describe all services. 5.Contractor shall include any current industry professional certifications, relevant expertise or experience, three (3) references for similar completed work and work previously/currently being performed for the City of Bozeman. Affirmation of Nondiscrimination (see Appendix A) Non-completion of the Affirmation of Nondiscrimination is cause for disqualification of firms. V.TIMELINES, DELIVERY DEADLINE, AND INSTRUCTIONS EVENT DATE/TIME Publication dates of RFQ Sunday, September 19, 2021 Sunday, September 26, 2021 Deadline for receipt of proposals No later than 2 PM, MST, October 7, 2021 Evaluation of proposals TBD Interviews (if necessary) and Selection of consultants TBD With the exception of the advertising dates and advertised due date, the City reserves the right to modify the above timeline. Deliver RFPs via email to the City Clerk (agenda@bozeman.net) by October 7th at 2PM MST. It is the sole responsibility of the proposing party to ensure that proposals are received prior to the closing time as late submittals will not be accepted and will be returned unopened. All proposals must be provided as a single, searchable PDF document file and be submitted digitally as an email attachment to the RFP Recipient email address agenda@bozeman.net. Respondents are advised that Recipient’s email attachment size limit is 25MB and that only one Exhibit A 165 PDF file will be allowed per response. The subject line of the transmittal email shall clearly identify the RFP title, company name and due date/time. File sizes greater than 25MB in size may be uploaded to bzncloud.bozeman.net upon special arrangement of the Recipient; however, it is the respondent’s sole responsibility to ensure the file upload is completed, and that the Recipient is separately notified via email of same, prior to the given deadline. VI.AMENDMENTS TO SOLICITATION Any interpretation or correction of this request will be published on the City’s webpage. The deadline for questions related to this document is 2 PM MST on September 30th, 2021. VII.CONTACT INFORMATION Any administrative questions regarding proposal procedures should be directed to: Mike Maas, City Clerk, (406) 582-2321, agenda@bozeman.net Questions relating to scope of services should be directed to: Luke Kline, Contracts Coordinator, lkline@bozeman.net , and (406) 582-2290. VIII.SELECTION PROCEDURE A review committee will evaluate all responses to the RFP that meet the submittal requirements and deadline. Submittals that do not meet the requirement or deadline will not be considered. The review committee will rank the proposals and may arrange interviews with the finalist(s) prior to selection. Selection may be made directly based on the written RFP submission. If interviews occur, the selection of finalists to be interviewed will be made by a selection committee representing the City of Bozeman. The selection of interview candidates will be based on an evaluation of the written responses to the RFPs. All submitted proposals must be complete and contain the information required as stated in the "Request for Proposals.” IX.SELECTION CRITERIA Proposals will be evaluated based on the following criteria: • [10 points] Executive Summary •[60 points] Qualifications of the Firm for Scope of Services; Cost •[30 points] Related Experience with Similar Projects Exhibit A 166 X.FORM OF AGREEMENT The Contractor will be required to enter into a contract with the City in substantially the same form as the professional services agreement attached as Appendix B. XI.CITY RESERVATION OF RIGHTS / LIABILITY WAIVER All proposals submitted in response to this RFP become the property of the City and public records and, as such, may be subject to public review. A SUBMISSION IN RESPONSE TO THIS REQUEST FOR QUALIFICATIONS CONFERS NO RIGHTS UPON ANY RESPONDENTS AND SHALL NOT OBLIGATE THE CITY IN ANY MANNER WHATSOEVER. THE CITY RESERVES THE RIGHT TO MAKE NO AWARD AND TO SOLICIT ADDITIONAL REQUEST FOR QUALIFICATIONS AT A LATER DATE. A.This RFP may be canceled or any or all responses may be rejected in whole or in part, as specified herein, when it is in the best interests of the City. If the City cancels or revises this RFP, all Respondents who submitted will be notified using email. B.The City reserves the right to accept or reject any and all proposals; to add or delete items and/or quantities; to amend the RFP; to waive any minor irregularities, informalities, or failure to conform to the RFP; to extend the deadline for submitting proposals; to postpone award for up to 60 days; to award one or more contracts, by item or task, or groups of items or tasks, if so provided in the RFP and if multiple awards or phases are determined by the City to be in the public interest. C.The City of Bozeman reserves the right to reject the proposal of any person/firm who previously failed to perform properly to the satisfaction of the City of Bozeman, or complete on time agreements of similar nature, or to reject the proposal of any person/firm who is not in a position to perform such an agreement satisfactorily as determined by the City of Bozeman. D.The City of Bozeman reserves the right to determine the best qualified Contractor and negotiate a final scope of service and cost, negotiate a contract with another Contractor if an agreement cannot be reached with the first selected Contractor, or reject all proposals. E.The professional services contract between the City of Bozeman and the successful Contractor will incorporate the Contractor's scope of service and work schedule as part of the agreement (see Appendix B for form of professional services agreement. The professional services agreement presented to the Contractor may differ from this form as appropriate for the scope of services). F.This RFP does not commit the City to award a contract. The City assumes no liability or responsibility for costs incurred by firms in responding to this request for proposals or Exhibit A 167 request for interviews, additional data, or other information with respect to the selection process, prior to the issuance of an agreement, contract or purchase order. The Contractor, by submitting a response to this RFP, waives all right to protest or seek any legal remedies whatsoever regarding any aspect of this RFP. G.The City reserves the right to cancel, in part or in its entirety, this RFP including, but not limited to: selection procedures, submittal date, and submittal requirements. If the City cancels or revises this RFP, all Contractors who submitted proposals will be notified using email. H.Projects under any contract are subject to the availability of funds. XII.NONDISCRIMINATION AND EQUAL PAY POLICY The City of Bozeman requires each entity submitting under this notice shall affirm, on a separate form provided, that 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, sexual preference, gender identity, or disability in fulfillment of a contract entered into for the services identified herein and that this prohibition on discrimination shall apply to the hiring and treatment of the submitting entity’s employees and to all subcontracts it enters into in the fulfillment of the services identified herein. Failure to comply with this requirement shall be cause for the submittal to be deemed nonresponsive. The City also requires each entity submitting under this notice shall affirm 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. XIII.MISCELLANEOUS A.No Oral Agreements. No conversations or oral agreements with any officer, employee, or agent of the City shall affect or modify any term of this solicitation. Oral communications or any written/email communication between any person and City officer, employee or agent shall not be considered binding. B.No Partnership/Business Organization. Nothing in this solicitation or in any subsequent agreement, or any other contract entered into as a result of this solicitation, shall constitute, create, give rise to or otherwise be recognized as a partnership or formal business organization of any kind between or among the respondent and the City. C.Employment Restriction and Indemnity. No person who is an owner, officer, employee, contractor, or consultant of a respondent shall be an officer or employee of the City. No rights of the City’s retirement or personnel rules accrue to a respondent, Exhibit A 168 its officers, employees, contractors, or consultants. Respondents shall have the responsibility of all salaries, wages, bonuses, retirement, withholdings, worker’s compensation and occupational disease compensation, insurance, unemployment compensation other benefits and taxes and premiums appurtenant thereto concerning its officers, employees, contractors, and consultants. Each Respondent shall save and hold the City harmless with respect to any and all claims for payment, compensation, salary, wages, bonuses, retirement, withholdings, worker’s compensation and occupational disease compensation, insurance, unemployment compensation other benefits and taxes and premiums in any way related to each respondent’s officers, employees, contractors and consultants. D.Accessibility. Upon reasonable notice, the City will provide assistance for those persons with sensory impairments. For further information please contact the ADA Coordinator Mike Gray at 406-582-3232 or the City’s TTY line at 406-582-2301. E.Procurement. When discrepancies occur between words and figures in this solicitation, the words shall govern. No responsibility shall attach to a City employee for the premature opening of an RFP not properly addressed and identified in accordance with these documents. F.Governing Law. This solicitation and any disputes arising hereunder or under any future agreement shall be governed and construed and enforced in accordance with the laws of the State of Montana, without reference to principles of choice or conflicts of laws. XIV.ATTACHMENTS The following exhibits are incorporated in this RFP: Appendix A: Non-Discrimination Affirmation Appendix B: Form of Professional Services Agreement END OF RFP Exhibit A 169 Clean Slate Group 34 Outlier Way Bozeman, MT 59718 28 September 2021 2021/2022 Parks & Trails District Snow Removal Services Contract Proposal The City of Bozeman is seeking proposals from firms to provide snow and ice removal services on an "as needed" basis for the City of Bozeman Parks and Recreation Department beginning on October 15, 2021 and ending April 30th, 2022. Clean Slate Group (CSG) understands that our services will be conducted routinely, as needed, for approximately 28 weeks in total or a 7 month period ( or anytime of the year, because 'it's Montana after all!'). CSG understands that a contract proposal does not enter the City of Bozeman into an agreement to pay any expenses incurred in preparation of this response to proposal. CSG also understands that the City of Bozeman reserves the right to accept or reject this proposal if it is in their best interest to do so. CSG understands and agrees that we will operate under the laws set out by the State of Montana and the City of Bozeman, including but not limited to applicable wage rates, payments, gross receipts taxes, equal opportunity employment, safety, non-discrimination, etc. Additionally, the entire CSG team understands that at the end of the day, you have your word and your name. Each of us takes great pride in working hard, being honorable and representing ourselves & our clients well. With CSG, you will get a courteous crew of hard working individuals that know how to be professional at all times and be a value-add wherever they go. CSG agrees to the following: snow and ice removal of sidewalks, pedestrian crossings and any other areas determined by the Parks Superintendent. We agree that our services shall be completed through the means of chipping, ice melts, blowing, shoveling, and plowing. CSG agrees to use equipment no wider than the sidewalk which is being cleaned, and the equipment used shall be of a weight that will not damage the sidewalk or adjacent property. CSG agrees to the terms of snow and ice being completely and properly removed before any payment will be made by the city. CSG also agrees to use the minimum amount of salt or ice melt necessary to complete the task of breaking up ice, to insure landscaping or private prope1iy is not damaged. CSG also agrees that snow removal will be completed within twenty-four hours after notice by the city is given. CSG understands that work may have to be completed during the weekends and even holidays if needed. Ryan Ricke1i Founder/President Clean Slate Group, LLC Exhibit B 170 CSG has a dedicated crew of 5 employees for snow removal throughout the winter and spring months, as well as for gopher mitigation, dog station & park trash maintenance, etc throughout the year. We operate our snow removal division with an assmirnent of different equipment and tools. Our equipment includes, but is not limited to: •2020 Canarn Outlander four wheeler with a 54" adjustable blade snowplow•12' equipment trailer •2 walk behind snow blowers •Snow shovels, ice chippers, misc handheld snow removal equipment Upon acceptance of this proposal, CSG has a pending purchase of a 2021 Bobcat 5600 To olcat with: snow brush, snow plow, and material spreader, as well as a 2021 Titan 20' equipment trailer. For the services laid out in this proposal CSG charges $70.00 per man hour. This charge reflects the cost to CSG for all of the following: payroll for fair labor wages, fuel costs, insurance, equipment maintenance costs, consumables (ice melts and brines), and general overhead costs. In CSG's experience of doing snow removal at high priority parks like Peets Hill we have found it advantageous to deploy multiple employees at one location to get projects done quickly, prior to significant foot traffic and to the highest quality possible. This charge is for CSG's general snow removal services. For the additional snow and ice removal services or any miscellaneous services, which include but are not limited to, hand shoveling handicap access ramps, breaking up ice dams and other ice hazards, widening paths and brooming sidewalks upon arrival of To ol cat, spraying beet based brines where salt or sand are unacceptable, and custom snow removal work (hand shoveling ce1iain areas where machinery will not work). CSG's hourly rate remains $70.00 dollar an hour fee. This charge is representative to the costs of: consumables overhead, fuel, equipment maintenance and equipment overhead. CSG takes these additional snow and ice removal services very seriously and we try to take care of them with the utmost expediency, so we may deploy as many employees as necessaiy to resolve these issues and get the job site back to normal. CSG has had a long history of working for the City of Bozeman with a variety of site services, including graffiti removal and prevention since November of 2011. During the 2020 to 2021 snow season, CSG spent 107 hours doing snow removal for the City of Bozeman Pmks and Rec at Arrow Dog Park and Burke/Peet' s Hill Park walking u·ail. CSG has multiple contracts with the city for gopher abatement work, dog station maintenance, and the sanitization of bathrooms for City of Bozeman parks. We provide snow removal, graffiti removal/prevention and gopher abatement setvices to multiple private companies throughout the city. References for this prior work can be contacted bel ow. •Thorn White at City of Bozeman Parks ( 406)-579-633 l or twhite@bozernan.net •Chris Leonard at Bridger Ops: ( 406)-539-9862 or chris@bridgerops.com •Irene Dahl at Dahl Funeral Horne: (406)-586-5298 or irene@dahlcmes.com Additional Professional Ce1iifications CSG and its employees hold: Montana Department of Agriculture, Commercial Pesticide Applicator Licence # 106369-12 Exhibit B 171 Attachment A NONDISCRIMINATION AND EQUAL PAY AFFIRMATION -G \ e,CU') �\ Gtte, bYajf LL(; (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 additi�n, c\oo;Yl �\c�te;Gv-ovr LLG (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://wayback.archive-it.org/499/20210701223409/https:/egualpay.mt.gov/, or equivalent "best practices publication and has read the material. of person authorized to sign on behalf of submitter Exhibit B 172 Memorandum REPORT TO:City Commission FROM:Adam Oliver, Stormwater Program Manager Scott Shirley, Interim Director of Public Works Jeff Mihelich, City Manager SUBJECT:Authorize the City Manager to Sign a Task Order 7 of the Stormwater Design Professional Services Master Task Order Agreement with DOWL, LLC for the South Tracy Stormwater Improvements MEETING DATE:November 16, 2021 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign Task Order 7 of the Stormwater Design Professional Services Master Task Order Agreement with DOWL, LLC for the South Tracy Stormwater Improvements. STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:In 2019, the Stormwater Division (Division) advertised a Request for Qualifications for on-call engineering services. The Division selected DOWL, LLC (Consultant), negotiated a three-year task order based Professional Services Agreement (PSA), and delivered the PSA to the Commission on September 16, 2019, for approval. The Division hires the Consultant as projects arise, and funding is available. Attached is Task Order 7 of the governing PSA, ready for the Commission’s consideration. Task Order 7 contracts with the Consultant for the design and construction oversight necessary to complete the South Tracy Stormwater Improvements (Project). The Project is preventative and includes the rehabilitation of approximately 750 feet of degraded stormwater pipelines. One segment is along Tracy Ave. between Babcock and Mendenhall. The other is at South Tracy Ave. and Cleveland St., running east in an easement. The pipes are around 100 years old and are deteriorating. A failure in the existing system could result in flooding, road collapse, and costly repairs. The Division completes portions of this work in-house to reduce project costs; however, some aspects are outside the Division’s capacity. Services also minimize risk when construction-related issues arise in the field and provide insurance that the City receives a quality infrastructure product. UNRESOLVED ISSUES:None 173 ALTERNATIVES:As suggested by the Commission. FISCAL EFFECTS:The Commission approved Historic Pipe and Infrastructure Replacement Program with the FY22 City Budget ($280,000 STDM04). Payments for services provided will be on a time and material basis, not to exceed $79,700. Staff reviewed Task Order 7 and found its contained scope and budget to be commensurate with the proposed services. Attachments: TO 07 South Tracy Stormwater Scope of Services.pdf Professional Services Master Task Order Agreement.pdf Report compiled on: November 4, 2021 174 Page 1 Task Order #07 Exhibit A – Scope of Services 2021 South Tracy Stormwater Improvements Introduction The City of Bozeman (City) Stormwater Division has identified two (2) stormwater collection pipelines in need of replacement due to their age, hydraulic capacity, and upstream development/improvements in the contributing drainage basin. The storm drain replacement projects are part of the City’s Stormwater Capital Improvement Plan and are further described below: South Tracy Ave - Cleveland Street The City would like to replace approximately 230 feet of 18-inch diameter vitrified clay storm drain pipe located within City right-of-way and a utility easement on private property east of the South Tracy Avenue and Cleveland Street intersection. The primary driver of the project is to replace the aging storm drain pipe prior to the redevelopment of the private property parcel (918 South Tracy Ave.), and future downstream stormwater improvements. South Tracy Ave. – Babcock to Main Street The City has identified approximately 580 feet of 12-inch diameter vitrified clay storm drain within South Tracy Avenue from East Babcock Street to the alleyway north of East Main Street as deteriorated and a hydraulic constraint in the stormwater collection system. In 2018, the storm drain main south of East Babcock Street (upstream) was replaced with 18-inch diameter PVC pipe, and a stormwater treatment unit was installed near the alleyway north of East Main Street (downstream). Additionally, a 2019 video inspection of the 12-inch storm drain revealed pipe deflection (squashed pipe) which could lead to failure of the brittle vitrified clay pipe. The City would like to replace the 580 feet of 12-inch diameter storm drain with consideration to using a trenchless means of construction. The following scope of services for the above described projects will generally consist of topographical surveys, preliminary design recommendations for sizing and construction methods, permitting, development of construction documents, and construction administration services. A detailed description of engineering services is identified in the subsequent sections. It is assumed that the City of Bozeman will provide Project Management throughout the duration of the projects and will be responsible for the following tasks:  Bidding and Contract Negotiations  Hosting the Pre-bid and Pre-construction Meetings  Reviewing Construction Schedules  Providing Public Outreach and Coordination with Property Owners  Acquiring necessary project easements  Administering Recommended Change Orders and Work Change Directives  Processing Applications for Payment  Managing the Construction Contract and Related Disputes (as needed)  Issuing Notice of Substantial and Final Project Completion  Providing other Non-Technical General Construction Administration Tasks 175 Task Order #07, Exhibit A – Scope of Services 2021 South Tracy Stormwater Improvements Page 2 DOWL will provide the following project design and construction administration services for the proposed Projects. Scope of Services (Basic Services) The below tasks will be completed for both proposed storm drain replacement projects unless specified otherwise in the project task description. Project invoices will be delivered electronically to the City’s Project Manager monthly for processing and payment. Invoicing will track each project separately on the same invoice and will include services completed for the invoiced period, monthly charges, total spent, and amount remaining. Task 1. Preliminary Project Design 1. Complete the following specific tasks related to the preliminary design of the 2021 South Tracy Stormwater Improvements project: a. Task 100 – Project Management, Quality Control, and Design Review Meeting(s): Perform general project management tasks, including job setup, contracting, internal quality control procedures, project planning, scheduling, and coordination calls and meetings related to Task 1. b. Task 110 – Utility Locates and Survey: Survey base mapping will be developed for the two (2) project corridors. Services performed under this task will include requesting utility locates, survey of utilities, and topographic survey of the project vicinity. DOWL will develop and submit a utility locate request and will survey the locations of utilities within the project corridor. Rim elevation survey and measure-downs to pipe inverts will be completed to document existing pipe elevations and sizes of the stormwater, sanitary sewer and water infrastructure. The survey will be completed in NAD83 state plane coordinates and using the vertical datum NAVD88. DOWL will notify the City of Bozeman in advance of the utility locates and survey to obtain permission to enter private property in the vicinity of the project. c. Task 120 – Preliminary Design: DOWL will evaluate the existing hydraulic capacity based on the collected field data obtained in Task 110 of sections of the storm drain proposed for improvement, in addition to the upstream and downstream reaches. DOWL will provide recommendations to the City for the means of pipe replacement construction, i.e. traditional trench and replacement or in situ trenchless pipeline replacement. The sizing of the replacement storm drains will be based on a balance of required sizing based on previously completed stormwater modeling studies and practical solutions based on site-specific project constraints. Additional hydrologic modeling of the contributing stormwater basins will not be completed for pipe sizing recommendations. 2. The following project deliverables will be provided to the City for review and comment. DOWL will provide digital PDF copies of all deliverables. It is assumed that review comments will be received from the City within 14 days of receipt of each review set described below. a. Technical Memorandum of design assumptions, recommended construction methods, project exhibit(s), and a preliminary engineer’s estimate of probable construction cost. 3. Design Review Meeting: A design review meeting will be conducted after the Technical Memorandum submittals to review the project recommendations and discuss City comments. It is assumed that the design review meeting will be held virtually via teleconference or Microsoft Teams. 176 Task Order #07, Exhibit A – Scope of Services 2021 South Tracy Stormwater Improvements Page 3 Task 2. Construction Documents 1. Complete the following specific tasks related to project design and development of the 2021 South Tracy Stormwater Improvements project construction documents. The project tasks listed below will be completed for each project separately unless otherwise noted. a. Task 200 – Project Management, Quality Control, and Design Review Meeting(s): Perform general project management tasks, internal quality control procedure, project planning, scheduling, and coordination calls and meetings related to Task 2. b. Task 210 – Construction Drawings: DOWL will develop construction drawings for the proposed storm drain improvements, with two (2) sets of construction drawings describing each project. The project construction drawings will generally consist of the following: Table 1 – Preliminary Sheet Index Drawing No. Drawing Description G00 Cover Sheet G01 General Notes, Legend, Abbreviations, Survey Control C01 Existing Conditions C02 Overall Project Site Improvements Map C03 Stormwater Pipeline Plan and Profile D01 Standard Details c. Task 220 – Construction Specifications: Project specifications will be based upon the Montana Public Works Standard Specifications, Sixth Edition (April 2010) and the City of Bozeman Modifications to Montana Public Works Standard Specifications, Sixth Edition, March 21, 2011, and Addenda No. 1 through No. 3. i. Project specific conditions and construction constraints will be outlined in a separate Summary of Work to detail the work description, identify work sequence restrictions, bypass pumping operation, work schedule, etc. ii. Additionally, DOWL will provide a draft advertisement for bidding, itemized bid schedule, measurement and payment, and standalone modifications to Montana Public Works Standard Specifications as necessary. d. Task 230 – Engineers’ Estimate of Probable Construction Cost: DOWL will develop an engineers’ opinion of probable construction cost for the project to assist the City with project planning and budgeting. e. Task 240 – Montana Department of Transportation Permitting and Coordination: The South Tracy Ave. – Babcock to Main Street pipeline will require permitting and coordination with the Montana Department of Transportation (MDT). DOWL will complete the required permitting on behalf of the City. For the purpose of budgeting, a total of 25-manhours are assumed for the completion of this task and all associated permit fees will be paid by the Owner. 2. The following project deliverables will be provided to the City for review and comment including review by legal counsel or other advisors as appropriate. Each project will have separate submittal intended to provide the City with flexibility for bidding the project independent of each other and on separate construction schedules. DOWL will provide digital PDF copies of all deliverables unless otherwise noted 177 Task Order #07, Exhibit A – Scope of Services 2021 South Tracy Stormwater Improvements Page 4 below. It is assumed that review comments will be received from the City within 14 days of receipt of each review set described below. a. 95% complete set of construction drawings and technical specifications, and engineer’s estimate of probable construction cost, for each project (2). b. Project Manual consisting of issued for construction (100%) project drawings and technical specifications necessary for bidding and construction of the proposed projects, for each project (2). 3. Design Review Meeting: A design review meeting will be conducted after the 95% submittal to review the project and discuss City comments. It is assumed that the design review meeting will be held virtually via teleconference or Microsoft Teams. Task 3. Assistance During Bidding and Contract Award 1. Task 300 – Assist the city in advertising for and obtaining bid proposals for the Work. a. Assist the City with bidding documents for the City to post and manage through QuestCDN. b. Assist the City in providing clarifications to Contractor questions during bidding. c. Assist in developing addenda as appropriate to clarify, correct, or change the bidding documents. One addendum is assumed following the pre-bid meeting to distribute meeting minutes and provide formal answers to any questions posed/answered at the pre-bid meeting. The City will post addendum(s) to Quest for Planholder distribution. 2. Task 310 – Assist in preparing an agenda and participate in a Pre-bid meeting to summarize the project for interested bidders and gather questions for clarifications via addendum, if needed. It is assumed that the City will be responsible for bid opening, certified bid tab, assembly of insurance, bonds, agreements, and additional documents to finalize the bidding process and award the contract. Task 4. Construction Administration Upon successful completion of the bidding, negotiating and project construction award, and upon written authorization from the City, DOWL shall: 1. Task 400 – General Administration of Construction Contract: DOWL with the City, act as the Owner’s representative as provided in the Construction Contract. The extent and limitations of the duties, responsibilities, and authority of Engineer as assigned in the Construction Contract shall not be modified, except as Engineer may otherwise agree in writing. All of Owner’s instructions to Contractor will be issued through the Engineer, which shall have authority to act on behalf of the Owner in dealings with the Contractor to the extent provided in this Agreement and the Construction Contract except as otherwise provided in writing. 2. Task 410 – Pre-Construction Conference: Participate in a Pre-Construction Conference prior to commencement of Work at the Site. 3. Task 420 – Shop Drawings and Samples: Review and approve or take other appropriate action in respect to Shop Drawings and Samples and other information that Contractor is required to submit, but only for conformance with the information provided in the Contract Documents and compatibility with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. Such 178 Task Order #07, Exhibit A – Scope of Services 2021 South Tracy Stormwater Improvements Page 5 reviews and approvals or other action will not extend to means, methods, techniques, sequences, or procedures of construction or to safety precautions and programs incident thereto. a. Substitutes and “or-equal”: Evaluate and determine the acceptability of substitute or “or-equal” materials and equipment proposed by Contractor, but subject to the Additional Services provisions of Attachment 1. 4. Task 430 – Visits to Site and Observation of Construction: In connection with observations of Contractor’s Work while it is in progress: a. Make visits to the Site at intervals appropriate to the various stages of construction, as Engineer deems necessary, to observe as an experienced and qualified design professional the progress of Contractor’s executed Work. Such visits and observations by Engineer, and the Resident Project Representative, if any, are not intended to be exhaustive or to extend to every aspect of Contractor’s Work in progress or to involve detailed inspections of Contractor’s Work in progress beyond the responsibilities specifically assigned to Engineer in this Agreement and the Contract Documents, but rather are to be limited to spot checking, selective sampling, and similar methods of general observation of the Work based on Engineer’s exercise of professional judgment, as assisted by the Resident Project Representative, if any. Based on information obtained during such visits and observations, Engineer will determine in general if the Work is proceeding in accordance with the Contract Documents, and Engineer shall keep Owner informed of the progress of the Work. b. The purpose of Engineer’s visits to, and representation by the Resident Project Representative, if any, at the Site, will be to enable Engineer to better carry out the duties and responsibilities assigned to and undertaken by Engineer during the Construction Phase, and, in addition, by the exercise of Engineer’s efforts as an experienced and qualified design professional, to provide Owner a greater degree of confidence that the completed Work will conform in general to the Contract Documents and that Contractor has implemented and maintained the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. Engineer shall not, during such visits or as a result of such observations of Contractor’s Work in progress, supervise, direct, or have control over Contractor’s Work, nor shall Engineer have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected or used by Contractor, for security or safety at the Site, for safety precautions and programs incident to Contractor’s Work, nor for any failure of Contractor to comply with Laws and Regulations applicable to Contractor’s furnishing and performing the Work. Accordingly, Engineer neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor’s failure to furnish or perform the Work in accordance with the Contract Documents. c. For the purpose of budgeting, a total of two (2) engineer site visits are assumed for each project. 5. Task 440 – Quality Assurance: It is assumed that the Contractor will complete Quality Control testing as specified and required in the project specifications. DOWL will assist the City of Bozeman in reviewing the Contractor’s quality control test results, including compaction and leak detection testing. For the purpose of budgeting, a total of 5 manhours are assumed for each project to complete of this task. 6. Task(s) 450 – Defective Work: Reject Work if, on the basis of Engineer’s observations, Engineer believes that such Work (a) is defective under the standards set forth in the Contract Documents, (b) will not produce a completed Project that conforms to the Contract Documents, or (c) will imperil the integrity of the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. 179 Task Order #07, Exhibit A – Scope of Services 2021 South Tracy Stormwater Improvements Page 6 7. Task(s) 450 – Clarifications, Interpretations, Field Orders: Issue necessary clarifications and interpretations of the Contract Documents as appropriate to the orderly completion of Contractor’s work. Such clarifications and interpretations will be consistent with the intent of and reasonably inferable from the Contract Documents. Subject to any limitations in the Contract Documents, Engineer may issue field orders authorizing minor variations in the Work from the requirements of the Contract Documents. 8. Task(s) 450 – Change Orders and Work Change Directives: Recommend change orders and work change directives to Owner, as appropriate, and prepare change orders and work change directives as required. 9. Task(s) 460 – Substantial Completion: Promptly after notice from Contractor that Contractor considers the entire Work ready for its intended use, in company with Owner and Contractor, visit the Project to determine if the Work is substantially complete. If after considering any objections of Owner, Engineer considers the Work substantially complete, Engineer shall deliver a certificate of Substantial Completion to Owner for final processing. 10. Task(s) 460 – Final Notice of Acceptability of the Work: Conduct a final visit to the Project to determine if the completed Work of Contractor is acceptable so that Engineer may recommend, in writing, final payment to Contractor. 11. Task 450 – Post Construction Activities: a. Record Drawings: DOWL will develop record drawings incorporating any field changes or updates to as-recorded information. b. Post Construction Walk-through(s): DOWL, together with the City of Bozeman, will visit the Project to observe any apparent defects in the Work, assist City in consultations and discussions with Contractor concerning correction of any such defects, and make recommendations as to replacement or correction of defective Work, if any. c. Warranty Walk-through: DOWL, together with the City of Bozeman, will participate in a Two-Year Warranty Walk-through inspection of the Project to observe any apparent defects in the Work, assist the City in consultations and discussions with Contractor concerning correction of any such defects, and make recommendations as to replacement or correction of defective Work, if needed. Task 5. Construction Inspection 1. Task 500 – Resident Project Representative (RPR) a. Provide the services of an RPR at the Site to assist the Engineer and to provide more extensive observation of Contractor’s work. Duties, responsibilities, and authority of the RPR are as set forth in Attachment 3. The furnishing of such RPR’s services will not limit, extend, or modify Engineer’s responsibilities or authority except as expressly set forth in Attachment3. b. Duration of Construction Phase and Timing/Number of RPRs Expected Site Visits: The Construction Phase will commence with the execution of the first Construction Contract for the Project or any part thereof and will terminate upon written recommendation by Engineer for final payment to Contractor(s). Subject to the provisions of Attachment 1, Engineer shall be entitled to an equitable increase in compensation if Construction Phase services (including Resident Project Representative services, if any) are required after the original date for completion and readiness for final payment of Contractor as set forth herein or in the Construction Contract. i. South Tracy Ave. – Cleveland Street: The anticipated duration of on-site construction activities is estimated at a maximum of 30 calendar days. RPR services are as indicated in 180 Task Order #07, Exhibit A – Scope of Services 2021 South Tracy Stormwater Improvements Page 7 Attachment 3. DOWL will provide RPR services for the following construction activities/milestones. 1. Meet with Contractor on-site to discuss project schedule and observe initial construction actives (1 site visit) 2. Observe bypass pumping operation (1 site visit) 3. Observe Cleveland Street excavation (1 site visit) 4. Observe stormwater main replacement and flowable fill backfill within Cleveland Street (4-site visits) 5. Observe manhole subgrade, pipe connections, and backfill (2 site visits) 6. Observe connection to existing (1 site visit) 7. Observe placement of pavement and restoration (1 site visit) 8. Post construction activities (1 site visits) ii. South Tracy Ave – Babcock to Main: The anticipated duration of on-site construction activities is estimated at a maximum of 60 calendar days. RPR services are as indicated in Attachment 3. DOWL will provide RPR services for the following construction activities/milestones. 1. Meet with Contractor on-site to discuss project schedule, layout, and initial construction activities (1 site visit) 2. Observe traffic control and public safety measures (1 site visit) 3. Observe Babcock Street excavation (1 site visit) 4. Observe stormwater main replacement and flowable fill backfill (6-site visits) 5. Observe manholes subgrade, pipe connections, and backfill (2 site visits) 6. Observe connections to existing (2 site visit) 7. Observe placement of paving and concrete (2 site visit) 8. Post construction activities (2 site visits) iii. To facilitate public communication and coordination with DOWL within a normal workday duration, it is proposed for consideration to require construction working hours from 8 A.M. to 5 P.M. MDT will require the construction of the stormwater main across Main Street to be completed during the night. RPR service will be completed during alternative working hours for this section of the pipeline improvements only. c. Limitation of Responsibilities: Engineer shall not be responsible for the acts or omissions of any Contractor, Subcontractor or Supplier, or other individuals or entities performing or furnishing any of the Work, for safety or security at the Site, or for safety precautions and programs incident to Contractor's Work, during the Construction Phase or otherwise. Engineer shall not be responsible for the failure of any Contractor to perform or furnish the Work in accordance with the Contract Documents. Compensation 1. Basic Services: Table 2 and 3 outline DOWL’s estimated fee for the proposed Scope of Services. Given the variable nature of the services potentially required, it is anticipated that this task order will be managed on a Time and Materials basis. The distribution of fees between individual tasks may be altered to be consistent with the services actually rendered, but the total compensation will not be exceeded without prior written consent of the City of Bozeman. Table 2 – Task Order #07 Compensation – Cleveland Street 181 Task Order #07, Exhibit A – Scope of Services 2021 South Tracy Stormwater Improvements Page 8 Task Description Estimated Fee Task 1 – Preliminary Project Design $ 5,600.00 Task 2 – Project Design and Construction Documents $ 7,700.00 Task 3 – Assistance During Bidding and Contract Award $ 3,200.00 Task 4 –Construction Administration $ 6,800.00 Estimated Total Fee – Cleveland Street $ 23,300.00 Table 3 – Task Order #07 Compensation – Babcock to Main Task Description Estimated Fee Task 1 – Preliminary Project Design $ 10,000.00 Task 2 – Project Design and Construction Documents $ 15,800.00 Task 3 – Assistance During Bidding and Contract Award $ 3,200.00 Task 4 –Construction Administration $ 9,100.00 Estimated Total Fee – Babcock to Main $ 38,100.00 2. Resident Project Representative – Standard Hourly Rates a. Owner shall pay Engineer for Resident Project Representative Basic Services as follows: i. Resident Project Representative Services: For services of Engineer’s Resident Project Representative under Task 5 of this Exhibit A, an amount equal to the cumulative hours charged to the Project by each class of Engineer’s personnel times Standard Hourly Rates for each applicable billing class at the rates set forth in Attachment 2 to this Exhibit A for all Resident Project Representative services performed on the Project, plus related Reimbursable Expenses and Engineer’s Consultant’s charges, if any. 1. South Tracy Ave – Cleveland Street: The total compensation under this Paragraph is estimated to be $6,400.00 based upon periodic RPR services at the key construction activities described above over a 30-calendar day construction schedule. 2. South Tracy Ave – Babcock to Main Streets: The total compensation under this Paragraph is estimated to be $11,900.00 based upon periodic RPR services at the key construction activities described above over a 60-calendar day construction schedule. b. Compensation for Reimbursable Expenses: i. For those Reimbursable Expenses that are not accounted for in the compensation for Basic Services under 2.a.i. Resident Project Representative Services above, and are directly related to the provision of Resident Project Representative Basic Services, Owner shall pay Engineer at the rates set forth in Attachment 2 to this Exhibit A. 3. Additional Services – Standard Hourly Rates a. Owner shall pay Engineer for Additional Services, if any, as follows: 182 Task Order #07, Exhibit A – Scope of Services 2021 South Tracy Stormwater Improvements Page 9 i. For services of Engineer’s personnel engaged directly on the Project pursuant to Attachment 1, Additional Services Requiring Owner’s Written Authorization of Exhibit A, an amount equal to that separately negotiated for the Additional Services based on the nature of the required Additional Services. ii. For services of Engineer’s personnel engaged directly on the Project pursuant to Attachment 1 Additional Services Not Requiring Owner’s Written Authorization an amount equal to the cumulative hours charged to the Project by each class of Engineer’s personnel times Standard Hourly Rates for each applicable billing class, plus related Reimbursable Expenses and Engineer’s Consultant’s charges, if any. b. Other Provisions Concerning Payment of Additional Services: i. Whenever Engineer is entitled to compensation for the charges of Engineer’s Consultants, those charges shall be the amounts billed by Engineer’s Consultants to Engineer times a factor of 1.10. ii. The amounts payable to Engineer for Reimbursable Expenses, if any, will be the related internal expenses actually incurred or allocated by Engineer, plus all invoiced external Reimbursable Expenses allocable to such Additional Services, the latter multiplied by a factor of 1.10. 183 Attachment 1 to Exhibit A Professional Services Contract June 2021 Page 1 of 3 This is Attachment 1, consisting of 3 pages, referred to in and part of the Exhibit A Task Order 07 of the Agreement between Owner and DOWL for Professional Services dated September 16, 2019. Project No: Additional Services 1.01 Additional Services Requiring Owner’s Written Authorization A. If authorized in writing by Owner, Engineer shall furnish or obtain from others Additional Services of the types listed below. 1. Preparation of applications and supporting documents (in addition to those furnished under Basic Services) for private or governmental grants, loans, or advances in connection with the Project; preparation or review of environmental assessments and impact statements; review and evaluation of the effects on the design requirements for the Project of any such statements and documents prepared by others; and assistance in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact of the Project. 2. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the accuracy of drawings or other information furnished by Owner or others. 3. Services resulting from significant changes in the scope, extent, or character of the portions of the Project designed or specified by Engineer or its design requirements including, but not limited to, changes in size, complexity, Owner’s schedule, character of construction, or method of financing; and revising previously accepted studies, reports, Drawings, Specifications, or Contract Documents when such revisions are required by changes in Laws and Regulations enacted subsequent to the Effective Date or are due to any other causes beyond Engineer’s control. 4. Services resulting from Owner’s request to evaluate additional Study and Report Phase alternative solutions beyond those identified in Exhibit A Basic Services, if any. 5. Services required as a result of Owner’s providing incomplete or incorrect Project information to Engineer. 6. Providing renderings or models for Owner’s use. 7. Undertaking investigations and studies including, but not limited to, detailed consideration of operations, maintenance, and overhead expenses; the preparation of financial feasibility and cash flow studies, rate schedules, and appraisals; assistance in obtaining financing for the Project; evaluating processes available for licensing, and assisting Owner in obtaining process licensing; detailed quantity surveys of materials, equipment, and labor; and audits or inventories required in connection with construction performed by Owner. 184 Attachment 1 to Exhibit A Professional Services Contract June 2021 Page 2 of 3 8. Furnishing services of Consultants for other than Exhibit A Basic Services. 9. Services attributable to more prime construction contracts than specified in Exhibit A, Basic Services, if any. 10. If not required as part of Basic Services defined in Exhibit A, preparing for, coordinating with, participating in and responding to structured independent review processes, including, but not limited to, construction management, cost estimating, project peer review, value engineering, and constructability review requested by Owner; and performing or furnishing services required to revise studies, reports, Drawings, Specifications, or other Bidding Documents as a result of such review processes. 11. If not required as part of Basic Services defined in Exhibit A above, preparing additional Bidding Documents or Contract Documents for alternate bids or prices requested by Owner for the Work or a portion thereof. 12. Assistance in connection with Bid protests, rebidding, or renegotiating contracts for construction, materials, equipment, or services. 13. Providing construction surveys and staking to enable Contractor to perform its work other than as required under Exhibit A, Basic Services, including any type of property surveys or related engineering services needed for the transfer of interests in real property; and providing other special field surveys. 14. Providing Construction Phase services beyond the original date for completion and readiness for final payment of Contractor. 15. Providing assistance in responding to the presence of any Constituent of Concern at the Site, in compliance with current Laws and Regulations. 16. If not required as part of Basic Services defined in Exhibit A, preparing Record Drawings showing appropriate record information based on Project annotated record documents received from Contractor, and furnishing such Record Drawings to Owner. 17. If not required as part of Basic Services defined in Exhibit A, preparation of operation and maintenance manuals. 18. Preparing to serve or serving as a consultant or witness for Owner in any litigation, arbitration, or other dispute resolution process related to the Project. 19. Providing more extensive services required to enable Engineer to issue notices or certifications requested by Owner other than those required under Exhibit A, Basic Services. 20. If not required as part of Basic Services defined in Exhibit A, assistance in connection with the adjusting of Project equipment and systems. 21. If not required as part of Basic Services defined in Exhibit A, assistance to Owner in training Owner’s staff to operate and maintain Project equipment and systems. 185 Attachment 1 to Exhibit A Professional Services Contract June 2021 Page 3 of 3 22. If not required as part of Basic Services defined in Exhibit A, assistance to Owner in developing procedures for (a) control of the operation and maintenance of Project equipment and systems, and (b) related record-keeping. 23. If not required as part of Basic Services defined in Exhibit A, overtime work requiring higher than regular rates. 24. Other services performed or furnished by Engineer not otherwise provided for in this Agreement. 1.02 Additional Services Not Requiring Owner’s Written Authorization A. Engineer shall advise Owner in advance that Engineer will immediately commence to perform or furnish the Additional Services of the types listed below. For such Additional Services, Engineer need not request or obtain specific advance written authorization from Owner. Engineer shall cease performing or furnishing such Additional Services upon receipt of written notice from Owner. 25. Additional or extended services during construction made necessary by (1) emergencies or acts of God endangering the Work (advance notice not required), (2) the presence at the Site of any Constituent of Concern or items of historical or cultural significance, (3) Work damaged by fire or other cause during construction, (4) a significant amount of defective, neglected, or delayed work by Contractor, (5) acceleration of the progress schedule involving services beyond normal working hours, or (6) default by Contractor. 26. Services (other than Basic Services during the Post-Construction Phase) in connection with any partial utilization of any part of the Work by Owner prior to Substantial Completion. 27. Evaluating an unreasonable claim or an excessive number of claims submitted by Contractor or others in connection with the Work. 28. Services during the Construction Phase rendered after the original date for completion of the Work referred to above. 29. Reviewing a Shop Drawing more than three times, as a result of repeated inadequate submissions by Contractor. 186 This is Attachment 2, consisting of 4 pages, referred to in and part of the Exhibit A Task Order 07 of the Agreement between Owner and DOWL for Professional Services dated September 16, 2019. Project No: DOWL Montana Fee Schedule 187 Effective July 4, 2021 Until Further Notice 1 | Page MONTANA FEE SCHEDULE Personnel Billing Rates Personnel are identified on our invoices by name and/or labor category. Description Rate Description Rate Accounting Manager $160 Accounting Technician $95 Administrative Assistant $65 Administrative Manager $100 Biologist I $105 Biologist II $115 Biologist III $125 Biologist IV $135 Biologist V $180 CAD Drafter I $80 CAD Drafter II $95 CAD Drafter III $105 CAD Drafter IV $115 CAD Drafter V $125 Civil and Transportation Designer $100 Contract Administrator I $135 Contract Administrator II $160 Corporate Development Manager $195 Crew Chief I $95 Crew Chief II $105 Crew Chief III $110 Crew Chief IV $120 Crew Chief V $130 Cultural Resources Specialist I $95 Cultural Resources Specialist II $115 Cultural Resources Specialist III $120 Cultural Resources Specialist IV $155 Cultural Resources Specialist V $170 Document Production Supervisor $125 Engineer I $105 Engineer II $115 Engineer III $130 Engineer IV $150 Engineer V $170 Engineer VI $180 Engineer VII $190 Engineer VIII $200 Engineer IX $225 Engineer X $240 Engineering Technician I $75 Engineering Technician II $90 Engineering Technician III $100 Engineering Technician IV $115 Engineering Technician V $130 Engineering Technician VI $150 Environmental Specialist I $95 Environmental Specialist II $110 Environmental Specialist III $115 Environmental Specialist IV $125 Environmental Specialist V $130 Environmental Specialist VI $165 Environmental Specialist VII $185 Environmental Specialist VIII $200 Environmental Specialist IX $220 Environmental Specialist X $240 Field Project Representative I $90 Field Project Representative II $100 Field Project Representative III $130 Field Project Representative IV $145 Geologist I $110 Geologist II $120 Geologist III $130 Geologist IV $150 Geologist V $180 GIS Coordinator $145 GIS Manager $155 GIS Specialist $95 GIS Technician $80 188 Effective July 4, 2021 Until Further Notice 2 | Page Graphics Designer $105 Intern I $60 Intern II $80 Laboratory Manager $100 Laboratory Supervisor $80 Landscape Architect I $105 Landscape Architect II $120 Landscape Architect III $135 Landscape Architect IV $150 Landscape Architect V $165 Landscape Architect VI $175 Landscape Architect VII $185 Landscape Designer $90 Landscape Planner $110 Lead Materials Technician $90 Marketing & Administrative Manager $195 Marketing Assistant $80 Marketing Coordinator $100 Materials Manager $105 Materials Technician $65 Materials Technician II $75 Planner I $95 Planner II $120 Planner III $130 Planner IV $150 Planner V $165 Planner VI $175 Planner VII $185 Planner VIII $200 Planner IX $215 Planner X $255 Planning Technician $85 Professional Land Surveyor I $95 Professional Land Surveyor II $105 Professional Land Surveyor III $115 Professional Land Surveyor IV $125 Professional Land Surveyor V $135 Professional Land Surveyor VI $140 Professional Land Surveyor VII $150 Professional Land Surveyor VIII $160 Professional Land Surveyor IX $185 Professional Land Surveyor X $195 Professional Land Surveyor XI $210 Project Administrator $110 Project Assistant I $90 Project Assistant II $105 Project Controller $140 Project Manager I $135 Project Manager II $150 Project Manager III $165 Project Manager IV $180 Project Manager V $195 Project Manager VI $210 Project Manager VII $225 Proposal Manager $115 Public Involvement Assistant $90 Public Involvement Coordinator $130 Public Involvement Planner $110 Public Involvement Program Manager $175 Real Estate Services Manager $155 Right of Way Agent I $100 Right of Way Agent II $115 Right of Way Agent III $130 Right of Way Agent IV $145 Right of Way Agent V $160 Right of Way Agent VI $190 Right of Way Assistant $90 Risk Manager $175 Senior CAD Drafter $145 Senior Civil and Transportation Designer $145 Senior Manager I $215 Senior Manager II $235 Senior Manager III $245 Senior Manager IV $280 Senior Manager V $290 Senior Manager VI $310 Senior Materials Technician $95 Senior Proposal Manager $175 Survey Crew Surveyor I $65 Survey Crew Surveyor II $75 189 Effective July 4, 2021 Until Further Notice 3 | Page Survey Crew Surveyor III $85 Survey Crew Surveyor IV $95 Survey Crew Surveyor V $105 Survey Technician -- Supervisor $130 Survey Technician I $65 Survey Technician II $70 Survey Technician III $75 Survey Technician IV $90 Survey Technician V $95 Survey Technician VI $105 Survey Technician VII $120 Survey Technician VIII $130 Survey Technician IX $145 Systems Administrator $130 Technical Coordinator $155 Survey Crews One-Person Survey Crew = $135/hour One-Person Survey Crew GPS/ Robotics = $155/hour Two-Person Survey Crew = $190/hour Two-Person Survey Crew GPS/ Robotics = $200/hour Two-Person Survey Crew (PLS + LSIT) = $235/hour Three-Person Survey Crew = $275/hour Travel, Mileage, & Miscellaneous Lodging = Cost per night Airfare = Cost Vehicle Usage – Passenger Cars = 0.85/mile Vehicle Usage – Trucks & SUV’s = 1.05/mile Printing/Supplies/Phone/Fax/Postage = Note 3 In-House Usage Charges = Note 4 Per Diem Unless otherwise specified contractually, per diem will be billed when travel is more than 50 miles from the office during a meal allowance period of three or more consecutive hours or involves an overnight stay. The three meal allowance periods are breakfast (midnight to 10 am), lunch (10 am – 3 pm) and dinner (3 pm to midnight). Breakfast Lunch Dinner Incidentals GSA Per Diem Rate Billings $13.00 $14.00 $23.00 $5.00 $55.00 Bozeman $14.00 $16.00 $26.00 $5.00 $61.00 Butte $13.00 $14.00 $23.00 $5.00 $55.00 Helena $16.00 $17.00 $28.00 $5.00 $66.00 All other cities not listed above, please use the following link: https://www.gsa.gov/travel/plan-book/per-diem-rates Please use the following link for the meal breakdown: https://www.gsa.gov/travel/plan-book/per-diem-rates/meals- and-incidental-expenses-mie-breakdown 190 Effective July 4, 2021 Until Further Notice 4 | Page Notes 1. DOWL’s Professional Services Fee Schedule is subject to adjustment each year or at the end of a contract period, whichever is appropriate. Should adjustments be anticipated or required, such adjustments will not affect existing contracts without prior agreement between Client and DOWL. 2. Straight-time rates are given. Multiply by 1.5 for overtime rates. Overtime rates will be applied at the rate prescribed by applicable state law. 3. Direct reimbursable expenses such as travel, freight, subcontractors, and request beyond those requests considered reasonable by the Project Manager for phone/fax/postage, office supplies, reproduction and photography, and laboratory analysis will be billed at cost plus the negotiated markup. 4. In-house equipment usage charges or specialized software/equipment that are not separately stated on the fee schedule will be negotiated at rates deemed fair and reasonable. 5. Late charges will be assessed on the unpaid balance of all accounts not paid within 30 days of the billing date, at a rate of 1.0 percent per month (12% per year). 191 Attachment 3 to Exhibit A Professional Services Contract June 2021 Page 1 of 5 This is Attachment 3, consisting of 5 pages, referred to in and part of the Exhibit A Task Order 07 of the Agreement between Owner and DOWL for Professional Services dated September 16, 2019. Project No: Duties, Responsibilities, and Limitations of Authority of Resident Project Representative Task 5 – Construction Inspection of Exhibit A to the Agreement is supplemented to include the following agreement of the parties: 1.01 Resident Project Representative A. Engineer shall furnish a Resident Project Representative (“RPR”) to assist Engineer in observing progress and quality of the Work. The RPR may provide full time representation or may provide representation to a lesser degree. B. Through RPR's observations of Contractor’s work in progress and field checks of materials and equipment, Engineer shall endeavor to provide further protection for Owner against defects and deficiencies in the Work. However, Engineer shall not, during such RPR field checks or as a result of such RPR observations of Contractor’s work in progress, supervise, direct, or have control over Contractor’s Work, nor shall Engineer (including the RPR) have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected or used by any contractor, for security or safety at the Site, for safety precautions and programs incident to any contractor’s work in progress, or for any failure of a contractor to comply with Laws and Regulations applicable to such contractor’s performing and furnishing of its work. The Engineer (including RPR) neither guarantees the performances of any contractor nor assumes responsibility for Contractor’s failure to furnish and perform the Work in accordance with the Contract Documents. In addition, the specific terms set forth in Task 4 of Exhibit A of the Agreement are applicable. C. The duties and responsibilities of the RPR are as follows: 1. General: RPR is Engineer’s representative at the Site, will act as directed by and under the supervision of Engineer, and will confer with Engineer regarding RPR’s actions. RPR’s dealings in matters pertaining to the Contractor’s work in progress shall in general be with Engineer and Contractor. RPR’s dealings with Subcontractors shall only be through or with the full knowledge and approval of Contractor. RPR shall generally communicate with Owner only with the knowledge of and under the direction of Engineer. 192 Attachment 3 to Exhibit A Professional Services Contract June 2021 Page 2 of 5 2. Schedules: Review the progress schedule, schedule of Shop Drawing and Sample submittals, and schedule of values prepared by Contractor and consult with Engineer concerning acceptability. 3. Conferences and Meetings: Attend meetings with Contractor, such as preconstruction conferences, progress meetings, job conferences and other project-related meetings, and prepare and circulate copies of minutes thereof. 4. Liaison: a. Serve as Engineer’s liaison with Contractor. Working principally through Contractor’s authorized representative or designee, assist in providing information regarding the intent of the Contract Documents. b. Assist Engineer in serving as Owner’s liaison with Contractor when Contractor’s operations affect Owner’s on-Site operations. c. Assist in obtaining from Owner additional details or information, when required for proper execution of the Work. 5. Interpretation of Contract Documents: Report to Engineer when clarifications and interpretations of the Contract Documents are needed and transmit to Contractor clarifications and interpretations as issued by Engineer. 6. Shop Drawings and Samples: a. Record date of receipt of Samples and approved Shop Drawings. b. Receive Samples which are furnished at the Site by Contractor, and notify Engineer of availability of Samples for examination. c. Advise Engineer and Contractor of the commencement of any portion of the Work requiring a Shop Drawing or Sample submittal for which RPR believes that the submittal has not been approved by Engineer. 7. Modifications: Consider and evaluate Contractor’s suggestions for modifications in Drawings or Specifications and report such suggestions, together with RPR’s recommendations, to Engineer. Transmit to Contractor in writing decisions as issued by Engineer. 8. Review of Work and Rejection of Defective Work: a. Conduct on-Site observations of Contractor’s work in progress to assist Engineer in determining if the Work is in general proceeding in accordance with the Contract Documents. 193 Attachment 3 to Exhibit A Professional Services Contract June 2021 Page 3 of 5 b. Report to Engineer whenever RPR believes that any part of Contractor’s work in progress will not produce a completed Project that conforms generally to the Contract Documents or will imperil the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents, or has been damaged, or does not meet the requirements of any inspection, test or approval required to be made; and advise Engineer of that part of work in progress that RPR believes should be corrected or rejected or should be uncovered for observation, or requires special testing, inspection, or approval. 9. Inspections, Tests, and System Start-ups: a. Consult with Engineer in advance of scheduled inspections, tests, and systems start-ups. b. Verify that tests, equipment, and systems start-ups and operating and maintenance training are conducted in the presence of appropriate Owner’s personnel, and that Contractor maintains adequate records thereof. c. Observe, record, and report to Engineer appropriate details relative to the test procedures and systems start-ups. d. Accompany visiting inspectors representing public or other agencies having jurisdiction over the Project, record the results of these inspections, and report to Engineer. 10. Records: a. Maintain at the Site orderly files for correspondence, reports of job conferences, reproductions of original Contract Documents including all change orders, field orders, work change directives, addenda, additional Drawings issued subsequent to the execution of the Construction Contract, Engineer’s clarifications and interpretations of the Contract Documents, progress reports, Shop Drawing and Sample submittals received from and delivered to Contractor, and other Project-related documents. b. Prepare a daily report or keep a diary or log book, recording Contractor’s hours on the Site, weather conditions, data relative to questions of change orders, field orders, work change directives, or changed conditions, Site visitors, daily activities, decisions, observations in general, and specific observations in more detail as in the case of observing test procedures; and send copies to Engineer. c. Record names, addresses, fax numbers, e-mail addresses, web site locations, and telephone numbers of all Contractors, Subcontractors, and major Suppliers of materials and equipment. 194 Attachment 3 to Exhibit A Professional Services Contract June 2021 Page 4 of 5 d. Maintain records for use in preparing Project documentation. e. Upon completion of the Work, furnish original set of all RPR Project documentation to Engineer. 11. Reports: a. Furnish to Engineer periodic reports as required of progress of the Work and of Contractor’s compliance with the progress schedule and schedule of Shop Drawing and Sample submittals. b. Draft and recommend to Engineer proposed change orders, work change directives, and field orders. Obtain backup material from Contractor. c. Furnish to Engineer and Owner copies of all inspection, test, and system start-up reports. d. Immediately notify Engineer of the occurrence of any Site accidents, emergencies, acts of God endangering the Work, damage to property by fire or other causes, or the discovery of any Constituent of Concern. 12. Payment Requests: Review applications for payment with Contractor for compliance with the established procedure for their submission and forward with recommendations to Engineer, noting particularly the relationship of the payment requested to the schedule of values, Work completed, and materials and equipment delivered at the Site but not incorporated in the Work. 13. Certificates, Operation and Maintenance Manuals: During the course of the Work, verify that materials and equipment certificates, operation and maintenance manuals and other data required by the Contract Documents to be assembled and furnished by Contractor are applicable to the items actually installed and in accordance with the Contract Documents, and have these documents delivered to Engineer for review and forwarding to Owner prior to payment for that part of the Work. 14. Completion: a. Participate in visits to the Project to determine Substantial Completion, assist in the determination of Substantial Completion and the preparation of lists of items to be completed or corrected. b. Participate in a final visit to the Project in the company of Engineer, Owner, and Contractor, and prepare a final list of items to be completed and deficiencies to be remedied. c. Observe whether all items on the final list have been completed or corrected and make recommendations to Engineer concerning acceptance. 195 Attachment 3 to Exhibit A Professional Services Contract June 2021 Page 5 of 5 D. Resident Project Representative shall not: 1. Authorize any deviation from the Contract Documents or substitution of materials or equipment (including “or-equal” items). 2. Exceed limitations of Engineer’s authority as set forth in this Agreement. 3. Undertake any of the responsibilities of Contractor, Subcontractors or Suppliers. 4. Advise on, issue directions relative to, or assume control over any aspect of the means, methods, techniques, sequences or procedures of Contractor’s work. 5. Advise on, issue directions regarding, or assume control over security or safety practices, precautions, and programs in connection with the activities or operations of Owner or Contractor. 6. Participate in specialized field or laboratory tests or inspections conducted off-site by others except as specifically authorized by Engineer. 7. Accept shop drawing or sample submittals from anyone other than Contractor. 8. Authorize Owner to occupy the Project in whole or in part. 196 197 198 199 200 201 202 203 204 205 206 207 208 Memorandum REPORT TO:City Commission FROM:Chuck Winn, Assistant City Manager SUBJECT:Resolution 5356 Authorizing Prime Change Order 14 with Langlas and Associates for Construction of the Bozeman Public Safety Center MEETING DATE:November 16, 2021 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Approve Resolution 5356, Authorizing Prime Change Order 14 with Langlas and Associates for Construction of the Bozeman Public Safety Center. STRATEGIC PLAN:3.1 Public Safety: Support high quality public safety programs, emergency preparedness, facilities, and leadership. BACKGROUND:On July 27, 2020, the City Commission approved the Guaranteed Maximum Price Amendment for Construction of the Bozeman Public Safety Center as a part of the General Construction/Construction Manager agreement. This amendment contains provisions for altering the conditions of the agreement as authorized by the owner (City) to include additional work totaling $77,287.46. The majority of these additional costs includes the purchase and installation of specialized interview room video and sound equipment that will integrate with our records management, and in-car video and future body-worn camera systems. The Safety Center budget contains both owner and contractor contingencies to address unforeseen conditions, scope gaps, and owner requested changes. While every reasonable attempt was made to include everything in the original project plans and specs, projects of this size and complexity require changes during construction. The changes included in this request are reasonable and are within existing contingency amounts and overall project budget as authorized by the City Commission UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the Commission. FISCAL EFFECTS:The net amount of Change Order 14 is within the approved contingency amounts and authorized project budget. Attachments: Resolution_5356 CO14.docx BPSC Job No. 19426 Prime CO 14 signed STL.pdf 209 Report compiled on: November 5, 2021 210 Version April 2020 RESOLUTION 5356 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, WHEREAS,the City Commission did, on July 27, 2020, authorize award of the Guaranteed Maximum Price (GMP) Amendment for Construction of the Bozeman Public Safety Center with Langlas and Associates; and WHEREAS,Section 7-5-4308, Montana Code Annotated, provides that any such alterations for modification of the specifications and/or plans of the contract be made by resolution; and WHEREAS, it has become necessary in the prosecution of the work to make alterations and modifications to the specifications and/or plans of the contract. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, that the proposed modifications and/or alternates to the GMP Amendment for Construction of the Bozeman Public Safety Center, as contained in Change Order #14, attached hereto, be and the same are hereby approved; and the City Manager is hereby authorized and directed to execute the contract change order for and on behalf of the City; and the City Clerk is authorized and directed to attest such signature. PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 16th day of November, 2021. ___________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: 211 Version April 2020 ___________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 212 213 Memorandum REPORT TO:City Commission FROM:Anna Saverud, Assistant City Attorney Greg Sullivan, City Attorney SUBJECT:Resolution 5358 Appointing the Billings City Attorney as a Special Prosecutor in the Matter of KB MEETING DATE:November 16, 2021 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Move to adopt Resolution 5358, A Resolution Appointing the Billings City Attorney as a Special Prosecutor in the Matter of KB. STRATEGIC PLAN:3.1 Public Safety: Support high quality public safety programs, emergency preparedness, facilities, and leadership. BACKGROUND:The City Attorney requests the Commission, pursuant to its authority under the Bozeman City Charter and Sec. 7-4-4605, MCA, appoint Gina Dahl, the Billings City Attorney or her designee as special prosecutor in the matter of KB. The purpose of the appointment is to avoid the appearance of a conflict of interest with the Bozeman City Attorney's Office. The Billings City Attorney has agreed to accept the appointment in this case. UNRESOLVED ISSUES:None. ALTERNATIVES:None. FISCAL EFFECTS:No fee will be charged for the prosecution of this case by the Billings City Attorney's Office. However, the City of Bozeman will reimburse costs of prosecution including costs of travel at the standard rate for mileage. Attachments: Resolution 5358 Appointing Special Prosecutor in Matter of KB.pdf Report compiled on: November 8, 2021 214 Page 1 of 1 COMMISSION RESOLUTION NO. 5358 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, APPOINTING THE BILLINGS CITY ATTORNEY TO ACT AS A SPECIAL PROSECUTOR IN THE MATTER OF KB. WHEREAS, the Bozeman City Attorney requests the Bozeman City Commission, pursuant to its authority under the Bozeman City Charter and §7-4-4605, MCA, to appoint Gina Dahl, the Billings City Attorney, or her designee, as a special prosecutor in the matter of KB to avoid the appearance of a conflict of interest with the Bozeman City Attorney’s Office; and WHEREAS, the City of Bozeman will reimburse the City of Billings for costs; and WHEREAS, the Billings City Attorney’s Office has declared it agrees to accept the appointment and does so pursuant to the authority established in this Resolution. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, that: 1. Gina Dahl, the Billings City Attorney, or her designee, is hereby appointed to act as a special prosecutor in the matter of KB, Cause No. TK-21-02567. The appointment is effective immediately. 2. No fee will be charged by the Billings City Attorney’s Office. However, the City of Bozeman will reimburse the City of Billings for any costs related to the prosecution including costs of travel at the standard rate for mileage. PASSED AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 16th day of November, 2021. ___________________________________ CYNTHIA l. ANDRUS Mayor ATTEST: ________________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN Bozeman City Attorney 215 Memorandum REPORT TO:City Commission FROM:Jacob Miller, Associate Planner Chris Saunders, Community Development Manager Martin Matsen, Director of Community Development SUBJECT:Ordinance 2062 Final Adoption to Revise Language for Clarity and Consistent Application of First Floor Required Height Standards in Five Mixed-Use and Non-Residential Zoning Districts, and Revise Paragraph A.1 of Subchapter 4b of the Bozeman Guidelines for Historic Preservation and the Neighborhood Conservation Overlay District. No Changes to Maximum Height Dimensional Standards are Included with this Amendment. Revise Affected Sections to Implement the City Commission Directed Revisions MEETING DATE:November 16, 2021 AGENDA ITEM TYPE:Ordinance RECOMMENDATION:Final adoption of Ordinance 2062, the Building Heights Part 1 Text Amendment. 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:This text amendment revises language for clarity and consistent application of first floor required height standards in five non-residential zoning districts, and revises paragraph a.1 of subchapter 4b of the Bozeman Guidelines for Historic Preservation and the Neighborhood Conservation Overlay District. No changes to maximum height dimensional standards are included with this amendment. Revise affected sections to implement the revisions. At the public hearing, the City Commission directed a change in wording in response to public comment. That change caused a need to adjust additional sections for consistency in wording throughout Chapter 38 of the municipal code. This text amendment has been modified to reflect direction received from public comment and the City Commission meeting held on December 15, 2020. The ordinance was provisionally adopted on December 15, 2020. Staff determined that the changes were not significant enough to justify separate findings and therefore the staff report from December 15th stands as originally presented to the City Commission. Due to the changes and after discussion with City legal staff it was decided it was appropriate to have the City Commission again provisionally adopt the revised amendment. This text 216 amendment was again provisionally adopted by City Commission at the meeting held on January 26, 2021. This amendment has been revised since the provisional adoption on January 26, 2021 based on input from the public. City staff allowed an outside consultant an opportunity to make recommendations for changes. They were unable to complete a report for recommendations in a timely manner and therefore staff has made appropriate changes based on the input received to date. The changes to the amendment remove the requirement that apartment buildings have a ground floor to floor height of 15'. UNRESOLVED ISSUES:None. ALTERNATIVES:As Identified by City Commission. FISCAL EFFECTS:No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this amendment. Attachments: 20147 Building Height amendments Ordinance 2062 V2.pdf Report compiled on: November 2, 2021 217 Page 1 of 13 ORDINANCE NO. 2062 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA REVISING THE BOZEMAN MUNICIPAL CODE TO CHANGE THE FLOOR TO CEILING HEIGHT STANDARD TO FLOOR TO FLOOR HEIGHT BY AMENDING TABLE 38.320.050 (TABLE OF FORM AND INTENSITY STANDARDS — NON-RESIDENTIAL AND OTHER MIXED -USE DISTRICTS), AMENDING 38.330.010 – UMU DISTRICT – SPECIAL STANDARDS, TABLE 38.510.030.B (STOREFRONT BLOCK FRONTAGE STANDARDS), 38.510.030.M.2.e., AND REVISING PARAGRAPH A.1 OF SUBCHAPTER 4B OF THE BOZEMAN GUIDELINES FOR HISTORIC PRESERVATION AND THE NEIGHBORHOOD CONSERVATION OVERLAY DISTRICT RELATED TO FLOOR TO FLOOR HEIGHT AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Bozeman (the “City”) has adopted land development and use standards to protect public health, safety and welfare and otherwise execute the purposes of Section 76-2-304, MCA; and WHEREAS, City is committed to reviewing and improving the Unified Development Code; and WHEREAS, the City has developed a platform to submit revisions to the Unified Development Code to improve overall functionality and ease of use; and WHEREAS, it has been identified that Table 38.320.050 and the related footnotes do not address certain elements of the content related to floor-to-ceiling height with adequate clarity; and WHEREAS, it has been identified that the terminology, floor-to-floor height is a widely accepted industry standard; and 218 Ordinance 2062, Building Height Clarification Revisions Page 2 of 13 WHEREAS, 38.110.010, BMC, adopts the “Guidelines for historic preservation and neighborhood conservation overlay district” by reference; and WHEREAS, it is in the interests of the City and public welfare to revise the Bozeman Municipal Code to provide clarifying language and increase the ease of use of the UDC. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 That Table 38.320.050 – Table of Form and Intensity Standards – Non-Residential and Other Mixed-Use Districts, of the Bozeman Municipal Code be amended as follows: Standard Zones Commercial Zoning Districts UMU Industrial Zoning Districts PLI NEHMU B-1 B-2 B-2M B-3 BP M-1 M-2 Lot and floor area standards Minimum lot area (square feet) (38.320.020.A) 5,000 — - - — 43,560 7,500 — — 5,0001 Minimum lot width (feet) (38.320.020.A) 50 100 — — — 150 75 100 — 50 Maximum lot coverage (38.320.020.C) 100% 100% 100% 100% 100%4 60% 100% 100% - 40%— 100%5 Minimum floor area ratio (38.320.020.C) — — — — 0.50 — — — — — Building height standards (feet) (38.320.020.E) Minimum building height — — — — 226 — — — — — Maximum building height Variable8 55/709 6010 50 50 — 50 Minimum floor to floor ceiling height 13 1521 13 1521 13 1521 13 1521 13 1521 — — — — — 219 Ordinance 2062, Building Height Clarification Revisions Page 3 of 13 Roof pitch < 3:12 40 507 427 Roof pitch 3:12 or > 45 607 487 Minimum setback (feet) (38.320.020.F) Front Setback Front setback provisions are set forth in the block frontage standards in division 38.510. Setback to an individual garage oriented to the street — 20 20 20 — — — — — 20 Rear Setback 10 10 1013 015 0 2017 3 3 012 3 Side Setback 514 514 514 015 0 1517, 14 314 314 012 3 Side or Rear Setback Adjacent to Alley 5 5 5 5 5 5 5 5 5 Parking & loading areas (feet) Note15 Note15 Front Setback Note11 Note11 Note11 Note11 Note11 Note11 Note11 Note11 Rear Setback 1016 1016 516 017 - — — Side Setback 816 816 516 017 - - - Garages and special parking standards Residential Garages — Note18 Note18 Note18 — — — — — Note18 Special Parking Standards Note19, 20 Note19, 20 Note19, 20 Note20 Note19, 20 Note20 Note19,20 Note19,20 Note20 Notes: 1. The lot area must provide all required setback areas and off-street parking and loading. Lot area per dwelling must not be less than 5,000 square feet per detached single - household dwelling and 3,000 square feet per attached dwelling. Lot area per each dwelling used to satisfy the requirements of division 38.380 must not be less than 2,700 square feet per detached single-household dwelling and 2,500 square feet per attached dwelling. 2. Reserved. 3. Reserved. 4. In the UMU district, the footprint of individual buildings must not exceed 45,000 square feet. 220 Ordinance 2062, Building Height Clarification Revisions Page 4 of 13 5. The maximum lot coverage must be 40 percent for principally residential uses or 100 percent for principally non-residential uses. 6. Buildings within a development or each phase of a multi-phased development must have varying heights achieved through the use of multiple stories. 7. B-2 height exceptions: a. Maximum height may be increased by up to a maximum of 50 percent when the zoning district is implementing a regional commercial and services growth policy land use designation. b. Maximum height otherwise cumulatively allowed by this section may be increased by 30 percent through the approval of a conditional use permit, but only when the additional height is a specifically identified purpose of the review. 8. B-2M height limits: a. For buildings designed for non-residential or mixed-use: Five stories or 60 feet (whichever is less), provided the top floor of five-story buildings within 30 feet of the front property line feature has a stepback of at least ten feet from the front face of the building. b. For buildings designed for single purpose residential use: Four stories or 50 feet (whichever is less). c. An area, not to exceed a total of ten percent of the floor area which is located at street level, may extend above the maximum building height by up to 12 feet. 9. Maximum building height in the B-3 district must be 55 feet in the district core area and 70 feet outside of the core area. 10. Maximum building height may be increased by up to but not more than an additional 25 feet when structured parking is provided per section 38.330.040.E.2, and whe n determined to be in compliance with the review criteria of 38.230.100. 11. Front setback provisions are set forth in the block frontage standards in division 38.510 and in 38.350.070. 12. In the PLI district, there is no setback requirement except when a lot is adjacent to another district. The setbacks then must be the same as those in the adjacent district. The setback requirements of RS must be interpreted as those of R -1. 13. The minimum rear setback is five feet for accessory buildings. 14. Zero lot lines are allowed per 38.350.050.B. 221 Ordinance 2062, Building Height Clarification Revisions Page 5 of 13 15. All vehicle entrances into garages must be no closer than 20 feet to a property line, unless explicitly authorized otherwise under this chapter. 16. Side and rear setbacks for parking may be allowed to be zero feet when coordinated parking arrangements between adjacent properties are provided. 17. Rear and side setbacks adjacent to alleys must be at least five feet. 18. Garage location standards: for single to four-household uses, see 38.350.070. 19. This chapter provides opportunities for parking requirements to be met by shared and off-site parking as allowed by division 38.540 of this chapter. 20. Non-residential and multi-household developments are subject to the block frontage standards of division 38.510. 21. Floor-to-floor height is defined as the height between each floor plate in a building measured from the top of the ground floor to the top of the floor above. This standard applies to non-residential buildings, and mixed use buildings, except for residential portions of mixed- use buildings. Section 2 That 38.330.010 – UMU district – Special Standards of the Bozeman Municipal Code be amended as follows with the remaining elements of the section to remain as presently written: E. Building standards. 1. Building design. See division 38.520 for applicable standards for all development types. 2. Floor-to-floor heights and floor area of ground-floor space. a. All commercial floor space provided on the ground floor of a mixed-use building must have a minimum floor-to-ceiling height of 13 feet. b. All commercial floor space provided on the ground floor of a mixed-use building must contain the following minimum floor area: (1) At least 800 square feet or 25 percent of the lot area (whichever is greater) on lots with street frontage of less than 50 feet; or (2) At least 20 percent of the lot area on lots with street frontage of 50 feet or more. 3. Street-level openings on parking structures must be limited to those necessary for retail store entrances, vehicle entrance and exit lanes, and pedestrian entrances to stairs and 222 Ordinance 2062, Building Height Clarification Revisions Page 6 of 13 elevator lobbies. Parking structures adjacent to streets must have architectural detailing such as, but not limited to, standard size masonry units such as brick, divided openings to give the appearance of windows, and other techniques to provide an interesting and human-scaled appearance on the story adjacent to the sidewalk. Section 3 That Table 38.530.010.B – Storefront block frontage standards, of the Bozeman Municipal Code be amended as follows: Table 38.510.030.B Storefront block frontage standards Element Standards( refers to departure opportunities, see subsection 38.510.030 below) Examples & Notes Ground floor Land use Non-residential uses specified in 38.310.040, except for lobbies associated with residential or hotel/motel uses on upper floors. Floor to ceiling floor height of ground floor 13 15' minimum (applies to new buildings only). Non-residential space depth 20' minimum (applies to new buildings only). Building placement Required at front property line/back edge of sidewalk. Additional setbacks are allowed for widened sidewalk or pedestrian-oriented space (38.520.060.D). 223 Ordinance 2062, Building Height Clarification Revisions Page 7 of 13 Building entrances Must face the street. For corner buildings, entrances may face the street corner. Façade transparency At least 60% of ground floor between 30" and 10' above the sidewalk for primary facades and 40% of ground floor between 30" and 10' above the sidewalk for secondary facades. Display windows may count for up to 50% of the transparency requirement provided they are at least 30" in depth to allow for changeable displays. Tack-on display cases do not qualify as transparent window areas. Window area that is glazed over or covered in any manner that obscures visibility into the storefront space shall not count as transparent window area. Weather protection Weather protection with 8-15' vertical clearance at least 5' in average depth along at least 60% of façade. Retractable awnings may be used to meet these requirements. Parking location Also see division 38.540 of this division for related parking requirements New surface and structured parking areas (ground floor) must be placed to the side or rear of structures and are limited to 60' of street frontage. Provide a 6' minimum buffer of landscaping between the street and off street parking areas meeting the performance standards of division 38.550. 224 Ordinance 2062, Building Height Clarification Revisions Page 8 of 13 Sidewalk width 12 feet minimum between curb edge and storefront (area includes clear/buffer zone with street trees). Setbacks and utility easements must also be considered and may result in a larger minimum sidewalk width. Section 4 That 38.510.030.M, Structured parking facility development standards, of the Bozeman Municipal Code be amended as follows: [M. Structured parking facility development standards.] [3] 1. All above ground structured parking facilities must conform to the design standards herein and the designated block frontage in section 38.510.030. In the event of a conflict between block frontage standards and the standards of this section, the stand ards of this section will govern. Exceptions: a. Single-household dwellings and individual townhouse and multi-household units with physically separated individual drive aisles. Physical separation is provided when at least one of these options are provided: Individual garage doors for each interior parking space; a vegetated planter not less than four feet in width between the parking spaces in the driveway area; or a wall not less than four feet in height and length, is provided between the parking area in the driveway and dividing the garage entrance; and b. For development in the R-5 and B-2M districts, the applicable structured parking provisions in division 38.500 (Block Frontage Standards) take precedence over any conflicting provisions of division 38.340 or related standards in this section. 2. Building standards. 225 Ordinance 2062, Building Height Clarification Revisions Page 9 of 13 a. Intent: To promote an active and diverse streetscape, parking structures should be located behind buildings in the interior of blocks or below grade. Parking garages that front streets must line the parking garage at the street level with an active use. (1) Street designs accommodate on street parking and pedestrian mobility. Parking lots and garages rarely front the streets, and are typically relegated to the rear of the lot and the center of blocks. (2) Parking garages should be located in the interior of blocks. Parking garages that front onto streets must provide a lining of retail, office, or residential use at the street level along the entire street frontage. b. In all districts, all commercial floor space wrapping must provide a minimum 20 foot depth of habitable and conditioned space as defined by the most currently adopted IBC. c. In all districts, commercial space depth will be considered where the applicant can successfully demonstrate the proposed alternative design and configuration of the space is viable for a variety of permitted commercial uses. d. In all districts, residential active use areas must be 12 feet in depth, except for riser room, trash areas and other functional uses that must face the street. e. In all districts, all commercial floor space wrapping a parking structure on the ground floor must have a minimum floor to ceiling floor height of 13 15 feet. f. Structured parking facilities must provide transparency along at least 50 percent of the linear length of the building's façade. This may be achieved with windows, displays, building lobbies, building entrances, display windows, or windows affording views into the building. This requirement applies to both frontages of a building located on a corner lot. (1) The bottom edge of any window or product display window used to satisfy the transparency standard of this subsection B.3 may not be more than four feet above the adjacent sidewalk. (2) Product display windows used to satisfy these requirements must have a minimum height of four feet and be internally lighted. g. Street-level openings on parking structures must be limited to those necessary for retail store entrances, vehicle entrance and exit lanes, and pedestrian entrances to stairs and elevator lobbies. Parking structures adjacent to streets must have architectural detailing such as, but not limited to, standard size masonry units such as brick, divided openings to give the appearance of windows, and other techniques to provide an interesting and human-scaled appearance on the story adjacent to the sidewalk. 226 Ordinance 2062, Building Height Clarification Revisions Page 10 of 13 h. Buildings must be articulated with modules, architectural detailing, individual floors visually expressed in the façade, and rhythm and pattern of openings and surfaces must be human-scale. i. Buildings must be oriented to the adjacent public or private street. j. If an alley is adjacent to site, access must be taken from that alley. Access to a street may be considered by the review authority. k. A pedestrian safety plan is required for all parking facilities with more than 100 parking spaces and must be reviewed and approved by the city engineer. The city engineer may request a pedestrian safety plan for parking facilities with less than 100 parking spaces. l. Parking entrance(s) may not account for more than 25 percent of entire building façade. m. Parking entrance(s) must not be located central to the building façade. Section 5 That paragraph A.1 of Subchapter 4B of the Bozeman Guidelines For Historic Preservation And The Neighborhood Conservation Overlay District be amended as follows with all other portions remain unchanged: 1. Provide density to meet the goals and objectives of the Downtown Bozeman Improvement Plan. • Floor area ratio for any new construction project shall be a minimum of 1.0 FAR. Lower FAR ratios are acceptable with renovation or remodeling of existing structures. • Floor-to-floor heights for commercial and mixed use buildings ground floors shall be designed to accommodate a variety of current and future uses and must comply with 227 Ordinance 2062, Building Height Clarification Revisions Page 11 of 13 Table 38.320.050 of the municipal code. The first floor level of new commercial and mixed use buildings shall maintain a minimum floor-to-floor height of 15 feet. • Ground floor residential uses are exempt from the 15-foot floor-to-floor height requirements but developers are encouraged to consider taller first floors to provide flexibility for a variety of uses over time. Section 6 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 7 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 o ther provisions of the Bozeman Municipal Code not amended by this ordinance shall remain in full force and effect. Section 8 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 228 Ordinance 2062, Building Height Clarification Revisions Page 12 of 13 decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman Municipal Code as a whole. Section 9 Codification. This Ordinance shall be codified as indicated in Sections 1-4. Section 10 Effective Date. This ordinance shall be in full force and effect thirty (30) days after final adoption. 229 Ordinance 2062, Building Height Clarification Revisions Page 13 of 13 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 230 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 16, 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 231 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: Ordinance 2092.pdf Report compiled on: October 27, 2021 232 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, 233 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 or public officers 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 234 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 a 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. 235 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. 236 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 237 Memorandum REPORT TO:City Commission FROM:Jeff Mihelich, City Manager Anna Rosenberry, Assistant City Manager Jim Veltkamp, Chief of Police Cassandra Tozer, Human Resources Director Melody Mileur, Communications and Engagement Manager Dani Hess, Community Engagement Coordinator SUBJECT:Fifth Quarterly Report on Bozeman as an Inclusive City MEETING DATE:November 16, 2021 AGENDA ITEM TYPE:Plan/Report/Study RECOMMENDATION:None STRATEGIC PLAN:3.3 Friendly Community: Ensure Bozeman continues to welcome diversity through policies and public awareness. BACKGROUND:On July 22, 2020 the City Commission was presented with the “Bozeman as an Inclusive City Review of Policies.” This internal review presented 24 actions items describing how the City could continue to strive toward a more equitable and inclusive organization and community. As a part of the report City staff will be providing the City Commission with quarterly updates on the progress made on the actions outlined in the report. This is the fifth quarterly report on this topic to come before the Commission. The report includes detailed updates on completed and in progress/ongoing actions as well as a timeline and budget for each action in the report. To view previous quarterly reports visit the City’s website www.bozeman.net/equityandinclusion Some key highlights from the report include: The Community Roundtable on Equity and Inclusion on October 25th that brought over 120 people together to discus the Equity Indicators Report, listen to story, and identify actions for moving forward. Recently completed training by the City Commission on foundations of equity Steps toward evaluating diversity and inclusion on the City's advisory boards as a part of the recent board consolidation effort UNRESOLVED ISSUES:None 238 ALTERNATIVES:None FISCAL EFFECTS:None Attachments: Inclusive City Report November 2021.pdf Report compiled on: November 9, 2021 239 1 NOVEMBER 16, 2021 City of Bozeman Inclusive City Project Team Inclusive City Quarterly Report November 2021 240 2 City Manager Update In July of 2020, staff came before the City Commission with the Inclusive City report. This internal report has 24 actions describing how we can continue to strive towards a more equitable and inclusive organization and community. This is the City’s fifth quarterly report. We continue to remain dedicated to this work and I’m proud of the progress we are seeing across our organization. We now have 17 of our actions in progress or complete! Of course, the work is never done. As we look towards developing an equity action plan there will be more to do. To view all previous reports visit our website at www.bozeman.net/equityandinclusion. This report includes a list of completed actions along with updates on newly completed items, updates on actions that are in progress, and a detailed timeline and associated budget for all actions. Words matter in this work, and it’s important to point out that many of these items may never be “complete” but will be “ongoing” efforts that the City is dedicated to incorporating as a part of routine work. This fall was a busy season for several projects within the Inclusive City report. The Equity Indicators Project was finalized this fall giving us clear data points on which we can measure our progress as a community. The entire report is available on our website www.bozeman.net/equityandinclusion and we expect our live dashboard to be up this winter! After an extensive and intentional planning effort the Community Roundtable on Equity and Inclusion was a success! The event was attended by over 120 community members and combined real life stories with the data of our new equity indicators. We’d like to thank the many partners who attended and especially our planning team including folks from Montana State University, Bozeman Health, Montana Racial Equity Project and Bozeman School District 7. The roundtable helped strengthen and grow relationships across Bozeman and we are excited to take this momentum into the next year. Finally, the entire City Commission as well as some of our top leaders in City staff attended a four hour long course on the foundations of equity. Training remains one of our top priorities and we are thrilled to deliver core training to some of our key decision makers at the City. In the simplest terms, our goal is to ensure that every resident, visitor, and City of Bozeman employee feels welcomed and valued, and can thrive no matter their race, identity, or life circumstance. – Jeff Mihelich 241 3 Completed Actions For further detail on completed actions please review previous reports on our website at www.bozeman.net/equityandinclusion City Manager Recommendations 1. Provide a quarterly progress report to the City Commission and interested stakeholders The next report will be delivered in February 2021. 4. Sponsor a Diversity, Equity and Inclusion Summit with community partners such as Montana State University, HRDC, and Montana Racial Equity Project The Community Roundtable on Equity & Inclusion was hosted in partnership with the Montana State University Office of Diversity & Inclusion, Montana Racial Equity Project, Bozeman School District, and Bozeman Health. The 2.5 hour virtual event took place on Monday, October 25th and was attended by over 120 community members and leaders of organizations addressing our community’s most pressing needs. The planning committee took steps to create a welcoming and inclusive space by co-creating and delivering a land acknowledgement, establishing group agreements for participation in discussion, and providing language access for Spanish speakers through live interpretation, and accommodating the needs of people with low or no vision or hearing. The event covered the data with a presentation of equity indicators, made space for the voices of three local storytellers who shared their lived experiences, and sparked discussion among attendees about how we can all contribute to closing the gaps in our community. Out of these facilitated discussions, we gathered input, listened to people’s experiences, and exchanged contact information. We are excited to maintain momentum, strengthen existing relationships, and build new ones as we take the next steps together. The event closed by asking participants to commit to taking action in their organizations or personal lives through continued learning about inequity and injustice, contributing to the work being done by local organizations to correct inequities, and participate in the City of Bozeman’s upcoming efforts to develop a Diversity, Equity & Inclusion plan. Participants were directed to the city’s website to stay informed and engaged as we lay the groundwork for a Diversity, Equity & Inclusion plan in the coming year. 6. Become a member of the Government Alliance on Race and Equity (GARE) The City of Bozeman was accepted into GARE in November 2020. Bozeman is now the first organization from Montana to be a part of GARE! As a part of the City’s membership there are opportunities to learn from leaders in the space as well as share successes. Several staff have already completed the GARE Foundations training course “Advancing Racial Equity: The Role of Government” and are utilizing the network to ensure the City’s actions are in line with best practices. 242 4 Diversity, Inclusion and interaction with Minorities – Bozeman Police Department 2. Augment existing policies and update to “Bias-free Policing” The Bozeman Police Department has reviewed its existing policies against the model policy of “Bias-Free Policing” and updated the department’s existing policies where necessary to be in line with this national best practice (See Appendix A.) The final policy has now replaced the prior policy and staff have completed a training program which highlighted the changes and the key points. Use of Force – Bozeman Police Department 1. Policy Changes The Bozeman Police Department has made revisions to the current policy which includes providing additional policy direction concerning de-escalation and use of force. The goal of the updates is to address community concerns and provide clarity for officers. As a result, a new and updated “Use of Force” policy (see Appendix B) has been finalized and approved. The updated policy has been implemented and staff have completed a training program to familiarize them with the changes. Citizen Appeal Process – Bozeman Police Department 2. Clearly distinguish inquiries from complaints After distinguishing inquiries from complaints, Bozeman Police Department staff began the lengthy process of formulating workflow stemming from each category, which has now also been completed. The workflow clearly separates and defines “inquiries,” “minor complaints,” and “major complaints.” After that, it distinguishes which major complaints will require an administrative investigation and which will require an external investigation. 243 5 In Progress Actions City Manager Recommendations 2. Identify anti-discrimination, implicit bias and systemic racism training for elected officials and department heads. In September the Bozeman City Commission as well as Directors and City Management participated in a four hour foundational diversity, equity and inclusion training through The Equity Project. This voluntary, interactive, virtual training provided an opportunity for all elected officials to receive a basic level course ahead of implementation of the REAL program. The project Training Team continues to work with National League of Cities’ Race, Equity And Leadership (REAL) training program as the partner to deliver REAL 100: Normalizing Racial Equity in Local Government Training to city staff, including elected officials and department heads. It is very important that everyone in our organization, regardless of position, has the opportunity to experience this base-line training. The process includes an employee assessment that will take place leading into the training that will assist in identifying follow-up training needs after this 100-level course. Staff are currently putting together the questions for the pre-training assessment that will go out to all employees. 5. Accelerate the implementation of body worn cameras for the Bozeman Police Department. After having selected Getac Video Solutions as the new vendor for patrol car video systems, interview room video systems, and body worn cameras, the Bozeman Police Department installed a test patrol car video system this summer. Having a system installed and being tested on a daily basis has allowed the department to fix any issues and ensure complete integration with the new digital evidence management system. In addition, plans have been finalized to have this system installed in the interview rooms in the new Bozeman Public Safety Center. As of this report, the Bozeman Police Department and Bozeman City Attorney’s Office are still working to finalize a contract with Getac Video Solutions. During this quarter, payment options were closely considered and the departments’ Capital Improvement Project funding requests were adjusted. Once the contract is finalized, the process of migrating all patrol car video systems to this vendor will begin, hopefully this coming quarter. In addition, we have tentative plans to put together a community engagement process this winter, in anticipation of beginning use of the body cameras next year. 3. Develop a City Equity and Inclusion Plan to engage stakeholders and identify gaps community wide and to implement policies that help all persons in Bozeman thrive regardless of economic, racial, cultural, or gender identity. City staff finalized the Equity Indicators Report this fall and continue to focus on getting data sharing agreements executed with partner organizations. An online platform will be developed to share live indicators 244 6 and is anticipated to launch this winter. The data is intended to inform conversations on how the city can take action to address these needs and close the gaps together as a community. The first steps to develop an equity action plan are expected to start early 2022. Anti-discrimination 1. Implement additional training for all city staff. As mentioned above under City Manager’s Recommendation Action 2, The project Training Team continues to work with National League of Cities’ Race, Equity And Leadership (REAL) training program as the partner to deliver REAL 100: Normalizing Racial Equity in Local Government Training to city staff, including elected officials and department heads. It is very important that everyone in our organization, regardless of position, has the opportunity to experience this base-line training. The process includes an employee assessment that will take place leading into the training that will assist in identifying follow-up training needs after this 100-level course. Staff are currently putting together the questions for the pre-training assessment that will go out to all employees. In June of 2021, the City Commission intentionally earmarked approximately $61,000 for the Bozeman Police Department to use to increase training in the areas of implicit bias and de-escalation. During this quarter, the Bozeman Police Department utilized those funds to purchase a virtual reality training simulator. Rather than spending the funds on one-time training, the purchase of this system will allow the department to conduct ongoing training on these issues. In addition, the system will be used to offer training to other City employees, train new officers on a wide variety of topics, and during events such as the Citizen’s Police Academy. Training Date Completed Length # Staff Trained Comments Workplace Diversity Started December 2020, Ongoing 1 hour 98.2% of all employees Cultural diversity can strengthen an organization’s values and enhance community awareness. Due to our country’s rapid growth and ever- changing diverse populations, organizations are realizing strength in the marketplace is linked to their ability to attract a culturally diverse workforce. Unfortunately, discrimination still occurs on many levels. The goals of this program are to promote awareness and encourage acceptance, describe strategies to create a positive and accepting work environment, and to highlight the steps to take should discrimination occur in the workplace. GARE Foundations Advancing Racial Started December 2020, Ongoing 6 hours 7 This course provides an introduction to the role, responsibilities and opportunities for government to advance racial equity. Participants gain 245 7 Equity: The Role of Government awareness of the history of race and of implicit and explicit bias and individual, institutional, and structural racism and how it impacts the workplace. The course also focuses on normalizing racial equity as a core value with clear definitions of key terminology, operationalizing racial equity via new policies and institutional practices, and organizing, both internally and in partnership with other institutions and the community. Participants also become skilled at identifying and addressing institutional and structural racism. 3. Review employee performance appraisal system The City’s Human Resources department is working with managers, supervisors and represented employee groups to seek input on a new approach to performance evaluation. The new approach will have an emphasis on coaching and development and will aim to facilitate timely, reliable and valuable feedback for all employees. Once input has been received by staff the program will be reviewed and approved by City Management before being launched with employees in the “non-represented” category and MFPE union. 4. Review best practice recommendations, including the THRIVE index and the Municipal Equality index City staff had initial discussions on the City’s current scores in the THRIVE index (Appendix C) and the Municipal Equality Index (Appendix D.) Based on the City’s scores from 2019, the team has identified several key areas where additional progress can be made: 1. THRIVE Index: We believe that we may be able to improve our Paid Parental Leave policies to assist employees. The Human Resources Department is researching the issue and will make recommendations to the City Manager within the coming months. 2. Municipal Equality Index: The City has submitted feedback to MEI for any changes to our 2021 score. We expect a final scorecard to come out at the end of the year. 6. Evaluate Diversity and Inclusion on Advisory Boards The City Commission recently took action to consolidate many of the City’s Citizen Advisory Boards. As a part of the consolidation process the City Commission prioritized diversity, equity and inclusion in the new structure. At the direction of the Commission the City developed a voluntary survey to gather baseline information from the existing Citizen Advisory Board members. Upon the appointment of the new consolidated boards, the same survey tool will be distributed to gain a second data point. All data will be compiled in the aggregate and begins the formal tracking of diversity on the boards. 246 8 The results from those who responded to the initial survey show that people of color are underrepresented on advisory boards. The City also collected voluntary demographic data on gender, sexual orientation, age, disability, and whether board members are renters or homeowners. Diversity, inclusion and interaction with minorities – Bozeman Police Department 1. Training This item will be an ongoing effort by the Bozeman Police Department to explore additional training opportunities on topics including recognizing implicit bias, anti-racial profiling and Bias-Free policing. Training Date Completed Length # Staff Trained Comments Implicit Bias November 2020 2.5 hours 64 (all officers) Officers completed an online course intended to help them understand how implicit bias impacts actions and decisions. The course examined the relationship between unconscious and implicit bias, addressed illicit bias and how it affects decision making, and discussed the importance of communicating effectively. Use of Force 1. Training This item will be an ongoing effort by the Bozeman Police Department to incorporate more communication and de-escalation, scenario-based, in-service trainings for officers. Staff will also evaluate and consider additional training programs on topics that include communication, de-escalation, intervention, recognizing force mitigation opportunities, use of force decision-making and more. Training Date Completed Length # Staff Trained Comments Decision Making November 2020 2 hours 64 (all officers) Officers attended a training regarding making good decisions during critical incidents. This training included the science behind why poor decisions are sometimes made, the inherent “fight or flight” response and how to overcome it, and how to remain calm and think critically during high-stress incidents. De-escalation, Intervention, and Force Mitigation January 2021 2 hours 62 (all officers) Officers completed an online course focusing on “De-Escalation, Intervention, and Force Mitigation.” After defining each term, the training discussed the importance 247 9 of focusing on a “guardian” mindset, described a variety of factors involved in human interaction, and explored techniques for lowering emotions to change behavior in volatile situations. Situational Awareness for Force Usage Training May, 2021 2 hours 40 After participating in a live scenario that obviously required force, officers were placed in a slightly altered scenario that did not require force. Scenarios were intended to train officers to individually assess each situation, utilize good communication skills, recognize potential danger versus lethal danger, and focus on de-escalating whenever possible. Force Mitigation September, 2021 2 hours 64 (all) Every year, all officers must certify in a variety of “less lethal” options, all designed to mitigate the amount of force used during an encounter. During each training cycle, officers must complete a written or verbal test, practice with the tool, then complete a scenario that includes communicating with the individual in an attempt to avoid force, then deciding whether that tool is appropriate for the scenario. Communication and De-escalation October, 2021 3 hours 6 (newly hired officers) As part of their initial training, all new officers hired this quarter attended a 3 hour class on communication and verbal de- escalation tactics. This course includes examining the topic of “communication” from both legal and best-practice perspectives and ways to verbally de- escalate situations. Crisis Negotiations Course November, 2021 40 hours 3 (officers) Three current officers attended a 40 hour course focused on communicating effectively with those in a variety of crises, with the common goal always being to avoid using any type of force to resolve the situation. Crisis Negotiations Conference November, 2021 16 hours 3 (officers) Three different current officers attended a 2 day course which included classes on a variety of crisis negotiations topics. The conference and all included course again center on decreasing the need for any force. 248 10 Citizen Appeal Process 1. Create a stand-alone citizen complaint policy.3. Refine the complaint investigative process. These action items are interconnected and, for the sake of this report, are considered dependent upon each other. After distinguishing inquiries from complaints, staff began the lengthy process of formulating workflow stemming from each category, which has now also been completed. The workflow clearly separates and defines “inquiries,” “minor complaints,” and “major complaints.” After that, it distinguishes which major complaints will require an administrative investigation and which will require an external investigation. The overall citizen complaint policy has now also been completed, a policy which will be included when the department soon begins publically publishing all policies. The “complaint form” which will begin each complaint process is now also being finalized and will also be made available to the public. Discussions are still ongoing regarding the citizen’s appeal process, including who will conduct the review and how a review will be requested. 249 11 Bozeman as an Inclusive City Report – Actions, Budget, Timeline Green = Complete Yellow = In progress or Ongoing Red = Not yet started City Manager Recommendations Based on the review of our existing policies, procedures, training protocols and best practices the City Manager recommends the following actions: ACTION ITEM LEAD DEPARTMENT TIMELINE FOR IMPLEMENTATION BUDGET (ESTIMATE IF AVAILABLE, NOTE IF ALREADY BUDGETED FOR AND WHAT FISCAL YEAR) 1. PROVIDE A QUARTERLY PROGRESS REPORT TO THE CITY COMMISSION AND INTERESTED STAKEHOLDERS CITY MANAGER’S OFFICE IMMEDIATELY - FIRST REPORT NOVEMBER 2020 $0 2. IDENTIFY ANTI-DISCRIMINATION, IMPLICIT BIAS AND SYSTEMIC RACISM TRAINING FOR ELECTED OFFICIALS AND DEPARTMENT HEADS HUMAN RESOURCES/CITY MANAGER’S OFFICE DEVELOP 12-MONTH TRAINING PROGRAM BY DECEMBER 2020 $53, 745 (PAID FOR THROUGH GRANT) 3. DEVELOP A CITY DIVERSITY, EQUITY AND INCLUSION PLAN TO ENGAGE STAKEHOLDERS AND IDENTIFY GAPS COMMUNITY WIDE AND TO IMPLEMENT POLICIES THAT HELP ALL PERSONS IN BOZEMAN THRIVE REGARDLESS OF ECONOMIC, RACIAL, CULTURAL, OR GENDER IDENTITY CITY MANAGER’S OFFICE 18 MONTHS UNKNOWN 4. SPONSOR A D IVERSITY, EQUITY AND INCLUSION SUMMIT WITH COMMUNITY PARTNERS SUCH AS MONTANA STATE UNIVERSITY, HRDC, AND MONTANA RACIAL EQUITY PROJECT CITY MANAGER’S OFFICE 2021 UNKNOWN 5. ACCELERATE THE IMPLEMENTATION OF BODY WORN CAMERAS FOR THE BOZEMAN POLICE DEPARTMENT BOZEMAN POLICE DEPARTMENT BPD WILL HAVE RECOMMENDATION ON TIMELINE AS A PART OF THE UPCOMING CAPITAL IMPROVEMENT PLANNING PROCESS AND WILL MAKE RECOMMENDATIONS ON FISCAL YEAR. BPD WILL HAVE COST ESTIMATES AS A PART OF THE UPCOMING CAPITAL IMPROVEMENT PLANNING PROCESS. 250 12 6. BECOME A MEMBER OF THE GOVERNMENT ALLIANCE ON RACE AND E QUITY CITY MANAGER’S OFFICE IMMEDIATELY $1,000 ANNUALLY 251 13 Overall Diversity for the Organization ACTION ITEM LEAD DEPARTMENT TIMELINE FOR IMPLEMENTATION BUDGET (ESTIMATE IF AVAILABLE, NOTE IF ALREADY BUDGETED FOR AND WHAT FISCAL YEAR) 1. MAKE DIVERSITY A FORMAL AND HIGH PRIORITY FOR THE ORGANIZATION The City will communicate its commitment to diversity to all city staff and significantly increase formal training for supervisors and employees on implicit bias. The City will review and adjust its employee performance appraisal system to ensure consistency of evaluations and non- discrimination. CITY MANAGER HOLD ALL CITY STAFF MEETING AND PASS ADMINISTRATIVE ORDER $0 252 14 Anti-discrimination ACTION ITEM LEAD DEPARTMENT TIMELINE FOR IMPLEMENTATION BUDGET (ESTIMATE IF AVAILABLE, NOTE IF ALREADY BUDGETED FOR AND WHAT FISCAL YEAR) 1. IMPLEMENT ADDITIONAL TRAINING FOR ALL CITY STAFF HUMAN R ESOURCES LMS “WORKPLACE DIVERSITY” DEPLOYED TO ALL EMPLOYEES BY DECEMBER. ESTABLISH A 12 MONTH TRAINING CALENDAR FOR ALL EMPLOYEES BY MARCH 2021 WE HAVE A SYSTEM WITH THESE TYPES OF TRAININGS INCLUDED BUT MAY NEED FUNDING FOR IN PERSON TRAINING The City will consider more frequent and additional trainings including trainings on “Inclusion in the Workplace” and “Implicit Bias” 2. EMPLOYEE ENGAGEMENT SURVEYS HUMAN R ESOURCES MOVED TO SPRING 2022 $0 The City will engage employees annually to gauge inclusion and engagement in the workplace to measure the success of other efforts by the City. 3. EMPLOYEE PERFORMANCE APPRAISAL SYSTEM HUMAN R ESOURCES FY22 $0 The City will review its employee performance appraisal system and provide updates with greater consideration to fairness and inclusion. 4. REVIEW BEST PRACTICE RECOMMENDATIONS, INCLUDING THE THRIVE INDEX AND THE MUNICIPAL EQUALITY INDEX HUMAN RESOURCES/CITY MANAGER’S OFFICE INITIAL MEETING WITH CITY MANAGER TO REVIEW THESE PROGRAM ELEMENTS IN JANUARY 2021 $0 FOR INITIAL REVIEW. IMPLEMENTING NEW ELEMENTS MAY REQUIRE FUNDING. The City will review the best practices of the THRIVE index and the Human Rights Campaign’s Municipality Equality index and consider City policies that may need additional updates to meet these best practices. 5. REVIEW HOW THE CITY HANDLES ANONYMOUS COMPLAINTS (ETHICS ORDINANCE) CITY MANAGER’S OFFICE 2022 $0 253 15 The City will review the current policies within the ethics ordinance that requires complainants to give their name before complaints are given a complaint investigation status. The review will consider the failures of the policy to meet the needs of the victim and should be updated to reflect those needs. 6. EVALUATE DIVERSITY & INCLUSION ON ADVISORY BOARDS CITY CLERK’S OFFICE SUMMER 2021 $0 The City will conduct an evaluation of City Advisory Boards to determine how or if the City tracks diversity on these boards and consider systems that could be implemented to support diversity and inclusion in these spaces. 254 16 Diversity, inclusion and interaction with minorities – Bozeman Police Department ACTION ITEM LEAD DEPARTMENT TIMELINE FOR IMPLEMENTATION BUDGET (ESTIMATE IF AVAILABLE, NOTE IF ALREADY BUDGETED FOR AND WHAT FISCAL YEAR) 1. ADD FUTURE TRAININGS POLICE DEPARTMENT The Bozeman Police Department will explore additional training opportunities on topics including recognizing implicit bias, anti-racial profiling, and Bias-Free Policing. IMPLICIT BIAS TRAINING (ONLINE) (2.5 HR) NOVEMBER 2020 $3,400 2. AUGMENT EXISTING POLICIES AND UPDATE TO “BIAS-FREE POLICING” POLICE DEPARTMENT The Bozeman Police Department will review its existing policies against the model policy of “Bias-Free Policing” and update existing policies where necessary to be in line with this national best practice. COMPLETED AND TRAINING IMPLEMENTED $0 3. BROADEN COMMUNITY O UTREACH EVENTS The Bozeman Police Department will give continued consideration to broadening community outreach events to interact with more Montana State University groups as well as other community groups. POLICE DEPARTMENT TO BE DETERMINED DEPENDENT UPON PANDEMIC- RELATED RESTRICTIONS N/A 255 17 Hiring Practices - Overall ACTION ITEM LEAD DEPARTMENT TIMELINE FOR IMPLEMENTATION BUDGET (ESTIMATE IF AVAILABLE, NOTE IF ALREADY BUDGETED FOR AND WHAT FISCAL YEAR) 1. CONTINUED EFFORTS TO REACH OUR BEST PRACTICES The City will continue to evaluate and improve its efforts to achieve our best practices in hiring and recruitment. This includes improving our results for candidates and evaluating the impacts of turnover. HUMAN R ESOURCES APRIL 2021 MAY NEED MINIMAL AMOUNTS FOR JOB POSTINGS TO NICHE GROUPS. 2. UPDATE HIRING PRACTICES POLICY HUMAN R ESOURCES 2021-2022 $0 The City will update the hiring practices manual to reflect current practices and further efforts for diversity. The City will also train supervisors to the hiring practices and hold supervisors accountable for not following hiring practices. 3. REVIEW AND UPDATE THE LANGUAGE AND IMAGES USED FOR ADVERTISING POSITIONS HUMAN R ESOURCES 2021 $20,000 The City will review the language and images used for recruiting and advertising open city positions to specialized groups. Language and images should take into consideration literal and visual differences in varied applicant pools. WORK WITH A CONSULT TO DEVELOP NEW VISUAL AND WRITTEN MATERIALS 256 18 Use of Force ACTION ITEM LEAD DEPARTMENT TIMELINE FOR IMPLEMENTATION BUDGET (ESTIMATE IF AVAILABLE, NOTE IF ALREADY BUDGETED FOR AND WHAT FISCAL YEAR) 1. POLICY CHANGES The Bozeman Police Department will make revisions to the current BPD policy and provide additional policy direction concerning de- escalation and use of force. These updates hope to address community concerns and provide clarity for officers. POLICE DEPARTMENT COMPLETE AND TRAINING IMPLEMENTED $0 2. FUTURE TRAININGS POLICE DEPARTMENT The Bozeman Police Department will incorporate more communication and de-escalation scenario-based in-service trainings for officers. They will also evaluate and consider additional training programs on topics that include communication, de-escalation, intervention, recognizing force mitigation opportunities, use of force decision-making, and others. DECISION MAKING (IN PERSON FOR OFFICERS) (2 HR) NOVEMBER 2020 $0 DE-ESCALATION AND FORCE MITIGATION (ONLINE FOR ALL OFFICERS) (2 HR) FALL 2020 $3,400 DE-ESCALATION SCENARIOS (IN PERSON FOR OFFICERS) (2 HR) MAY, 2021 $0 FORCE MITIGATION OCTO BER, 2021 $0 257 19 COMMUNICATION AND DE-ESCALATION OCTOBER, 2021 $0 CRISIS N EGOTIATIONS NOVEMBER, 2021 258 20 Citizen Appeal Process – Bozeman Police Department ACTION ITEM LEAD DEPARTMENT TIMELINE FOR IMPLEMENTATION BUDGET (ESTIMATE IF AVAILABLE, NOTE IF ALREADY BUDGETED FOR AND WHAT FISCAL YEAR) 1. CREATE A STAND-ALONE CITIZEN COMPLAINT POLICY The Bozeman Police Department will create a stand-alone Citizen Complaint Policy that will be available on the City’s website with clear instructions on how to file a complaint, the complaint investigation process, timeline for response, and steps for further engagement after an outcome has been determined. POLICE DEPARTMENT SPRING 2021 $0 2. CLEARLY DISTINGUISH INQUIRIES FROM COMPLAINTS The Bozeman Police Department will create a process, including defining the terms “inquiry” and “complaint” to clearly distinguish inquiries from complaints requiring an investigation and create a system for documenting inquiries. POLICE DEPARTMENT SPRING 2021 $0 3. REFINE THE COMPLAINT INVESTIGATIVE PROCESS The Bozeman Police Department will review and update the Complaint Investigative Process to establish a clear timeframe for notification and follow-up within 24 hours with a complainant. The Bozeman Police Department will also explore options for developing an appeal process for citizens that are unsatisfied with the outcome of a complaint investigation. POLICE DEPARTMENT SPRING 2021 $0 259 Memorandum REPORT TO:City Commission FROM:Jacob Miller, Associate Planner Chris Saunders, Community Development Manager Martin Matsen, Director of Community Development SUBJECT:Ordinance 2091 Provisional Adoption to Update to Accessory Dwelling Unit (ADU) Standards to Revise the Standards for Ground Floor ADUs in All Applicable Zoning Districts by Requiring that Ground Floor ADUs Must Either Have Alley Access or a Pedestrian Connection to a Sidewalk or the Adjacent Right-of-way; This amendment Will Also Revise the Standards for all ADUs by Removing the Requirement to Provide Minimum Parking MEETING DATE:November 16, 2021 AGENDA ITEM TYPE:Community Development - Legislative RECOMMENDATION:Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 21-100 and move to provisionally adopt Ordinance 2091, Update on Ground Floor Accessory Dwelling Units Text Amendment STRATEGIC PLAN:4.1 Informed Conversation on Growth: Continue developing an in-depth understanding of how Bozeman is growing and changing and proactively address change in a balanced and coordinated manner. BACKGROUND:The current standards for ground floor ADUs require that they have alley access. It has been asserted through a submission to the UDC Community Platform that this requirement is overly restrictive and is likely limiting the construction of ADUs. This requirement was also identified in the Bozeman Code Audit to Create and Preserve Housing as limiting construction of ADUs. The Bozeman Community Plan 2020 (BDC 2020) clearly states in Goal N-1.4 that the City should “Promote development of accessory dwelling units (ADUs)”. The second part of this amendment which will remove the minimum parking requirement of one off-street space for ADUs is also supported with Goal N-1.4 and the previously mentioned code audit. Building off-street parking can be expensive and in some cases not physically possible due to site constraints. The intent of these updates are to facilitate construction of ADUs. UNRESOLVED ISSUES:None ALTERNATIVES:Recommend alternate language 260 FISCAL EFFECTS:No specific changes to budgeted City funds has been identified. Attachments: Ordinance 2091 Update to Accessory Dwelling Unit (ADU) Standards SR.pdf Ordinance 2091 Update to ADU Standards Ordinance.pdf Report compiled on: November 3, 2021 261 Page 1 of 9 21-100 Staff Report for the Update to Accessory Dwelling Unit (ADU) Standards , Ordinance 2 091 Public Hearings : Zoning Commission meeting was held on Monday, October 25, 2021. Link : https://bozeman.granicus.com/player/clip/170?view_id=1&redirect=true City Commission meeting is on Tuesday, November 16, 2021. Project Description : This proposed text amendment will revise the standards for ground floor ADUs in all applicable zoning districts by requiring that ground floor ADUs must either have alley access or a pedestrian connection to a sidewalk or the adjacent right -of-way. This amendment will also revise the standards for all ADUs by removing the requirement to provide minimum parking. Project Location: Applicable City-wide in all areas zoned as R-S, R -1, R -2, R-3, R-4, R-5. Recommendation: Meets standards for approval. Recommended Zoning Commission Motion: Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby adopt the findings presented in the staff re port for application 21-100 and move to recommend approv al of Ordinance 2091, Update to Accessory Dwelling Unit Standards Text Amendment. Recommended City Commission Motion: Having reviewed and considered the staff report, application materials, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 21-100 and move to provisionally adopt Ordinance 2 091, Update on Ground Floor Accessory Dwelling Units Text Amendment Report : November 3 , 2021 Staff Contact: Jacob Miller, Associate Planner Chris Saunders, Community Development Manager Agenda Item Type: Action - Legislative EXECUTIVE SUMMARY This report is based on the application materials submitted and public comment received to date. Unresolved Issues None. 262 Staff Report for the Update to Accessory Dwelling Unit Standards, Ordinance 2091 Page 2 of 9 Project Summary It is the goal of the City’s to continually improve the UDC by updating standards to facilitate housing construction and recognizing the need to evolve as a City that is experiencing unprecedented growth. Chapter 38, the Unified Development Code, of the Bozeman Municipal Code provides the zoning standards for development within the City and is divided into Articles that provide regulations regarding specific aspect of development. Article 3 states zoning specific land use regulations, including standards related to ground floor ADUs. This amendment proposes to revise the standards for ground floor ADUs in all applicable zoning districts by requiring that ground floor ADUs must either have alley access or a pedestrian connection to a sidewalk or adjacent right-of-way. This amendment will also revise the standards for all ADUs by removing the requirement to provide a minimum amount of parking. The current standards for ground floor ADUs require that they have alley access. It has been asserted through a submission to the UDC Community Platform that this requirement is overly restrictive and is likely limiting the construction of ADUs. This requirement was also identified in the Bozeman Code Audit to Create and Preserve Housing as limiting construction of ADUs. The Bozeman Community Plan 2020 (BDC 2020) clearly states in Goal N-1.4 that the City should “Promote development of accessory dwelling units (ADUs)”. The second part of this amendment which will remove the minimum parking requirement of one off-street space for ADUs is also supported with Goal N-1.4 and the previously mentioned code audit. Building off-street parking can be expensive and in some cases not physically possible due to site constraints. The intent of these updates are to facilitate construction of ADUs. There has been one written public comment received as of the writing of this report. Strategic Plan 4.1 Informed Conversation on Growth Continue developing an in-depth understanding of how Bozeman is growing and changing and proactively address change in a balanced and coordinated manner. b) Develop and Align Infill Policies - Develop, adopt and align city policies for infill and redevelopment, economic development and public infrastructure. 4.4 Vibrant Downtown, Districts & Centers Promote a healthy, vibrant Downtown, Midtown, and other commercial districts and neighborhood centers – including higher densities and intensification of use in these key areas 263 Staff Report for the Update to Accessory Dwelling Unit Standards, Ordinance 2091 Page 3 of 9 Zoning Commission The Zoning Commission was held on October 25, 2021. Link: https://bozeman.granicus.com/player/clip/170?view_id=1&redirect=true Alternatives 1. Provisional adoption of the ordinance; 2. Provisional adoption of the ordinance with modifications to the recommended ordinance; 3. Denial of the ordinance based on findings of non-compliance with the applicable criteria contained within the staff report; or 4. Open and continue the public hearing on the application, with specific direction to staff to supply additional information or to address specific items. TABLE OF CONTENTS EXECUTIVE SUMMARY ...................................................................................................... 1 Unresolved Issues ............................................................................................................... 1 Project Summary ................................................................................................................. 2 Strategic Plan ...................................................................................................................... 2 Zoning Commission ............................................................................................................ 3 Alternatives ......................................................................................................................... 3 SECTION 1 - RECOMMENDATION AND FUTURE ACTIONS ........................................ 4 SECTION 2 - TEXT AMENDMENT STAFF ANALYSIS AND FINDINGS ....................... 4 PROTEST NOTICE FOR ZONING AMENDMENTS ........................................................... 7 APPENDIX A - DETAILED PROJECT DESCRIPTION AND BACKGROUND ................ 7 APPENDIX B - NOTICING AND PUBLIC COMMENT ...................................................... 8 APPENDIX C - OWNER INFORMATION AND REVIEWING STAFF .............................. 8 FISCAL EFFECTS ................................................................................................................... 8 ATTACHMENTS ..................................................................................................................... 8 264 Staff Report for the Update to Accessory Dwelling Unit Standards, Ordinance 2091 Page 4 of 9 SECTION 1 - RECOMMENDATION AND FUTURE ACTIONS Having considered the criteria established for a zone map amendment, the Staff recommends approval as submitted. The Zoning Commission held a public hearing on this amendment on October 25, 2021, at 6 p.m. and will forwarded a recommendation of approval to the City Commission on the Zone Text amendment. The City Commission will hold a public hearing on the zone map amendment on November 16, 2021, at 6 p.m. SECTION 2 - TEXT AMENDMENT STAFF ANALYSIS AND FINDINGS In considering applications for approval under this title, the advisory boards and City Commission must consider the following criteria (letters A-K). As an amendment is a legislative action, the Commission has broad latitude to determine a policy direction. The burden of proof that the application should be approved lies with the applicant. A zone text amendment must be in accordance with the growth policy (criteria A) and be designed to secure safety from fire and other dangers (criteria B), promote public health, public safety, and general welfare (criteria C), and facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements (criteria D). Therefore, to approve a zone map amendment the Commission must find Criteria A-D are met. In addition, the Commission must also consider criteria E-K, and may find the zone map amendment to be positive, neutral, or negative with regards to these criteria. To approve the zone text amendment, the Commission must find the positive outcomes of the amendment outweigh negative outcomes for criteria E-K. In determining whether the criteria are met, Staff considers the entire body of regulations for land development. Standards which prevent or mitigated negative impacts are incorporated throughout the entire municipal code but are principally in Chapter 38, Unified Development Code. Section 76-2-304, MCA (Zoning) Criteria A. Be in accordance with a growth policy. Yes. The BDC 2020 contains several goals, objectives, and actions that are directly supportive of these amendments, including promoting housing diversity, promoting development of ADUs, increasing density in developed areas, and supporting small floor plans, among others. “N-1.1 Promote housing diversity, including missing middle housing.” “N-1.4 Promote development of accessory dwelling units (ADUs).” 265 Staff Report for the Update to Accessory Dwelling Unit Standards, Ordinance 2091 Page 5 of 9 “N-1.11 Enable a gradual and predictable increase in density in developed areas over time.” “N-3.7 Support compact neighborhoods, small lot sizes, and small floor plans, especially through mechanisms such as density bonuses.” The proposed edits are intended to make building ADUs easier and less expensive to construct, and more available to property owners that previously wouldn’t have been able to build them due to site constraints. Increasing housing, especially smaller scale units, is supported throughout the BCP 2020 (growth policy). B. Secure safety from fire and other dangers. Yes. The City has adopted a variety of standards to address this criterion. These include but are not limited to the construction standards of the building code, floodplain controls, and storm water management. The proposed amendments do not modify those standards. Therefore, the code as a whole continues to satisfy this criterion. C. Promote public health, public safety, and general welfare. Yes. Removing regulatory barriers for the development of ADUs will increase the likelihood that they are constructed and will make it more accessible for homeowners that want to build them. This can provide the homeowners with additional income as a rental or provide a home for family members to age in place. Facilitating the construction of more ADUs will also increase the supply of rental housing which is considered a benefit for the community as a whole. D. Facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements. Neutral. ADUs are an accessory use and therefore any provision of transportation, water sewerage, schools, parks and other public requirements would be the result of the principle use, which generally speaking would be single-household residential developments. ADUs themselves do not require dedication or construction of any public facilities. E. Reasonable provision of adequate light and air. Neutral. The proposed changes will not affect the reasonable provision of adequate light and air. Setbacks, height limits, and other related standards are not changed with this amendment. F. The effect on motorized and non-motorized transportation systems. Yes. ADUs are a moderate form of infill development and are generally built in areas that have existing motorized and non-motorized transportation systems. They would not require additional facilities to support their construction and when applied incrementally in an infill situation are not expected to create capacity overages on existing facilities. New large scale development will need to consider the additional potential demand from newly available ADU options during utility and transportation sizing. The removal of the minimum parking 266 Staff Report for the Update to Accessory Dwelling Unit Standards, Ordinance 2091 Page 6 of 9 requirement can lead to construction of ADUs that do not have parking spaces for their unique use. This may cause increased use of on-street parking. The number of such ADUs is unknown and the impacts cannot be quantified at this time. On-street parking for meeting parking needs of residential development is explicitly allowed in 38.540.050. The City has exempted from mitigation of parks and water rights when only one additional home is added to a site. This exemption also applies to ADUs with or without this amendment. The expectation is that incremental additions of ADU will have a minimal cumulative impact. This expectation should be periodically evaluated. If the exemption is used broadly the cumulative impact may be larger than expected. G. Promotion of compatible urban growth. Yes. The proposed changes will promote compatible urban growth by enabling moderate infill development and gentle increases to density in already developed areas. ADUs are compatible with and permitted uses in all of the zoning districts identified in this report. H. Character of the district. Yes. The City has defined compatible development as: “The use of land and the construction and use of structures which is in harmony with adjoining development, existing neighborhoods, and the goals and objectives of the City's adopted growth policy. Elements of compatible development include, but are not limited to, variety of architectural design; rhythm of architectural elements; scale; intensity; materials; building siting; lot and building size; hours of operation; and integration with existing community systems including water and sewer services, natural elements in the area, motorized and non-motorized transportation, and open spaces and parks. Compatible development does not require uniformity or monotony of architectural or site design, density or use.” The affected districts that ADUs can be built on are all residentially zoned districts that generally have existing developments. ADUs are small in nature, located in the rear of a lot , and are subject to existing design and size standards which is expected to mitigate any compatibility issues that they might incur. The City expects one form of housing to be compatible in use when adjacent to another form of housing when the City’s standards are met. I. Peculiar suitability for particular uses. Neutral. No changes to allowed uses in zoning districts happen with this amendment. ADUs are already allowed in all of the affected zoning districts. J. Conserving the value of buildings. Neutral. This code update only applies to new construction. 267 Staff Report for the Update to Accessory Dwelling Unit Standards, Ordinance 2091 Page 7 of 9 K. Encourage the most appropriate use of land throughout the jurisdictional area. Yes. ADUs are only allowed in the residentially zoned districts which have been identified in this report. This amendment does not change where ADUs can be built. PROTEST NOTICE FOR ZONING AMENDMENTS IN THE CASE OF WRITTEN PROTEST AGAINST SUCH CHANGES SIGNED BY THE OWNERS OF 25% OR MORE OF THE AREA OF THE LOTS WITHIN THE AMENDMENT AREA OR THOSE LOTS OR UNITS WITHIN 150 FEET FROM A LOT INCLUDED IN A PROPOSED CHANGE, THE AMENDMENT SHALL NOT BECOME EFFECTIVE EXCEPT BY THE FAVORABLE VOTE OF TWO-THIRDS OF THE PRESENT AND VOTING MEMBERS OF THE CITY COMMISSION. The City will accept written protests from property owners against the proposal described in this report until the close of the public hearing before the City Commission. Pursuant to 76-2-305, MCA, a protest may only be submitted by the owner(s) of real property within the area affected by the proposal or by owner(s) of real property that lie within 150 feet of an area affected by the proposal. The protest must be in writing and must be signed by all owners of the real property. In addition, a sufficient protest must: (i) contain a description of the action protested sufficient to identify the action against which the protest is lodged; and (ii) contain a statement of the protestor's qualifications (including listing all owners of the property and the physical address), to protest the action against which the protest is lodged, including ownership of property affected by the action. Signers are encouraged to print their names after their signatures. A person may in writing withdraw a previously filed protest at any time prior to final action by the City Commission. Protests must be delivered to the Bozeman City Clerk, 121 North Rouse Ave., PO Box 1230, Bozeman, MT 59771-1230. APPENDIX A - DETAILED PROJECT DESCRIPTION AND BACKGROUND The City has created the UDC Community Platform in which members of the community can submit ideas for code changes. These submission are evaluated against criteria which are listed on the webpage and against currently adopted plans and recommendations. The City received a submission requesting to remove the requirement that ground floor ADUs must have alley access which would allow for more properties the ability to construct ADUs. Promoting the development of ADUs is specifically identified as a goal in the BCP 2020 and therefore City staff found it prudent to include this amendment in the Fall 2021 code updates. 268 Staff Report for the Update to Accessory Dwelling Unit Standards, Ordinance 2091 Page 8 of 9 The City recently underwent a code audit called, “Bozeman Code Audit to Create and Preserve Housing,” which identified the ADU standards as being overly restrictive and decreased the chances that they would be constructed. The audit recommended removing the requirement that ADUs must have alley access and the requirement that ADUs must provide one off-street parking space. Removing the off-street parking space requirement will decrease the costs of building ADUs and will make it easier for property owners to build them. APPENDIX B - NOTICING AND PUBLIC COMMENT Notice for text amendments must meet the standards of 38.220.410 & 420. Notice was published in the Bozeman Daily Chronicle as required and contained all required elements. Notice was provided at least 15 days before the Zoning Commission public hearing, and not more than 45 days prior to the City Commission public hearing. Hearing dates are on the first page of this report. One public comment has been received at the writing of this report. The comment applauded the City’s efforts to increasing housing supply, specifically smaller, more affordable units which ADUs represent. APPENDIX C - OWNER INFORMATION AND REVIEWING STAFF Applicant: City of Bozeman, PO Box 1230, Bozeman MT 59771 Representative: Department of Community Development, City of Bozeman, PO Box 1230, Bozeman MT 59771 Report By: Jacob Miller, Associate Planner FISCAL EFFECTS No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this Amendment. ATTACHMENTS The full application and file of record can be viewed at the Community Development Department at 20 E. Olive Street, Bozeman, MT 59715. Ordinance 2091 – Accessory Dwelling Unit Standards Update 269 Staff Report for the Update to Accessory Dwelling Unit Standards, Ordinance 2091 Page 9 of 9 270 Page 1 of 5 ORDINANCE NO. 2091 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA REVISING THE BOZEMAN MUNICIPAL CODE TO TO AMEND THE REQUIREMENT THAT GROUND FLOOR ACCESSORY DWELLING UNITS MUST HAVE ALLEY ACCESS BY REQUIRING THAT GROUND FLOOR ACCESSORY DWELLING UNITS (ADUs) MUST EITHER HAVE ALLEY ACCESS OR A PEDESTRIAN CONNECTION TO A SIDEWALK OR ADJACENT RIGHT OF WAY AND REMOVE THE REQUIREMENT TO PROVIDE MINIMUM PARKING FOR ADUs BY AMENDING 38.360.040 (ADU USE TABLE IN RESIDENTIAL ZONING DISTRICTS) AND TABLE 38.540.050-1. WHEREAS, the City of Bozeman (the “City”) has adopted land development and use standards to protect public health, safety and welfare and otherwise execute the purposes of Section 76-2-304, MCA; and WHEREAS, City is committed to reviewing and improving the Unified Development Code; and WHEREAS, the City has developed a platform to submit revisions to the Unified Development Code to improve overall functionality and ease of use; and WHEREAS, the City is committed to facilitating the construction of new housing by reviewing and revising zoning requirements; and WHEREAS, the City received a submission on the UDC Community Platform that suggested that the alley-access requirement for ADUs is too restrictive; and 271 Ordinance 2091, Ground Floor ADUs Update Page 2 of 5 WHEREAS, a recent code audit has identified that removing the parking requirement may increase the chances of new construction of accessory dwelling units; and WHEREAS, the Bozeman Community Plan 2020 encourages the construction of accessory dwelling units and diverse housing types. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 That 38.360.040 (ADU Use Table In Residential Zoning Districts), of the Bozeman Municipal Code be amended as follows with all other portions remaining unchanged: Occupancy limit 2 persons Deviations No # of ADU per lot One Location ADU's are permitted above accessory buildings and on the ground floor. Ground floor ADUs require alley access or pedestrian connection to a sidewalk or the adjacent right-of-way. Parking requirement In addition to the parking required for the principal residence, one paved off-street parking space is required for the exclusive use of the ADU. The parking provided must be located on the lot and may not utilize the on - street parking provisions of division 38.540 of this chapter. ADUs are not subject to minimum parking requirements. If parking is provided it must conform to all applicable standards. Unit size In no case may an ADU be larger than 600 square feet or have more than a single bedroom. The method of calculating the maximum ADU square footage will be "living area" defined as "all floor area exclusive of areas with a sloped ceiling less than three feet in height, stairwells, and exterior decks." Bedrooms, living rooms, kitchens, casework, interior walls, hallways, closets, bathrooms, and any other living space must be included in the maximum square footage calculation. Design requirements Detached ADUs, including second story additions on detached garages may be approved only if found compatible and consistent with the existing character and fabric of the neighborhood. The review authority must consider placement and size of windows, decks, balconies, fencing, landscape screening, and height and massing of the structure to minimize impacts to adjacent properties. Height limit Notwithstanding the limitations in section 38.360.030.G, a detached ADU may exceed the height of the principal building but may not exceed 22 feet in height. 272 Ordinance 2091, Ground Floor ADUs Update Page 3 of 5 Garage conversions Garages may not be converted for use as ADUs unless all required parking for all uses on the lot is otherwise provided prior to conversion. However, ADUs may be placed above garages except where otherwise noted. Minimum standards or "no guarantee" A permit for an ADU will not be granted unless the lot has been configured to accept an ADU with adequate lot area, utility services, and compliance with setbacks and height standards. Section 2 That Table 38.540.050-1 of the Bozeman Municipal Code be amended as follows with all other portions remaining unchanged: Table 38.540.050-1 Dwelling Types Parking Spaces Required per Dwelling Accessory dwelling unit 1 Lodginghouse 0.75 spaces per person of approved capacity Efficiency unit 1.25 (1.0 in R-5) One-bedroom 1.5 (1.25 in R-5) Two-bedroom 2 (1.75 in R-5) Three-bedroom 3 (2.5 in R-5) Dwellings with more than three bedrooms 4 (3 in R-5) Group homes and community residential facilities 0.75 spaces per person of approved capacity1 Bed and breakfast 1 space/rental unit Manufactured home 2 All types of dwellings within the B-3 district 1 Group living /cooperative household/fraternity/sorority 1 space per resident1 Transitional and emergency housing 0.25 spaces per person of approved capacity1, 2 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. 273 Ordinance 2091, Ground Floor ADUs Update Page 4 of 5 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 be codified as indicated in Sections 1-2. Section 7 Effective Date. This ordinance shall be in full force and effect thirty (30) days after final adoption. 274 Ordinance 2091, Ground Floor ADUs Update 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 275 Memorandum REPORT TO:City Commission FROM:Chris Saunders, Community Development Manager Martin Matsen, Community Development Director SUBJECT:Ordinance 2089 Provisional Adoption Amending Chapter 38 Unified Development Code to for Subdivision Review Procedures And Associated Development Standards Update Text Amendment to Conform to Amended State Law and Improve Processes, Application 21338 MEETING DATE:November 16, 2021 AGENDA ITEM TYPE:Ordinance RECOMMENDATION:Having reviewed and considered the staff report, draft ordinance, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 21338, and move to provisionally adopt Ordinance 2089. STRATEGIC PLAN:4.1 Informed Conversation on Growth: Continue developing an in-depth understanding of how Bozeman is growing and changing and proactively address change in a balanced and coordinated manner. BACKGROUND:The State Legislature passed six amendments to the Subdivision and Platting Act in the 2021 legislative session. The City is required to have regulations to review subdivisions. Those regulations must conform to state law. The City must update its regulations accordingly. These amendments change the way the City reviews subdivisions. The amendments are written to balance of interests between right to know and participate, property rights and responsibilities, and the other directives of the state laws. In support of additional efforts to support housing creation, the amendments have been drafted to remove information deemed unnecessary as data availability has increased through online tools, clarify the subdivision review process, and take advantage of state authorized reductions in review criteria and processes. Because the City has adopted unified standards that apply to both subdivision and zoning based development review the Zoning Commission also participated in review. Two versions of the proposed ordinance are included. The first in order is the official draft upon which the City Commission will vote. The 2nd is the exact same text but includes colored text editing marks and commentary to help the reader understand what has been added and subtracted and for what reasons. 276 UNRESOLVED ISSUES:None. ALTERNATIVES:See attached staff report. FISCAL EFFECTS:None. Attachments: 21338 CC Staff Report.pdf Revised Text for Subdivision Process - Provisional Adoption draft 11-1-2021.pdf Revised Text for Subdivision Process - Color Markup Provisional Adoption draft 11-1-2021.pdf Report compiled on: November 4, 2021 277 Page 1 of 17 21338 Staff Report for the Subdivision Review Procedures Update Text Amendment, Ordinance 2089 Public Hearings: Planning Board – October 18, 2021. Zoning Commission – October 25, 2021. City Commission – November 16, 2021. Project Description: Update the City of Bozeman (City) regulations for review of subdivisions to conform to the Montana Subdivision and Platting Act, recently updated by the State Legislature. See Appendix A for the detailed description. Project Location: Revision to the text is applicable City-wide. Recommendation: Meets standards for approval. Planning Board Motion: Having reviewed and considered the staff report, draft ordinance, public comment, and all information presented, I hereby adopt except as provided below the findings presented in the staff report for application 21338. I dissent from the finding that the proposed amendments are wholly in accordance with the growth policy in as much as they terminate the City's inclusionary housing ordinance. I find that this termination is inconsistent with the City's adopted growth policy in particular goal N-1.1 which states an objective of the policy is to "promote housing diversity" I nonetheless move to recommend approval of Ordinance 2089.. Zoning Commission Motion: Having reviewed and considered the staff report, draft ordinance, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 21338 and move to recommend approval of Ordinance 2089. Recommended City Commission Recommended Motion: Having reviewed and considered the staff report, draft ordinance, public comment, and all information presented, I hereby adopt the findings presented in the staff report for application 21338, and move to provisionally adopt Ordinance 2089. Report: November 4, 2021 Staff Contact: Chris Saunders, Community Development Manager Agenda Item Type: Action - Legislative 278 Staff Report for the Subdivision Review Procedures Update 21338 Page 2 of 17 EXECUTIVE SUMMARY This report is based on the analysis of required elements of state law regarding subdivision review and public comment received to date. Unresolved Issues None. Project Summary These amendments change the way the City reviews subdivisions. The City is required to have regulations to review subdivisions. Those regulations must conform to state law. The State Legislature made multiple amendments to the Subdivision and Platting Act in 2021. Therefore, the City must update its regulations accordingly. The amendments have been drafted to strike a balance of interests between right to know and participate, property rights and responsibilities, and the directives of the revised state laws. In support of additional efforts to support housing creation, the amendments have been drafted to remove information deemed unnecessary as data availability has increased through online tools, clarify the subdivision review process, and take advantage of state authorized reductions in review criteria and processes. Some elements of the amendments also affect projects reviewed through zoning processes. See Appendix A for a summary of the amendments and the attached draft Ordinance 2089 for the exact proposed text. These amendments are applicable across the entire city. The text of the ordinance was updated after the Planning Board and Zoning Commission public hearings to address continued review of the statutes and draft ordinance language. Two versions of the draft ordinance are attached. The formal draft all in black text and a color markup draft including comment bubbles to help the reader identify location and nature of changes. Strategic Plan 4.1 Informed Conversation on Growth Continue developing an in-depth understanding of how Bozeman is growing and changing and proactively address change in a balanced and coordinated manner. 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. 4.3 Strategic Infrastructure Choices 279 Staff Report for the Subdivision Review Procedures Update 21338 Page 3 of 17 Prioritize long-term investment and maintenance for existing and new infrastructure. Planning Board The Bozeman Planning Board held a public hearing on October 18, 2021 at 6:00 p.m. using WebEx. The Planning Board has a specific statutory responsibility to consider subdivisions and subdivision regulations and will be considering all the components of draft ordinance 2089. The video recording and draft minutes of the meeting are available online at https://bozeman.granicus.com/player/clip/167?view_id=1&redirect=true. No public comments were submitted regarding the proposed ordinance 2089. The Planning Board discussion focused on changes to notice and impact on participation, differences between the various subdivision processes, the complexity of the overall issues, and need to conform to state law. The Planning Board voted 6-0 to recommend approval with an amended motion noting that the proposed ordinance did not comply with Objective N-1.1 of the Bozeman Community Plan 2020 regarding diversity of housing due to the state prohibiting application of 38.380 regarding affordable housing. Zoning Commission The Bozeman Zoning Commission held a public hearing on October 25, 2021 at 6:00 p.m. using WebEx. The scope of the Zoning Commission review is more limited for this amendment and specifically focuses on Sections 3-5, 10, 11, and 22-24 of Ordinance 2089. The video recording and draft minutes of the meeting are available online at https://bozeman.granicus.com/player/clip/170?view_id=1&redirect=true. No public comment was received at the Zoning Commission public hearing. The Zoning Commission voted 5-0 in favor of recommendation of approval. Alternatives 1. Deny the ordinance based on findings of non-compliance with the applicable criteria contained within the staff report; 2. Adopt the ordinance with directed amendments; or 3. Open and continue the public hearing on the application, with specific direction to staff to supply additional information or to address specific items. 280 Staff Report for the Subdivision Review Procedures Update 21338 Page 4 of 17 TABLE OF CONTENTS EXECUTIVE SUMMARY ...................................................................................................... 2 Unresolved Issues ............................................................................................................... 2 Project Summary ................................................................................................................. 2 Strategic Plan ...................................................................................................................... 2 Planning Board.................................................................................................................... 3 Zoning Commission ............................................................................................................ 3 Alternatives ......................................................................................................................... 3 SECTION 1 - RECOMMENDATION AND FUTURE ACTIONS ........................................ 4 SECTION 2 - TEXT AMENDMENT STAFF ANALYSIS AND FINDINGS ....................... 5 Section 76-1-606, MCA (Effect of Growth Policy on Subdivision Regulations) .............. 5 Section 76-3-102, MCA (Subdivision Purposes)................................................................ 7 Section 76-3-501, MCA (Subdivision Purposes)................................................................ 9 SECTION 6 - ZONE AMENDMENT STAFF ANALYSIS AND FINDINGS..................... 11 Spot Zoning Criteria ......................................................................................................... 14 PROTEST NOTICE FOR ZONING AMENDMENTS ......................................................... 14 APPENDIX A - DETAILED PROJECT DESCRIPTION AND BACKGROUND .............. 15 APPENDIX B - NOTICING AND PUBLIC COMMENT .................................................... 17 APPENDIX C - APPLICANT INFORMATION AND REVIEWING STAFF .................... 17 FISCAL EFFECTS ................................................................................................................. 17 ATTACHMENTS ................................................................................................................... 17 SECTION 1 - RECOMMENDATION AND FUTURE ACTIONS Having considered the criteria established for a text amendment, the Staff recommends approval as proposed. The Planning Board held a public hearing on these amendments on October 18, 2021. The Zoning Commission held a public hearing on these amendments on October 25, 2021. 281 Staff Report for the Subdivision Review Procedures Update 21338 Page 5 of 17 The City Commission will hold a public hearing on the text amendment on November 16, 2021 at 6:00 p.m. SECTION 2 - TEXT AMENDMENT STAFF ANALYSIS AND FINDINGS In considering applications for approval under this title, the advisory boards and City Commission must consider the following criteria. As an amendment is a legislative action, the Commission has broad latitude to determine a policy direction but must be consistent with the criteria. The existing development review processes and standards were previously found to satisfy all of the following criteria during earlier reviews. The focus of this report is only on the amendments proposed. Where a finding of Neutral is presented it represents that the criteria is either not applicable to the proposed amendments or that the change does not materially advance or detract from compliance. Therefore, a finding of Neutral is not an indication of a deficiency in the proposed amendments or the existing standards. Section 76-1-606, MCA (Effect of Growth Policy on Subdivision Regulations) 1. Subdivision regulations adopted after a growth policy has been adopted must be made in accordance with the growth policy. Criterion met. The proposed amendments are made in accordance with the adopted growth policy - the Bozeman Community Plan 2020 (BCP 2020). No conflicts with the goals and objectives of the Bozeman Community Plan have been identified. State law requires a growth policy to describe how the community will consider the primary review criteria of 76-3-608(3) for subdivision review. This is on pages 68-70 of the BCP 2020. Agricultural uses are generally expected to transition out with conversion to urban uses. This makes some water user facilities unnecessary with development and those can be removed using the proper procedures. However, some agricultural water user facilities will continue to operate in the short and long term and must be protected and maintained. Water may be carried many miles from the diversion point to its place of use. Therefore, the impacts of development on agricultural water user facilities and water rights may be far away from where the water is put to use. Ditch and water right owners have property rights in agricultural water user facilities and statutory rights to protect those property rights. The BCP 2020 recognizes this and calls for protection of such rights. Theme 7 of Chapter 2 addresses cooperation and coordination with other agencies. It calls for several actions including RC-1.5 Implement the Triangle Community Plan in coordination between Bozeman, Belgrade, and Gallatin County. Several policies of the Triangle Community Plan address ditches including but not limited to: 282 Staff Report for the Subdivision Review Procedures Update 21338 Page 6 of 17 POLICY 4.9.2 Rights of way and easements associated with the ditches and canals must be recognized and protected. POLICY 4.9.7 Encourage coordination between developers and ditch owners to minimize or eliminate the number of times irrigation infrastructure must be crossed. POLICY 4.9.8 Refine development review processes to provide for oversight after approval and throughout construction in coordination with adjacent ditch or canal company to ensure the standards are met. Section 4.9 – Ditches and Canals, of the Triangle Community Plan presents a shared priority to protect ditches and canals when appropriate to support the continued functionality of the facilities. These facilities are an essential element of the agricultural heritage of the community which is an important part of community identity and character. POLICY 4.9.13 Use subdivision review regulations to recognize and protect rights of way and maintenance easement rights for irrigation ditches and canals. BCP 2020 - RC-3.6 Develop shared information on development processes. The revisions to the code in Section 22 and 24 of the ordinance addressing ditches is coordinated with the requirements of Gallatin County to provide consistency across jurisdictional boundaries, ensure that those holding water rights or ownership of agricultural water user facilities are included in the subdivision review process, and supports compliance with state law regarding ditches and other agricultural water user facilities. The Association of Gallatin Agricultural Irrigators was notified of this amendment process and invited to comment and participate in the process. R-1.1 Be reflective: use past experience to inform future decisions. The City processes many subdivision applications each year. The experience with those applications has guided clarifications and other improvements included in these amendments. R-1.7 Be flexible: willingness and ability to adopt alternative strategies in response to changing circumstances. The City is responsive in these amendments to changing state laws, evolution in land use and how it affects and is affected by agricultural water user facilities, and changing methods to receive and distribute information. At the Planning Board public hearing, the Board found that Objective N-1.1 was not met with the ordinance. N-1.1 Promote housing diversity, including missing middle housing. They found that the state prohibition enacted by House Bill 259 which blocks use of Section 38.380 of the municipal code for affordable housing by the 2021 Montana Legislature caused 283 Staff Report for the Subdivision Review Procedures Update 21338 Page 7 of 17 the ordinance’s provisions removing requirements for affordable housing to be contrary to the stated Objective from the growth policy. Section 76-3-102, MCA (Subdivision Purposes) 2. Promote the public health, safety, and general welfare by regulating the subdivision of land. Criterion is met. The proposed regulations promote the public health, safety, and general welfare by requiring compliance with the Montana Subdivision and Platting Act. The City’s adopted standards for land development which apply to the subdivision process ensure adequate emergency services, access to utilities, and other features which support this criterion. Further, the proposed edits continue to provide for installation of infrastructure necessary for public health and safety, such as sanitary sewer, water, stormwater, streets and sidewalks in conjunction with development of commercial and residential projects. The regulations require identification and avoidance of development of land where it is not suitable. Section 76-3-501 MCA requires the City to create and adopt subdivision regulations. Section 76-3-504 identifies what must be included in those regulations. Numerous sections of state law relating to subdivisions were amended by the Legislature in the 2021 session. The City is updating its regulations in response to those changes. All the proposed edits in draft Ordinance 2089 are implementing improvements to the subdivision related processes and standards. Some standards apply to both subdivision and zoning authority based land development. The City has received applications for 47 preliminary plats and 53 final plats in the past five years. The City is using its extensive experience in subdivision review to make improvements to the subdivision process locally in addition to the state required changes through these amendments. See also Zoning Criteria B and C. The criterion is met. 3. Prevent the overcrowding of land. Neutral. Overcrowding is the condition arising from more intensity of use than the property and infrastructure is capable of supporting. T\he proposed regulations do not address the underlying analysis of whether a proposed land use is the appropriate intensity of use. The City’s standards regarding appropriate intensity of use are established through the City’s zoning districts which are not changed with these amendments. The necessary infrastructure to support development must still be provided in a timely manner and in sufficient quantity to address needs of the development. Section 8 of the ordinance requires demonstration of compliance with standards including the infrastructure needed to prevent overcrowding. 284 Staff Report for the Subdivision Review Procedures Update 21338 Page 8 of 17 4. Lessen congestion in the streets and highways. Neutral. The proposed amendments do not change the existing standards which address this criterion. Adequate information to demonstrate compliance with adopted standards must still be presented as part of application submittals. The City’s transportation master plan and implementing capital improvements program address needed expansions and improvements. Local improvements will continue to be required for individual subdivisions as currently is required. 5. Provide adequate light, air, water supply, sewage disposal, parks and recreation areas, ingress and egress, and other public improvements. Yes. The existing regulations set forth process and standards by which a development ensures required water supply, sanitary sewer, streets, stormwater, parks, etc. are provided. Compliance with those requirements is required as part of the submittal requirements for subdivision application. Construction follows approval of a preliminary plat and generally is completed before the final plat is approved. The standards for agricultural water user facilities (e.g. ditches) are being updated. Agricultural water user facilities are often located adjacent to streets or cross parks. Contact, consultation, and coordination with the water right and agricultural water user facility owners avoids conflicts and ensures minimal impact to both agricultural water user facilities and other infrastructure. The regulations have no impact on providing adequate light and air. See also Zoning Criteria D and E. The criterion is met. 6. Require development in harmony with the natural environment. Neutral. The proposed amendments do not specifically address this issue. The existing standards for protection of water courses, wetlands, etc. are not modified. Revisions are made to data submittal requirements. As more information becomes readily available online on demand the specific information for an individual application can become more focused on essential material unique to that site. The proposed amendments do reduce required information to be submitted with individual subdivision applications. Due to the increased general availability of information, the reduction in application specific submittal material will not negatively affect this criterion. 7. Protect the rights of property owners. Criterion is met. Article 2, Section 3 of the Montana Constitution recognizes that land owners have both property rights and associated responsibilities. The proposed amendments protect the rights of property owners by providing a uniform process and standards for subdivisions which is consistent with state law. The owners of water rights and agricultural water user facilities have property rights in those items. The revised provisions for water rights and agricultural water user facilities in the 285 Staff Report for the Subdivision Review Procedures Update 21338 Page 9 of 17 newly proposed Section 38.360.280 and revised 38.410.060 ensures that affected persons are contacted and have an opportunity to participate in the review process to protect their property interests. This section completes the necessary regulatory elements in generally applicable standards to address the primary review criteria for subdivisions. 8. Require uniform monumentation of land subdivisions and transferring interests in real property by reference to a plat or certificate of survey. Neutral. The proposed amendments do not alter the standards previously found adequate to address this requirement. Section 76-3-501, MCA (Subdivision Purposes) This section requires local governments to adopt regulations that reasonably provide for: 9. Orderly development within the jurisdictional area. Criterion is met. Section 76-3-616 and Section 1 of Senate Bill 161 (soon to be published as 76-3-623) both share the premise that if generally applicable regulations are in effect, often established through zoning, then review of a subdivision should primarily focus on compliance with the established regulations. The City has over time established standards addressing most of the subdivision primary review criteria created in 76-3-608 MCA. The proposed amendments do not modify the standards for layout of parks, streets, or other elements of order. The amendments are primarily focused on review processes. Additional standards are being created for water rights and agricultural water user facilities and coordination with owners, see ordinance section 22 and 24. These additional standards will further support orderly development through early contact with affected parties and providing opportunities to avoid or address conflicts earlier in the review process. 10. Coordination of roads within subdivided land with other roads, both existing and planned. Neutral. The proposed amendments do not alter the existing standards or planned locations for road placement or expansion. New subdivisions will continue to be required to coordinate the development of roads servicing the development with the overall street grid of the City, both existing and planned. See also Zoning Criterion F. 11. Dedication of land for roadways and for public utility easements. Neutral. The proposed amendments do not alter the existing standards for the width or planned locations for road placement or expansion. New subdivisions will continue to be required to coordinate the development of roads servicing the development with the overall street grid of the City, both existing and planned. Configuration of easements for public utilities such as water or sewer are not changing. Sections 16 and 17 among other sections amends the certificates which are included on final plats. These certificates are an important 286 Staff Report for the Subdivision Review Procedures Update 21338 Page 10 of 17 part of documenting and completion of dedications of land and easements for roads and public utilities. See also Zoning Criterion F 12. Improvement of roads. Neutral. The proposed amendments do not alter the existing standards for road improvements New subdivisions will continue to be required to coordinate the development of roads servicing the development with the overall street grid of the City, both existing and planned. Most detailed construction standards are now and will continue to be included in the Design and Specifications created by the Engineering Division. See also Zoning Criterion F 13. Provision of adequate open spaces for travel, light, air and recreation. Criteria is met. The regulations simplify the review process for public parks. Additional responsibilities are being delegated from City Commission to the Director of Parks. This is expected to shorten review and approval times for the delegated duties, such as approval of final park plans. The amendments also move certain review responsibilities from the Recreation and Parks Advisory Board to the Parks Department staff. This is consistent with the recent restructuring of advisory boards and an increased focus on policy development rather than operational activities. Sections 25-27 of the proposed ordinance enact these transfers of responsibility. See Ordinance 2089 for revisions. Standards for lights and air are generally established by the Building Code and Zoning regulations for individual lots. No changes are proposed affecting the amount of land to be set aside for public parks. 14. Adequate transportation, water and drainage. Neutral. City standards for the referenced infrastructure is unchanged by the proposed amendments. See comments in Subdivision Criteria 10-13. See also Zoning Criteria D and F. 15. Regulation of sanitary facilities, subject to section 76-3-511, MCA. Neutral. The proposed amendments do not modify the regulations in place to ensure adequate sanitary facilities to serve the development are installed in accordance with City standards. The City has not established standards greater than state regulations or guidelines that would be affected by 76-3-511. See also Zoning Criterion D. 16. Avoidance or minimization of congestion. Neutral. See responses to Criterion 3 and 4, and 10-14 above. As noted above, the proposed amendments are primarily focused on the process to review subdivision applications. These processes do not in themselves address this criterion. 17. Avoidance of subdivision which would involve unnecessary environmental degradation and the avoidance of danger or injury to health, safety, or welfare by reason of natural hazard or the lack of water, drainage, access, transportation, or other 287 Staff Report for the Subdivision Review Procedures Update 21338 Page 11 of 17 public services or would necessitate an excessive expenditure of public funds for the supply of such services. Criterion is met. The proposed regulation ensures that adequate water, drainage, street system, sidewalks, and other necessary infrastructure will be installed to City standards. The expanded requirements relating to water rights and agricultural water user facilities helps avoid unintentional flooding caused by removal or damage to the ditch system. Such flooding can be widespread. Some ditches also serve as stormwater channels and if damaged can interfere with proper drainage of developed and undeveloped areas. See also Zoning Criteria A, D, and F. The criterion is met. SECTION 6 - ZONE AMENDMENT STAFF ANALYSIS AND FINDINGS In considering applications for plan approval under this title, the advisory boards and City Commission must consider the following criteria (letters A-K). As an amendment is a legislative action, the Commission has broad latitude to determine a policy direction. The burden of proof that the application should be approved lies with the applicant. A zone map amendment must be in accordance with the growth policy (criteria A) and be designed to secure safety from fire and other dangers (criteria B), promote public health, public safety, and general welfare (criteria C), and facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements (criteria D). Therefore, to approve a zone map amendment the Commission must find Criteria A-D are met. In addition, the Commission must also consider criteria E-K, and may find the zone map amendment to be positive, neutral, or negative with regards to these criteria. To approve the zone map amendment, the Commission must find the positive outcomes of the amendment outweigh negative outcomes for criteria E-K. In determining whether the criteria are met, Staff considers the entire body of plans and regulations for land development. Standards which prevent or mitigated negative impacts are incorporated throughout the entire municipal code but are principally in Chapter 38, Unified Development Code. The existing development review processes and standards were previously found to satisfy all of the following criteria during earlier reviews. The focus of this report is only on the amendments proposed. Where a finding of Neutral is presented it represents that the criteria is either not applicable to the proposed amendments or that the change does not materially advance or detract from compliance. Therefore, a finding of Neutral is not an indication of a deficiency in the proposed amendments or the existing standards. 288 Staff Report for the Subdivision Review Procedures Update 21338 Page 12 of 17 Section 76-2-304, MCA (Zoning) Criteria A. Be in accordance with a growth policy. Criterion is met. State law requires a growth policy to describe how the community will consider the primary review criteria of 76-3-608(3) for subdivision review. This is on pages 68-70 of the BCP 2020. Agricultural uses are generally expected to transition out with conversion to urban uses. This makes some agricultural water user facilities unnecessary. However, some will continue to operate and need to be protected and maintained. Agricultural water user facilities and water owners have property rights in agricultural water user facilities and statutory rights to protect those property rights. The BCP 2020 recognizes this and calls for protection of such rights. The proposed amendments in Sections 22 and 24 of the ordinance propose specific language to address the protection and coordination with the owners and beneficiaries of ditches and water rights. The proposed standards are applicable to both subdivision and zoning based review processes. See also the discussion in Subdivision Criterion 1 above. B. Secure safety from fire and other dangers. Criterion is met. As noted in Criteria A and 17 above, the City expects the improved coordination with water right holders and agricultural water user facilities owners to improve safety. The other standards already in place for fire and other protection remain in place and will continue to protect the public. C. Promote public health, public safety, and general welfare. Criterion is met. The existing standards addressing this criterion remain in place. See also responses to Criteria A, B, 2, 5, 14, and 17 above. D. Facilitate the provision of transportation, water, sewerage, schools, parks and other public requirements. Criterion is met. The City conducts extensive planning for municipal transportation, water, sewer, parks, and other facilities and services provided by the City. The adopted plans allow the City to consider existing conditions and identify enhancements needed to provide additional service needed by new development. The City implements these plans through its capital improvements program that identifies individual projects, project construction scheduling, and financing of construction. As stated in the subdivision review criteria above, the existing standards regarding provision of infrastructure for these services will not change. The focus of the amendments is primarily on subdivision review processes. These include improvements on the process for submitting park related information and approval of park plans. Mitigation of impacts of new development on parks and recreation is required in MCA 76-3-621. 289 Staff Report for the Subdivision Review Procedures Update 21338 Page 13 of 17 E. Reasonable provision of adequate light and air. Neutral. The proposed amendments do not alter existing standards for setbacks, open space, park dedication, or other related issues. The standards previously adopted to address this criterion remain in place. F. The effect on motorized and non-motorized transportation systems. Neutral. The City conducts extensive planning for municipal transportation, trails, and parks related to this criterion and services provided by the City. The adopted plans allow the City to consider existing conditions and identify enhancements needed to provide additional service needed by new development. The proposed amendments do not alter these plans or associated standards. The subdivision process does require applicants to demonstrate compliance with the adopted standards. Therefore, the impacts on transportation should be minimal from these amendments. G. Promotion of compatible urban growth. Criterion is met. As the City expands it interacts with adjacent agricultural uses. Agricultural operations are often dependent on irrigation and most irrigation in the area is provided by ditches. The proposed amendments in Sections 22 and 24, as discussed above, protect the interests of irrigators and water right holders. There are also adopted provisions to support the removal of ditches when they no longer are required thereby avoiding conflicts with new construction. The City has defined compatible development as: “The use of land and the construction and use of structures which is in harmony with adjoining development, existing neighborhoods, and the goals and objectives of the city's adopted growth policy. Elements of compatible development include, but are not limited to, variety of architectural design; rhythm of architectural elements; scale; intensity; materials; building siting; lot and building size; hours of operation; and integration with existing community systems including water and sewer services, natural elements in the area, motorized and non-motorized transportation, and open spaces and parks. Compatible development does not require uniformity or monotony of architectural or site design, density or use.” The City has adopted many standards to identify and avoid or mitigate demonstrable negative impacts of development. Other standards addressing compatibility are not being modified through these amendments. Compliance with City standards is generally considered adequate to avoid negative impacts of development. H. Character of the district. Neutral. Section 76-2-302, MCA says “…legislative body may divide the municipality into districts of the number, shape, and area as are considered best suited to carry out the 290 Staff Report for the Subdivision Review Procedures Update 21338 Page 14 of 17 purposes [promoting health, safety, morals, or the general welfare of the community] of this part.” Emphasis added. This proposal amends the text and not the zoning map. The amended text is affecting review procedures for subdivision. Therefore, no element of this amendment modifies the standards of any zoning district. The character of the districts as created by those standards remains intact. The zoning related elements in Sections 3-5, 10, 11, and 22-24 of Ordinance 2089 address review processes or standards for agricultural water user facilities that will not modify the character of districts. I. Peculiar suitability for particular uses. Neutral. The proposed amendments are not changing the zoning map or the uses allowed within zoning districts. Therefore, no detailed analysis regarding this criterion can be performed. The analysis as required in Subdivision Criterion 17 remains in place and will be performed with each subdivision. This existing process will address this criterion. J. Conserving the value of buildings. Neutral. The proposed amendments are not changing the zoning map or the uses allowed within zoning districts. No standard is being created which will reduce allowed building areas or otherwise restrict the development capacity of a specific property. K. Encourage the most appropriate use of land throughout the jurisdictional area. Neutral. The zoning map and future land use map of the growth policy identify areas where specific uses are generally appropriate. However, both occur at a coarse level of detail and do not authorize construction. The subdivision review process provides more detailed analysis and documentation that the uses authorized by the zoning can actually be supported with existing or expanded infrastructure. The amendments do not change this outcome. Spot Zoning Criteria Rezoning may, in certain factual circumstances, constitute impermissible “spot zoning.” The proposed amendments do not alter the zoning map in any way. Therefore, no analysis of spot zoning criteria is provided. PROTEST NOTICE FOR ZONING AMENDMENTS IN THE CASE OF WRITTEN PROTEST AGAINST SUCH CHANGES SIGNED BY THE OWNERS OF 25% OR MORE OF THE AREA OF THE LOTS WITHIN THE AMENDMENT AREA OR THOSE LOTS OR UNITS WITHIN 150 FEET FROM A LOT INCLUDED IN A PROPOSED CHANGE, THE AMENDMENT SHALL NOT BECOME EFFECTIVE EXCEPT BY THE FAVORABLE VOTE OF TWO-THIRDS OF THE PRESENT AND VOTING MEMBERS OF THE CITY COMMISSION. 291 Staff Report for the Subdivision Review Procedures Update 21338 Page 15 of 17 The City will accept written protests from property owners against the proposal described in this report until the close of the public hearing before the City Commission. Pursuant to 76-2-305, MCA, a protest may only be submitted by the owner(s) of real property within the area affected by the proposal or by owner(s) of real property that lie within 150 feet of an area affected by the proposal. The protest must be in writing and must be signed by all owners of the real property. In addition, a sufficient protest must: (i) contain a description of the action protested sufficient to identify the action against which the protest is lodged; and (ii) contain a statement of the protestor's qualifications (including listing all owners of the property and the physical address), to protest the action against which the protest is lodged, including ownership of property affected by the action. Signers are encouraged to print their names after their signatures. A person may in writing withdraw a previously filed protest at any time prior to final action by the City Commission. Protests must be delivered to the Bozeman City Clerk, 121 North Rouse Ave., PO Box 1230, Bozeman, MT 59771-1230. APPENDIX A - DETAILED PROJECT DESCRIPTION AND BACKGROUND The City is required to adopt regulations to review the subdivision of land. The subdivision process sets the essential framework of a community with streets, parks, and lots being laid out. These decisions have impacts measured in centuries as well as affecting the community in the near term. The laws of the State of Montana place many requirements on what must be included in subdivision regulations. Restricted time frames for review, noticing to the public, protection of property rights, public safety, and many other subjects are addressed. The 2021 Legislature passed six bills modifying the subdivision review process. The City must update its regulations accordingly. A broad theme in recent legislative actions is that if an issue can be addressed through a generally applicable rule, such as zoning, that is preferred over many site specific analyses unique to an individual subdivision regulation. The City adopted a Unified Development Code in 2003 to accomplish coordination and lessen the complexity inherent in the very complex issues and requirements of land development. Many standards apply to both subdivision and zoning based review processes. The proposed amendments continue this process. Some elements of this amendment package apply to both zoning and subdivision project reviews. Specific edits with these amendments are: 292 Staff Report for the Subdivision Review Procedures Update 21338 Page 16 of 17 1. The City is removing language which simply repeats state law in local ordinance. Instead, a reference to the applicable state law is provided instead. This shortens text length, and ensures that review of requirements is always directly linked to the most current state requirements. 2. The City is updating references to state law and local ordinances which have changed since the prior code amendments. 3. The City is clarifying who bears the responsibility to demonstrate compliance with adopted standards, when that compliance must be shown, and by whom. 4. The delegation of some current City Commission steps in review processes to specified staff positions. This is expected to reduce review time, ensure the agencies most affected by decisions are participating in the decisions, and strengthen consistency with other review processes. An example is the Director of Parks and Recreation having responsibility to approve finalized park plans. 5. Updating submittal requirements for subdivisions to remove unneeded information from individual applications as new information sources have become available, limit information supplied to that most relevant to the subdivision process, and ensure all needed information is provided. 6. Updating public notice provisions to conform to changed requirements for subdivision review processes. Due to the changes in state law and the local ordinances there will be fewer public hearings on subdivisions. The change from public hearings to public meetings changes how notices are published and the timing for notices. Depending on the specific review procedure, the duration of notice may be the same as at present or may be reduced. However, there will still be opportunities for public notice and comment on subdivisions. 7. Changing the subdivision preliminary plat review process to meet revised state laws for expedited subdivision review and newly applicable review processes. These revisions change the review process to rely more on compliance with generally applicable regulations rather than project specific conditions of approval, changes most public hearings to public meetings, and shortens review time for some subdivisions. The Planning Board will likely no longer conduct any public hearings on subdivisions. Some review processes for subdivisions will be shortened. 8. Updating required certificates for final plats for additional clarity and revisions for City signatories. 9. Revised process and standards for agricultural water user facilities (e.g. ditches and canals). This amendment enables the City to invoke 76-3-616 MCA which simplifies the subdivision review process by providing for all subdivision primary review criteria to be addressed with generally applicable regulations. 293 Staff Report for the Subdivision Review Procedures Update 21338 Page 17 of 17 APPENDIX B - NOTICING AND PUBLIC COMMENT Notice for text amendments must meet the standards of 38.220.410 & 420. Notice was published in the Bozeman Daily Chronicle as required and contained all required elements. Notice was provided at least 15 days before the Planning Board public hearing, and not more than 45 days prior to the City Commission public hearing. Notice was published in the Bozeman Daily Chronicle on 10/3/2021, 10/10/2021, 10/17/2021, and 11/7/2021. The City exceeded the required notice provision. Hearing dates are on the first page of this report. Public hearings were held by the Planning Board and Zoning Commission as noted above. No oral or written public comment has been received as of the writing of this report. APPENDIX C - APPLICANT INFORMATION AND REVIEWING STAFF Applicant: City of Bozeman, PO Box 1230, Bozeman MT 59771 Representative: Department of Community Development, City of Bozeman, PO Box 1230, Bozeman MT 59771 Report By: Chris Saunders, Community Development Manager FISCAL EFFECTS No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this Amendment. ATTACHMENTS The full application and file of record can be viewed at the Community Development Department at 20 E. Olive Street, Bozeman, MT 59715. Ordinance 2089 294 Ord 2089 Page 1 of 78 ORDINANCE 2089 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA AMENDING SECTION 38.100.040 INTENT AND PURPOSE OF CHAPTER TO REFERENCE STATE LAW, AMENDING SECTION 38.100.070 CONDITIONS OF APPROVAL TO CLARIFY WHEN CONDITIONS OF APPROVAL APPLY, AMENDING SECTION 38.100.080 COMPLIANCE WITH REGULATIONS REQUIRED TO CLARIFY OBLIGATIONS, AMENDING SECTION 38.200.010 REVIEW AUTHORITY TO UPDATE RESPONSIBILITIES FOR REVIEW OF DEVELOPMENT ACTIONS, AMENDING SECTION 38.220.030 SUBDIVISION PRE-APPLICATION PLAN TO REVISE SUBMITTAL MATERIALS FOR SUDIVISION PRE-APPLICATIONS, AMENDING SECTION 38.220.040 SUBDIVISION PRELIMINARY PLAT TO REVISE SUBMITTAL MATERIALS FOR SUBDIVISION PRELIMINARY PLATS AND DELETING AND RESERVING SECTION HEADER 38.240.050, AMENDING SECTION 38.220.060 ADDITIONAL SUBDIVISION PRELIMINARY PLAT SUPPLEMENTS TO CHANGE TITLE AND REVISE REQUIRED MATERIAL FOR SUBMISSION, AMENDING SECTION 38.220.070 FINAL PLAT TO REVISE APPLICATION MATERIALS TO BE SUBMITTED WITH A FINAL PLAT, AMENDING DIVISION 38.220 PART 2 TO REVISE THE SUBMITTAL AND REVIEW OF SUPPLEMENTARY DOCUMENTS, AMENDING SECTION 38.220.420 NOTICE REQUIREMENTS FOR APPLICATION PROCESSING TO REMOVE FOOTNOTES, REVISE NOTICING PROCEDURES FOR SUBDIVISIONS, AMENDING DIVISION 38.240 PART ONE TO INCORPORATE STATE LAW REFERENCES, AMENDING DIVISION 38.240 PART 2 TO REVISE REVIEW PROCEDURES TO COMPLY WITH REVISIONS TO STATE LAW AND REORGANIZE FOR CLARITY, AMENDING DIVISION 38.240 PART 3 LAND SUBDIVISIONS CREATED BY RENT OR LEASE TO REMOVE LANGUAGE NO LONGER REQUIRED IN STATUTE, AMENDING SECTION 38.240.300 DIVISIONS OF LAND ENTIRELY EXEMPT FROM THE REQUIREMENTS OF THIS CHAPTER PERTAINING TO SUBDIVISIONS AND THE STATE SUBDIVISION AND PLATTING ACT TO INCLUDE NEW STATE RESTRICTION ON COURT ORDERED DIVISIONS OF LAND, AMENDING SECTION 38.240.410 TO CLARIFY WHEN CERTIFICATE OF DEDICATION OR CONSENT ARE USED WITH A FINAL PLAT, AMENDING SECTION 38.240.450 TO CHANGE THE SIGNATORY ON THE CERTIFICATE OF 295 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 2 of 78 COMPLETION OF IMPROVEMENTS TO THE CITY ENGINEER, AMENDING SECTION 38.240.460 TO CLARIFY THE INTENT AND SIGNATORY FOR THE CERTIFICATE ACCEPTING DEDICATIONS TO THE CITY, AMENDING SECTION 38.240.470 TO REVISE THE SIGNATORY FOR THE CERTIFICATE ACKNOWLEDGING EXCLUSION FROM REVIEW FOR SANTIATION, AMENDING SECTION 38.240.500 TO CLARIFY THE CERTIFICATE FOR USE OF THE CERTIFICATE FOR EXEMPTION FOR CERTAIN APPLICATIONS FROM REVIEW AS A SUBDIVISION, AMENDING SECTION 38.240.530 TO REVISE THE SIGNATORY FOR THE CITY ON THE CERTIFICATE, CREATE SECTION 38.240.540 CERTIFICATE OF GOVERNING BODY FOR APPROVAL OF A SUBDIVISION PLAT, AMENDING SECTION 38.250.080 SUBDIVISION VARIANCES TO CLARIFY THAT A PUBLIC HEARING IS NOT HELD ON SUBDIVISION VARIANCES, CREATE SECTION 38.360.280 AGRICULTURAL WATER USER FACILITIES, AMENDING SECTION 38.400.020 TO REVISE CROSS REFERENCE, AMENDING SECTION 38.410.060 TO REVISE REQUIREMENTS FOR AGRICULTURAL WATER USER FACILITIES, AMENDING SECTION 38.410.020 TO REVISE REVIEW PROCESS FOR NEIGHBORHOOD CENTERS, AMENDING SECTION 38.420.050 TO REVISE REVIEW PROCESS FOR SITING PARKS, AMENDING SECTION 38.420.080 TO REVISE REVIEW PROCESS FOR DETERMINATION OF PARK CHARACTERISTICTS PROPOSED WITH NEW DEVELOMPENT; AND PROVIDING AN EFFECTIVE DATE, APPLICATION 21338. WHEREAS, the City of Bozeman (the “City”) has adopted land development and use standards to protect public health, safety and welfare and otherwise execute the purposes of Montana Code Annotated §§ 76-1-102, 76-2-304, 76-3-102, and 76-3-501; and WHEREAS, after proper notice, the Bozeman Planning Board held a public hearing on October 18, 2021 to receive and review all written and oral testimony on the proposed amendments; and WHEREAS, the Bozeman Planning Board recommended to the Bozeman City Commission that application No. 21338, be approved as proposed; and WHEREAS, after proper notice, the Bozeman Zoning Commission held a public hearing on October 25, 2021 to receive and review all written and oral testimony on the proposed amendments; and WHEREAS, the Bozeman Zoning Commission recommended to the Bozeman City Commission that application No. 21338, be approved as proposed; and 296 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 3 of 78 WHEREAS, after proper notice, the City Commission held its public hearing on November 16, 2021, to receive and review all written and oral testimony on the proposed amendment to the subdivision regulations; and WHEREAS, the City Commission has reviewed and considered the applicable amendment criteria established in Montana Code Annotated §§ 76-3-102 and 76-3-501, and found that the proposed amendments 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 has adopted land development and use standards to protect public health, safety and welfare and otherwise execute the purposes of Montana Code Annotated §§ 76-1-102, 76-2-304, 76-3-102, and 76-3-501. 2. The City adopted a growth policy, the Bozeman Community Plan 2020 (BCP 2020), by Resolution 5133 to establish policies for development of the community. 3. Zoning and subdivision regulations must be in accordance with the adopted growth policy. 4. The 2021 Montana Legislature passed multiple bills revising the requirements for the subdivision review process. 5. The City of Bozeman restructured its advisory boards on August 10, 2021 assigning duties and consolidating responsibilities to improve public engagement, consistency of process, and effectiveness and such advisory boards are referenced in the subdivision related regulations and therefore the regulations need to be updated to reflect the new boards structure. 297 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 4 of 78 6. A staff report analyzing the required criteria for an amendment to the City’s regulations for subdivision review, including accordance to the Bozeman Community Plan 2020, and required contents for local subdivision regulations has found that the required criteria of Montana Code Annotated §§ 76-1-606, 76-3-102, and 76-3-501 are satisfied. 7. A staff report analyzing the required criteria for an amendment to the City’s regulations for zoning review, including accordance to the Bozeman Community Plan 2020, and required criteria for zoning regulations has found that the required criteria of Montana Code Annotated §§ 76-1-304 are satisfied. 8. The required public hearings were advertised as required in state law and municipal code and all persons have had opportunity to review the applicable materials and provide comment. 9. The City Commission considered the application materials, staff analysis and report, Planning Board recommendation, Zoning Commission recommendation, all submitted public comment, and all other relevant information. 10. The City Commission determines that, as set forth in the staff report and incorporating the staff findings as part of their decision, the required criteria for approval of this ordinance have been satisfied. 11. The City Commission determines that the ordinance provides a proper balance of interests, rights, and responsibilities of all parties affected by the ordinance. 12 The City Commission determines that the zoning provisions of Chapter 38, Unified Development Code, contain all necessary elements of MCA 76-8-107, and therefore the state provisions for Buildings for Lease or Rent are not applicable per MCA 76-8-103. 13. The City Commission determines that the adopted growth policy, Bozeman Community Plan 2020, and the zoning provisions of Chapter 38, Unified Development Code, contain all necessary elements to meet the requirements of MCA 76-3-616, and therefore 298 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 5 of 78 subdivisions not including zoning variances are exempt from public hearings and therefore the noticing provisions for subdivisions require revision. 13. The City Commission determines that MCA 76-3-623 establishes new procedural requirements for certain subdivisions which must be incorporated into local subdivision review procedures. Section 2 That Section 38.100.040 of the Bozeman Municipal Code be amended as follows: Sec. 38.100.040. Intent and purpose of chapter. A. The intent of this unified development chapter is to protect the public health, safety and general welfare; to recognize and balance the various rights and responsibilities relating to land ownership, use, and development identified in the United States and State of Montana constitutions, and statutory and common law; to implement the city's adopted growth policy; and to meet the requirements of state law. B. It is the purpose of these regulations to promote the public health, safety and general welfare, including the purposes for subdivision and zoning in MCA 76-1-102, 76-1-606, 76- 2-304, 76-3-102, and 76-3-501 as may be amended from time to time. Further, it is the purpose of these regulations to exercise to the fullest extent the authority of the City’s Charter, utility, and all other powers. by: preventing the creation of private or public nuisances caused by noncompliance with the standards and procedures of this chapter; regulating the subdivision, development and use of land; preventing the overcrowding of land; lessening congestion in the streets and highways; being in accord with the growth policy; providing adequate light, air, water supply, sewage disposal, parks and recreation areas, ingress and egress, and other public improvements; requiring development in harmony with the natural environment; promoting preservation of open space; promoting development approaches that minimize costs to local citizens and that promote the effective and efficient provision of public services; securing safety from fire, panic, and other dangers; protecting the rights of property owners'; requiring uniform monumentation of land subdivisions and transferring interests in real property by reference to a plat or certificate of survey (MCA 76-3-102). It is further the purpose of these regulations to: consider the character of the district and its peculiar suitability for particular uses, conserving the value of buildings, and encouraging the most appropriate use of land throughout the jurisdictional area (MCA 76-2-304). C. Further, to support the purposes of MCA 76-2-304 and 76-3-102, these regulations are intended to promote and to provide for the: 1. Orderly development of the city; 299 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 6 of 78 2. Coordination of streets within subdivided land with other streets and roads, both existing and planned; 3. Dedication of land for streets and roadways and for public utility easements; 4. Improvement of streets; 5. Adequate open spaces for travel, light, air and recreation; 6. Adequate transportation, water, drainage and sanitary facilities; 7. Minimization of unnecessary congestion; 8. Avoidance of unnecessary environmental degradation; 9. Encouragement of subdivision development in harmony with the natural environment; 10. Avoidance of danger or injury to health, safety or general welfare by reason of natural hazard or the lack of water, sewer, drainage, access, transportation or other public services; 11. Avoidance of excessive expenditure of public funds for the provision of public services; 12. Manner and form of making and filing of plats for subdivided lands; 13. Administration of these regulations, by defining the powers and the duties of approving authorities, including procedures for the review and approval of all subdivision plats; 14. Division of the city into districts with uniformly applicable standards for development within each district; 15. Standards for the development and use of land; 16. Procedures for the review and approval for the development and use of land; and 17. Establishment of all other requirements necessary to meet the purposes of this chapter. D. Pursuant to MCA 76-2-304, 76-1-605 and 76-1-606, these regulations are also intended to implement the goals and objectives of the city's adopted growth policy. C. This chapter has been evaluated for compliance with the growth policy as part of the process to adopt this chapter, and has been found to comply with the growth policy. Section 3 That Section 38.100.070 of the Bozeman Municipal Code be amended as follows: Sec. 38.100.070. Conditions of approval. A. Regulation of the subdivision and development of land, and the attachment of reasonable conditions to land subdivided or developed, or a use undertaken, is an exercise of valid police power delegated by the state to the city. Persons undertaking the subdivision, development or use of land have the duty of complying with reasonable conditions for 300 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 7 of 78 design, dedication, improvement and restrictive use of the land so as to conform to the physical and economic development of the city, and to the safety and general welfare of the future lot owners and of the community at large. Such conditions may require compliance with more than the minimum standards established by this chapter. B. Conditions of approval may not be added after final action to grant preliminary approval to a proposed subdivision or other development unless: 1. The conditions are necessary to correct inaccurate or incomplete information provided with an application, which error is discovered after the original approval action; and 2. The project is not completed within the time period provided in the approval or by this chapter; or 3. The requirement is part of an improvements agreement and security for completion of required improvements prior to filing a final plat or other development. However, should the owner seek material modifications (e.g., changes to the intent, nature, or scope of a subdivision or development, or necessary improvements) to a previously approved subdivision, development or condition of approval, the entire application must be considered to be again opened for review and additional conditions may be applied. Modifications of conditions of approval must be reviewed through the same process as the original application. Final action includes the resolution of any appeals. The provisions of section 38.240.150 38.240.130.A.5.h may also apply to revisions of conditions for preliminary plats. C. Mandatory cCompliance with the explicit termsrequirements and procedures of this chapter or other duly adopted applicable law, standard, or procedure whether adopted by the City or other authority does not constitute a conditions of approval and is not affected by the limitations of subsection B of this section or other limitations on conditions of approval. Section 4 That Section 38.100.080 of the Bozeman Municipal Code be amended as follows: Sec. 38.100.080. Compliance with regulations required. A. No land may hereafter be subdivided, used or occupied, and no building, structure or part thereof may hereafter be erected, constructed, reconstructed, moved or structurally altered, and no development may commence unless it is in conformity with all of the regulations herein specified for the district in which it is located. It is the obligation of the person proposing the development to demonstrate compliance with all applicable standards and regulations. B. To the extent reasonable, all city-owned land is subject to applicable regulations of the underlying zoning district. 301 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 8 of 78 Section 5 That Section 38.200.010 of the Bozeman Municipal Code be amended as follows: Sec. 38.200.010. Review authority. A. The city commission has the authorityright to review and require revisions to all development proposals subject to this chapter, and delegates that authority in certain circumstances as set forth below. The purpose of this review is to prevent demonstrable adverse impacts of the development upon public safety, health or general welfare, or to provide for its mitigation; to protect public investments in roads, drainage facilities, sewage facilities, water facilities, and other facilities; to conserve the value of adjoining buildings and/or property; to protect the character of the city; to protect the right of use of property; advance the purposes and standards of this chapter and the adopted growth policy; and to ensure that the applicable regulations of the city are upheld. 1. The city commission retains to itself under all circumstances the review of the following: a. Subdivisions which do not qualify as a subdivision exemption per article 2 of this chapter; b. Amendments to the text of this chapter or amendment to the zoning map; c. Requests for cash-in-lieu of parkland dedications, except: (1) In the B-3 zone district; or (2) When by resolution the city commission delegates decisions on cash-in-lieu for development for which it would not otherwise be the review authority. d. Extensions of subdivision preliminary plat approvals for periods greater than two years; e. Planned unit development preliminary plans and major amendments to planned unit developments; f. Appeals from administrative interpretations and final project review decisions; g. Approval of preliminary park master plans when associated with a development for which the City Commission is the review authority; h. Large scale retail per section 38.360.160; i. Exceptions to installation of bikeways and boulevard trails per section 38.400.110.E; j. Conditional use permits when no board of adjustment is established; k. More than two deviations or where deviation is for more than 20 percent of standard; l. Amendments to text or zoning map per division 38.260. 2. The city commission conducts public hearing for applications under 76-2-402, MCA. 302 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 9 of 78 B. The community development director must, upon recommendation from the applicable advisory bodies approve, approve with conditions or deny all applications subject to this chapter except those listed below. Decisions of the community development director are subject to the appeal provisions of division 38.250 of this chapter. 1. Projects excluded from community development director review: a. Those applications specifically reserved to another approval authority as stated in this section; b. Development of city property which does not conform to all standards of this chapter; c. Any application involving variances from this chapter; 2. Exception. The city commission may, by an affirmative, simple majority vote of its members at a regularly scheduled meeting reclaim to itself the final approval of a development application normally subject to the approval of the community development director. The vote must occur prior to the action of the community development director. C. When a board of adjustment has been appointed per section 2.05.2800, the board of adjustment must, upon recommendation from the applicable advisory bodies approve, approve with conditions or deny those applications specifically delegated to it by the city commission. Decisions of the BOA are subject to the appeal provisions of division 38.250 of this chapter. 1. Exception. The city commission may, by an affirmative vote of three of its members at a regularly scheduled meeting reclaim to itself the final approval of a development normally subject to the approval of the board of adjustment. The vote must occur prior to the action of the board of adjustment. D. The city engineer must review and upon recommendation from the applicable advisory bodies as needed approve, approve with conditions or deny the following site elements and processes: 1. Site access and storm water for reuse and further development per section 38.230.160.B; 2. Location of storm water facilities within neighborhood centers per section 38.410.020; 3. The placement of private utility easements within public rights-of-way owned or controlled by the city; 4. The maximum length of dead end water mains per section 38.410.070; 5. The maximum length of service lines per section 38.410.070; 6. Exceptions to storm water controls per section 38.410.080; 7. All modifications or proposed standards in section 38.400.010 except subparagraphsection 38.400.010.A.1, Relation to undeveloped areas; 303 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 10 of 78 8. Plans and specifications for public infrastructure and infrastructure to be granted to the public per sections 38.400.060 Street improvement standards paragraphs. A and B.1— 3; 9. Alternate curb return radii per section subparagraph 38.400.090.C.3; 10. Locations and modifications to drive accesses to public streets per sections paragraphs 38.400.090.G and H; 11. Street improvement standards and modifications departures therefrom per section 38.400.060; 12. Departures for street vision triangles per section 38.400.100; 13. Backing into alleys, parking stall aisle and driveway design for surfacing and curbing per section paragraphs 38.540.020.D, F and J; 14. Protection of landscaped areas per section paragraph 38.550.050.H; 15. All actions required of the flood plain administrator per article 6 of this chapter; 16. Modifications in required completion time for subdivision improvements per section subparagraph 38.270.030.B.1; 17. The use of a financial guarantee for paving of streets per section paragraph 38.270.060.CB; 18. The waiver of required information per subparagraph section 38.220.080.A.2.i(3); 19. Requirement for a traffic impact analysis and determination of its contents per section subparagraph 38.220.120.A.2.c(5); 20. Specifications and modifications therefrom for paving of streets and parking areas; 21. Designation of street classifications for collectors and arterials not shown in the long range transportation plan; and 22. Alternate parking angles for surface and structured parking stall configurations listed in Table 38.540.020. All other numeric standards apply. 23. Exceptions or modifications to installation of bikeways and boulevard trails per section 38.400.110.E; E. The director of public works must review and upon recommendation from the applicable advisory bodies as needed approve, approve with conditions or deny the following development elements and processes: 1. Waiver of the requirement to extend water, sewer, and streets to the perimeter of property being developed per section 38.410.070; 2. Provision of water rights as authorized in section 38.410.130; 3. Subject to section 38.400.060, exceptions to the level of service standards established in section 38.400.060.B.4; 4. Payment of cash in-lieu of capital facilities established in section 38.270.070.C; and 304 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 11 of 78 5. Acceptable alternative sidewalk design or materials per section 38.400.080. F. The director of parks and recreation must review, and as needed approve, approve with conditions or deny the following development elements and processes: 1. Ddetermine the classification of recreation pathwaystrails per section 38.420.110.D. 2. Approve final park plans. 3. Approve preliminary park plans when a development is subject to approval by the Director of Community Development 4. Approval of calculations of cash-in-lieu of parkland amounts for development of property when: a. the initial dedication of land per 38.420.020 has been provided; b. money to be paid is to address mitigation of recreation impacts above the minimum land dedication; and c. a park master plan has been approved for the park servicing the land to be developed. G. As detailed in division 38.200 of this chapter, the city commission authorizes the applicable advisory bodies to review and to make recommendations to the review authority regarding development proposals. Under this section, when advisory boards review and make recommendations to the review authority they act in a quasi-judicial capacity. Recommendations do not constitute votes of approval or denial. H. The city commission or its designated representatives may require the applicant to design the proposed development to reasonably minimize potentially significant adverse impacts identified through the review required by these regulations. The city commission or its designated representatives may not unreasonably restrict a landowner's ability to develop land, but it is recognized that in some instances the unmitigated impacts of a proposed development may be unacceptable and will preclude approval of the development as submitted. Recognizing that the standards of this chapter are minimum requirements and the public health, safety, and general welfare may be best served by exceeding those minimums, the city commission or community development director may require as a condition of approval mitigation exceeding the minimums of this chapter. 305 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 12 of 78 Section 6 That Section 38.220.030 of the Bozeman Municipal Code be amended as follows: Sec. 38.220.030. Subdivision pre-application submittal materialsplan. A. The pre-application plan may be a freehand sketch, legibly drawn, showing approximate boundaries, dimensions, areas and distances. The plan may be drawn directly on a print of a topographic survey required for the preliminary plat and must include: 1. Sketch map. A sketch map showing: a. The names of adjoining subdivisions and numbers of adjoining certificates of survey, along with adjacent lot and tract lines. b. Location, name, width and owner of existing or proposed streets, roads and easements within the proposed subdivision; existing streets, roads and easements within adjacent subdivisions and tracts; and the name of street or road that provides access from the nearest public street or road to the proposed subdivision. c. Location of all existing structures, including buildings, railroads, power lines towers, and improvements inside and within 100 feet of the proposed subdivision. d. Zoning classification within the proposed subdivision and adjacent to it. The zoning proposed for the subdivision, if a change is contemplated and if an adjacent PUD is in place or proposed. 2. Topographic features. Topographic features of the proposed subdivision and adjacent subdivisions and tracts, including: a. A current U.S. Geological Survey topographic map at the largest scale available with the subdivision clearly outlined. b. Embankments, watercourses, drainage channels, areas of seasonal water ponding, areas within the designated floodway, marsh areas, wetlands, rock outcrops, wooded areas, noxious weeds and areas of active faults. Include copies of any permits listed in section 38.220.020 that have been obtained for the project. 3. Utilities. The existing and proposed utilities located on and adjacent to the proposed subdivision including: a. Location, size and depth of sanitary and storm sewers, water mains and gas lines. b. Location of fire hydrants, electric lines, telephone lines, sewage and water treatment, and storage facilities. 4. Subdivision layout. The proposed layout of the subdivision showing the approximate: a. Subdivision block, tract, and lot boundary lines, with numbers, dimensions, and areas for each block, tract and lot. b. Street location, right-of-way width, and name. 306 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 13 of 78 c. Easement location, width and purpose. d. Sites to be dedicated or reserved as park, common open space or other public areas, with boundaries, dimensions and areas. e. Sites for commercial centers, churches, schools, industrial areas, multi-household units, manufactured housing community and uses other than single-household residences. 5. Development plan. An overall development plan indicating future development of the remainder of the tract, if the tract is to be developed in phases. 6. Name and location. A title block indicating the proposed name, quarter-section, section, township, range, principal meridian and county of subdivision. 7. Notations. Scale, north arrow, name and addresses of owners and developers, and date of preparation. 8. Variances. A list of variance requests which will be submitted with the application for preliminary plat application. 9. Waivers. A list of waivers requested from the requirements of section 38.220.060 must be submitted with the pre-application and an explanation of why such information is not relevant or was previously provided.. The DRC is responsible for granting waivers, and the community development department staff must notify the developer in writing of any waivers granted from section 38.220.060 after the pre-application meeting or plan review. 10. Parks and recreation facilities. The following information must be provided for all land proposed to meet parkland dedication requirements: a. Park concept plan, including: (1) Site plan for the entire property; and (2) The zoning and ownership for adjacent properties; and (3) The location of any critical lands (wetlands, riparian areas, streams, etc.); and (4) General description of land, including size, terrain, details of location and history, water features, and proposed activities; and (5) Description of trails or other recreational features proposed to connect the proposed park area to other park or open space areas. b. If the applicant intends to request approval of cash-in-lieu, a response to the cash- in-lieu review factors established by resolution of the city commission. 12. Affordable housing. Describe how the subdivision proposes to satisfy the requirements of division 38.380. Describe any intended use of 38.380 for creation of affordable housing with the subdivision. 13. Wildlife. Describe key wildlife habitat issues that may be associated with proposed subdivision. Describe how the subdivision will consider fish and wildlife resources in the course of project design. Describe subdivision early planning suggestions from 307 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 14 of 78 local FWP field biologists at FWP regional offices. This description should consider the following: a. The species of fish and wildlife, including those designated as species of concern, that use all or part of the project planning area (proposed subdivision site plus a one-half-mile radius around it) on a year-round, seasonal, or periodic basis. b. Existing vegetation, aquatic habitats, and wildlife habitats in the project planning area (e.g., water bodies and their associated riparian habitat, big game winter range, native grassland or shrub land habitats, areas used by black or grizzly bears). c. The proposed subdivision's potential impacts on wildlife and wildlife habitat, both during construction and at full build-out, taking any applicable fish and wildlife habitat standards into account. 14. Waivers of right to protest. Include copies of or the recorded document numbers of all existing waivers of right to protest special improvement districts or maintenance districts which are applicable to the property proposed to be subdivided. 15. Water rights. Describe how the proposed subdivision intends to satisfy section 38.410.130. Provide documentation of all water rights appurtenant to the proposed subdivision; e.g. previous payment-in-lieu of water rights, groundwater certificates, statements of claim, provisional permits, decreed rights, canal or water users association shares etc. 16. Agricultural water user facilities. Identify the location of all agricultural water user facilities and the contact information for the facility user/representative per 38.360.280. Section 7 That Section 38.220.040 of the Bozeman Municipal Code be amended as follows: Sec. 38.220.040. Subdivision preliminary plat. A. The preliminary plat must be legibly drawn as specified in the application form provided by the community development department. Where accurate information is required, surveying and engineering data must be prepared under the supervision of a registered engineer or registered land surveyor, licensed in the state, as their respective licensing laws allow. The plat submittal must include the following: 1. Pre-application information. All information required with the pre-application plan, as outlined in section 38.220.030. 2. Subdivision information. Name and location of the subdivision, scale, scale bar, north arrow, date of preparation, lots and blocks (designated by number), the dimensions and area of each lot, and the use of each lot, if other than for single-household. 308 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 15 of 78 23. Subdivision map. Map of entire subdivision as specified on the application form provided by the community development department. 34. Streets, roads and grades. All streets, roads, alleys, avenues, highways and easements; the width of the right-of-way, grades and curvature of each; existing and proposed road and street names; and proposed location of intersections for any subdivision requiring access to arterial or collector streets. 45. Adjoining subdivisions. The names of adjoining platted subdivisions and numbers of adjoining certificates of survey. 56. Adjoining owners. Names and addresses of record owners of lots and tracts immediately adjoining the proposed subdivision. 67. Perimeter survey. An approximate survey of the exterior boundaries of the platted tract with bearings, distances, and curve data indicated outside of the boundary lines. When the plat is bounded by an irregular shoreline or a body of water, the bearings and distances of a closing meander traverse must be given. 78. Section corner. The approximate location of all section corners or legal subdivision corners of sections pertinent to the subdivision boundary. 89. Phased improvements. If the required improvements are to be completed in phases after the final plat is filed, the approximate area of each phase must be shown on the plat. If a phase depends on improvements not included within the geographic area of a phase, or if timing of construction of improvements is separate from the timing of construction of that phase, those improvements and associated phases must be identified. 910. Contours. Ground contours must be provided for the tract according to the following requirements: Table 38.220.040 Where the average slope is: Contour intervals must be: Under 10 percent 2 feet (if all lots are over one acre in size, five feet intervals may be used) Between 10 and 15 percent 5 feet Greater than 15 percent 10 feet 1110. Waivers. List of waivers granted from the requirements of section 38.220.060 during the pre-application process must be submitted with the preliminary plat application. 1211. Request for exemption from department of environmental quality review. If the developer is proposing to request an exemption from the department of environmental quality for infrastructure plan and specification review, the preliminary plat application must include a written request from the developer's professional engineer, licensed in the state, that indicates the intent to request the exemption, and details the extent of 309 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 16 of 78 water, sewer and stormwater infrastructure that will be completed prior to final plat approval. A detailed preliminary stormwater drainage plan must also be submitted with the written request. 13. Sanitation information. When the subdivision does not qualify for the certification established in section 38.240.170 the subdivider must provide the information regarding sanitation set forth in MCA 76-3-622. Sec. 38.220.050. Preliminary plat supplements required for all subdivisions. AB. The following supplemental information must be submitted along with the preliminary plat. 1. Area map. A map showing all adjacent sections of land, subdivision, certificates of survey, streets and roads. 2. Subdivision map. Map of entire subdivision as specified on the application form provided by the community development department. 32.Non-compliance with standards. Provide a written response to: a. Variances. Provide Aa written statement describing any requested subdivision variance and the facts of hardship upon which the request is based (refer to division 38.250 of this chapter). b. All others. Provide Aa written statement: describing any intended departure, deviation, modification, non-compliance or alternative compliance to any standard applicable to a subdivision review;, providing a BMC citation to the authority authorizing the by which such non-compliance; is authorized by BMC citation, and providing the applicable criteria of review. 34. Noticing materials required by section 38.220.420. 45. Documents and certificates. Draft copy of the following documents, and certificates to be printed on or to accompany the preliminary plat: a. Covenants, restrictions and articles of incorporation for the property owners' association if covenants are proposed to ensure compliance with regulatory standards. b. Encroachment permits or a letter indicating intention to issue a permit where new streets, easements, rights-of-way or drive aisles intersect state, county or city highways, streets or roads. c. A letter of approval or preliminary approval from the city where a zoning change is necessary. cd. A draft of such other appropriate certificates. de. Provision for maintenance of all streets (including emergency access), parks open spaces to meet requirements of 38.420 or 38.410.040or otherwise, storm water 310 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 17 of 78 facilities, and other required improvements if not dedicated to the public, or if private. 56. Street profile sheets. Profile sheets for street grades greater than five percent. 67. Application and fee. Completed preliminary plat application form, with the original signatures of all owners of record or their authorized representatives, and the required review fee. If an authorized representative signs on behalf of an owner of record, a copy of the authorization must be provided. 8. Noxious weed management and revegetation plan. Noxious weeds must be controlled in all developments as directed by the county weed control district (district) in accordance with the Montana County Noxious Weed Control Act (MCA 7-22-21). The developer must have any noxious weeds identified and their location mapped by a person with experience in weed management and knowledgeable in weed identification. A noxious weed management and revegetation plan approved by the district for control of noxious weeds must be submitted with the preliminary plat application. This plan must ensure the control of noxious weeds upon preliminary plat approval and the revegetation of any land disturbed during the construction of subdivision improvements. 9. Sanitation information. When the subdivision does not qualify for the certification established in section 38.240.100 the subdivider must provide the information regarding sanitation set forth in MCA 76-3-622. Section 8 That section 38.220.060 of the Bozeman Municipal Code be amended as follows: Sec. 38.220.060. Additional subdivision preliminary plat supplements Documentation of compliance with adopted standards. A. The following list of preliminary plat application supplements information must also be provided for with all subdivisions preliminary plat applications in order to document compliance with adopted development standards unless waived by the development review committee during the pre-application process per 38.240.110. The developer must include documentation of any waivers granted by the city after the pre-application meeting or plan review. Additional relevant and reasonable information may be required to adequately assess whether the proposed subdivision complies with this chapter, and the Montana Subdivision and Platting Act, and other applicable standards. The need for additional information is determined during the pre-application process. 1. Surface water. a. Mapping. Locate on a plat overlay or sketch map all surface waters and the delineated floodplain which may affect or be affected by the proposed subdivision including: 311 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 18 of 78 (1) Natural water systems such as natural streams, creeks, stream/ditches, drainages, waterways, gullies, ravines or washes in which water flows either continuously or intermittently and has a definite channel, bed and banks. (2) Artificial water systems such as canals, ditches, ditch/streams, aqueducts, reservoirs, irrigation or drainage systems. b. Description. (1) Describe all surface waters which may affect or be affected by the proposed subdivision including name, approximate size, present use and time of year when water is present. (2) Describe proximity of proposed construction (such as buildings, sewer systems, streets) to surface waters. c. Water body alteration. Describe any existing or proposed streambank or shoreline alterations or any proposed construction or modification of lake beds, watercourses or irrigation ditches. Provide information on location, extent, type and purpose of alteration. Provide a revised floodplain analysis report, in compliance with article 6 of this chapter, as appropriate. d. Wetlands. If the subdivision contains wetlands, as defined in section 38.700.210 of this chapter, then a delineation of the wetland meeting standards of Division 38.610 must be provided and the location of existing and proposed modifications to wetlands must be shown on an overlay of the proposed plat. must be shown on the preliminary and final plats. e. Permits. Include copies of any permits listed in section 38.41.020 that have been obtained for the project. 2. Floodplains. A floodplain analysis report must be submitted with the preliminary plat in compliance with Division 38.600 article 6 of this chapter. 3. Groundwater. a. Depth. Establish the seasonal minimum and maximum depth to the water table, dates on which these depths were determined, and the location and depth of all known aquifers which may be affected by the proposed subdivision. The high water table must be determined from tests taken during the period of major concern as specified in writing by the county environmental health department. Specific locations for test holes may also be determined by the county environmental health department. b. Steps to avoid degradation. Describe any steps necessary to avoid the degradation of groundwater and groundwater recharge areas. 4. Geology; soils; slopes. a. Geologic hazards. Identify geologic hazards affecting the proposed subdivision which could result in property damage or personal injury due to rock falls or 312 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 19 of 78 slides; landslides, mud or snow; surface subsidence (i.e., settling or sinking); or seismic activity. b. Protective measures. Explain what measures will be taken to prevent or materially lessen the danger of future property damage or injury due to any of the hazards referred to in subsection A.4.a of this section. c. Unusual features. Provide a statement describing any unusual soil, topographic or geologic conditions on the property which limit the capability for building or excavation using ordinary and reasonable construction techniques. The statement should address conditions such as shallow bedrock, high water table, unstable or expansive soil conditions, and slope. On a map, identify any slopes in excess of 15 percent grade. d. Soils map. The subdivision must be overlaid on the county soil survey maps obtained from the Natural Resource and Conservation Service (NRCS). The maps are 1:24,000 in scale. These maps may be copied without permission. However, enlargement of these maps could cause misunderstanding of the detail of mapping. Soils were mapped using a minimum delineation of five acres, and these soils reports were intended to alert developers to possible problems and the need for a more detailed on-site investigation. The developer must provide the following soil reports, which can be obtained from the NRCS: (1) The physical properties and engineering indexes for each soil type; (2) Soil limitations for utilities, building and site development, and water features for each soil type; (3) Hydric soils report for each soil type. If hydric soils are present, the developer must provide a wetlands investigation by a certified consultant, using the current Federal Manual for Identifying and Delineating Jurisdictional Wetlandsper Division 38.610; and (4) The developer must provide any special design methods planned to overcome the above limitations. e. Cuts and fills. Describe the location and amount of any cut or fill three or more feet in depth. These cuts and fills should be indicated on a plat overlay or sketch map. Where cuts or fills are necessary, describe any plans to prevent erosion and to promote revegetation such as replacement of topsoil and grading. 5. Vegetation. a. Vegetation map. On a plat overlay or sketch map : (1) Indicate the distribution of the major vegetation types such as marsh, grassland, shrub, coniferous forest, deciduous forest or mixed forest. (2) Iidentify critical plant communities such as stream bank or shoreline vegetation; vegetation on steep, unstable slopes; and vegetation on soils highly susceptible to wind or water erosion. 313 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 20 of 78 b. Protective measures. Describe measures to preserve trees and critical plant communities (e.g., design and location of streets, lots and open spaces). c. Noxious weed management and revegetation plan. Noxious weeds must be controlled in all developments as directed by the county weed control district (district) in accordance with the Montana County Noxious Weed Control Act (MCA 7-22-21). The developer must have any noxious weeds identified and their location mapped by a person with experience in weed management and knowledgeable in weed identification. A noxious weed management and revegetation plan approved by the district for control of noxious weeds must be submitted with the preliminary plat application. This plan must ensure the control of noxious weeds upon preliminary plat approval and the revegetation of any land disturbed during the construction of subdivision improvements. 6. Wildlife. a. Species. Describe any endangered species or species of concern fish and wildlife which use the area affected by the proposed subdivision. b. Critical areas. Identify on a plat overlay or sketch map of the proposed subdivision any known critical, significant or "key" wildlife areas, such as big game winter range, waterfowl nesting areas, habitat for rare or endangered species or wetlands. c. Pets/human activity. Describe the expected effects of pets and human activity on wildlife. cd. Public access. Describe the effects on public access to public lands, trails, hunting or fishing areas. de. Protective measures. Describe any proposed measures to protect or enhance wildlife habitat or to minimize degradation (e.g., keeping building and streets back from shorelines, setting aside wetlands marshland as undeveloped open space). ef. Discussion of impact; documentation. The developer must discuss the impact of the proposed development on fish and wildlife with the state department of fish, wildlife and Parks (FWP). With the preliminary plat application, the developer must provide written documentation from FWP that: (1) Verifies that FWP has reviewed the proposed plat; (2) Lists any FWP recommendations; and (3) Outlines any mitigation planned to overcome any adverse impacts. 7. Historical features. a. Affected areas. Describe and locate on a plat overlay or sketch map any known or possible historic, paleontological, archaeological, or cultural sites, structures, or objects which may be affected by the proposed subdivision. b. Protective measures. Describe any plans to protect such sites or properties. 314 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 21 of 78 c. Procedures. Describe procedures to be followed if any historic, paleontological, archaeological, cultural sites, structures or object are found on site during site preparation and construction. d. Discussion of impact; documentation. The developer must discuss the impact of the proposed development on any historic features, and the need for inventory, study and/or preservation with the state historic preservation office (SHPO). The developer must provide written documentation from SHPO that: (1) Verifies that SHPO has reviewed the proposed plat; (2) Lists any SHPO recommendations; (3) Outlines any plans for inventory, study, and/or preservation; and (4) Describes any mitigation planned to overcome any adverse impacts. e. Preparation of information. Information on historical sites must be prepared by a qualified professional, including persons with a professional or educational background in history, architectural history, archaeology, art history, historic preservation, anthropology and cultural resource management. 78. Agriculture. When a proposed development is adjacent to land used for agricultural production. a. Number of acres in production and type of production. b. Agricultural operations in the vicinity, and other uses of land in the general vicinity. c. The productivity of the land. d. Whether or not the property is part of a viable farm unit, and whether the property was under production during the last regular season. ea. What measures will be taken, if any, to control family pets. fb. Fencing of agricultural land. Describe any existing fence lines around the subdivision development boundary which protect agricultural lands under an ownership other than of the developer, and describe any measure which will be taken to ensure that the owners of the subdivision development will share with the owner of the agricultural lands in the continued maintenance of the fence. 89. Agricultural water user facilities. a. Type, description, ownership and users of facilities per 38.360.280 and 38.410.060. b. Written documentation demonstrating active use of facilities, for example the delivery of non-potable water supplies for irrigation, conversion to stormwater facilities, or other use. If a facility is not being actively used nor intended to be used in the future, include a written plan for discontinuance including all documentation required pursuant to Montana Law. 315 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 22 of 78 c. Describe any proposed realignment. All realignments must comply with all relevant requirements of Montana law. d. Information from the owner(s) of the facility concerning the proposed use or discontinuance of the facility. 910. Water and sewer. Provide an engineering design report and/or other documentation demonstrating that adequate water distribution systems and capacity, and sewage collection and disposal systems and capacity, exists or will be provided to serve the proposed subdivision consistent with the City’s adopted design standards and Chapter 40. a. Water rights. Describe how the proposed subdivision intends to satisfy section 38.410.130. Provide documentation of all water rights appurtenant to the proposed subdivision; e.g. previous estimates or actual payment-in-lieu of water rights, certified well logs, decrees or adjudications, etc. b. The information needed to demonstrate proposed compliance with 38.270. Special care is needed when concurrent construction is proposed. 1011. Stormwater management. A stormwater management plan meeting the requirements of section 40.04.700 and the city's adopted stormwater master plan. 1112. Streets, roads and alleys. a. Description. Describe any proposed new public or private streets, roads or alley, or substantial improvements of existing public or private streets, roads or alleys. The developer must demonstrate that the land to be subdivided has access onto a legal street and the future streets will be consistent with the City’s adopted design standards, Article 34.4, the long range transportation plan, and other relevant standards. b. Bicycle and pedestrian pathways, lanes and routes. Describe bicycle and pedestrian pathways, lanes or routes to be developed with the development. cb. Access to arterial. Discuss whether any of the individual lots or tracts have access directly to arterial streets or roads, and if so, the reason access was not provided by means of a street within the subdivision and how the access complies with section 38.400.090. dc. Modification of existing streets, roads or alleys. Explain any proposed closure or modification of existing streets, roads or alleys. ed. Dust. Describe provisions considered for dust control on alleys. fe. Pollution and erosion. Explain how street, road and alley maintenance will be provided to meet the department of environmental quality guidelines for prevention of water pollution and erosion and who is proposed to provide the required maintenance. 316 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 23 of 78 gf. Traffic generation. Discuss how much daily traffic will be generated on existing local and neighborhood streets, roads and alleys, when the subdivision is fully developed, and provide the following information: (1) The report format must be as follows: (a) Trip generation, using the Institute of Transportation Engineers Trip Generation Manual; (b) Trip distribution; (c) Traffic assignment; (d) Capacity analysis; (e) Evaluation; and (f) Recommended access plan, including access points, modifications, and any mitigation techniques if level of service does not meet level of service standard. (2) The report must include the following information: (a) Land use and trip generation in the form of a table of each type of land use, the number of units or square footage, as appropriate, the trip rates used (daily and peak) and resulting trip generation. (b) Traffic graphics, which show: (i) A.M. peak hour site traffic; (ii) P.M. peak hour site traffic; (iii) A.M. peak hour total traffic; (iv) P.M. peak hour total traffic; and (v) Total daily traffic (with site-generated traffic shown separately). (c) A.M. and P.M. capacity analysis with an A.M. and P.M. peak-hour capacity analysis provided for: (i) All major drive accesses that intersect collector or arterial streets or roads; and (ii) All arterial-arterial, collector-collector and arterial-collector intersections within one-half mile of the site, or as required by the city engineer during the pre-application review, concept plan review, or informal project review. (d) For two-way stop controlled intersections, analysis of whether the intersection would satisfy signalization warrants if the two-way stop control was removed. 317 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 24 of 78 hg. Capacity. Indicate the levels of service (before and after development) of existing and proposed streets and roads, including appropriate intersections, to safely handle any increased traffic. Describe any anticipated increased maintenance that will be necessary due to increased traffic and who will pay the cost of maintenance. h. Bicycle and pedestrian pathways, lanes and routes. Describe bicycle and pedestrian pathways, lanes or routes to be developed with the development. i. Traffic calming. Detailed drawings of any proposed traffic calming installations, including locations and turning radius templates. j. The information needed to demonstrate proposed compliance with 38.270. Special care is needed when concurrent construction is proposed. 1213. Non-Municipal Utilities. The developer must submit a copy of the subdivision plat to all relevant utility companies. With the preliminary plat, the developer must provide written documentation of the following: a. Affected utilities. Indicate which affected utilities the subdivision plat has been submitted to for review, and include a copy of responses. b. Include a description of: (1) The method of furnishing electric, natural gas, cable TV, internet or telephone service, where provided. (2) Estimated timing of each utility installation. (3) The developer must provide a written statement from the utility companies that the proposed subdivision can be provided with service. c. Non-municipal utility locations shall be coordinated with locations of municipal utilities. 14. Educational facilities. With the preliminary plat, provide a written statement from the administrator of the appropriate school system indicating whether the increased enrollment can be accommodated by the present personnel and facilities and by the existing school bus system. 1315. Land use. a. Indicate the proposed use and number of lots or spaces in each: (1) Residential area, single-household; (2) Residential area, multiple-household. Types of multiple-household structures and numbers of each (e.g., two or four unit structures); (3) Planned unit development (number of units); (34) Condominium (number of units); (5) Manufactured housing community (number of units); 318 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 25 of 78 (46) Recreational vehicle park; (57) Commercial or industrial; and (68) Other (please describe). 1416. Parks and recreation facilities. The following information must be provided for all land used to meet parkland dedication requirements: a. Park plan. A park plan, including: (1) Site plan with one-foot contour topographic survey for the entire property; showing proposed developer installed improvements on the initial park plan and proposed future improvements on the future park plan, and phasing proposed if any, exact product specifications are not required; (2) Drainage areas; (3) Utilities within, serving, and adjacent to the property; (4) The zoning and ownership for adjacent properties; Existing or proposed utility easements within the property; (5) The location of any critical lands (wetlands, riparian areas, streams, etc.) and location of watercourse setbacks and any permits from non-city agencies required to execute the proposed plan; (6) Park conceptual landscaping plan, prepared by a qualified landscape professional in accordance with section 38.220.100 unless the parks department has adopted an alternate plan standard, showing the location and specific types and species of plants, shrubs, trees as well as grass seed mixes and the irrigation system including but not limited to identification of water source, points of connection, mains, laterals, valves, zones, and sprinkler heads; (7) General description of land, including size, terrain, details of location and history, water features, and proposed activities; (8) Trail design and construction showing compliance with adopted city standards and trail classifications; (9) The requirement for approval of the final park plan by the review authority with a recommendation from the city recreation and parks advisory board prior to any site work; (10) The requirement for a preconstruction meeting prior to any site work; (911) Appropriate sections from the design guidelines for city parks; (102) Cost estimate, installation phasing and responsibility, and maintenance plan tasks and responsibility for custom features or atypical designsall improvements; (113) If playground equipment will be provided with initial installation by the subdivider, information including the manufacturer, installation data and 319 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 26 of 78 specifications, installer, type of fall zone surfacing and age group intended for use; otherwise a general identification of proposed function; (124) Soils information and analysis; (135) A description of how the proposed park plan is consistent with the goals of the city's current long range parks plan for parks; (146) A description of how the proposed park will meet the recreational needs of the residents of the development; (157) The proposed manner of providing irrigation to the park including water source, amount of water expected to be consumed annually, and proposed manner of transfer of water facilities and rights to the city; and (168) A phase I environmental assessment of the area proposed to be transferred to the city or property owner's association. b. Park maintenance. (1) Maintenance information, including levels of maintenance, a maintenance schedule, and responsible parties; (2) Weed control plan, including responsible parties; and (3) Plan for garbage collection, snow removal and leaf removal including responsible parties. bc. Irrigation information. (1) An irrigation system map generally showing the locations and types of lines, including depth, water source, heads, electric valves, quick couplers, drains and control box; and (2) If a well will be used for irrigation, a certified well log must be submitted showing depth of well, gpm, pump type and size, voltage, water rights, etc. cd. Phasing. If improvements will be phased, a phasing plan must be provided including proposed financing methods and responsibilities. de. Cash-in-lieu and Improvements-in-lieu. If the development includes a proposal for cash-in-lieu or improvements-in-lieu of park a specific justification responding to the cash- in-lieu review factors established by resolution of the city commission. If improvements-in-lieu are proposed specific costs of proposed improvements and costs to install must be provided. 1517. Neighborhood center plan. A neighborhood center plan must be prepared and submitted for all subdivisions containing a neighborhood center. 1618. Lighting plan. The following subdivision lighting information must be submitted for all new subdivisions development where lighting is proposed other than within the street right of way: a. For subdivision applications where lighting is required or proposed, l ighting plans must be submitted to the city for review and approval, and must include: 320 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 27 of 78 (1) Isofootcandle plots for individual fixture installations, and ten-foot by ten- foot illuminance-grid plots for multifixture installations, which demonstrate compliance with the intensity and uniformity requirements as set forth in this chapter. (2) Description of the proposed equipment, including fixture manufacturer's cutsheets, photometrics, glare reduction devices, lamps, on/off control devices, mounting heights, pole foundation details and mounting methods. (3) The lighting plan must be prepared, and certified for compliance with the city's design requirements and illumination standards, by a qualified lighting professional. Qualified lighting professionals include electrical engineers, architects, lighting designers and manufacturers representatives. (4) Lighting calculations may include only the illuminated areas; areas occupied by buildings or other nonlighted areas must be excluded from calculations. Proposed fixture locations, types, source of power, and demonstration of compliance with city lighting standards. b. When requested by the city, the applicant must also submit a visual-impact plan that demonstrates appropriate steps have been taken to mitigate on-site and off- site glare and to retain the city's character. c. Post-approval alterations to lighting plans or intended substitutions for approved lighting must only be made after city review and approval. 1719. Miscellaneous. a. Public lands. Describe how the subdivision will affect access to any public lands. Where public lands are adjacent to or within 200 feet of the proposed development, describe present and anticipated uses for those lands (e.g., open space, recreation, etc.), and how public access will be preserved/enhanced. b. Hazards. Describe any health or safety hazards on or near the subdivision, such as mining activity or potential subsidence, high pressure gas lines, dilapidated structures or high voltage power lines. Any such conditions must be accurately described and their origin and location identified. List any provisions that will be made to mitigate these hazards. Also describe any on-site or off-site land uses creating a nuisance. c. Wildlands-urban interface. Describe the subdivision's location within or proximity to the wildlands-urban interface (WUI) and ember zone designated by the most recent city-adopted hazard mitigation plan. Describe any hazard from the subdivision's proximity to the WUI. List any provisions that will be used to mitigate these hazards and reduce structure ignitability. 1820. Affordable housing. Describe how the subdivision will integrate with satisfy the requirements of division 38.380. The description must be of adequate detail to clearly identify those lots complying withdesignated as subject to division 38.380 compliance 321 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 28 of 78 requirements and to make the obligations placed on the affected lots readily understandable. a. On all lots intended to comply with be used to satisfy the requirements of division 38.380, the allowable building envelope must be depicted. 19. A description of how the proposed subdivision advances the adopted growth policy. Section 9 That Section 38.220.070 of the Bozeman Municipal Code be amended as follows: Sec. 38.220.070. Final plat. A. The following materials must be provided with each application for final plat approval. Materials must be provided in the number of copies and form established by the director of community development. 1. The developer must submit with the application for final plat review and approval, a written narrative stating how each of the conditions of preliminary plat approval and noted code provisions or other demonstrations of compliance with standards have been satisfactorily addressed. This narrative must be in sufficient detail to direct the reviewer to the appropriate plat, plan, sheet, note, covenant, etc. in the submittal. 21. A letter from the city engineer certifying that the following documents have been received: a. As-built drawings, i.e., copies of final plans, profiles, grades and specifications for public improvements, including a complete grading and drainage plan; and/or b. Approved and executed concurrent construction plan or improvements agreement. bc. Copy of the state highway access or encroachment permit where a street created by the plat will intersect with a state highway. 32. Noxious weed MOU. Prior to final plat approval, a memorandum of understanding must be entered into by the weed control district and the developer. The memorandum of understanding must be signed by the district and the developer prior to final plat approval, and a copy of the signed document must be submitted to the community development department with the application for final plat approval. 43. Final park plan. For all land used to meet parkland dedication requirements, a final park plan must be submitted to the city for review and approval prior to final plat. The final park plan must include all of the information listed in section 38.220.060.A.1516 and must include evidence of compliance with the installation requirements of division 38.270. 54. Irrigation system as-builts. The developer must provide irrigation system as-builts, for all irrigation installed in public rights-of-way and/or land used to meet parkland dedication requirements, once the irrigation system is installed. The as-builts must 322 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 29 of 78 include the exact locations and type of lines, including accurate depth, water source, heads, electric valves, quick couplers, drains and control box. 65. Affordable housing. If the plat has used the provisions of division 38.380, Tthe developer must provide a description of how the subdivision has complied with division 38.380. The description must be of adequate detail to clearly identify those lots designated as subject to division 38.380 compliance requirements and to make the obligations placed on the affected lots readily understandable. 76. Conditions of approval. A sheet(s) of the plat depicting conformance with subdivision application approval must be submitted as set forth in 24.183.1107 ARM as may be amended and as required by the county clerk and recorder, and must: a. Be entitled "Conditions of Approval of [insert name of subdivision]" with a title block including the quarter-section, section, township, range, principal meridian, county, and, if applicable, city or town in which the subdivision is located. b. Contain any text and/or graphic representations of requirements by the governing body for final plat approval including, but not limited to, setbacks from streams or riparian areas, floodplain boundaries, no-build areas, building envelopes, or the use of particular parcels. c. Include a certification statement by the landowner that the text and/or graphics shown on the conditions of approval sheet(s) represent(s) requirements by the governing body for final plat approval and that all conditions of subdivision application have been satisfied. d. Include a notation stating that the information shown is current as of the date of the certification, and that changes to any land-use restrictions or encumbrances may be made by amendments to covenants, zoning regulations, easements, or other documents as allowed by law or by local regulations. e. Include a notation stating that buyers of property should ensure that they have obtained and reviewed all sheets of the plat and all documents recorded and filed in conjunction with the plat, and that buyers of property are strongly encouraged to contact the local community development department and become informed of any limitations on the use of the property prior to closing. f. List all associated recorded documents and recorded document numbers. g. Include a tabulation of parkland credit for the entire subdivision and attributed to each lot. h. Include a tabulation of open space. i. List easements, including easements for agricultural water user facilities. 87. Documents. The following documents must accompany the final plat: a. A title report or certificate of a title abstractorsubdivision guarantee per MCA 76- 3-612; b. Any covenants or deed restrictions relating to the subdivision; 323 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 30 of 78 c. The security required pursuant to section 38.270.060, securing the future construction of any remaining private or public improvements to be installed; d. Unless otherwise provided in this chapter, copies of final plans, profiles, grades, and specifications for improvements, including a complete grading and drainage plan, with the certification of a professional engineer that all required improvements which have been installed are in conformance with the attached plans. The subdivider must file copies of final plans, profiles, grades, and specifications for improvements, including a complete grading and drainage plan, with the certification of a professional engineer that all required improvements which have been installed are in conformance with the attached plans, with the city engineering division, of the department of public works and the city parks department. A statement must be included on the conditions of approval sheet stating where the plans can be obtained; e. If a street, alley, avenue, road, or highway created by the plat will intersect with a state or federal right-of-way, a copy of the access or encroachment permit; f. A title report or certificate of a title abstractor subdivision guarantee for any off- site land intended to satisfy park dedication requirements. The subdivision guarantee must be dated no earlier than 30 calendar days prior to submittal.; g. Any deeds and real estate transfer certificate, or other documents for transfer of land and/or improvements to the city or the property owners' association or other entity; h. Any deeds or documents for transfer of water rights; including but not limited to all required state department of natural resources and conservation documentation, e.g. ownership update form, permit, groundwater certificate and/or change authorization; and i. Any other documents satisfying subdivision application approval required by the governing body to be filed or recorded. 9. For non-public improvements, the developer must provide certification by the architect, landscape architect, engineer or other applicable professional that all improvements, including, but not limited to, landscaping, ADA accessibility requirements, private infrastructure, and other required elements were installed in accordance with the approved plans and specifications, or plat as applicable, unless a waiver of certification in whole or part is explicitly approved by the DRC. 8. The developer must submit with the application for final plat review and approval, a written narrative stating how each of the conditions of preliminary plat approval and noted code provisions have been satisfactorily addressed. This narrative must be in sufficient detail to direct the reviewer to the appropriate plat, plan, sheet, note, covenant, etc. in the submittal. 324 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 31 of 78 Section 10 That Division 38.220 Part 2 of the Bozeman Municipal Code be amended as follows: Sec. 38.220.300. General. When required, the supplementary documents described in this division, must be submitted in draft form with the preliminary plat or plan, and signed and notarized with the final plat or plan. The proper notary block must be used. Sec. 38.220.310. Property owners' association. A. The City must approve the governing documents or amendments to the governing documents of a subdivision or other development if as part of the approval the city required the governing documents to include provisions that directly and materially address a condition of approval or other adopted standards related to the development including but not limited to 38.270.090. BA. When ApplicableGeneral. If the review authority determines a common area or open space, facility, or any other infrastructure is to be created or constructed as part of the development and such common area or open space, facility, or infrastructure is required to be either owned by or maintained by the property owners' association the developer must provide supplemental documents, as applicable, that (i) transfer ownership of common area, facility, or infrastructure to the property owners' association; (ii) provide for the perpetual maintenance of common area, facility, or infrastructure by the property owners' association; and (iii) identify if access to the common area open space or facility is available to the public or is restricted to the members of the property owners' association. Property owners' association bylaws or the declaration of covenants, conditions and restrictions must be prepared and recorded with the final plat or plan. CB. Bylaws or covenants, conditions and restrictions contents. The items listed below are required to be included in the property owners' association bylaws or declaration of covenants, conditions and restrictions and must be clearly identified within the documents. The covenants must at a minimum, provide: 1. The property owners' association will be formed before any properties are sold. 2. Membership is automatic and mandatory for each property or unit buyer and any subsequent buyer. 3. Means of enforcing the covenants, and of receiving and processing complaints. 4. Common area and facilities must be perpetually reserved. 5. The association is responsible for liability insurance, any applicable tax assessments and the maintenance of any common area or facilities. 325 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 32 of 78 6. Property or unit owners must pay a pro rata share of the cost of any common expenses, with any assessment charged by the association becoming a lien where necessary on individual parcels. 7. The association may adjust the assessment to meet changed needs. 8. The conditions and timing of the transfer of ownership and control of common areas and facilities from the declarant to the association. 9. The permission of the city commission is required before the association can be dissolved or the boundaries altered. 10. Regular maintenance program for items included in section 38.270.090.A and any other common area and facilities and that the association is responsible for the maintenance program. DC. If the property owners' association fails to install or maintain improvements according to approved plans, the city may, at its option, complete construction of improvements and/or maintain improvements in compliance with section 38.220.320200 and division 38.270 of this chapter. The city's representative, contractors and engineers must have the right to enter upon the property and perform such work, and the property owners' association must permit and secure any additional permission required to enable them to do so. The city will bill the property owners' association for any costs associated with the installation or maintenance of improvements. D. For a multiphase project, the property owners' association must be created for the entire project with the first phase. E. To ensure continued maintenance of common areas and facilities, and on-going fulfillment of all obligations no property may be removed from the property owners' association without prior approval by the city commission. Sec. 38.220.320. Covenants. A. The city may require covenants to be recorded with the final plat or condominium when it is determined they are necessary for the protection of the public health, safety and general welfare and compliance with conditions of approval or compliance with standards including but not limited to 38.270.090. Review of covenants must comply with section 38.240.150.A.3. All covenants must be considered to run with the land. If the covenants are not marked or noted on the final subdivision plat or other final approval document, they must be contained in a separate instrument which must be recorded with the final plat or prior to final approval of other applications. The covenants may be required to include, but are not limited to, the following provisions: 1. That all county declared noxious weeds will be controlled as required in MCA Title 7, Chapter 22, Part 21. 2. A section addressing agricultural uses of neighboring properties in the following form: 326 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 33 of 78 "Lot owners and residents of the subdivision are informed that adjacent uses may be agricultural. Lot owners accept and are aware that standard agricultural and farming practices can result in dust, animal odors and noise, smoke, flies, and machinery noise. Standard agricultural practices feature the use of heavy equipment, chemical sprays and the use of machinery early in the morning and sometimes late into the evening." 3. That all fences bordering agricultural lands must be maintained by the landowners in accordance with MCA Title 70 Chapter 16 Part 2, Title 81 Chapter 4 Part 1, or other relevant state law. 4. That any covenant which is required as a condition of the preliminary plat approval or other development and required by the city commission may not be amended or revoked without the mutual consent of the owners in accordance with the amendment procedures in the covenants, and the city commission. 5. Common area and facility maintenance plan. The developer must submit a legal instrument setting forth a plan consistent with 38.270.090 providing for the permanent care and maintenance of common areas and facilities. The same must be submitted to the city attorney and must not be accepted by the city until approved as to legal form and effect. Common areas and facilities must be deeded to a property owners' association and, the applicant must record the proposed documents governing the association at the time of final plat filing. Creation of a special maintenance district satisfies this requirement. 6. Common area and facility maintenance guarantee and process. In the event the organization or any successor organization established to own and maintain common areas and facilities, must at any time fail to maintain the common areas or facilities in reasonable order and condition in accordance with the approved plan, the city may cause written notice to be served upon such organization or upon the owners of property in the development. The written notice must set forth the manner in which the common areas or facilities have failed to be maintained in reasonable condition. In addition, the notice must include the demand that the deficiencies noted be cured within 30 days thereafter and must state the date and place of a public meeting to be held within 14 days of the notice. At the time of public meeting, the city commission may modify the terms of the original notice as to deficiencies and may extend the time within which the same may be cured. If the deficiencies set forth in the original notice or modifications are not cured within the time set, the city may enter upon such common facilities and maintain the same for a period of one year, in order to preserve the taxable values of properties within the development and to prevent the common facilities from becoming a public nuisance. Such entry and maintenance must not vest in the public any right to use the common facilities not dedicated to public use. Before the one year period expires, the commission must, upon its own initiative or upon written request of the organization theretofore responsible for maintenance, call a public meeting and give notice of such meeting to the organization responsible for maintenance or the property owners' of the development. At the meeting, the organization responsible for maintenance and/or the residents of the development may show cause why maintenance by the city should not be continued for a succeeding 327 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 34 of 78 year. If the city commission determines that it is not necessary for the city to continue such maintenance, the city must cease such maintenance at the time established by the city commission. Otherwise the city must continue maintenance for the next succeeding year subject to a similar meeting and determination at the end of each year thereafter. a. The cost of maintenance by the city must be a lien against the common facilities of the development and the private properties within the development. The city commission must have the right to make assessments against properties in the development on the same basis that the organization responsible for maintenance of the facilities could make such assessments. Any unpaid assessment must be a lien against the property responsible for the same, enforceable the same as a mortgage against such property. The city may further foreclose its lien on the common facility by certifying the same to the county treasurer for collection as in the case of collection of general property taxes. b. Should the property owners' association request that the city assume permanent responsibility for maintenance of facilities, all facilities must be brought to city standards prior to the city assuming responsibility. The assumption of responsibility must be by action of the city commission and all costs to bring facilities to city standards must be the responsibility of the property owners' association. The city may create special financing mechanisms so that those properties within the area affected by the property owners' association continue to bear the costs of maintenance. c. The city must assume permanent responsibility for maintenance of public areas and facilities when a dedicated funding mechanism is adopted. 7. Guarantee for open space preservation. Open space shown on the approved final plan or in the approved plat application must not be used for the construction of any structures not shown on the final plan. 8. Covenants may not contain provisions which inhibit compliance with the requirements of division 38.380, for those developments subject to division 38.380. Some examples are: privately required minimum home or lot sizes which cannot be met. 89. Covenants and condominium declaration documents must require condominiums to be assigned street addresses in compliance with chapter 10, article 7 BMC. Addressing must not use X or other generic statements. Draft documents submitted for review prior to final approval must include correct addresses. 910. Stormwater facilities maintenance as required by chapter 40 article 4 BMC. 328 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 35 of 78 Section 11 That Section 38.220.420 of the Bozeman Municipal Code be amended as follows: Sec. 38.220.420. Notice requirements for application processing. A. The following minimum standards for timing, location of noticing area and type of notice must be provided. 1. Noticing provisions are cumulative with the maximum combination of noticing requirements being provided. When more than one newspaper notice is required, only one of the required publication dates must fall within the minimum and maximum days required. Newspaper publications for public hearings follow the requirements of MCA 7-1-4127 in addition to the requirements of Table 38.220.420. 2. Distance in Table 38.220.420 is the distance from the exterior property boundary of the site to all or part of another parcel of land whose owners must be notified of a governmental action. This distance includes the width of a right-of-way or other public ownership. 3. Notice must be provided not less than 15 or more than 45 calendar days prior to the close of the public comment period or public hearing unless otherwise specified in this chapter. 4. Mail by first class or certified mail is to all landowners within 200 feet. 5. For all developments in Table 38.220.040 which require mailed notice, the applicant must provide a list of names and addresses of all property owners, including names and addresses of owners of individual condominiums, wholly or partially within 200 feet of the site. The list must be drawn from the most current known property owners of record as shown in the records of the county clerk and recorder's office. Where certified mail is required separate mailing labels may also be required. 6. The community development director will establish procedures for mailing notice. 7. The applicant is responsible for mailing notice. The city will provide the notice to the applicant for duplication not less than four days prior to the notice period. The notice must be distributed such that notices are submitted to the United States Postal Service at least two days before the beginning of the notice period. The return address on the envelopes must be the mailing address established by the community development director. B. If for some reason a required property owner fails to receive mail notification of a scheduled public hearing or other public comment opportunity, or if one or more of the required posted signs in the area or on the site for which the public hearing or other public comment opportunity is being held is inadvertently moved through no fault of the city, this in no way invalidates the legal notice requirements of the scheduled public hearing or other public comment opportunity. C. Notice may also be provided to property owners' in any additional area that may be substantially impacted by an application the proposed change or use as determined by the 329 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 36 of 78 community development director. The community development director may use other means in addition to posting, mailing, or publication to provide notice. D. Notice is not required for final plans and final plats. D. 1. For all developments in Table 38.220.040 which require mailed notice, the applicant must provide a list of names and addresses of all property owners, including names and addresses of owners of individual condominiums, wholly or partially within 200 feet of the site. The list must be drawn from the most current known property owners of record as shown in the records of the county clerk and recorder's office. Where certified mail is required separate mailing labels may also be required. 2. The community development director will establish procedures for mailing notice. 3. The applicant is responsible for mailing notice. The city will provide the notice to the applicant for duplication not less than four days prior to the notice period. The notice must be distributed such that notices are submitted to the United States Postal Service at least two days before the beginning of the notice period. The return address on the envelopes must be the mailing address established by the community development director. Table 38.220.420 Minimum standards for timing, location of noticing area and type of notice. Application Minimum Days12 Maximum Days12 Distance1 Notice Type Text amendment 15 45 NA Newspaper once Zone Map Amendment2 - rezoning or with annexation 15 45 200 Newspaper once, post on-site, mail 1st class Zone Map AAmendment2 - Resulting from ordinance changes 15 45 None Newspaper once ZMA2 - Annexation w/ initial zoning 15 45 None Newspaper once, post on-site, mail 1st class Variance -– Floodplain and, zoning, and subdivision 15 45 200 Newspaper once (zoning 2 times), post on-site, mail 1st class 330 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 37 of 78 Noticing for 76-2-402, MCA claims 15 45 None Newspaper 2 times, post on-site Deviation 15 45 200 Newspaper 2 times, post on-site, mail 1st class Appeals of Administrative Project Decisions3 15 45 2003 Newspaper 2 times, post on-site, mail 1st class Appeals of Administrative Interpretations None Newspaper Sketch plan/reuse/change in use/further development None None None None Sketch plans for adding dwellings in the neighborhood conservation overlay district, demolition of historic structures as defined in article 7 of this chapter, or modification of wetlands. Sketch plan4 15 45 None Post on-site Informal/concept plan None None None None Preliminary site plan and master site plan 15 45 200 Post on-site, mail 1st class Preliminary Planned Unit Development5 15 45 200 Newspaper 2 times, post on-site, mail 1st class Preliminary Conditional Use Permit6 / Special Use Permit13 15 45 200 Newspaper 2 times, post on-site, mail 1st class Floodplain permit 15 45 200 Newspaper, mail 1st class 331 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 38 of 78 Certificate Of Appropriateness7 None None None None Final site plan None None None None Final PUD plan None None None None Final CUP plan None None None None Subdivision exemption None None None None Subdivision subject to 76-3- 616 including subdivision variances 200 Post on-site, mail 1st class Subdivision subject to 76-3- 623 including subdivision variances 200 Newspaper , post on-site, certified mail to adjacent owners, mail 1st class all others 1st minor subdivision without variance - preliminary plat/ Extensions of subdivision approvals beyond two years 15 45 200 Mail 1st class 1st minor subdivision with variance/2nd minor/major subdivision/expedited subdivision - Preliminary plat 15 (Planning Board) 45(Commission) 200 Newspaper8 , post on-site, mail 1st class9 , certified mail10 Final plat None None None None Notice of violation per 38.200.16011 15 45 None Post on-site, cCertified mail to landowner Notes: 332 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 39 of 78 1. The distance from the exterior property boundary of the site to all or part of another parcel of land whose owners must be notified of a governmental action. This distance includes the width of a right-of-way or other public ownership. 2. Zone map amendment, division 38.260 of this chapter. 3. Posting and mailing only applies to appeals taken from actions to approve, approve with conditions or deny a development proposal and not to appeals of administrative interpretations. 4. Sketch plans for adding dwellings in the neighborhood conservation overlay district, demolition of historic structures as defined in article 7 of this chapter, or modification of wetlands. 5. Planned unit development, division 38.430 of this chapter. 6. Conditional use permit, division 38.230 of this chapter. 7. Certificate of appropriateness, division 38.340 of this chapter. 8. When newspaper notice is required the notice must be published in a newspaper of general circulation. reserved 9. Mail by first class to all landowners within 200 feet except those subject to certified mail. When a condominium includes land within the 200 foot distance all owners in the condominium are included in the noticing, not only those units within 200 feet. 10. Certified mail must be sent to recorded purchasers under contract for deed in addition to owners of physically contiguous property and the subdivider. reserved 11. Notices of violation subject to section 38.200.160. 12. Days prior to the close of the public comment period or public hearing unless otherwise specified in this chapter. 13. Special use permit, section 38.230.120 of this chapter. Section 12 That Division 38.240 Part 1 of the Bozeman Municipal Code be amended as follows: DIVISION 38.240. SUBDIVISION PROCEDURES Part 1. Subdivision and Platting Administrative Procedures Sec. 38.240.010. Transfers of title. A. Unless the plat is located in an area where the state or the city does not have jurisdiction, no transfer of title may occur except as allowed in MCA 76-3-301, 76-3-302, and 76-3-303. every final subdivision plat must be filed for record with the county clerk and recorder before title to the subdivided land can be sold or transferred in any manner. After a 333 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 40 of 78 preliminary subdivision plat has been approved or conditionally approved, the developer may enter into contracts to sell lots in the proposed subdivision if all of the following conditions are met: 1. Under the terms of the contracts, the purchasers of lots in the proposed subdivision must make any payments to an escrow agent which must be a bank or savings and loan association chartered to do business in the state; 2. Under the terms of the contracts and the escrow agreement, the payments made by purchasers of lots in the proposed subdivision may not be distributed by the escrow agent to the developer until the final plat of the subdivision is filed and of record with the county clerk and recorder; 3. The contracts and the escrow agreement provide that if the final plat of the proposed subdivision is not filed with the county clerk and recorder within two years of the preliminary plat approval, the escrow agent must immediately refund to each purchaser any payment made under the contract; 4. The county treasurer has certified that no real property taxes and special assessments assessed and levied on the land to be divided are delinquent; and 5. The contracts must contain the following language conspicuously set out therein: "The real property which is the subject hereof has not been finally platted, and until a final plat identifying the property has been filed with the county clerk and recorder, title to the property cannot be transferred in any manner." B. Unless the plat is located in an area where the state or the city does not have jurisdiction, the county clerk and recorder may not record any instrument that purports to transfer title to a parcel or tract of land that is required to be surveyed by the Montana Subdivision and Platting Act (MCA 76-3-101 et seq.) unless the required certificate of survey or subdivision plat has been filed with the county clerk and recorder and the instrument of transfer describes the parcel or tract by reference to the filed certificate or plat. This provision does not apply if the parcel or tract to be transferred was created before July 1, 1973, and the instrument of transfer for the parcel or tract includes a reference to a previously recorded instrument of transfer or is accompanied by documents that, if recorded, would otherwise satisfy the requirements of this subsection B. The reference or document must demonstrate that the parcel or tract existed before July 1, 1973. However, these references or documents do not constitute a legal description of the property and may not be substituted for a legal description of the property. Sec. 38.240.020. Effect of recording complying plat. The recording of any plat made in compliance with the Montana Subdivision and Platting Act (MCA 76-3-101 et seq.) has the effects established in MCA 76-3-304. serves to establish the identity of all lands shown on and being a part of such plat. Where lands are conveyed by reference to a plat, the plat itself or any copy of the plat, properly certified by the county clerk and recorder as being a true copy thereof, must be regarded as incorporated into the instrument of conveyance and must be received in evidence in all courts of this state. 334 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 41 of 78 Sec. 38.240.030. Correction of errors, amendments or vacation of recorded final plats. A. Correction of errors. Correction of errors by private parties that, in the opinion of the city, will not materially alter the plat may be made by the submission of a corrected final plat for the city's approval per 38.240.160. The plat may be filed under the procedures for first minor subdivision plats. The plat must be entitled "amended plat of the (name of subdivision) subdivision," and the reason for the correction must be stated on the face of the plat. B. Material alterations. Amendments that materially alter the final plat, or any portion thereof, must be made by the filing of an amended plat showing all alterations. The amended plat must be approved by the city under the major or minor subdivision review procedure as if it were a new application, as is appropriate. Prior to such approval, the amended plat must be reviewed by the community development department. The city may not approve an amendment which will place the plat in nonconformance with any applicable the standards contained herein unless a public hearing is held on the plat and a written variance from the standards approved issued pursuant to the procedures contained herein for such variances is granted. The plat must be entitled "amended plat of (the name) subdivision," and the reason for the amendment must be stated on the face of the plat. C. Vacating recorded plats. Any plat prepared and recorded as provided by this chapter may be vacated, in whole or in part, as provided by MCA 76-3-305. by MCA 7-5-2501, 7-5-2502, 7-14-2616(1) and (2), 7-14-2617, 7-14-4114(1) and (2), and 7-14-4115. Upon vacation, the city, or the district court, as provided in MCA 7-5-2502, must determine to which properties the title to the streets and alleys of the vacated portions must revert. The city, or the district court, as provided in MCA 7-5-2502, must take into consideration the previous platting; the manner in which the right-of-way was originally dedicated, granted or conveyed; the reasons stated in the petition requesting the vacation; the parties requesting the vacation; and any agreements between the adjacent property owners' regarding the use of the vacated area. The title to the streets and alleys of the vacated portions may revert to one or more of the owners of the properties within the platted area adjacent to the vacated portions. 1. Utility easements. When any poleline, pipeline or any other public or private facility is located in a vacated street or alley at the time of the reversion of the title to the vacated street or alley, the owner of the public or private utility facility has an easement over the vacated land to continue the operation and maintenance of the public or private utility facility. Sec. 38.240.040. Correction of recorded plat by governing body. When a recorded plat does not definitely show the location or size of lots or blocks, or the location or width of any street or alley, the city may at its own expense cause a new and correct survey and plat to be made and recorded in the office of the county clerk and recorder. The corrected plat must, to the extent possible, follow the plan of the original survey and plat. The surveyor making the resurvey must endorse the corrected plat referring to the original plat, and 335 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 42 of 78 noting the defect existing therein and the corrections made.Under the circumstances set in MCA 76-3-614 the City Commission may require correction of a recorded plat. Sec. 38.240.050. Disposition of water rights. A. When a subdivision creates parcels with lot sizes averaging less than five acres, the developer must address disposition of water rights as required in MCA 76-3-504.: 1. Reserve all or a portion of the appropriation water rights owned by the owner of the land to be subdivided and transfer the water rights to a single entity for use by the landowners within the subdivision who have a legal right to the water and reserve and sever any remaining surface water rights from the land; 2. If the land to be subdivided is subject to a contract or interest in a public or private entity formed to provide the use of a water right on the subdivision lots, establish a landowner's water use agreement administered through a single entity that specifies administration and the rights and responsibilities of landowners within the subdivision who have a legal right and access to the water; or 3. Reserve and sever all surface water rights from the land proposed for subdivision. Section 13 That Division 38.240 Part 2 of the Bozeman Municipal Code be amended as follows: DIVISION 38.240. SUBDIVISION PROCEDURES Part 2. Review Procedures for Subdivisions Sec. 38.240.100. General review procedure. Every plat of subdivision must be reviewed, approved by the City Commission and filed for record with the county clerk and recorder in accordance with the procedures contained herein before title to the subdivided land can be sold or transferred in any manner. The applicant must identify the review procedure they intend to use as part of the initial application for preliminary plat. When determining the number of lots in a subdivision all created parcels including park and utility lots count towards the total number of lots. Subdivisions containing six or more lots are considered major subdivisions. A subdivision containing five or fewer lots, in which proper access to all lots is provided and in which no land is to be dedicated to public use for parks and playgrounds, is a minor subdivision. 336 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 43 of 78 Subdivision Type Pre- application Review Required Element and Sufficiency Review Required Preliminary Plat Review Period After Sufficiency Public Hearing Held By Review Authority Expedited Subdivision per 76-3-623 All Type Yes Yes 35 working days City Commission City Commission Subdivisions Subject to 76-3-616 1st Minor Yes Yes 35 working days None City Commission 2nd or Subsequent Minor Yes Yes 60 working days None City Commission Major – 6-50 lots Yes Yes 60 working days None City Commission Major >50 lots Yes Yes 80 working days None City Commission Phased Development Per 76-3-617 MCA Any Type Yes Yes 30 working days City Commission City Commission Sec. 38.240.110. Presubmittal meeting and pPre-application plan review. A. The purpose of a pre-application plan review is to discuss this chapter and these other applicable standards, to familiarize the developer with the standards, goals and objectives of applicable plans, regulations and ordinances, and to discuss the proposed subdivision as it relates to these matters. 1. Minor All subdivisions. Prior to the submittal of a subdivision application for a minor subdivision, the developer must submit an application for subdivision pre-application review. 2. Major subdivisions. Prior to the submittal of a subdivision application for a major subdivision, the developer must submit an application for subdivision pre-application review. The developer is encouraged to have a presubmittal meeting with the community development department prior to submitting a subdivision pre-application. 23. Pre-application plan review. For subdivision pre-application review, the developer must submit a complete application for pre-application plan review, the appropriate 337 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 44 of 78 review fee, and copies of all required pre-application information as set forth in section 38.220.030. a. Community development department City review. The community development department coordinates the review within the City and with outside agencies. must review the pre-application plan and advise the developer as to whether the plans and data meet the goals and objectives of applicable plans and this chapter. (1) Agency review. The community development department will distribute the pre-application information to appropriate county and city departments and state and federal agencies for review and written comment. All written comments received from various agencies, along with the community development department's comments regarding whether the plans and data meet the standards, goals and objectives of applicable plans, ordinances, and this chapter, and for informational purposes identification of local regulations, state laws, and growth policy provisions that may apply to the subdivision process, will be forwarded to the applicant to aid in the preparation of the subdivision application. The community development department must provide a list of the public utilities, agencies of government, and other parties who may be contacted and their timeframes for comment on the subdivision application. The comments collected by the community development department must be provided in person or by letter to the subdivider or their agent within 30 working days of a complete application being received by the city. The 30 working day review period is met if the letter is dated, signed and placed in the outgoing mail within the 30 working day review period. (2). The applicant may request a waiver from information required to be submitted with a preliminary plat. In order to be granted a waiver the applicant must include with the submission of the subdivision pre- application a written statement describing the requested waiver and the reasons upon which the request is based. All waivers must be initially identified with the pre-application stage of review. The DRC is responsible for granting waivers, and the community development department staff must notify the developer in writing of any waivers granted from section 38.220.060 after the pre-application review. Information not waived at the time of pre-application must be provided with the preliminary plat application. (32) Time for review. The community development department must review the pre-application plan and within 30 working days advise the developer as to whether the plans and data meet the goals and objectives of applicable plans and this chapter. Every effort must be made by the community development department to obtain department and agency comment within this time period. b. Optional planning board review. If the developer so wishes, the developer may request in writing that the planning board review pre-application plans. The letter 338 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 45 of 78 of request and additional copies of the pre-application materials are required for this optional review. (1) The request must be received at least 320 working days prior to the planning board meeting at which it is to be considered. The application will be submitted to the planning board at their next available meeting. A copy of the approved minutes of the planning board meeting will be forwarded to the developer. Comments are advisory and are not binding or limiting on the City’s review of any subsequent subdivision application. c. Time for follow-up submittal. A complete subdivision preliminary plat application must be submitted to the community development department within one calendar year of the date the planning office dates, signs and places the letter in the outgoing mail or sends the letter via electronically mail. d. The property owner will not receive No formal written notification on the acceptability or adequacy of a subdivision pre-application plan submittal is provided. Written comments as to applicability of standards, requested waivers, required corrections, and procedures will be provided at the conclusion of the review. Written comments may be provided electronically. Sec. 38.240.120. Concurrent Montana Subdivision and Platting Act and Sanitation and Subdivision Act review. For Sanitation and Subdivision Act review, the developer has the option of submitting a state department of environmental quality (DEQ)/local government joint application form in the place of a preliminary plat application form, and to request concurrent subdivision review by the state department of environmental quality and the city, pursuant to MCA 76-4-129. Subdivisions granted the exemption from sanitation review authorized in MCA 76-4-127 do not need to use this provision. Sec. 38.240.130. Preliminary plat – All Subdivisions Agency Review. A. After the requirement for a pre-application review has been satisfied, the developer may submit a subdivision application within one year of the date of the city's written comments as required by section 38.240.110.A.3.a(2). Subdivision applications must be submitted, along with the appropriate review fee and all required subdivision application information as set forth in division 38.220 of this chapter to the community development department and must conform to the requirements of this chapter. The preliminary plat must be prepared by a surveyor licensed to practice in the state. 1. Acceptability and adequacy Element and sufficiency review of application. The City shall complete the review for required elements and sufficiency as required in MCA 76-3-604. The working days specified in 76-3-604 are met if the written communication is dated and placed in the outgoing US mail, or sent electronically, within the required time. The time limits in subsections 1.a and b of this section apply 339 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 46 of 78 to each successive submittal of the application until a determination is made that the application contains the required materials and is adequate for review and the subdivider or their agent is notified. a. The community development department must review a subdivision application within five working days of receipt of the application and applicable fee. A subdivision application is considered to be received on the date of delivery to the reviewing agency if it is accompanied by the applicable review fee. An application is acceptable only if it contains all of the information required by this chapter. If the application is unacceptable, the application, and a written explanation of why the application is unacceptable will be returned to the subdivider. If the application is acceptable the subdivider must be so notified. The property owner may designate in writing another party to receive notifications regarding acceptability. The five working day review period is met if the letter is dated, signed and placed in the outgoing mail within the five working day review period. If the applicant chooses to withdraw the application, the applicant may request a refund if procedures for such have been created in the administrative manual adopted by the director of community development. Subsequent resubmittal must require payment of a review fee as if it were a new application. b. After the application is deemed acceptable it must be reviewed for adequacy. The review for adequacy must be conducted by the appropriate agency with expertise in the subject matter. The adequacy review period begins on the next working day after the date that the community development department determines the application is acceptable and sends the required notice to the subdivider; and must be completed within not more than 15 working days. The 15 working day review period is met if the letter is dated, signed and placed in the outgoing mail within the 15 working day review period. If the application is inadequate, a written explanation of why the application is inadequate will be returned to the subdivider. If the application is adequate the subdivider must be so notified. The property owner may designate in writing another party to receive notifications regarding adequacy. (1) The City must notify the applicant if required information is missing from the application. In the event the missing information is not received by the city and the applicant has not provided an alternate schedule for timely submittal of the required information within 15 30 working days of notification to the subdivider of inadequacy, the City may declare the application unreviewable and terminate the review. all application materials except the city's file record copy must be returned to the subdivider or their representative. Subsequent resubmittal will require payment of a review fee as if it were a new application. (12) A determination that an application is adequate does not restrict the city from requesting additional information during the subdivision review process. A determination of adequacy establishes the applicable review criteria as specified in section 38.200.080.A. 340 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 47 of 78 c. At the time of the pre-application review, Tthe DRC may grant reasonable waivers from submittal of application materials required by these regulations where it is found that these regulations allow a waiver to be requested and granted. If in the opinion of the final approval authority the waived materials are necessary for proper review of the development, the materials must be provided before review is completed. 2. Review by affected agencies. After an application is deemed acceptable, the community development department may submit copiesprovide the contents of the preliminary plat and supplementary information to relevant public utilities and public agencies for review and comment, and for major subdivisions to the planning board for its advice pertaining to the approval or denial of the subdivision application. Review by public agencies or utilities must not delay the city commission's consideration of the subdivision application beyond the statutorily specified review period. If the community development department must request review by a public utility, agency of government, and other parties regarding the subdivision application that was not identified during the pre-application review the community development department must notify the subdivider. 38.240.140 Subdivision Notice and Public Comment A. All subdivisions require notice and opportunity for public comment. Not all subdivisions require a public hearing. Notice of subdivision is provided as required in 38.220 Part 3. a1. Public testimony. All written public comment received at or prior to a public hearing or during a public comment period must be incorporated into the written record of the review. Minutes or a recording must be taken of verbal comment received during any public hearing or public meeting. 23. Planning board review. At a regularly noticed public meetinghearing, the planning board must reviews all major subdivision applications as identified in 38.240.100, together with required supplementary plans and information, and determines whether the plat is in compliance with the city's growth policy. The planning board must hold a public hearing on all major subdivisions. Pursuant to MCA 76-1-107, the planning board has delegated its review of all minor subdivisions from a tract of record to the community development director. a. Public testimony. All written public comment received at or prior to a public hearing must be incorporated into the written record of the review. Minutes must be taken of verbal comment received during the public hearing or public meeting before the planning board and must be incorporated into the written record of the review. Copies of the minutes and written comments must be included in any recommendation made to the city commission by the planning board. b. Planning board recommendation. Within ten working days of their review, the planning board must submit in writing to the city commission its advice regarding compliance with the city's growth policy, and a recommendation for approval, conditional approval or denial of the subdivision application. 341 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 48 of 78 3. If an applicant proposes a phased subdivision per 76-3-617 MCA additional public notice and hearing consistent with 76-3-617 MCA must be conducted. 4. Community development director review. The community development director must review all minor subdivision applications, together with required supplementary plans and information, and determine whether the plat is in compliance with the city's growth policy. The community development director must make a written recommendation including a summary of the agency review and analysis of the review criteria established in this chapter and a recommendation for approval, conditional approval or denial of the subdivision application. a. Public testimony. All written public comment received during the community development director's review must be incorporated into the written record of the review. Copies of written comments must be included in any recommendation made to the city commission by the community development director. 5.38.240.150 City commission review and action. A. The city commission must review and take action on all proposed subdivisions. 1a. The following general review requirements for a public hearing or a public meeting, and for statutory review periods, per 38.240.100 must be met.: 2. The city commission must determine whether public comments or documents presented at or prior to the City Commission’s consideration of a plat constitutes new information as required in MCA 76-3-615. (1) First minor subdivision created from a tract of record. The city commission must consider the subdivision application and the community development director's recommendation during a regular public meeting of the commission. The city commission, when legal and physical access is provided to all lots must approve, conditionally approve or deny the subdivision application of a first minor subdivision within 35 working days of the determination that the application is adequate, unless there is a written extension from the developer for a period not to exceed one year from the date the application was determined to be adequate. A minor subdivision must be reviewed as a second or subsequent minor subdivision if the tract has been previously subdivided or created by a subdivision; or the tract has descended from a tract of record which has previously been divided by exemption or other means into 6 or more tracts of record since July 1, 1973. 3. (a) Variance requests for minor subdivisions. If the developer of a minor subdivision is requesting a variance from any requirement of this chapter, the procedures of section 38.250.080 must be followed except that a public hearing must not be held. (2) Subdivisions eligible for summary review. The city commission must consider the application and the community development director's recommendation during a regular public meeting of the commission. The city commission must approve, conditionally approve or deny a proposed 342 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 49 of 78 subdivision that is eligible for summary review within 35 working days of determination that the application is adequate, unless there is a written extension from the developer. TheA written extension to the required review period may not exceed one year. Minor subdivisions are eligible for summary review if the plat has been approved by the state department of environmental quality whenever approval is required by MCA 76-4-101 et seq. (3) Second or subsequent minor subdivision created from a tract of record. For the second or subsequent minor subdivision created from a tract of record, the city commission must hold a public hearing on the subdivision application. The city commission must approve, conditionally approve or deny the subdivision application of a second or subsequent minor subdivision within 60 working days of the determination that the application is adequate for review, unless there is a written extension from the developer, not to exceed one year from the date the application was determined to be adequate. (4) Major subdivisions. For a major subdivision, the city commission must hold a public hearing on the subdivision application. The city commission must approve, conditionally approve or deny the subdivision application within 60 working days of the determination that the application is adequate for review if the subdivision has less than 50 lots, and within 80 working days of the determination that the application is adequate for review if the subdivision has 50 or more lots, unless there is a written extension from the developer, not to exceed one year from the date the application was determined to be adequate. (5) Public testimony. All written public comment received at a public meeting or public hearing prior to a decision to approval, approve with conditions, or deny a subdivision application must be incorporated into the written record of the review. Minutes must be taken of verbal comments received during the public hearing before the city commission and must be incorporated into the written record of the review maintained by the city. (6) New and credible information. The city commission must determine whether public comments or documents presented to the city commission at a public hearing regarding a subdivision application held pursuant to section 38.240.130.A.5 constitute: (a) Information or analysis of information that was presented at a public hearing held pursuant to section 38.240.130.A.5 that the public has had a reasonable opportunity to examine and on which the public has had a reasonable opportunity to comment; or (b) New information regarding a subdivision application that has never been submitted as evidence or considered by either the city 343 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 50 of 78 commission, planning board or by city staff at a hearing during which the subdivision application was considered. (c) If the city commission determines that the public comments or documents constitute new information not previously considered at a public hearing, the city commission may: (i) Approve, conditionally approve, or deny the proposed subdivision without basing its decision on the new information if the governing body determines that the new information is either irrelevant or not credible; or (ii) Schedule or direct its agent or agency to schedule a subsequent public hearing before the city commission for consideration of only the new information that may have an impact on the findings and conclusions that the governing body will rely upon in making its decision on the proposed subdivision. (iii) In deciding whether the information is both new and credible the city commission must consider: (A) Whether the topic of the information has previously been examined or available for examination at a public hearing on the subdivision application; (B) Whether the information is verifiable, and if applicable developed by a person with professional competency in the subject matter; (C) Whether the information is relevant to a topic within the jurisdiction of the city. (d) If a subsequent public hearing is held to consider new and credible information, the 60 working day review period required in section 38.240.130.A.5 is suspended and the new hearing must be noticed and held within 45 working days of the governing body's determination to schedule a new hearing. After the new hearing, the otherwise applicable time limit for review resumes at the governing body's next scheduled public meeting for which proper notice for the public hearing on the subdivision application can be provided. The governing body may not consider any information regarding the subdivision application that is presented after the hearing when making its decision to approve, conditionally approve, or deny the proposed subdivision. B.b. Criteria for city commission action. The basis for the city commission's decision to approve, conditionally approve or deny the subdivision must be whether the subdivision application, public hearing if required, planning advisory boards and agencies advice and recommendation and additional information demonstrates 344 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 51 of 78 that development of the subdivision complies with this chapter, the city's growth policy, the Montana Subdivision and Platting Act and other adopted state and local ordinances, including, but not limited to, applicable zoning requirements. The city commission may not deny approval of a subdivision based solely on the subdivision's impacts on educational services; or based solely on parcels within the subdivision having been designated as wildland-urban interface parcels by the most recent city-adopted hazard mitigation plan and its supporting documentation. When deciding to approve, conditionally approve or deny a subdivision application, the city commission must: 1.(1) Review the preliminary plat, together with required supplementary plans and information, to determine if it meets the requirements of this chapter, the development standards and policies of the city, the city's growth policy, the Montana Subdivision and Platting Act, and other adopted state laws and local ordinances, including but not limited to applicable zoning requirements. 2.(2) Consider written comments from appropriate public agencies, utilities or other members of the public. 3.(3) Consider the following: (a.) Relevant evidence relating to the public health, safety and welfare; (b.) Other regulations, code provisions or policies in effect in the area of the proposed subdivision; (c.) The recommendation of the advisory bodies; and (d.) Any relevant public commenttestimony. e. Individual phases, existing conditions, and changed circumstances for any phase reviewed under 76-3-617 MCA. 4.(4) When the subdivision does not qualify, pursuant to MCA 76-4-125(2), for the certification established in section 38.240.170100 the city commission may conditionally approve or deny a proposed subdivision as a result of the water and sanitation information provided pursuant to section 38.220.050.A.9. or public comment received pursuant to MCA 76-3-604 on the information provided pursuant to section 38.220.050. A conditional approval or denial must be based on existing subdivision, zoning, or other regulations that the city commission has the authority to enforce. 5.(5) The city may not approve a proposed subdivision if any of the features and improvements, including well isolation zones, of the subdivision encroach onto adjoining private property in a manner that is not otherwise provided for under Title 76, chapters 3 or 4, MCA., or if the well isolation zone of any proposed well to be drilled for the proposed subdivision encroaches onto adjoining private property unless the owner of the private property authorizes the encroachment. For the purposes of this section, "well isolation zone" has the meaning provided in 76-4-102, MCA. 345 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 52 of 78 c. City commission action. If the city commission denies or conditionally approves the subdivision application, it must forward one copy of the plat to the developer accompanied by a letter over the appropriate signature stating the reason for disapproval or enumerating the conditions that must be met to ensure approval of the final plat. This written statement must include: (1) The reason for the denial or condition imposition; (2) The evidence that justifies the denial or condition imposition; and (3) Information regarding the appeal process for the denial or condition imposition. dC. Mitigation. The city commission may require the developer to design the subdivision to reasonably minimize potentially significant adverse impacts identified through the review required by this chapter. The city commission must issue written findings to justify the reasonable mitigation required by this chapter. The city commission may not unreasonably restrict a landowner's ability to develop land, but it is recognized that in some instances the unmitigated impacts of a proposed development may be unacceptable and will preclude approval of the plat. When requiring mitigation under this subsection, the city commission must consult with the developer and must give due weight and consideration to the expressed preference of the developer. eD. Findings of fact. Within 30 working days of the final action to approve, deny, or approve with conditions a subdivision, the city commission must issue written findings of fact as required in 76-3-620 that discuss and weigh the following applicable criteria, as applicable ( pursuant to MCA 76-3-608, 76-3-616, and 76- 3-623): as well as compliance with other laws and regulations applicable to the subdivision. 1.(1) Criteria. a.(a) Compliance with the survey requirements of the Montana Subdivision and Platting Act; b.(b) Compliance with this chapter and the review process of these regulations; c.(c) The provision of easements to and within the subdivision for the location and installation of any necessary utilities; d.(d) The provision of legal and physical access to each parcel within the subdivision and the notation of that access on the applicable plat and any instrument transferring the parcel; and e.(e) For major subdivisions other than expedited or otherwise exempt subdivisions, the findings of fact must also address the effect on agriculture, agricultural water user facilities, local services, the natural environment, wildlife and wildlife habitat, and public health and safety. 346 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 53 of 78 (2) Required components. The written findings of fact must contain at a minimum: (a) Information regarding the appeal process for the denial or imposition of conditions; (b) The regulations and statutes used in reaching the decision to deny or impose conditions and explains how they apply to the decision; (c) The facts and conclusions that the governing body relied upon in making its decision to deny or impose conditions. The documents, testimony, or other materials that form the basis of the decision and support the conclusions of the governing body may be incorporated into the written findings by reference. (3) Federal or state governmental entity input. If a federal or state governmental entity submits a written or oral comment or an opinion regarding wildlife, wildlife habitat, or the natural environment relating to a subdivision application for the purpose of assisting a governing body's review, the comment or opinion may be included in the governing body's written statement under this section only if the comment or opinion provides scientific information or a published study that supports the comment or opinion. A governmental entity that is or has been involved in an effort to acquire or assist others in acquiring an interest in the real property identified in the subdivision application must disclose that the entity has been involved in that effort prior to submitting a comment, an opinion, or information as provided in this subsection. hF. Changes to conditions after approval. Upon written request of the developer, the city commission may amend conditions of subdivision application approval where errors or changes beyond the control of the developer have rendered a condition unnecessary, impossible or illegal. Changes to conditions that are not unnecessary, impossible or illegal are subject to the provisions of section 38.100.070. (1) The written request must be submitted to the community development department. (2) The written consent of all purchasers of land (via contract for deed, etc.) must be included with the written request to amend conditions. (3) If it is an application for a major subdivision, the city commission must conduct a public hearing on the request. If it is an application for a minor subdivision, the city commission must consider the request at a regularly scheduled meeting. (a) If a public hearing is held, public notice of the hearing must be given in accordance with this chapter. (4) The city commission may approve the requested change if it meets the criteria set forth in this chapter. 347 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 54 of 78 (5) The city commission must issue written findings of fact as required in this chapter. 38.240.160. Duration of Approval Af. Initial subdivision application approval period. Upon approving or conditionally approving a subdivision application, the city commission must provide the developer with a dated and signed findings of fact and order. This initial approval must be in force for not more than: 1.(1) One calendar year for minor subdivisions; 2.(2) Two calendar years for single-phased major subdivisions; and 3.(3) Three calendar years for multi-phased major subdivisions after the date of the findings of fact and order. 4. At the end of thise period, the city may, at the written request of the developer, extend its approval for a mutually agreed-upon period of time. 5. Subdivisions reviewed under 76-3-617 MCA may not exceed a cumulative period for all phases to exceed 20 years. Bg. Extensions of preliminary plat approval period. Any mutually agreed upon extension must be in writing and dated and signed by the subdivider or their authorized agent and by the city commission or their authorized agent. More than one extension may be requested for a particular subdivision. Each request is considered on its individual merits. An extension of the subdivision approval under this chapter does not extend other city or non-city agency approvals, e.g. for design of infrastructure extensions, necessary to complete the project. Review authority for extensions is established in division 38.220. When evaluating an extension request, the city must consider: 1.(1) Changes to the development regulations since the original approval and whether the subdivision as originally approved is substantially compliant with the new regulations; 2.(2) Progress to date in completing the subdivision as a whole and any phases, including maintenance of the remainder of the site in good condition; 3.(3) Phasing of the subdivision and the ability for existing development to operate without the delayed development; 4.(4) Dependence by other development on any public infrastructure or private improvements to be installed by the subdivision; 5.(5) Demonstrated ability of the subdivider to complete the subdivision; 6.(6) Whether mitigation for impacts of the subdivision identified during the preliminary plat review and findings of fact and order remain relevant, adequate, and applicable to the present circumstances of the subdivision and community. 348 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 55 of 78 h. Changes to conditions after approval. Upon written request of the developer, the city commission may amend conditions of subdivision application approval where it can be found that errors or changes beyond the control of the developer have rendered a condition unnecessary, impossible or illegal. Changes to conditions that are not unnecessary, impossible or illegal are subject to the provisions of section 38.100.070. (1) The written request must be submitted to the community development department. (2) The written consent of all purchasers of land (via contract for deed, etc.) must be included with the written request to amend conditions. (3) If it is an application for a major subdivision, the city commission must conduct a public hearing on the request. If it is an application for a minor subdivision, the city commission must consider the request at a regularly scheduled meeting. (a) If a public hearing is held, public notice of the hearing must be given in accordance with this chapter. (4) The city commission may approve the requested change if it meets the criteria set forth in this chapter. (5) The city commission must issue written findings of fact as required in this chapter. Sec. 38.240.170140. Notice of certification that water and waste services will be provided by local government. A. If the developer is proposing to request an exemption from the department of environmental quality (DEQ) for infrastructure plan and specification review, the subdivision application must include a written request from the developer's professional engineer, licensed in the state, that indicates the intent to request the exemption, and details the extent of water, sewer and stormwater infrastructure that will be completed prior to final plat approval. A detailed preliminary stormwater drainage plan must also be submitted with the written request. The director of public works must, prior to final plat approval, send notice of certification to the DEQ per MCA 76-4-127. 1. The notice of certification must include the following: a. The name and address of the applicant; b. A copy of the preliminary plat included with the application for the proposed subdivision or a final plat where a preliminary plat is not necessary; c. The number of proposed parcels in the subdivision; d. A copy of any applicable zoning ordinances in effect; 349 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 56 of 78 e. How construction of the sewage disposal and water supply systems or extensions will be financed; f. Certification that the subdivision is within a jurisdictional area that has adopted a growth policy pursuant to title 76, chapter 1, Montana Code Annotated (MCA 76- 1-101 et seq.) and a copy of the growth policy, when applicable; g. The relative location of the subdivision to the city; h. Certification that adequate municipal facilities for the supply of water and disposal of sewage and solid waste are available or will be provided within the time provided in MCA 76-3-507; i. If water supply, sewage disposal or solid waste facilities are not municipally owned, certification from the facility owners that adequate facilities are available; and j. Certification that the city commission has reviewed and approved plans to ensure adequate stormwater drainage. Sec. 38.240.150180. Final plat application. A. After the conditions of preliminary approval and the requirements for the installation of improvements have been satisfied, the developer must cause to be prepared a final plat. The final plat must conform to the uniform standards for final subdivision plats as set forth in 24.183.1107 ARM as may be amended and to the standards required by the county clerk and recorder. The applicant is responsible to verify that they are complying with the most recently adopted clerk and recorder standards. Plans and data must be prepared under the supervision of a registered surveyor, licensed in the state, as their licensing laws allow. 1. Final plat submittal. The final plat and all supplementary documents must be submitted to the community development department at least 30 working days prior to the expiration of subdivision application approval or any extension thereto. The submittal must include a final plat application form, the appropriate review fee, all information required by section 38.220.070 and a written explanation of how each of the conditions of subdivision application approval has been satisfied. a. The final park plan, if one is associated with the plat, must be reviewed and approved, after a recommendation from the city recreation and parks advisory board, prior to approval of or simultaneously with the final plat. The installation of any park improvements to meet minimum development standards or conditions of approval must comply with division 38.270 of this chapter. 2. County treasurer certification. A final plat will not be accepted as complete until the county treasurer has certified that no real property taxes and special assessments assessed and levied on the land to be subdivided are delinquent. 3. Review of abstract subdivision guarantee, deeds, and covenants. 350 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 57 of 78 a. With the final plat, the developer must submit to the community development department a certificate of a licensed title abstractorsubdivision guarantee showing the names of the owners of record of the land to be subdivided and of any off-site land used to satisfy parkland dedication requirements, and the names of lienholders or claimants of record against the land, and the written consent to the subdivision by the owners of the land, if other than the developer, and any lienholders or claimants of record against the land. The certificate of licensed title abstractor must be dated no earlier than 30 calendar days prior to submittal. If necessary, the subdivision guarantee certificate must be updated so that the subdivision guaranteecertificate is dated no earlier than 90 days prior to the city commission's action on the final plat. b. Covenants must be submitted to the community development department with the final plat application. At least 30 working days prior to submission of the final plat application to the community development department, the developer must submit a copy of the covenants to the city attorney's office. c. If an improvements agreement will be required per section 38.270.060 then the proposed associated financial security must be provided for review and approval at least 30 working days prior to submission of the final plat application for review by the city attorney. d. Transfer of ownership of public land, off-site land, private land, personal property, improvements and water rights; documents required. (1) For the transfer of real property in satisfaction of required or offered dedications to the city, and required or offered donations or grants to the property owners' association (POA), the subdivider or owner of the property must submit with the application for final plat a warranty deed or other instrument acceptable to the city attorney transferring fee simple ownership to the city or the POA. (2) For the transfer of personal property installed upon dedicated parkland or city-owned open space, or POA-owned parkland or open space, the subdivider must provide the city an instrument acceptable to the city attorney transferring all its rights, title and interest in such improvements including all applicable warranties to such improvements to the city or the POA. (3) The subdivider or owner of the property must record the deed or instrument transferring ownership or interests at the time of recording of the final plat with the original of such deed or instrument returned to the city or POA as applicable. (4) For the transfer of ownership interest in water, the subdivider or owner of the property must submit with the application for final plat a deed or other instrument acceptable to the city attorney transferring ownership to the city or POA, along with all required state department of natural resources and conservation documentation, certification and authorization. 351 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 58 of 78 d. Certificates. (1) Public lands/improvements must be described in the certificate of dedication/consent, listed in the certificate of completion, and be completed or subject to an improvements agreement. (2) Private lands/improvements must be described and addressed in the certificate of donation/grant and completion of private improvements, be completed or subject to an improvements agreement. 4. Review by the community development department. The community development department will then review the final plat application to ascertain verify that all conditions and requirements for final approval have been met. If all conditions and requirements for final approval have been met, the community development department must forward a report to the city commission for their action. 5. Final plat approval. The review authority city commission must examine every final plat, and within 45 working days of the date of receipt of a complete final plat application to the community development department, must approve it if it conforms to the conditions of preliminary approval and the terms of this chapter. "Date of receipt" means the date of delivery of all fully executed required documents to the reviewing agency if accompanied by the applicable review fee. The city commission must examine every final plat at a regular meeting. A final subdivision plat is not may not be approved by the city unless all certificates, with the exception of the director of public workscertificates to be signed by applicable city officers and the county clerk and recorder, have been complied with, signed and notarized and all subdivision regulations and conditions of preliminary plat approval have been met. A final subdivision plat may not be filed with the county clerk and recorder unless all certificates, with the exception of the county clerk and recorder, have been complied with, signed and notarized. This shall include the certification by the county treasurer that no real property taxes and special assessments assessed and levied on the land to be subdivided are delinquent. A final subdivision plat may not be approved by the review authority city commission or filed by the county clerk and recorder unless it complies with the uniform standards for final subdivision plats as established 24.183.1107, ARM as may be amended and as required by the Gallatin County Clerk and Recorder. a. If the final plat is approved, the city officer director of public service shallmust so certify the approval in a printed certificate on the plat. b. If the final plat is denied, the city commission shall cause a letter to be written to the developer stating the reasons therefore. 6. Filing. The developer must file the approved, signed final plat and all other required certificates and documents with the county clerk and recorder within 60 days of the date of final approval. 7 352 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 59 of 78 Sec. 38.240.190160. Changes to filed subdivision plats. Changes to a filed subdivision plat must be filed with the county clerk and recorder as an amended plat. An amended plat may not be filed unless it meets the filing requirements for a final subdivision plat specified in these regulations. Section 14 That Division 38.240 Part 3 of the Bozeman Municipal Code be amended as follows: Part 3. Land DSubivisions Created by Rent or Lease and Buildings For Lease Or Rent Sec. 38.240.200. General. A. Land subdivisions created by rent or lease, rather than sale, refer to areas that provide multiple spaces for manufactured homes, mobile homes or recreational camping vehicles regardless of the size of the area or whether the spaces will be made available for rent by the general public for a fee. The land must be owned as one parcel under single ownership, which can include a number of persons owning the property in common. Subsequent action to sell interests in less than the entirety of the development may necessitate review under Parts 5 and 6 of the Montana Subdivision and Platting Act prior to any sale. Land subdivisions created by rent or lease are not subject to this division 38.240 or the Montana Subdivision and Platting Act if: Rent or lease of buildings or portions of buildings otherwise subject to Title 76 Part 8, MCA are exempt from review under 76-8 MCA since the City has adopted the necessary zoning to apply the exemption authorized in 76-8-103, MCA. B. Per 76-3-103(16) MCA, development for rent or lease for recreational camping vehicles or manufactured homes, rather than sale of parcels of land is also considered a subdivision and subject to review procedures for subdivision. 1. They are developed on property which has been subdivided in compliance with Parts 5 and 6 of the Montana Subdivision and Platting Act or which have a boundary documented by a certificate of survey recorded after July 1, 1973; and 2. They are reviewed as a site plan, conditional use permit, or planned unit development as described and authorized under this chapter; and 3. They comply with the adopted zoning regulations and other land development standards adopted by the city. B. DPHHS license. If a land subdivision by rent or lease, that will provide multiple spaces for manufactured homes, mobile homes or recreational camping vehicles is also a "campground," "trailer court," "work camp," or "youth camp" as defined below, the city must not grant final approval until the developer obtains a license for the facility from the state department of public health and human services (DPHHS) under MCA tit. 50, ch. 52. 353 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 60 of 78 1. "Campground" means a parcel of land available to and principally used by the public for camping, where persons can camp, secure tents or cabins, or park trailers for camping and sleeping purposes. 2. "Trailer court" means a parcel of land upon which two or more spaces are available to the public and designated for occupancy by trailers, manufactured homes or mobile homes for use as residences. The term does not include a parcel composed of platted lots, if each lot: a. Is filed with the county clerk and recorder; b. Contains only one trailer space; and c. Is served by a public water supply system and public sewage system that meet the requirements of rules for systems adopted pursuant to MCA tit. 75, ch. 6, pt. 1, and that are located within the boundaries of the City of Bozeman. 3. "Work camp" means a parcel of land on which housing is provided by a person for two or more families or individuals living separately, for the exclusive use of the employees of the person and the families, if any, of the employees. For purposes of this subsection, "housing" includes but is not limited to camping spaces; trailer parking spaces; manufactured, mobile, modular or permanent barracks or structures; and any appurtenant water supply and distribution system, sewage collection and disposal system, solid waste collection and disposal system, or food service and dining facilities. Housing does not include shelter provided by an employer for persons who are employed to perform agricultural duties on a ranch or farm. 4. "Youth camp" means a parcel of land on which permanent buildings, tents or other structures are maintained as living quarters for ten or more people and that is used primarily for educational or recreational use by minors. The term includes any appurtenant water supply and distribution system, sewage collection and disposal system, solid waste collection and disposal system, or food service and dining facilities. C. Surveying and filing requirements exemption. Land subdivisions created by rent or lease are exempt from the surveying and filing requirements of the Montana Subdivision and Platting Act. D. Buildings for lease or rent. A building or buildings created for lease or rent on a single lot is not a subdivision of land but must be in conformance with applicable zoning regulations. For this section "building" means a structure or a unit of a structure with a roof supported by columns or walls for the permanent or temporary housing or enclosure of persons or property or for the operation of a business. Except as provided in MCA 76-3-103(15) the term includes a recreational camping vehicle, mobile home, or cell tower. The term does not include a condominium or townhome. 354 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 61 of 78 Sec. 38.240.210. Land subdivisions created by rent or lease—Procedure, submittal requirements and review criteria. A. Land subdivisions created by rent or lease must be submitted, reviewed and approved by the city before any portions of the development may be rented or leased. The developer must apply for site plan and subdivision review. B. Site plan review. All relevant procedures, submittal requirements and review criteria contained in division 38.230 of this chapter apply. The development must also comply with the requirements of division 38.310 of this chapter and sections 38.360.190 and 38.360.250. C. Subdivision review. The subdivision review procedure and review criteria for land subdivisions created by rent or lease will depend upon the number of spaces within the proposed development. Proposed developments containing five or fewer spaces for rent or lease must be reviewed as minor subdivisions according to the provisions of article 2 of this chapter and proposed developments containing six or more spaces for rent or lease must be reviewed as major subdivisions according to the provisions of division 38.240 of this chapter. 1. Pre-application plan. The pre-application plan must be reviewed using the procedures contained in section 38.240.110. The submittal materials listed in section 38.220.030 must be provided. 2. Preliminary plan submittal and procedure. For land subdivisions created by rent or lease, the developer must submit a preliminary plan in lieu of a preliminary plat, a completed application for minor subdivision or major subdivision as appropriate, and the materials listed in sections 38.220.050 and 38.220.060. 3. Final plan submittal and procedure. For land subdivisions created by rent or lease, the developer must submit a final plan in lieu of a final plat, a completed final plat application and the materials listed in section 38.220.070. 4. Supplementary materials. In addition to the submittal requirements of division 38.220 of this chapter, preliminary and final plans for land subdivisions created by rent or lease must show the following: a. A layout of all spaces proposed for rent or lease; b. Location of commonly owned areas and facilities; and c. Parks and/or recreation areas. 5. Boundary lines. All preliminary and final plans may show approximate boundary, lot, right-of-way or other lines. ( Ord. No. 2059 , § 3, 1-26-2021) Sec. 38.240.220. Land subdivisions created by rent or lease—Timing of improvements. Before any portion of a land subdivision created by rent or lease can be rented or leased, all required improvements must be installed, inspected and found compliant with the approved plan, and where applicable accepted by the city. 355 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 62 of 78 Sec. 38.240.230. Land subdivisions created by rent or lease—Filing of final plan. Once the final plan has been approved by the city, an original copy of the approved plan must be filed with the county clerk and recorder as a "miscellaneous" document and another copy of the approved plan must be retained by the engineering division of the department of public works. Section 15 That Section 38.240.300 of the Bozeman Municipal Code be amended as follows: Sec. 38.240.300. Divisions of land entirely exempt from the requirements of this chapter pertaining to subdivisions and the state subdivision and platting act. A. Unless the method of disposition is adopted for the purpose of evading this chapter or the Montana Subdivision and Platting Act (the "Act"), the requirements of this chapter pertaining to subdivisions and the Act may not apply to any division of land that: 1. Is created by order of any court of record in this state or by operation of law or that, in the absence of agreement between the parties to the sale, could be created by an order of any court in the state pursuant to the law of eminent domain (MCA 76-3-201(1)(a)); a. Before a court of record orders a division of land, the court must notify the governing body of the pending division and allow the governing body to present written comment on the division; b. Lots created as described in this section that do not comply with the standards of chapter 38, BMC are not "nonconforming" lots subject to section 38.32.030 and are not individual buildable lots; c. Not more than four lots can be created by order of a court of record from an original tract or parcel. 2. Is created to provide security for mortgages, liens or trust indentures for the purpose of construction, improvements to the land being divided, or refinancing purposes (MCA 76-3-201(1)(b)); a. This exemption applies: i. To a division of land of any size; ii. To a parcel that is created to provide security, however the remainder of the tract of land is subject to the provisions of the Montana Subdivision and Platting Act and division 38.240 of this chapter if applicable; b. Lots created as described in this section that do not comply with the standards of chapter 38, BMC are not "nonconforming" lots subject to section 38.280.030 and are not individual buildable lots; 356 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 63 of 78 3. Creates an interest in oil, gas, minerals or water that is severed from the surface ownership of real property (MCA 76-3-201(1)(c)); 4. Creates cemetery lots (MCA 76-3-201(1)(d)); 5. Is created by the reservation of a life estate (MCA 76-3-201(1)(e)); 6. Is created by lease or rental for farming and agricultural purposes (MCA 76-3- 201(1)(f)); 7. Is created for rights-of-way or utility sites. A subsequent change in the use of the land to a residential, commercial or industrial use is subject to the requirements of the Montana Subdivision and Platting Act and division 38.240 of this chapter (MCA 76-3- 201(1)(h)); 8. Is created by lease or rental of contiguous airport-related land owned by a city, county, the state, or a municipal or regional airport authority provided that the lease or rental is for onsite weather or air navigation facilities, the manufacture, maintenance, and storage of aircraft, or air carrier-related activities (MCA 76-3-205(1)); 9. Is state-owned land unless the division creates a second or subsequent parcel from a single tract for sale, rent or lease for residential purposes after July 1, 1974 (MCA 76- 3-205(2)); and 10. Is created by deed, contract, lease or other conveyance executed prior to July 1, 1974 (MCA 76-3-206). Section 16 That Section 38.240.410 of the Bozeman Municipal Code be amended as follows: Sec. 38.240.410. Dedication or consent. A. All plats of subdivisions must contain a certificate of dedication or certificate of consent signed by the subdivider. In the case of corporate ownership, the proper corporation officer must sign, a corporate notary form must be used, and the corporate seal must be affixed. The certificate of consent is used when there are no transfers of land interests to the public. The certificate must read as follows: 1. Certificate of dedication. CERTIFICATE OF DEDICATION (I), (We), the undersigned property owner(s), do hereby certify that (I) (We) have caused to be surveyed, subdivided and platted into lots, blocks, streets, and alleys, and other divisions and dedications, as shown by the plat hereunto included the following described tract of land to wit: Description 357 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 64 of 78 (Exterior Boundary Description of Area Contained in Plat and Total Acreage) The above-described tract of land is to be known and designated as (name of subdivision), City of Bozeman, Gallatin County, Montana; and the lands included in all streets, avenues, alleys, roads, highways, and parks, playgrounds, or public lands or other public improvements shown on said plat are hereby granted and donated to the City of Bozeman for the public use and enjoyment. Unless specifically listed herein, the lands included in all streets, avenues, alleys, roads, highways, and parks or public lands or other public improvements dedicated to the public are accepted for public use, but the city accepts no responsibility for maintaining the same. The owner(s) agree(s) that the city has no obligation to maintain the lands included in all streets, avenues, alleys, roads, highways, and parks, or public lands or other public improvements, hereby dedicated to public use. The lands included in all streets, avenues, alleys, roads, highways, and parks, or public lands or other public improvements dedicated to the public for which the city accepts responsibility for maintenance include (list specific streets, avenues, alleys, roads highways, and parks or other public lands or other public improvements). The undersigned hereby grants unto each and every person firm or corporation, whether public or private, providing or offering to provide telephone, electric power, gas, internet, cable television or other similar utility or service, the right to the joint use of an easement for the construction, maintenance, repair and removal of their lines and other facilities in, over, under and across each area designated on this plat as "Utility Easement" to have and to hold forever. DATED this _______ day of _______, _______. (Acknowledged and notarized signatures of all record owners of platted property) 2. Certificate of consent. CERTIFICATE OF CONSENT (I), (We), the undersigned property owner(s), do hereby certify that (I), (We) caused to be surveyed, subdivided and platted into lots, blocks, streets, and alleys, and other divisions and dedications, as shown by this plat hereunto included, the following described tract of land, to wit: Description (Exterior Boundary Description of Area Contained in Plat and Total Acreage) The above described tract of land is to be known and designated as (name of subdivision), City of Bozeman, Gallatin County, Montana. The undersigned hereby grants unto each and every person, firm of corporation, whether public or private, providing or offering to provide telephone, electric power, gas, internet, cable television or other similar utility or service, the right to the joint use of an easement for the construction, maintenance, repair and removal of their lines and other facilities in, over, under and across each area designated on this plat as "Utility Easement" to have and to hold forever. DATED this _______ day of _______, _______. (Acknowledged and notarized signatures of all record owners of platted property) 358 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 65 of 78 Section 17 That Section 38.240.460 of the Bozeman Municipal Code be amended as follows: Sec. 38.240.460. Acceptance of dedications Governing body. When property or improvements are being transferred to the public this certificate is used. The city commission’s or their designated agent must certify approval of theacceptance for public use of improvements associated with the plat of subdivision. Said certificate must read as follows: CERTIFICATE OF DIRECTOR OF PUBLIC WORKSACCEPTANCE OF DEDICATIONS I, Director of Public Works, City of Bozeman, Montana, do hereby certify that the accompanying plat has been duly examined and has found the same to conform to the law, approves it, and hereby accepts the dedication to the City of Bozeman for the public use of any and all lands shown on the plat as being dedicated to such use. DATED this _______ day of _______, _______. (Signature), Director of Public Works Section 18 That Section 38.240.470 of the Bozeman Municipal Code be amended as follows: Sec. 38.240.470. Exclusion from MDEQ review for sanitation. The following certificate must be added to all subdivision plats to certify that adequate stormwater drainage and adequate municipal facilities will be provided. CERTIFICATE OF EXCLUSION FROM MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY REVIEW The (Name of Subdivision), Gallatin County, Montana, is within the City of Bozeman, Montana, a first-class municipality, and within the planning area of the Bozeman growth policy which was adopted pursuant to MCA 76-1-601 et seq., and can be provided with adequate stormwater drainage and adequate municipal facilities. Therefore, under the provisions of MCA 76-4-125, this subdivision is excluded from the requirement for Montana Department of Environmental Quality review. DATED this _______ day of _______, _______. (Signature), Director of Public Works City of Bozeman, Montana 359 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 66 of 78 Section 19 That Section 38.240.500 of the Bozeman Municipal Code be amended as follows: Sec. 38.240.500. Certification of use of exemption claim. A. The following certificates must be provided in a printed certificate on the amended plat or certificate of survey for allowed exemptions from review as subdivisions: 1. Certificate of governing body to authorize exemption from subdivision review. CERTIFICATE OF GOVERNING BODY – USE OF EXEMPTION I, (Director of Community Development), do hereby certify that the accompanying (Certificate of Survey or Amended Plat) has been duly reviewed, and has been found to conform to the requirements of the Subdivision and Platting Act (MCA 76-3-101 et seq.), and the Bozeman Municipal Code. DATED this _______ day of _______, _______. (Signature), Director of Community Development 2. Certificate of exemption. Reference to exclude the survey from state department of environmental quality review can also be added to this certificate, as appropriate. LANDOWNER CERTIFICATE OF EXEMPTION (I), (We) certify that the purpose of this survey is to (state exemption), and therefore this survey is exempt from review as a subdivision pursuant to MCA 76-3-207(1) (add appropriate subsection). DATED this _______ day of _______, _______. (Acknowledged and notarized signatures of all record owners of surveyed property) Section 20 That Section 38.240.540 of the Bozeman Municipal Code be amended as follows: Sec. 38.240.540. Certificate of Governing Body A. The city commission’s designated agent must certify approval of all plats of subdivision. Said certificate must read as follows: CERTIFICATE OF GOVERNING BODY APPROVING PLAT I, Director of Community Development, City of Bozeman, Montana, do hereby certify that the accompanying plat has been duly examined and has found the same to conform to the law and approves it. 360 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 67 of 78 DATED this _______ day of ______________________, _______. (Signature), Director of Community Development Section 21 That Section 38.250.080 of the Bozeman Municipal Code be amended as follows: Sec. 38.250.080. Subdivision variances. A. Procedure. The subdivider must provide during the pre-application process, and include with the submission of the preliminary plat, a written statement describing the requested variance and the facts of hardship upon which the request is based. The relevant advisory bodies must include their findings and conclusion regarding the requested variance in its recommendation. The city review authority must then consider each variance at the public hearing on during their review of the preliminary plat. A public hearing may not be held on a variance in association with a first minor subdivision. B. Review criteria. Per MCA 76-3-506, a variance to this chapter must be based on specific variance criteria, and may not have the effect of nullifying the intent and purpose of this chapter. The city must not approve subdivision variances unless it makes findings based upon the evidence presented in each specific case that: 1. The granting of the variance will not be detrimental to the public health, safety, or general welfare, or be injurious to other adjoining properties; 2. Because of the particular physical surroundings, shape or topographical conditions of the specific property involved, an undue hardship to the owner would result if strict interpretation of this chapter is enforced; 3. The variance will not cause a substantial increase in public costs; and 4. The variance will not, in any manner, place the subdivision in nonconformance with any other provisions of this chapter or with the city's growth policy. C. Variances from floodway provisions not authorized. The review authority may not, by subdivision variance, permit subdivision for building purposes in areas located within the floodway of a flood of 100-year frequency as defined in title 76, chapter 5, Montana Code Annotated (MCA 76-5-101 et seq.). Any variances related to floodways must meet the standards of 38.250.070.C.4.a. D. Conditions. In granting subdivision variances, the review authority may require such conditions as will, in its judgment, secure the objectives of this chapter. Any approval under this section must be subject to the terms of the conditions designated in connection therein. 361 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 68 of 78 Any conditions required must be related both in purpose and scope with the relief sought through the variance. E. Statement of facts. When any variance from this chapter is granted, the motion of approval must contain a statement describing the variance and conditions upon which the issuance of the variance is based. F. Planned unit development. Where the standards and requirements of this chapter are proposed to be modified through a planned unit development, the applicable process is a deviation rather than a variance. G. Limitations on approvals. For subdivision variances, the variance approval will be null and void if the final plat is not filed within the time allowed for final approval by the city's decision. Section 22 That a new Section 38.360.280 of the Bozeman Municipal Code be created to read as follows: Section 38.360.280 Agricultural water user facilities A. Purpose. The purpose of this section is to recognize and protect property rights established through water rights issued by the state of montana and the associated rights of conveyance for agricultural water user facilities. Development of land has potential to negatively impact such rights and function of such facilities. The state has adopted requirements including but not limited to 70-17-112, 85-7-2211 and 85-7-2212, MCA to protect agricultural water user facilities and prevent interference with them. B. Notice requirements concerning agricultural water user facility: 1. Where an agricultural water user facility is present on-site, or on an adjoining property within 100 feet of the exterior boundaries of the proposed development, the developer must: a. provide written notice to the applicable water users and/or agricultural water user facility’s authorized representatives of the proposed development, b. provide them with a copy of the proposed development layout, c. provide a description of any anticipated adverse effects to the agricultural water user facility, d. provide a description of any mitigation proposed to remedy such adverse effects, and e. provide 45 calendar days for the water users and/or agricultural water user facility’s authorized representatives to submit written comments. 2. Notice to the water users and/or agricultural water user facility’s authorized representatives must be as follows. 362 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 69 of 78 a. In the event the agricultural water user facility conveys water for an incorporated or otherwise organized group of water users such as a ditch or canal company, and the water users have officially elected or otherwise appointed a representative or group of representatives, written notice shall be to the agricultural water user facility’s authorized representatives. b. In the event the agricultural water user facility conveys water for water users that have not organized or officially elected or otherwise appointed a representative, the developer shall give written notice to all water users. c. In the event the agricultural water user facility conveys water in a combination of the scenarios described in i and ii above, the Subdivider shall give written notice to the agricultural water user facility’s authorized representatives, and any water users not represented by the agricultural water user facility’s authorized representatives. d. The montana department of natural resources and conservation is the agency that maintains the official records for water rights. 3. The pre-application or concept plan submittal shall include the names and contact information for the water users and agricultural water user facility’s authorized representatives that were provided with written notice, and the date they were provided written notice; and a copy of the notice sent. 4. If the water users and/or agricultural water user facility’s authorized representatives have provided the applicant with written comments, those comments shall be submitted with the pre-application or concept plan submittal. 5. If there are changes to the project between the pre-application plan or concept plan submittal and formal application stage that would result in additional impacts to the agricultural water user facility, the developer shall comply with the notice and documentation requirements described above to be submitted with the formal application. 6. If the subject of this subsection was fully addressed with a previous development review and a new application is fully in compliance with the earlier approval then compliance with the notice provisions of this subsection is not required. C. Persons holding water rights, agricultural water user facility owners, or their representatives may conduct necessary maintenance such as cleaning and removal of accumulated silt, branches, trees, sticks and other debris as well as repair or restoration activities consistent with state law and the terms of any applicable easement or other authority. D. Agricultural water user facilities may also be subject to 38.410.060. Section 23 363 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 70 of 78 That Section 38.400.020 of the Bozeman Municipal Code be amended as follows: Sec. 38.400.020. Street and road dedication. A. General. All streets or alleys within, or providing access to, the proposed development must be dedicated to the public, be private streets to be owned and maintained by an approved property owners' association, or, if the criteria of this section are met, be a public street easement. 1. Public street easements. Public street easements must: a. Be approved by the city attorney's office; b. Be recorded in the county clerk and recorder's office; and c. Clearly grant to the public an unrestricted right of ingress and egress from a public street to the property to be subdivided. 2. Private streets. a. Private streets may be required to have a public access easement if deemed necessary by the city. b. If a private street is proposed, the project must be reviewed as a planned unit development. However, development proposals containing private streets are exempt from the PUD review requirement if: (1) A local private street is proposed and the street would comply with the city standard right-of-way requirement of 60 feet, and the standard back-of-curb to back-of-curb width of 31, 33 or 35 feet; or (2) A local private street is proposed and the street would comply with the city standard right-of-way requirement of 60 feet. The back-of-curb to back-of- curb width may vary from city standards, provided that: (a) A permanent funding source, such as the levying of assessments against all properties within the development, for street maintenance is established and the funding levels will be adequate for all future private street maintenance; and (b) The developer signs a waiver of right to protest the creation of SIDs, or other perpetual legal instrument, acknowledging that the city will not assume dedication and/or maintenance of the streets unless the street is brought up to city standards, or the property owners' have agreed to an assessment to fund improvements required to bring the street up to city standards. The developer must record the waiver, or other legal instrument, at the time of final plat recordation, or prior to issuance of building permits if no final plat recordation is required. c. Documented proof of adequate funding and scheduling for maintenance of all private streets, must be provided, subject to section 38.270.09038.220.200. 364 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 71 of 78 Section 24 That Section 38.410.060 of the Bozeman Municipal Code be amended as follows: Sec. 38.410.060. Easements. A. Required easements. Where determined to be necessary, public and/or private easements must be provided for private and public utilities, drainage, vehicular or pedestrian access, etc. 1. In subdivisions, all easements must be described, dimensioned and shown on the final plat in their true and correct location. 2. In all other developments, the proper easements documents must be prepared for review and approval by the city, and filed at the county clerk and recorder's office. The easement documents must be accompanied by an exhibit indicating the dimensions, and true and correct location, of all easements. 3. No lot may be encumbered by a public or private utility easement in a way that would decrease the amount of buildable land to less than the area required by this chapter for the applicable zoning district. B. Private utility easements. Private utilities include, but are not limited to, natural gas, electricity, telephone, cable and fiber optic lines. The developer must provide private utility easements necessary to extend private utilities to the development, and to provide for the construction and maintenance of private utilities within the development. 1. General. a. Building setbacks must be coordinated with all provided utility easements. If a utility easement will be greater than the building setback required by this chapter, a note to that effect must be placed on the final plat and/or final site plan as appropriate. b. Where a utility easement is to be located in an existing, dedicated right-of-way, an encroachment permit must be obtained from the local or state street or road department having jurisdiction. c. If placed in a city right-of-way, easements must be in a location required by and agreed upon in writing by all of the appropriate utility companies and the review authority. 2. Easement size. a. Front setback utility easements. Front setback utility easements must be ten feet wide, and must always be provided unless written confirmation is submitted to the community development department from all utility companies providing service indicating that front setback easements are not needed. 365 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 72 of 78 b. Rear setback utility easements. The provision of rear setback utility easements is not mandatory unless they are required by any or all of the utility companies to adequately serve the development. If provided, rear setback utility easements on each lot must be six feet wide if adjacent to a public alley and ten feet if not adjacent to a public alley. c. Side setback utility easements. The provision of side setback utility easements is not mandatory unless they are required by any or all of the utility companies to adequately serve the development. If provided, the width of the side setback utility easement must be determined on a case-by-case basis based on the needs of the utility companies. 3. Private utility plans. a. When the concurrent construction option will be used, based on the provisions of section 38.270.030.D, private utility plans must be included with the preliminary PUD submittal. b. Private utility plans must be provided with any plans and specifications submittals for the construction of new water, sewer or street infrastructure as specified in the city's design standards and specifications policy. 4. No building shall be constructed that encroaches on a private utility easement unless written approval from all utility companies is provided to the community development department. C. Public utility easements. Public utilities include water, sewer and stormwater facilities that are dedicated to and maintained by the city. 1. A public utility easement must be granted for all public utility mains not located within public street right-of-way. An easement must be at least 30 feet wide for either one or two utility mains. An additional ten feet of width is required for each additional main that occupies the easement. Wider easements may be required at the discretion of the city for large utility lines. 2. Public utility easements must be provided for all meter pits and fire hydrants maintained by the city. 3. No permanent structures shall be placed within public utility easements unless an encroachment permit has been obtained from the city. D. Easements for agricultural water user facilities. 1. Except as noted in subsection D.2 of this section, the developer must establish appropriate agricultural water user facility easements that: a. Are in locations of appropriate topographic characteristics and sufficient width to allow the physical placement and unobstructed maintenance of active open ditches or below ground pipelines. Easements may be required when an agricultural water user facility is on adjacent property but an easement necessary to protect the function of the agricultural water user facility crosses onto the property to be developed. The easement must facilitate the delivery of water for irrigation to 366 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 73 of 78 persons and lands legally entitled to the water under an appropriated water right or permit of an irrigation district or other private or public entity formed to provide for the use of the water right; (1) The easements must ensure the conveyance of irrigation water through the land to be developed to lands adjacent to or beyond the development's boundaries in quantities and in a manner consistent with historic and legal rights; and (2) A minimum easement width of ten feet is required on each side of irrigation canals and ditches. b. Are a sufficient distance from the centerline of the agricultural water user facility to allow for construction, repair, maintenance and inspection of the ditch or pipeline; and c. Prohibit the placement of structures or the planting of vegetation other than grass within the agricultural water user facility easement without the written permission of the facility owner. 2. The developer need not establish agricultural water user facility easements as provided above if the following provisions were met or will be met via the subdivision or site plan process: a. The average lot size is one acre or less and the developer provides for disclosure, in a manner acceptable to the review authority, that adequately notifies potential buyers of lots that are classified as irrigated land and may continue to be assessed for irrigation water delivery even though the water may not be deliverable; or b. The water rights are removed or the process has been initiated to remove the water rights from the subdivided or developed land. If the water rights have been or will be removed from the land within the development it must be so noted with the preliminary plat or plan submittal. If removal of water rights is not complete upon filing of the final plat or approval of the final site plan, the developer must provide written notification to prospective buyers of the intent to remove the water right and must document that intent, when applicable, in agreements and legal documents for related sales transactions. 3. The realignment or relocation of active irrigation ditches or pipelines is discouraged. If an agricultural water user facility or points of diversions thereon are proposed to be realigned or relocated, the developer's professional engineer must certify, prior to final plat or final plan approval, that the water entering and exiting the realigned or relocated agricultural water user facility is the same quality and amount of water that entered or exited the facility prior to realignment or relocation. 4. Stormwater from a development must not be discharged to an agricultural water user facility without written approval from the owner of the facility and corresponding stormwater conveyance easements. 5. If the developer demonstrates that easements have been extinguished pursuant to state law, or the holder of the easement consents in writing to the extinguishment, or the 367 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 74 of 78 easement is not required per subsection D.2, the developer may remove ditch laterals from within the subdivision. 6. If agricultural water user facility easements are required, a notice must also be recorded with a final plat or prior to final plan approval, stating that the easements are subject to the requirements of Section 70-17-112, MCA restricting interference with canal or ditch easements and that irrigation works are subject to Section 85-7-2211 and 85-7- 2212, MCA regarding duties and liability. The notice must include language to assure the duties are binding upon all successors in interest and remain in effect until such time that the agricultural water user facility is abandoned in accordance with the requirements of Montana Law or alternative requirements are agreed to in writing by all applicable parties. The easements must be prepared as documents separate from a final plat but may be referenced on a final plat. 7. Any other mitigation of impacts to an agricultural water user facility identified during development review must be coordinated with any required easement. Mitigation shall be reasonable, based on site-specific conditions, and shall be developed with consideration of comments received from the water users and or agricultural water user facility’s authorized representatives. E. Other easements. Public access easements for streets and trails must be provided in accordance with the provisions of divisions 38.400 and 38.420 of this chapter. Section 25 That Section 38.410.020 of the Bozeman Municipal Code be amended as follows: Sec. 38.410.020. Neighborhood centers. A. To provide a neighborhood focal point, all residential subdivisions or planned unit developments that are ten net acres in size or greater, must have a neighborhood center. Developments may be exempted from this requirement if every lot within the development is within one-half mile of an existing neighborhood center. Generally, the center must be no less than one acre in size. The center must be comprised of a park, square, green, plaza, transit stop, neighborhood commercial center, civic use or any combination of these. The following requirements apply to all neighborhood centers: 1. The geographic center point of the neighborhood center must be no further than 600 feet from the geographic center point of the development. This requirement may be waived in the following circumstances: a. The development would create parcels that are all non-residential; b. The center is a neighborhood commercial center or is adjacent to a neighborhood commercial center; c. The site is constrained by the presence of critical lands; d. The site is part of an approved subarea plan that shows the center in a different location; or 368 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 75 of 78 e. The topography of the site presents physical constraints on the property. 2. With the exception of civic and neighborhood commercial center uses, the developer must install all center-related improvements as part of the required development improvements. When a multi-phase project is developed, improvements must be installed with each phase. Required improvements must be based on the definition of each feature found in article 7 of this chapter, and/or city standards. 3. The neighborhood center must have frontage along 100 percent of its perimeter on public or private streets or roads. The city may consider and approve the installation of streets along less than 100 percent, but not less than 50 percent, of the perimeter in accordance with section 38.420.060. 4. With the exception of civic and neighborhood commercial center buildings and grounds, the center is considered a common area to be owned and maintained by the property owners' or a property owners' association. The property owners' association may establish an improvement district to collect assessments to pay for the maintenance. 5. After receiving a recommendation from the city recreation and parks advisory board, aAreas within neighborhood centers used for park, square, or green may count towards parkland dedication requirements (subject to review and approval by the review authority) if they meet the following criteria: a. The area is predominantly open space with enhanced natural features, but may contain amenities such as sidewalks, seating, drinking and ornamental fountains and public art; and b. The area provides active and/or passive recreation opportunities. 6. The neighborhood center may be used for limited stormwater retention/detention facilities if reviewed and approved by the review authority. However, any part of the center used for stormwater management does not count towards park dedication requirements. 7. New neighborhood commercial centers are subject to the community design framework master plan provisions of sections 38.210.130 and 38.510.030.L. Section 26 That Section 38.420.050 of the Bozeman Municipal Code be amended as follows: Sec. 38.420.050. Location. A. General. The review authority, in consultation with the developer, recreation and parks advisory board and parks department, and the planning board if applicable, may determine suitable locations for parks and playgrounds. Parkland must be located on land suitable to and supportive of the activities and functions depicted in the relevant park plan, and unless the park plan indicates a requirement for another configuration, should be kept in a large block. 369 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 76 of 78 B. Subarea or neighborhood plans. If a subarea or neighborhood plan has been adopted for the area, the subdivision must comply with the subarea or neighborhood plan for the location of parks Section 27 That Section 38.420.080 of the Bozeman Municipal Code be amended as follows: Sec. 38.420.080. Park development. A. General. Developers must consult any adopted citywide park plan, and with the recreation and parks advisory boardparks department which implements the plan, to determine the types of parks needed for the proposed development and surrounding area. Parks must be developed in accordance with the citywide park plan and any approved park master plan. At a minimum, all parks must be improved to the following standards by the developer, prior to final plat or final occupancy approval as appropriate: 1. Minimum required improvements to land dedications. The subdivider must level any park area, amend the soil, seed disturbed areas to allow mowing with turf type mowers, and install an underground irrigation system in compliance with city standards and specifications. a. Parks must be seeded with drought tolerant grass seed unless approved otherwise in writing by the park superintendent. 2. Irrigation. The developer must irrigate the park area until 50 percent of the subdivision lots or condominium units are sold. Thereafter, the property owners' association must be responsible for park irrigation. The property owners' association may establish an improvement district to collect assessments to pay for irrigation. a. Wells must be used to irrigate parkland. B. Boundaries. The park boundary bordering all private lots must be delineated at the common private/public corner pins, with flat, flexible fiberglass posts, a minimum of six feet in length with no less than two feet driven into the ground. Each post must be labeled with a permanent glued on sign stating "Park Boundary" or "Property Boundary." Other forms of boundary marking may be approved by the planning or other appropriate department. C. Sidewalks. Sidewalks, when required within the development, must be installed by the developer at points where the park borders or crosses public or private streets. D. Stormwater detention/retention ponds. Stormwater retention or detention ponds may be located within public parkland, but such areas do not count towards the parkland dedication requirement. Any stormwater ponds located on parkland must be designed, constructed and/or added to so as to be conducive to the normal use and maintenance of the park. Stormwater ponds may not be located on private lots. Stormwater retention or detention ponds must be maintained by the property owners' association. E. Clean up required. All fencing material, construction debris and other trash must be removed from the park area. 370 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 77 of 78 Section 28 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 29 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 30 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 31 Codification. This Ordinance shall be codified as indicated in Section 2–28. Section 32 Effective Date. This ordinance shall be in full force and effect thirty (30) days after final adoption. 371 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 78 of 78 PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the _____ day of ________________, 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 372 Color Markup Draft Ord 2089 Page 1 of 78 This draft ordinance is under public review. Additional changes may be made prior to adoption. Markup in this version is in color for ease of identification. Blue text is inserted. Red text is deleted. Some explanatory comments are provided in the side bubbles. This version of the draft is provided to help the reader identify and understand changes. ORDINANCE 2089 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA AMENDING SECTION 38.100.040 INTENT AND PURPOSE OF CHAPTER TO REFERENCE STATE LAW, AMENDING SECTION 38.100.070 CONDITIONS OF APPROVAL TO CLARIFY WHEN CONDITIONS OF APPROVAL APPLY, AMENDING SECTION 38.100.080 COMPLIANCE WITH REGULATIONS REQUIRED TO CLARIFY OBLIGATIONS, AMENDING SECTION 38.200.010 REVIEW AUTHORITY TO UPDATE RESPONSIBILITIES FOR REVIEW OF DEVELOPMENT ACTIONS, AMENDING SECTION 38.220.030 SUBDIVISION PRE-APPLICATION PLAN TO REVISE SUBMITTAL MATERIALS FOR SUDIVISION PRE-APPLICATIONS, AMENDING SECTION 38.220.040 SUBDIVISION PRELIMINARY PLAT TO REVISE SUBMITTAL MATERIALS FOR SUBDIVISION PRELIMINARY PLATS AND DELETING AND RESERVING SECTION HEADER 38.240.050, AMENDING SECTION 38.220.060 ADDITIONAL SUBDIVISION PRELIMINARY PLAT SUPPLEMENTS TO CHANGE TITLE AND REVISE REQUIRED MATERIAL FOR SUBMISSION, AMENDING SECTION 38.220.070 FINAL PLAT TO REVISE APPLICATION MATERIALS TO BE SUBMITTED WITH A FINAL PLAT, AMENDING DIVISION 38.220 PART 2 TO REVISE THE SUBMITTAL AND REVIEW OF SUPPLEMENTARY DOCUMENTS, AMENDING SECTION 38.220.420 NOTICE REQUIREMENTS FOR APPLICATION PROCESSING TO REMOVE FOOTNOTES, REVISE NOTICING PROCEDURES FOR SUBDIVISIONS, AMENDING DIVISION 38.240 PART ONE TO INCORPORATE STATE LAW REFERENCES, AMENDING DIVISION 38.240 PART 2 TO REVISE REVIEW PROCEDURES TO COMPLY WITH REVISIONS TO STATE LAW AND REORGANIZE FOR CLARITY, AMENDING DIVISION 38.240 PART 3 LAND SUBDIVISIONS CREATED BY RENT OR LEASE TO REMOVE LANGUAGE NO LONGER REQUIRED IN STATUTE, AMENDING SECTION 38.240.300 DIVISIONS OF LAND ENTIRELY EXEMPT FROM THE REQUIREMENTS OF THIS CHAPTER PERTAINING TO SUBDIVISIONS AND THE STATE SUBDIVISION AND PLATTING ACT TO INCLUDE NEW STATE RESTRICTION ON COURT ORDERED DIVISIONS 373 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 2 of 78 OF LAND, AMENDING SECTION 38.240.410 TO CLARIFY WHEN CERTIFICATE OF DEDICATION OR CONSENT ARE USED WITH A FINAL PLAT, AMENDING SECTION 38.240.450 TO CHANGE THE SIGNATORY ON THE CERTIFICATE OF COMPLETION OF IMPROVEMENTS TO THE CITY ENGINEER, AMENDING SECTION 38.240.460 TO CLARIFY THE INTENT AND SIGNATORY FOR THE CERTIFICATE ACCEPTING DEDICATIONS TO THE CITY, AMENDING SECTION 38.240.470 TO REVISE THE SIGNATORY FOR THE CERTIFICATE ACKNOWLEDGING EXCLUSION FROM REVIEW FOR SANTIATION, AMENDING SECTION 38.240.500 TO CLARIFY THE CERTIFICATE FOR USE OF THE CERTIFICATE FOR EXEMPTION FOR CERTAIN APPLICATIONS FROM REVIEW AS A SUBDIVISION, AMENDING SECTION 38.240.530 TO REVISE THE SIGNATORY FOR THE CITY ON THE CERTIFICATE, CREATE SECTION 38.240.540 CERTIFICATE OF GOVERNING BODY FOR APPROVAL OF A SUBDIVISION PLAT, AMENDING SECTION 38.250.080 SUBDIVISION VARIANCES TO CLARIFY THAT A PUBLIC HEARING IS NOT HELD ON SUBDIVISION VARIANCES, CREATE SECTION 38.360.280 AGRICULTURAL WATER USER FACILITIES, AMENDING SECTION 38.400.020 TO REVISE CROSS REFERENCE, AMENDING SECTION 38.410.060 TO REVISE REQUIREMENTS FOR AGRICULTURAL WATER USER FACILITIES, AMENDING SECTION 38.410.020 TO REVISE REVIEW PROCESS FOR NEIGHBORHOOD CENTERS, AMENDING SECTION 38.420.050 TO REVISE REVIEW PROCESS FOR SITING PARKS, AMENDING SECTION 38.420.080 TO REVISE REVIEW PROCESS FOR DETERMINATION OF PARK CHARACTERISTICTS PROPOSED WITH NEW DEVELOMPENT; AND PROVIDING AN EFFECTIVE DATE, APPLICATION 21338. WHEREAS, the City of Bozeman (the “City”) has adopted land development and use standards to protect public health, safety and welfare and otherwise execute the purposes of Montana Code Annotated §§ 76-1-102, 76-2-304, 76-3-102, and 76-3-501; and WHEREAS, after proper notice, the Bozeman Planning Board held a public hearing on October 18, 2021 to receive and review all written and oral testimony on the proposed amendments; and WHEREAS, the Bozeman Planning Board recommended to the Bozeman City Commission that application No. 21338, be approved as proposed; and WHEREAS, after proper notice, the Bozeman Zoning Commission held a public hearing on October 25, 2021 to receive and review all written and oral testimony on the proposed amendments; and 374 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 3 of 78 WHEREAS, the Bozeman Zoning Commission recommended to the Bozeman City Commission that application No. 21338, be approved as proposed; and WHEREAS, after proper notice, the City Commission held its public hearing on November 16, 2021, to receive and review all written and oral testimony on the proposed amendment to the subdivision regulations; and WHEREAS, the City Commission has reviewed and considered the applicable amendment criteria established in Montana Code Annotated §§ 76-3-102 and 76-3-501, and found that the proposed amendments 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 has adopted land development and use standards to protect public health, safety and welfare and otherwise execute the purposes of Montana Code Annotated §§ 76-1-102, 76-2-304, 76-3-102, and 76-3-501. 2. The City adopted a growth policy, the Bozeman Community Plan 2020 (BCP 2020), by Resolution 5133 to establish policies for development of the community. 3. Zoning and subdivision regulations must be in accordance with the adopted growth policy. 4. The 2021 Montana Legislature passed multiple bills revising the requirements for the subdivision review process. 5. The City of Bozeman restructured its advisory boards on August 10, 2021 assigning duties and consolidating responsibilities to improve public engagement, consistency of process, 375 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 4 of 78 and effectiveness and such advisory boards are referenced in the subdivision related regulations and therefore the regulations need to be updated to reflect the new boards structure. 6. A staff report analyzing the required criteria for an amendment to the City’s regulations for subdivision review, including accordance to the Bozeman Community Plan 2020, and required contents for local subdivision regulations has found that the required criteria of Montana Code Annotated §§ 76-1-606, 76-3-102, and 76-3-501 are satisfied. 7. A staff report analyzing the required criteria for an amendment to the City’s regulations for zoning review, including accordance to the Bozeman Community Plan 2020, and required criteria for zoning regulations has found that the required criteria of Montana Code Annotated §§ 76-1-304 are satisfied. 8. The required public hearings were advertised as required in state law and municipal code and all persons have had opportunity to review the applicable materials and provide comment. 9. The City Commission considered the application materials, staff analysis and report, Planning Board recommendation, Zoning Commission recommendation, all submitted public comment, and all other relevant information. 10. The City Commission determines that, as set forth in the staff report and incorporating the staff findings as part of their decision, the required criteria for approval of this ordinance have been satisfied. 11. The City Commission determines that the ordinance provides a proper balance of interests, rights, and responsibilities of all parties affected by the ordinance. 12 The City Commission determines that the zoning provisions of Chapter 38, Unified Development Code, contain all necessary elements of MCA 76-8-107, and therefore the state provisions for Buildings for Lease or Rent are not applicable per MCA 76-8-103. 13. The City Commission determines that the adopted growth policy, Bozeman Community Plan 2020, and the zoning provisions of Chapter 38, Unified Development Code, 376 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 5 of 78 contain all necessary elements to meet the requirements of MCA 76-3-616, and therefore subdivisions not including zoning variances are exempt from public hearings and therefore the noticing provisions for subdivisions require revision. 13. The City Commission determines that MCA 76-3-623 establishes new procedural requirements for certain subdivisions which must be incorporated into local subdivision review procedures. Section 2 That Section 38.100.040 of the Bozeman Municipal Code be amended as follows: Sec. 38.100.040. Intent and purpose of chapter. A. The intent of this unified development chapter is to protect the public health, safety and general welfare; to recognize and balance the various rights and responsibilities relating to land ownership, use, and development identified in the United States and State of Montana constitutions, and statutory and common law; to implement the city's adopted growth policy; and to meet the requirements of state law. B. It is the purpose of these regulations to promote the public health, safety and general welfare, including the purposes for subdivision and zoning in MCA 76-1-102, 76-1-606, 76- 2-304, 76-3-102, and 76-3-501 as may be amended from time to time. Further, it is the purpose of these regulations to exercise to the fullest extent the authority of the City’s Charter, utility, and all other powers. by: preventing the creation of private or public nuisances caused by noncompliance with the standards and procedures of this chapter; regulating the subdivision, development and use of land; preventing the overcrowding of land; lessening congestion in the streets and highways; being in accord with the growth policy; providing adequate light, air, water supply, sewage disposal, parks and recreation areas, ingress and egress, and other public improvements; requiring development in harmony with the natural environment; promoting preservation of open space; promoting development approaches that minimize costs to local citizens and that promote the effective and efficient provision of public services; securing safety from fire, panic, and other dangers; protecting the rights of property owners'; requiring uniform monumentation of land subdivisions and transferring interests in real property by reference to a plat or certificate of survey (MCA 76-3-102). It is further the purpose of these regulations to: consider the character of the district and its peculiar suitability for particular uses, conserving the value of buildings, and encouraging the most appropriate use of land throughout the jurisdictional area (MCA 76-2-304). C. Further, to support the purposes of MCA 76-2-304 and 76-3-102, these regulations are intended to promote and to provide for the: Commented [CS1]: As part of the amendments the City is removing text which simply recites state law and replaces it with a citation to the applicable section. This simplifies future updates, ensures that everyone interested is directed to the most up to date state standards, and simplifies the text. State law is available through the State’s website at https://leg.mt.gov/bills/mca/index.html. 377 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 6 of 78 1. Orderly development of the city; 2. Coordination of streets within subdivided land with other streets and roads, both existing and planned; 3. Dedication of land for streets and roadways and for public utility easements; 4. Improvement of streets; 5. Adequate open spaces for travel, light, air and recreation; 6. Adequate transportation, water, drainage and sanitary facilities; 7. Minimization of unnecessary congestion; 8. Avoidance of unnecessary environmental degradation; 9. Encouragement of subdivision development in harmony with the natural environment; 10. Avoidance of danger or injury to health, safety or general welfare by reason of natural hazard or the lack of water, sewer, drainage, access, transportation or other public services; 11. Avoidance of excessive expenditure of public funds for the provision of public services; 12. Manner and form of making and filing of plats for subdivided lands; 13. Administration of these regulations, by defining the powers and the duties of approving authorities, including procedures for the review and approval of all subdivision plats; 14. Division of the city into districts with uniformly applicable standards for development within each district; 15. Standards for the development and use of land; 16. Procedures for the review and approval for the development and use of land; and 17. Establishment of all other requirements necessary to meet the purposes of this chapter. D. Pursuant to MCA 76-2-304, 76-1-605 and 76-1-606, these regulations are also intended to implement the goals and objectives of the city's adopted growth policy. C. This chapter has been evaluated for compliance with the growth policy as part of the process to adopt this chapter, and has been found to comply with the growth policy. Section 3 That Section 38.100.070 of the Bozeman Municipal Code be amended as follows: Sec. 38.100.070. Conditions of approval. A. Regulation of the subdivision and development of land, and the attachment of reasonable conditions to land subdivided or developed, or a use undertaken, is an exercise of valid police power delegated by the state to the city. Persons undertaking the subdivision, 378 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 7 of 78 development or use of land have the duty of complying with reasonable conditions for design, dedication, improvement and restrictive use of the land so as to conform to the physical and economic development of the city, and to the safety and general welfare of the future lot owners and of the community at large. Such conditions may require compliance with more than the minimum standards established by this chapter. B. Conditions of approval may not be added after final action to grant preliminary approval to a proposed subdivision or other development unless: 1. The conditions are necessary to correct inaccurate or incomplete information provided with an application, which error is discovered after the original approval action; and 2. The project is not completed within the time period provided in the approval or by this chapter; or 3. The requirement is part of an improvements agreement and security for completion of required improvements prior to filing a final plat or other development. However, should the owner seek material modifications (e.g., changes to the intent, nature, or scope of a subdivision or development, or necessary improvements) to a previously approved subdivision, development or condition of approval, the entire application must be considered to be again opened for review and additional conditions may be applied. Modifications of conditions of approval must be reviewed through the same process as the original application. Final action includes the resolution of any appeals. The provisions of section 38.240.150 38.240.130.A.5.h may also apply to revisions of conditions for preliminary plats. C. Mandatory cCompliance with the explicit termsrequirements and procedures of this chapter or other duly adopted applicable law, standard, or procedure whether adopted by the City or other authority does not constitute a conditions of approval and is not affected by the limitations of subsection B of this section or other limitations on conditions of approval. Section 4 That Section 38.100.080 of the Bozeman Municipal Code be amended as follows: Sec. 38.100.080. Compliance with regulations required. A. No land may hereafter be subdivided, used or occupied, and no building, structure or part thereof may hereafter be erected, constructed, reconstructed, moved or structurally altered, and no development may commence unless it is in conformity with all of the regulations herein specified for the district in which it is located. It is the obligation of the person proposing the development to demonstrate compliance with all applicable standards and regulations. B. To the extent reasonable, all city-owned land is subject to applicable regulations of the underlying zoning district. 379 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 8 of 78 Section 5 That Section 38.200.010 of the Bozeman Municipal Code be amended as follows: Sec. 38.200.010. Review authority. A. The city commission has the authorityright to review and require revisions to all development proposals subject to this chapter, and delegates that authority in certain circumstances as set forth below. The purpose of this review is to prevent demonstrable adverse impacts of the development upon public safety, health or general welfare, or to provide for its mitigation; to protect public investments in roads, drainage facilities, sewage facilities, water facilities, and other facilities; to conserve the value of adjoining buildings and/or property; to protect the character of the city; to protect the right of use of property; advance the purposes and standards of this chapter and the adopted growth policy; and to ensure that the applicable regulations of the city are upheld. 1. The city commission retains to itself under all circumstances the review of the following: a. Subdivisions which do not qualify as a subdivision exemption per article 2 of this chapter; b. Amendments to the text of this chapter or amendment to the zoning map; c. Requests for cash-in-lieu of parkland dedications, except: (1) In the B-3 zone district; or (2) When by resolution the city commission delegates decisions on cash-in-lieu for development for which it would not otherwise be the review authority. d. Extensions of subdivision preliminary plat approvals for periods greater than two years; e. Planned unit development preliminary plans and major amendments to planned unit developments; f. Appeals from administrative interpretations and final project review decisions; g. Approval of preliminary park master plans when associated with a development for which the City Commission is the review authority; h. Large scale retail per section 38.360.160; i. Exceptions to installation of bikeways and boulevard trails per section 38.400.110.E; j. Conditional use permits when no board of adjustment is established; k. More than two deviations or where deviation is for more than 20 percent of standard; Commented [CS2]: Moves final park plan review to the staff level similar to other final wrap up actions of Commission decisions, moves review of park plans to administrative review for administrative review projects. Commented [CS3]: Moved to City Engineer duties due to Commission adoption of Transportation Master Plan.. 380 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 9 of 78 l. Amendments to text or zoning map per division 38.260. 2. The city commission conducts public hearing for applications under 76-2-402, MCA. B. The community development director must, upon recommendation from the applicable advisory bodies approve, approve with conditions or deny all applications subject to this chapter except those listed below. Decisions of the community development director are subject to the appeal provisions of division 38.250 of this chapter. 1. Projects excluded from community development director review: a. Those applications specifically reserved to another approval authority as stated in this section; b. Development of city property which does not conform to all standards of this chapter; c. Any application involving variances from this chapter; 2. Exception. The city commission may, by an affirmative, simple majority vote of its members at a regularly scheduled meeting reclaim to itself the final approval of a development application normally subject to the approval of the community development director. The vote must occur prior to the action of the community development director. C. When a board of adjustment has been appointed per section 2.05.2800, the board of adjustment must, upon recommendation from the applicable advisory bodies approve, approve with conditions or deny those applications specifically delegated to it by the city commission. Decisions of the BOA are subject to the appeal provisions of division 38.250 of this chapter. 1. Exception. The city commission may, by an affirmative vote of three of its members at a regularly scheduled meeting reclaim to itself the final approval of a development normally subject to the approval of the board of adjustment. The vote must occur prior to the action of the board of adjustment. D. The city engineer must review and upon recommendation from the applicable advisory bodies as needed approve, approve with conditions or deny the following site elements and processes: 1. Site access and storm water for reuse and further development per section 38.230.160.B; 2. Location of storm water facilities within neighborhood centers per section 38.410.020; 3. The placement of private utility easements within public rights-of-way owned or controlled by the city; 4. The maximum length of dead end water mains per section 38.410.070; 5. The maximum length of service lines per section 38.410.070; 6. Exceptions to storm water controls per section 38.410.080; Commented [CS4]: Duplicates 1.b 381 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 10 of 78 7. All modifications or proposed standards in section 38.400.010 except subparagraphsection 38.400.010.A.1, Relation to undeveloped areas; 8. Plans and specifications for public infrastructure and infrastructure to be granted to the public per sections 38.400.060 Street improvement standards paragraphs. A and B.1— 3; 9. Alternate curb return radii per section subparagraph 38.400.090.C.3; 10. Locations and modifications to drive accesses to public streets per sections paragraphs 38.400.090.G and H; 11. Street improvement standards and modifications departures therefrom per section 38.400.060; 12. Departures for street vision triangles per section 38.400.100; 13. Backing into alleys, parking stall aisle and driveway design for surfacing and curbing per section paragraphs 38.540.020.D, F and J; 14. Protection of landscaped areas per section paragraph 38.550.050.H; 15. All actions required of the flood plain administrator per article 6 of this chapter; 16. Modifications in required completion time for subdivision improvements per section subparagraph 38.270.030.B.1; 17. The use of a financial guarantee for paving of streets per section paragraph 38.270.060.CB; 18. The waiver of required information per subparagraph section 38.220.080.A.2.i(3); 19. Requirement for a traffic impact analysis and determination of its contents per section subparagraph 38.220.120.A.2.c(5); 20. Specifications and modifications therefrom for paving of streets and parking areas; 21. Designation of street classifications for collectors and arterials not shown in the long range transportation plan; and 22. Alternate parking angles for surface and structured parking stall configurations listed in Table 38.540.020. All other numeric standards apply. 23. Exceptions or modifications to installation of bikeways and boulevard trails per section 38.400.110.E; E. The director of public works must review and upon recommendation from the applicable advisory bodies as needed approve, approve with conditions or deny the following development elements and processes: 1. Waiver of the requirement to extend water, sewer, and streets to the perimeter of property being developed per section 38.410.070; 2. Provision of water rights as authorized in section 38.410.130; 382 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 11 of 78 3. Subject to section 38.400.060, exceptions to the level of service standards established in section 38.400.060.B.4; 4. Payment of cash in-lieu of capital facilities established in section 38.270.070.C; and 5. Acceptable alternative sidewalk design or materials per section 38.400.080. F. The director of parks and recreation must review, and as needed approve, approve with conditions or deny the following development elements and processes: 1. Ddetermine the classification of recreation pathwaystrails per section 38.420.110.D. 2. Approve final park plans. 3. Approve preliminary park plans when a development is subject to approval by the Director of Community Development 4. Approval of calculations of cash-in-lieu of parkland amounts for development of property when: a. the initial dedication of land per 38.420.020 has been provided; b. money to be paid is to address mitigation of recreation impacts above the minimum land dedication; and c. a park master plan has been approved for the park servicing the land to be developed. G. As detailed in division 38.200 of this chapter, the city commission authorizes the applicable advisory bodies to review and to make recommendations to the review authority regarding development proposals. Under this section, when advisory boards review and make recommendations to the review authority they act in a quasi-judicial capacity. Recommendations do not constitute votes of approval or denial. H. The city commission or its designated representatives may require the applicant to design the proposed development to reasonably minimize potentially significant adverse impacts identified through the review required by these regulations. The city commission or its designated representatives may not unreasonably restrict a landowner's ability to develop land, but it is recognized that in some instances the unmitigated impacts of a proposed development may be unacceptable and will preclude approval of the development as submitted. Recognizing that the standards of this chapter are minimum requirements and the public health, safety, and general welfare may be best served by exceeding those minimums, the city commission or community development director may require as a condition of approval mitigation exceeding the minimums of this chapter. Commented [CS5]: Keeps administrative reviews entirely administrative. 383 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 12 of 78 Section 6 That Section 38.220.030 of the Bozeman Municipal Code be amended as follows: Sec. 38.220.030. Subdivision pre-application submittal materialsplan. A. The pre-application plan may be a freehand sketch, legibly drawn, showing approximate boundaries, dimensions, areas and distances. The plan may be drawn directly on a print of a topographic survey required for the preliminary plat and must include: 1. Sketch map. A sketch map showing: a. The names of adjoining subdivisions and numbers of adjoining certificates of survey, along with adjacent lot and tract lines. b. Location, name, width and owner of existing or proposed streets, roads and easements within the proposed subdivision; existing streets, roads and easements within adjacent subdivisions and tracts; and the name of street or road that provides access from the nearest public street or road to the proposed subdivision. c. Location of all existing structures, including buildings, railroads, power lines towers, and improvements inside and within 100 feet of the proposed subdivision. d. Zoning classification within the proposed subdivision and adjacent to it. The zoning proposed for the subdivision, if a change is contemplated and if an adjacent PUD is in place or proposed. 2. Topographic features. Topographic features of the proposed subdivision and adjacent subdivisions and tracts, including: a. A current U.S. Geological Survey topographic map at the largest scale available with the subdivision clearly outlined. b. Embankments, watercourses, drainage channels, areas of seasonal water ponding, areas within the designated floodway, marsh areas, wetlands, rock outcrops, wooded areas, noxious weeds and areas of active faults. Include copies of any permits listed in section 38.220.020 that have been obtained for the project. 3. Utilities. The existing and proposed utilities located on and adjacent to the proposed subdivision including: a. Location, size and depth of sanitary and storm sewers, water mains and gas lines. b. Location of fire hydrants, electric lines, telephone lines, sewage and water treatment, and storage facilities. 4. Subdivision layout. The proposed layout of the subdivision showing the approximate: a. Subdivision block, tract, and lot boundary lines, with numbers, dimensions, and areas for each block, tract and lot. b. Street location, right-of-way width, and name. 384 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 13 of 78 c. Easement location, width and purpose. d. Sites to be dedicated or reserved as park, common open space or other public areas, with boundaries, dimensions and areas. e. Sites for commercial centers, churches, schools, industrial areas, multi-household units, manufactured housing community and uses other than single-household residences. 5. Development plan. An overall development plan indicating future development of the remainder of the tract, if the tract is to be developed in phases. 6. Name and location. A title block indicating the proposed name, quarter-section, section, township, range, principal meridian and county of subdivision. 7. Notations. Scale, north arrow, name and addresses of owners and developers, and date of preparation. 8. Variances. A list of variance requests which will be submitted with the application for preliminary plat application. 9. Waivers. A list of waivers requested from the requirements of section 38.220.060 must be submitted with the pre-application and an explanation of why such information is not relevant or was previously provided.. The DRC is responsible for granting waivers, and the community development department staff must notify the developer in writing of any waivers granted from section 38.220.060 after the pre-application meeting or plan review. 10. Parks and recreation facilities. The following information must be provided for all land proposed to meet parkland dedication requirements: a. Park concept plan, including: (1) Site plan for the entire property; and (2) The zoning and ownership for adjacent properties; and (3) The location of any critical lands (wetlands, riparian areas, streams, etc.); and (4) General description of land, including size, terrain, details of location and history, water features, and proposed activities; and (5) Description of trails or other recreational features proposed to connect the proposed park area to other park or open space areas. b. If the applicant intends to request approval of cash-in-lieu, a response to the cash- in-lieu review factors established by resolution of the city commission. 12. Affordable housing. Describe how the subdivision proposes to satisfy the requirements of division 38.380. Describe any intended use of 38.380 for creation of affordable housing with the subdivision. 13. Wildlife. Describe key wildlife habitat issues that may be associated with proposed subdivision. Describe how the subdivision will consider fish and wildlife resources in the course of project design. Describe subdivision early planning suggestions from Commented [CS6]: Process step should not be in submittal requirements. 38.240.110 is the better location for the statement. 385 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 14 of 78 local FWP field biologists at FWP regional offices. This description should consider the following: a. The species of fish and wildlife, including those designated as species of concern, that use all or part of the project planning area (proposed subdivision site plus a one-half-mile radius around it) on a year-round, seasonal, or periodic basis. b. Existing vegetation, aquatic habitats, and wildlife habitats in the project planning area (e.g., water bodies and their associated riparian habitat, big game winter range, native grassland or shrub land habitats, areas used by black or grizzly bears). c. The proposed subdivision's potential impacts on wildlife and wildlife habitat, both during construction and at full build-out, taking any applicable fish and wildlife habitat standards into account. 14. Waivers of right to protest. Include copies of or the recorded document numbers of all existing waivers of right to protest special improvement districts or maintenance districts which are applicable to the property proposed to be subdivided. 15. Water rights. Describe how the proposed subdivision intends to satisfy section 38.410.130. Provide documentation of all water rights appurtenant to the proposed subdivision; e.g. previous payment-in-lieu of water rights, groundwater certificates, statements of claim, provisional permits, decreed rights, canal or water users association shares etc. 16. Agricultural water user facilities. Identify the location of all agricultural water user facilities and the contact information for the facility user/representative per 38.360.280. Section 7 That Section 38.220.040 of the Bozeman Municipal Code be amended as follows: Sec. 38.220.040. Subdivision preliminary plat. A. The preliminary plat must be legibly drawn as specified in the application form provided by the community development department. Where accurate information is required, surveying and engineering data must be prepared under the supervision of a registered engineer or registered land surveyor, licensed in the state, as their respective licensing laws allow. The plat submittal must include the following: 1. Pre-application information. All information required with the pre-application plan, as outlined in section 38.220.030. 2. Subdivision information. Name and location of the subdivision, scale, scale bar, north arrow, date of preparation, lots and blocks (designated by number), the dimensions and area of each lot, and the use of each lot, if other than for single-household. Commented [CS7]: Clarify what is or is not a matter of concern for subdivision review. Not concerned with analysis on robins for example. 386 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 15 of 78 23. Subdivision map. Map of entire subdivision as specified on the application form provided by the community development department. 34. Streets, roads and grades. All streets, roads, alleys, avenues, highways and easements; the width of the right-of-way, grades and curvature of each; existing and proposed road and street names; and proposed location of intersections for any subdivision requiring access to arterial or collector streets. 45. Adjoining subdivisions. The names of adjoining platted subdivisions and numbers of adjoining certificates of survey. 56. Adjoining owners. Names and addresses of record owners of lots and tracts immediately adjoining the proposed subdivision. 67. Perimeter survey. An approximate survey of the exterior boundaries of the platted tract with bearings, distances, and curve data indicated outside of the boundary lines. When the plat is bounded by an irregular shoreline or a body of water, the bearings and distances of a closing meander traverse must be given. 78. Section corner. The approximate location of all section corners or legal subdivision corners of sections pertinent to the subdivision boundary. 89. Phased improvements. If the required improvements are to be completed in phases after the final plat is filed, the approximate area of each phase must be shown on the plat. If a phase depends on improvements not included within the geographic area of a phase, or if timing of construction of improvements is separate from the timing of construction of that phase, those improvements and associated phases must be identified. 910. Contours. Ground contours must be provided for the tract according to the following requirements: Table 38.220.040 Where the average slope is: Contour intervals must be: Under 10 percent 2 feet (if all lots are over one acre in size, five feet intervals may be used) Between 10 and 15 percent 5 feet Greater than 15 percent 10 feet 1110. Waivers. List of waivers granted from the requirements of section 38.220.060 during the pre-application process must be submitted with the preliminary plat application. 1211. Request for exemption from department of environmental quality review. If the developer is proposing to request an exemption from the department of environmental quality for infrastructure plan and specification review, the preliminary plat application must include a written request from the developer's professional engineer, licensed in the state, that indicates the intent to request the exemption, and details the extent of 387 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 16 of 78 water, sewer and stormwater infrastructure that will be completed prior to final plat approval. A detailed preliminary stormwater drainage plan must also be submitted with the written request. 13. Sanitation information. When the subdivision does not qualify for the certification established in section 38.240.170 the subdivider must provide the information regarding sanitation set forth in MCA 76-3-622. Sec. 38.220.050. Preliminary plat supplements required for all subdivisions. AB. The following supplemental information must be submitted along with the preliminary plat. 1. Area map. A map showing all adjacent sections of land, subdivision, certificates of survey, streets and roads. 2. Subdivision map. Map of entire subdivision as specified on the application form provided by the community development department. 32.Non-compliance with standards. Provide a written response to: a. Variances. Provide Aa written statement describing any requested subdivision variance and the facts of hardship upon which the request is based (refer to division 38.250 of this chapter). b. All others. Provide Aa written statement: describing any intended departure, deviation, modification, non-compliance or alternative compliance to any standard applicable to a subdivision review;, providing a BMC citation to the authority authorizing the by which such non-compliance; is authorized by BMC citation, and providing the applicable criteria of review. 34. Noticing materials required by section 38.220.420. 45. Documents and certificates. Draft copy of the following documents, and certificates to be printed on or to accompany the preliminary plat: a. Covenants, restrictions and articles of incorporation for the property owners' association if covenants are proposed to ensure compliance with regulatory standards. b. Encroachment permits or a letter indicating intention to issue a permit where new streets, easements, rights-of-way or drive aisles intersect state, county or city highways, streets or roads. c. A letter of approval or preliminary approval from the city where a zoning change is necessary. cd. A draft of such other appropriate certificates. de. Provision for maintenance of all streets (including emergency access), parks open spaces to meet requirements of 38.420 or 38.410.040or otherwise, storm water Commented [CS8]: Changes with the review process. Expedited subdivisions may not have anything other than direct code compliance. 388 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 17 of 78 facilities, and other required improvements if not dedicated to the public, or if private. 56. Street profile sheets. Profile sheets for street grades greater than five percent. 67. Application and fee. Completed preliminary plat application form, with the original signatures of all owners of record or their authorized representatives, and the required review fee. If an authorized representative signs on behalf of an owner of record, a copy of the authorization must be provided. 8. Noxious weed management and revegetation plan. Noxious weeds must be controlled in all developments as directed by the county weed control district (district) in accordance with the Montana County Noxious Weed Control Act (MCA 7-22-21). The developer must have any noxious weeds identified and their location mapped by a person with experience in weed management and knowledgeable in weed identification. A noxious weed management and revegetation plan approved by the district for control of noxious weeds must be submitted with the preliminary plat application. This plan must ensure the control of noxious weeds upon preliminary plat approval and the revegetation of any land disturbed during the construction of subdivision improvements. 9. Sanitation information. When the subdivision does not qualify for the certification established in section 38.240.100 the subdivider must provide the information regarding sanitation set forth in MCA 76-3-622. Section 8 That section 38.220.060 of the Bozeman Municipal Code be amended as follows: Sec. 38.220.060. Additional subdivision preliminary plat supplements Documentation of compliance with adopted standards. A. The following list of preliminary plat application supplements information must also be provided for with all subdivisions preliminary plat applications in order to document compliance with adopted development standards unless waived by the development review committee during the pre-application process per 38.240.110. The developer must include documentation of any waivers granted by the city after the pre-application meeting or plan review. Additional relevant and reasonable information may be required to adequately assess whether the proposed subdivision complies with this chapter, and the Montana Subdivision and Platting Act, and other applicable standards. The need for additional information is determined during the pre-application process. 1. Surface water. a. Mapping. Locate on a plat overlay or sketch map all surface waters and the delineated floodplain which may affect or be affected by the proposed subdivision including: Commented [CS9]: Same wording was relocated elsewhere. Commented [CS10]: Enable use of simplified subdivision review processes of 76-3-616 and Senate Bill 161. 389 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 18 of 78 (1) Natural water systems such as natural streams, creeks, stream/ditches, drainages, waterways, gullies, ravines or washes in which water flows either continuously or intermittently and has a definite channel, bed and banks. (2) Artificial water systems such as canals, ditches, ditch/streams, aqueducts, reservoirs, irrigation or drainage systems. b. Description. (1) Describe all surface waters which may affect or be affected by the proposed subdivision including name, approximate size, present use and time of year when water is present. (2) Describe proximity of proposed construction (such as buildings, sewer systems, streets) to surface waters. c. Water body alteration. Describe any existing or proposed streambank or shoreline alterations or any proposed construction or modification of lake beds, watercourses or irrigation ditches. Provide information on location, extent, type and purpose of alteration. Provide a revised floodplain analysis report, in compliance with article 6 of this chapter, as appropriate. d. Wetlands. If the subdivision contains wetlands, as defined in section 38.700.210 of this chapter, then a delineation of the wetland meeting standards of Division 38.610 must be provided and the location of existing and proposed modifications to wetlands must be shown on an overlay of the proposed plat. must be shown on the preliminary and final plats. e. Permits. Include copies of any permits listed in section 38.41.020 that have been obtained for the project. 2. Floodplains. A floodplain analysis report must be submitted with the preliminary plat in compliance with Division 38.600 article 6 of this chapter. 3. Groundwater. a. Depth. Establish the seasonal minimum and maximum depth to the water table, dates on which these depths were determined, and the location and depth of all known aquifers which may be affected by the proposed subdivision. The high water table must be determined from tests taken during the period of major concern as specified in writing by the county environmental health department. Specific locations for test holes may also be determined by the county environmental health department. b. Steps to avoid degradation. Describe any steps necessary to avoid the degradation of groundwater and groundwater recharge areas. 4. Geology; soils; slopes. a. Geologic hazards. Identify geologic hazards affecting the proposed subdivision which could result in property damage or personal injury due to rock falls or 390 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 19 of 78 slides; landslides, mud or snow; surface subsidence (i.e., settling or sinking); or seismic activity. b. Protective measures. Explain what measures will be taken to prevent or materially lessen the danger of future property damage or injury due to any of the hazards referred to in subsection A.4.a of this section. c. Unusual features. Provide a statement describing any unusual soil, topographic or geologic conditions on the property which limit the capability for building or excavation using ordinary and reasonable construction techniques. The statement should address conditions such as shallow bedrock, high water table, unstable or expansive soil conditions, and slope. On a map, identify any slopes in excess of 15 percent grade. d. Soils map. The subdivision must be overlaid on the county soil survey maps obtained from the Natural Resource and Conservation Service (NRCS). The maps are 1:24,000 in scale. These maps may be copied without permission. However, enlargement of these maps could cause misunderstanding of the detail of mapping. Soils were mapped using a minimum delineation of five acres, and these soils reports were intended to alert developers to possible problems and the need for a more detailed on-site investigation. The developer must provide the following soil reports, which can be obtained from the NRCS: (1) The physical properties and engineering indexes for each soil type; (2) Soil limitations for utilities, building and site development, and water features for each soil type; (3) Hydric soils report for each soil type. If hydric soils are present, the developer must provide a wetlands investigation by a certified consultant, using the current Federal Manual for Identifying and Delineating Jurisdictional Wetlandsper Division 38.610; and (4) The developer must provide any special design methods planned to overcome the above limitations. e. Cuts and fills. Describe the location and amount of any cut or fill three or more feet in depth. These cuts and fills should be indicated on a plat overlay or sketch map. Where cuts or fills are necessary, describe any plans to prevent erosion and to promote revegetation such as replacement of topsoil and grading. 5. Vegetation. a. Vegetation map. On a plat overlay or sketch map : (1) Indicate the distribution of the major vegetation types such as marsh, grassland, shrub, coniferous forest, deciduous forest or mixed forest. (2) Iidentify critical plant communities such as stream bank or shoreline vegetation; vegetation on steep, unstable slopes; and vegetation on soils highly susceptible to wind or water erosion. 391 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 20 of 78 b. Protective measures. Describe measures to preserve trees and critical plant communities (e.g., design and location of streets, lots and open spaces). c. Noxious weed management and revegetation plan. Noxious weeds must be controlled in all developments as directed by the county weed control district (district) in accordance with the Montana County Noxious Weed Control Act (MCA 7-22-21). The developer must have any noxious weeds identified and their location mapped by a person with experience in weed management and knowledgeable in weed identification. A noxious weed management and revegetation plan approved by the district for control of noxious weeds must be submitted with the preliminary plat application. This plan must ensure the control of noxious weeds upon preliminary plat approval and the revegetation of any land disturbed during the construction of subdivision improvements. 6. Wildlife. a. Species. Describe any endangered species or species of concern fish and wildlife which use the area affected by the proposed subdivision. b. Critical areas. Identify on a plat overlay or sketch map of the proposed subdivision any known critical, significant or "key" wildlife areas, such as big game winter range, waterfowl nesting areas, habitat for rare or endangered species or wetlands. c. Pets/human activity. Describe the expected effects of pets and human activity on wildlife. cd. Public access. Describe the effects on public access to public lands, trails, hunting or fishing areas. de. Protective measures. Describe any proposed measures to protect or enhance wildlife habitat or to minimize degradation (e.g., keeping building and streets back from shorelines, setting aside wetlands marshland as undeveloped open space). ef. Discussion of impact; documentation. The developer must discuss the impact of the proposed development on fish and wildlife with the state department of fish, wildlife and Parks (FWP). With the preliminary plat application, the developer must provide written documentation from FWP that: (1) Verifies that FWP has reviewed the proposed plat; (2) Lists any FWP recommendations; and (3) Outlines any mitigation planned to overcome any adverse impacts. 7. Historical features. a. Affected areas. Describe and locate on a plat overlay or sketch map any known or possible historic, paleontological, archaeological, or cultural sites, structures, or objects which may be affected by the proposed subdivision. b. Protective measures. Describe any plans to protect such sites or properties. 392 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 21 of 78 c. Procedures. Describe procedures to be followed if any historic, paleontological, archaeological, cultural sites, structures or object are found on site during site preparation and construction. d. Discussion of impact; documentation. The developer must discuss the impact of the proposed development on any historic features, and the need for inventory, study and/or preservation with the state historic preservation office (SHPO). The developer must provide written documentation from SHPO that: (1) Verifies that SHPO has reviewed the proposed plat; (2) Lists any SHPO recommendations; (3) Outlines any plans for inventory, study, and/or preservation; and (4) Describes any mitigation planned to overcome any adverse impacts. e. Preparation of information. Information on historical sites must be prepared by a qualified professional, including persons with a professional or educational background in history, architectural history, archaeology, art history, historic preservation, anthropology and cultural resource management. 78. Agriculture. When a proposed development is adjacent to land used for agricultural production. a. Number of acres in production and type of production. b. Agricultural operations in the vicinity, and other uses of land in the general vicinity. c. The productivity of the land. d. Whether or not the property is part of a viable farm unit, and whether the property was under production during the last regular season. ea. What measures will be taken, if any, to control family pets. fb. Fencing of agricultural land. Describe any existing fence lines around the subdivision development boundary which protect agricultural lands under an ownership other than of the developer, and describe any measure which will be taken to ensure that the owners of the subdivision development will share with the owner of the agricultural lands in the continued maintenance of the fence. 89. Agricultural water user facilities. a. Type, description, ownership and users of facilities per 38.360.280 and 38.410.060. b. Written documentation demonstrating active use of facilities, for example the delivery of non-potable water supplies for irrigation, conversion to stormwater facilities, or other use. If a facility is not being actively used nor intended to be used in the future, include a written plan for discontinuance including all documentation required pursuant to Montana Law. Commented [CS11]: Per Growth Policy if we annexed it it has already been decided it was ok to take out of ag operations. 393 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 22 of 78 c. Describe any proposed realignment. All realignments must comply with all relevant requirements of Montana law. d. Information from the owner(s) of the facility concerning the proposed use or discontinuance of the facility. 910. Water and sewer. Provide an engineering design report and/or other documentation demonstrating that adequate water distribution systems and capacity, and sewage collection and disposal systems and capacity, exists or will be provided to serve the proposed subdivision consistent with the City’s adopted design standards and Chapter 40. a. Water rights. Describe how the proposed subdivision intends to satisfy section 38.410.130. Provide documentation of all water rights appurtenant to the proposed subdivision; e.g. previous estimates or actual payment-in-lieu of water rights, certified well logs, decrees or adjudications, etc. b. The information needed to demonstrate proposed compliance with 38.270. Special care is needed when concurrent construction is proposed. 1011. Stormwater management. A stormwater management plan meeting the requirements of section 40.04.700 and the city's adopted stormwater master plan. 1112. Streets, roads and alleys. a. Description. Describe any proposed new public or private streets, roads or alley, or substantial improvements of existing public or private streets, roads or alleys. The developer must demonstrate that the land to be subdivided has access onto a legal street and the future streets will be consistent with the City’s adopted design standards, Article 34.4, the long range transportation plan, and other relevant standards. b. Bicycle and pedestrian pathways, lanes and routes. Describe bicycle and pedestrian pathways, lanes or routes to be developed with the development. cb. Access to arterial. Discuss whether any of the individual lots or tracts have access directly to arterial streets or roads, and if so, the reason access was not provided by means of a street within the subdivision and how the access complies with section 38.400.090. dc. Modification of existing streets, roads or alleys. Explain any proposed closure or modification of existing streets, roads or alleys. ed. Dust. Describe provisions considered for dust control on alleys. fe. Pollution and erosion. Explain how street, road and alley maintenance will be provided to meet the department of environmental quality guidelines for prevention of water pollution and erosion and who is proposed to provide the required maintenance. 394 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 23 of 78 gf. Traffic generation. Discuss how much daily traffic will be generated on existing local and neighborhood streets, roads and alleys, when the subdivision is fully developed, and provide the following information: (1) The report format must be as follows: (a) Trip generation, using the Institute of Transportation Engineers Trip Generation Manual; (b) Trip distribution; (c) Traffic assignment; (d) Capacity analysis; (e) Evaluation; and (f) Recommended access plan, including access points, modifications, and any mitigation techniques if level of service does not meet level of service standard. (2) The report must include the following information: (a) Land use and trip generation in the form of a table of each type of land use, the number of units or square footage, as appropriate, the trip rates used (daily and peak) and resulting trip generation. (b) Traffic graphics, which show: (i) A.M. peak hour site traffic; (ii) P.M. peak hour site traffic; (iii) A.M. peak hour total traffic; (iv) P.M. peak hour total traffic; and (v) Total daily traffic (with site-generated traffic shown separately). (c) A.M. and P.M. capacity analysis with an A.M. and P.M. peak-hour capacity analysis provided for: (i) All major drive accesses that intersect collector or arterial streets or roads; and (ii) All arterial-arterial, collector-collector and arterial-collector intersections within one-half mile of the site, or as required by the city engineer during the pre-application review, concept plan review, or informal project review. (d) For two-way stop controlled intersections, analysis of whether the intersection would satisfy signalization warrants if the two-way stop control was removed. 395 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 24 of 78 hg. Capacity. Indicate the levels of service (before and after development) of existing and proposed streets and roads, including appropriate intersections, to safely handle any increased traffic. Describe any anticipated increased maintenance that will be necessary due to increased traffic and who will pay the cost of maintenance. h. Bicycle and pedestrian pathways, lanes and routes. Describe bicycle and pedestrian pathways, lanes or routes to be developed with the development. i. Traffic calming. Detailed drawings of any proposed traffic calming installations, including locations and turning radius templates. j. The information needed to demonstrate proposed compliance with 38.270. Special care is needed when concurrent construction is proposed. 1213. Non-Municipal Utilities. The developer must submit a copy of the subdivision plat to all relevant utility companies. With the preliminary plat, the developer must provide written documentation of the following: a. Affected utilities. Indicate which affected utilities the subdivision plat has been submitted to for review, and include a copy of responses. b. Include a description of: (1) The method of furnishing electric, natural gas, cable TV, internet or telephone service, where provided. (2) Estimated timing of each utility installation. (3) The developer must provide a written statement from the utility companies that the proposed subdivision can be provided with service. c. Non-municipal utility locations shall be coordinated with locations of municipal utilities. 14. Educational facilities. With the preliminary plat, provide a written statement from the administrator of the appropriate school system indicating whether the increased enrollment can be accommodated by the present personnel and facilities and by the existing school bus system. 1315. Land use. a. Indicate the proposed use and number of lots or spaces in each: (1) Residential area, single-household; (2) Residential area, multiple-household. Types of multiple-household structures and numbers of each (e.g., two or four unit structures); (3) Planned unit development (number of units); (34) Condominium (number of units); (5) Manufactured housing community (number of units); Commented [CS12]: PUD isn’t a subdivision land use type, it is a review process. Commented [CS13]: Manufactured homes are another form of single household residence. 396 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 25 of 78 (46) Recreational vehicle park; (57) Commercial or industrial; and (68) Other (please describe). 1416. Parks and recreation facilities. The following information must be provided for all land used to meet parkland dedication requirements: a. Park plan. A park plan, including: (1) Site plan with one-foot contour topographic survey for the entire property; showing proposed developer installed improvements on the initial park plan and proposed future improvements on the future park plan, and phasing proposed if any, exact product specifications are not required; (2) Drainage areas; (3) Utilities within, serving, and adjacent to the property; (4) The zoning and ownership for adjacent properties; Existing or proposed utility easements within the property; (5) The location of any critical lands (wetlands, riparian areas, streams, etc.) and location of watercourse setbacks and any permits from non-city agencies required to execute the proposed plan; (6) Park conceptual landscaping plan, prepared by a qualified landscape professional in accordance with section 38.220.100 unless the parks department has adopted an alternate plan standard, showing the location and specific types and species of plants, shrubs, trees as well as grass seed mixes and the irrigation system including but not limited to identification of water source, points of connection, mains, laterals, valves, zones, and sprinkler heads; (7) General description of land, including size, terrain, details of location and history, water features, and proposed activities; (8) Trail design and construction showing compliance with adopted city standards and trail classifications; (9) The requirement for approval of the final park plan by the review authority with a recommendation from the city recreation and parks advisory board prior to any site work; (10) The requirement for a preconstruction meeting prior to any site work; (911) Appropriate sections from the design guidelines for city parks; (102) Cost estimate, installation phasing and responsibility, and maintenance plan tasks and responsibility for custom features or atypical designsall improvements; (113) If playground equipment will be provided with initial installation by the subdivider, information including the manufacturer, installation data and 397 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 26 of 78 specifications, installer, type of fall zone surfacing and age group intended for use; otherwise a general identification of proposed function; (124) Soils information and analysis; (135) A description of how the proposed park plan is consistent with the goals of the city's current long range parks plan for parks; (146) A description of how the proposed park will meet the recreational needs of the residents of the development; (157) The proposed manner of providing irrigation to the park including water source, amount of water expected to be consumed annually, and proposed manner of transfer of water facilities and rights to the city; and (168) A phase I environmental assessment of the area proposed to be transferred to the city or property owner's association. b. Park maintenance. (1) Maintenance information, including levels of maintenance, a maintenance schedule, and responsible parties; (2) Weed control plan, including responsible parties; and (3) Plan for garbage collection, snow removal and leaf removal including responsible parties. bc. Irrigation information. (1) An irrigation system map generally showing the locations and types of lines, including depth, water source, heads, electric valves, quick couplers, drains and control box; and (2) If a well will be used for irrigation, a certified well log must be submitted showing depth of well, gpm, pump type and size, voltage, water rights, etc. cd. Phasing. If improvements will be phased, a phasing plan must be provided including proposed financing methods and responsibilities. de. Cash-in-lieu and Improvements-in-lieu. If the development includes a proposal for cash-in-lieu or improvements-in-lieu of park a specific justification responding to the cash- in-lieu review factors established by resolution of the city commission. If improvements-in-lieu are proposed specific costs of proposed improvements and costs to install must be provided. 1517. Neighborhood center plan. A neighborhood center plan must be prepared and submitted for all subdivisions containing a neighborhood center. 1618. Lighting plan. The following subdivision lighting information must be submitted for all new subdivisions development where lighting is proposed other than within the street right of way: a. For subdivision applications where lighting is required or proposed, l ighting plans must be submitted to the city for review and approval, and must include: Commented [CS14]: Expectation is that anything within the ROW will be addressed through Engineering plan and specification review later. 398 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 27 of 78 (1) Isofootcandle plots for individual fixture installations, and ten-foot by ten- foot illuminance-grid plots for multifixture installations, which demonstrate compliance with the intensity and uniformity requirements as set forth in this chapter. (2) Description of the proposed equipment, including fixture manufacturer's cutsheets, photometrics, glare reduction devices, lamps, on/off control devices, mounting heights, pole foundation details and mounting methods. (3) The lighting plan must be prepared, and certified for compliance with the city's design requirements and illumination standards, by a qualified lighting professional. Qualified lighting professionals include electrical engineers, architects, lighting designers and manufacturers representatives. (4) Lighting calculations may include only the illuminated areas; areas occupied by buildings or other nonlighted areas must be excluded from calculations. Proposed fixture locations, types, source of power, and demonstration of compliance with city lighting standards. b. When requested by the city, the applicant must also submit a visual-impact plan that demonstrates appropriate steps have been taken to mitigate on-site and off- site glare and to retain the city's character. c. Post-approval alterations to lighting plans or intended substitutions for approved lighting must only be made after city review and approval. 1719. Miscellaneous. a. Public lands. Describe how the subdivision will affect access to any public lands. Where public lands are adjacent to or within 200 feet of the proposed development, describe present and anticipated uses for those lands (e.g., open space, recreation, etc.), and how public access will be preserved/enhanced. b. Hazards. Describe any health or safety hazards on or near the subdivision, such as mining activity or potential subsidence, high pressure gas lines, dilapidated structures or high voltage power lines. Any such conditions must be accurately described and their origin and location identified. List any provisions that will be made to mitigate these hazards. Also describe any on-site or off-site land uses creating a nuisance. c. Wildlands-urban interface. Describe the subdivision's location within or proximity to the wildlands-urban interface (WUI) and ember zone designated by the most recent city-adopted hazard mitigation plan. Describe any hazard from the subdivision's proximity to the WUI. List any provisions that will be used to mitigate these hazards and reduce structure ignitability. 1820. Affordable housing. Describe how the subdivision will integrate with satisfy the requirements of division 38.380. The description must be of adequate detail to clearly identify those lots complying withdesignated as subject to division 38.380 compliance 399 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 28 of 78 requirements and to make the obligations placed on the affected lots readily understandable. a. On all lots intended to comply with be used to satisfy the requirements of division 38.380, the allowable building envelope must be depicted. 19. A description of how the proposed subdivision advances the adopted growth policy. Section 9 That Section 38.220.070 of the Bozeman Municipal Code be amended as follows: Sec. 38.220.070. Final plat. A. The following materials must be provided with each application for final plat approval. Materials must be provided in the number of copies and form established by the director of community development. 1. The developer must submit with the application for final plat review and approval, a written narrative stating how each of the conditions of preliminary plat approval and noted code provisions or other demonstrations of compliance with standards have been satisfactorily addressed. This narrative must be in sufficient detail to direct the reviewer to the appropriate plat, plan, sheet, note, covenant, etc. in the submittal. 21. A letter from the city engineer certifying that the following documents have been received: a. As-built drawings, i.e., copies of final plans, profiles, grades and specifications for public improvements, including a complete grading and drainage plan; and/or b. Approved and executed concurrent construction plan or improvements agreement. bc. Copy of the state highway access or encroachment permit where a street created by the plat will intersect with a state highway. 32. Noxious weed MOU. Prior to final plat approval, a memorandum of understanding must be entered into by the weed control district and the developer. The memorandum of understanding must be signed by the district and the developer prior to final plat approval, and a copy of the signed document must be submitted to the community development department with the application for final plat approval. 43. Final park plan. For all land used to meet parkland dedication requirements, a final park plan must be submitted to the city for review and approval prior to final plat. The final park plan must include all of the information listed in section 38.220.060.A.1516 and must include evidence of compliance with the installation requirements of division 38.270. 54. Irrigation system as-builts. The developer must provide irrigation system as-builts, for all irrigation installed in public rights-of-way and/or land used to meet parkland dedication requirements, once the irrigation system is installed. The as-builts must 400 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 29 of 78 include the exact locations and type of lines, including accurate depth, water source, heads, electric valves, quick couplers, drains and control box. 65. Affordable housing. If the plat has used the provisions of division 38.380, Tthe developer must provide a description of how the subdivision has complied with division 38.380. The description must be of adequate detail to clearly identify those lots designated as subject to division 38.380 compliance requirements and to make the obligations placed on the affected lots readily understandable. 76. Conditions of approval. A sheet(s) of the plat depicting conformance with subdivision application approval must be submitted as set forth in 24.183.1107 ARM as may be amended and as required by the county clerk and recorder, and must: a. Be entitled "Conditions of Approval of [insert name of subdivision]" with a title block including the quarter-section, section, township, range, principal meridian, county, and, if applicable, city or town in which the subdivision is located. b. Contain any text and/or graphic representations of requirements by the governing body for final plat approval including, but not limited to, setbacks from streams or riparian areas, floodplain boundaries, no-build areas, building envelopes, or the use of particular parcels. c. Include a certification statement by the landowner that the text and/or graphics shown on the conditions of approval sheet(s) represent(s) requirements by the governing body for final plat approval and that all conditions of subdivision application have been satisfied. d. Include a notation stating that the information shown is current as of the date of the certification, and that changes to any land-use restrictions or encumbrances may be made by amendments to covenants, zoning regulations, easements, or other documents as allowed by law or by local regulations. e. Include a notation stating that buyers of property should ensure that they have obtained and reviewed all sheets of the plat and all documents recorded and filed in conjunction with the plat, and that buyers of property are strongly encouraged to contact the local community development department and become informed of any limitations on the use of the property prior to closing. f. List all associated recorded documents and recorded document numbers. g. Include a tabulation of parkland credit for the entire subdivision and attributed to each lot. h. Include a tabulation of open space. i. List easements, including easements for agricultural water user facilities. 87. Documents. The following documents must accompany the final plat: a. A title report or certificate of a title abstractorsubdivision guarantee per MCA 76- 3-612; b. Any covenants or deed restrictions relating to the subdivision; 401 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 30 of 78 c. The security required pursuant to section 38.270.060, securing the future construction of any remaining private or public improvements to be installed; d. Unless otherwise provided in this chapter, copies of final plans, profiles, grades, and specifications for improvements, including a complete grading and drainage plan, with the certification of a professional engineer that all required improvements which have been installed are in conformance with the attached plans. The subdivider must file copies of final plans, profiles, grades, and specifications for improvements, including a complete grading and drainage plan, with the certification of a professional engineer that all required improvements which have been installed are in conformance with the attached plans, with the city engineering division, of the department of public works and the city parks department. A statement must be included on the conditions of approval sheet stating where the plans can be obtained; e. If a street, alley, avenue, road, or highway created by the plat will intersect with a state or federal right-of-way, a copy of the access or encroachment permit; f. A title report or certificate of a title abstractor subdivision guarantee for any off- site land intended to satisfy park dedication requirements. The subdivision guarantee must be dated no earlier than 30 calendar days prior to submittal.; g. Any deeds and real estate transfer certificate, or other documents for transfer of land and/or improvements to the city or the property owners' association or other entity; h. Any deeds or documents for transfer of water rights; including but not limited to all required state department of natural resources and conservation documentation, e.g. ownership update form, permit, groundwater certificate and/or change authorization; and i. Any other documents satisfying subdivision application approval required by the governing body to be filed or recorded. 9. For non-public improvements, the developer must provide certification by the architect, landscape architect, engineer or other applicable professional that all improvements, including, but not limited to, landscaping, ADA accessibility requirements, private infrastructure, and other required elements were installed in accordance with the approved plans and specifications, or plat as applicable, unless a waiver of certification in whole or part is explicitly approved by the DRC. 8. The developer must submit with the application for final plat review and approval, a written narrative stating how each of the conditions of preliminary plat approval and noted code provisions have been satisfactorily addressed. This narrative must be in sufficient detail to direct the reviewer to the appropriate plat, plan, sheet, note, covenant, etc. in the submittal. 402 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 31 of 78 Section 10 That Division 38.220 Part 2 of the Bozeman Municipal Code be amended as follows: Sec. 38.220.300. General. When required, the supplementary documents described in this division, must be submitted in draft form with the preliminary plat or plan, and signed and notarized with the final plat or plan. The proper notary block must be used. Sec. 38.220.310. Property owners' association. A. The City must approve the governing documents or amendments to the governing documents of a subdivision or other development if as part of the approval the city required the governing documents to include provisions that directly and materially address a condition of approval or other adopted standards related to the development including but not limited to 38.270.090. BA. When ApplicableGeneral. If the review authority determines a common area or open space, facility, or any other infrastructure is to be created or constructed as part of the development and such common area or open space, facility, or infrastructure is required to be either owned by or maintained by the property owners' association the developer must provide supplemental documents, as applicable, that (i) transfer ownership of common area, facility, or infrastructure to the property owners' association; (ii) provide for the perpetual maintenance of common area, facility, or infrastructure by the property owners' association; and (iii) identify if access to the common area open space or facility is available to the public or is restricted to the members of the property owners' association. Property owners' association bylaws or the declaration of covenants, conditions and restrictions must be prepared and recorded with the final plat or plan. CB. Bylaws or covenants, conditions and restrictions contents. The items listed below are required to be included in the property owners' association bylaws or declaration of covenants, conditions and restrictions and must be clearly identified within the documents. The covenants must at a minimum, provide: 1. The property owners' association will be formed before any properties are sold. 2. Membership is automatic and mandatory for each property or unit buyer and any subsequent buyer. 3. Means of enforcing the covenants, and of receiving and processing complaints. 4. Common area and facilities must be perpetually reserved. 5. The association is responsible for liability insurance, any applicable tax assessments and the maintenance of any common area or facilities. 403 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 32 of 78 6. Property or unit owners must pay a pro rata share of the cost of any common expenses, with any assessment charged by the association becoming a lien where necessary on individual parcels. 7. The association may adjust the assessment to meet changed needs. 8. The conditions and timing of the transfer of ownership and control of common areas and facilities from the declarant to the association. 9. The permission of the city commission is required before the association can be dissolved or the boundaries altered. 10. Regular maintenance program for items included in section 38.270.090.A and any other common area and facilities and that the association is responsible for the maintenance program. DC. If the property owners' association fails to install or maintain improvements according to approved plans, the city may, at its option, complete construction of improvements and/or maintain improvements in compliance with section 38.220.320200 and division 38.270 of this chapter. The city's representative, contractors and engineers must have the right to enter upon the property and perform such work, and the property owners' association must permit and secure any additional permission required to enable them to do so. The city will bill the property owners' association for any costs associated with the installation or maintenance of improvements. D. For a multiphase project, the property owners' association must be created for the entire project with the first phase. E. To ensure continued maintenance of common areas and facilities, and on-going fulfillment of all obligations no property may be removed from the property owners' association without prior approval by the city commission. Sec. 38.220.320. Covenants. A. The city may require covenants to be recorded with the final plat or condominium when it is determined they are necessary for the protection of the public health, safety and general welfare and compliance with conditions of approval or compliance with standards including but not limited to 38.270.090. Review of covenants must comply with section 38.240.150.A.3. All covenants must be considered to run with the land. If the covenants are not marked or noted on the final subdivision plat or other final approval document, they must be contained in a separate instrument which must be recorded with the final plat or prior to final approval of other applications. The covenants may be required to include, but are not limited to, the following provisions: 1. That all county declared noxious weeds will be controlled as required in MCA Title 7, Chapter 22, Part 21. 2. A section addressing agricultural uses of neighboring properties in the following form: Commented [CS15]: The state added restrictions on what the City can control in covenants this session. 404 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 33 of 78 "Lot owners and residents of the subdivision are informed that adjacent uses may be agricultural. Lot owners accept and are aware that standard agricultural and farming practices can result in dust, animal odors and noise, smoke, flies, and machinery noise. Standard agricultural practices feature the use of heavy equipment, chemical sprays and the use of machinery early in the morning and sometimes late into the evening." 3. That all fences bordering agricultural lands must be maintained by the landowners in accordance with MCA Title 70 Chapter 16 Part 2, Title 81 Chapter 4 Part 1, or other relevant state law. 4. That any covenant which is required as a condition of the preliminary plat approval or other development and required by the city commission may not be amended or revoked without the mutual consent of the owners in accordance with the amendment procedures in the covenants, and the city commission. 5. Common area and facility maintenance plan. The developer must submit a legal instrument setting forth a plan consistent with 38.270.090 providing for the permanent care and maintenance of common areas and facilities. The same must be submitted to the city attorney and must not be accepted by the city until approved as to legal form and effect. Common areas and facilities must be deeded to a property owners' association and, the applicant must record the proposed documents governing the association at the time of final plat filing. Creation of a special maintenance district satisfies this requirement. 6. Common area and facility maintenance guarantee and process. In the event the organization or any successor organization established to own and maintain common areas and facilities, must at any time fail to maintain the common areas or facilities in reasonable order and condition in accordance with the approved plan, the city may cause written notice to be served upon such organization or upon the owners of property in the development. The written notice must set forth the manner in which the common areas or facilities have failed to be maintained in reasonable condition. In addition, the notice must include the demand that the deficiencies noted be cured within 30 days thereafter and must state the date and place of a public meeting to be held within 14 days of the notice. At the time of public meeting, the city commission may modify the terms of the original notice as to deficiencies and may extend the time within which the same may be cured. If the deficiencies set forth in the original notice or modifications are not cured within the time set, the city may enter upon such common facilities and maintain the same for a period of one year, in order to preserve the taxable values of properties within the development and to prevent the common facilities from becoming a public nuisance. Such entry and maintenance must not vest in the public any right to use the common facilities not dedicated to public use. Before the one year period expires, the commission must, upon its own initiative or upon written request of the organization theretofore responsible for maintenance, call a public meeting and give notice of such meeting to the organization responsible for maintenance or the property owners' of the development. At the meeting, the organization responsible for maintenance and/or the residents of the development may show cause why maintenance by the city should not be continued for a succeeding 405 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 34 of 78 year. If the city commission determines that it is not necessary for the city to continue such maintenance, the city must cease such maintenance at the time established by the city commission. Otherwise the city must continue maintenance for the next succeeding year subject to a similar meeting and determination at the end of each year thereafter. a. The cost of maintenance by the city must be a lien against the common facilities of the development and the private properties within the development. The city commission must have the right to make assessments against properties in the development on the same basis that the organization responsible for maintenance of the facilities could make such assessments. Any unpaid assessment must be a lien against the property responsible for the same, enforceable the same as a mortgage against such property. The city may further foreclose its lien on the common facility by certifying the same to the county treasurer for collection as in the case of collection of general property taxes. b. Should the property owners' association request that the city assume permanent responsibility for maintenance of facilities, all facilities must be brought to city standards prior to the city assuming responsibility. The assumption of responsibility must be by action of the city commission and all costs to bring facilities to city standards must be the responsibility of the property owners' association. The city may create special financing mechanisms so that those properties within the area affected by the property owners' association continue to bear the costs of maintenance. c. The city must assume permanent responsibility for maintenance of public areas and facilities when a dedicated funding mechanism is adopted. 7. Guarantee for open space preservation. Open space shown on the approved final plan or in the approved plat application must not be used for the construction of any structures not shown on the final plan. 8. Covenants may not contain provisions which inhibit compliance with the requirements of division 38.380, for those developments subject to division 38.380. Some examples are: privately required minimum home or lot sizes which cannot be met. 89. Covenants and condominium declaration documents must require condominiums to be assigned street addresses in compliance with chapter 10, article 7 BMC. Addressing must not use X or other generic statements. Draft documents submitted for review prior to final approval must include correct addresses. 910. Stormwater facilities maintenance as required by chapter 40 article 4 BMC. 406 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 35 of 78 Section 11 That Section 38.220.420 of the Bozeman Municipal Code be amended as follows: Sec. 38.220.420. Notice requirements for application processing. A. The following minimum standards for timing, location of noticing area and type of notice must be provided. 1. Noticing provisions are cumulative with the maximum combination of noticing requirements being provided. When more than one newspaper notice is required, only one of the required publication dates must fall within the minimum and maximum days required. Newspaper publications for public hearings follow the requirements of MCA 7-1-4127 in addition to the requirements of Table 38.220.420. 2. Distance in Table 38.220.420 is the distance from the exterior property boundary of the site to all or part of another parcel of land whose owners must be notified of a governmental action. This distance includes the width of a right-of-way or other public ownership. 3. Notice must be provided not less than 15 or more than 45 calendar days prior to the close of the public comment period or public hearing unless otherwise specified in this chapter. 4. Mail by first class or certified mail is to all landowners within 200 feet. 5. For all developments in Table 38.220.040 which require mailed notice, the applicant must provide a list of names and addresses of all property owners, including names and addresses of owners of individual condominiums, wholly or partially within 200 feet of the site. The list must be drawn from the most current known property owners of record as shown in the records of the county clerk and recorder's office. Where certified mail is required separate mailing labels may also be required. 6. The community development director will establish procedures for mailing notice. 7. The applicant is responsible for mailing notice. The city will provide the notice to the applicant for duplication not less than four days prior to the notice period. The notice must be distributed such that notices are submitted to the United States Postal Service at least two days before the beginning of the notice period. The return address on the envelopes must be the mailing address established by the community development director. B. If for some reason a required property owner fails to receive mail notification of a scheduled public hearing or other public comment opportunity, or if one or more of the required posted signs in the area or on the site for which the public hearing or other public comment opportunity is being held is inadvertently moved through no fault of the city, this in no way invalidates the legal notice requirements of the scheduled public hearing or other public comment opportunity. C. Notice may also be provided to property owners' in any additional area that may be substantially impacted by an application the proposed change or use as determined by the Commented [CS16]: Moved from footnotes to main text. 407 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 36 of 78 community development director. The community development director may use other means in addition to posting, mailing, or publication to provide notice. D. Notice is not required for final plans and final plats. D. 1. For all developments in Table 38.220.040 which require mailed notice, the applicant must provide a list of names and addresses of all property owners, including names and addresses of owners of individual condominiums, wholly or partially within 200 feet of the site. The list must be drawn from the most current known property owners of record as shown in the records of the county clerk and recorder's office. Where certified mail is required separate mailing labels may also be required. 2. The community development director will establish procedures for mailing notice. 3. The applicant is responsible for mailing notice. The city will provide the notice to the applicant for duplication not less than four days prior to the notice period. The notice must be distributed such that notices are submitted to the United States Postal Service at least two days before the beginning of the notice period. The return address on the envelopes must be the mailing address established by the community development director. Table 38.220.420 Minimum standards for timing, location of noticing area and type of notice. Application Minimum Days12 Maximum Days12 Distance1 Notice Type Text amendment 15 45 NA Newspaper once Zone Map Amendment2 - rezoning or with annexation 15 45 200 Newspaper once, post on-site, mail 1st class Zone Map AAmendment2 - Resulting from ordinance changes 15 45 None Newspaper once ZMA2 - Annexation w/ initial zoning 15 45 None Newspaper once, post on-site, mail 1st class Variance -– Floodplain and, zoning, and subdivision 15 45 200 Newspaper once (zoning 2 times), post on-site, mail 1st class Commented [CS17]: Duplicative to ZMA in general. 408 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 37 of 78 Noticing for 76-2-402, MCA claims 15 45 None Newspaper 2 times, post on-site Deviation 15 45 200 Newspaper 2 times, post on-site, mail 1st class Appeals of Administrative Project Decisions3 15 45 2003 Newspaper 2 times, post on-site, mail 1st class Appeals of Administrative Interpretations None Newspaper Sketch plan/reuse/change in use/further development None None None None Sketch plans for adding dwellings in the neighborhood conservation overlay district, demolition of historic structures as defined in article 7 of this chapter, or modification of wetlands. Sketch plan4 15 45 None Post on-site Informal/concept plan None None None None Preliminary site plan and master site plan 15 45 200 Post on-site, mail 1st class Preliminary Planned Unit Development5 15 45 200 Newspaper 2 times, post on-site, mail 1st class Preliminary Conditional Use Permit6 / Special Use Permit13 15 45 200 Newspaper 2 times, post on-site, mail 1st class Floodplain permit 15 45 200 Newspaper, mail 1st class 409 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 38 of 78 Certificate Of Appropriateness7 None None None None Final site plan None None None None Final PUD plan None None None None Final CUP plan None None None None Subdivision exemption None None None None Subdivision subject to 76-3- 616 including subdivision variances 200 Post on-site, mail 1st class Subdivision subject to 76-3- 623 including subdivision variances 200 Newspaper , post on-site, certified mail to adjacent owners, mail 1st class all others 1st minor subdivision without variance - preliminary plat/ Extensions of subdivision approvals beyond two years 15 45 200 Mail 1st class 1st minor subdivision with variance/2nd minor/major subdivision/expedited subdivision - Preliminary plat 15 (Planning Board) 45(Commission) 200 Newspaper8 , post on-site, mail 1st class9 , certified mail10 Final plat None None None None Notice of violation per 38.200.16011 15 45 None Post on-site, cCertified mail to landowner Notes: 410 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 39 of 78 1. The distance from the exterior property boundary of the site to all or part of another parcel of land whose owners must be notified of a governmental action. This distance includes the width of a right-of-way or other public ownership. 2. Zone map amendment, division 38.260 of this chapter. 3. Posting and mailing only applies to appeals taken from actions to approve, approve with conditions or deny a development proposal and not to appeals of administrative interpretations. 4. Sketch plans for adding dwellings in the neighborhood conservation overlay district, demolition of historic structures as defined in article 7 of this chapter, or modification of wetlands. 5. Planned unit development, division 38.430 of this chapter. 6. Conditional use permit, division 38.230 of this chapter. 7. Certificate of appropriateness, division 38.340 of this chapter. 8. When newspaper notice is required the notice must be published in a newspaper of general circulation. reserved 9. Mail by first class to all landowners within 200 feet except those subject to certified mail. When a condominium includes land within the 200 foot distance all owners in the condominium are included in the noticing, not only those units within 200 feet. 10. Certified mail must be sent to recorded purchasers under contract for deed in addition to owners of physically contiguous property and the subdivider. reserved 11. Notices of violation subject to section 38.200.160. 12. Days prior to the close of the public comment period or public hearing unless otherwise specified in this chapter. 13. Special use permit, section 38.230.120 of this chapter. Section 12 That Division 38.240 Part 1 of the Bozeman Municipal Code be amended as follows: DIVISION 38.240. SUBDIVISION PROCEDURES Part 1. Subdivision and Platting Administrative Procedures Sec. 38.240.010. Transfers of title. A. Unless the plat is located in an area where the state or the city does not have jurisdiction, no transfer of title may occur except as allowed in MCA 76-3-301, 76-3-302, and 76-3-303. every final subdivision plat must be filed for record with the county clerk and recorder before title to the subdivided land can be sold or transferred in any manner. After a 411 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 40 of 78 preliminary subdivision plat has been approved or conditionally approved, the developer may enter into contracts to sell lots in the proposed subdivision if all of the following conditions are met: 1. Under the terms of the contracts, the purchasers of lots in the proposed subdivision must make any payments to an escrow agent which must be a bank or savings and loan association chartered to do business in the state; 2. Under the terms of the contracts and the escrow agreement, the payments made by purchasers of lots in the proposed subdivision may not be distributed by the escrow agent to the developer until the final plat of the subdivision is filed and of record with the county clerk and recorder; 3. The contracts and the escrow agreement provide that if the final plat of the proposed subdivision is not filed with the county clerk and recorder within two years of the preliminary plat approval, the escrow agent must immediately refund to each purchaser any payment made under the contract; 4. The county treasurer has certified that no real property taxes and special assessments assessed and levied on the land to be divided are delinquent; and 5. The contracts must contain the following language conspicuously set out therein: "The real property which is the subject hereof has not been finally platted, and until a final plat identifying the property has been filed with the county clerk and recorder, title to the property cannot be transferred in any manner." B. Unless the plat is located in an area where the state or the city does not have jurisdiction, the county clerk and recorder may not record any instrument that purports to transfer title to a parcel or tract of land that is required to be surveyed by the Montana Subdivision and Platting Act (MCA 76-3-101 et seq.) unless the required certificate of survey or subdivision plat has been filed with the county clerk and recorder and the instrument of transfer describes the parcel or tract by reference to the filed certificate or plat. This provision does not apply if the parcel or tract to be transferred was created before July 1, 1973, and the instrument of transfer for the parcel or tract includes a reference to a previously recorded instrument of transfer or is accompanied by documents that, if recorded, would otherwise satisfy the requirements of this subsection B. The reference or document must demonstrate that the parcel or tract existed before July 1, 1973. However, these references or documents do not constitute a legal description of the property and may not be substituted for a legal description of the property. Sec. 38.240.020. Effect of recording complying plat. The recording of any plat made in compliance with the Montana Subdivision and Platting Act (MCA 76-3-101 et seq.) has the effects established in MCA 76-3-304. serves to establish the identity of all lands shown on and being a part of such plat. Where lands are conveyed by reference to a plat, the plat itself or any copy of the plat, properly certified by the county clerk and recorder as being a true copy thereof, must be regarded as incorporated into the instrument of conveyance and must be received in evidence in all courts of this state. 412 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 41 of 78 Sec. 38.240.030. Correction of errors, amendments or vacation of recorded final plats. A. Correction of errors. Correction of errors by private parties that, in the opinion of the city, will not materially alter the plat may be made by the submission of a corrected final plat for the city's approval per 38.240.160. The plat may be filed under the procedures for first minor subdivision plats. The plat must be entitled "amended plat of the (name of subdivision) subdivision," and the reason for the correction must be stated on the face of the plat. B. Material alterations. Amendments that materially alter the final plat, or any portion thereof, must be made by the filing of an amended plat showing all alterations. The amended plat must be approved by the city under the major or minor subdivision review procedure as if it were a new application, as is appropriate. Prior to such approval, the amended plat must be reviewed by the community development department. The city may not approve an amendment which will place the plat in nonconformance with any applicable the standards contained herein unless a public hearing is held on the plat and a written variance from the standards approved issued pursuant to the procedures contained herein for such variances is granted. The plat must be entitled "amended plat of (the name) subdivision," and the reason for the amendment must be stated on the face of the plat. C. Vacating recorded plats. Any plat prepared and recorded as provided by this chapter may be vacated, in whole or in part, as provided by MCA 76-3-305. by MCA 7-5-2501, 7-5-2502, 7-14-2616(1) and (2), 7-14-2617, 7-14-4114(1) and (2), and 7-14-4115. Upon vacation, the city, or the district court, as provided in MCA 7-5-2502, must determine to which properties the title to the streets and alleys of the vacated portions must revert. The city, or the district court, as provided in MCA 7-5-2502, must take into consideration the previous platting; the manner in which the right-of-way was originally dedicated, granted or conveyed; the reasons stated in the petition requesting the vacation; the parties requesting the vacation; and any agreements between the adjacent property owners' regarding the use of the vacated area. The title to the streets and alleys of the vacated portions may revert to one or more of the owners of the properties within the platted area adjacent to the vacated portions. 1. Utility easements. When any poleline, pipeline or any other public or private facility is located in a vacated street or alley at the time of the reversion of the title to the vacated street or alley, the owner of the public or private utility facility has an easement over the vacated land to continue the operation and maintenance of the public or private utility facility. Sec. 38.240.040. Correction of recorded plat by governing body. When a recorded plat does not definitely show the location or size of lots or blocks, or the location or width of any street or alley, the city may at its own expense cause a new and correct survey and plat to be made and recorded in the office of the county clerk and recorder. The corrected plat must, to the extent possible, follow the plan of the original survey and plat. The surveyor making the resurvey must endorse the corrected plat referring to the original plat, and 413 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 42 of 78 noting the defect existing therein and the corrections made.Under the circumstances set in MCA 76-3-614 the City Commission may require correction of a recorded plat. Sec. 38.240.050. Disposition of water rights. A. When a subdivision creates parcels with lot sizes averaging less than five acres, the developer must address disposition of water rights as required in MCA 76-3-504.: 1. Reserve all or a portion of the appropriation water rights owned by the owner of the land to be subdivided and transfer the water rights to a single entity for use by the landowners within the subdivision who have a legal right to the water and reserve and sever any remaining surface water rights from the land; 2. If the land to be subdivided is subject to a contract or interest in a public or private entity formed to provide the use of a water right on the subdivision lots, establish a landowner's water use agreement administered through a single entity that specifies administration and the rights and responsibilities of landowners within the subdivision who have a legal right and access to the water; or 3. Reserve and sever all surface water rights from the land proposed for subdivision. Section 13 That Division 38.240 Part 2 of the Bozeman Municipal Code be amended as follows: DIVISION 38.240. SUBDIVISION PROCEDURES Part 2. Review Procedures for Subdivisions Sec. 38.240.100. General review procedure. Every plat of subdivision must be reviewed, approved by the City Commission and filed for record with the county clerk and recorder in accordance with the procedures contained herein before title to the subdivided land can be sold or transferred in any manner. The applicant must identify the review procedure they intend to use as part of the initial application for preliminary plat. When determining the number of lots in a subdivision all created parcels including park and utility lots count towards the total number of lots. Subdivisions containing six or more lots are considered major subdivisions. A subdivision containing five or fewer lots, in which proper access to all lots is provided and in which no land is to be dedicated to public use for parks and playgrounds, is a minor subdivision. Subdivision Type Pre-application Review Required Element and Sufficiency Review Required Preliminary Plat Review Period After Sufficiency Public Hearing Held By Review Authority Expedited Subdivision per 76-3-623 Commented [CS18]: With the several changes and new procedures this decision is really important as it shapes other requirements and procedures. 414 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 43 of 78 All Type Yes Yes 35 working days City Commission City Commission Subdivisions Subject to 76-3-616 1st Minor Yes Yes 35 working days None City Commission 2nd or Subsequent Minor Yes Yes 60 working days None City Commission Major – 6-50 lots Yes Yes 60 working days None City Commission Major >50 lots Yes Yes 80 working days None City Commission Phased Development Per 76-3-617 MCA Any Type Yes Yes 30 working days City Commission City Commission Sec. 38.240.110. Presubmittal meeting and pPre-application plan review. A. The purpose of a pre-application plan review is to discuss this chapter and these other applicable standards, to familiarize the developer with the standards, goals and objectives of applicable plans, regulations and ordinances, and to discuss the proposed subdivision as it relates to these matters. 1. Minor All subdivisions. Prior to the submittal of a subdivision application for a minor subdivision, the developer must submit an application for subdivision pre-application review. 2. Major subdivisions. Prior to the submittal of a subdivision application for a major subdivision, the developer must submit an application for subdivision pre-application review. The developer is encouraged to have a presubmittal meeting with the community development department prior to submitting a subdivision pre-application. 23. Pre-application plan review. For subdivision pre-application review, the developer must submit a complete application for pre-application plan review, the appropriate review fee, and copies of all required pre-application information as set forth in section 38.220.030. a. Community development department City review. The community development department coordinates the review within the City and with outside agencies. must review the pre-application plan and advise the developer as to whether the plans and data meet the goals and objectives of applicable plans and this chapter. (1) Agency review. The community development department will distribute the pre-application information to appropriate county and city departments and state and federal agencies for review and written comment. All written Commented [CS19]: This duty is set by state law. Commented [CS20]: Specific requirement from 76-3-617 415 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 44 of 78 comments received from various agencies, along with the community development department's comments regarding whether the plans and data meet the standards, goals and objectives of applicable plans, ordinances, and this chapter, and for informational purposes identification of local regulations, state laws, and growth policy provisions that may apply to the subdivision process, will be forwarded to the applicant to aid in the preparation of the subdivision application. The community development department must provide a list of the public utilities, agencies of government, and other parties who may be contacted and their timeframes for comment on the subdivision application. The comments collected by the community development department must be provided in person or by letter to the subdivider or their agent within 30 working days of a complete application being received by the city. The 30 working day review period is met if the letter is dated, signed and placed in the outgoing mail within the 30 working day review period. (2). The applicant may request a waiver from information required to be submitted with a preliminary plat. In order to be granted a waiver the applicant must include with the submission of the subdivision pre- application a written statement describing the requested waiver and the reasons upon which the request is based. All waivers must be initially identified with the pre-application stage of review. The DRC is responsible for granting waivers, and the community development department staff must notify the developer in writing of any waivers granted from section 38.220.060 after the pre-application review. Information not waived at the time of pre-application must be provided with the preliminary plat application. (32) Time for review. The community development department must review the pre-application plan and within 30 working days advise the developer as to whether the plans and data meet the goals and objectives of applicable plans and this chapter. Every effort must be made by the community development department to obtain department and agency comment within this time period. b. Optional planning board review. If the developer so wishes, the developer may request in writing that the planning board review pre-application plans. The letter of request and additional copies of the pre-application materials are required for this optional review. (1) The request must be received at least 320 working days prior to the planning board meeting at which it is to be considered. The application will be submitted to the planning board at their next available meeting. A copy of the approved minutes of the planning board meeting will be forwarded to the developer. Comments are advisory and are not binding or limiting on the City’s review of any subsequent subdivision application. 416 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 45 of 78 c. Time for follow-up submittal. A complete subdivision preliminary plat application must be submitted to the community development department within one calendar year of the date the planning office dates, signs and places the letter in the outgoing mail or sends the letter via electronically mail. d. The property owner will not receive No formal written notification on the acceptability or adequacy of a subdivision pre-application plan submittal is provided. Written comments as to applicability of standards, requested waivers, required corrections, and procedures will be provided at the conclusion of the review. Written comments may be provided electronically. Sec. 38.240.120. Concurrent Montana Subdivision and Platting Act and Sanitation and Subdivision Act review. For Sanitation and Subdivision Act review, the developer has the option of submitting a state department of environmental quality (DEQ)/local government joint application form in the place of a preliminary plat application form, and to request concurrent subdivision review by the state department of environmental quality and the city, pursuant to MCA 76-4-129. Subdivisions granted the exemption from sanitation review authorized in MCA 76-4-127 do not need to use this provision. Sec. 38.240.130. Preliminary plat – All Subdivisions Agency Review. A. After the requirement for a pre-application review has been satisfied, the developer may submit a subdivision application within one year of the date of the city's written comments as required by section 38.240.110.A.3.a(2). Subdivision applications must be submitted, along with the appropriate review fee and all required subdivision application information as set forth in division 38.220 of this chapter to the community development department and must conform to the requirements of this chapter. The preliminary plat must be prepared by a surveyor licensed to practice in the state. 1. Acceptability and adequacy Element and sufficiency review of application. The City shall complete the review for required elements and sufficiency as required in MCA 76-3-604. The working days specified in 76-3-604 are met if the written communication is dated and placed in the outgoing US mail, or sent electronically, within the required time. The time limits in subsections 1.a and b of this section apply to each successive submittal of the application until a determination is made that the application contains the required materials and is adequate for review and the subdivider or their agent is notified. a. The community development department must review a subdivision application within five working days of receipt of the application and applicable fee. A subdivision application is considered to be received on the date of delivery to the reviewing agency if it is accompanied by the applicable review fee. An application is acceptable only if it contains all of the information required by this Commented [CS21]: Divided review process into more sections so easier to find major steps Commented [CS22]: This is the standard wording from state law. Substance remains as is. 417 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 46 of 78 chapter. If the application is unacceptable, the application, and a written explanation of why the application is unacceptable will be returned to the subdivider. If the application is acceptable the subdivider must be so notified. The property owner may designate in writing another party to receive notifications regarding acceptability. The five working day review period is met if the letter is dated, signed and placed in the outgoing mail within the five working day review period. If the applicant chooses to withdraw the application, the applicant may request a refund if procedures for such have been created in the administrative manual adopted by the director of community development. Subsequent resubmittal must require payment of a review fee as if it were a new application. b. After the application is deemed acceptable it must be reviewed for adequacy. The review for adequacy must be conducted by the appropriate agency with expertise in the subject matter. The adequacy review period begins on the next working day after the date that the community development department determines the application is acceptable and sends the required notice to the subdivider; and must be completed within not more than 15 working days. The 15 working day review period is met if the letter is dated, signed and placed in the outgoing mail within the 15 working day review period. If the application is inadequate, a written explanation of why the application is inadequate will be returned to the subdivider. If the application is adequate the subdivider must be so notified. The property owner may designate in writing another party to receive notifications regarding adequacy. (1) The City must notify the applicant if required information is missing from the application. In the event the missing information is not received by the city and the applicant has not provided an alternate schedule for timely submittal of the required information within 15 30 working days of notification to the subdivider of inadequacy, the City may declare the application unreviewable and terminate the review. all application materials except the city's file record copy must be returned to the subdivider or their representative. Subsequent resubmittal will require payment of a review fee as if it were a new application. (12) A determination that an application is adequate does not restrict the city from requesting additional information during the subdivision review process. A determination of adequacy establishes the applicable review criteria as specified in section 38.200.080.A. c. At the time of the pre-application review, Tthe DRC may grant reasonable waivers from submittal of application materials required by these regulations where it is found that these regulations allow a waiver to be requested and granted. If in the opinion of the final approval authority the waived materials are necessary for proper review of the development, the materials must be provided before review is completed. 2. Review by affected agencies. After an application is deemed acceptable, the community development department may submit copiesprovide the contents of the preliminary plat and supplementary information to relevant public utilities and public agencies for 418 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 47 of 78 review and comment, and for major subdivisions to the planning board for its advice pertaining to the approval or denial of the subdivision application. Review by public agencies or utilities must not delay the city commission's consideration of the subdivision application beyond the statutorily specified review period. If the community development department must request review by a public utility, agency of government, and other parties regarding the subdivision application that was not identified during the pre-application review the community development department must notify the subdivider. 38.240.140 Subdivision Notice and Public Comment A. All subdivisions require notice and opportunity for public comment. Not all subdivisions require a public hearing. Notice of subdivision is provided as required in 38.220 Part 3. a1. Public testimony. All written public comment received at or prior to a public hearing or during a public comment period must be incorporated into the written record of the review. Minutes or a recording must be taken of verbal comment received during any public hearing or public meeting. 23. Planning board review. At a regularly noticed public meetinghearing, the planning board must reviews all major subdivision applications as identified in 38.240.100, together with required supplementary plans and information, and determines whether the plat is in compliance with the city's growth policy. The planning board must hold a public hearing on all major subdivisions. Pursuant to MCA 76-1-107, the planning board has delegated its review of all minor subdivisions from a tract of record to the community development director. a. Public testimony. All written public comment received at or prior to a public hearing must be incorporated into the written record of the review. Minutes must be taken of verbal comment received during the public hearing or public meeting before the planning board and must be incorporated into the written record of the review. Copies of the minutes and written comments must be included in any recommendation made to the city commission by the planning board. b. Planning board recommendation. Within ten working days of their review, the planning board must submit in writing to the city commission its advice regarding compliance with the city's growth policy, and a recommendation for approval, conditional approval or denial of the subdivision application. 3. If an applicant proposes a phased subdivision per 76-3-617 MCA additional public notice and hearing consistent with 76-3-617 MCA must be conducted. 4. Community development director review. The community development director must review all minor subdivision applications, together with required supplementary plans and information, and determine whether the plat is in compliance with the city's growth policy. The community development director must make a written recommendation including a summary of the agency review and analysis of the review criteria 419 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 48 of 78 established in this chapter and a recommendation for approval, conditional approval or denial of the subdivision application. a. Public testimony. All written public comment received during the community development director's review must be incorporated into the written record of the review. Copies of written comments must be included in any recommendation made to the city commission by the community development director. 5.38.240.150 City commission review and action. A. The city commission must review and take action on all proposed subdivisions. 1a. The following general review requirements for a public hearing or a public meeting, and for statutory review periods, per 38.240.100 must be met.: 2. The city commission must determine whether public comments or documents presented at or prior to the City Commission’s consideration of a plat constitutes new information as required in MCA 76-3-615. (1) First minor subdivision created from a tract of record. The city commission must consider the subdivision application and the community development director's recommendation during a regular public meeting of the commission. The city commission, when legal and physical access is provided to all lots must approve, conditionally approve or deny the subdivision application of a first minor subdivision within 35 working days of the determination that the application is adequate, unless there is a written extension from the developer for a period not to exceed one year from the date the application was determined to be adequate. A minor subdivision must be reviewed as a second or subsequent minor subdivision if the tract has been previously subdivided or created by a subdivision; or the tract has descended from a tract of record which has previously been divided by exemption or other means into 6 or more tracts of record since July 1, 1973. 3. (a) Variance requests for minor subdivisions. If the developer of a minor subdivision is requesting a variance from any requirement of this chapter, the procedures of section 38.250.080 must be followed except that a public hearing must not be held. (2) Subdivisions eligible for summary review. The city commission must consider the application and the community development director's recommendation during a regular public meeting of the commission. The city commission must approve, conditionally approve or deny a proposed subdivision that is eligible for summary review within 35 working days of determination that the application is adequate, unless there is a written extension from the developer. TheA written extension to the required review period may not exceed one year. Minor subdivisions are eligible for summary review if the plat has been approved by the state department of environmental quality whenever approval is required by MCA 76-4-101 et seq. 420 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 49 of 78 (3) Second or subsequent minor subdivision created from a tract of record. For the second or subsequent minor subdivision created from a tract of record, the city commission must hold a public hearing on the subdivision application. The city commission must approve, conditionally approve or deny the subdivision application of a second or subsequent minor subdivision within 60 working days of the determination that the application is adequate for review, unless there is a written extension from the developer, not to exceed one year from the date the application was determined to be adequate. (4) Major subdivisions. For a major subdivision, the city commission must hold a public hearing on the subdivision application. The city commission must approve, conditionally approve or deny the subdivision application within 60 working days of the determination that the application is adequate for review if the subdivision has less than 50 lots, and within 80 working days of the determination that the application is adequate for review if the subdivision has 50 or more lots, unless there is a written extension from the developer, not to exceed one year from the date the application was determined to be adequate. (5) Public testimony. All written public comment received at a public meeting or public hearing prior to a decision to approval, approve with conditions, or deny a subdivision application must be incorporated into the written record of the review. Minutes must be taken of verbal comments received during the public hearing before the city commission and must be incorporated into the written record of the review maintained by the city. (6) New and credible information. The city commission must determine whether public comments or documents presented to the city commission at a public hearing regarding a subdivision application held pursuant to section 38.240.130.A.5 constitute: (a) Information or analysis of information that was presented at a public hearing held pursuant to section 38.240.130.A.5 that the public has had a reasonable opportunity to examine and on which the public has had a reasonable opportunity to comment; or (b) New information regarding a subdivision application that has never been submitted as evidence or considered by either the city commission, planning board or by city staff at a hearing during which the subdivision application was considered. (c) If the city commission determines that the public comments or documents constitute new information not previously considered at a public hearing, the city commission may: (i) Approve, conditionally approve, or deny the proposed subdivision without basing its decision on the new 421 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 50 of 78 information if the governing body determines that the new information is either irrelevant or not credible; or (ii) Schedule or direct its agent or agency to schedule a subsequent public hearing before the city commission for consideration of only the new information that may have an impact on the findings and conclusions that the governing body will rely upon in making its decision on the proposed subdivision. (iii) In deciding whether the information is both new and credible the city commission must consider: (A) Whether the topic of the information has previously been examined or available for examination at a public hearing on the subdivision application; (B) Whether the information is verifiable, and if applicable developed by a person with professional competency in the subject matter; (C) Whether the information is relevant to a topic within the jurisdiction of the city. (d) If a subsequent public hearing is held to consider new and credible information, the 60 working day review period required in section 38.240.130.A.5 is suspended and the new hearing must be noticed and held within 45 working days of the governing body's determination to schedule a new hearing. After the new hearing, the otherwise applicable time limit for review resumes at the governing body's next scheduled public meeting for which proper notice for the public hearing on the subdivision application can be provided. The governing body may not consider any information regarding the subdivision application that is presented after the hearing when making its decision to approve, conditionally approve, or deny the proposed subdivision. B.b. Criteria for city commission action. The basis for the city commission's decision to approve, conditionally approve or deny the subdivision must be whether the subdivision application, public hearing if required, planning advisory boards and agencies advice and recommendation and additional information demonstrates that development of the subdivision complies with this chapter, the city's growth policy, the Montana Subdivision and Platting Act and other adopted state and local ordinances, including, but not limited to, applicable zoning requirements. The city commission may not deny approval of a subdivision based solely on the subdivision's impacts on educational services; or based solely on parcels within the subdivision having been designated as wildland-urban interface parcels by the most recent city-adopted hazard mitigation plan and its supporting documentation. Commented [CS23]: Existing State prohibition, don’t repeat here as it is unnecessary to restate 422 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 51 of 78 When deciding to approve, conditionally approve or deny a subdivision application, the city commission must: 1.(1) Review the preliminary plat, together with required supplementary plans and information, to determine if it meets the requirements of this chapter, the development standards and policies of the city, the city's growth policy, the Montana Subdivision and Platting Act, and other adopted state laws and local ordinances, including but not limited to applicable zoning requirements. 2.(2) Consider written comments from appropriate public agencies, utilities or other members of the public. 3.(3) Consider the following: (a.) Relevant evidence relating to the public health, safety and welfare; (b.) Other regulations, code provisions or policies in effect in the area of the proposed subdivision; (c.) The recommendation of the advisory bodies; and (d.) Any relevant public commenttestimony. e. Individual phases, existing conditions, and changed circumstances for any phase reviewed under 76-3-617 MCA. 4.(4) When the subdivision does not qualify, pursuant to MCA 76-4-125(2), for the certification established in section 38.240.170100 the city commission may conditionally approve or deny a proposed subdivision as a result of the water and sanitation information provided pursuant to section 38.220.050.A.9. or public comment received pursuant to MCA 76-3-604 on the information provided pursuant to section 38.220.050. A conditional approval or denial must be based on existing subdivision, zoning, or other regulations that the city commission has the authority to enforce. 5.(5) The city may not approve a proposed subdivision if any of the features and improvements, including well isolation zones, of the subdivision encroach onto adjoining private property in a manner that is not otherwise provided for under Title 76, chapters 3 or 4, MCA., or if the well isolation zone of any proposed well to be drilled for the proposed subdivision encroaches onto adjoining private property unless the owner of the private property authorizes the encroachment. For the purposes of this section, "well isolation zone" has the meaning provided in 76-4-102, MCA. c. City commission action. If the city commission denies or conditionally approves the subdivision application, it must forward one copy of the plat to the developer accompanied by a letter over the appropriate signature stating the reason for disapproval or enumerating the conditions that must be met to ensure approval of the final plat. This written statement must include: (1) The reason for the denial or condition imposition; 423 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 52 of 78 (2) The evidence that justifies the denial or condition imposition; and (3) Information regarding the appeal process for the denial or condition imposition. dC. Mitigation. The city commission may require the developer to design the subdivision to reasonably minimize potentially significant adverse impacts identified through the review required by this chapter. The city commission must issue written findings to justify the reasonable mitigation required by this chapter. The city commission may not unreasonably restrict a landowner's ability to develop land, but it is recognized that in some instances the unmitigated impacts of a proposed development may be unacceptable and will preclude approval of the plat. When requiring mitigation under this subsection, the city commission must consult with the developer and must give due weight and consideration to the expressed preference of the developer. eD. Findings of fact. Within 30 working days of the final action to approve, deny, or approve with conditions a subdivision, the city commission must issue written findings of fact as required in 76-3-620 that discuss and weigh the following applicable criteria, as applicable ( pursuant to MCA 76-3-608, 76-3-616, and 76- 3-623): as well as compliance with other laws and regulations applicable to the subdivision. 1.(1) Criteria. a.(a) Compliance with the survey requirements of the Montana Subdivision and Platting Act; b.(b) Compliance with this chapter and the review process of these regulations; c.(c) The provision of easements to and within the subdivision for the location and installation of any necessary utilities; d.(d) The provision of legal and physical access to each parcel within the subdivision and the notation of that access on the applicable plat and any instrument transferring the parcel; and e.(e) For major subdivisions other than expedited or otherwise exempt subdivisions, the findings of fact must also address the effect on agriculture, agricultural water user facilities, local services, the natural environment, wildlife and wildlife habitat, and public health and safety. (2) Required components. The written findings of fact must contain at a minimum: (a) Information regarding the appeal process for the denial or imposition of conditions; (b) The regulations and statutes used in reaching the decision to deny or impose conditions and explains how they apply to the decision; Commented [CS24]: Duplicates the following section D on Findings of Fact so dispose of extra language. Commented [CS25]: Already incorporated by earlier reference to 76-3-620. 424 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 53 of 78 (c) The facts and conclusions that the governing body relied upon in making its decision to deny or impose conditions. The documents, testimony, or other materials that form the basis of the decision and support the conclusions of the governing body may be incorporated into the written findings by reference. (3) Federal or state governmental entity input. If a federal or state governmental entity submits a written or oral comment or an opinion regarding wildlife, wildlife habitat, or the natural environment relating to a subdivision application for the purpose of assisting a governing body's review, the comment or opinion may be included in the governing body's written statement under this section only if the comment or opinion provides scientific information or a published study that supports the comment or opinion. A governmental entity that is or has been involved in an effort to acquire or assist others in acquiring an interest in the real property identified in the subdivision application must disclose that the entity has been involved in that effort prior to submitting a comment, an opinion, or information as provided in this subsection. hF. Changes to conditions after approval. Upon written request of the developer, the city commission may amend conditions of subdivision application approval where errors or changes beyond the control of the developer have rendered a condition unnecessary, impossible or illegal. Changes to conditions that are not unnecessary, impossible or illegal are subject to the provisions of section 38.100.070. (1) The written request must be submitted to the community development department. (2) The written consent of all purchasers of land (via contract for deed, etc.) must be included with the written request to amend conditions. (3) If it is an application for a major subdivision, the city commission must conduct a public hearing on the request. If it is an application for a minor subdivision, the city commission must consider the request at a regularly scheduled meeting. (a) If a public hearing is held, public notice of the hearing must be given in accordance with this chapter. (4) The city commission may approve the requested change if it meets the criteria set forth in this chapter. (5) The city commission must issue written findings of fact as required in this chapter. 38.240.160. Duration of Approval Af. Initial subdivision application approval period. Upon approving or conditionally approving a subdivision application, the city commission must provide the Commented [CS26]: F and g as new shared section re approval duration 425 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 54 of 78 developer with a dated and signed findings of fact and order. This initial approval must be in force for not more than: 1.(1) One calendar year for minor subdivisions; 2.(2) Two calendar years for single-phased major subdivisions; and 3.(3) Three calendar years for multi-phased major subdivisions after the date of the findings of fact and order. 4. At the end of thise period, the city may, at the written request of the developer, extend its approval for a mutually agreed-upon period of time. 5. Subdivisions reviewed under 76-3-617 MCA may not exceed a cumulative period for all phases to exceed 20 years. Bg. Extensions of preliminary plat approval period. Any mutually agreed upon extension must be in writing and dated and signed by the subdivider or their authorized agent and by the city commission or their authorized agent. More than one extension may be requested for a particular subdivision. Each request is considered on its individual merits. An extension of the subdivision approval under this chapter does not extend other city or non-city agency approvals, e.g. for design of infrastructure extensions, necessary to complete the project. Review authority for extensions is established in division 38.220. When evaluating an extension request, the city must consider: 1.(1) Changes to the development regulations since the original approval and whether the subdivision as originally approved is substantially compliant with the new regulations; 2.(2) Progress to date in completing the subdivision as a whole and any phases, including maintenance of the remainder of the site in good condition; 3.(3) Phasing of the subdivision and the ability for existing development to operate without the delayed development; 4.(4) Dependence by other development on any public infrastructure or private improvements to be installed by the subdivision; 5.(5) Demonstrated ability of the subdivider to complete the subdivision; 6.(6) Whether mitigation for impacts of the subdivision identified during the preliminary plat review and findings of fact and order remain relevant, adequate, and applicable to the present circumstances of the subdivision and community. h. Changes to conditions after approval. Upon written request of the developer, the city commission may amend conditions of subdivision application approval where it can be found that errors or changes beyond the control of the developer have rendered a condition unnecessary, impossible or illegal. Changes to conditions that are not unnecessary, impossible or illegal are subject to the provisions of section 38.100.070. 426 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 55 of 78 (1) The written request must be submitted to the community development department. (2) The written consent of all purchasers of land (via contract for deed, etc.) must be included with the written request to amend conditions. (3) If it is an application for a major subdivision, the city commission must conduct a public hearing on the request. If it is an application for a minor subdivision, the city commission must consider the request at a regularly scheduled meeting. (a) If a public hearing is held, public notice of the hearing must be given in accordance with this chapter. (4) The city commission may approve the requested change if it meets the criteria set forth in this chapter. (5) The city commission must issue written findings of fact as required in this chapter. Sec. 38.240.170140. Notice of certification that water and waste services will be provided by local government. A. If the developer is proposing to request an exemption from the department of environmental quality (DEQ) for infrastructure plan and specification review, the subdivision application must include a written request from the developer's professional engineer, licensed in the state, that indicates the intent to request the exemption, and details the extent of water, sewer and stormwater infrastructure that will be completed prior to final plat approval. A detailed preliminary stormwater drainage plan must also be submitted with the written request. The director of public works must, prior to final plat approval, send notice of certification to the DEQ per MCA 76-4-127. 1. The notice of certification must include the following: a. The name and address of the applicant; b. A copy of the preliminary plat included with the application for the proposed subdivision or a final plat where a preliminary plat is not necessary; c. The number of proposed parcels in the subdivision; d. A copy of any applicable zoning ordinances in effect; e. How construction of the sewage disposal and water supply systems or extensions will be financed; f. Certification that the subdivision is within a jurisdictional area that has adopted a growth policy pursuant to title 76, chapter 1, Montana Code Annotated (MCA 76- 1-101 et seq.) and a copy of the growth policy, when applicable; g. The relative location of the subdivision to the city; 427 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 56 of 78 h. Certification that adequate municipal facilities for the supply of water and disposal of sewage and solid waste are available or will be provided within the time provided in MCA 76-3-507; i. If water supply, sewage disposal or solid waste facilities are not municipally owned, certification from the facility owners that adequate facilities are available; and j. Certification that the city commission has reviewed and approved plans to ensure adequate stormwater drainage. Sec. 38.240.150180. Final plat application. A. After the conditions of preliminary approval and the requirements for the installation of improvements have been satisfied, the developer must cause to be prepared a final plat. The final plat must conform to the uniform standards for final subdivision plats as set forth in 24.183.1107 ARM as may be amended and to the standards required by the county clerk and recorder. The applicant is responsible to verify that they are complying with the most recently adopted clerk and recorder standards. Plans and data must be prepared under the supervision of a registered surveyor, licensed in the state, as their licensing laws allow. 1. Final plat submittal. The final plat and all supplementary documents must be submitted to the community development department at least 30 working days prior to the expiration of subdivision application approval or any extension thereto. The submittal must include a final plat application form, the appropriate review fee, all information required by section 38.220.070 and a written explanation of how each of the conditions of subdivision application approval has been satisfied. a. The final park plan, if one is associated with the plat, must be reviewed and approved, after a recommendation from the city recreation and parks advisory board, prior to approval of or simultaneously with the final plat. The installation of any park improvements to meet minimum development standards or conditions of approval must comply with division 38.270 of this chapter. 2. County treasurer certification. A final plat will not be accepted as complete until the county treasurer has certified that no real property taxes and special assessments assessed and levied on the land to be subdivided are delinquent. 3. Review of abstract subdivision guarantee, deeds, and covenants. a. With the final plat, the developer must submit to the community development department a certificate of a licensed title abstractorsubdivision guarantee showing the names of the owners of record of the land to be subdivided and of any off -site land used to satisfy parkland dedication requirements, and the names of lienholders or claimants of record against the land, and the written consent to the subdivision by the owners of the land, if other than the developer, and any lienholders or claimants of record against the land. The certificate of licensed title abstractor must be dated no earlier than 30 calendar days prior to submittal. If 428 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 57 of 78 necessary, the subdivision guarantee certificate must be updated so that the subdivision guaranteecertificate is dated no earlier than 90 days prior to the city commission's action on the final plat. b. Covenants must be submitted to the community development department with the final plat application. At least 30 working days prior to submission of the final plat application to the community development department, the developer must submit a copy of the covenants to the city attorney's office. c. If an improvements agreement will be required per section 38.270.060 then the proposed associated financial security must be provided for review and approval at least 30 working days prior to submission of the final plat application for review by the city attorney. d. Transfer of ownership of public land, off-site land, private land, personal property, improvements and water rights; documents required. (1) For the transfer of real property in satisfaction of required or offered dedications to the city, and required or offered donations or grants to the property owners' association (POA), the subdivider or owner of the property must submit with the application for final plat a warranty deed or other instrument acceptable to the city attorney transferring fee simple ownership to the city or the POA. (2) For the transfer of personal property installed upon dedicated parkland or city-owned open space, or POA-owned parkland or open space, the subdivider must provide the city an instrument acceptable to the city attorney transferring all its rights, title and interest in such improvements including all applicable warranties to such improvements to the city or the POA. (3) The subdivider or owner of the property must record the deed or instrument transferring ownership or interests at the time of recording of the final plat with the original of such deed or instrument returned to the city or POA as applicable. (4) For the transfer of ownership interest in water, the subdivider or owner of the property must submit with the application for final plat a deed or other instrument acceptable to the city attorney transferring ownership to the city or POA, along with all required state department of natural resources and conservation documentation, certification and authorization. d. Certificates. (1) Public lands/improvements must be described in the certificate of dedication/consent, listed in the certificate of completion, and be completed or subject to an improvements agreement. (2) Private lands/improvements must be described and addressed in the certificate of donation/grant and completion of private improvements, be completed or subject to an improvements agreement. 429 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 58 of 78 4. Review by the community development department. The community development department will then review the final plat application to ascertain verify that all conditions and requirements for final approval have been met. If all conditions and requirements for final approval have been met, the community development department must forward a report to the city commission for their action. 5. Final plat approval. The review authority city commission must examine every final plat, and within 45 working days of the date of receipt of a complete final plat application to the community development department, must approve it if it conforms to the conditions of preliminary approval and the terms of this chapter. "Date of receipt" means the date of delivery of all fully executed required documents to the reviewing agency if accompanied by the applicable review fee. The city commission must examine every final plat at a regular meeting. A final subdivision plat is not may not be approved by the city unless all certificates, with the exception of the director of public workscertificates to be signed by applicable city officers and the county clerk and recorder, have been complied with, signed and notarized and all subdivision regulations and conditions of preliminary plat approval have been met. A final subdivision plat may not be filed with the county clerk and recorder unless all certificates, with the exception of the county clerk and recorder, have been complied with, signed and notarized. This shall include the certification by the county treasurer that no real property taxes and special assessments assessed and levied on the land to be subdivided are delinquent. A final subdivision plat may not be approved by the review authority city commission or filed by the county clerk and recorder unless it complies with the uniform standards for final subdivision plats as established 24.183.1107, ARM as may be amended and as required by the Gallatin County Clerk and Recorder. a. If the final plat is approved, the city officer director of public service shallmust so certify the approval in a printed certificate on the plat. b. If the final plat is denied, the city commission shall cause a letter to be written to the developer stating the reasons therefore. 6. Filing. The developer must file the approved, signed final plat and all other required certificates and documents with the county clerk and recorder within 60 days of the date of final approval. 7 Sec. 38.240.190160. Changes to filed subdivision plats. Changes to a filed subdivision plat must be filed with the county clerk and recorder as an amended plat. An amended plat may not be filed unless it meets the filing requirements for a final subdivision plat specified in these regulations. Commented [CS27]: Duplicative language from earlier about intake on plats. 430 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 59 of 78 Section 14 That Division 38.240 Part 3 of the Bozeman Municipal Code be amended as follows: Part 3. Land DSubivisions Created by Rent or Lease and Buildings For Lease Or Rent Sec. 38.240.200. General. A. Land subdivisions created by rent or lease, rather than sale, refer to areas that provide multiple spaces for manufactured homes, mobile homes or recreational camping vehicles regardless of the size of the area or whether the spaces will be made available for rent by the general public for a fee. The land must be owned as one parcel under single ownership, which can include a number of persons owning the property in common. Subsequent action to sell interests in less than the entirety of the development may necessitate review under Parts 5 and 6 of the Montana Subdivision and Platting Act prior to any sale. Land subdivisions created by rent or lease are not subject to this division 38.240 or the Montana Subdivision and Platting Act if: Rent or lease of buildings or portions of buildings otherwise subject to Title 76 Part 8, MCA are exempt from review under 76-8 MCA since the City has adopted the necessary zoning to apply the exemption authorized in 76-8-103, MCA. B. Per 76-3-103(16) MCA, development for rent or lease for recreational camping vehicles or manufactured homes, rather than sale of parcels of land is also considered a subdivision and subject to review procedures for subdivision. 1. They are developed on property which has been subdivided in compliance with Parts 5 and 6 of the Montana Subdivision and Platting Act or which have a boundary documented by a certificate of survey recorded after July 1, 1973; and 2. They are reviewed as a site plan, conditional use permit, or planned unit development as described and authorized under this chapter; and 3. They comply with the adopted zoning regulations and other land development standards adopted by the city. B. DPHHS license. If a land subdivision by rent or lease, that will provide multiple spaces for manufactured homes, mobile homes or recreational camping vehicles is also a "campground," "trailer court," "work camp," or "youth camp" as defined below, the city must not grant final approval until the developer obtains a license for the facility from the state department of public health and human services (DPHHS) under MCA tit. 50, ch. 52. 1. "Campground" means a parcel of land available to and principally used by the public for camping, where persons can camp, secure tents or cabins, or park trailers for camping and sleeping purposes. 2. "Trailer court" means a parcel of land upon which two or more spaces are available to the public and designated for occupancy by trailers, manufactured homes or mobile homes for use as residences. The term does not include a parcel composed of platted lots, if each lot: a. Is filed with the county clerk and recorder; Commented [CS28]: It appears this process which previously required a full review as a subdivision has been entirely replaced with MCA 76-8 which has an exclusion for requiring subdivision review for rent or lease for areas with our kind of detailed zoning. Therefore, the entire Part is no longer required and can be removed except for an appropriate reference to state law. 431 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 60 of 78 b. Contains only one trailer space; and c. Is served by a public water supply system and public sewage system that meet the requirements of rules for systems adopted pursuant to MCA tit. 75, ch. 6, pt. 1, and that are located within the boundaries of the City of Bozeman. 3. "Work camp" means a parcel of land on which housing is provided by a person for two or more families or individuals living separately, for the exclusive use of the employees of the person and the families, if any, of the employees. For purposes of this subsection, "housing" includes but is not limited to camping spaces; trailer parking spaces; manufactured, mobile, modular or permanent barracks or structures; and any appurtenant water supply and distribution system, sewage collection and disposal system, solid waste collection and disposal system, or food service and dining facilities. Housing does not include shelter provided by an employer for persons who are employed to perform agricultural duties on a ranch or farm. 4. "Youth camp" means a parcel of land on which permanent buildings, tents or other structures are maintained as living quarters for ten or more people and that is used primarily for educational or recreational use by minors. The term includes any appurtenant water supply and distribution system, sewage collection and disposal system, solid waste collection and disposal system, or food service and dining facilities. C. Surveying and filing requirements exemption. Land subdivisions created by rent or lease are exempt from the surveying and filing requirements of the Montana Subdivision and Platting Act. D. Buildings for lease or rent. A building or buildings created for lease or rent on a single lot is not a subdivision of land but must be in conformance with applicable zoning regulations. For this section "building" means a structure or a unit of a structure with a roof supported by columns or walls for the permanent or temporary housing or enclosure of persons or property or for the operation of a business. Except as provided in MCA 76-3-103(15) the term includes a recreational camping vehicle, mobile home, or cell tower. The term does not include a condominium or townhome. Sec. 38.240.210. Land subdivisions created by rent or lease—Procedure, submittal requirements and review criteria. A. Land subdivisions created by rent or lease must be submitted, reviewed and approved by the city before any portions of the development may be rented or leased. The developer must apply for site plan and subdivision review. B. Site plan review. All relevant procedures, submittal requirements and review criteria contained in division 38.230 of this chapter apply. The development must also comply with the requirements of division 38.310 of this chapter and sections 38.360.190 and 38.360.250. C. Subdivision review. The subdivision review procedure and review criteria for land subdivisions created by rent or lease will depend upon the number of spaces within the 432 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 61 of 78 proposed development. Proposed developments containing five or fewer spaces for rent or lease must be reviewed as minor subdivisions according to the provisions of article 2 of this chapter and proposed developments containing six or more spaces for rent or lease must be reviewed as major subdivisions according to the provisions of division 38.240 of this chapter. 1. Pre-application plan. The pre-application plan must be reviewed using the procedures contained in section 38.240.110. The submittal materials listed in section 38.220.030 must be provided. 2. Preliminary plan submittal and procedure. For land subdivisions created by rent or lease, the developer must submit a preliminary plan in lieu of a preliminary plat, a completed application for minor subdivision or major subdivision as appropriate, and the materials listed in sections 38.220.050 and 38.220.060. 3. Final plan submittal and procedure. For land subdivisions created by rent or lease, the developer must submit a final plan in lieu of a final plat, a completed final plat application and the materials listed in section 38.220.070. 4. Supplementary materials. In addition to the submittal requirements of division 38.220 of this chapter, preliminary and final plans for land subdivisions created by rent or lease must show the following: a. A layout of all spaces proposed for rent or lease; b. Location of commonly owned areas and facilities; and c. Parks and/or recreation areas. 5. Boundary lines. All preliminary and final plans may show approximate boundary, lot, right-of-way or other lines. ( Ord. No. 2059 , § 3, 1-26-2021) Sec. 38.240.220. Land subdivisions created by rent or lease—Timing of improvements. Before any portion of a land subdivision created by rent or lease can be rented or leased, all required improvements must be installed, inspected and found compliant with the approved plan, and where applicable accepted by the city. Sec. 38.240.230. Land subdivisions created by rent or lease—Filing of final plan. Once the final plan has been approved by the city, an original copy of the approved plan must be filed with the county clerk and recorder as a "miscellaneous" document and another copy of the approved plan must be retained by the engineering division of the department of public works. 433 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 62 of 78 Section 15 That Section 38.240.300 of the Bozeman Municipal Code be amended as follows: Sec. 38.240.300. Divisions of land entirely exempt from the requirements of this chapter pertaining to subdivisions and the state subdivision and platting act. A. Unless the method of disposition is adopted for the purpose of evading this chapter or the Montana Subdivision and Platting Act (the "Act"), the requirements of this chapter pertaining to subdivisions and the Act may not apply to any division of land that: 1. Is created by order of any court of record in this state or by operation of law or that, in the absence of agreement between the parties to the sale, could be created by an order of any court in the state pursuant to the law of eminent domain (MCA 76-3-201(1)(a)); a. Before a court of record orders a division of land, the court must notify the governing body of the pending division and allow the governing body to present written comment on the division; b. Lots created as described in this section that do not comply with the standards of chapter 38, BMC are not "nonconforming" lots subject to section 38.32.030 and are not individual buildable lots; c. Not more than four lots can be created by order of a court of record from an original tract or parcel. 2. Is created to provide security for mortgages, liens or trust indentures for the purpose of construction, improvements to the land being divided, or refinancing purposes (MCA 76-3-201(1)(b)); a. This exemption applies: i. To a division of land of any size; ii. To a parcel that is created to provide security, however the remainder of the tract of land is subject to the provisions of the Montana Subdivision and Platting Act and division 38.240 of this chapter if applicable; b. Lots created as described in this section that do not comply with the standards of chapter 38, BMC are not "nonconforming" lots subject to section 38.280.030 and are not individual buildable lots; 3. Creates an interest in oil, gas, minerals or water that is severed from the surface ownership of real property (MCA 76-3-201(1)(c)); 4. Creates cemetery lots (MCA 76-3-201(1)(d)); 5. Is created by the reservation of a life estate (MCA 76-3-201(1)(e)); 6. Is created by lease or rental for farming and agricultural purposes (MCA 76-3- 201(1)(f)); Commented [CS29]: New limit added in from state law. 434 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 63 of 78 7. Is created for rights-of-way or utility sites. A subsequent change in the use of the land to a residential, commercial or industrial use is subject to the requirements of the Montana Subdivision and Platting Act and division 38.240 of this chapter (MCA 76-3- 201(1)(h)); 8. Is created by lease or rental of contiguous airport-related land owned by a city, county, the state, or a municipal or regional airport authority provided that the lease or rental is for onsite weather or air navigation facilities, the manufacture, maintenance, and storage of aircraft, or air carrier-related activities (MCA 76-3-205(1)); 9. Is state-owned land unless the division creates a second or subsequent parcel from a single tract for sale, rent or lease for residential purposes after July 1, 1974 (MCA 76- 3-205(2)); and 10. Is created by deed, contract, lease or other conveyance executed prior to July 1, 1974 (MCA 76-3-206). Section 16 That Section 38.240.410 of the Bozeman Municipal Code be amended as follows: Sec. 38.240.410. Dedication or consent. A. All plats of subdivisions must contain a certificate of dedication or certificate of consent signed by the subdivider. In the case of corporate ownership, the proper corporation officer must sign, a corporate notary form must be used, and the corporate seal must be affixed. The certificate of consent is used when there are no transfers of land interests to the public. The certificate must read as follows: 1. Certificate of dedication. CERTIFICATE OF DEDICATION (I), (We), the undersigned property owner(s), do hereby certify that (I) (We) have caused to be surveyed, subdivided and platted into lots, blocks, streets, and alleys, and other divisions and dedications, as shown by the plat hereunto included the following described tract of land to wit: Description (Exterior Boundary Description of Area Contained in Plat and Total Acreage) The above-described tract of land is to be known and designated as (name of subdivision), City of Bozeman, Gallatin County, Montana; and the lands included in all streets, avenues, alleys, roads, highways, and parks, playgrounds, or public lands or other public improvements shown on said plat are hereby granted and donated to the City of Bozeman for the public use and enjoyment. Unless specifically listed herein, the lands included in all streets, avenues, alleys, roads, highways, and parks or public lands or other public improvements dedicated to the public 435 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 64 of 78 are accepted for public use, but the city accepts no responsibility for maintaining the same. The owner(s) agree(s) that the city has no obligation to maintain the lands included in all streets, avenues, alleys, roads, highways, and parks, or public lands or other public improvements, hereby dedicated to public use. The lands included in all streets, avenues, alleys, roads, highways, and parks, or public lands or other public improvements dedicated to the public for which the city accepts responsibility for maintenance include (list specific streets, avenues, alleys, roads highways, and parks or other public lands or other public improvements). The undersigned hereby grants unto each and every person firm or corporation, whether public or private, providing or offering to provide telephone, electric power, gas, internet, cable television or other similar utility or service, the right to the joint use of an easement for the construction, maintenance, repair and removal of their lines and other facilities in, over, under and across each area designated on this plat as "Utility Easement" to have and to hold forever. DATED this _______ day of _______, _______. (Acknowledged and notarized signatures of all record owners of platted property) 2. Certificate of consent. CERTIFICATE OF CONSENT (I), (We), the undersigned property owner(s), do hereby certify that (I), (We) caused to be surveyed, subdivided and platted into lots, blocks, streets, and alleys, and other divisions and dedications, as shown by this plat hereunto included, the following described tract of land, to wit: Description (Exterior Boundary Description of Area Contained in Plat and Total Acreage) The above described tract of land is to be known and designated as (name of subdivision), City of Bozeman, Gallatin County, Montana. The undersigned hereby grants unto each and every person, firm of corporation, whether public or private, providing or offering to provide telephone, electric power, gas, internet, cable television or other similar utility or service, the right to the joint use of an easement for the construction, maintenance, repair and removal of their lines and other facilities in, over, under and across each area designated on this plat as "Utility Easement" to have and to hold forever. DATED this _______ day of _______, _______. (Acknowledged and notarized signatures of all record owners of platted property) Section 17 That Section 38.240.460 of the Bozeman Municipal Code be amended as follows: Sec. 38.240.460. Acceptance of dedications Governing body. When property or improvements are being transferred to the public this certificate is used. The city commission’s or their designated agent must certify approval of theacceptance for 436 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 65 of 78 public use of improvements associated with the plat of subdivision. Said certificate must read as follows: CERTIFICATE OF DIRECTOR OF PUBLIC WORKSACCEPTANCE OF DEDICATIONS I, Director of Public Works, City of Bozeman, Montana, do hereby certify that the accompanying plat has been duly examined and has found the same to conform to the law, approves it, and hereby accepts the dedication to the City of Bozeman for the public use of any and all lands shown on the plat as being dedicated to such use. DATED this _______ day of _______, _______. (Signature), Director of Public Works Section 18 That Section 38.240.470 of the Bozeman Municipal Code be amended as follows: Sec. 38.240.470. Exclusion from MDEQ review for sanitation. The following certificate must be added to all subdivision plats to certify that adequate stormwater drainage and adequate municipal facilities will be provided. CERTIFICATE OF EXCLUSION FROM MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY REVIEW The (Name of Subdivision), Gallatin County, Montana, is within the City of Bozeman, Montana, a first-class municipality, and within the planning area of the Bozeman growth policy which was adopted pursuant to MCA 76-1-601 et seq., and can be provided with adequate stormwater drainage and adequate municipal facilities. Therefore, under the provisions of MCA 76-4-125, this subdivision is excluded from the requirement for Montana Department of Environmental Quality review. DATED this _______ day of _______, _______. (Signature), Director of Public Works City of Bozeman, Montana Section 19 That Section 38.240.500 of the Bozeman Municipal Code be amended as follows: Sec. 38.240.500. Certification of use of exemption claim. A. The following certificates must be provided in a printed certificate on the amended plat or certificate of survey for allowed exemptions from review as subdivisions: 1. Certificate of governing body to authorize exemption from subdivision review. 437 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 66 of 78 CERTIFICATE OF GOVERNING BODY – USE OF EXEMPTION I, (Director of Community Development), do hereby certify that the accompanying (Certificate of Survey or Amended Plat) has been duly reviewed, and has been found to conform to the requirements of the Subdivision and Platting Act (MCA 76-3-101 et seq.), and the Bozeman Municipal Code. DATED this _______ day of _______, _______. (Signature), Director of Community Development 2. Certificate of exemption. Reference to exclude the survey from state department of environmental quality review can also be added to this certificate, as appropriate. LANDOWNER CERTIFICATE OF EXEMPTION (I), (We) certify that the purpose of this survey is to (state exemption), and therefore this survey is exempt from review as a subdivision pursuant to MCA 76-3-207(1) (add appropriate subsection). DATED this _______ day of _______, _______. (Acknowledged and notarized signatures of all record owners of surveyed property) Section 20 That Section 38.240.540 of the Bozeman Municipal Code be amended as follows: Sec. 38.240.540. Certificate of Governing Body A. The city commission’s designated agent must certify approval of all plats of subdivision. Said certificate must read as follows: CERTIFICATE OF GOVERNING BODY APPROVING PLAT I, Director of Community Development, City of Bozeman, Montana, do hereby certify that the accompanying plat has been duly examined and has found the same to conform to the law and approves it. DATED this _______ day of ______________________, _______. (Signature), Director of Community Development Section 21 That Section 38.250.080 of the Bozeman Municipal Code be amended as follows: Sec. 38.250.080. Subdivision variances. 438 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 67 of 78 A. Procedure. The subdivider must provide during the pre-application process, and include with the submission of the preliminary plat, a written statement describing the requested variance and the facts of hardship upon which the request is based. The relevant advisory bodies must include their findings and conclusion regarding the requested variance in its recommendation. The city review authority must then consider each variance at the public hearing on during their review of the preliminary plat. A public hearing may not be held on a variance in association with a first minor subdivision. B. Review criteria. Per MCA 76-3-506, a variance to this chapter must be based on specific variance criteria, and may not have the effect of nullifying the intent and purpose of this chapter. The city must not approve subdivision variances unless it makes findings based upon the evidence presented in each specific case that: 1. The granting of the variance will not be detrimental to the public health, safety, or general welfare, or be injurious to other adjoining properties; 2. Because of the particular physical surroundings, shape or topographical conditions of the specific property involved, an undue hardship to the owner would result if strict interpretation of this chapter is enforced; 3. The variance will not cause a substantial increase in public costs; and 4. The variance will not, in any manner, place the subdivision in nonconformance with any other provisions of this chapter or with the city's growth policy. C. Variances from floodway provisions not authorized. The review authority may not, by subdivision variance, permit subdivision for building purposes in areas located within the floodway of a flood of 100-year frequency as defined in title 76, chapter 5, Montana Code Annotated (MCA 76-5-101 et seq.). Any variances related to floodways must meet the standards of 38.250.070.C.4.a. D. Conditions. In granting subdivision variances, the review authority may require such conditions as will, in its judgment, secure the objectives of this chapter. Any approval under this section must be subject to the terms of the conditions designated in connection therein. Any conditions required must be related both in purpose and scope with the relief sought through the variance. E. Statement of facts. When any variance from this chapter is granted, the motion of approval must contain a statement describing the variance and conditions upon which the issuance of the variance is based. F. Planned unit development. Where the standards and requirements of this chapter are proposed to be modified through a planned unit development, the applicable process is a deviation rather than a variance. 439 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 68 of 78 G. Limitations on approvals. For subdivision variances, the variance approval will be null and void if the final plat is not filed within the time allowed for final approval by the city's decision. Section 22 That a new Section 38.360.280 of the Bozeman Municipal Code be created to read as follows: Section 38.360.280 Agricultural water user facilities A. Purpose. The purpose of this section is to recognize and protect property rights established through water rights issued by the state of montana and the associated rights of conveyance for agricultural water user facilities. Development of land has potential to negatively impact such rights and function of such facilities. The state has adopted requirements including but not limited to 70-17-112, 85-7-2211 and 85-7-2212, MCA to protect agricultural water user facilities and prevent interference with them. B. Notice requirements concerning agricultural water user facility: 1. Where an agricultural water user facility is present on-site, or on an adjoining property within 100 feet of the exterior boundaries of the proposed development, the developer must: a. provide written notice to the applicable water users and/or agricultural water user facility’s authorized representatives of the proposed development, b. provide them with a copy of the proposed development layout, c. provide a description of any anticipated adverse effects to the agricultural water user facility, d. provide a description of any mitigation proposed to remedy such adverse effects, and e. provide 45 calendar days for the water users and/or agricultural water user facility’s authorized representatives to submit written comments. 2. Notice to the water users and/or agricultural water user facility’s authorized representatives must be as follows. a. In the event the agricultural water user facility conveys water for an incorporated or otherwise organized group of water users such as a ditch or canal company, and the water users have officially elected or otherwise appointed a representative or group of representatives, written notice shall be to the agricultural water user facility’s authorized representatives. b. In the event the agricultural water user facility conveys water for water users that have not organized or officially elected or otherwise appointed a representative, the developer shall give written notice to all water users. c. In the event the agricultural water user facility conveys water in a combination of the scenarios described in i and ii above, the Subdivider shall give written 440 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 69 of 78 notice to the agricultural water user facility’s authorized representatives, and any water users not represented by the agricultural water user facility’s authorized representatives. d. The montana department of natural resources and conservation is the agency that maintains the official records for water rights. 3. The pre-application or concept plan submittal shall include the names and contact information for the water users and agricultural water user facility’s authorized representatives that were provided with written notice, and the date they were provided written notice; and a copy of the notice sent. 4. If the water users and/or agricultural water user facility’s authorized representatives have provided the applicant with written comments, those comments shall be submitted with the pre-application or concept plan submittal. 5. If there are changes to the project between the pre-application plan or concept plan submittal and formal application stage that would result in additional impacts to the agricultural water user facility, the developer shall comply with the notice and documentation requirements described above to be submitted with the formal application. 6. If the subject of this subsection was fully addressed with a previous development review and a new application is fully in compliance with the earlier approval then compliance with the notice provisions of this subsection is not required. C. Persons holding water rights, agricultural water user facility owners, or their representatives may conduct necessary maintenance such as cleaning and removal of accumulated silt, branches, trees, sticks and other debris as well as repair or restoration activities consistent with state law and the terms of any applicable easement or other authority. D. Agricultural water user facilities may also be subject to 38.410.060. Section 23 That Section 38.400.020 of the Bozeman Municipal Code be amended as follows: Sec. 38.400.020. Street and road dedication. A. General. All streets or alleys within, or providing access to, the proposed development must be dedicated to the public, be private streets to be owned and maintained by an approved property owners' association, or, if the criteria of this section are met, be a public street easement. 1. Public street easements. Public street easements must: a. Be approved by the city attorney's office; b. Be recorded in the county clerk and recorder's office; and 441 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 70 of 78 c. Clearly grant to the public an unrestricted right of ingress and egress from a public street to the property to be subdivided. 2. Private streets. a. Private streets may be required to have a public access easement if deemed necessary by the city. b. If a private street is proposed, the project must be reviewed as a planned unit development. However, development proposals containing private streets are exempt from the PUD review requirement if: (1) A local private street is proposed and the street would comply with the city standard right-of-way requirement of 60 feet, and the standard back-of-curb to back-of-curb width of 31, 33 or 35 feet; or (2) A local private street is proposed and the street would comply with the city standard right-of-way requirement of 60 feet. The back-of-curb to back-of- curb width may vary from city standards, provided that: (a) A permanent funding source, such as the levying of assessments against all properties within the development, for street maintenance is established and the funding levels will be adequate for all future private street maintenance; and (b) The developer signs a waiver of right to protest the creation of SIDs, or other perpetual legal instrument, acknowledging that the city will not assume dedication and/or maintenance of the streets unless the street is brought up to city standards, or the property owners' have agreed to an assessment to fund improvements required to bring the street up to city standards. The developer must record the waiver, or other legal instrument, at the time of final plat recordation, or prior to issuance of building permits if no final plat recordation is required. c. Documented proof of adequate funding and scheduling for maintenance of all private streets, must be provided, subject to section 38.270.09038.220.200. Section 24 That Section 38.410.060 of the Bozeman Municipal Code be amended as follows: Sec. 38.410.060. Easements. A. Required easements. Where determined to be necessary, public and/or private easements must be provided for private and public utilities, drainage, vehicular or pedestrian access, etc. 442 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 71 of 78 1. In subdivisions, all easements must be described, dimensioned and shown on the final plat in their true and correct location. 2. In all other developments, the proper easements documents must be prepared for review and approval by the city, and filed at the county clerk and recorder's office. The easement documents must be accompanied by an exhibit indicating the dimensions, and true and correct location, of all easements. 3. No lot may be encumbered by a public or private utility easement in a way that would decrease the amount of buildable land to less than the area required by this chapter for the applicable zoning district. B. Private utility easements. Private utilities include, but are not limited to, natural gas, electricity, telephone, cable and fiber optic lines. The developer must provide private utility easements necessary to extend private utilities to the development, and to provide for the construction and maintenance of private utilities within the development. 1. General. a. Building setbacks must be coordinated with all provided utility easements. If a utility easement will be greater than the building setback required by this chapter, a note to that effect must be placed on the final plat and/or final site plan as appropriate. b. Where a utility easement is to be located in an existing, dedicated right-of-way, an encroachment permit must be obtained from the local or state street or road department having jurisdiction. c. If placed in a city right-of-way, easements must be in a location required by and agreed upon in writing by all of the appropriate utility companies and the review authority. 2. Easement size. a. Front setback utility easements. Front setback utility easements must be ten feet wide, and must always be provided unless written confirmation is submitted to the community development department from all utility companies providing service indicating that front setback easements are not needed. b. Rear setback utility easements. The provision of rear setback utility easements is not mandatory unless they are required by any or all of the utility companies to adequately serve the development. If provided, rear setback utility easements on each lot must be six feet wide if adjacent to a public alley and ten feet if not adjacent to a public alley. c. Side setback utility easements. The provision of side setback utility easements is not mandatory unless they are required by any or all of the utility companies to adequately serve the development. If provided, the width of the side setback utility easement must be determined on a case-by-case basis based on the needs of the utility companies. 3. Private utility plans. 443 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 72 of 78 a. When the concurrent construction option will be used, based on the provisions of section 38.270.030.D, private utility plans must be included with the preliminary PUD submittal. b. Private utility plans must be provided with any plans and specifications submittals for the construction of new water, sewer or street infrastructure as specified in the city's design standards and specifications policy. 4. No building shall be constructed that encroaches on a private utility easement unless written approval from all utility companies is provided to the community development department. C. Public utility easements. Public utilities include water, sewer and stormwater facilities that are dedicated to and maintained by the city. 1. A public utility easement must be granted for all public utility mains not located within public street right-of-way. An easement must be at least 30 feet wide for either one or two utility mains. An additional ten feet of width is required for each additional main that occupies the easement. Wider easements may be required at the discretion of the city for large utility lines. 2. Public utility easements must be provided for all meter pits and fire hydrants maintained by the city. 3. No permanent structures shall be placed within public utility easements unless an encroachment permit has been obtained from the city. D. Easements for agricultural water user facilities. 1. Except as noted in subsection D.2 of this section, the developer must establish appropriate agricultural water user facility easements that: a. Are in locations of appropriate topographic characteristics and sufficient width to allow the physical placement and unobstructed maintenance of active open ditches or below ground pipelines. Easements may be required when an agricultural water user facility is on adjacent property but an easement necessary to protect the function of the agricultural water user facility crosses onto the property to be developed. The easement must facilitate the delivery of water for irrigation to persons and lands legally entitled to the water under an appropriated water right or permit of an irrigation district or other private or public entity formed to provide for the use of the water right; (1) The easements must ensure the conveyance of irrigation water through the land to be developed to lands adjacent to or beyond the development's boundaries in quantities and in a manner consistent with historic and legal rights; and (2) A minimum easement width of ten feet is required on each side of irrigation canals and ditches. 444 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 73 of 78 b. Are a sufficient distance from the centerline of the agricultural water user facility to allow for construction, repair, maintenance and inspection of the ditch or pipeline; and c. Prohibit the placement of structures or the planting of vegetation other than grass within the agricultural water user facility easement without the written permission of the facility owner. 2. The developer need not establish agricultural water user facility easements as provided above if the following provisions were met or will be met via the subdivision or site plan process: a. The average lot size is one acre or less and the developer provides for disclosure, in a manner acceptable to the review authority, that adequately notifies potential buyers of lots that are classified as irrigated land and may continue to be assessed for irrigation water delivery even though the water may not be deliverable; or b. The water rights are removed or the process has been initiated to remove the water rights from the subdivided or developed land. If the water rights have been or will be removed from the land within the development it must be so noted with the preliminary plat or plan submittal. If removal of water rights is not complete upon filing of the final plat or approval of the final site plan, the developer must provide written notification to prospective buyers of the intent to remove the water right and must document that intent, when applicable, in agreements and legal documents for related sales transactions. 3. The realignment or relocation of active irrigation ditches or pipelines is discouraged. If an agricultural water user facility or points of diversions thereon are proposed to be realigned or relocated, the developer's professional engineer must certify, prior to final plat or final plan approval, that the water entering and exiting the realigned or relocated agricultural water user facility is the same quality and amount of water that entered or exited the facility prior to realignment or relocation. 4. Stormwater from a development must not be discharged to an agricultural water user facility without written approval from the owner of the facility and corresponding stormwater conveyance easements. 5. If the developer demonstrates that easements have been extinguished pursuant to state law, or the holder of the easement consents in writing to the extinguishment, or the easement is not required per subsection D.2, the developer may remove ditch laterals from within the subdivision. 6. If agricultural water user facility easements are required, a notice must also be recorded with a final plat or prior to final plan approval, stating that the easements are subject to the requirements of Section 70-17-112, MCA restricting interference with canal or ditch easements and that irrigation works are subject to Section 85-7-2211 and 85-7- 2212, MCA regarding duties and liability. The notice must include language to assure the duties are binding upon all successors in interest and remain in effect until such time that the agricultural water user facility is abandoned in accordance with the 445 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 74 of 78 requirements of Montana Law or alternative requirements are agreed to in writing by all applicable parties. The easements must be prepared as documents separate from a final plat but may be referenced on a final plat. 7. Any other mitigation of impacts to an agricultural water user facility identified during development review must be coordinated with any required easement. Mitigation shall be reasonable, based on site-specific conditions, and shall be developed with consideration of comments received from the water users and or agricultural water user facility’s authorized representatives. E. Other easements. Public access easements for streets and trails must be provided in accordance with the provisions of divisions 38.400 and 38.420 of this chapter. Section 25 That Section 38.410.020 of the Bozeman Municipal Code be amended as follows: Sec. 38.410.020. Neighborhood centers. A. To provide a neighborhood focal point, all residential subdivisions or planned unit developments that are ten net acres in size or greater, must have a neighborhood center. Developments may be exempted from this requirement if every lot within the development is within one-half mile of an existing neighborhood center. Generally, the center must be no less than one acre in size. The center must be comprised of a park, square, green, plaza, transit stop, neighborhood commercial center, civic use or any combination of these. The following requirements apply to all neighborhood centers: 1. The geographic center point of the neighborhood center must be no further than 600 feet from the geographic center point of the development. This requirement may be waived in the following circumstances: a. The development would create parcels that are all non-residential; b. The center is a neighborhood commercial center or is adjacent to a neighborhood commercial center; c. The site is constrained by the presence of critical lands; d. The site is part of an approved subarea plan that shows the center in a different location; or e. The topography of the site presents physical constraints on the property. 2. With the exception of civic and neighborhood commercial center uses, the developer must install all center-related improvements as part of the required development improvements. When a multi-phase project is developed, improvements must be installed with each phase. Required improvements must be based on the definition of each feature found in article 7 of this chapter, and/or city standards. 3. The neighborhood center must have frontage along 100 percent of its perimeter on public or private streets or roads. The city may consider and approve the installation of 446 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 75 of 78 streets along less than 100 percent, but not less than 50 percent, of the perimeter in accordance with section 38.420.060. 4. With the exception of civic and neighborhood commercial center buildings and grounds, the center is considered a common area to be owned and maintained by the property owners' or a property owners' association. The property owners' association may establish an improvement district to collect assessments to pay for the maintenance. 5. After receiving a recommendation from the city recreation and parks advisory board, aAreas within neighborhood centers used for park, square, or green may count towards parkland dedication requirements (subject to review and approval by the review authority) if they meet the following criteria: a. The area is predominantly open space with enhanced natural features, but may contain amenities such as sidewalks, seating, drinking and ornamental fountains and public art; and b. The area provides active and/or passive recreation opportunities. 6. The neighborhood center may be used for limited stormwater retention/detention facilities if reviewed and approved by the review authority. However, any part of the center used for stormwater management does not count towards park dedication requirements. 7. New neighborhood commercial centers are subject to the community design framework master plan provisions of sections 38.210.130 and 38.510.030.L. Section 26 That Section 38.420.050 of the Bozeman Municipal Code be amended as follows: Sec. 38.420.050. Location. A. General. The review authority, in consultation with the developer, recreation and parks advisory board and parks department, and the planning board if applicable, may determine suitable locations for parks and playgrounds. Parkland must be located on land suitable to and supportive of the activities and functions depicted in the relevant park plan, and unless the park plan indicates a requirement for another configuration, should be kept in a large block. B. Subarea or neighborhood plans. If a subarea or neighborhood plan has been adopted for the area, the subdivision must comply with the subarea or neighborhood plan for the location of parks Commented [CS30]: Implementing changes in advisory boards and removing an extra step in review to keep within required time frames of review. 447 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 76 of 78 Section 27 That Section 38.420.080 of the Bozeman Municipal Code be amended as follows: Sec. 38.420.080. Park development. A. General. Developers must consult any adopted citywide park plan, and with the recreation and parks advisory boardparks department which implements the plan, to determine the types of parks needed for the proposed development and surrounding area. Parks must be developed in accordance with the citywide park plan and any approved park master plan. At a minimum, all parks must be improved to the following standards by the developer, prior to final plat or final occupancy approval as appropriate: 1. Minimum required improvements to land dedications. The subdivider must level any park area, amend the soil, seed disturbed areas to allow mowing with turf type mowers, and install an underground irrigation system in compliance with city standards and specifications. a. Parks must be seeded with drought tolerant grass seed unless approved otherwise in writing by the park superintendent. 2. Irrigation. The developer must irrigate the park area until 50 percent of the subdivision lots or condominium units are sold. Thereafter, the property owners' association must be responsible for park irrigation. The property owners' association may establish an improvement district to collect assessments to pay for irrigation. a. Wells must be used to irrigate parkland. B. Boundaries. The park boundary bordering all private lots must be delineated at the common private/public corner pins, with flat, flexible fiberglass posts, a minimum of six feet in length with no less than two feet driven into the ground. Each post must be labeled with a permanent glued on sign stating "Park Boundary" or "Property Boundary." Other forms of boundary marking may be approved by the planning or other appropriate department. C. Sidewalks. Sidewalks, when required within the development, must be installed by the developer at points where the park borders or crosses public or private streets. D. Stormwater detention/retention ponds. Stormwater retention or detention ponds may be located within public parkland, but such areas do not count towards the parkland dedication requirement. Any stormwater ponds located on parkland must be designed, constructed and/or added to so as to be conducive to the normal use and maintenance of the park. Stormwater ponds may not be located on private lots. Stormwater retention or detention ponds must be maintained by the property owners' association. E. Clean up required. All fencing material, construction debris and other trash must be removed from the park area. Section 28 448 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 77 of 78 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 29 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 30 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 31 Codification. This Ordinance shall be codified as indicated in Section 2–28. Section 32 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 _____ day of ________________, 2021 449 Ordinance No. 2089, 2021 Legislative Session Subdivision Amendments Ord 2089 Page 78 of 78 ____________________________________ 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 450 Memorandum REPORT TO:City Commission FROM:Jesse DiTommaso, Deputy City Clerk Mike Maas, City Clerk Jeff Mihelich, City Manager SUBJECT:Appointments to Citizen Advisory Boards MEETING DATE:November 16, 2021 AGENDA ITEM TYPE:Citizen Advisory Board/Commission RECOMMENDATION:I move to appoint the following members to the associated roles and terms as provided: Urban Parks & Forestry Board: Three members appointed to terms ending December 31, 2024 Alice Stanley Anna Wearn Thomas Cuezze Four members appointed to terms ending December 31, 2023 Angie Kociolek as Chair Dan Fenn as Vice-chair Sally Rohrer Donald Ulrich Sustainability Board: Three members to terms ending December 31, 2024 Emma Bode as Chair Rebecca Kurnick as Vice-chair Kristin Blackler Four members to terms ending December 31, 2023 Benjamin Finegan Isabel Shaida Lumay Murphy Matt Thompson Economic Vitality Board: Four members to terms ending December 31, 2023 Joseph Morrison Sara Savage Suzanne White Craig Ogilvie Three members to terms ending December 31, 2024 451 Katy Osterloth as Chair Danielle Rogers as Vice-chair John Carey Community Development Board: One Mayoral appointment upon designation by Gallatin County Commission to a term ending December 31, 2024 Jerry Pape Four Mayoral appointments to terms ending December 31, 2024 Allison Bryan Brady Ernst John Backes Padden Guy Murphy One Commission appointment of a licensed architect to a term ending December 31, 2023 Stephen Egnatz One Commission appointment of a representative of the development community to a term ending December 31, 2023 Nicole Olmstead as Vice-chair One Commission appointment to a term ending December 31, 2023 Henry "Hap" Happel as Chair Transportation Board: One member to a term ending December 31, 2022 Bryce Gordon Two members to terms ending December 31, 2023 Christine Roberts Shannon Mahoney Two members to terms ending December 31, 2024 Deejay Newell Courtney Oyler Two members to terms ending December 31, 2025 Kelly Pohl as Chair Paul Reichert as Vice-chair STRATEGIC PLAN:1.2 Community Engagement: Broaden and deepen engagement of the community in city government, innovating methods for inviting input from the community and stakeholders. BACKGROUND:The City Commission held public work sessions on February 23, May 25, and June 22, 2021 . On August 10, 2021, the City Commission adopted Resolution 5323 , defining a high performing board model, and Resolutions 5326, 5327, 5328, 5329, and 5330 approving and establishing the Transportation Board, the Sustainability Board, the Urban Parks and Forestry Board, the Economic Vitality Board, and the Community Development Board. 452 On August 10, 2021 , the City Commission provisionally adopted Ordinance 2085 for board consolidation and finally adopted said ordinance on August 24, 2021. The City of Bozeman accepted applications until September 30, 2021. A panel of two City Commission members and appropriate staff determined eligibility, screened applicants, and identified candidates for an interview from October 4 - October 11, 2021; interviews with candidates were conducted from October 18 - October 29, 2021. Application materials are available for review for the Community Development Board, the Economic Vitality Board , the Sustainability Board, the Transportation Board, and the Urban Parks & Forestry Board . This appointment step is the conclusion of the new board structure creation and will empanel boards to begin meeting in December. UNRESOLVED ISSUES:For the Community Development Board, the appointment of one member from the City Commission membership to a term ending December 31, 2023 has yet to be determined. ALTERNATIVES:As per City Commission. FISCAL EFFECTS:None. Report compiled on: November 3, 2021 453