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12-14-21 City Commission Meeting Agenda and Packet Materials
A.Call to Order - 4:30 PM - WebEx Videoconference B.Executive Session The Mayor may close the meeting to the public pursuant to Sect. 2-3-203(3), MCA, during the time discussion relates to a matter of individual privacy if and only if the Mayor determines the demands of individual privacy clearly exceed the merits of public disclosure. The right of individual privacy may be waived by the individual about whom the discussion pertains and, in that event, the meeting must be open. B.1 City Manager Annual Performance Evaluation C.Pledge of Allegiance and a Moment of Silence D.Changes to the Agenda THE CITY COMMISSION OF BOZEMAN, MONTANA SPECIAL MEETING AGENDA Tuesday, December 14, 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=e0422bf46c57332a23fd8bd8e290c6d2a 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: 2556 605 1717 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 (click the Streaming Live in the drop down menu) and available in the City on cable channel 190. 1 E.FYI F.Commission Disclosures G.Consent G.1 Accounts Payable Claims Review and Approval (Tonkovich) G.2 Authorize the City Manager to Sign a Letter of Agreement Accepting a Donation in the Amount of $41,750 from the Library Foundation for Service Order 2 and Pre-Construction Services for the Bozeman Public Library Expansion(Henderson) G.3 Authorize the City Manager to Sign an Interlocal Agreement with Riverside Water and Sewer District(Cooper) G.4 Riverside Annexation, Acknowledge Receipt of Petition for Annexation of the Riverside Manor Subdivision, Riverside Greens Subdivision, and Tracts 1-3 of Certificate of Survey 3030, Approximately 57.5 Acres Located on Gallatin Drive, Park Plaza Road, Riverside Drive, Elaine Lane, and Springhill Road, Including 125 Residential Buildings and 4 Commercial Buildings, Application 21426(Saunders) G.5 Authorize the City Manager to Sign a Change Order 1 with CK May for the Griffin Drive and Manley Road Street and Stormwater Improvements Project(Lonsdale) G.6 Authorize the City Manager to Sign a Task Order 4 for Economic and Planning Systems, Inc (EPS) - Update to the 2016 Economic Development Strategy(Fontenot) G.7 Ordinance 2095, Provisional Adoption to Rezone 3.4 Acres from B-2, Community Business District to B-2M, Community Business District-Mixed, Application 21192, Property Located on the Southeast Corner of South 19th Avenue and West Babcock Street(Rogers) H.Public Comment This is the time to comment on any matter falling within the scope of the Bozeman City Commission. There will also be time in conjunction with each agenda item for public comment relating to that item but you may only speak once. Please note, the City Commission cannot take action on any item which does not appear on the agenda. All persons addressing the City Commission shall speak in a civil and courteous manner and members of the audience shall be respectful of others. Please state your name and address in an audible tone of voice for the record and limit your comments to three minutes. I.Action Item I.1 Appeal of Issuance of Business License #21-69197 to Bibs to Books Playhouse (Rischke) I.2 Resolution 5353 Allocation Of Cash-In-Lieu Of Parkland Funds For Acquisition Of Land Adjacent To Burke Park And Authorizing The City Manager And City Attorney To Take All Steps Necessary To Purchase The Land Associated With The Burke Park/Peets Hill Expansion And Improvement Project(Jadin) I.3 Resolution 5359 Adoption of the Capital Improvement Plan (CIP) for Fiscal Years 2023- 2 2027(Rosenberry) J.FYI / Discussion K.Adjournment City Commission meetings are open to all members of the public. If you have a disability that requires assistance, please contact our ADA Coordinator, Mike Gray, at 582-3232 (TDD 582-2301). Commission meetings are televised live on cable channel 190 and streamed live at www.bozeman.net. City Commission meetings are re-aired on cable Channel 190 Wednesday night at 4 p.m., Thursday at noon, Friday at 10 a.m. and Sunday at 2 p.m. In order for the City Commission to receive all relevant public comment in time for this City Commission meeting, please submit via www.bozeman.net or by emailing agenda@bozeman.net no later than 12:00 PM on the day of the meeting. Public comment may be made in person at the meeting as well. 3 Memorandum REPORT TO:City Commission SUBJECT:City Manager Annual Performance Evaluation MEETING DATE:December 14, 2021 AGENDA ITEM TYPE:Administration RECOMMENDATION:Discuss the City Manager Annual Performance Evaluation The Mayor may close the meeting to the public pursuant to Sect. 2-3-203(3), MCA, during the time discussion relates to a matter of individual privacy if and only if the Mayor determines the demands of individual privacy clearly exceed the merits of public disclosure. The right of individual privacy may be waived by the individual about whom the discussion pertains and, in that event, the meeting must be open. 4 Memorandum REPORT TO:City Commission FROM:Kathleen Tonkovich, Accounts Payable Clerk Anna Rosenberry, Interim Finance Director SUBJECT:Accounts Payable Claims Review and Approval MEETING DATE:December 14, 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 and Accounts Payable Clerk Kathleen Tonkovich. Report compiled on: December 3, 2021 5 Memorandum REPORT TO:City Commission FROM:Jon Henderson, Strategic Services Director SUBJECT:Authorize the City Manager to Sign a Letter of Agreement Accepting a Donation in the Amount of $41,750 from the Library Foundation for Service Order 2 and Pre-Construction Services for the Bozeman Public Library Expansion MEETING DATE:December 14, 2021 AGENDA ITEM TYPE:Agreement - Agency/Non-profit RECOMMENDATION:Authorize the City Manager to sign a letter of agreement accepting a donation in the amount of $41,750 from the Library Foundation for Service Order 2 and Pre-Construction Services for the Bozeman Public Library Expansion. STRATEGIC PLAN:5.1 Civic and Cultural Infrastructure: Expand Bozeman's civic and cultural "infrastructure" as the city grows. BACKGROUND:On August 17, 2021 the City Commission approved an Agreement between the Bozeman Public Library, the Bozeman Public Library Foundation, and the City of Bozeman for Phase 2 (Final Design) and Phase 3 (Construction) of the Bozeman Public Library Expansion to address growing program needs, in addition to expanded meeting room space. This Letter of Agreement confirms the understanding reached by all parties and sets forth the terms and conditions of a contribution by the Bozeman Public Library Foundation to the City of Bozeman for Service Order 2 and Pre-Construction Services for the Bozeman Public Library Expansion. Service Order 2 amended the existing Architectural Services Agreement approved on August 17, 2021 to include design service fees to support lighting upgrades and an expansion of the automatic materials handler system associated with the Library Expansion ($22,010). Pre-construction services were approved through a Contract for General Contractor / Construction Manager Services on November 9, 2021 necessary to perform cost estimates and constructability review prior to the commencement of actual construction ($19,740). This agreement was approved by the Bozeman Public Library Foundation on November 10, 2021, and has been reviewed by the Legal Department and found to be acceptable in meeting the City’s specifications and standards. 6 UNRESOLVED ISSUES:None. ALTERNATIVES:As directed by the City Commission FISCAL EFFECTS:The Bozeman Public Library Expansion will be funded by the Library Foundation through a combination of capital reserves and donor contributions. Funding needed to support construction services will require a subsequent Letter of Agreement for accepting additional donations to complete the project. Attachments: Bozeman Public Library Expansion Project - Service Order 2 and Pre-Construction Services - Letter of Agreement.docx Report compiled on: December 3, 2021 7 Letter of Agreement December 3, 2021 RE: Service Order 2 and Pre-Construction Services for the Bozeman Public Library Expansion—Letter of Agreement This letter of agreement (the “Agreement”) confirms the understanding reached by the parties and sets forth the terms and conditions of a contribution by the Bozeman Public Library Foundation (“BPLF”) to the City of Bozeman (“City”) for Service Order 2 and Pre-Construction Services for the Bozeman Public Library Expansion. 1. Parties to the Agreement and Notices: a. For BPLF Contact: Janay Johnson, Director Address: 626 East Main; Bozeman MT 59715 b. For City of Bozeman Contact: Cyndy Andrus, Mayor Address: 121 N. Rouse Ave; Bozeman MT 59715 2. Background: Details of the project and the specific responsibilities of each party are outlined in the Agreement between the Bozeman Public Library, the Bozeman Public Library Foundation, and the City of Bozeman signed and executed on August 17, 2021. Service Order 2 will formally amend the existing Architectural Services Agreement to include design service fees to support lighting upgrades and an expansion of the automatic materials handler system associated with the Library Expansion ($22,010). Pre-construction services are necessary to perform cost estimates and constructability review prior to the commencement of actual construction ($19,740). MSR Design will provide Architectural Services, while Martel Construction will provide Pre-Construction Services. Both firms were selected through a competitive process, and are currently under contract with the City. 3. BPLF Responsibilities: a. Perform a wire transfer in the amount of $41,750.00 payable to the City no later than December 31, 2021. 4. City of Bozeman Responsibilities: 8 a. Utilize the funds exclusively for Service Order 2 and Pre-Construction Services for the Library Expansion Project. b. Return any unused funds to BPLF at the completion of Service Order 2 and Pre- Construction Services. c. Highlight BPLF’s funding and involvement in the project in press releases or other promotional activities. 5. Acceptance: By signing below, the undersigned represent that they are authorized to act on behalf of their respective parties and to bind their respective parties to the terms of this Agreement, and that the undersigned parties have read, understand and agree to the above. Bozeman Public Library Foundation: Signed: ____________________________ Janay Johnson, Director Date: ______________________________ City of Bozeman: Signed: _____________________________ Jeff Mihelich, City Manager Date: _______________________________ 9 Memorandum REPORT TO:City Commission FROM:Tim Cooper, Assistant City Attorney Greg Sullivan, City Attorney SUBJECT:Authorize the City Manager to Sign an Interlocal Agreement with Riverside Water and Sewer District MEETING DATE:December 14, 2021 AGENDA ITEM TYPE:Agreement - Legal RECOMMENDATION:Authorize City Manager to sign an interlocal agreement with Riverside Water and Sewer District. STRATEGIC PLAN:3.1 Public Safety: Support high quality public safety programs, emergency preparedness, facilities, and leadership. BACKGROUND:The Riverside County Water and Sewer District owns and operates facilities and systems that provide a water supply and wastewater treatment and disposal for residents of Riverside Manor Subdivision and Riverside Greens Subdivision, and also the Riverside Country Club. The District has explored the costs and benefits of upgrading its facilities or, alternatively, entering into an agreement with the City whereby the City would treat and dispose of the wastewater collected in the district. The City Commission adopted Resolution No. 4972 on January 28, 2019 providing a framework for annexation of the Riverside properties to enable the City to assist the Riverside properties in the treatment of its wastewater effluent. The Resolution further provides that should the residents of the Riverside properties request annexation and the City’s assistance in treating its wastewater effluent, the City would take all steps to create a special improvement district to finance the costs of and construct infrastructure to connect the Riverside properties to the City’s Water Reclamation Facility. This interlocal agreement provides for the City to acquire the District’s wastewater collection facilities and to treat and dispose of the wastewater collected within the District under the terms and conditions set forth therein and the construction of necessary extension facilities. As a condition precedent to the City acquiring the District’s wastewater collection facilities and accepting the wastewater collected, the Riverside properties must be annexed. This agreement is therefore executory, and does not take full effect unless and until the Commission adopts a Resolution of Annexation. 10 The Agreement contains provisions related to the City and District’s long term relationship during construction of the project and after. Please refer to the Agreement for specifics. UNRESOLVED ISSUES:None. ALTERNATIVES:As recommended by the Commission. FISCAL EFFECTS:Adoption of this Agreement will not, on its own, have any fiscal effects on the City other than staff time to monitor the Agreement. Annexation of the Riverside Properties may have fiscal effects which will be addressed at the time of annexation. Certainly, should the Commission annex the Riverside Properties the City must undergo the process to create a special improvement district to finance the costs of the Project, including costs related to the sale of bonds to pay for engineering and construction of the Project. Attachments: interlocal agreement-riverside 7 -7- 21 .pdf Resolution 4972 Riverside Conditions 1 10 19.pdf Report compiled on: December 2, 2021 11 INTERLOCAL AGREEMENT FOR WASTEWATER TREATMENT This Agreement is entered into this _____ day of ________, 20____, by and between the RIVERSIDE COUNTY WATER AND SEWER DISTRICT NO. 310, a political subdivision of the State of Montana located in Gallatin County, Montana (the “District”) and CITY OF BOZEMAN, a municipality located in Gallatin County, Montana (the “City”) RECITALS WHEREAS; the District represents it is a properly organized and operating water and sewer district pursuant to §7-13-2200 et seq. Montana Code Annotated (“MCA”) and is located contiguous to and north of the Bozeman, Montana within portions of Township 1 South, Range 5 East, Section 23, 24, 25 and 26 M.P.M., Gallatin County, Montana; WHEREAS, the District represents it owns and operates facilities and systems that provide a potable water supply and wastewater treatment and disposal for properties within its jurisdictional boundaries, as shown on Exhibit A (the “Riverside Properties”); WHEREAS, within the District’s jurisdictional boundaries, it represents it has wastewater collection areas that currently include 59 single-family homes on Riverside Drive and Park Plaza Road located east of Spring Hill Road; 64 townhouses on Gallatin Drive located on the west side of Spring Hill Road, and the Riverside Country Club (460 maximum members) on the east of Spring Hill Road; WHEREAS, in December of 2011, the Montana Department of Environmental Quality (“MDEQ”) conducted an inspection of the District’s wastewater facilities and informed the District of a number of deficiencies that needed to be corrected with respect to treatment and disposal of its wastewater; WHEREAS, the District has explored the costs and benefits of (i) correcting the deficiencies within its facilities by upgrading the same or (ii) entering into an agreement with the City whereby the City would treat and dispose of the wastewater collected within the District; WHEREAS, the City has a wastewater treatment facility near the District and as of the date of this Agreement represents it has the capacity to treat and dispose of the wastewater that is collected within the District; WHEREAS, the District desires to enter into an agreement with the City for the City to acquire the District’s wastewater facilities, not to include the District’s existing treatment facilities, and to treat and dispose of the wastewater collected within the District under the terms and conditions set forth herein and the City desires to acquire the District’s current wastewater collection facilities, construct necessary extension facilities (collectively, “Wastewater Extension Facilities”), and to accept the wastewater collected within the District under the terms and 12 RWSD-BOZEMAN WASTEWATER AGREEMENT Page 2 conditions set forth herein and the parties have the authority to enter into such agreements pursuant to §7-11-101 et seq. Montana Code Annotated; WHEREAS, except as specifically discussed in Section 3.12 below, the parties understand and agree that nothing within this Agreement is intended to include or change the status of the District’s potable water system or its water rights related thereto; WHEREAS, in an effort to explain the future relationship that will result from annexation, the City, in cooperation with the District and the owners of the Riverside Properties, will prepare an Extension of Service Plan for Municipal Services tailored to Riverside Properties; WHEREAS, the parties agree that as a condition precedent to the City acquiring the District’s wastewater facilities and accepting the wastewater collected within the District, the property within the District’s jurisdictional boundaries must be annexed into the City as evidenced by a “Resolution of Annexation”; and WHEREAS, the City adopted Commission Resolution No. 4972 on January 28, 2019 setting forth the process for annexation (“Resolution 4972”). NOW THEREFORE, in consideration of the mutual covenants, provisions, and agreements set forth herein, the parties agree as follows: ARTICLE I DURATION AND PURPOSE 1.01 Recitals. The District and the City agree that the recitals to this Agreement are intended to describe the basis for it and the underlying intentions of the parties in entering into it, and agree further that they may be used to inform the interpretation, construction, and application of this Agreement. 1.02 Duration. This Agreement is executory, and wholly contingent upon submittal of a Petition for Annexation to the City signed by: (i) more than 50% of the resident electors owning real property in the area serviced currently by the District; or (ii) the owner or owners of real property representing 50% or more of the total area serviced currently by the District. Upon submittal of a Petition for Annexation, together with a Petition for Creation of a Special Improvement District for the financing of certain public wastewater infrastructure, with the requisite signatures, and upon adoption of a Resolution of Annexation by the City, this Agreement shall serve to govern the undertaking described until completion of Wastewater Extension Facilities. 1.03 Purpose. The purpose of this Agreement is to set forth the terms under which the City will agree to acquire the District’s wastewater collection facilities (including existing pipes, manholes, and other wastewater infrastructure accepted by the District used to collect and deliver wastewater within the District’s boundaries) (collectively, the “C&D Infrastructure”), construct extension facilities, and provide wastewater treatment and disposal services to the Riverside 13 RWSD-BOZEMAN WASTEWATER AGREEMENT Page 3 Properties and in the process (i) describes the tasks necessary to connect the District’s existing wastewater collection facilities to the City’s; and (ii) assigns to the applicable parties the responsibilities for designing, connection and paying for such connections. The City is not acquiring the District’s existing wastewater facilities or the District’s water facilities or water rights. ARTICLE II WASTEWATER EQUIPMENT & FACILITIES 2.01 Capacity. Upon approval by the City Commission of a Resolution of Annexation, and completion of the Wastewater Extension Facilities, the City will provide the Riverside Properties wastewater treatment and disposal services. In this regard, the City represents that upon completion of the improvements discussed in Section 2.02 below, the City has sufficient capacity in the City’s wastewater treatment and disposal facilities and systems to accommodate the wastewater treatment and disposal needs of the Riverside Properties. Following annexation, the City shall have the sole and exclusive right and obligation to operate and maintain all those facilities and systems to provide wastewater treatment and disposal for the Riverside Properties, as well as other properties served by the City. 2.02 Wastewater Extension Facilities. The City or its designee shall (i) design, construct, and install a new wastewater pipeline from the vicinity of the District’s current lift station to deliver wastewater to the City’s headworks facility or an upstream manhole as determined by the City in order to connect with the City’s existing facilities; and (ii) upgrade or replace its existing lift station to City standards including an emergency generator and flow meter with radio read capabilities, all as reflected on Exhibit B (the “Wastewater Extension Facilities”).The City shall be solely responsible for designing, constructing, installing, and obtaining all necessary permits for the Wastewater Extension Facilities in the size and manner it deems appropriate, provided that the same meet the standards and requirements of the MDEQ and the City that apply to public wastewater systems and are sufficient to serve the District’s Properties. 2.03 Upon completion and approval by the City of the Wastewater Extension Facilities and annexation, the District shall convey to the City, by Bill of Sale, all of the C&D Infrastructure , including the Wastewater Extension Facilities. Thereafter, the City shall be solely responsible for all collection, treatment and disposal of wastewater within the District’s jurisdictional boundaries. 2.04 Permits and Approvals. The City shall be responsible for acquiring the permits and approvals required by the laws of the State of Montana to construct the Wastewater Extension Facilities. The City shall be responsible for acquiring any permits and approvals necessary to treat and dispose of the wastewater from the Riverside Properties, as discussed herein. 2.05 Funding for Wastewater Extension Facilities. The Riverside Properties shall be solely responsible for paying for the Wastewater Extension Facilities including but not limited to costs and expenses of easements, permits, financing, etc. related to the construction and permitting of the same. In this regard, the City shall work with the District to create a Special Improvement District (an “SID”) in accordance with §7-12-4101 et seq. Montana Code Annotated. The costs 14 RWSD-BOZEMAN WASTEWATER AGREEMENT Page 4 associated with the Wastewater Extension Facilities and SID (collectively, the “SID Costs”) will be assessed against the Riverside Properties pursuant to §7-12-4162 Montana Code Annotated. As part of the annexation discussed in the Recitals above the Riverside Properties shall waive any protest they may have to the SID. 2.06 No Interest in Water System. The District is not conveying to the City any interest whatsoever in the District’s water system or water rights. The City reserves the right to require the District to periodically test the water system to verify that nothing in the water or the flow rate or volume of water stored by the District would lead to problems with the City’s wastewater facility or its firefighting responsibilities. Following annexation of the Riverside Properties, the District shall continue to own and operate, and remain responsible for, its water system and its water rights. 2.07 The Beginning Service Date: The date of completion and approval by the City of the construction of the Wastewater Extension Facilities and notice to the District the City is ready to assume wastewater services for the Riverside Properties shall be the “Beginning Service Date”. 2.08 Costs of Treatment and Disposal Services. Following the Beginning Service Date, the City will bill the Riverside Properties for wastewater services on a monthly basis in the manner it bills other similarly situated properties within the City. ARTICLE III EVENTS FOLLOWING ANNEXATION 3.01 Transfer of Wastewater Infrastructure. Following annexation of the Riverside Properties into the City and completion of the Project, the District shall transfer to the City, for no additional consideration, all right, title and interest in and to its C&D Infrastructure these being all of the personal property owned by the District used to collect and transmit to the City wastewater from Riverside Properties. The parties agree they shall execute all instruments necessary to effectuate such transfer and access. Sewer service lines from the property line to the premises are owned by the owner of the property served. As owners of the sewer service lines, all property owners will have the responsibility of keeping the service lines and all other necessary appurtenances from the property line to the premises in good condition. Should the lines not be properly maintained, the City may, at its discretion and at the owner’s expense, fix or correct any deficiencies that occur which may affect the City’s ability to provide sewer service. 3.02 Consistent with the City's policy and the manner in which it treats other annexed properties, the Riverside Properties will become part of the City upon annexation for all municipal and governmental purposes including voting, debts, taxation, representation, enforcement of laws and ordinances including the City's Unified Development Code (UDC), etc. Upon annexation, the Riverside Properties and their owners/residents shall be entitled to the same privileges and benefits as provided to other parts of the City and their residents. The City Commission, however, recognizes that the Riverside Properties are unique in that they have been part of established neighborhoods with their own character for many years. As such, the City Commission will not at the time of annexation require property owners to upgrade streets and 15 RWSD-BOZEMAN WASTEWATER AGREEMENT Page 5 sidewalks within the District to City standards at the time the Riverside Properties are annexed, or otherwise change the physical appearance of the neighborhoods. The parties understand that such a decision cannot bind future city commissions, which may require property owners to do so. a. Until the Wastewater Extension Facilities are completed, the District must be responsible for collecting and treating wastewater collected within its boundaries, as well as charging and collecting the appropriate fees for the same. b. Upon completion of the Wastewater Collection Facilities, the City will charge all costs for wastewater collection and processing directly to the owners/residents of the annexed properties in the same manner as all other City wastewater customers. The City will require the owners of each of the Riverside Properties or the District as a condition of receiving wastewater service to allow for the City or its agents to access the property to install individual water meters on each property’s water service to determine the volume of wastewater generated by the Riverside Properties. The City is authorized to charge the Riverside Properties all costs and expenses related to the installation of water meters. Until such time as a water meter has been installed in an individual property, the District agrees the City may charge costs for wastewater to such property based on the City’s current unmetered customer rate. In addition, the City will determine the assessment rate and methodology for wastewater treatment including any additional charges for treatment of an individual property’s sump pump discharge. c. Owners of the Riverside Properties may plow their own streets though all properties within the area to be annexed will be subject to full City street maintenance assessments. d. The District recognizes individual properties within the Riverside Properties must at the time of the Beginning Service Date comply with the requirements of Chapter 40, Division 3, Bozeman Municipal Code (BMC). Specifically, individual properties within the Riverside Properties will be prohibited from connecting roof downspouts, foundation drains, areaway drains, or other sources of surface runoff or groundwater into the City’s wastewater collection system pursuant to section 40.03.1060, BMC. 3.03 Existing Rural Improvement Districts. The City recognizes the Riverside Properties are included in Gallatin County's Rural Improvement District (RID) Maintenance Program through RID 308 and RID 346. The District understands the existence of the RIDs will not reduce the assessments by the City for street and tree, and arterial and collector district assessments. These existing RID’s (308 and 346) will remain in place for ongoing maintenance of the water system. Existing RID 310 is for water and sewer services and residents within the District are assessed annually based upon lot square footage. The City will not be responsible for any outstanding maintenance assessments or indebtedness the Riverside Properties may have for these RIDs. 16 RWSD-BOZEMAN WASTEWATER AGREEMENT Page 6 3.04 Central Valley Fire District Debt. The Riverside Properties are currently located within the Central Valley Fire District and those properties undertaken financial commitments related to construction of a new fire station. Upon annexation, the City shall take over responsibility for satisfying that financial commitment to the Central Valley Fire District. 3.05 Financing and Riverside Properties Responsible for All Costs of the Wastewater Extension Facilities /Financing Options. The Riverside Properties shall be solely responsible for paying for all costs of the Wastewater Extension Facilities. Consistent with the terms of the Petition, the Riverside Properties desire for the City to create a SID for selling bonds to finance the costs of the Wastewater Extension Facilities, in addition to the petition for annexation. Financing for the design and construction will be through a SID or other equitable financing method. 3.06 Indemnification. Upon annexation, the District releases, holds the City harmless and indemnifies the City from any claims or damages resulting from, arising out of, or in any way related to pollution and water quality compliance issues stemming from the District's operation of its wastewater facilities for both past action and, for those facilities not conveyed by the District to the City, for any future issues related to the District's facilities not so conveyed. This indemnification will include holding the City harmless from any delay in the District meeting DEQ's required compliance schedule. Upon annexation, the District also releases and holds the City harmless from any suit from any resident of the Riverside Properties regarding the formation of a SID to fund the Wastewater Extension Facilities. 3.07 Construction and Easements. Construction will be managed by the City in accordance with its standard procedures for infrastructure projects, including procedures for bidding, awarding and overseeing the contract for construction and construction itself. Notwithstanding the foregoing, the City, with the Districts assistance, shall be responsible for obtaining the necessary permits for the Wastewater Extension Facilities in accordance with the standards and requirements of the DEQ and the City. Where applicable, any easements or rights of way necessary for the provision of wastewater services will be transferred to the City upon annexation. 3.08 Water for Firefighting. The City will, upon annexation, rely on the District to ensure adequate water supply for fire suppression purposes. The District agrees to operate and maintain its water distribution, storage, and supply system to maximize available water flow for fire suppression from the system and to maintain the measured hydrant flows, as established through hydrant testing completed jointly with the District and the City on June 29, 2021. Upon annexation and connection of the Project to the City’s wastewater system, the District will indemnify and hold the City harmless from any claims or damages resulting from, arising out of, or in any way related to inadequate water supply or flow related to a fire suppression effort from the District’s water system. 3.09 City Not Subject to DEQ Enforcement. The parties understand and agree that the act of the City of assisting the District and the Riverside Properties in designing, constructing, and financing the Wastewater Extension Facilities does not subject the City to enforcement action by 17 RWSD-BOZEMAN WASTEWATER AGREEMENT Page 7 DEQ for the District's ongoing water quality issues. The City or its designee, however, is taking responsibility for designing and construction the Project. 3.10 City Assumption of Wastewater Treatment. On the Beginning Service Date, as defined in Section 2.08 above, the District shall convey to the City its C&D Infrastructure used to collect and deliver wastewater within the District's boundaries to the City’s water reclamation facility near the District boundaries. Thereafter, the City shall be solely responsible for all collection, treatment and disposal of wastewater coming from the Riverside Properties. 3.11 Nutrient Credits. The District acknowledges any future nitrogen and/or phosphorus nutrient credits that result from removing the District's wastewater treatment system from operation and which are provided by DEQ will belong to the City and may be used to offset the City’s nutrient discharge limits. 3.12 District’s Water System. The District is retaining its water rights, water supply and distribution system. The District's water supply and distribution system may be considered to demonstrate compliance with the City's water adequacy requirements. Notwithstanding the foregoing, the District agrees that it will not expand its area of water service without the written consent of the City. 3.13 District to Maintain Responsibility for Its Wastewater Treatment Works. After the Beginning Service date, as defined in Section 2.08 above, the District will continue to retain possession of and maintain responsibility for its existing wastewater treatment system and all infrastructure connected to that system that is not conveyed to the City as the C&D Infrastructure. 3.14 District's Ongoing Responsibilities. Following annexation and the Beginning Service Date, the District will continue to operate as it relates to providing water to the Riverside Properties, though it will cease to operate any sewer collection or treatment operations. Using its existing systems, the District will exist for wastewater purposes solely to address any outstanding reclamation and indemnity obligations. 3.15 Impact Fees. The City shall provide a listing of the cost of impact fees by individual property that make up the Riverside Properties. The City will collect all fire impact fees and distribute such to the fire impact fee capital fund at the time of annexation. For wastewater impact fees, the City collect and will place wastewater impact fees in a fund to be held by the City until the completion of the connection between the WRF and the Riverside Properties. At the time the City commences treating wastewater effluent from the District Properties the City will transfer all wastewater impact fees to the wastewater impact fee capital fund. ARTICLE IV MISCELLANEOUS 18 RWSD-BOZEMAN WASTEWATER AGREEMENT Page 8 4.01 Nondiscrimination and Equal Pay Affirmation. The parties hereby affirm they 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. In addition, the parties hereby affirm they will abide by the Equal Pay Act of 1963 and Section 39- 3-104, MCA (the Montana Equal Pay Act), and have 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 have read the material. 4.02 Extension or Termination. This Agreement may be extended or terminated upon the mutual consent of all parties. 4.03 Notices. Any notice, consent or approval required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given upon (1) hand- delivery, or (2) one business day after being deposited prepaid with Federal Express, United States Postal Service, Express Mail, UPS, or any other reliable overnight courier service or transmitted by facsimile telecopy with confirmation of receipt, and addressed as follows: If to the District: If to the City: Riverside Water & Sewer District City of Bozeman Attn: Chair Attn: City Manager P.O. Box 6233 P.O. Box 1230 Bozeman, Montana 59771 Bozeman, MT 59771 Either party may change its address by giving notice to the other in the manner provided for in this section. 4.04 Choice of Law. This Agreement is made in, and shall be construed in accordance with, the laws of the State of Montana. 4.05 Modifications and Waivers. This Agreement may only be modified in a writing signed by each of the parties. No covenant, term or condition or the breach thereof shall be deemed waived, except by written consent of the party against whom the waiver is claimed, and any waiver of any covenant, term, or condition shall not be a waiver of any preceding or succeeding breach of the same or any other covenant, term or condition. Acceptance by one party of any performance by the other after the time the same shall have become due shall not constitute a waiver by the former of the breach or default of any covenant, term or condition unless otherwise expressly agreed by the non-breaching party in writing. 4.06 Assignment. This Agreement may not be assigned without the prior written consent of the non-assigning party. 4.07 Relationship of Parties. There shall be no separate legal entity created as a conse- quence of this Agreement. This Agreement shall not be construed to create, either expressly or by implication, the relationship of agency or partnership between the parties. No party (including the 19 RWSD-BOZEMAN WASTEWATER AGREEMENT Page 9 party’s agent, employees or contractors) is authorized to act on behalf of another party in any manner relating to the subject matter of this Agreement. No party shall be liable for the acts, errors or omissions of the officers, agents, employees or contractors of the other party entered into, committed or performed with respect to or in performance of this Agreement. 4.08 Captions. The titles or captions of the provisions of this Agreement are merely for convenience or reference and are not representations of matters included or excluded from such provisions. 4.09 Severability. If any term or provision of this Agreement shall, to any extent, be determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law 4.10 Entire Agreement. This Agreement and all exhibits hereto shall constitute the entire agreement and understanding between and among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter. The parties expressly acknowledge and agree that, with regard to the subject matter of this Agreement and the transactions contemplated herein, (a) there are no oral agreements between the parties and (b) this Agreement, including the exhibits attached hereto, (i) embodies the final and complete agreement between the parties, (ii) supersedes all prior and contemporaneous negotiations, offers, proposals, agreements, commitments, promises, acts, conduct, course of dealing, representations, statements, assurances and understandings, whether oral or written, and (iii) may not be varied or contradicted by evidence of any such prior or contemporaneous matter or by evidence of any subsequent oral agreement of the parties. 4.11 No Construction Against Drafter. This Agreement and each of the parts hereof shall not be construed against the party drafting the Agreement or that part, and in every event, this Agreement and all of its parts shall be construed as if both parties drafted all its provisions. 4.12 Confirmation of Recitals. The Recitals set forth herein are true and accurate. 4.13 Recordation. This Agreement shall be filed with the Gallatin County Clerk and Recorder and Montana Secretary of State as required by Section 7-11-107, MCA. 4.14 Further Assurances. The parties will cooperate in executing all further documents necessary to effect the transactions discussed herein. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. RIVERSIDE WATER AND SEWER CITY OF BOZEMAN DISTRICT __________________________ ___________________________ 20 RWSD-BOZEMAN WASTEWATER AGREEMENT Page 10 By: ______________________ By: ______________________ Its: ______________________ Its: ______________________ 21 RWSD-BOZEMAN WASTEWATER AGREEMENT Page 11 LIST OF EXHIBITS Exhibit A Legal Description of District Property Recitals Exhibit B Drawings (Wastewater Extension) Section 2.02 22 COMMISSION RESOLUTION NO. 4972 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, STATING THE CONDITIONS NECESSARY FOR THE COMMISSION TO CONSIDER ANNEXATION OF PROPERTY LOCATED WITHIN THE RIVERSIDE COUNTY WATER AND SEWER DISTRICT NO. 310. WHEREAS, the City of Bozeman (“City”) has established comprehensive annexation goals and policies to provide for orderly, well-planned growth of the City; and WHEREAS, the City established these goals and policies in accordance with annexation statutes as set forth in Title 7, Chapter 2, MCA; and WHEREAS, it is the goal of the City to encourage annexations of land contiguous to the City; and WHEREAS, the City seeks to annex all property contracting with the City for services; and WHEREAS, it is the goal of the City to require annexation of all land proposed for development lying within the service boundary of the existing sewer system as depicted in the Bozeman Community Plan (Growth Policy), and to encourage annexations within the urban growth area identified in the Growth Policy; and WHEREAS, it is the policy of the City to require annexation of any contiguous property for which City services are requested or for which City services are currently being contracted; and WHEREAS, Riverside County Water and Sewer District No. 310 (“District”) is a water and sewer district organized and operating pursuant to §7-13-2200 et seq., MCA, and is located contiguous to the City; and WHEREAS, in December of 2011, the Montana Department of Environmental Quality (“MDEQ”) conducted an inspection of the District’s wastewater facilities and informed the District 23 Page 2 of 11 of a number of deficiencies that needed to be corrected with respect to treatment and disposal of its wastewater; and WHEREAS, the District is comprised of and serves properties contiguous to the City described as Riverside Manor Subdivision, Riverside Greens Subdivision, and Riverside Country Club (“Riverside Properties”); and WHEREAS, the City’s water reclamation facility (WRF) is contiguous to the Riverside Properties and has the capacity to treat and dispose of the wastewater that is collected within the District; and WHEREAS, in 2014, the City Commission heard a request from the District and several owners of Riverside Properties to enter into an interlocal agreement with the District that would have connected the District’s wastewater collection system to the WRF; at that time, the City Commission determined that should the City agree to assist the District and its residents in addressing the District’s wastewater issues, annexation could not be delayed for longer than 18 months after the connection; and WHEREAS, since 2014 the District has been pursuing options related to addressing the wastewater issues raised by the MDEQ; and WHEREAS, on March 17, 2016, the MDEQ issued its Administrative Order on Consent (AOC) (Docket No. WQ-15-18) requiring the District to develop a compliance plan explaining how the District intends to return its wastewater treatment operations to compliance with the Montana Water Quality Act and Montana’s Public Water Supply Laws; and WHEREAS, in May of 2018 the District communicated to MDEQ its preferred alternative for complying with MDEQ’s AOC is to connect its wastewater collection system to the City’s WRF; and WHEREAS, in 2018 the District and the City renewed discussions regarding entering into an agreement with the City whereby the City would treat and dispose of the wastewater collected within the District and Riverside Properties would petition to be annexed into the City as a condition of receiving wastewater services; and WHEREAS, §7-13-4314, MCA, and Sec. 40.03.1380, BMC, provide that any person, firm, or corporation receiving sewer or wastewater service outside of the incorporated city limits may be required by the City, as a condition to initiate or extend such service, to consent to annexation of the property served by the City; and 24 Page 3 of 11 WHEREAS, the City believes that annexation is an appropriate prerequisite to providing wastewater services to the Riverside Properties and, upon the filing of a petition for annexation pursuant to §7-2-4601, MCA, the City will provide a plan for the extension of municipal services to the area to be annexed; and WHEREAS, an extension of services plan can be specifically tailored to Riverside Properties, for extending each municipal service based on the present circumstances concerning existing services, systems, and facilities so as to, in part, recognize the character of existing neighborhoods; and WHEREAS, a petition for annexation and an extension of service plan may address issues that are in the best interests of the City and its inhabitants, as well as the Riverside Properties and their inhabitants, such as, but not limited to, rights of way, easements, transportation facilities, water rights or cash-in-lieu, waivers of right to protest creation of special improvement districts (SID) and/or special districts or maintenance districts, impact fees and water and sewer hookup fees, recognition of existing improvements and reservation of existing maintenance responsibilities; and WHEREAS, the City and the District may enter into an agreement for the City to acquire the District’s wastewater collection facilities and to treat and dispose of the wastewater collected within the Riverside Properties pursuant to §7-11-101 et seq. MCA (an “Interlocal Agreement”); and WHEREAS, the District represents to the City that connecting the District’s wastewater effluent to the City’s WRF, which will involve designing and constructing additional infrastructure (the “Project”) will address the issues raised by the MDEQ with the District as well as improve water quality in the East Gallatin River– a benefit to residents of the Riverside Properties, the residents of the City of Bozeman, Gallatin County, and the State of Montana; and WHEREAS, upon request of the District the City desires to provide the District and its residents a framework within which a petition for annexation will be favorably received for the Riverside Properties; and WHEREAS, the City recognizes that the Riverside Properties consists of existing platted subdivisions with more than 100 property owners with existing neighborhood characteristics; and WHEREAS, the City Commission recognizes providing such a framework in a non-binding manner may facilitate a final resolution to the District’s wastewater compliance issues with the MDEQ and facilitate resolving the issue of whether the City will participate in such a solution on behalf of the District and the Riverside Properties. 25 Page 4 of 11 NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana: Section 1 The Commission determines it will be in the best interests of the City of Bozeman and its residents, visitors, and businesses and of the owners and residents of the Riverside Properties to extend the boundaries of the City of Bozeman to include said Riverside Properties within the corporate limits of said City of Bozeman, Montana. The terms and conditions under which the City Commission would look favorably upon a petition for annexation, submitted pursuant to Title 7, Chapter 2, Part 46, MCA, are as follows: 1. Petition for Annexation. To consider annexation of the Riverside Properties the owners of the Riverside Properties must, along with paying all required fees, submit a written petition containing a description of the area requested to be annexed, the requested zoning, and signed by more than 50% of the resident electors owning real property in the area to be annexed or the owner or owners of real property representing 50% or more of the total area to be annexed. The Commission will look most favorably upon a petition containing more than 60% of the above. 2. Processing of the Petition. Upon receipt of a petition, the City will process the petition pursuant to Montana law in the same manner as all other petitions for annexation, including all applicable zoning procedures, so that the petition can be properly and timely placed on the City Commission agenda for consideration. 3. Post Annexation Treatment. Consistent with the City’s policy and the manner in which it treats other annexed properties, the Riverside Properties will become part of the City upon annexation for all municipal and governmental purposes including voting, debts, taxation, representation, enforcement of laws and ordinances including the City’s Unified Development Code (UDC), etc. Upon annexation, the Riverside Properties and their owners/residents shall be entitled to the same privileges and benefits as provided to other parts of the City and their residents. The Commission, however, recognizes that the Riverside Properties are unique in that they have been part of established neighborhoods with their own character for many years. As such, the Commission will not at this time require property owners to upgrade streets and sidewalks within the District to City standards at the time the Riverside Properties are annexed, or otherwise change the physical appearance of the neighborhoods. Such a decision, however, cannot bind future city commissions, which may require property owners to do so. 26 Page 5 of 11 a. Until the Project is completed, the District must be responsible for collecting and treating wastewater collected within its boundaries, as well as charging and collecting the appropriate fees for the same. b. Upon completion of the Project, the City will charge all costs for wastewater collection and processing directly to the owners/residents of the annexed properties in the same manner as all other City wastewater customers. The City will require property owners or the District as a condition of receiving wastewater service to install water meters on their water service to determine the volume of wastewater generated by the Riverside Properties. In addition, the City will determine the assessment rate and methodology for wastewater treatment including any additional charges for operation of any required lift stations. c. Property owners may plow their own streets though all properties within the area to be annexed will be subject to full City street maintenance assessments. 4. Existing Rural Improvement Districts (RIDs). The Commission recognizes the Riverside Properties appear to be included in Gallatin County’s Rural Improvement District (RID) Maintenance Program through RID 308 and RID 346. At the time of submission of the petition for annexation, the owners of the Riverside Properties will need to explain how these RIDs will be addressed, with the understanding the existence of the RIDs cannot reduce the assessments by the City for street and tree, and arterial and collector district assessments. The City will not be responsible for any outstanding maintenance assessments or indebtedness the Riverside Properties may have for these RIDs. The City encourages the Riverside Properties to request Gallatin County use existing RID funds to make scheduled maintenance. 5. Central Valley Fire District Debt. The City understands the Central Valley Fire District (CVFD), of which the Riverside Properties are currently located within, may have undertaken financial commitments related to construction of a new fire station. At the time of submission of a petition for annexation the District or the Riverside Properties must inform the City of the manner in which the District or the Riverside Properties will release and hold the City harmless from any ongoing or future debt services payments to the CVFD. 6. District/Riverside Properties Responsible for All Costs of the Project/Financing Options. The District and/or the Riverside Properties shall be solely responsible for paying for all costs of the Project. If the Riverside Properties desire for the City to create a SID for selling bonds to finance the costs of the Project, in addition to the petition for annexation, 27 Page 6 of 11 the owners of the Riverside Properties must submit a petition for the creation of a SID to fund the Project. The petition must be pursuant to §7-12-4102(3), MCA and must detail the costs to be covered by the SID assessments which such costs must include costs of design, construction, costs associated with the sale of bonds, and administrative costs including those applicable to the City’s SID revolving fund. If not all owners of the Riverside Properties sign such a petition for creation of a SID the petition for annexation must at a minimum include a waiver of right to protest creation of such a SID from every property owner signing the annexation petition. Waivers of right to protest such a SID must be provided in sufficient number to exceed the protest thresholds provided in §7- 12-4113, MCA. If the residents find alternative financing so as to not seek the City’s assistance in financing the Project the petition for annexation or the interlocal agreement with the District must indicate the method of financing and indicate such financing has been secured and will be made available to the City to pay for the City’s costs associated with the Project. The owners of the Riverside Properties recognize that for the City to create a SID to finance the Project the Riverside Properties must be annexed into the City prior to the City commencing the process to create the SID. 7. Waivers of Rights to Protest for Infrastructure. Consistent with other annexation, the City seeks waivers of rights to protest for the financing of important public infrastructure. The petition for annexation must also include waivers of right to protest creation of (i) a special district for park and trail maintenance to be created pursuant to §7-11-1001 et seq., MCA; (ii) waivers of right to protest the creation of a SID for construction of all local streets to the City’s local street standard including all City requirements such as lighting, curb, gutter, sidewalks, etc.; and (iii) given the location of the Riverside Properties, waivers of right to protest the creation of a SID for future improvements to Springhill Road, the intersection of Springhill Road and Frontage Road and the intersection of Springhill Road and N. 19th Avenue. 8. Interlocal Agreement between the District and the City. The City and the District, prior to or concurrent with annexation, must enter into an interlocal agreement. The interlocal agreement must address: a. Conveying Infrastructure. The manner in which the City will acquire the District’s wastewater collection facilities following completion of the Project and which of its facilities the District will convey to the City. The District will retain possession of and maintain responsibility for its treatment system and all infrastructure connected to that system after the completion of the Project and the commencement of treatment of wastewater by the City. b. Indemnification. That the District release, hold the City harmless and indemnify the City from any claims or damages resulting from, arising out of, or in any 28 Page 7 of 11 way related to pollution and water quality compliance issues stemming from the District’s operation of its wastewater facilities for both past action and for any future issues related to the District’s facilities that City does not obtain. The indemnity obligation must also hold the City harmless from any delay in the District meeting DEQ’s required compliance schedule. The District must also release and hold the City harmless from any suit from any resident of the Riverside Properties regarding the formation of a SID to fund the Project and agree to take all steps necessary to secure financing for the Project should the City not be able to form such a SID. The District must secure and maintain adequate insurance to support its indemnity obligations. c. Financing. How design, financing, and construction of the Project will occur. The agreement must address: i. If the District and the Riverside Properties seek the City’s participation in financing the Project through a SID, the District’s financial and logistical participation as the City completes the design for the Project, secures financing, and bids, awards, and oversees a contract for the construction of the Project. ii. How, at its own cost, the District will be solely responsible for obtaining all necessary permits and easements for the Project provided that the same meet the standards and requirements of the MDEQ and the City. iii. That any easements or other right of way necessary for the City to provide wastewater service will be transferred to the City upon annexation. d. Water for Firefighting. Because the City will, upon annexation, rely on the District to ensure adequate water supply for fire suppression purposes, the District must agree to operate and maintain its water distribution, storage, and supply system to maximize available water flow for fire suppression from the system and to make all necessary repairs. The District must indemnify and hold the City harmless from any claims or damages resulting from, arising out of, or in any way related to inadequate water supply or flow related to a fire suppression effort. e. City Not Subject to DEQ Enforcement. That should the City finance the Project through the creation of a SID, the District will be solely responsible for ensuring compliance with any water quality violations and the act of the 29 Page 8 of 11 City to assist the District and the Riverside Properties in designing, constructing, and financing the Project will not subject the City to enforcement action by MDEQ for the District’s ongoing water quality violations. f. City Assumption of Wastewater Treatment. That at the time of completion and approval by the City of the construction of the Project and notice to the District the City is ready to assume wastewater services for the Riverside Properties, the District shall convey to the City its functioning wastewater collection facilities, including but not limited to the existing pipes, manholes, lift stations, and other wastewater infrastructure used to collect and deliver wastewater within the District’s boundaries to the WRF. After the City agrees to begin treating the District’s and Riverside Properties’ wastewater, the City shall be solely responsible for all collection, treatment and disposal of wastewater coming from the Riverside Properties. g. District to Maintain Responsibility for Its Wastewater Treatment Works. That the District will retain possession of and maintain responsibility for its existing wastewater treatment system and all infrastructure connected to that system after the completion of the Project and the commencement of treatment of wastewater by the City. h. District’s Water System. The City will not require transfer of the District’s water supply and distribution system or the District’s water rights to the City at the time of annexation and, as such, the District is retaining its water rights, water supply and distribution system. The District’s water supply and distribution system may be considered to demonstrate compliance with the City’s water adequacy requirements. i. If, however, the District’s water system is altered or modified, or no longer functioning, or the City determines demand for water in Riverside Properties is increased or not otherwise being met, the Riverside Properties must comply with the City’s water adequacy requirements in place at that time by either paying cash-in-lieu of water rights, or transfer ownership of water rights, or a combination thereof. ii. The interlocal agreement must address how the District would transfer ownership to the City of the District’s personal and real property necessary for the provision of water service to the Riverside Properties should the District request the City take over the water treatment and 30 Page 9 of 11 distribution system or should the District no longer be able to provide water service to the District. i. Nutrient Credits. The District must acknowledge any future nitrogen and/or phosphorus nutrient credits that result from removing the District’s wastewater treatment system from operation and which are provided by MDEQ will belong to the City to offset nutrient discharge limits at the WRF. j. District’s Ongoing Responsibilities. The interlocal agreement must also address how the District will continue to operate as it relates to providing water to the Riverside Properties, though it will cease to operate any sewer collection or treatment operations and how the District will exist for wastewater purposes solely to address any outstanding reclamation and indemnity obligations. k. No Expansion of Water Service Area. The District must agree that it will not expand its area of water service. 9. No Action on Financing until Annexation. That the City shall take no action regarding the Project including financing the Project (if requested) until all properties proposed to be served by the City have been annexed into the City. 10. Impact Fees. Consistent with annexing other properties into the City, the Riverside Properties will be assessed impact fees for fire and wastewater. At the time of annexation, all the owners of the Riverside Properties must provide fire impact fees and wastewater impact fees. The City shall provide a listing of the cost of impact fees by individual property. The City will collect all fire impact fees and distribute such to the fire impact fee capital fund at the time of annexation. For wastewater impact fees, the City will place wastewater impact fees in a fund to be held by the City until the completion of the connection between the WRF and the Riverside Properties. At the time the City commences treating wastewater effluent from the Riverside Properties the City will transfer all wastewater impact fee to the wastewater impact fee capital fund. 11. Zoning. The petition for annexation must address the requested zoning designation of the Riverside Properties. The determination of zoning is a legislative act of the Commission and will be conducted pursuant to the requirements of Montana law and the City’s development regulations. The City Commission retains sole authority over the zoning designation. 12. Sump Pumps. At the time of submission of the Riverside Properties or the District must provide a plan to be approved by the City that requires property owners or the District to disconnect every sump pump within all structures disposing of such water into the District’s 31 Page 10 of 11 wastewater collection system and dispose of such water outside of the wastewater collection system in a manner that complies with all local, state, and federal requirements. The disconnection must occur prior to the City accepting wastewater for treatment. Section 2 That upon receipt of a petition for annexation, the City, in cooperation with the District and the owners of the Riverside Properties, will prepare an extension of services plan specifically tailored to Riverside Properties, for extending each municipal service based on the present circumstances concerning existing services, systems, and facilities. Section 3 The conditions of this Resolution are non-binding as conditions may change from the date of this Resolution to the date a petition is submitted. The Commission adopts this Resolution in a good faith effort to communicate the Commission’s policy regarding the City assisting the Riverside Properties and the District in addressing their wastewater needs as established pursuant to MDEQ’s AOC and, as such, the Commission intends for the statements in this resolution to provide guidance as the District and Riverside Properties determine whether to move forward with a petition for annexation seeking the City’s assistance. 32 Page 11 of 11 PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the ____ day of ______________, 2019. ___________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: _____________________________________ ROBIN CROUGH City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 33 Memorandum REPORT TO:City Commission FROM:Chris Saunders, Community Development Manager Martin Matsen, Community Development Director SUBJECT:Riverside Annexation, Acknowledge Receipt of Petition for Annexation of the Riverside Manor Subdivision, Riverside Greens Subdivision, and Tracts 1-3 of Certificate of Survey 3030, Approximately 57.5 Acres Located on Gallatin Drive, Park Plaza Road, Riverside Drive, Elaine Lane, and Springhill Road, Including 125 Residential Buildings and 4 Commercial Buildings, Application 21426 MEETING DATE:December 14, 2021 AGENDA ITEM TYPE:Community Development - Legislative RECOMMENDATION:Acknowledge Receipt of Petition for Annexation and refer to staff for processing. STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:In December 2011, the Montana Department of Environmental Quality (Department) inspected the Riverside County Water and Sewer District No. 310 (District) wastewater facilities. The Department found deficiencies and directed their correction. In 2014, the City Commission considered a request from the District to enter into an interlocal agreement for the District to connect to the City's wastewater system. The City Commission determined that annexation was a necessary part of any such agreement. In 2018, the District and the City renewed discussions regarding an interlocal agreement. On January 28, 2019, the City Commission adopted resolution 4972 stating the conditions necessary for the City Commission to consider annexation of property located within the District. The resolution is available at https://weblink.bozeman.net/WebLink/DocView.aspx? id=177868&dbid=0&repo=BOZEMAN. There are 12 terms and conditions included in the resolution. The first is submittal of a petition for annexation. The required petition has been submitted and is attached to this agenda item. This annexation is unusually complex in that it is for many properties and not all affected property owners have signed the petition. Title 7, Chapter 2, Part 46 MCA allows for a petition for annexation submitted by less than 100% of property owners to be submitted and processed (see attachment). With the 34 large number of property owners and less than 100% petitioners the use of an Extension of Services Plan in place of an Annexation Agreement is needed to address how municipal services will be delivered. Due to the past review of the issue of annexation of the area and the passage of Resolution 4972; and the non-typical nature of the petition with fewer than 100% property owner signatories, Staff recommends the Commission take this action to acknowledge receipt of the petition and formally refer it to the Staff for review. Attached with this agenda item is the submitted petitions and a map showing the location and number of petitioners. Review will follow the standard processes and the annexation will be evaluated against Resolutions 4972 and Resolution 5076 which sets the City's standard goals and policies for annexation. A zone map amendment will be processed concurrently with the annexation to establish municipal zoning on the newly annexed property. No dates for public hearings on this application have been chosen at this time. The City Commission will consider both the zone map amendment and the annexation as part of the review process. The Community Development Board in their capacity as the Zoning Commission will also consider the zone map amendment. UNRESOLVED ISSUES:None at this time. ALTERNATIVES:As identified by the City Commission. FISCAL EFFECTS:None identified at this time. Attachments: 1_DevReviewAppFormA1_10252021.pdf 2_AnnexAppChecklistFormANNX_10262021.pdf 4A_SignedPetitions_All_10022021.pdf Fig1_AnnexArea_10272021.pdf Fig2_PetitionSignedForAnnex_10252021.pdf 7-2-4601. Annexation by petition -- when election required, MCA.pdf Report compiled on: December 2, 2021 35 PROJECT INFORMATION Project Name: Project Type(s): Street Address: Legal Description: Description of Project: Current Zoning: Gross Lot Area: Block Frontage(s): Number of Buildings: Type and Number of Dwellings: Building Size(s): Building Height(s): Number of Parking Spaces: Affordable Housing (Y/N): Cash-in-lieu Parkland (Y/N): Departure/Deviation Request (Y/N): A1 DEVELOPMENT REVIEW APPLICATION PROJECT IMAGE Community Development Development Review Application Page 1 of 3 Revision Date: June 2020 SPECIAL DISTRICTS Overlay District: Neighborhood Conservation None Urban Renewal District: Downtown North 7th Avenue Northeast North Park None VICINITY MAP 36 37 APPLICATION FEE Varies by project type CONTACT US Alfred M. Stiff Professional Building 20 East Olive Street Bozeman, MT 59715 phone 406-582-2260 fax 406-582-2263 planning@bozeman.net www.bozeman.net/planning Development Review Application Page 3 of 3 Revision Date: June 2020 REQUIRED FORMS Varies by project type DEVELOPMENT REVIEW APPLICATION Check all that apply FORM 1. Administrative Interpretation Appeal AIA 2. Administrative Project Decision Appeal APA 3. Annexation and Initial Zoning ANNX 4. Commercial/Nonresidential COA CCOA 5. Comprehensive Sign Plan CSP 6. Condominium Review CR 7. Conditional Use Permit CUP 8. Extension to Approved Plan EXT 9. Growth Policy Amendment GPA 10. Informal Review INF 11. Master Site Plan MSP 12. Modification/Plan Amendment MOD 13. Neighborhood/Residential COA NCOA 14. Pre-application Consultation None 15. PUD Concept Plan PUDC FORM 16. PUD Preliminary Plan PUDP 17. PUD Final Plan PUDFP 18. Reasonable Accommodation RA 19. Site Plan SP 20. Special Use Permit SUP 21. Special Temporary Use Permit STUP 22. Subdivision Exemption SE 23. Subdivision Pre-Application PA 24. Subdivision Preliminary Plan PP 25. Subdivision Final Plat FP 26. Wetland Review WR 27. Zone Map Amendment ZMA 28. Zone Text Amendment ZTA 29. Zoning/Subdivision Variance Z/SVAR 30. Zoning Deviation/Departure None 31. Other: APPLICATION TYPE 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 BLK 2 LOT 50 BLK 2 LOT 49 BLK 2 LOT 48 BLK 2 LOT 47 BLK 2 LOT 46 BLK 2 LOT 45 BLK 2 LOT 44 BLK 2 LOT 43 BLK 2 LOT 42 BLK 2 LOT 41 BLK 2 LOT 40 BLK 2 LOT 39 BLK 2 LOT 38 BLK 2 LOT 37 BLK 2 LOT 36 BLK 2 LOT 35 BLK 2 LOT 34 BLK 2 LOT 33 BLK 2 LOT 32 BLK 2 LOT 31 BLK 2 LOT 30 BLK 2 LOT 29 BLK 2 LOT 28 BLK 2 LOT 27 BLK 2 LOT 26 BLK 2 LOT 25 BLK 2 LOT 24 BLK 2 LOT 23 BLK 2 LOT 22 BLK 2 LOT 21 BLK 2 LOT 20 BLK 2 LOT 19 BLK 2 LOT 18 BLK 2 LOT 17 BLK 2 LOT 16 BLK 2 LOT 15 BLK 2 LOT 14 BLK 2 LOT 13 BLK 2 LOT 12 BLK 1 LOT 9 BLK 1 LOT 8 BLK 2 LOT 11 BLK 2 LOT 10BLK 1 LOT 7 BLK 1 LOT 6 BLK 1 LOT 5 BLK 2 LOT 7 BLK 2 LOT 8 BLK 2 LOT 9 BLK 2 LOT 6BLK 2 LOT 5BLK 2 LOT 4 BLK 1 LOT 4BLK 1 LOT 3 BLK 1 LOT 2 BLK 1 LOT 1 BLK 2 LOT 1 BLK 2 LOT 2 BLK 2 LOT 3 COS 3030 TRACT 2 COS 3030 TRACT 3 COS 3030 TRACT 1 116B-1116C-1116A-1114B-1114C-1114A-1113D-1113C-1113B-1113A-1112D - 1 A112C- 1112B- 1112A - 1 LOT 4 LOT 3LOT 2 LOT 1 109D 109C 109B 109A 107 C - 1 107 B - 1 107A - 1 105F - 1 105E - 1 105 B - 1 105 C - 1 105 A - 1 BL K 4 LO T 4 10 2 D - 1 102 C - 1 102 B - 1 102 A - 1101D101C101B101A 11D 11 C 11B 11 A 10 D 10C 10 B 10A 8D-1 8C-1 8B-1 8A-1 7D-1 7C-1 7B-1 7A-1 5D-1 5C-1 5B-1 5A-1 3C-1 3B-1 3A-1 2C-12B-12A-11A1BCOS 674 SPRINGHILL ROADRIVERSIDE DR.PARKPLAZAGALLATIN DRSPRINGHILL ROADPARK RIV E R S I D E D R . 406-586-8834 1283 N. 14th Ave. Suite 101 Bozeman, Montana 59715 WWW.DOWL.COM FIGURE 2 RIVERSIDE PROPERTIES ANNEXATION & ZONING ANNEXATION PETITION STATUS LEGEND PHYSICAL ADDRESS LEGAL DESCRIPTION PETITION RECEIVED 104A GALLATIN DR DI CASA DEL SOL CONDO, S23, T01 S, R05 E, RIVERSIDE MANOR SUB LOT 4 BLK 4 CONDO MASTER NO 104B GALLATIN DR DI CASA DEL SOL CONDO, S23, T01 S, R05 E, RIVERSIDE MANOR SUB LOT 4 BLK 4 CONDO MASTER NO 101A GALLATIN DR RIVERSIDE GREENS SUB, S23, T01 S, R05 E, Lot 101A, ACRES 0.19 NO 101B GALLATIN DR RIVERSIDE GREENS SUB, S23, T01 S, R05 E, Lot 101B, ACRES 0.107 NO 101C GALLATIN DR RIVERSIDE GREENS SUB, S23, T01 S, R05 E, Lot 101C, PLAT J-57-A YES 101D GALLATIN DR RIVERSIDE GREENS SUB, S23, T01 S, R05 E, Lot 101D, ACRES 0.192 YES 102A GALLATIN DR RIVERSIDE GREENS SUB, S23, T01 S, R05 E, Lot 102A-1, PLAT J-57-K YES 102B GALLATIN DR RIVERSIDE GREENS SUB, S23, T01 S, R05 E, Lot 102B-1, PLAT J-57-K NO 102C GALLATIN DR RIVERSIDE GREENS SUB, S23, T01 S, R05 E, Lot 102C-1, PLAT J-57K NO 102D GALLATIN DR RIVERSIDE GREENS SUB, S23, T01 S, R05 E, Lot 102D-1, PLAT J-57-K YES 11A GALLATIN DR RIVERSIDE GREENS SUB, S23, T01 S, R05 E, Lot 11A, PLAT J-57 YES 11B GALLATIN DR RIVERSIDE GREENS SUB, S23, T01 S, R05 E, Lot 11B, PLAT J-57 NO 11C GALLATIN DR RIVERSIDE GREENS SUB, S23, T01 S, R05 E, Lot 11C, PLAT J-57 YES 11D GALLATIN DR RIVERSIDE GREENS SUB, S23, T01 S, R05 E, Lot 11D, ACRES 0.203 NO 105A GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 105A-1, PLAT J-57-E YES 105B GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 105B-1, PLAT J-57-E YES 105E GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 105E-1, PLAT J-57-M YES 105F GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 105F-1, PLAT J-57-M YES 107A GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 107A-1, PLAT J-57-L YES 107B GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 107B-1, PLAT J-57-L YES 107C GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 107C-1, PLAT J-57-L YES 109A GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 109A, PLAT J-57 NO 109B GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 109B, PLAT J-57 YES 109C GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 109C, PLAT J-57 YES 109D GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 109D, PLAT J-57 NO 111A GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 112A-1, PLAT J-57-G NO 111B GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 112B-1, PLAT J-57-G YES 111C GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 112C-1, PLAT J-57-G YES 111D GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 112D-1A, PLAT J-57-I YES 113A GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 113A-1, PLAT J-57-F YES 113B GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 113B-1, PLAT J-57-F NO 113C GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 113C-1, PLAT J-57-F YES 113D GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 113D-1, PLAT J-57-F YES 114A GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 114A-1, PLAT J-57-H NO 114B GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 114B-1, PLAT J-57-H YES 116A GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 116A-1, PLAT J-57-N NO 116B GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 116B-1, PLAT J-57-N YES 116C GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 116C-1, PLAT J-57-N YES 2A GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 2A-1, PLAT J-57-D YES 2B GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 2B1, PLAT J-57-D NO 2C GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 2C1, PLAT J-57-D NO 3A GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 3A-2, PLAT J-57-P YES 3B GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 3B-1, PLAT J-57-P YES 3C GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 3C-1, PLAT J-57-P NO 5A GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 5A-1, PLAT J-57-O YES 5B GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 5B-1, PLAT J-57-O YES 5C GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 5C-1, PLAT J-57-O YES 5D GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 5D-1, PLAT J-57-O YES 7A GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 7A-1, PLAT J-57-C YES 7B GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 7B-1, PLAT J-57-C NO 7C GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 7C-1, PLAT J-57-C YES 7D GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 7D-1, PLAT J-57-C YES 8A GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 8A-1, PLAT J-57-J YES 8B GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 8B-1, PLAT J-57-J YES 8C GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 8C-1, PLAT J-57-J NO 8D GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, Lot 8D-1, PLAT J-57-J YES 105C GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, LOTS 105-D & 105C-1 PLAT J-57-E YES 114C GALLATIN DR RIVERSIDE GREENS SUB, S26, T01 S, R05 E, PLAT J-57-H YES 51 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 1, Lot 1, PLAT G-36 NO 52 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 1, Lot 2, PLAT G-36 YES 53 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 1, Lot 3, PLAT G-36 NO 54 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 1, Lot 4, PLAT G-36 NO 55 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 1, Lot 5, PLAT G-36 YES 56 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 1, Lot 6, PLAT G-36 NO 57 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 1, Lot 7, PLAT G-36 YES 58 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 1, Lot 8, PLAT G-36 YES PHYSICAL ADDRESS LEGAL DESCRIPTION PETITION RECEIVED 59 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 1, Lot 9, PLAT G-36 YES 1 RIVERSIDE DR RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 2, Lot 1, PLAT G-36 NO 10 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 2, Lot 10, PLAT G-36 YES 11 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 2, Lot 11, PLAT G-36 YES 12 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 2, Lot 12, PLAT G-36 YES 13 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 2, Lot 13, PLAT G-36 YES 14 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 2, Lot 14, PLAT G-36 YES 2 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 2, Lot 2, PLAT G-36 YES 3 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 2, Lot 3, PLAT G-36 NO 4 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 2, Lot 4, PLAT G-36 NO 44 RIVERSIDE DR RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 2, Lot 44, PLAT G-36 NO 45 RIVERSIDE DR RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 2, Lot 45, PLAT G-36 YES 46 RIVERSIDE DR RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 2, Lot 46, PLAT G-36 YES 47 RIVERSIDE DR RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 2, Lot 47, PLAT G-36 YES 48 RIVERSIDE DR RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 2, Lot 48, PLAT G-36 YES 49 RIVERSIDE DR RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 2, Lot 49, PLAT G-36 NO 5 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 2, Lot 5, PLAT G-36 NO 50 RIVERSIDE DR RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 2, Lot 50, PLAT G-36 NO 6 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 2, Lot 6, PLAT G-36 YES 7 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 2, Lot 7, PLAT G-36 YES 8 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 2, Lot 8, PLAT G-36 NO 9 PARK PLAZA RD RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 2, Lot 9, PLAT G-36 NO 10B GALLATIN DR RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 3, Lot 10B, PLAT G-36-D YES 10D GALLATIN DR RIVERSIDE MANOR SUB, S23, T01 S, R05 E, BLOCK 3, Lot 10D, PLAT G-36-D NO 10A GALLATIN DR RIVERSIDE MANOR SUB, S23, T01 S, R05 E, Lot 10A, PLAT G-36 YES 10C GALLATIN DR RIVERSIDE MANOR SUB, S23, T01 S, R05 E, Lot 10C, PLAT G-36-D YES 17 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 17, PLAT G-36 YES 18 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 18, PLAT G-36 YES 19 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 19, PLAT G-36 YES 20 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 20, PLAT G-36 YES 21 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 21, PLAT G-36 NO 22 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 22, PLAT G-36 NO 23 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 23, PLAT G-36 YES 24 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 24, PLAT G-36 NO 25 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 25, PLAT G-36 YES 26 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 26, PLAT G-36 NO 27 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 27, PLAT G-36 YES 28 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 28, PLAT G-36 NO 29 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 29, PLAT G-36 YES 30 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 30, PLAT G-36 NO 31 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 31, PLAT G-36 NO 32 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 32, PLAT G-36 NO 33 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 33, PLAT G-36 NO 34 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 34, PLAT G-36 YES 35 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 35, PLAT G-36 YES 36 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 36, PLAT G-36 YES 37 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 37, PLAT G-36 NO 38 RIVERSIDE DR RIVERSIDE MANOR SUB, S25, T01 S, R05 E, BLOCK 2, Lot 38, PLAT G-36 YES 15 PARK PLAZA RD RIVERSIDE MANOR SUB, S26, T01 S, R05 E, BLOCK 2, Lot 15, PLAT G-36 YES 16 RIVERSIDE DR RIVERSIDE MANOR SUB, S26, T01 S, R05 E, BLOCK 2, Lot 16 NO 39 RIVERSIDE DR RIVERSIDE MANOR SUB, S26, T01 S, R05 E, BLOCK 2, Lot 39, PLAT G-36 NO 40 RIVERSIDE DR RIVERSIDE MANOR SUB, S26, T01 S, R05 E, BLOCK 2, Lot 40, PLAT G-36 YES 41 RIVERSIDE DR RIVERSIDE MANOR SUB, S26, T01 S, R05 E, BLOCK 2, Lot 41, PLAT G-36 YES 42 RIVERSIDE DR RIVERSIDE MANOR SUB, S26, T01 S, R05 E, BLOCK 2, Lot 42, PLAT G-36 NO 43 RIVERSIDE DR RIVERSIDE MANOR SUB, S26, T01 S, R05 E, BLOCK 2, Lot 43 YES 1B GALLATIN DR RIVERSIDE MANOR SUB, S26, T01 S, R05 E, BLOCK 3, Lot 1A, PLAT G-36-B NO 1A GALLATIN DR RIVERSIDE MANOR SUB, S26, T01 S, R05 E, BLOCK 3, Lot 1B, PLAT G-36-B YES 110A GALLATIN DR RIVERSIDE MANOR SUB, S26, T01 S, R05 E, Lot 1, PLAT G-36-C NO 110B GALLATIN DR RIVERSIDE MANOR SUB, S26, T01 S, R05 E, Lot 2, PLAT G-36-C NO 110C GALLATIN DR RIVERSIDE MANOR SUB, S26, T01 S, R05 E, Lot 3, PLAT G-36-C YES 110D GALLATIN DR RIVERSIDE MANOR SUB, S26, T01 S, R05 E, Lot 4, PLAT G-36-C YES COS 3030 Tract 3 S23, T01 S, R05 E, ACRES 1.00, TRACT 3, COS 3030 IN SE4SE4 YES COS 3030 Tract 2 S23, T01 S, R05 E, ACRES 1.48, TRACT 2, COS 3030 IN SW4SE4 YES 2500 SPRINGHILL RD S26, T01 S, R05 E, ACRES 5.47, TRACK 1, COS 3030 IN NE4NE4 YES COS 674 S26, T01 S, R05 E, C.O.S. 674, ACRES 5.114, TRACT IN SE4 SEC 23 & NE4 SEC 26LESS S PT ACCESS TRACT PLAT J-57-O YES 128 11/29/21, 2:03 PM 7-2-4601. Annexation by petition -- when election required, MCA https://leg.mt.gov/bills/mca/title_0070/chapter_0020/part_0460/section_0010/0070-0020-0460-0010.html 1/1 MCA Contents / TITLE 7 / CHAPTER 2 / Part 46 / 7-2-4601 Annexation b… Montana Code Annotated 2021 TITLE 7. LOCAL GOVERNMENT CHAPTER 2. CREATION, ALTERATION, AND ABANDONMENT OF LOCAL GOVERNMENTS Part 46. Annexation by Petition Annexation By Petition -- When Election Required 7-2-4601. Annexation by petition -- when election required. (1) The boundaries of any incorporated city or town may be altered and new areas annexed as provided in this part. (2) The council or other legislative body of a municipal corporation, upon receiving a written petition for annexation containing a description of the area to be annexed and signed by not less than 33 1/3% of the registered electors of the area proposed to be annexed, shall, except as provided in subsection (3), submit to the electors of the municipal corporation and to the registered electors residing in the area proposed by the petition to be annexed the question of whether the area should be made a part of the municipal corporation. (3) (a) The governing body of a municipality need not submit the question of annexation to the qualified electors as provided in subsection (2) if it has received a written petition containing a description of the area requested to be annexed and signed by: (i) more than 50% of the resident electors owning real property in the area to be annexed; or (ii) the owner or owners of real property representing 50% or more of the total area to be annexed. (b) The governing body may approve or disapprove a petition submitted under the provisions of subsection (3)(a) on its merits. When the governing body approves the petition, it shall pass a resolution providing for the annexation. History: En. Sec. 1, Ch. 168, L. 1945; R.C.M. 1947, 11-506(1); amd. Sec. 293, Ch. 571, L. 1979; (3)En. Sec. 1, Ch. 641, L. 1979; amd. Sec. 1, Ch. 279, L. 1985; amd. Sec. 10, Ch. 66, L. 1995; amd. Sec. 1, Ch. 186, L. 2011; amd. Sec. 27, Ch. 49, L. 2015. Created by 129 Memorandum REPORT TO:City Commission FROM:Taylor Lonsdale, Transportation Engineer Scott Shirley, Director of Public Works SUBJECT:Authorize the City Manager to Sign a Change Order 1 with CK May for the Griffin Drive and Manley Road Street and Stormwater Improvements Project MEETING DATE:December 14, 2021 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign a change order 1 with CK May for the Griffin Drive and Manley Road Street and Stormwater Improvements Project. STRATEGIC PLAN:4.5 Housing and Transportation Choices: Vigorously encourage, through a wide variety of actions, the development of sustainable and lasting housing options for underserved individuals and families and improve mobility options that accommodate all travel modes. BACKGROUND:The change order was previously approved via Resolution 5361 on December 7, 2021. Due to an oversight, the Change Order was not attached to the Resolution. The Change Order is attached. Delays due to challenges with right of way acquisition have necessitated adjustments to bid costs. CK May has worked diligently with their sub- contractors and has agreed to honor bid costs on most of the contract items. Some material costs increased significantly enough in early 2021, that CK May and their subcontractors feel that a change order is justified. In particular, material costs related to the electrical items in the contract saw especially sharp cost increases. Staff has reviewed the change order request and feels that the cost increases are justified. Staff recommends that the Commission approve Change Order 1. UNRESOLVED ISSUES:None. ALTERNATIVES:None identified or recommended. FISCAL EFFECTS:Change Order 1 adds $77,009.66 to the contract cost of the Griffin Drive and Manley Road Street and Stormwater Improvements Project. Those additional costs are available in the existing budget for project SIF113. Attachments: 130 GriffinDr&ManleyRd_ChangeOrder1.pdf Report compiled on: December 7, 2021 131 CHANGE ORDER NO. 1 PROJECT:DATE OF ISSUANCE:December 7, 2021 OWNER:City of Bozeman OWNER PROJ. NO. 121 N Rouse Ave. Bozeman, MT 59715 CONTRACTOR:CK May Excavating Inc.ENGINEER:Sanderson Stewart P.O. Box 1426 Belgrade, MT 59714 ENGINEER PROJ. NO.19078.04 CONTRACT FOR: You are directed to make the following changes in the Contract Documents. Purpose of Change Order: Explanation of Items.See detailed explanation below. Attachments: CHANGE IN CONTRACT PRICE:CHANGE IN CONTRACT TIME: Original Contract Price Original Contract Time $4,267,389.88 180 days or date Previous Change Order No. 0 Net change from previous Change Orders $0.00 0 days Contract Price prior to this Change Order Contract Time prior to this Change Order $4,267,389.88 180 days or date Net INCREASE of this Change Order Net INCREASE of this Change Order $77,009.66 0 days Contract Price with all approved Change Orders Contract Time with all approved Change Orders $4,344,399.54 180 days or date RECOMMENDED:ACCEPTED: by: ____________________________________ by: ____________________________________ Sanderson Stewart Date CK May Excavating, Inc. Date APPROVED: by: ____________________________________ City of Bozeman Date To increase the unit prices of 17 bid items. See attached summary of unit price changes from CK May Excavating Griffin Drive and Manley Road To provide street improvements, utilitites and electrical on Grifffin Drive and Manley Road in Bozeman, MT. Page 1 of 2132 CHANGE ORDER NO. 1 PROJECT:Griffin Drive and Manley Road DATE OF ISSUANCE:December 7, 2021 Bid Contract Contract Change Order Dollar Amount Item Unit Quantity Price Price Increase 114 SY 16,600 $1.50 $1.75 4,150.00$ 150 GAL 3 $228.16 $270.00 125.52$ 151 GAL 36 $228.16 $270.00 1,506.24$ 154 GAL 8 $410.69 $675.00 2,114.48$ 401 LF 4,790 $8.29 $11.30 14,417.90$ 402 LF 460 $12.90 $18.80 2,714.00$ 403 EA 35 $7.35 $815.00 28,267.75$ 404 EA 4 $826.46 $930.00 414.16$ 405 EA 2 $917.72 $1,050.00 264.56$ 407 LF 795 $1.37 $2.00 500.85$ 408 LF 75 $2.28 $3.00 54.00$ 409 LF 400 $2.38 $3.50 448.00$ 421 EA 5 $643.93 $695.00 255.35$ 422 EA 1 $16,407.44 $19,030.00 2,622.56$ 423 EA 1 $16,777.57 $19,450.00 2,672.43$ 424 EA 1 $16,868.84 $19,530.00 2,661.16$ 425 EA 3 $10,323.10 $14,930.00 13,820.70$ TOTAL NET INCREASE 77,009.66$ Item No. CO 1 The necessary construction permits and right-of-way were not fully acquired at the time of bidding. As a result, there was a delay in approving the Notice to Proceed. The Notice of Award was approved on April 27th, 2021 and the Notice to Proceed was approved July 28th, 2021. Because of the time difference between bidding and Notice to Proceed, the unit prices of 17 bid items increased. EXPLANATION OF ITEMS Description CHANGE ORDER NO. ONE Separation Geotextile White Epoxy Pavement Markings Pull Box-Composite Type 2 Pull Box-Composite Type 3 Standard Signal Pole W/25' Mast Arm Yellow Epoxy Pavement Markings Curb Marking-Yellow Epoxy Conduit-Plastic 2-inch Conduit-Plastic 3-inch Pull Box-Composite Type 1 Cable, Copper, 7AWG14-600V Cable, Copper, 12AWG14-600V Cable, Copper, 16AWG14-600V Signal Std. Type 1-100 Standard Signal Pole W/30' Mast Arm Standard Signal Pole W/35' Mast Arm Detector-Radar/Presence Page 2 of 2133 Page 1 of 1 Change Order #01 CK May Excavating, Inc P.O. Box 1426 Belgrade, MT, 59714 vale@ckmayexcavating.com Pricing Date 11/04/2021 Pricing is good for 30 days Change Order due to uncontrollable increase in material prices from delay in contract issuance. JOB LOCATION - Griffin and Manley Street and Stormwater Improvements Bozeman, MT ITEM DESCRIPTION QUAN UNIT C.O. UNIT PRICE CONTRACT UNIT PRICE C.O. EXT PRICE CONTRACT EXT PRICE 114 Separation Geotextile 16,600.00 SY $1.75 $1.50 $29,050.00 $ 24,900.00 150 White Epoxy Pavement Markings 3 GAL $270.00 $228.16 $810.00 $ 684.48 151 Yellow Epoxy Pavement Markings 36 GAL $270.00 $228.16 $9,720.00 $ 8,213.76 154 Curb Marking-Yellow Epoxy 8 GAL $675.00 $410.69 $5,400.00 $ 3,285.52 401 Conduit-Plastic 2-inch 4,790.00 LF $11.30 $8.29 $54,127.00 $ 39,709.10 402 Conduit-Plastic 3-inch 460 LF $18.80 $12.90 $8,648.00 $ 5,934.00 403 Pull Box-Composite Type 1 35 EA $815.00 $7.35 $28,525.00 $ 257.25 404 Pull Box-Composite Type 2 4 EA $930.00 $826.46 $3,720.00 $ 3,305.84 405 Pull Box-Composite Type 3 2 EA $ 1,050.00 $917.72 $2,100.00 $ 1,835.44 407 Cable, Copper, 7AWG14-600V 795 LF $2.00 $1.37 $1,590.00 $ 1,089.15 408 Cable, Copper, 12AWG14-600V 75 LF $3.00 $2.28 $225.00 $ 171.00 409 Cable, Copper, 16AWG14-600V 400 LF $3.50 $2.38 $1,400.00 $ 952.00 421 Signal Std. Type 1-100 5 EA $695.00 $643.93 $3,475.00 $ 3,219.65 422 Standard Signal Pole W/25' Mast Arm 1 EA $19,030.00 $16,407.44 $19,030.00 $ 16,407.44 423 Standard Signal Pole W/30' Mast Arm 1 EA $19,450.00 $16,777.57 $19,450.00 $ 16,777.57 424 Standard Signal Pole W/35' Mast Arm 1 EA $19,530.00 $19,868.84 $19,530.00 $ 19,868.84 425 Detector-Radar/Presence 3 EA $14,930.00 $10,323.10 $44,790.00 $ 30,969.30 Totals: $251,590.00 $ 177,580.34 TOTAL CHANGE VALUE: $74,009.66 134 Memorandum REPORT TO:City Commission FROM:Brit Fontenot, Economic Development Director SUBJECT:Authorize the City Manager to Sign a Task Order 4 for Economic and Planning Systems, Inc (EPS) - Update to the 2016 Economic Development Strategy MEETING DATE:December 14, 2021 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign a task order 4 for Economic and Planning Systems, Inc (EPS) - Update to the 2016 Economic Development Strategy. STRATEGIC PLAN:2.1 Business Growth: Support retention and growth of both the traded and local business sectors while welcoming and encouraging new and existing businesses, in coordination with the Economic Development Plan. BACKGROUND:See attached memo. UNRESOLVED ISSUES:None. ALTERNATIVES:As proposed by the Bozeman City Commission. FISCAL EFFECTS: The project is budgeted in the FY 22 Economic Development budget in the amount of $100,000. Task Order 4 defines the project total as up to $100,000. The proposed scope of work defines the project budget at $98,980. Attachments: CC Memo for EPS TO 4 EDS Update 12.05.21 FINAL.docx Attachment 1 EPS Task Order 4 Form EDS Update December 2021.pdf Attachment 2 213051_SOW_Economic Development Strategy Final 11-30-2021.pdf Attachment 3 EDS Update Community Engagement Plan 11- 24-2021 FINAL.pdf Attachment 4 Executed EPS PSA.pdf Report compiled on: December 1, 2021 135 Commission Memorandum REPORT TO:Honorable Mayor and City Commission FROM:Brit Fontenot Economic Development Director SUBJECT:Task Order 4 with Economic and Planning Systems, Inc. (EPS) for the update of the 2016 Economic Development Strategy MEETING DATE:December 14, 2021 AGENDA ITEM TYPE:Consent RECOMMENDATION:Authorize the City Manager to Sign Task Order 4 with Economic and Planning Systems, Inc. (EPS) for the update of the 2016 Economic Development Strategy. BACKGROUND: In 2016 the City produced and economic development strategy to guide the activities of the Economic Development Department. When drafting the strategy in 2016, it was envisioned that this would be a 3 –5 year plan. Along with the strategy, the plan included a focus and definition of traded vs. local sector job growth, analyzed local sectors and recommended specific tasks for implementation. A link to the strategy is here: 2016 Economic Development Strategy . The City of Bozeman’s Economic Development Strategy rests on three Strategic Imperatives defined by the former Economic Development Council (EDC) include: 1.Support retention and growth of existing businesses, while welcoming and encouraging new businesses; 2.Invest in infrastructure as a mechanism to drive economic development; and 3.Support education and workforce development initiatives to provide businesses with qualified workers. In 2016, The EDC also created the Economic Development Vision for the community: 136 “Our community strengthens and diversifies the local economy by supporting business sectors that create & sustain mid-to high-paying jobs, enhancing the high quality of life in the greater Bozeman area.” Guiding Economic Development Values/Principles include: 1.Strengthening and diversifying the local home-grown economy; 2.Increasing economic activity that improves our community’s prosperity; 3.Supporting innovation and encouraging growth in mid-to-high wage sectors; 4.Facilitating the creation of mid-to-high paying jobs/high quality employment to match the high quality of life; 5.Environmental responsibility; and 6.Intentional growth planning. Since the 2016 plan was adopted, the region has experienced significant changes including impacts from the Great Recession, a global pandemic, the great resignation, a re-focus on sustainability and equity, expansion of sectors in the region and a massive shift in the available workforce to meet the demands of growing businesses. The proposed update intends to evaluate and update current traded vs. local sector conditions and update the strategy while taking into account disruptive events over the past five years and include components of sustainability/resiliency and address equity issues. Examples of updates to the plan include an expansion to sector development initiatives to include additional high-growth sectors including health care, the film industry and quantum computing. Over the past 18-24 months, the importance of workforce development and regional economic partnerships is elevated and requires focused effort. Finally, continued infrastructure investment in targeted areas will add vibrancy, community and economic stability and continue to expand the tax base. Finally, in 2018, the City Commission adopted a Strategic Plan that envisions Bozeman remaining “a safe, inclusive community, fostering civic engagement and creativity, with a thriving diversified economy, a strong environmental ethic, and a high quality of life as our community grows and changes”. The principles imbedded in the 2016 Economic Development Strategy are fully incorporated into the Strategic Plan in the Innovative Economy section which reads: 2. An Innovative Economy We grow a diversified and innovative economy leveraging our natural amenities, skilled and creative people, and educational resources to generate economic opportunities. 137 2.1 Business Growth -Support retention and growth of both the traded and localbusiness sectors while welcoming and encouraging new and existing businesses, in coordination with the Economic Development Plan. 2.2 Infrastructure Investments -Strategically invest in infrastructure as a mechanism to encourage economic development. a) Identify Commercial/Industrial Infrastructure Needs. Identify sites for new or redevelopment in areas that lack adequate infrastructure and develop new financing strategies to fund these investments. 2.3 Workforce Development -Support education and workforce development initiatives to improve the skills of our citizens. We are now closing in on the end of the 5th year using the plan. Over the last 5 years we have experienced significant changes to our economic, social and political landscape. A few of the significant events include the economic impacts of the COVID-19 virus on the global economy and workforce, a heightened awareness of diversity, equity and inclusion in our economic landscape and an ever increasing importance placed on the impacts of climate change on community sustainability and resiliency. The goal of this update is to refresh the strategy under our new normal and including elements that were not included in the 2016 strategy. FISCAL EFFECTS: The project is budgeted in the FY 22 Economic Development budget in the amount of $100,000. Task Order 4defines the project total as up to $100,000. The proposed scope of work defines the project budget at $98,980. ATTACHMENTS: 1. Task Order 4 with Economic and Planning Systems, Inc. 2. Economic Development Strategy Update Scope of Work 3. Economic Development Strategy Update Engagement Plan 4. Executed Professional Services Agreement and Term Contract with Economic and Planning Systems, Inc. 138 City of Bozeman Term Contract with Economic & Planning Systems, Inc. Task Order Number 4: Economic Development Strategy Update PROJECT: Economic Development Strategy Update Issued under the authority of the City of Bozeman Professional Services Agreement Term Contract with Economic and Planning Systems, Inc. to support Economic Development and Community Housing programs. This Task Order is dated [ ] between the City of Bozeman Economic Development Department and Economic & Planning Systems, Inc. (EPS) (Contractor). The following representatives have been designated for the work performed under this Task Order: City: Brit Fontenot, Economic Development Director Contractor: Brian Duffany, Executive Vice President, Economic & Planning Systems SCOPE OF WORK: See attached Scope of Work. COMPENSATION: EPS will bill for its services on a time and materials basis with a project total not-to-exceed $100,000.00 (One hundred thousand dollars). The provisions of the Professional Services Agreement Term Contract shall govern the Work. IN WITNESS WHEREOF, the parties authorized to commit resources of the parties have executed this Task Order: City of Bozeman Economic & Planning Systems Jeff Mihelich Brian Duffany City Manager Executive Vice President ________________________________ Daniel R. Guimond, Principal 139 213051_SOW_Economic Development Strategy Final 11-30-2021.docx S COPE OF W ORK To: Brit Fontenot, City of Bozeman From: Alisa Pyszka, Bridge Economic Development and Brian Duffany, Economic & Planning Systems Subject: Economic Development Strategy Scope of Work Date: November 2, 2021 The City of Bozeman Economic Development department intends to update its current strategy in response to significant economic impacts due to COVID and growing disparities in economic mobility for underserved and under-represented people. Furthermore, the City of Bozeman has recently revised the structure of various committees and boards providing policy direction on numerous issues impacting the city. For economic development, the department is now advised by one board that represents interests in: economic development; diversity, equity and inclusion (DEI); housing; and public art. Recognizing these significant issues, the following scope of work outlines how the consultant team will work with city staff to effectively engage city and regional stakeholders to update the economic development strategy. The strategy will ultimately guide the city with transparent actions that fosters equitable economic development that creates a resilient community with specific consideration to climate action. Task 1 - Kick-Off and Project Management To advance an economic development vision and strategy that truly resonates with the region, we recommend that the following committees are developed to facilitate the evaluation and feedback on consultant team recommendations. We will refine this approach and finalize the engagement plan for Task 3 in with staff. Core Committee (CC): This consists of approximately 2 core staff that will engage regularly with the consultant team. This core committee needs to include the staff person that will be ultimately responsible for implementing the strategy over the next several years. This key individual must be engaged from the outset of the project to build the relationships with the community that are necessary to foster ownership and follow-through on identified actions. 140 Scope of Work: Economic Development Strategy Scope of Work Page | 2 Advisory Committee (AC): This consists of economic development stakeholders and practitioners that are currently implementing programs tied to workforce, entrepreneurship, etc., and will serve as a preliminary “sounding board” for recommendations that have been developed by the consultant team and core committee. They serve to provide recommendations for information presented to the Regional Leadership Committee. Members of the AC may be co-chairs of the RLC. Regional Leadership Committee (RLC): This group functions at the regional policy and leadership level that includes elected officials, university chancellors, etc. that serve as thought leaders and influencers of economic growth in the region. It could largely consist of the new Economic Vitality Board and economic development stakeholders. However, we recommend that this group should include “collaborative partners” that represent under-represented populations. By including them from the outset of the project and on this committee, they are an active partner in the development of the strategy and will provide meaningful input from individuals not always heard in the traditional economic development process. Task 1 Deliverables • Kick-off meeting with client • Community engagement plan and schedule Task 2. Conditions Assessment EPS will complete a quantitative analysis of local economic trends and competitive advantage, economic development assets and economic development conditions within the project area. The team will analyze publicly available data and review relevant research report findings. Regional demographic data will be compared with up to five peer regions, determined by the CC and consultant team, to provide context regarding the local strengths and weaknesses. The consultant team will also develop several Diversity, Equity and Inclusion (DEI) metrics to inform the strategy. These will include data points such as employment status, educational attainment, and incomes by race. We will also evaluate the characteristics of the workforce against the economic base and growing sectors to gauge potential mismatches between skills and access and the local economy. This will be informed from a combination of publish data sources and stakeholder interviews. Our team’s equity lens means that the priorities will also include systematic efforts to increase economic opportunities for all Bozeman residents. For example, supporting existing small businesses and the growth of new local businesses is critical to driving sustainable and equitable economic growth. We will analyze the strength of the small business ecosystem in terms of supporting diverse entrepreneurs. Focusing on small businesses within the city’s industries that have a competitive advantage will enhance their chance for success. This work will serve as the foundation for engagement in Task 3. Task 2 Deliverables • Coordination and review meetings with staff (CC) throughout the task • Conditions Assessment, as a Word document, that summarizes the project area’s local economic trends, economic development assets and economic development conditions 141 Economic & Planning Systems, Inc. Page | 3 Task 3. Stakeholder Engagement It is our belief that each strategy must align with a community’s values and distinct culture to have meaningful results. For Bozeman, the three economic development strategic imperatives or values include: 1. Support retention and growth of existing businesses, while welcoming and encouraging new businesses 2. Invest in infrastructure as a mechanism to drive economic development. 3. Support education and workforce development initiatives to provide businesses with qualified workers. Stakeholder engagement is a critical element in the strategy development to hear consistent themes regarding barriers and opportunities. All stakeholder engagement will be grounded in the presentation of facts and findings determined in the preliminary work in Task 2. This approach will provide a foundation for feedback and more guided discussion. The consultant team will work with staff to develop meetings with a specific grouping of attendees (e.g. target industry cluster, economic development professionals, etc.) to gather more detailed information specific to their interests. This qualitative information will supplement the quantitative information to begin to guide the strategy. It is anticipated that these meetings will be in person. During the visit, the consultant team will also meet with the RLC and City Commission to outline the strategy development process and gather their initial feedback as well. Task 3 Deliverables • Up to five roundtable meetings with industry cluster businesses and community stakeholders • RLC meeting • City Commission meeting • Up to 6 individual follow-up meetings as necessary. • Summary of feedback Task 4. Economic Development Strategy Bridge will work with staff and community stakeholders to define a city vision, values and guiding principles. This definition is important for establishing a common definition of prosperity and provides a foundation for the goals and strategic objectives that will guide economic development for the Bozeman area over the next five years. The goals and objectives will be driven by the analysis completed during Task 2 and feedback from the AC and RLC. Our team’s equity lens means that the priorities will also include systematic efforts to reduce unemployment and increase incomes within the city. For example, supporting existing small businesses and the growth of new local businesses is critical to driving 142 Scope of Work: Economic Development Strategy Scope of Work Page | 4 4 sustainable and equitable economic growth. In most cities, if every small business grew by just one employee, it could create enough employment opportunities for all unemployed residents in disadvantaged neighborhoods. Focusing on small businesses within the region’s sectors that have a competitive advantage will enhance their chance for success. The strategy goals and priorities will build on the project area’s strengths and opportunities and address the primary weaknesses and threats facing the area. Input from project staff and the RLC, in addition to our own research, will ensure the plan is consistent with relevant state and local economic development or workforce development strategies. Task 4 Deliverables • SWOT analysis • Coordination and review meetings with CC throughout the task • Summary of Vision Values, Guiding Principles, Key Findings, Goals and Objectives in PowerPoint presentation format. • Presentations to AC and RLC to approve vision, values, guiding principles. • Presentations to AC and RLC to goals and objectives. • Presentation to City Commission • Final Strategy document report summarizing Tasks 2-4 and subsequent recommendations. The report will be provided in Word formatted document. Task 5. Economic Development Action Plan Successful implementation of the plan depends on significant ownership from the stakeholders established at the outset of the plan development. A tactical action plan should be limited to those actions where a lead organization has come forward and committed to implementing the action (versus just identifying a lead organization not committed to action). In all of our recommended actions, we identify the need for a lead organization. Without an organization to own and champion a project, it will remain a concept on paper. As all communities face limited staffing and funds, the allocation of these resources must be deliberate. The plan serves as a tool to decide which new actions to green light. When a new action appropriately aligns with the plan's priorities, the data and regional support defined in the process are incredibly valuable in preparing grant documents to obtain the necessary funding to implement planned actions. 143 Economic & Planning Systems, Inc. Page | 5 Task 5 Deliverables • A five-year action plan with identified lead organization, deliverable and timeline that implements the goals and objectives. • Coordination and review meetings with CC throughout the task • Presentations to AC and RLC to approve the action plan and performance measures. 144 Scope of Work: Economic Development Strategy Scope of Work Page | 6 6 Budget Pyszka EPS PM EPS Analyst Hours Budget$200 $240 $135 by Task by Task Task 1. Kick-Off and Project Management 26 $5,200Kick-off meeting with client 2 0 0 2 $400 Finalize scope and engagement approach 4 0 0 4 $800Project management and client coordination 20 0 0 20 $4,000 Task 2. Conditions Assessment 136 $23,520 Demographics compared with peer regions 2 2 12 16 $2,500 LQ analysis 2 4 16 22 $3,520 Labor assessment 2 4 16 22 $3,520 Small Business Assessment 8 8 4 20 $4,060 DEI Metrics 2 4 16 22 $3,520 Summary Assessment 2 16 16 34 $6,400 Task 3. Stakeholder Engagement (in person visit)80 $17,120 Preparation for presentations and meetings 16 8 0 24 $5,120 Stakeholder Roundtables 16 8 0 24 $5,120 RLC Board Meeting 2 2 0 4 $880 City Commission Meeting 2 2 0 4 $880 Follow Up Virtual Stakeholder Meetings 8 4 0 12 $2,560 Summary of Engagement 8 4 0 12 $2,560 Task 4. Economic Development Strategy 162 $34,060 Draft vision, values and guiding principles 12 4 0 16 $3,360 Staff (CC) meeting 4 0 0 4 $800 AC meeting 4 0 0 4 $800 RLC meeting (virtual mtg)4 0 0 4 $800 Draft key findings, goals, objectives 12 4 0 16 $3,360 Staff (CC) meeting 4 0 0 4 $800 AC meeting 4 0 0 4 $800 RLC meeting (virtual mtg)4 0 0 4 $800 Draft Strategy Report 28 12 4 44 $9,020 Staff (CC) meeting 4 4 0 8 $1,760 AC meeting 4 4 0 8 $1,760 RLC meeting (virtual mtg)4 4 0 8 $1,760 City Commission Meeting (in person mtg)8 8 0 16 $3,520 Final Report 14 8 0 22 $4,720 Task 5. Economic Development Action Plan 72 $14,880 Draft Actions 18 4 0 22 $4,560 Stakeholder Meeting 8 4 0 12 $2,560 RLC Board Meeting 8 4 0 12 $2,560 Final Action Plan 6 0 0 6 $1,200 RLC Board Meeting 8 0 0 8 $1,600 Commission Meeting (AP in person mtg)12 0 0 12 $2,400 266 126 84 392 $53,200 $30,240 $11,340 $94,780 Fees $94,780Expenses Travel (2 people x 2 trips + 1 trip)$4,200Total Budget "not to exceed"$98,980 145 Last Updated: 11/30/2021 1:59 PM 1 COMMUNITY ENGAGEMENT PLAN PROJECT TITLE: Economic Development Strategy Update PROJECT LEADS: Brit Fontenot - Economic Development Director community Engagement PURPOSE Community engagement is a critical element in the strategy development to hear consistent themes regarding barriers and opportunities in Bozeman. BACKGROUND: The City of Bozeman’s Economic Development Strategy rests on three Strategic Imperatives defined by the former Economic Development Council (EDC) include: 1. Support retention and growth of existing businesses, while welcoming and encouraging new businesses; 2. Invest in infrastructure as a mechanism to drive economic development; and 3. Support education and workforce development initiatives to provide businesses with qualified workers. The EDC also created the Economic Development Vision for the community: “Our community strengthens and diversifies the local economy by supporting business sectors that create & sustain mid-to high-paying jobs, enhancing the high quality of life in the greater Bozeman area.” Guiding Economic Development Values/Principles include: 1. Strengthening and diversifying the local home-grown economy; 2. Increasing economic activity that improves our community’s prosperity; 3. Supporting innovation and encouraging growth in mid-to-high wage sectors; 4. Facilitating the creation of mid-to-high paying jobs/high quality employment to match the high quality of life; 5. Environmental responsibility; and 6. Intentional growth planning. The inaugural Economic Development Plan was prepared by the Prospera Business Network and adopted by the Bozeman City Commission in 2009. The 2009 plan was very aspirational and encouraged, supported and recommended community partnerships in order to accomplish the modest goals of the plan. In November 2016, the City of Bozeman adopted a new 3- 5 year Economic Development Strategy to update and replace the 2009 plan. Along with the strategy, the update includes a focus and definition of traded vs. local sector job growth, analyzed local sectors and recommended specific tasks for implementation. 146 Last Updated: 11/30/2021 1:59 PM 2 Since the 2016 plan was adopted, the region has experienced significant changes including the Great Recession, a global pandemic, a re-focus on sustainability and equity, expansion of sectors in the region and a massive shift in the available workforce to meet the demands of growing businesses. The proposed update intends to evaluate and update current traded vs. local sector conditions, update the strategy while taking into account events over the past five years and include components of sustainability/resiliency and address equity issues. Finally, in 2018, the City Commission adopted a Strategic Plan that envisions Bozeman remaining “a safe, inclusive community, fostering civic engagement and creativity, with a thriving diversified economy, a strong environmental ethic, and a high quality of life as our community grows and changes”. The principles imbedded in the 2016 Economic Development Strategy are fully incorporated into the Strategic Plan in the Innovative Economy section which reads: 2. An Innovative Economy We grow a diversified and innovative economy leveraging our natural amenities, skilled and creative people, and educational resources to generate economic opportunities. 2.1 Business Growth - Support retention and growth of both the traded and local business sectors while welcoming and encouraging new and existing businesses, in coordination with the Economic Development Plan. 2.2 Infrastructure Investments - Strategically invest in infrastructure as a mechanism to encourage economic development. a) Identify Commercial/Industrial Infrastructure Needs. Identify sites for new or redevelopment in areas that lack adequate infrastructure and develop new financing strategies to fund these investments. 2.3 Workforce Development - Support education and workforce development initiatives to improve the skills of our citizens. 147 Last Updated: 11/30/2021 1:59 PM 3 2022 Economic Development Strategy Update This Community Engagement Plan is being prepared for the 2022 Economic Development Strategy Update (EDS). The EDS will take off from the previous work but take a broader look at the City and Greater Bozeman Region and incorporate economic and racial equity perspectives. The EDS is comprised of the following elements: Economic Development Strategy – The document that outlines and furthers the City of Bozeman’s economic development efforts and is aligned with the City’s strategic goals, i.e. An Innovative Economy Economic Development Action Plan – The portion of the Economic Development Strategy Update that identifies specific action steps SWOT Analysis – SWOT is an acronym for [Economic] Strengths, Weaknesses, Opportunities and Threats analysis conducted as part of the strategy update. Conditions Assessment – This assessment considers economic conditions on the ground in the region as of the time frame in which the strategy is being updated Business or Industry Cluster or Sector – a geographic concentration of interconnected businesses, suppliers, and associated institutions in a particular field, i.e. the photonics cluster or sector. Key partners and interest groups Internal 1. Economic development team; 2. Consultant team; and 3. Community engagement. External 1. Local and regional economic development practitioners; 2. The Economic Vitality Board; 3. Private sector business representatives; 4. Minority business owners; and 5. Affordable housing and social service providers and advocates. These external partners will all comprise the Regional Leadership Council (RLC) that will provide guidance and feedback throughout the strategy development. More details on the RLC are outlined below Partners’ role in decision making process 1. Engage stakeholders on the Condition Assessment and SWOT analysis; 2. Identify barriers and opportunities for underrepresented groups to access opportunity and economic mobility; 148 Last Updated: 11/30/2021 1:59 PM 4 3. Provide feedback and input on the vision, goals and objectives in the EDS; and 4. Provide feedback and guidance from the RLC and stakeholders on the appropriate method of weaving equity and sustainability/resiliency into the ED Strategy update. 5. Consulting partners on what economic development and prosperity look like in Bozeman from their unique perspectives. STEP IN DECISION MAKING PROCESS SPECTRUM LEVEL C.E. STATEMENT (leave empty if Spectrum Level is INFORM) Interest group or partner (ex. all or targeted) Define problem / opportunity Involve Define a city vision, values and guiding principles for the EDS. Establish a common definition of prosperity All Gather information Consult Identify barriers and opportunities for underrepresented groups to access opportunity and economic mobility. RLC, community members, cluster representatives Establish decision criteria Inform Criteria used to establish vision, values, guiding principles will be determined by CC, EPS/Bridge through the Conditions Assessment and results from engagement All Develop alternatives Inform CC, EPS/Bridge team will develop the “alternatives” or draft goals and objectives for the EDS All 149 Last Updated: 11/30/2021 1:59 PM 5 Evaluate alternatives Consult Provide feedback and input on the goals and objectives in the EDS All Make decision Inform Economic Vitality Board will make recommendation to City Commission to adopt EDS All OVERALL PUBLIC INVOLVEMENT LEVEL: Consult, Involve and Collaborate GOAL FOR COMMUNITY ENGAGEMENT Update the City’s Economic Development Strategy by revisiting the three strategic imperatives to ensure that changing conditions in our community, equity, sustainability and resiliency are reflected in the new strategy OBJECTIVES – (SMART! Specific, Measurable, Attainable, Realistic, Timely) Stakeholder engagement is a critical element in the strategy development to hear consistent themes regarding barriers and opportunities. All stakeholder engagement will be grounded in 150 Last Updated: 11/30/2021 1:59 PM 6 the presentation of facts and findings determined in the preliminary work. This approach will provide a foundation for feedback and more guided discussion. The consultant team will work with staff to develop meetings with a specific grouping of attendees (e.g. target industry cluster, economic development professionals, underserved, sustainability/resiliency, housing, etc.) to gather more detailed information specific to their interests. This qualitative information will supplement the quantitative information to begin to guide the strategy. We anticipate that these meetings will be in person. During the visit(s), staff and the consultant team will also meet with the Regional Leadership Committee (RLC) and the Bozeman City Commission, or individual Commissioners, to outline the strategy development process and gather their initial feedback as well. Proposed engagement includes: 1. Up to five roundtable meetings with industry cluster businesses and community stakeholders; 2. Up to two focus groups with housing advocates, affordable housing developers, and social service providers; 3. Meeting with City staff including, but not limited to, sustainability, public works, community development, strategic services and communication and engagement;. 4. RLC meeting; 5. City Commission or Commissioner meetings; 6. Up to 6 individual follow-up meetings as necessary; and 7. Summary of feedback. PUBLIC ENGAGEMENT STRATEGY This section summarizes CEP. An estimated meeting schedule is attached for planning purposes but may be adjusted over the course of the project. Phase I Timeline: Tasks 1-2 in Economic Development Strategy (EDS) December-January 2021-2022 Phase 1: In Phase I the Consultant Team will establish baseline information on the economy needed to inform the engagement process. We will also work with the Core Committee (City Staff) to form the Advisory Committees and Regional Leadership Committees. Prepare and Inform: Committee member identification Committee formation Perform data gathering and analysis to inform committee members and participants in Phase II 151 Last Updated: 11/30/2021 1:59 PM 7 Actions: o City and Consultant will work together to form the Advisory Committee (AC) and Regional Leadership Committee (RLC) Tools: o Personal contact and outreach to prospective committee members o Economic and demographic research, benchmarking against peer cities or regions. Phase II Timeline: February-March 2022 Tasks 3 and 4 of EDS Phase II: Involve and Consult This Phase will cover the bulk of the community engagement in the EDS. We will be engaging with a broad cross section of groups organized around the Guiding Principles. After the Task 3 engagement activities, we will develop draft strategies and policies for review by the AC and RLC. Actions: Up to five roundtables with industry cluster businesses and community members Up to two focus groups with housing and social services providers and advocates for low income and vulnerable populations. Meeting with City staff including, but not limited to, sustainability, public works, community development, strategic services and communication and engagement; RLC Meeting City Commission Meeting Up to 6 individual follow up meetings as necessary Summary of engagement and feedback Draft of Vision, Values, Guiding Principles, Key Findings, Goals and Objectives Tools: Facilitated discussions Focus groups One-on-one follow up interviews Phase III Timeline: April-June 2022 Tasks 4 and 5 of EDS Phase III: Inform and Consult In Phase III the Consultant will revise the strategies and policies from the feedback from the Phase II engagement and work between the Consultant and Core Committee. We will ensure that the revised strategies and policies reflect input from the Phase II engagement, including input from vulnerable populations. The Consultant will inform the AC and RLC on the recommendations and consult them for feedback on the direction of the EDS. Actions: Revised Vision, Values, Guiding Principles, Key Findings, Goals and Objectives 152 Last Updated: 11/30/2021 1:59 PM 8 Presentations to AC and RLC to review and approve vision, values, guiding principles Presentations to AC and RLC to review and approve goals and objectives Presentation to City Commission Final Strategy document report Tools: Facilitated discussions with AC, RLC, and City Commission 153 Last Updated: 11/30/2021 1:59 PM 9 TASK 2 & 3 – Conditions Assessment and Engagement CC (Consultants + Brit/David) AC (Co-Chairs of RLC – one private) RLC (Economic Vitality Board + stakeholders) Estimated Mtg. Date Topic Mtg Date Topic Mtg Date Topic 12/03 Bridge/EPS finalize draft peer regions and data points to start analysis Review RLC list and AC members to finalize groups. 12/17 (client task) Finalize RLC and AC 1/07 EPS presents internal raw data on peers Bridge provides stakeholder meeting list and invite language 1/10 (client task) Stakeholder meeting invites out 2/02 Draft RLC Presentation for AC review 2/07 Overview of Roles and Process Draft RLC Presentation for AC review 2/14 RLC Role and Process ED + traded sector defined Strategy Framework Peer regions, demographic data 2/14 -2/15 Participant Roundtables 2/15 City Commission Meeting 154 Last Updated: 11/30/2021 1:59 PM 10 TASK 4 – Strategy CC (Consultants + Brit/David) AC (Co-Chairs of RLC – one private) RLC (Economic Vitality Board + participants) Mtg Date Topic Mtg Date Topic Mtg Date Topic 2/21 Debrief on Engagement Feedback 3/02 Vision, Values and Guiding Principles 3/07 Vision, Values and Guiding Principles 3/14 Vision, Values and Guiding Principles 3/30 Key Findings, Goals, and Objectives 4/04 Key Findings, Goals, and Objectives 4/11 Key Findings, Goals, and Objectives 4/22 Final Draft Strategy Preliminary Action Ideas 4/27 Final Draft Strategy Preliminary Action Ideas 5/16 Final Draft Strategy Preliminary Action Ideas 5/17 City Commission Meeting 155 Last Updated: 11/30/2021 1:59 PM 11 TASK 5 – Implementation CC (Consultants + Brit/David) AC (Co-Chairs of RLC – one private) RLC (Economic Vitality Board + participants) Mtg Date Topic Mtg Date Topic Mtg Date Topic 5/31 Draft Action Matrix 6/10 Draft Action Matrix 6/22 Draft Action Matrix 6/29 Final Action Matrix 7/08 Final Action Matrix 7/20 Final Action Matrix 156 Professional Services Agreement for Economic and Planning Systems, Inc. Term Contract FY 2021 – FY 2027 Page 1 of 13 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 22nd day of June, 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, ECONOMIC AND PLANNING SYSTEMS, INC., 730 17th Street, Suite 630, Denver, CO 80202, hereinafter referred to as “Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to perform for City services described in the Scope of Services attached hereto as Exhibit A and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon the Effective Date and will expire on the 30 day of June 2026, or the completion of any written Task Order initiated prior to June 30, 2026 unless earlier terminated in accordance with this Agreement. 3. Scope of Services: Contractor will perform the work and provide the services in accordance with the specific services and corresponding schedule as mutually agreed upon by City and Contractor and included in each individual Task Order executed under the authority of this Agreement. Task Orders shall be attached and made part of this Agreement. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: The terms of compensation to Contractor shall be agreed upon and included in each Task Order. City agrees to pay Contractor the amount specified in the individual Task Orders. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will DocuSign Envelope ID: 463D846F-B33D-495F-ABF4-127FE0DC5E88 157 Professional Services Agreement for Economic and Planning Systems, Inc. Term Contract FY 2021 – FY 2027 Page 2 of 13 become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. In the event that, during the term of this Agreement, any labor problems or disputes of any type arise or materialize which in turn cause any services to cease for any period of time, Contractor DocuSign Envelope ID: 463D846F-B33D-495F-ABF4-127FE0DC5E88 158 Professional Services Agreement for Economic and Planning Systems, Inc. Term Contract FY 2021 – FY 2027 Page 3 of 13 specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or intentional misconduct of the Contractor or Contractor’s agents or employees. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to 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 DocuSign Envelope ID: 463D846F-B33D-495F-ABF4-127FE0DC5E88 159 Professional Services Agreement for Economic and Planning Systems, Inc. Term Contract FY 2021 – FY 2027 Page 4 of 13 policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury per accident; and • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on both the Commercial General DocuSign Envelope ID: 463D846F-B33D-495F-ABF4-127FE0DC5E88 160 Professional Services Agreement for Economic and Planning Systems, Inc. Term Contract FY 2021 – FY 2027 Page 5 of 13 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 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. DocuSign Envelope ID: 463D846F-B33D-495F-ABF4-127FE0DC5E88 161 Professional Services Agreement for Economic and Planning Systems, Inc. Term Contract FY 2021 – FY 2027 Page 6 of 13 b. Upon receipt of the Notice of Termination for City’s Convenience, unless otherwise directed in the Notice, the Contractor shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. c. In the event of a termination pursuant to this Section 9, Contractor is entitled to payment only for those services Contractor actually rendered on or before the receipt of the Notice of Termination for City’s Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Contractor for its performance of this Agreement. Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights to assert such claim. 11. Representatives and Notices: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be David Fine, Urban Renewal Program Manager, or such other individual as City shall designate in writing. Whenever approval or authorization from or DocuSign Envelope ID: 463D846F-B33D-495F-ABF4-127FE0DC5E88 162 Professional Services Agreement for Economic and Planning Systems, Inc. Term Contract FY 2021 – FY 2027 Page 7 of 13 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 Brian Duffany, Executive Vice President, or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. c. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13 Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. 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. DocuSign Envelope ID: 463D846F-B33D-495F-ABF4-127FE0DC5E88 163 Professional Services Agreement for Economic and Planning Systems, Inc. Term Contract FY 2021 – FY 2027 Page 8 of 13 The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Contractor shall require these nondiscrimination terms of its subcontractors providing services under this Agreement. 15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 16. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign 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. DocuSign Envelope ID: 463D846F-B33D-495F-ABF4-127FE0DC5E88 164 Professional Services Agreement for Economic and Planning Systems, Inc. Term Contract FY 2021 – FY 2027 Page 9 of 13 17. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 18. Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 19. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 21. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 22. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. DocuSign Envelope ID: 463D846F-B33D-495F-ABF4-127FE0DC5E88 165 Professional Services Agreement for Economic and Planning Systems, Inc. Term Contract FY 2021 – FY 2027 Page 10 of 13 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. DocuSign Envelope ID: 463D846F-B33D-495F-ABF4-127FE0DC5E88 166 Professional Services Agreement for Economic and Planning Systems, Inc. Term Contract FY 2021 – FY 2027 Page 11 of 13 **** 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 DocuSign Envelope ID: 463D846F-B33D-495F-ABF4-127FE0DC5E88 Economic & Planning Systems, Inc. Principal Dan Guimond 167 Professional Services Agreement for Economic and Planning Systems, Inc. Term Contract FY 2021 – FY 2027 Page 12 of 13 Exhibit “A” SCOPE OF SERVICES The selected consultant may assist the City on any task defined by the general scope of work as directed by written task order. A) Economic Development Strategy and Implementation • Provide strategic, data-driven advice regarding the feasibility of various development types and projects and provide guidance on the tools, public infrastructure, programs, partnerships, incentives and policies that can stimulate the desired development. • Background and experience in analyzing regulations and development codes and policies to support strategic objectives • Commercial and Mixed-Use District Development strategies and implementation. • Perform market analysis to support policy and land use decisions. • Create strategic Economic Development Strategies and Action Plans • Create data driven marking materials that reflect community assets to welcome talent and business for key clusters B) Economic Development and Real Estate Financial Analysis • Provide robust and data rich assessments of Bozeman and Gallatin County’s real estate and housing market. o Regional growth trends related to population, employment including tracking key employment sectiors, and demographic data o For-sale Market o Rental Market o Commercial and Residential Market Trends o Affordability Indicators • Provide data driven analysis to support economic development strategy and implementation of that strategy. C) Public-Private Partnerships • Assist in negotiating and structuring public-private partnerships that are beneficial to the City of Bozeman. o Provide guidance on the development of shared structured and surface parking facilities. o Provide guidance on attracting and facilitating mixed use investment in key districts. o Provide guidance on the development of workforce and affordable housing projects, deal structures and incentives • Provide robust and detailed analysis and financial pro formas to examine the financial feasibility of specific projects and provide gap financing analysis to right size economic development incentives. • Project TIF cash flows based on existing projects and projected projects to assist with obtaining financing, including bonding. DocuSign Envelope ID: 463D846F-B33D-495F-ABF4-127FE0DC5E88 168 Professional Services Agreement for Economic and Planning Systems, Inc. Term Contract FY 2021 – FY 2027 Page 13 of 13 D) Building and Development Conceptualization • Provide ongoing assistance in developing Bozeman’s mixed-use districts as a specific kinds of places by working with property owners and developers to advance building concepts and formats that are consistent with the aspirations of Bozeman’s guiding plans, while staying feasible in Bozeman’s real estate market. The firm or team will demonstrate competency in urban and landscape planning and design and be able to produce visioning documents that show the integration of plans and projects with the built environment. DocuSign Envelope ID: 463D846F-B33D-495F-ABF4-127FE0DC5E88 169 Memorandum REPORT TO:City Commission FROM:Tom Rogers, Senior Planner Marty Matsen, Director of Community Development SUBJECT:Ordinance 2095, Provisional Adoption to Rezone 3.4 Acres from B-2, Community Business District to B-2M, Community Business District-Mixed, Application 21192, Property Located on the Southeast Corner of South 19th Avenue and West Babcock Street MEETING DATE:December 14, 2021 AGENDA ITEM TYPE:Ordinance RECOMMENDATION:Provisionally adopt Ordinance 2095 rezoning 3.4 acres from B-2, Community Business District to B-2M, Community Business District-Mixed, application 21192. STRATEGIC PLAN:4.2 High Quality Urban Approach: Continue to support high-quality planning, ranging from building design to neighborhood layouts, while pursuing urban approaches to issues such as multimodal transportation, infill, density, connected trails and parks, and walkable neighborhoods. BACKGROUND:The applicant submitted application 21192 to rezone seven existing lots from B-2, Community Business District to B-2M, Community Business District- Mixed. The subject properties host the Langor’s Flowerland building on the southeast corner of 19th and Babcock Street, a parking lot with an associated accessory building, and an undeveloped lot. A similar application was reviewed and approved one parcel to the east on Babcock Street. This previous application rezoned property from R-O (Residential Office) and B-2 (Community Commercial) to B-2M and gained approval to construct two mixed-use buildings hosting commercial shell space, parking, and storage on the ground floor and 94 residential units on the upper four floors. The Zoning Commission recommended approval of the application on August 23, 2021. On September 21, 2021 the City Commission held a public hearing and voted unanimously to apply B-2M zoning designation to the subject property, subject to contingencies. All contingencies have been met by the applicant, including a map, and legal description. 170 UNRESOLVED ISSUES:There are no known unresolved issues. ALTERNATIVES:Adoption of Ordinance 2095 as presented and recommended. Determine that the prior decision to zone was in error and do not adopt the ordinance. FISCAL EFFECTS:No unusual fiscal effects have been identified. No presently budgeted funds will be changed by this Zone Map Amendment. Attachments: West Babcock ZMA Ordinance 2095.pdf 21-192 ZMA Map 10-12-2021.pdf 21-192 Legal Description 05-05-2021.pdf Report compiled on: December 1, 2021 171 Ord 2095 Page 1 of 5 ORDINANCE 2095 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA AMENDING THE CITY OF BOZEMAN ZONING MAP TO REZONE 3.4 ACRES FROM B-2, COMMUNITY BUSINESS DISTRICT TO B-2M, COMMUNITY BUSINESS DISTRICT-MIXED, KNOWN AS THE WEST BABCOCK PROPRERTIES ZONE MAP AMENDMENT, APPLICATION 21192. WHEREAS, the City of Bozeman has adopted zoning regulations and a zoning map pursuant to Sections 76-2-301 and 76-2-302, M.C.A.; and WHEREAS, Section 76-2-305, M.C.A. allows local governments to amend zoning maps if a public hearing is held and official notice is provided; and WHEREAS, Section 76-2-307, M.C.A. states that the Zoning Commission must conduct a public hearing and submit a report to the City Commission for all zoning map amendment requests; and WHEREAS, the City of Bozeman Zoning Commission has been created by Section 2.05.2700, BMC as provided for in Section 76-2-307, M.C.A.; and WHEREAS, Chapter 38, Article 2 of the Bozeman Unified Development Code sets forth the procedures and review criteria for zoning map amendments; and WHEREAS, the proposed zone map amendment application to amend the City of Bozeman Zoning Map to rezone 3.4 acres from B-2 (Community Business District) to B-2M (Community Business District-Mixed) has been properly submitted, reviewed, and advertised; and 172 Ordinance No. 2095, West Babcock Properties ZMA Page 2 of 5 WHEREAS, after proper notice, the Bozeman Zoning Commission held a public hearing on August 23, 2021 to receive and review all written and oral testimony on the request for a zone map amendment; and WHEREAS, the Bozeman Zoning Commission recommended to the Bozeman City Commission that application No. 21192 the West Babcock Properties Zone Map Amendment, be approved as requested by the applicant; and WHEREAS, after proper notice, the City Commission held its public hearing on September 21, 2021, to receive and review all written and oral testimony on the request for the zone map amendment; and WHEREAS, the City Commission has reviewed and considered the zone map amendment criteria established in Section 76-2-304, M.C.A., and found that the proposed zone map amendment would be in compliance with the criteria. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 That the zoning district designation of the following-described property is hereby designated as B-2M, Community Commercial District-Mixed: An area of land comprised described as follows: A parcel of land, being Tracts A, B & C of Certificate of Survey No. 1193, Documents #2155019, #2480780 and #2526375, Film 45, Page 1315, and portions of South 19th Avenue right of way, said parcel being located in the Southeast Quarter of Section 11 and the Southwest Quarter of Section 12, Township 2 South, Range 5 East, Principal Meridian Montana, City of Bozeman, Gallatin County, Montana and being further described as follows: Beginning at the southeast corner of the tract described in said Document #2526375; thence North 89°54'09" West, on the south line of said tract, a distance of 191.09 feet; thence North 173 Ordinance No. 2095, West Babcock Properties ZMA Page 3 of 5 00°25'21" East, on the west line of said tract, a distance of 1.80 feet; thence North 89°50'48" West, on the south line of Certificate of Survey No. 1193, the south line of Parcels I and II of Document #2480780 and on the westerly extension of said south line, a distance of 461.64 feet; thence North 00°19'09" East, on the centerline of South 19th Avenue as shown on Certificate of Survey No. 2583, a distance of 225.87 feet; thence South 89°51'33" East, on the north line of the Northwest Quarter of the Southwest Quarter of said Section 12 and on the westerly extension of said line, a distance of 654.47 feet; thence South 00°45'36" West, on the east line of the tract described in Document #2526375, a distance of 227.64 feet to the Point of Beginning. The described parcel has an area of 3.40 acres, more or less. The described parcel is as shown on the accompanying exhibit and is along with and subject to any existing easements. 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. 174 Ordinance No. 2095, West Babcock Properties ZMA Page 4 of 5 Section 5 Codification. This Ordinance shall not be codified but shall be kept by the City Clerk and entered into a disposition list in numerical order with all other ordinances of the City and shall be organized in a category entitled “Zone Map Amendments.” Section 6 Effective Date. This ordinance shall be in full force and effect thirty (30) days after final adoption. 175 Ordinance No. 2095, West Babcock Properties ZMA Page 5 of 5 PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the 14th day of December, 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 ________________, 2022. The effective date of this ordinance is _____________, ____, 2022. _________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: _______________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 176 177 WEST BABCOCK PROPERTIES ZONE MAP AMENDMENT LEGAL DESCRIPTION A parcel of land, being Tracts A, B & C of Certificate of Survey No. 1193, Documents #2155019, #2480780 and #2526375, Film 45, Page 1315, and portions of South 19th Avenue right of way, said parcel being located in the Southeast Quarter of Section 11 and the Southwest Quarter of Section 12, Township 2 South, Range 5 East, Principal Meridian Montana, City of Bozeman, Gallatin County, Montana and being further described as follows: Beginning at the southeast corner of the tract described in said Document #2526375; thence North 89°54'09" West, on the south line of said tract, a distance of 191.09 feet; thence North 00°25'21" East, on the west line of said tract, a distance of 1.80 feet; thence North 89°50'48" West, on the south line of Certificate of Survey No. 1193, the south line of Parcels I and II of Document #2480780 and on the westerly extension of said south line, a distance of 461.64 feet; thence North 00°19'09" East, on the centerline of South 19th Avenue as shown on Certificate of Survey No. 2583, a distance of 225.87 feet; thence South 89°51'33" East, on the north line of the Northwest Quarter of the Southwest Quarter of said Section 12 and on the westerly extension of said line, a distance of 654.47 feet; thence South 00°45'36" West, on the east line of the tract described in Document #2526375, a distance of 227.64 feet to the Point of Beginning. The described parcel has an area of 3.40 acres, more or less. The described parcel is as shown on the accompanying exhibit and is along with and subject to any existing easements. 178 Memorandum REPORT TO:City Commission FROM:Marty Matsen, Director of Community Development Kelley Rischke, Assistant City Attorney Greg Sullivan, City Attorney SUBJECT:Appeal of Issuance of Business License #21-69197 to Bibs to Books Playhouse MEETING DATE: December 14, 2021 AGENDA ITEM TYPE: Community Development - Quasi-Judicial RECOMMENDATION: Uphold the decision of Community Development to adopt Administrative Rule 2021-01 and issue a business license to Bibs to Books Playhouse and dismiss the appeal with prejudice. 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: Appellant first complained of his neighbor’s day care operating without a city business license on July 21, 2021. The City first verified the day care was properly licensed with the State and confirmed that day care complied with zoning regulations. The City communicated its policy regarding business licenses and day cares to Appellant. After some discussion and review, the City agreed with Appellant’s general point of view that day cares should have business licenses and adopted Administrative Rule 2021-01. Administrative Rule 2021-01 requires day care providers to obtain a business license, but waives the application fee and only requires inspections when the City believe it is reasonably necessary for code enforcement purposes or to ensure compliance with state regulations. Bibs to Books Playhouse, a group day care business properly registered with DPHHS and operating in an R-1 zoning district, applied for and received a business license pursuant to Administrative Rule 2021-01. Appellant appeals the City’s creation of the Administrative Rule and issuance of a business license to Bibs to Books Playhouse. UNRESOLVED ISSUES: 1. "Aggrieved person" standard. 2. Code of Ethics complaint. ALTERNATIVES: 1. Amend or modify the City’s decision to adopt Administrative Rule 2021-01 and issue business license 21-69197. FISCAL EFFECTS: 179 2. Overturn the City’s decision issue business license 21-69197. If the City Commission determines that it is appropriate to charge a fee to day care operators for business licenses, the City would charge a $50 application fee. There is no way to estimate the number of day care operators who would seek a business license and pay the application fee. Attachments: Staff Report.pdf 102721 Zyvoloski Appeal Packet consolidated.pdf 12.2.2121_Supplemental Appeals Letter for December 14, 2021 Commission Meeting.pdf Enclosures for Supplemental Appeals Letter 12.2.2021.pdf Correspondence.pdf Bibs to Books Playhouse BL Application 21-69197.pdf Bibs to Books BL Attachment DPHHS Registration.pdf 101321 Bibs to Books Playhouse Business License.pdf Report compiled on: December 3, 2021 180 Commission Memo Appeal of Issuance of Business License #21-69197 to Bibs to Books Playhouse December 3, 2021 Report To: Mayor and City Commission From: Kelley Rischke, Assistant City Attorney Subject: Appeal of Issuance of Business License #21-69197 to Bibs to Books Playhouse Meeting Date: December 14, 2021 Agenda Type: Action CITY COMMISSION ACTION: At the conclusion of consideration of the appeal, the City Commission may uphold, amend, or overturn the decision of the City to issue a business license to Bibs to Books Playhouse. The decision may be overturned or amended upon finding the administrative decision was erroneous. Report Date: December 3, 2021 EXECUTIVE SUMMARY: This appeal, filed by Daniel Zyvoloski (Appellant) pursuant to section 12.02.190 of the Bozeman Municipal Code (BMC), seeks to overturn the City of Bozeman’s (City) decision to issue a business license to Bibs to Books Playhouse, his neighbor’s legally registered and compliant day care operation. Appellant’s original complaint centered around the fact Bibs to Books Playhouse was operating without a City business license. The City explained a license was not required and Appellant submitted an appeal of that determination. The City reconsidered the matter and subsequently issued an Administrative Rule addressing Appellant’s concerns regarding day care business licenses. Bibs to Books Playhouse applied for and obtained a license under the newly adopted Administrative Rule, thus addressing Appellant’s concerns that they be licensed with the City. Appellant now appeals the City’s decision to issue a business license and asserts the City violated sections 38.250.010 and 38.200.100, BMC. Specifically, Appellant requests: “that the City Commission reverse the City’s decision to issue Business License No. 21-69197 and require that the Applicant cease operating until it can obtain a business license that is compliant with the BMC’s applicable requirements, including the Applicant signing the City’s Home-Based Business Acknowledgement Form and issuance by the City of a Special Use Permit, as necessary prior to being licensed as a home-based business.” 181 Page 2 of 12 In his Supplement to Administrative Appeal of Business License No. 21-69197 for a Home- Based Daycare (Supplement), dated December 2, 2021, Appellant adds to the scope of this appeal by alleging that the City’s adoption of Administrative Rule 2021-01 was improper because it “exceeds the City’s scope of authority per BMC § 12.02.050.A.1.” Appellant contends, “this new rule goes far beyond the City’s limited authority to create administrative or ministerial rules and regulations required for the City to operate and enforce [sic] of the Code’s existing business license provisions, since the rule substantially changes the existing scope of the BMC’s Home-Based Business (HBB) provisions.” Appellant asks the City Commission to invalidate Administrative Rule 2021-01 pursuant to the Commission’s authority to review and modify any rule promulgated for the operation and enforcement of the business license chapter. See 12.02.050.A.1, BMC. The City defends its issuance of business license 21-69197 because: sections 38.250.010 and 38.200.100, BMC, are not applicable to the issuance of business licenses; the City did not exceed its scope of authority in adopting Administrative Rule 2021-01; and the City’s issuance of Business License 21-69197 was proper. Appeals of business licenses are governed by 12.02.190, BMC. The record of review for this matter consists of the Business License #21-69197, Bibs to Books Playhouse’s application for a business license, and correspondence between the Appellant and City regarding the City’s decision to require a business license for Bibs to Books Playhouse1. At the conclusion of consideration of the appeal, the City Commission may uphold, amend, or overturn the City’s decision to issue business license number 21-69197. The decision may be overturned or amended upon finding the administrative decision was erroneous. Consider the Recommended Motion: Having reviewed and considered this appeal of the City’s issuance of business license number 21-69197 to Bibs to Books Playhouse, including the staff report, record of review, the presentation of staff and the Appellant, public comment, and all information presented, I move to uphold Administrative Rule 2021-01 and uphold the decision of the City to issue business license number 21-69197. 1 The materials for this appeal are somewhat duplicative because Appellant produced some, but not all of the correspondence between the parties as an attachment to his supplement and all correspondence is provided as part of the administrative record. Additionally, staff tried to reduce email redundancy in the administrative record, but because email communications are often cumulative, the production of emails in the materials contain redundant emails. 182 Page 3 of 12 Table of Contents EXECUTIVE SUMMARY: ........................................................................................................................................ 1 TABLE OF CONTENTS: .......................................................................................................................................... 3 BACKGROUND:……………………………………………………………………………………………………….….4 Timeline of Correspondence and Issuance of Business License Number 21-69197….4 BASIS OF THE APPEAL:………………………………………………………………………………………………4 Violations of Sections 38.250.010 and 38.200.100…………………………………………………5 City’s Adoption of Administrative Rule 2021-01 was Improper…….………………………..7 APPEAL OF THE ADMINISTRATIVE DECISION……………………………………………………………9 APPEAL PUBLIC NOTICE:………………………………………………………………………………………….10 APPEAL PUBLIC COMMENT:…………………………………………………………………………………….10 EVALUATION OF THE APPEAL AND PROCEDURE:..…………………………………………………..10 Authority of the City Commission under the Bozeman Municipal Code…………………10 UNRESOLVED ISSUES:………………………………………………………………………………………………11 12.02.190.A, BMC, “Aggrieved Person” Standard…………………………………………………11 Code of Ethics Complaint…………………………………………………………………………………...11 ALTERNATIVES:……………………………………………………………………………………………………..11 FISCAL EFFECT:………………………………………………………………………………………………………11 ATTACHMENTS:……………………………………………………………………………………………………..11 183 Page 4 of 12 BACKGROUND: Administration of the business license program has been housed with several different divisions of the City over the years. Most recently, the City Manager has appointed the Director of Community Development to administer the business license program pursuant to 12.02.050.A, BMC. Administrative staff at the Division of Community Development collect applications and license fees, coordinate any necessary inspections by City officials, and issue business licenses. Prior to October 13, 2021, the City did not require day care operators to obtain a business license. While this policy was unwritten, the City treated day care operators similarly to other professions that are regulated by the State of Montana i.e. if the State regulates an industry, it is exempt from requiring a business license2. The Montana Department of Public Health and Human Services (DPHHS) regulates day care operations by enforcing state laws and promulgating regulations governing day care providers. Although not required, some day care operators chose to obtain a business license. Prior to October 13, 2021, the City’s practice was to inform day care operators that they were not required to hold a business license, but if the day care operator applied for a business license and paid the fee, a business license would be issued. A timeline of correspondence is provided below and the correspondence provides a detailed account of the City’s actions, but to summarize, Appellant first complained of his neighbor’s day care operating without a city business license on July 21, 2021. The City first verified the day care was properly licensed with the State and confirmed that day care complied with zoning regulations. The City communicated its policy regarding business licenses and day cares to Appellant. After some discussion and review, the City agreed with Appellant’s general point of view that day cares should have business licenses and adopted Administrative Rule 2021-01. Administrative Rule 2021-01 requires day care providers to obtain a business license, but waives the application fee and only requires inspections when the City believe it is reasonably necessary for code enforcement purposes or to ensure compliance with state regulations. Bibs to Books Playhouse, a group day care business properly registered with DPHHS and operating in an R-1 zoning district, applied for and received a business license pursuant to Administrative Rule 2021-01. Appellant 2 Due to the City’s building permit software, plumbers and electricians, which are regulated by the State of Montana, are nonetheless required to obtain a business license from the City before building permits can be issued. The City waives business license application fees for plumbers and electricians. Most do not need any inspections because they either operate home-based businesses or their business is located out of City limits. For public health, welfare, and safety reasons, the City requires marijuana businesses to obtain a business license even though marijuana businesses are regulated by the state. See 12.02.040.F. 184 Page 5 of 12 appeals the City’s creation of the Administrative Rule and issuance of a business license to Bibs to Books Playhouse. Timeline of Correspondence and Issuance of Business License Number 21-69197 Complaint submitted via email from Mr. Zyvoloski’s counsel July 21, 2021 Director Matsen email response to complaint August 6, 2021 Response via email from Mr. Zyvoloski August 12, 2021 Formal complaint filed by Mr. Zyvoloski’s counsel August 31, 2021 Director Matsen response to formal complaint September 21, 2021 Complaint re: building permit submitted via email by Mr. Zyvoloski September 23, 2021 Director Matsen email response to complaint re: building permit September 23, 2021 Correspondence from Mr. Zyvoloski’s counsel re: business license September 30, 2021 1st Appeal re: business license decision from Mr. Zyvoloski’s counsel October 6, 2021 Issuance of business license 21-69197 to Bibs to Books Playhouse October 13, 2021 Attorney Rischke response to 1st Appeal October 15, 2021 2nd Appeal submitted by Daniel Zyvoloski October 27, 2021 Supplemental application info provided by Bibs to Books Playhouse November 18, 2021 Attorney Rischke response to 2nd appeal & notice of hearing November 19, 2021 Appeal Supplemental materials submitted by Mr. Zyvoloski December 2, 2021 Commission Hearing December 14, 2021 BASIS OF THE APPEAL: Violations of Sections 38.250.010 and 38.200.100: First, Appellant contends that the City has violated its code in issuing a business license to Bibs to Books Playhouse because a principal purpose of the code is to “establish procedures (including for any permitted departures, deviations, or variances therefrom) for providing and preserving equitable implementation of the law to ‘prevent special treatment to particular parties…’” pursuant to section 38.250.010, BMC. However, his allegation is misguided because Chapter 38 applies to development matters, not to business licenses. Nonetheless, the City’s business license rules for day care operations under Chapter 12 apply equally to all day care providers. No special treatment was afforded to Bibs to Books Playhouse; the business was simply the first day care to apply for and receive a business license under Administrative Rule 2021-01, which is explained below. Appellant’s next allegation is that the City has violated section 38.200.100 by issuing a permit or license without an application in conformance with the regulations contained within the Unified Development Code. As above, the basis for Appellant’s assertion lies in Chapter 38, not Chapter 12. Further, when read in context, the section of code Appellant cites is clearly not related to business licenses. The title of section 38.200.100 is “Building permit requirements” (emphasis in original). The next section of the code, which 185 Page 6 of 12 contains the quote that forms the basis of Appellant’s argument, is similarly related to building permits, not business licenses. See 38.200.110, BMC. Even if Appellant had cited similar authority from Chapter 123, Bibs to Books application is currently complete, with all missing information noted by Appellant addressed. The City often receives business license applications that are incomplete or have omitted information. According to Lacie Kloosterhof, Office Manager of the Community Development Division, the City’s practice is to contact the applicant and work with them to fill in the omitted information, as was the case with Bibs to Books Playhouse’s application after Appellant pointed out omissions in the original application. Because the zoning district does not determine eligibility for home-based, out-of-city-limits, and now day care business licenses, it is often left blank on applications and does not prevent processing or invalidate the license application. Check boxes on the application regarding changes to the business structure are primarily intended to put applicants on notice that they must obtain proper building, electrical, mechanical, plumbing, or sign permits. Regardless of whether the business license should have been issued on October 13, 2021 when the original application was received, all ministerial errors have been corrected and the business has a valid business license. Appellant also complains that the City’s decision to not charge day care operators for a business license application violates section 38.200.100. Again, the citation to Chapter 38 is inapplicable to business licenses4. However, even the provisions of Chapter 12 support the City’s decision to not charge a business license application fee to day care providers. “All business license fees are based on the costs of administering this chapter and the regulatory costs incurred.” 12.03.010, BMC. The regulatory costs of administering business licenses to day care providers are minimal because Administrative Rule 2021-01, as discussed below, waives inspections by City officials unless the City believes an inspection is reasonably necessary. Appellant notes that the City issued a business license to Bibs to Books Playhouse the same day that the application was received, which highlights the streamlined, minimal administration associated with processing day care business licenses. Notably, the costs of processing payment by the City’s finance department, staff costs associated with budgeting processes, and building and fire inspections in most cases are avoided in this streamlined process. Therefore, the City’s waiver of business license application fees for day care operators is reasonable. 3 See sections 12.02.050.A.2 and 12.02.060A.2, BMC. 4 But see section 12.02.060.A.4, BMC, which requires that “the [business license] application shall be accompanied by the full amount of the fees chargeable for such license.” 186 Page 7 of 12 City’s Adoption of Administrative Rule 2021-01 Was Improper: Appellant’s objections regarding the City’s adoption of Administrative Rule 2021-01 are summarized as: the City exceeded its scope of authority to adopt Administrative Rule 2021- 01 under 12.02.050.A.1 because a) the rule is not a reasonable rule or regulation necessary to the operation and enforcement of the business license chapter of the code and, rather, the City should have required Bibs to Books Playhouse to apply for a business license as a home based business as defined in section 38.700.090; and b) the City impermissibly denied the public the right to participate when it wrote and adopted Administrative Rule 2021-01. Finally, Appellant requests that the Commission “invalidate this unauthorized administrative rule and invalidate the subject business license, which the City improperly issued based on this rule,” pursuant to section 12.02.050.A.1, BMC. The City Commission intended the program administrator to make rules and adopt forms to implement the business license requirements in Chapter 12. Specifically, the program administrator is granted authority to “promulgate and enforce all reasonable rules and regulations necessary to the operation and enforcement of this chapter,” 12.02.050.A.1, BMC. Further, the program administrator is directed to “adopt all forms and prescribe the information to be given therein as to character…,” 12.02.050.A.2, BMC. Appellant argues that the City exceeded its rulemaking authority when it determined that a departure was warranted from the only three categories of businesses identified on business license applications prior to October 13, 2021 and that it should have rigidly required day care businesses to identify as a home-based business. However, notably, all of the prior three categories of businesses – Commercial Location, Home-Based Location, and Out of City Limits Location -- were likewise created administratively. Except for an unutilized definition of home-based business, Chapter 12 is silent as to categories of businesses and the administration of business licenses to each. Given this clear and express authority to promulgate rules and determine the information to be included in the application form in Chapter 12, Appellant’s argument that the City lacks authority to do so fails. The creation of a new category of business licenses and the associated revision of the business license application form was a proper exercise of administrative rulemaking authority. The City considered that there was no express exemption in state law or municipal code for group and family day care operators and ultimately conceded that day care operations should be required to obtain a business license. Then the City considered the inherent differences between day care businesses and home-based businesses, as discussed below. The City also researched and gave consideration to the extensive DPHHS regulations that licensed or registered day care operators must comply with that protect public health, welfare, and safety. Given the direct authority to promulgate administrative rules found in 12.02.050.A.1, the City decided to craft a business license rule for all day care operations 187 Page 8 of 12 that would strike a balance between the acute need for day care services and the City’s desire to require businesses of all kinds to obtain a business license. While the definition of a home based business may seem to describe a day care operating out of a residential dwelling, a plain reading of the regulations applicable to home-based businesses reveals that they are intended to regulate businesses that have characteristics that differ significantly from day care operations. For instance, “in general, an accessory home-based business is a use so located and conducted that the average neighbor, under normal circumstances, would not be aware of its existence with the exception of permitted signage…” 38.360.150.B.2, BMC. Further, there are several necessary conditions to conduct a home-based business as an accessory use, such as: permitting not more than one on-premises halftime nonresident employee; restricting the business portion of the dwelling to no more than 25 percent of the gross area of the structures; prohibiting an increase in use of utilities, including water and sewer; vehicular traffic flow and parking are restricted to no more than one additional vehicle at a time; and the home-based business must not create noise any greater or more frequent than usually experienced in an average residential occupancy under normal circumstances. See 38.360.150.B.3, BMC. The City considered requiring day care operators to obtain a business license as a home based business, but rejected the notion due to these significant differences. Day care operations, by their nature, generate traffic and parking in excess of one additional vehicle during pick up and drop off times and may create greater levels of noise from children playing outside. Day care operators likely use more than 25 percent of their home to care for children including kitchen facilities, sleeping rooms, and common areas for play spaces. Pursuant to DPHHS regulations, day care operators have staff to children or infant ratio requirements that would likely be in excess of one halftime nonresident employee. It is clear that home-based business regulations, if applied to day care operations, would result in a de facto prohibition on day care businesses in residential districts. Instead, the BMC expressly treats day care uses and home-based businesses in residential zoning districts differently. See 38.310.030.A and 38.310030.B, BMC. Group and family day care homes are a principal use in all residential zoning districts, pursuant to land use table 38.310.030.A. Home-based businesses are an accessory or special use in all residential zoning districts, pursuant to land use table 38.310.030.B. This distinction comports with state statutes that require: “a family day-care home or group day-care home … is considered a residential use of property for purposes of zoning,” group day care is “a permitted use in all residential zones, including but not limited to residential zones for single-family dwellings…,” and “a city or county may not require a conditional use permit in order to maintain a day-care home registered by the department of public health and human services.” Mont. Code Ann. § 76-2-412, 2021. 188 Page 9 of 12 Without citing any requirement in code or statute, Appellant appears to raise a procedural due process complaint. Appellant argues that “the creation of this new administrative rule behind closed doors creates a precedent that all City departments can create new rules and regulations that the community doesn’t even knows [sic] exists, as they are not subject to standard public notice, review and comment requirements or review and approval by the City Commission prior to the City’s internal enactment of an administrative rule.” While State agencies are subject to the provisions of the Montana Administrative Procedures Act (MAPA), which provides a process for public participation in agency rulemaking, MAPA does not apply to municipalities. Mont. Code Ann. § 2-4-101 et seq., see in particular the express exclusion of “a unit of local government” from the definition of “agency” in Mont. Code Ann. § 2-4-102(2)(b). There is no analogous provision in the BMC requiring a public process for administrative rule making. That the City Commission would provide authority to an administrator to promulgate reasonable rules without a public process makes sense because administrative rulemaking would have no distinction from enacting an ordinance otherwise. For the reasons set forth above, the City Commission should not invalidate Administrative Rule 2021-01 and should uphold the City’s decision to issue business license 21-69197. The City was reasonable in adopting a rule creating a distinct business license category for day care operations because day care operations are expressly distinct from home-based businesses and because imposing the requirements of home-based businesses on day care operations would lead to the absurd result of effectively prohibiting day care operations in residential zoning districts. The City did not impermissibly deny the public a right to participate in its adoption of Administrative Rule 2021-01 because no public process was required. APPEAL OF THE ADMINISTRATIVE DECISION: On October 27, 2021, the City received this appeal from Daniel Zyvoloski, pursuant to Section 12.02.190, BMC. Although the context of Chapter 12, when read as a whole5, insinuates that an appeal would be made by an applicant or licensee whose application is denied or whose license is suspended or revoked, the plain language of 12.02.190 states, “Any person aggrieved by any decision of the city manager shall have the right of appeal to the city commission…” (emphasis added). Whether Appellant is a “person aggrieved” is addressed in the Unresolved Issues section of this staff report, below. Staff reviewed the appeal application materials and, while it was novel for a person not related to the underlying business appeal the issuance of a license, found that the application met all submittal requirements for processing the appeal. The Appellant was notified on 5 See in particular the two sections that immediately precede the appeal provisions of Chapter 12, 12.02.170 and 12.02.180, BMC. 189 Page 10 of 12 November 19, 2021 that the appeal was complete and that a hearing on the appeal before the City Commission on December 14, 2021 was scheduled. APPEAL PUBLIC NOTICE: Notice of the appeal hearing was provided through publication of the City Commission’s agenda on the City of Bozeman website and hard copy notice posted in City Hall. APPEAL PUBLIC COMMENT: The City has received no comments regarding this appeal from the public at the time of writing this staff report. Any public comment received will be forwarded to the City Clerk’s office for Commission consideration. EVALUATION OF THE APPEAL AND PROCEDURE: The City Commission has the authority to hear this appeal pursuant to Section 12.02.190, BMC: Sec. 12.02.190. Appeal. A. Right of appeal. Any person aggrieved by any decision of the city manager shall have the right of appeal to the city commission by filing a written appeal with the city clerk within 20 days following the effective date of the action taken or the decision made. B. Contents of appeal. Such appeal shall set out a copy of the order or decision appealed and shall include a statement of the facts relied upon to avoid such action taken or decision made. C. Notification of city manager. At the time of filing any such appeal a copy thereof shall be filed by the appellant with the city manager. D. Hearing. The city commission shall fix a time and place for hearing the appeal and shall personally serve a written notice, as provided herein, upon the appellant informing the appellant thereof. The city commission shall also give such notice to the city manager and such officer shall be entitled to appear and defend such action taken or decision made. E. Effect of decision. The findings of the city commission shall be final and conclusive and shall be personally served upon the appellant as required herein. During the appeal, the Commission will first hear from City staff for an explanation of the application and nature of the appeal. Next, the Appellant will have an opportunity to present its position. Commissioners will have an opportunity to ask questions of City staff and Appellant. Then, the Commission will hear public comment regarding the appeal from any proponent or opponent. At the close of public comment, the Commission must consider the merits of the appeal, including considering motions, discussion, and taking a vote. 190 Page 11 of 12 UNRESOLVED ISSUES: 12.02.190.A, BMC, “Aggrieved Person” Standard: The right of appeal of a business license extends to “any person aggrieved.” While an “aggrieved person” is defined in the Unified Development Code (Chapter 38 of the BMC) pertaining to an “aggrieved person’s” ability to file an appeal of an administrative project decisions, no similar guidance is provided in Chapter 12 of the BMC pertaining to business license appeals. Often questions of standing involve an analysis of whether an appellant has a concrete, particularized and imminent injury. To ensure an expeditious hearing on the merits of this appeal, the City declines address whether this Appellant is an “aggrieved person,” but preserves the issue as an affirmative defense for any appeal of the City Commission’s decision. Code of Ethics Complaint: Appellant’s Supplement indicates that he will file a Code of Ethics complaint. The City Commission has no jurisdiction over code of ethics complaints and should not be considered as part of this appeal. See section 2.03.600.A.3, BMC. Note, however, that: The board does not have the authority to reverse or otherwise modify a prior action of the mayor, city commission, or an officer or employee of the city. If the board finds a prior action of the mayor, the city commission, officer or employee to have been ethically improper, the board may advise the appropriate party that the action should be reconsidered. Upon such advice by the board, the action shall be reconsidered by the appropriate person or public body. Section 2.03.620, BMC. ALTERNATIVES: The City Commission has the following alternative actions available: 1. Uphold the City’s decision to issue business license 21-69197. 2. Amend or modify the City’s decision to adopt Administrative Rule 2021-01 and issue business license 21-69197. 3. Overturn the City’s decision issue business license 21-69197. The decision may be amended or overturned upon making alternative findings to support the conclusion that the City’s decision was in error. FISCAL EFFECT: None. ATTACHMENTS: October 27, 2021 Appeal filed by Daniel Zyvoloski – submission materials and attachments December 2, 2021 Supplement to Administrative Appeal of Business License No. 21- 69197 for a Home-Based Daycare – submission material and attachments 191 Page 12 of 12 Record of Review: Business License 21-69197 issued to Bibs to Books Playhouse; Application for a business license submitted by Bibs to Books Playhouse; and Correspondence between the City and Appellant. The full appeal and file record are available to view by contacting the Community Development Division, 20 E. Olive, Bozeman, MT 59715. Please contact Lacie Kloosterhof at lkloosterhof@bozeman.net or 406-582-2954 to make arrangements to view the file. 192 October 27, 2021City of BozemanCity Commissionersc/o City Clerk, Mike Mass121 N. Rouse, Suite 201Bozeman, MT 59715RE: Administrative Appeal of Business License No. 21-69197 for a Home-Based DaycareDear City Commissioners:I have lived in Bozeman for 20 years and at my current address for 10 years. I'm a new father who isaware of the daycare shortage in Bozeman, and I believe that there isa proper place in our communityfor home-based daycares. I'm asking the City Commission to take an unbiased review of the City staff'sactions regarding the issuance of a business license to a home-based daycare that is clearly deficient andnot compliant with the Bozeman Municipal Code (BMC or Code).I am writing as the Appellant, residing with my family at 2108 Highland Ct., to appeal, in accordance withand pursuant to BMC § 12.02.190, the City of Bozeman's (City) administrative decision to issue onOctober 13, 2021, a business license (No. 21-69197) to Bibs to Books Playhouse (Applicant) for adaycare/preschool business located at 2107 Highland Ct. The evidence below and enclosed outlines howthe City's administrative staff incorrectly issued a business license in violation of the terms of the BMC.Per BMC, a principal purpose of the City's Code is to establish procedures (including for any permitteddepartures, deviations, or variances therefrom) for providing and preserving equitable implementationof the law to "prevent special treatment to particular parties ...." BMC § 38.250.010 (Purpose).The City recently determined that the subject home-based group daycare business is required to obtaina business license. The Applicant's business license application and the City's issued business license areenclosed for your review and reference.BMC § Sec. 38.200.100 (Permit issuance; conformity with regulations required) states that "No permit orlicense of any type will be issued unless the plans and application are in conformance with there&ylations contained within_this chapter//The following items were not completed on the Applicant's submitted business licensing application,and are highlighted for your reference on the enclosed business license application (No. 21-69197):• Zoning District was left blank• A selection of Home-Based Location vs. Commercial Location box was not selected• Selection for Construction Changes, Electrical Changes, ...etc. is not completed• The indication of No Charge was indicated and noted "per Kelley"This application was approved by the Planning Division on the same day it was submitted to the City, butdoes not conform to the City's regulations that govern the issuance of and compliance for business193 licenses, and further does not comply with the standard conditions required for permitted home-basedbusinesses, as set forth in BMC § 38.360.150. Do other businesses in the City get this sort offavoritism—to skip required selections, disregard applicable regulations, and thus bypass the City'srequired procedural reviews and further consideration of the additional permits that they may trigger?To preserve public trust, this business license application should have been reviewed_with a standard ofconduct that maintains fairness and follows the same impartial and transparent procedural review thatall other businesses in the City are required to comply by.The City defines a "home-based business" in BMC § Sec.38.700.090 as:"/tny business, occupation or activity undertaken for gain within a residential structure that isincidental and secondary to the use of that structure as a dwelling. Home based businesses are subjectto the requirements of this chapter."A for-profit home-based group daycare business that employs 2 people and cares for 12 children in asingle-family residence meets this definition.The City has recognized that home-based businesses can have an impact on residential neighborhoodsand dedicated an entire section in the BMC to regulate home-based business. The Code includes aSpecial Use Permit process that requires home-based businesses to apply for such a permit, withnecessary conditions for any allowed special use, if it will have an impact that is greater in scope or moreintrusive than the standard permitted home-based business. BMC § 38.360.150.C.The Appellant is asking that the City Commission reverse the City's decision to issue Business License No.21-69197 and require that the Applicant cease operating until it can obtain a business license that iscompliant with the BMC's applicable requirements, including the Applicant signing the City's Home-B^sed_B^usiness Acknowledeement Form and issuance by the City of a Specjal Use_Permit, as necessary,prior to being licensed as a home-based business.In sum, we are requesting that the City Commission require the Applicant's license application bereviewed by the City in an equitable manner that is consistent with the City's business licensingregulations, which all other non-exempt businesses are required to comply with.We are confident that the City Commission will recognize that its administrative staff's decisions andactions related to the City's issuance of the subject license created a clear violation of the City's Codeand by recognizing this fact, issue a ruling that requires that the Applicant become compliant with theBMC and obtain a properly issued home-based business license before it operates within the City.Per the BMC's appeal procedures, please schedule a public hearing before the City Commission to hearand issue a final decision within 45 days of this appeal.Respectfully,z^:Daniel Zyvoloski2108 Highland Ct.Bozeman, MT 59715194 •<ec: Jeff Mihelich, City Manager (USPS and email); Chuck Winn, Assistant City Manager (email); Martin Matsen,Director of Community Development (email); Greg Sullivan, City Attorney (email); Kelley Rischke, Assistant CityAttorney (email); Lara Guercio, Appellant Attorney (email)Enclosures: Map Description of the Applicant Property, Business License Application No. 21-69197, BusinessLicense No. 21-069197, Bozeman Planning: Home-Based Business Acknowledgement Form195 BOZEMANMTCity of BozemanSTIFF BUILDING20 East Olive Street, Bozeman, Montana 59715(406) 582-2260Account #NAICS #_21-^1^-?^^\u3 NEW BUSINESS (""j CHANGE OF BUSINESS LOCATION (12.02.070) |"~] TRANSFER OF OWNERSHIP (12.02.08C^~] RENEWAL ["] BUSINESS NAME CHANGE j""j MEDICAL MARIJUANA ExcePf Medical Marijuana)\^ >\^ ^o '\^w€^ "^\ o.^h^^ <-BUSINESS NAME.PHYSICAL BUSINESS ADDRESS^\ nl ^vCAhlOiAC\ CoMr*--^ "Brt^-j-^an m'c ^7/MAILING ADDRESS <3£»-_<(^\£ C^ (SV^O*^ ~cs~cirrSTBUS. TELEPHONE ''^CJ(S-C^9\ - <k?>1 & EMAIL ADDRESS V^^Y V^\ % 5 tYV^^ r C,rYZ\OWNERFULL LEGAL NAMEZLPZIPZONING DISTRICT.P^>c x /^^ x.rc^. L^vb <r < c> •~\- • y\ ^__ P^\ u.^ S> ^ i ^\ Oti^PRIMARY TELEPHONE H^c'~c:' ^ \~<:S'^>r1~^SECONDARY PHONECO- OWNER OR MAfiAGERFULL LEGAL NAME^ ^\( ^^f v ^ ^ ^ ^ v s -^'1 ^vfcL \—i n\pi ^ ^ \^cv. ^ e ^PRIMARY TELEPHONEL10 ^ C?'2)V C1 ^^ H SECONDARY PHONE.[V)^<yPo^e /-T^y<~e -S c.^\c-t3 \Tj""] HOME-BASED LOCATION - $50.00|_'"] OUT OF CITY LIMITS LOCATION - $50.00^ COMMERCIAL LOCATION - $50.00 (Co(^What is current use of property:jy of Driver's License Required with Application)Construction ChangesElecbical ChangesMechanical ChangesPlumbing ChangesNew or Relocated SignsNO YES IF YES, YOU WILL NEEDD 0 1~1 BuikJing Permit^ d a Electrical PermitC^ a ^ Mechanical Permitl'~l 0 D Plumbing PermitI") 0 D Sign PermitiF COMMERCIALEmergency Contact:PLEASE COMPLETEFire SuppressionSecurity AlarmMonitored By:NOYESaaPhone:# of Full Time Employees# of Part Time EmployeesEmail:^Other Emergency Informatfon:This application is made subject to the tenns of the Bozeman Municipal Code. I understand the license issued hereunder is NOT TRANSFERABLEexcept as provided in Chapter 12.02 BMC, and that the inflation I have supplied is correct to the best of my knowledge.^nuur. (xl^)^L/ba^ C^C-^.Lmp^.?^:? '>«/' /O/ / 3 / c;<)/FOR OFFICE USE ONLYZoningOccupancyConstructton TypeBuildingEngineeringFirePolicePtanntig (^OAJECONNEWS;^II^KA?a^<.' i';..'^A^,^^y.^ .••.';•':} '" '196 BOZEM^i.MTBUSINESS LICENSENO. 21-00069197$ 0.00GRANTED: October 13, 2021BEGINS: October 13, 2021EXPIRES: October 31, 2022THIS LICENSE is granted to:BIBS TO BOOKS PLAYHOUSE2107 HIGHLAND CTBOZEMANMT 59715406-581-8375The necessary application has been submitted and approved. The requiredbusiness license fee has been paid. Therefore, this license is issued subject to allthe terms and conditions of the Business License Ordinance of the BozemanMunicipal Code Sec. 12.01.010.This license is NOT TRANSFERABLE.By signing this license the owner agrees to conform to all requirements.Signature.BUSINESS LICENSE OWNER.........0^^^•••••-.;^••-•^?<»/^u;**«O.YIfvm^f"%•<V;••..1883<<,•<.-•:^•?••;.^.*•0^ftlco.DepartmentofCommunity Developmentbusinesslicenses@bozeman.net(406)-582-2260197 BOZEMANCommunity DevelopmentMTOctober 13, 2021BIBS TO BOOKS PLAYHOUSE2107 HIGHLAND CTBOZEMANMT 59715Dear Business Owner or Manager:Please find enclosed your Bozeman City Business License.Please sign this document immediately. By law it must be posted in apublic place.Thank you for complying with Bozeman Municipal Code 12.02.130.If you have any questions please feel free to call (406) 582-2260.Regards,Department of Community Development® 20 East Olive Street ® BozMian.MT 59771-1230 ® 406'582'2260 ! ©406-582-2263 www.bozeman.netTOD: 406-582-2301THE MOST LIVABLE PLACE.198 f.'-•i<».*(*"..ny*<J¥,<&^«.^u^>fe3%-•5:*L•o?;%o^^cI?ICBr\-'5*•t£:s.^-3»:t0)E"^^^l.^^y.rk-'<ss0'-•^aw^^•',1m.<s^^>/>-4••'Bu-£;;t,':\'•^w•!•%«^»:<ts.t•^Ki^ti•s^^Trs,^-•tv OK^N'•*fc"-:^:^Ky&.^.,^•(,^^-K'~^-<1~^€ir+-;Xs0'»>.s1^If<-0^•<LUc*,d«.«co,':\^'fc^^Q;^v•^-sc£*cnm'tes-w0^-Nt,te^.•AOTT•fr^vAKi^»-K5^*9^co I-t-\^<^.f^^53•*t^li1',^3<Q.'-^a'f"tE^".r~-^^».^<*t2^<•aicSt"n^^^Q^s^».»v<^Qu<^0s*)^1^•-<0 CDA»^m<k.W)tya.^<-s^ss^^.y^<-0%<"•^>/^?rI•(^-,'..I-^:ftsx»/*A«'^'*,•s.s-i.y-.^,••s-'s^^!.,'<-.',..^-f^^\*-5.-&•<»•,^<<^^^t,va>^^-»^^"<fl>.2*30h,^^^;<•r>>.i^.•••-JC..'-&,*1Ka.0x^m^w^^^0u>0w.df>ro^<5 u^'m«;<u.•*-U)••^vs;J2'•^i-*.sm^s^9!..*.i®00)y.c^';<c^<•^sr$^y0^'..-0sw7C^2 ^^^V.*\ca?f£\^*a.•i*^U)mft0^3v<»ma.199 BOZEMANPlanningMTHome-Base Business Acknowledgement FormCity ofBozeman, MontanaFinance OfficePO Box 1230Bozeman,MT 59715406.582.2327To the Community Development Director:I, the undersigned applicant for a Home-Based Business, do hereby certify that I haveread and understand the requirements and conditions of Chapter 38.360.140 of the Cityof Bozeman Zoning Ordinance and agree to abide by all said requirements whichregulate and limit the types and intensity ofhome-based businesses.ApplicantDateApplicant SignatureDateBusiness Name® 20 East Olive Street | ® ^^ ^ 59771-1230 I ® 406-582-2260 | © 406-582-2263www.bozeman.netTDD: 406-582-2301THE MOST LIVABLE PLACE.200 1 December 2, 2021 City of Bozeman City Commissioners c/o City Clerk, Mike Mass 121 N. Rouse, Suite 201 Bozeman, MT 59715 RE: Supplement to Administrative Appeal of Business License No. 21-69197 for a Home-Based Daycare Dear City Commissioners: Thank you for providing a hearing date and the opportunity for public review and consideration of this appeal on December 14, 2021. We look forward to presenting our case as to why the subject home- based for-profit daycare business should be properly licensed as a Home-Based Business by the City, in accordance with existing and applicable provisions of the BMC. This letter supplements our administrative appeal filed on October 27, 2021 and responds to the November 19, 2021 letter by the City Attorney’s Office (the “Nov. 19th City Letter”) regarding the City’s position on its issuance of the subject business license, enclosed for your reference. For background and context, I would first like to outline earlier correspondence with the City (enclosed for reference), including specific actions and formal decisions made by the City over the past several months regarding the issuance of a business license to the subject home-based daycare business, which relocated within the City’s limits to a location across from my family residence earlier this year. -On August 31, 2021, my attorney submitted a letter to the City of Bozeman’s Community Development Director indicating that this home-based daycare is violating the Bozeman Municipal Code (“BMC” or “Code”), as it had not applied for or obtained a City Business License, as required under the existing plain terms of the BMC’s business licensing provisions. -On September 21, 2021, after indicating that they were waiting for direction from the City Attorney’s Office, we received a formal letter from the Community Development Director stating “the City does not require any licensure of day care businesses beyond what is required by state law.” -On September 30, 2021, my attorney submitted a letter informing the City that we were planning to appeal the Community Development Director’s decision to the City Commission that the home-based daycare does not need to obtain a Business License. -On October 6, 2021, we filed a formal appeal per BMC § 12.02.190 with the City Clerk to go before the City Commission to challenge and appeal the decision by the City that a home-based daycare with two employees and 12 children does not need to obtain a Business License. At the time of our filing of this appeal, all Business License applicants were required to file their Business License Application for the City’s review, approval and license issuance as a Home-Based, Commercial or Out of City Limits Business. -On October 15, 2021, we received a letter from the Assistant City Attorney indicating that the daycare applied for and received a City Business License and that our “complaint has been resolved and the appeal is moot; therefore, no hearing date before the City Commission will be set.” The only enclosure to the City’s October 15th letter was a copy of the Business License issued by the City to the daycare on 201 2 October 13th, along with the City’s transmittal letter of this license to the business owner. The City’s rationale or justification for issuing the license was not provided as part of the October 15th letter. -Based on our review of the daycare’s Business License Application, which we requested and received from the Community Development Department, this application was incomplete, as it lacked required identification as to whether it was operating as “Home-Based”, “Commercial” or “Out of City Limits”. This designation is important, as it triggers applicable existing requirements, procedural review and potentially additional permits required under the BMC. Other deficiencies of this Business License Application and the City’s improper same-day issuance of a Business License to the daycare are further detailed in my October 27th appeal letter, which is the subject of the currently pending appeal scheduled for review by the Commission on December 14, 2021. -As later indicated in the Nov. 19th City Letter sent in response to my October 27th appeal letter, the City engaged with the Home-Based Business and instructed the subject business to leave the Home- Based Business checkbox blank, as the City was working on a new application and enacting a new rule specific to home-based daycares (Administrative Rule 2021-01), which first became effective the same day this business submitted and received approval of its Business License Application. Notably, even though we had a filed appeal pending, and this rule became effective on October 13, 2021. The City Attorney’s Office did not provide us with a copy of this new rule until November 19th, and only after the second appeal was filed on October 27th. Administrative Rule 2021-01 exceeds the City’s scope of authority per BMC § 12.02.050.A.1 (Administrative Duties) for creating “reasonable rules and regulations necessary to the operation and enforcement of this chapter [the BMC’s business licensing provisions].” This new rule goes far beyond the City’s limited authority to create administrative or ministerial rules and regulations required for the City to operate and enforce of the Code’s existing business license provisions, since the rule substantially changes the existing scope of the BMC’s Home-Based Business (“HBB”) provisions. By its definition in the Code (as excerpted below), a “group daycare home” falls squarely within the existing definition of HBB. As such, under the plain meaning of the BMC’s existing terms, the scope of the HBB provisions is already defined to include group daycare homes. There is no ambiguity or room for the City’s administrative interpretation that is necessary or required for its operation or enforcement of the City’s duly enacted business licensing chapter. Administrative Rule 2021-01 represents a substantial change to the Code and requires a formal amendment to the BMC, which cannot simply be made administratively by the City. The creation of this administrative rule behind closed doors creates a precedent that all City departments can create new rules and regulations that the community doesn’t even knows exists, as they are not subject to standard public notice, review and comment requirements or review and approval by the City Commission prior to the City’s internal enactment of an administrative rule. As defined in the BMC, “group daycare home” falls within the clear and plain meaning of “home-based business” as these two terms are already defined in the BMC. Specifically, “Day care home, group” is defined in BMC § 38.700.050 as a “private residence in which supplemental care is provided ….” As such, by its existing definition, a group day care home is primarily residential and home-based. There is no exception for a group day care home from the BMC’s definition of “home-based business” outlined in 202 3 BMC § Sec.38.700.0901 —so these home-based daycares must be reviewed under the Code’s existing provisions and standards applicable to all Home-Based Businesses. BMC § 12.02.050.A.1, which per the Nov. 19th City Letter provides the alleged basis for the City’s recent—but under the plain terms and scope of the existing applicable BMC provisions, unauthorized— enactment of Administrative Rule 2021-01, and further provides, “All rules are subject to commission review and modification.” We request the Commission invalidate this unauthorized administrative rule and invalidate the subject business license, which the City improperly issued based on this rule. We thank the City for concluding that this home-based daycare does require a Business License. We are currently in the process of obtaining information via the City’s public request process to obtain other Business Licenses that were issued to home-based daycares, including a home-based daycare operating in the Harvest Creek Subdivision with a Business License (but against HOA covenants) as recently as this year. However, we remain perplexed as to why the City was debating and needlessly expended City resources on this issue in the first place, especially after the Community Development Director stated that “the City does not require any licensure of day care businesses beyond what is required by state law” in his September 21, 2021 letter. Further, contrary to the factually incorrect statement in the its Rational & Intent for Administrative Rule 2021-01 that, “Historically, the City has not required day care businesses of any type to obtain a City business license to operate within City limits ….”—we note that the subject home-based daycare, Bibs to Books Playhouse, historically held a Business License issued by the City between 2001 and renewed it until 2005 (Business License # 56722) when it let this prior license lapse, as indicated by the City’s own publicly available records. The subject daycare then conducted business within City limits, but without a license, in violation of the BMC for 15+ years. The Administrative Rule 2021-01 also incorrectly states in its Rational & Intent that the City’s standard for determining whether a business located in City limits is exempted from local licensing requirements includes whether “the business is regulated by the State of Montana.” We will not fully restate our legal position here, which was previously outlined in detail in our earlier October 6th appeal letter. In short, the definition for “business” in BMC § 12.01.010 requires businesses to obtain a local Business License, unless specifically “exempted by state law or this chapter.” Our October 6th appeal letter identifies examples for medical marijuana businesses, plumbers, electricians, which the State of Montana also regulates along with daycares, but for whom the City requires local licensing. We further note that this earlier appeal was quickly dismissed as “moot” in the October 15th letter from the City Attorney’s Office, due to the City’s issuance on October 13th of a license to the subject daycare. As such, our first appeal filed on October 6th and requested hearing by the City Commission was conveniently sidelined. Additionally, we must point out that the statement in the Nov. 19th City Letter that, “Throughout the course of your correspondence with the City, Bibs to Books Playhouse has been in compliance with state regulatory requirements for daycare operations ….”, is factually incorrect and misleading. Focusing only on the Department of Health and Human Services’ (“DPHHS”) inspection and renewal reports filed and publicly available from DPHHS after the daycare relocated from its prior location within the City’s limits 1 As quoted in my October 27th appeal letter, the City defines a “home-based business” as, “Any business, occupation or activity undertaken for gain within a residential structure that is incidental and secondary to the use of that structure as a dwelling. Home based businesses are subject to the requirements of this chapter.” A for-profit, home-based group daycare business that employs 2 people and cares for 12 children (and publicly stated they plan to increase their capacity to 15) in a single-family private residence clearly meets this definition. 203 4 to 2107 Highland Court in the spring of 2021, we note significant deficiencies identified in DPHHS’s inspection reports . They include fire safety, building code, and caregiver health immunization issues., Further, we note that while our first formal complaint to the City regarding the subject daycare’s lack of a required business license was filed on August 31, 2021, we initiated informal, written correspondence with the City’s Code Enforcement Officer and Community Development Director regarding this matter on July 21, 2021. As such, the above noted DPHHS compliance issues arose during our correspondence with the City, which has extended over the past several months. We recognize that the City has an interest to support daycares, but as previously stated in our earlier correspondence, no new daycare opportunities were created by Bibs to Books Playhouse. This existing business simply moved locations, within the City limits, to opportunistically to take advantage of a favorable leasing arrangement provided by an absentee and out-of-state homeowner. If Bibs to Books Playhouse had remained properly licensed with the City after 2005, the City would have been notified of this fact, per BMC § 12.02.070 – Change of location. Based on the City’s actions and conduct to influence official decisions while appeals are pending before the City Commission, including those outlined above, a Code of Ethics complaint alleging improper government actions, as well as violations of the Standards of Conduct and Conflict of Interest requirements in the City and State Codes of Ethics laws will be filed. The formal complaint will be filed with the City Clerk, for review by the City’s Board of Ethics for a formal opinion. As the City Attorney’s Office is involved with the subject complaint, it will be recommended that the Board retain independent counsel or refer this case to the Commissioner of Politic Practices, as set forth in the State’s Code of Ethics. City officials, including the Commission, and City employees are all subject to the same ethics’ laws. At the December 14th hearing, the City Commission will also have an opportunity to recognize our appeal and remedy what will be presented to the Board of Ethics as alleged improper actions and conduct by the City. Respectfully, Daniel Zyvoloski 2108 Highland Ct. Bozeman, MT 59715 cc: Jeff Mihelich, City Manager (USPS and email); Chuck Winn, Assistant City Manager (email); Martin Matsen, Director of Community Development (email); Greg Sullivan, City Attorney (email); Kelley Rischke, Assistant City Attorney (email); Lara Guercio, Appellant Attorney (email) Enclosures: 8.31.21 – Complaint Letter to City Community Development Director (Business License Violation) 9.21.21 – Letter to Ms. Guercio from City (re: City Decision to not require business license for daycare) 9.30.21 – Reply Letter to City Community Development Director (re: Intent to Appeal re: Business License Decision) 10.6.21 – Letter to City Commissioners (c/o City Clerk) (Appeal of City Decision re: License) (with enclosures) 10.15.21 – Letter to Ms. Guercio from City Attorney’s Office (enclosing Business License issued to daycare) 11.19.21 – Letter to Mr. Zyvoloski from City Attorney’s Office (enclosing Administrative Rule 2021-01 204 205 Lara D. Guercio Crowley Fleck 1915 South 19th Avenue Bozeman, MT 59718 Re: Group Day Care (2107 Highland Court) Ms. Guercio: I have received your letter of formal complaint on behalf of your client regarding the group day care at 2107 Highland Court. The City also received an email from Mr. Zyvoloski on August 13, 2021. This letter responds to both communications. After consulting with the City Attorney and in accordance with our previous advice, the City of Bozeman disagrees that a business license is required to run an otherwise compliant group day care in a residential neighborhood within the City. Therefore, no violation of the Bozeman Municipal Code (BMC) has occurred. First, please be advised that group day cares are authorized in the State of Montana in any residential zone. See Mont. Code Ann. § 76-2-412. Additionally, the BMC addresses and regulates various kinds of daycare facilities in both residential and commercial zoning districts. The property at 2107 Highland Court is in a residential area zoned R-1. A group day care is a principal use in the R-1 zoning district, meaning it is fully permissible under City code. See 38.310.030, BMC. The City understands that not every house or neighborhood will be a good fit for a day care facility, which is in part why the code requires day care facilities to be either licensed or registered with Montana’s Department of Public Health and Human Services (DPHHS). Under DPHHS regulations, group day care facilities must provide proof of liability and fire insurance, minimum amounts of indoor and outdoor space for each child, and specific means of ingress and egress, among many other things. Next, the City generally requires a business to be licensed, unless the business is exempt pursuant to state law or by other provisions of the code. See 12.01.010.A.1, BMC. The State of Montana is the regulatory and licensing authority for many professions, including daycare businesses. The City does not require a business license for the practice of professions regulated by state law. Therefore, the City does not require any licensure of day care businesses beyond what is required by state law. DPHHS Registration requirements for family and group daycares share many similarities with licensure requirements for larger day care centers, including penalties for violations of state law. See Mont. Code Ann. § 52-2-741. 206 Page 2 of 2 Finally, we look forward to the continued involvement of all citizens on updates and edits to the municipal code. Citizens are notified of proposed changes to the municipal code in multiple ways: through the City’s website on City Commission agendas at www.bozeman.net/government/city-commission; by publication in the Bozeman Daily Chronicle legal ads; and by posting in City Hall. Unfortunately, due to the variety of issues and volume of interest on any given topic, it is not possible for the City to provide direct notice to you if the City proposes any changes in the future to municipal codes regarding day care facilities or business license requirements. Sincerely, Marty Matsen Director of Community Development c: Jeff Mihelich, City Manager 207 208 209 210 211 212 213 214 215 216 217 218 219 Greg Sullivan, City Attorney Bekki McLean, Chief Prosecutor Tim Cooper, Assistant City Attorney Jennifer Guittari, Assistant City Attorney Kelley Rischke, Assistant City Attorney Anna Saverud, Assistant City Attorney Kyla Murray, Prosecutor Edward Hirsch, Prosecutor Samantha Niesen, Prosecutor A 121 NORTH ROUSE AVENUE P.O. BOX 1230 BOZEMAN, MT 59771-1230 P 406-582-2309 F 406-582-2302 WWW.BOZEMAN.NET F TDD: 406-582-2301 THE MOST LIVABLE PLACE October 15, 2021 Lara D. Guercio 1915 South 19th Ave. Bozeman, MT 59718 RE: Group Day Care (2107 Highland Court) Dear Ms. Guercio: This letter responds to your response letter to Mr. Matsen dated September 30, 2021 and your letter appealing Mr. Matsen’s decision dated October 6, 2021. The daycare, Bibs to Books Playhouse, recently applied for and received a City of Bozeman Business License. I have provided a copy for your convenience. Your complaint has been resolved and the appeal is moot; therefore, no hearing date before the City Commission will be set. For clarification, Mr. Matsen’s reference to the daycare being “otherwise compliant” was with respect to zoning codes, which require registration with DPHHS. Bibs to Books Playhouse is compliant with DPHHS, properly registered with the state, and is in compliance with City zoning codes. The building code violation and the Stop Work Order issued in relation to the installation of egress windows at the day care was due to a mistake on the City’s part and was quickly remedied. An application for a building permit was submitted for the work, but City personnel mistakenly believed that the work was for a home on Highland Boulevard, not Highland Court. Highland Boulevard is outside city limits and the applicant was advised that a City of Bozeman building permit would not be required. As soon as the mistake was discovered, the applicant obtained a building permit. Since the day care business is apparently a separate entity from the auto detail shop and you have provided no evidence that Ms. Limpus has any responsibility for the auto detail shop, your assertions with regard to an auto detail shop operating without a license are irrelevant to the complaint pertaining to the day care. Fortunately, the day care now holds a business license and no further resources will be needlessly expended by either party. Sincerely, /s/ Kelley L. Rischke Kelley Rischke Assistant City Attorney 220 BOZEMANCity Attorney's OfficeMTGreg Sullivan, City AttorneyBekki McLean, Chief ProsecutorTim Cooper, Assistant City AttorneyJennifer Guittari, Assistant City AttorneyKelley Rischke, Assistant City AttorneyAnna Saverud, Assistant City AttorneyKyla Murray, ProsecutorEdward Hirsch, ProsecutorSamantha Niesen, ProsecutorNovember 19,2021Daniel Zyvoloski2108 Highland CtBozeman,MT59715SENT VIA: First Class Mail and Email to dan@kroenkeranches.comDear Mr. Zyvoloski,I received your letter appealing business license number 21-69197 issued to Bibs to BooksPlayhouse on October 13, 2021. I write to provide some additional information, correct someinaccuracies in your letter, and to inform you that a hearing, pursuant to Bozeman MunicipalCode 12.02.190, will be held on this matter before the Bozeman City Commission on December14, 20211. City Commission meetings begin at 6:00. The meeting will be held via WebEx. TheCity Clerk will make arrangements with you closer to the date of the hearing to ensure you havethe ability to give a presentation before the City Commission through WebEx. The appealprocedure will be as follows: City staff presentation- 10 minutes, followed by questions fromthe Commission; Appellant presentation -10 minutes, followed by questions from theCommission; public comment; Commission discussion and vote.First, your letter points out ministerial errors in Bibs to Books Playhouse's application for abusiness license, including failure to include the zoning district and to check some boxes on theapplication. It is not uncommon for applicants to inadvertently omit information on applicationsor uncommon for the City to work with applicants to obtain the omitted information. The Citycontacted the applicant and corrected the deficiencies you identified regarding applicant's failureto check boxes related to construction, electrical, mechanical, or plumbing changes and signs.As you know from our previous correspondence, the zoning district is R-l.Second, you complain that applicant failed to select home-based location, commercial location,or out of city limits location on her application. You incorrectly assume that Bibs to BooksPlayhouse is a home-based business as defined and regulated in the Bozeman Municipal Code.The City carefully examined requirements in code for home-based businesses and determinedthat group and family daycare businesses are sufficiently different from the types of businessesthat regulations for home-based businesses are meant to address. Therefore, the City determinedthat daycare businesses should have a separate and unique category of business license. The Citywrote an administrative rule to create the new category of business licenses for day carebusinesses, pursuant to its authority in section 12.02.050.A.1, BMC. I have enclosed a copy of1 A voicemail from you to Mike Maas, City Clerk, on November 15,2021 asserts that the appeal must be heldwithin 45 days. No such requirement is found in Chapter 12 of the Bozeman Municipal Code.121 NORTH ROUSE AVENUEP.O. BOX 1230BOZEMAN, MT 59771-1230@ 406-582-2309 (F) 406-582-2302WWW.BOZEMAN.NET•DD: 406-582-2301THE MOST LIVABLE PLACE221 M T Greg Sullivan, City AttorneyBekki McLean, Chief ProsecutorCity Attorney's Office Tim Cooper, Assistant City AttorneyKelley Rischke, Assistant City AttorneyAnna Saverud, Assistant City AttorneyKyla Murray, ProsecutorEdward Hirsch, ProsecutorSamantha Niesen, Prosecutorthe administrative rule for your convenience. The City is in the process of updating its businesslicense application form, which is why the applicant was instructed to leave blank thecheckboxes for home-based, commercial, or out of City limits location.In light of your assertion that favoritism is at issue here, please note the administrative rulewaives business license application fees for all day care businesses. The City also waivesbusiness license application fees for other types of businesses, such as plumbers and electricians.Business license fees must be based upon the cost of administering the business license program.Because the City determined that inspections should generally not be required for day carebusinesses due to the significant regulatory requirements imposed by the Montana Department ofPublic Health and Human Services, the cost to administer this category of business licenses isnominal. Therefore, the City determined that fees for day care businesses license applicationsshould be waived and included such a provision in the administrative rule.In an attempt to-address your concerns, the City extensively reviewed and carefully Graftedregulations that responded to your assertion that your neighbor must obtain a business license,while instituting reasonable regulations for all day care businesses. The regulatory parametersare reasonable, particularly in light of the shortage of day care providers and the negative impactthis shortage has on our local economy. Contrary to your assertion that the City showedfavoritism to this licensee, the City crafted regulations applicable to all day care providersequally.Throughout the course of your correspondence with the City, Bibs to Books Playhouse has beenin compliance with state regulatory requirements for day care operations governed by theDepartment of Health and Human Services. The business also complies with City zoningregulations, which allow this type of day care operation in all residential zoning districts. Thisbusiness is also currently compliant with the business licensing requirements of the BozemanMunicipal Code.After thorough consideration of your argument that day care businesses should be required tohave a business license, the City ultimately agreed. The business licensewas properly issuedand the City has determined that Bibs to Books Playhouse is not violating the BozemanMunicipal Code. We will be prepared to present the same during the appeal hearing before theCity Commission on December 14, 2021.Sincerely,^^-//&^^Kelley RischkeAssistant City Attorney121 NORTH ROUSE AVENUEP.O. BOX 1230BOZEMAN, MT 59771-1230406-582-2309406-582-2302WWW.BOZEMAN.NET•DD: 406-582-2301THE MOST LIVABLE PLACE222 BOZEMANCity Attorney's OfficeMTGreg Sullivan, City AttorneyBekki McLean, Chief ProsecutorTim Copper, Assistant City AttorneyJennifer Guittari, Assistant City AttorneyKelley Rischke, Assistant City AttorneyAnna Saverud, Assistant City AttorneyKyla Murray, ProsecutorEdward Hirsch, ProsecutorSamantha Niesen, Prosecutorec: Lara Guerico, attorney for Mr. Zyvoloski (via email to Lara Guerciolguercio@crowleyfleck.com and 1st class mail);JeffMihelich, City Manager;Chuck Winn, Assistant City Manager;Greg Sullivan, City Attorney;Marty Matsen, Director of Community Developmentenc.121 NORTH ROUSE AVENUEP.O. BOX 1230BOZEMAN, MT 59771-1230P) 406-582-2309406-582-2302WWW.BOZEMAN.NET-DD: 406-582-2301THE MOST LIVABLE PLACE223 Kelley RischkeFrom:Sent:To:Cc:Subject:Attachments:Kelley RischkeFriday, November 19, 2021 1:10 PMDaniel ZyvoloskiLara Guercio; Jeff Mihelich; Greg Sullivan; Martin Matsen; Chuck WinnAppeal of Business License111921 Itr to Zyvoloski re appeal.pdf; Admin Rule daycare business licensing.pdfMr. Zyvoloski,Please find correspondence attached.Sincerely,KelleyKelley Rischke | Assistant City AttorneyCity of Bozeman | 121 N. Rouse Ave. | Bozeman, MT 59715 | 406.582.2289BOZEMANCiiy Af'omc'ys Otiir:..-MTEmail sent to or from me can, in some circumstances, be considered privileged and/or confidential. Therefore, please do not read,copy or disseminate this communication unless you are the intended addressee. If you received this communication in error,please respond to this email and call me immediately at 406 582-2289.1224 BOZEMANCity Attorney's OfficeMTGreg Sullivan, City AttorneyBekki McLean, Chief ProsecutorTim Cooper, Assistant City AttorneyJennifer Guittari, Assistant City AttorneyKelley Rischke, Assistant City AttorneyAnna Saverud, Assistant City AttorneyKyla Murray, ProsecutorEdward Hirsch, ProsecutorSamantha Niesen, ProsecutorNovember 19, 2021Daniel Zyvoloski2108 Highland CtBozeman,MT59715SENT VIA: First Class Mail and Email to dan@kroenkeranches.comDear Mr. Zyvoloski,I received your letter appealing business license number 21-69197 issued to Bibs to BooksPlayhouse on October 13, 2021. I write to provide some additional information, correct someinaccuracies in your letter, and to inform you that a hearing, pursuant to Bozeman MunicipalCode 12.02.190, will be held on this matter before the Bozeman City Commission on December14, 2021 *. City Commission meetings begin at 6:00. The meeting will be held via WebEx. TheCity Clerk will make arrangements with you closer to the date of the hearing to ensure you havethe ability to give a presentation before the City Commission through WebEx. 'I'he appealprocedure will be as follows: City staff presentation- 10 minutes, followed by questions fromthe Commission; Appellant presentation -10 minutes, followed by questions from theCommission; public comment: Commission discussion and vote.First, your letter points out ministerial errors in Bibs to Books Playhouse's application for abusiness license, including failure to include the zoning district and to check some boxes on theapplication. It is not uncommon for applicants to inadvertently omit information on applicationsor uncommon for the City to work with applicants to obtain the omitted information. The Citycontacted the applicant and corrected the deficiencies you identified regarding applicant's failureto check boxes related to construction, electrical, mechanical, or plumbing changes and signs.As you know from our previous correspondence, the zoning district is R-l.Second, you complain that applicant failed to select home-based location, commercial location,or out of city limits location on her application. You incorrectly assume that Bibs to BooksPlayhouse is a home-based business as defined and regulated in the Bozeman Municipal Code.The City carefully examined requirements in code for home-based businesses and determinedthat group and family daycare businesses are sufficiently different from the types of businessesthat regulations for home-based businesses are meant to address. Therefore, the City determinedthat daycare businesses should have a separate and unique category of business license. The Citywrote an administrative rule to create the new category of business licenses for day carebusinesses, pursuant to its authority in section 12.02.050.A.1, BMC. I have enclosed a copy oflAvoicemailfromyouto Mike Maas, City Clerk, on November 15, 2021 asserts that the appeal must be heldwithin 45 days. No such requirement is found in Chapter 12 of the Bozeman Municipal Code.121 NORTH ROUSE AVENUEP.O. BOX 1230BOZEMAN, MT 59771-1230406-582-2309406-582-2302WWW.B02EMAN.NET•DD: 406-582-2301THE MOST LIVABLE PLACE225 ^MT Greg Sullivan, City AttorneyBekki McLean, Chief Prosecutorc"v A"ome^ offlce ^^S^S^ZKelley Rischke, Assistant City AttorneyAnna Saverud, Assistant City AttorneyKyla Murray, ProsecutorEdward Hirsch, ProsecutorSamantha Niesen, Prosecutorthe administrative rule for your convenience. The City is in the process of updating its businesslicense application form, which is why the applicant was instructed to leave blank thecheckboxes for home-based, commercial, or out of City limits location.In light of your assertion that favoritism is at issue here, please note the administrative rulewaives business license application fees for all day care businesses. The City also waivesbusiness license application fees for other types of businesses, such as plumbers and electricians.Business license fees must be based upon the cost of administering the business license program.Because the City determined that inspections should generally not be required for day carebusinesses due to the significant regulatory requirements imposed by the Montana Department ofPublic Health and Human Services, the cost to administer this category of business licenses isnominal. Therefore, the City determined that fees for day care businesses license applicationsshould be waived and included such a provision in the administrative rule.In an attempt to address your concerns, the City extensively reviewed and carefully craftedregulations that responded to your assertion that your neighbor must obtain a business license,while instituting reasonable regulations for all day care businesses. The regulatory parametersare reasonable, particularly in light of the shortage of day care providers and the negative impactthis shortage has on our local economy. Contrary to yom- assertion that the City showedfavoritism to this licensee, the City Grafted regulations applicable to all day care providersequally.Throughout the course of your correspondence with the City, Bibs to Books Playhouse has beenin compliance with state regulatory requirements for day care operations governed by theDepartment of Health and Human Services. The business also complies with City zoningregulations, which allow this type of day care operation in all residential zoning districts. Thisbusiness is also currently compliant with the business licensing requirements of the BozemanMunicipal Code.After thorough consideration of your argument that day care businesses should be required tohave a business license, the City ultimately agreed. The business license was properly issuedand the City has determined that Bibs to Books Playhouse is not violating the BozemanMunicipal Code. We will be prepared to present the same during the appeal hearing before theCity Commission on December 14, 2021.Sincerely,I^M^- Ji. /^^^Kelley RischkeAssistant City Attorney121 NORTH ROUSE AVENUEP.O. BOX 1230BOZEMAN, MT 59771-1230406-582-2309406-582-2302WWW.BOZEMAN.NET'DD: 406-582-2301THE MOST LIVABLE PLACE226 BOZEMANCity Attorney's Officeec:MT Greg Sullivan, City AttorneyBekki McLean, Chief ProsecutorTim Copper, Assistant City AttorneyJennifer Guittari, Assistant City AttorneyKelley Rischke, Assistant City AttorneyAnna Saverud, Assistant City AttorneyKyla Murray, ProsecutorEdward Hirsch. ProsecutorSamantha Niesen. ProsecutorLara Guerico, attorney for Mr. Zyvoloski (via email to Lara Guerciolguercio@crowleyfleck.com and 1st class mail);JeffMihelich, City Manager;Chuck Winn, Assistant City Manager;Greg Sullivan, City Attorney;Marty Matsen, Director of Community Developmentenc.121 NORTH ROUSE AVENUEP.O. BOX 1230BOZEMAN, MT 59771-1230@ 406-582-2309 (F) 406-582-2302 WWW.BOZEMAN.NFT•00:406-582-2301THE MOST LIVABLE PLACE227 228 BOZEMANCommunity DevelopmentMTAdministrative Rule 2021-01Chapter 12 BMC - Business LicensingRational & IntentMontana law favors allowing family and group day care homes in residential zoningdistricts and such uses are expressly considered a residential use of property. See Mont.Code Ann. § 76-2-412. City of Bozeman (City] zoning codes also provide that group andfamily day care businesses are a principal use in all residential zoning districts.38.310.030.A,BMC.The City generally requires a business license to conduct any business within City limits,unless it is exempt from licensure requirements pursuant to section 12.02.040, BMC, or thebusiness is regulated by the State of Montana.The State of Montana regulates day care providers. Day care centers are required to obtaina license from the Montana Department of Public Health and Human Services [DPHHS) tooperate while group day care and family day care operators are required to register withDPHHS. Licensed or registered day care providers are inspected annually by DPHHS toensure compliance with rules promulgated by DPHHS containing requirements that protectthe public health, welfare, and safety. DPHHS regulations address many items City officialswould inspect as part of the business license application.There is a shortage of day care providers in Bozeman. The provision of day care services,especially to the work force, is essential to the health of Bozeman's economy and thegeneral welfare of the community. Therefore, the City does not wish to impose additionalexpense or overly burdensome regulations on day care providers,Historically, the City has not required day care businesses of any type to obtain a Citybusiness license to operate within City limits even though a for profit day care meets thedefinition of a business in the BMC. Day care businesses are not among those businessesexpressly exempt from obtaining a business license in the BMC. Acknowledging the generalrequirement to obtain a business license, while recognizing the existing requirements instate regulation of day cares and the need for day care services in the City, I determine it isnecessary to require day care businesses to obtain a business permit, but to waiveapplication fees and inspection requirements for new licensees, unless the programadministrator believes inspection^) by City officials are reasonably necessary for codeenforcement purposes.(A) 20 East Olive Street j ®P.O.Box 1230Bozeman, MT 59771-1230(P) 406-582-2260 j (F) 406-582-2263www.bozeman.netTRD. 406-'i8?-7301THF MOST I IVARI F Pl AFF229 Page 2 of 2Definitions"Day care center," "Day care home, group," and "Day care home, family" are all definedterms in section 38.700.050, BMC.For the purpose of business licensing, a "business" is defined in section 12.01.010.A.1, BMC.RulesPursuant to rulemaking authority in 12.02.050.A.1 of the Bozeman Municipal Code [BMC],the Director of Community Development hereby promulgates Administrative Rule 2021-01regarding business licensing of day care businesses within the City of Bozeman.1. A business license is required to conduct a "day care center," "day care home, group," or"day care home, family" business within the City.2. The day care business must submit a business license application and provide the Citywith a copy of its current and valid license or registration with DPHHS, or other proof oflicensure or registration with DPHHS satisfactory to the City.3. Fees associated with applying for a business license, as required by section12.02.060.A.4, BMC, are waived for all types of day care businesses.4. Inspections by City officials for new license applicants are waived unless the programadministrator believes inspection[s] are reasonably necessary for code enforcementpurposes or to comply with DPHHS licensure or registration requirements.This Administrative Rule is hereby adopted and made effective by the CommunityDevelopment Director, October 13, 2021.\^i.latsenCommunity Development Director230 Kelley RischkeFrom:Sent:To:Cc:Subject:Kelley RischkeWednesday, November 17, 2021 9:19 AMLara GuercioChuck Winn; Martin Matsen; Greg Sullivan; Jeff Mihelich; Mike Maas; Daniel ZyvoloskiRE: Appeal of Business License # 21-69197Lara,I can assure you that nothing nefarious is going on. Please accept my apologies for the delay and understand that thedelay is largely caused by health issues experienced by both me and my boss in the past three weeks. I have a meetingscheduled with the City manager on Friday morning to discuss scheduling this matter before the City Commission. Ihave drafted a letter to your client that will convey the date as well as provide information that corrects certainmisinformation in his appeal letter and which may have a bearing on his decision to continue with this appeal.I appreciate your continued patience.Sincerely,KelleyKelley Rischke | Assistant City AttorneyCity of Bozeman | 121 N. Rouse Ave. | Bozeman, MT 59715 | 406.582.2289BOZEMANCity Aitowcy's OfficeMTEmail sent to or from me can, in some circumstances, be considered privileged and/or confidential. Therefore, please do not read,copy or disseminate this communication unless you are the intended addressee. If you received this communication in error,please respond to this email and call me immediately at 406 582-2289.From: Lara Guercio <lguercio@crowleyfleck.com>Sent: Wednesday, November 17, 2021 9:13 AMTo: Kelley Rischke <KRischke@BOZEMAN.NET>Cc: Chuck Winn <CWinn@BOZEMAN.NET>; Martin Matsen <MMatsen@BOZEMAN.NET>,· Greg Sullivan<gsullivan@BOZEMAN.NET>; Jeff Mihelich <jmihelich@BOZEMAN.NET>; Mike Maas <MMaas@BOZEMAN.NET>; DanielZyvoloski <dan@kroenkeranches.com>Subject: RE: Appeal of Business License # 21-69197CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize thesender and know the content is safe.iKelley,1231 I called the City Clerk's Office yesterday afternoon to check on the scheduling of the public hearing before the CityCommission for my client's appeal, as he filed it three weeks ago and had not received a notice regarding a hearingdate.I spoke with City Clerk Mike Maas and was surprised to learn the hearing had not been scheduled yet because you arehandling the scheduling of the hearing date for the City Clerk's Office.Since it currently appears within the scope of your work for the City Attorney's Office to delay our administrative appeal(during which time we suspect improper governmental action is taking place related to another questionableadministrative approval of the daycare's business aimed at mooting my client's appeal and denying his right toprocedural due process), please advise me at your earliest convenience regarding the date of the public hearing for myclient's appeal before the City Commission.Based on certain actions undertaken by the City at the likely direction of the City's Attorney Office acting in a quasi-judicial capacity following the filing of our prior appeal (including the limited review of the daycare's incompletebusiness license application and its administrative approval by the City on the same day that it was submitted), I trustthat you can appreciate our present concerns.LARA GUERCIO1915 South 19th AvenueBozeman, MT 59718Main: 406.252.3441 | Fax:406.256.0277Direct: 406.522.4517CROWLEY FLECK ^^^•••;-. li' : -i •.'WITH OFFICES IN MONTANA, NORTH DAKOTA, AND WYOMING:BILLINGS BISMARCK BOZEMAN BUHE CASPER CHEYENNE HELENA KALISPELL MISSOULA SHERIDAN WILLISTONNOTICE: This electronic mail transmission may constitute an Attomey-Client communication that is privilegedat law. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received thiselectronic mail transmission in error, please delete it from your system without copying it, and notify the senderby reply e-mail or by calling Crowley Fleck PLLP, 406-252-3441, so that our address record can be corrected.This email has been scanned for email related threats and delivered safely by Mimecast. For more informationplease visit http://www.mimecast.comFrom: Daniel Zyvoloski <dan@kroenkeranches.com>Sent: Wednesday, October 27, 2021 1:07 PMTo: Jeff Mihelich <imihelich@BOZEMAN.NET>Cc: Chuck Winn <CWinn@BOZEMAN.NET>; mmatsen@bozeman.net; Greg Sullivan <RSullivan@BOZEMAN.NET>; KelleyRischke <KRischke@B_OZEMANJ\[ET>; Lara Guercio <lRuercio@crowleyfleck.com>Subject: Appeal of Business License # 21-69197This message was received from an external email account. Please use caution when opening messages, attachments orexternal links from unknown senders.Dear City of Bozeman Staff,2232 Please find enclosed an appeal in accordance with 12.02.1900fthe Bozeman Municipal Code. A hard copy will be sent toMr. Mihelich and Mr. Maas as addressed below.CityofBozemanJeff Mihelich, City Manager121 N. RouseBozeman, MT 59715CityofBozemanCity Commissionersc/o City Clerk, Mike Maas121 N. Rouse, Suite 201Bozeman, MT 59715Thanks,DanDaniel Zyvoloskimobile 406.570.2716dan@kroenkeranches.com3233 Kelley RischkeFrom:Sent:To:Cc:Subject:Attachments:Daniel Zyvoloski <dan@kroenkeranches.com>Wednesday, October 27, 2021 1:07 PMJeff MihelichChuck Winn; Martin Matsen; Greg Sullivan; Kelley Rischke; Lara GuercioAppeal of Business License # 21-69197D. Zyvoloski Appeal Letter for Business License No. 21-69197 (DZ 10-27-21).pdf; MapDescription of Property (2107 Highland Ct.).pdf; Bibs to Books Playhouse_BL Application101321 (003).pdf; Bibs to Books Playhouse Business License No. 21-69197.pdf; HomeBase Business Acknowledgement Form.pdfL;SSlO-^M^~- A<r. Zs^t^K's ^^ m^^^fs CLrt prov,cte4 ^^^kt^ ^ 4^ 6^^:<CAUTION; This email originated from outside of the organization. Do not click links or open attachments unless you recognize thesender and know the content is safe.p^cle-e-t- ^Ln«i( Ka.vt not b£An rep^-o <7Lu-ce<^Dear City of Bozeman Staff,kin .Please find enclosed an appeal in accordance with 12.02.1900fthe Bozeman Municipal Code. A hard copy will be sent toMr. Mihelich and Mr. Maas as addressed below.CityofBozemanJeff Mihelich, City Manager121 N. RouseBozeman, MT 59715CityofBozemanCity Commissionersc/o City Clerk, Mike Maas121 N. Rouse, Suite 201Bozeman, MT 59715Thanks,DanDaniel Zyvoloskimobile 406.570.2716dan@kroenkeranches.com1234 Kelley RischkeFrom:Sent:To:Cc:Subject:Attachments:Kelley RischkeFriday, October 15, 2021 4:07 PMLara GuercioMartin MatsenComplaint and Appeal re: day care business license101521 Itrto Guercio re appeal of business license decision.pdf; Bibs to BooksPlayground Business License.pdfMs. Guercio,I hope your vacation was restful. Please find attached correspondence and an attachment related to your client, Mr.Zyvoloski's complaint and appeal.Sincerely,KelleyKelley Rischke | Assistant City AttorneyCity of Bozeman | 121 N. Rouse Ave. | Bozeman, MT 59715 | 406.582.2289BOZEMANCity AI'OT.<:','S Ottiv-'MTEmail sent to or from me can, in some circumstances, be considered privileged and/or confidential. Therefore, please do not read,copy or disseminate this communication unless you are the intended addressee. If you received this communication in error,please respond to this email and call me immediately at 406 582-2289.1235 BOZEMANCity Attorney's OfficeMTGreg Sullivan, City AttorneyBekki McLean, Chief ProsecutorTim Cooper, Assistant City AttorneyJennifer Guittari, Assistant City AttorneyKelley Rischke, Assistant City AttorneyAnna Saverud, Assistant City AttorneyKyla Murray, ProsecutorEdward Hirsch, ProsecutorSamantha Niesen, ProsecutorOctober 15, 2021Lara D. Guercio1915 South 19th Ave.Bozeman,MT59718RE: Group Day Care (2 107 Highland Court)Dear Ms. Guercio:This letter responds to your response letter to Mr. Matsen dated September 30, 2021 and yourletter appealing Mr. Matsen's decision dated October 6, 2021. The daycare, Bibs to BooksPlayhouse, recently applied for and received a City of Bozeman Business License. I haveprovided a copy for your convenience. Your complaint has been resolved and the appeal ismoot; therefore, no hearing date before the City Commission will be set.For clarification, Mr. Matsen's reference to the daycare being "otherwise compliant" was withrespect to zoning codes, which require registration with DPHHS. Bibs to Books Playhouse iscompliant with DPHHS, properly registered with the state, and is in compliance with City zoningcodes. The building code violation and the Stop Work Order issued in relation to the installationof egress windows at the day care was due to a mistake on the City's part and was quicklyremedied. An application for a building permit was submitted for the work, but City personnelmistakenly believed that the work was for a home on Highland Boulevard, not Highland Court.Highland Boulevard is outside city limits and the applicant was advised that a City ofBozemanbuilding pennit would not be required. As soon as the mistake was discovered, the applicantobtained a building permit. Since the day care business is apparently a separate entity from theauto detail shop and you have provided no evidence that Ms. Limpus has any responsibility forthe auto detail shop, your assertions with regard to an auto detail shop operating without alicense are irrelevant to the complaint pertaining to the day care.Fortunately, the day care now holds a business license and no further resources will beneedlessly expended by either party.Sincerely,lsi /f^ /: ^^Kelley RischkeAssistant City Attorney:A) 121 NORTH ROUSE AVENUEP.O. BOX 1230BOZEMAN, MT 59771-1230406-582-2309406-582-2302WWW.BOZEMAN.NETTDD: 406-582-2301THE MOST LIVABLE PLACE236 BOZEMANMTBUSINESS LICENSENO. 21-00069197GRANTED: October 13, 2021BEGINS: October 13, 2021$ 0.00EXPIRES: October 31, 2022THIS LICENSE is granted to:BIBS TO BOOKS PLAYHOUSE2107 HIGHLAND CTBOZEMANMT 59715406-581-8375The necessary application has been submitted and approved. The requiredbusiness license fee has been paid. Therefore, this license is issued subject to allthe terms and conditions of the Business License Ordinance of the BozemanMunicipal Code Sec. 12.01.010.This license is NOT TRANSFERABLE.By signing this license the owner agrees to conform to all requirements.Signature.BUSINESS LICENSE OWNER^Bo?^^^.••••••••:^•••'-^s:.-'^0^mT^7••„-:u7<-V•<";••..1883.-••^^•?••..:•••^0^A'co.DepartmentofCommunity Developmentbusinesslicenses@bozeman.net(406)-582-2260237 BOZEMANCommunity Development^MTOctober 13, 2021BIBS TO BOOKS PLAYHOUSE2107 HIGHLAND CTBOZEMANMT 59715Dear Business Owner or Manager:Please find enclosed your Bozeman City Business License.Please sign this document immediately. By law it must be posted in apublic place.Thank you for complying with Bozeman Municipal Code 12.02.130.If you have any questions please feel free to call [406) 582-2260.Regards,Department of Community Development® 20 East Olive Street j ®P.O.Box 1230Bozeman, MT 59771-1230(P) 406-582-2260 j © 406-582-2263 j www.bozeman.netTOD: 406-582-2301THE MOST LIVABLE PLACE.238 Kelley RischkeFrom:Sent:To:Cc:Subject:Attachments:Lara Guercio <lguercio@crowleyfleck.com>Wednesday, October 6, 2021 3:58 PMKelley Rischke; Martin MatsenJeff Mihelich; Greg Sullivan; Chuck Winn; Daniel ZyvoloskiRE: Business License Violation: Group Day Care (2107 Highland Court)Reply Ltrto M. Matsen re Business License Violation (9-30-21).pdfCAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize thesender and know the content is safe.Kelley - per my calculation and applicable filing requirements under the BMC, our appeal is due by next Monday10/11.In the reply letter sent last week to you and Marty (attached for everyone's reference), we said that we would "drop"the appeal based on certain conditions, but specifically did not say we wouldn't file it.I'm traveling out-of-state starting tomorrow and will be out of the office for the balance of this week and all next weekon a family vacation. So, that is why the appeal letter was filed today.I will have some limited remote availability next week, but will be back in Montana and the office on Monday 10/18.Thanks,Lara Guercio406.522.4517NOTICE: This electronic mail transmission may constitute an Attomey-Client communication that is privilegedat law. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received thiselectronic mail transmission in error, please delete it from your system without copying it, and notify the senderby reply e-mail or by calling Crowley Fleck PLLP, 406-252-3441, so that our address record can be corrected.This email has been scanned for email related threats and delivered safely by Mimecast. For more informationplease visit http://www.mimecast.comFrom: Kelley Rischke <KRischke@BOZEMAN.NET>Sent: Wednesday, October 6, 2021 3:37 PMTo: Lara Guercio <lguercio@crowleyfleck.com>; Martin Matsen <MMatsen@BOZEMAN.NET>Cc: Jeff Mihelich <jmihelich@BOZEMAN.NET>; Greg Sullivan <gsullivan@BOZEMAN.NET>; Chuck Winn<CWinn@BOZEMAN.NET>; Daniel Zyvoloski <dan@kroenkeranches.com>Subject: RE: Business License Violation: Group Day Care (2107 Highland Court)This message was received from an external email account. Please use caution when opening messages, attachments orexternal links from unknown senders.Dear Laura,1239 Your letter of September 30th requested a response from the City by October 15th before you would file an appeal. Ihave been reviewing this matter diligently since receipt of your last letter. Please help me understand why you havefiled this letter of appeal on October 6th, over a week earlier than your requested deadline in your previous letter.Thanks,KelleyFrom: Lara Guercio <lRuercio@crowleyfleck.com>Sent: Wednesday, October 6, 2021 3:18 PMTo: Martin Matsen <MMatsen@BOZEMAN.NET>Cc: Kelley Rischke <KRischke@BOZEMAN.NET>; Jeff Mihelich <imihelich@BOZEMAN.NET>; Greg Sullivan<RSullivan@BOZEMAN.NET>; Chuck Winn <CWinn@BOZEMAN.NET>; Daniel Zyvoloski <dan@kroenkeranches.com>Subject: RE: Business License Violation: Group Day Care (2107 Highland Court)CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize thesender and know the content is safe.Marty, please find attached a copy of the appeal letter, the original of which is being filed with the City Clerk and ahardcopy sent to Jeff's attention.Best regards,Lara Guercio406.522.4517NOTICE: This electronic mail transmission may constitute an Attorney-Client communication that is privilegedat law. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received thiselectronic mail transmission in error, please delete it from your system without copying it, and notify the senderby reply e-mail or by calling Crowley Fleck PLLP, 406-252-3441, so that our address record can be corrected.This email has been scanned for email related threats and delivered safely by Mimecast. For more informationplease visit http://www.mimecast.comFrom: Martin Matsen <MMatsen@BOZEMAN.NET>Sent: Tuesday, September 21, 2021 5:13 PMTo: Lara Guercio <lguercio@crowleyfleck.com>Cc: Kelley Rischke <KRischke@BOZEMAN.NET>; Jeff Mihelich <jmihelich@BOZEMAN.NET>; Greg Sullivan<gsullivan@BOZEMAN.NET>; Chuck Winn <CWinn@BOZEMAN.NET>Subject: RE: Business License Violation: Group Day Care (2107 Highland Court)This message was received from an external email account. Please use caution when opening messages, attachments orexternal links from unknown senders.Lara, Please see my formal response attached.Best Regards-MartyMARTY MATSEN, AICPDirector | Community DevelopmentCity of Bozeman2240 20 East Olive St. | P.O. Box 1230 | Bozeman, MT 59771Office: 406.582.2262 I Mobile: 406.589.5480 [ mmatsen@bQzeman.net I www.bozeman.netQ Planning Q Building d Historic Preservation d Code ComplianceFrom: Lara Guercio <lguercio@crowlevfleck.com>Sent: Tuesday, August 31, 2021 10:09 AMTo: Martin Matsen <MMatsen@BOZEMAN.NET>Cc: Daniel Zyvoloski <dan@kroenkeranches.com>Subject: Business License Violation: Group Day Care (2107 Highland Court)Marty, please find attached a copy of the formal complaint letter that I am filing today with the City regarding thesubject violation on behalf of my client.Respectfully,LARA GUERCIO1915 South 19th AvenueBozeman, MT 59718Main: 406.252.3441 | Fax:406.256.0277Direct: 406.522.4517C ROWLE YiFLECKATTORNEYSCiU.»R.WINU125 YEARSnrmimWITH OFFICES IN MONTANA, NORTH DAKOTA, AND WYOMING;BILLINGS BISMARCK BOZEMAN BUTTE CASPER CHEYENNE HELENA KALISPELL MISSOULA SHERIDAN WILLISTONNOTICE: This electronic mail transmission may constitute an Attorney-Client communication that is privilegedat law. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received thiselectronic mail transmission in error, please delete it from your system without copying it, and notify the senderby reply e-mail or by calling Crowley Fleck PLLP, 406-252-3441, so that our address record can be corrected.This email has been scanned for email related threats and delivered safely by Mimecast. For more informationplease visit http://www.mimecast.comCity of Bozeman emails are subject to the Right to Know provisions of Montana's Constitution (Art. II, Sect. 9) and maybe considered a "public record" pursuant to Title 2, Chpt. 6, Montana Code Annotated. As such, this email, its senderand receiver, and the contents may be available for public disclosure and will be retained pursuant to the City's recordretention policies. Emails that contain confidential information such as information related to individual privacy may beprotected from disclosure under law.City of Bozeman emails are subject to the Right to Know provisions of Montana's Constitution (Art. II, Sect. 9) and maybe considered a "public record" pursuant to Title 2, Chpt. 6, Montana Code Annotated. As such, this email, its senderand receiver, and the contents may be available for public disclosure and will be retained pursuant to the City's recordretention policies. Emails that contain confidential information such as information related to individual privacy may beprotected from disclosure under law.3241 4242 Kelley RischkeFrom:Sent:To:Cc:Subject:Attachments:Lara Guercio <lguercio@crowleyfleck.com>Wednesday, October 6, 2021 3:18 PMMartin MatsenKelley Rischke; Jeff Mihelich; Greg Sullivan; Chuck Winn; Daniel ZyvoloskiRE: Business License Violation: Group Day Care (2107 Highland Court)Appeal Ltr to Bzn City Commission re Business License Violation (10-06-21).pdfCAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize thesender and know the content is safe.Marty, please find attached a copy of the appeal letter, the original of which is being filed with the City Clerk and ahardcopy sent to Jeffs attention.Best regards,Lara Guercio406.522.4517NOTICE: This electronic mail transmission may constitute an Attorney-Client communication that is privilegedat law. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received thiselectronic mail transmission in error, please delete it from your system without copying it, and notify the senderby reply e-mail or by calling Crowley Fleck PLLP, 406-252-3441, so that our address record can be corrected.This email has been scanned for email related threats and delivered safely by Mimecast. For more informationplease visit http://www.mimecast.comFrom: Martin Matsen <MMatsen@BOZEMAN.NET>Sent: Tuesday, September 21, 2021 5:13 PMTo: Lara Guercio <lguercio@crowleyfleck.com>Cc: Kelley Rischke <KRischke@BOZEMAN.NET>; Jeff Mihelich <jmihelich@BOZEMAN.NET>; Greg Sullivan<gsullivan@BOZEMAN.NET>; Chuck Winn <CWinn@BOZEMAN.NET>Subject: RE: Business License Violation: Group Day Care (2107 Highland Court)This message was received from an external email account. Please use caution when opening messages, attachments orexternal links from unknown senders.Lara, Please see my formal response attached.Best Regards - MartyMARTY MATSEN, AICPDirector | Community DevelopmentCity of Bozeman20 East Olive St. | P.O. Box 1230 | Bozeman, MT 59771Office: 406.582.2262 I Mobile: 406.589.5480 I mmatsen@bozeman.net I www.bozeman.net1243 Q Planning C} Building Q Historic Preservation Q Coc/e ComplianceFrom: Lara Guercio <lguercio@crowleyfleck.com>Sent: Tuesday, August 31, 2021 10:09 AMTo: Martin Matsen <MMatsen@BOZEMAN.NET>Cc: Daniel Zyvoloski <dan@kroenkeranches.com>Subject: Business License Violation: Group Day Care (2107 Highland Court)Marty, please find attached a copy of the formal complaint letter that I am filing today with the City regarding thesubject violation on behalf of my client.Respectfully,LARAGUERCIO1915 South 19th AvenueBozeman, MT 59718Main: 406.252.3441 | Fax:406.256.0277Direct: 406.522.4517C ROWLE YCEtERR-^lNG125 YEARS0 - \ ?'' -• :'^WITH OFFICES IN MONTANA, NORTH DAKOTA, AND WYOMING;BILLINGS BISMARCK BOZEMAN BUTTE CASPER CHEYENNE HELENA KALISPELL MISSOULA SHERIDAN WILLISTONNOTICE: This electronic mail transmission may constitute an Attorney-Client communication that is privilegedat law. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received thiselectronic mail transmission in error, please delete it from your system without copying it, and notify the senderby reply e-mail or by calling Crowley Fleck PLLP, 406-252-3441, so that our address record can be corrected.This email has been scanned for email related threats and delivered safely by Mimecast. For more informationplease visit http://www.mimecast.comCity of Bozeman emails are subject to the Right to Know provisions of Montana's Constitution (Art. II, Sect. 9) and maybe considered a "public record" pursuant to Title 2, Chpt. 6, Montana Code Annotated. As such, this email, its senderand receiver, and the contents may be available for public disclosure and will be retained pursuant to the City's recordretention policies. Emails that contain confidential information such as information related to individual privacy may beprotected from disclosure under law.2244 C ROW L EYFLECKATTORNEYSLARA D. GUERCIO1915 South ! 9th AvenueBozeman,MT59718PHONE: 406-522-4517FAX: 406-256-0277lguercio@crow1eyfleck.comOctober 6, 2021City ofBozemanCity Commissionersc/o City Clerk121 N. Rouse, Suite 201Bozeman,MT59715Re: Business License Violation: Group Day Care (2107 Highland Court)Dear City Commissioners:I am writing on behalf of my client, Daniel Zyvoloski, who resides with his family at 2108Highland Court, to appeal, in accordance with and pursuant to BMC § 12.02.190, the City ofBozeman's decision in a letter sent on September 21, 2021 by Mr. Matsen, Director ofCommunity Development (referred to herein as the "City Decision Letter" and a copy of whichis enclosed herewith). The City Decision Letter outlines three main reasons as to why the Citybelieves that group day-cares should be exempt from obtaining a local business license,including the subject group day-care business, which is currently operating from the residencelocated at 2107 Highland Court and across the street from my client's home. Our continuedposition is that a business license is required for the operation of the subject day-care, due to thefact that no applicable exemption to such licensing exists under state law or the BMC.The City Decision Letter first references the compliance of the group day-care home at 2107Highland Court, However, without first obtaining a building permit from the City, the day-careoperator recently installed egress windows in the basement of 2107 Highland Ct., a structuralalteration required for its day-care facility to comply with § 37.95.705 of the AdministrativeRules of Montana. The City issued a Stop Work Order on September 21, 2021, which wasignored by the contractor and day-care operator. Also, as referenced in Mr. Zyvoloski's s earliere-mail to the City, the day-care operator moved its pre-existing operation to the current locationat 2107 Highland Ct., so that they could also operate an auto detail business at their current homeaddress. This home-based auto detailing business was operated without a license, and itscontinued non-compliance with the BMC was enforced earlier this year by the City's CodeCompliance Officer. In sum, the day-care operator already has a track record of non-compliancewith BMC, via multiple existing violations to date.BILLINGS BISMARCK BOZEMAN BUTTE CASPER CHEYENNE HELENA KALISPELL MISSOULA SHERIDAN WILLISTONCROWLEYFLECK.COM245 City CommissionersOctober 6, 2021Page 2Second, the City Decision Letter references the zoning of the residential neighborhood where thesubject day-care business (which is currently registered with the Montana Secretary of State'sOffice as a general for-profit corporation) is currently located, But, this is a moot issue as to theCity's business licensing, since all businesses, including Home Based Businesses, unlessspecifically exempted, are required by the BMC to obtain a business license, regardless of zoningdesignation, within the City's limits.However, the City's zoning is relevant to the number of children that the group day-care servesand plans to serve at 2107 PIighland Ct. As noted in the City Decision Letter, MCA § 76-2-412considers "a day-care homes serving 12 or fewer children" a permitted use in all residentialzones. The tenant day-care operator publicly stated at a meeting with multiple neighbors and in aletter supplied by the homeowner earlier this year that they plan to increase the number ofchildren the day-care serves to 15. S.B. No. 142 (passed earlier this year and effective 10/1/21)revised the definition of "group day-care home" in MCA § 52-2-703 to allow it to provide carefor up to 15 children. This revision is specific and limited to the Montana Child Care Act (MCA§§ 52-2-701 efseq.), which includes requirements for day-care registration and licensing.Notably, and applicable here, S.B. No. 142 made no revisions to MCA 76-2-412. Further, theBMC's definition of "group day care home" also limits it to serving up to 12 non-residents. Assuch, a group day-care serving more than 12 children at 2107 highland Ct. (located in the R-ldistrict) would not be in compliance with the BMC or permitted by state law in regard to zoning.Third, the City Decision Letter references BMC § 12.01.010.A.1, which is restated in full below.However, the City has yet to identify where in the BMC or in state law that group day-cares areexempted from the requirement of obtaining local business licenses,"Business" is meant to include all kinds of vocations, occupations, professions,enterprises, establishments, and all other kinds of activities and matters, togetherwith all devices, machines, vehicles and appurtenances used therein, any of whichare conducted for private profit, or benefit, either directly or indirectly, on anypremises in this city, not exempted by state law or this chapter. (Emphasis added),Relatedly, the City Decision Letter states that, "The City does not require a business license forthe practice of professions regulated by the state." However, from our review of the City'scurrent business licensing website, its business license application, and Chapter 12 of the BMC,local business licenses are required for many businesses which are "regulated by the State ofMontana, ranging from plumbers and electricians to medical marijuana businesses. Notably,marijuana businesses are heavily "regulated" by Montana, including under the MontanaMarijuana Act (MCA § 50-46-301 et seq.). PIowever, the City specifically calls out thesebusinesses as requiring local business licenses on the City's current business license application.The correct and applicable legal standard for whether a business is "exempted by state law" fromhaving to file for and obtain a local business license is whether the occupation or profession isspecifically exempted from the imposition of a municipal license fee or license tax. Many suchexpress exemptions (or municipal license fee/tax prohibitions) are specifically set forth underMCA Title 37 (Professions and Occupations), including but not limited to: Architects; Attorneys;i246 City CommissioiiersOctober 6, 2021Page 3Barbers/Cosmetologists; Dentists; Dental Hygienists; Insurance Agents; Physicians; Real EstateBrokers; and Veterinarians, However, to the best of our luiowledge, which is based on recent anddetailed legal research on this issue—no local business license exemption for ChildcareProviders or Day-Care Operators exists under ^4ontana state law. And while group day-cares arerequired to hold a "registration certificate" issued by the Montana Dept. of Health and HumanServices under the Montana Childcare Act, codified in MCA Title 52, there is no existing stateexemption for these day-care businesses from local licensing requirements.Finally, other cities in Montana, such as Great Falls and Missoula, specifically call out on theirbusiness licensing website or licensing application that day-cares must, like all other non-exemptbusinesses, apply for local business licenses (and are subject to applicable fees).Per separate correspondence sent to the City on September 1, 2021,1 have stated, on behalf ofmy client, that we are willing to drop this appeal if the City can specifically reference for us byOctober 15, 2021 where an existing exemption to local business licensing exists in the BMC orstate law, which is clearly applicable to a for-profit, group day-care business (and subject to ourfurther review of the legal merits of any such referenced exemption).We are hopeful that the City will not elect to needlessly spend taxpayer dollars defending itscurrent position, which to our current knowledge is not reinforced, suppoiled or defined byapplicable state law or the City's code. However, if the City elects to defend its position set forthin the City Decision Letter, we hereby request a public hearing before the City Commission andyour further review and related findings regarding the City's subject decision.Respectfully,'^^j2-^LARA D. GUERCIOec: JeffMihelich, City Manager (USPS and email); Chuck Winn, Assistant City M^anager(email); Martin Matsen, Director of Community Development (email); Greg Sullivan, CityAttorney (email); Kelley Rischke, Assistant City Attorney (email); Daniel Zyvoloski (email)Enclosures: City Decision Letter; Letter to M. Matsen re Business License Violation (8-31-21);Email to City from D. Zyvoloski (8-12-21); Public Comment to City from D. Zyvoloski (7-2-21)247 BOZEMANMTCommunity DevelopmentLara D. GuercioCrowley Fleck1915 South 19th AvenueBozeman, MT 59718Re: Group Day Care (2107 Highland Court)Ms. Guercio:I have received your letter of formal complaint on behalf of your client regarding the groupday care at 2107 Highland Court. The City also received an email from Mr. Zyvoloski onAugust 13, 2021. This letter responds to both communications. After consulting with theCity Attorney and in accordance with our previous advice, the City of Bozeman disagreesthat a business license is required to run an otherwise compliant group day care in aresidential neighborhood withini the City. Therefore, no violation of the BozemanMunicipal Code [BMC) has occurred.First, please be advised that group day cares are authorized in the State of Montana in anyresidential zone. See Mont. Code Ann. § 76-2-412. Additionally, the BMC addresses andregulates various kinds ofdaycare facilities in both residential and commercial zoningdistricts. The property at 2107 FIighland Court is in a residential area zoned R-l. A groupday care is a principal use in the R-l zoning district, meaning it is fully permissible underCity code. See 38.310.030, BMC. The City understands that not every house orneighborhood will be a good fit for a day care facility, which is in part why the coderequires day care facilities to be either licensed or registered with Montana's Departmentof Public Health and Human Services (DPHHS). Under DPHHS regulations, group day carefacilities must provide proof of liability and fire insurance, minimum amounts of indoorand outdoor space for each child, and specific means of ingress and egress, among manyother things.Next, the City generally requires a business to be licensed, unless the business is exemptpursuant to state law or by other provisions of the code. See 12.01.010.A.1, BMC. The Stateof Montana is the regulatory and licensing authority for many professions, includingdaycare businesses. The City does not require a business license for the practice ofprofessions regulated by state law. Therefore, the City does not require any licensure ofday care businesses beyond what is required by state law. DPHHS Registrationrequirements for fainily and group daycares share many similarities with licensurerequirements for larger day care centers, including penalties for violations of state law. SeeMont. Code Ann. § 52-2-741.@ 20 East Olive Street ®TDD^ 406-582-2301P.O. Box 1230Bozeman, MT 59771-1230(P) 406-582-2260 (F) 406-582-2263 www.b07emon.netTHE MOST LIVABLE PLACE.248 Page 2 of 2BOZEMANCommunity DevelopmentMTFinally, we look forward to the continued involvement of all citizens on updates and editsto the municipal code. Citizens are notified of proposed changes to the municipal code inmultiple ways: through the City's website on City Commission agendas atwww.bozctnan.net/governmcnt/city-commission; by publication in the Bozeman DailyChronicle legal ads; and by posting in City Hall. Unfortunately, due to the variety of issuesand volume of interest on any given topic, it is not possible for the City to provide directnotice to you if the City proposes any changes in the future to municipal codes regardingday care facilities or business license requirements.Sincerely,^zMarty MatsenDirector of Community Developmentc:JeffMihelich, City Manager® 20 East Olive Street ®P.O.Box 1230Bozeman, MT 59771-1230(P) 406-582-2260 | (F) 406-582-2263 | www.bo7eman.netTOD. 406-582-2301THE MOST LIVABLE PLACE.249 C ROW L EYFLECKATTORNEYSLARA D. GUERCIO1915 South 19th AvenueBozeman, MT 59718PHONE; 406-522-4517FAX: 406-256-0277lgiiercio@crowleyfleck, comAugust 31,2021City ol'BozemanMartin MatsenDirector of Community DevelopmentP.O. Box 1230Bozeman,MT 59771Re: • Business License Violation: Group Day Care (2107 Mighland Court)Dear Mr. M:atsen:I am writing on behalf of my client, Daniel Zyvoloski, who resides with his family at 21.08Highland Court, to file a formal complaint against the operators of a coinmereial group day carefacility located at 2107 Highland Court, which is presently and has been operating for severalmonths now from this location without a business license. As such, the subject group day careoperator and facility is operating out of compliance with Section 12.02.010 of the Code.We have reviewed the Code, including its business licensing requirements and exemptions, aswell as for any applicable state law exemptions. Prom the text of the Code and applicable statelaw, the subject group clay care is clearly no/ exempt from local business license requirements.We are filing the present complaint under Section 12.02.240 of the Code to request that aninvestigation of this violation and appropriate action be taken under Chapter 12 of the Code.Please advise us of the City's formal decision regarding this matter at your earliest convenience.Additionally, since my client and his neighbors woiild be specifically affected, we request directnotice regarding aiiy changes proposed by the City to the Code applicable to day cares, includingSections 12,02.040 (Exemptions) and 38.700.050 (Definitions).iYours truly,^^LARA D, GUERCIO)^^^tiec: JeffMihelich, City Manager (by USPS); Daniel Zyvoloski (by email)BILLINGS BISMARCK BOZEMAN BUTTE CASPER CHEYENNE HELENA KALISPELL MISSOUL^ SHEFltDAN Wll-LISTONCROWLEYFLECK.COM250 Lara GuercioFrom:Sent:To:Subject:Attachments:Lara GuercioWednesday, October 6, 2021 2:47 PMLara GuercioFW: Group day-care at 2107 Highland Ct,Thank you for your public comment.!!1siFrom: Daniel Zyvoloski <dan@kroenkeranches.com>Sent: Thursday, August 12, 2021 4:00 PMTo: Martin Matsen <MMatsen@BOZEMAN.NET>; Lara Guercio <lguercio@crowleyfleck.com>Cc; Kelley Rischke <KRischke@BOZEMAN.NET>; Mark Carpenter <MCarpenter@BOZEMAN.NET>; Anna Rosenberry<ARosenberry@BOZEMAN.NET>; Jeff Mihelich <jmihelich@BOZEMAN,NET>; Chuck Winn <CWinn@BOZEMAN.NET>;Teri,Whitesitt@mt,gov; Greg Sullivan <gsullivan@BOZEMAN.NET>Subject; RE: Group day-care at 2107 Highland Ct,This message was received from an external email account. Please use caution when opening messages, attachments orexternal links from unknown senders.Dear Ail,Thank you for your time and consideration regarding this important issue, I wanted to provide some additionalbackground information, as we have decided to move forward with a formal complaint to the city regarding the non-compliance of the daycare business located at 2107 Highland Ct, To save the city time and resources, a group ofneighbors decided to move forward with one formal proceeding, represented by myself and Ms, Guercio, Also enclosedis my submission to the city commission dated July 2nd regarding this issue, It is my understanding that there wereadditional letters sent to the commission regarding this topic as well.First, 11 surrounding neighbors communicated (via multiple letters and neighborhood meetings) with the homeownerand the daycare operator who leases the property concerning a 12-15 child daycare at this location. None of theneighbor's concerns have been addressed or considered.Second, we are all aware of the daycare shortage in Bozeman and look forward to working with the city to find the rightbalance. As Ms. Whitesitt can confirm, this is not a new daycare. It was in operation at another location in the city priorto moving to its present location; thus, no more or new local daycare opportunities were created here, The daycare wasmoved to Highland Ct, so they could open a commercial auto detail shop at the previous residential location. I informedMr. Carpenterof the violation, and as a result of laws in the Bozeman Municipal Code, the business is no longer inoperation.Third, as a new father, I'm personally motivated by the amount oftraffic/parking issues that create a safety issue directlyin front of my house for my family. I believe that home-based daycares can be a solution in Bozeman, but in order forthem to be successful, they need to fit into the residential neighborhoods in which they are proposed to be located,based on feedback and input from their neighbors, who share the impact. Every house or residential neighborhood inBozeman will not be a good fit for a 15-child, home-based daycare,After researching Bozeman's Community Planning documents, I found that neither daycares specifically nor childcare ingeneral were ever mentioned. If the city is going to be a part of the daycare solution, it will need to figure out how tosuccessfully incorporate them into the city's planning and growth policies, rather than ignore related community issues,particularly where located in residential neighborhoods,1ij251 The Bozeman Municipal Code states that: "Business" is meant to include all kinds of vocations, occupations,professions, enterprises, establishments, and all other kinds of activities and matters, together with all devices,machines, vehicles and appurtenances used therein, any of which are conducted for private profit, or benefit, eitherdirectly or indirectly, on any premises in this city, not exempted by state law or this chapter. The Code goes on thelist specific Exemptions per 12.02.040, but it does not exclude daycare businesses,A home-based daycare with 12-15 kids is definitely a business. It is not exempted by any state or local laws from.business licensing requirements, and it requires a commercial liability insurance policy.We are not asking the city to impose any additional regulatory requirements on home-based daycares, as Mr. Matsenindicated below. We are asking the city to enforce the codes that already exist.Respectfully,Daniel Zyvoloski406-570-2716IiI]:I:i ?1:2i I-252 Lara GuercioFrom:Sent:To;Subject;agenda@bozeman.netFriday, July 2, 20212:17 PMDanzyvo@hotmail.comThank you for your public comment,A new entry to a form/survey has been submitted.Form Name; Public Comment FormDate & Time: 07/02/2021 2:16 PMResponse ft; 1132Submitter ID; 39994IP address: 2600:6c67;5000:64c5;f9d2;lf5f:e64e;13aaTime to complete; 5 min., 10 sec.Survey Details•;Page 1Public comment may be submitted via the form below, or by any of the following options.Public comment may also be given at any public meeting.t»Email:aeenda@bozeman.netiiMail to;;I1Attn; City CommissionPO Box 1230Bozeman, MT 59771First NameLast NameEmail AddressPhone NumberCommentsDear Commissioners,DanielZyvoloskidanzyvo@hotmail.com4065702716iII am writing this letter to ask the commission to adopt an ordinance or revision to the Bozeman Municipal code that wouldallow residents of Bozeman to participate in the review of Group Day Care Home locations. This issue is significant given thej1253 firecent passage of SB 142 that will allow for up to 15 children in a Group Day Care Home compared to the old and currentlimitation in the Bozeman Municipal Code that only allows for up to 12 children. Thus, an update to the Bozeman MunicipalCode will be needed to reflect new state law and would provide an opportunity for citizens to participate in a process thatallows for public participation.Currently, all dwellings or households in any zoning district are allowed to operate a Group Day Care Home with 12 childrenwithout any notice to neighbors or permits issued by the city of Bozeman. The intent and purpose of Bozeman Zoning Is to"respect the character and quality of the designated area", Public participation allows Bozeman residents to support andhave a voice In that purpose.Our neighborhood that is Zoned Rl had a Group Day Care Home operation open for business a few months back. 15 children |being dropped off and picked up each day results In up to 600 additional cars per month (15 drop-offs x 15 pickups x 20business days). This is a significant impact to a street and neighborhood that has no sidewalks and receives minimal snowremoval.If a neighbor wants to have a chicken or more than two dogs. It must obtain a permit and notify the neighbors of theproposed plans. This process allows for tax-paying residents of Bozeman to have a voice in how their neighborhood Isshaped. If neighbors are concerned, they have a process by which they can voice their concerns or find solutions.Additionally, Illegal daycare operations are currently an issue the city of Bozeman is dealing with. The state of Montana whoIs supposed to be providing oversight, lacks any enforcement capability. The lack of defined enforcement creates a situationwhere children's safety is put at risk. If Group Day Care Home's within Bozeman limits are required to obtain a basic permit,then the city could provide a level of oversite and safety that is currently not available. :Thank you for your time and consideration. I advocate that this issue be brought up for discussion at an upcomingcommission meeting.If you would like to submit additional documents (,pdf, .doc, .docx, ,xls, .xlsx, .gif, ,jpg, .png, .rtf, .txt) along with yourcomment, you may alternately address agenda@bozeman.net directly to ensure receipt of all information.Thank you,City Of BozemanThis is an automated message generated by Granicus. Please do not reply directly to this email,2254 Kelley RischkeFrom:Sent:To:Cc:Subject:Attachments:Lara Guercio <lguercio@crowleyfleck.com>Thursday, September 30, 2021 2:01 PMMartin MatsenKelley Rischke; Daniel ZyvoloskiRE: Business License Violation: Group Day Care (2107 Highland Court)Reply Ltr to M. Matsen re Business License Violation (9-30-21).pdfCAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize thesender and know the content is safe.Good afternoon Marty. Please find attached our formal reply letter. Please let Dan and me know if you or Kelley haveany questions.Best regards,Lara Guercio406.522.4517NOTICE: This electronic mail transmission may constitute an Attorney-Client communication that is privilegedat law. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received thiselectronic mail transmission in error, please delete it from your system without copying it, and notify the senderby reply e-mail or by calling Crowley Fleck PLLP, 406-252-3441, so that our address record can be corrected.This email has been scanned for email related threats and delivered safely by Mimecast. For more informationplease visit http://www.mimecast.comFrom: Martin Matsen <MMatsen@BOZEMAN.NET>Sent: Thursday, September 23, 2021 4:33 PMTo: Daniel Zyvoloski<dan@kroenkeranches.com>; Lara Guercio <lguercio@crowleyfleck.com>Cc: Kelley Rischke <KRischke@BOZEMAN.NET>Subject: RE: Business License Violation: Group Day Care (2107 Highland Court)This message was received from an external email account. Please use caution when opening messages, attachments orexternal links from unknown senders.Thanks Dan, I have let our Chief Building Official know and he will send someone out tomorrow. - MartyFrom: Daniel Zyvoloski <dan@kroenkeranches.com>Sent: Thursday, September 23, 2021 10:33 AMTo: Lara Guercio <lguercio(a)crowleyfleck.com>; Martin Matsen <MMatsen@BOZEMAN.NET>Cc: Kelley Rischke <KRischke(a)BOZEMAN.NET>Subject: RE: Business License Violation: Group Day Care (2107 Highland Court)CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize thesender and know the content is safe.1255 M arty,As Lara mentioned, thank you for your letter. We will be responding next week.Also as referenced, we wanted to make your team aware that the City has issued a "Stop Work" order for 2107 HighlandCt. as they are cutting in and installing egress windows in the basement without first having obtained a building permit.The Stop Work order was issued on 9/21/2021 yet it appears that it has been ignored by the contractor and daycareoperator as they have continued to work on the 22nd and today.Respectfully,DanFrom: Lara Guercio <lKuercio@crowleyfleck.com>Sent: Thursday, September 23, 2021 10:20 AMTo: Martin Matsen <MMatsen@BOZEMAN.NET>; Daniel Zyvoloski <dan@kroenkeranches.com>Cc: Kelley Rischke <KRischke@BOZEMAN.NET>Subject: RE: Business License Violation: Group Day Care (2107 Highland Court)Thank you Marty for your formal letter response, which I have shared with Dan. I am continuing to represent Dan in thismatter, but hereby consent in writing to having Dan communicate directly with you and the City without myinvolvement.Dan will be communicating directly with you and the City soon and providing information regarding unpermittedcontractor work that is currently underway at the group daycare facility without a building permit. It sounds like theyfinally, after almost 5 months of operation at their current location, are installing egress windows and doing some otherwork at the property that requires, but for which they do not have, a building permit. Dan will be providing furtherdetails here.I am out of the office and will be traveling by plane shortly, so will generally be out of pocket for the balance of todayand tomorrow.Best regards,Lara Guercio406.522.4517NOTICE: This electronic mail transmission may constitute an Attorney-Client communication that is privileged at law. It isnot intended for transmission to, or receipt by, any unauthorized persons. If you have received this electronic mailtransmission in error, please delete it from your system without copying it, and notify the sender by reply e-mail or bycalling Crowley Fleck PLLP, 406-252-3441, so that our address record can be corrected.This email has been scanned for email related threats and delivered safely by Mimecast. For more information pleasevisit http://www.mimecast.comFrom: Martin Matsen <MMatsen@BOZEMAN.NET>Sent: Tuesday, September 21, 2021 5:13 PMTo: Daniel Zyvoloski <dan@kroenkeranches.com>; Lara Guercio <lRuercio@crowieyfleck.com>Cc: Kelley Rischke <KRischke(a)BOZEMAN.NET>Subject: RE: Business License Violation: Group Day Care (2107 Highland Court)2256 This message was received from an external email account. Please use caution when opening messages, attachments orexternal links from unknown senders.Dan,I wanted to let you know that I have responded to your attorney. Moving forward our standard practice is that allcommunications from the City should go through your attorney unless the representation ends or your attorneyconsents in writing to let the City talk to you without her involvement.Thanks so much - MartyFrom: Daniel Zyvoloski <dan@kroenkeranches.com>Sent: Monday, September 20, 2021 9:58 AMTo: Martin Matsen <MMatsen@BOZEMAN.NET>Subject: RE: Business License Violation: Group Day Care (2107 Highland Court)Hi Marty,I left you a voicemail. Please give me a call when you get a chance.Thanks,Dan406-570-2716From: Lara Guercio <Sent:Tuesday, August 31,2021 10:09 AMTo: mmatsen@bozeman.netCc: Daniel Zyvoloski <dan@kroenkeranches.com>Subject: Business License Violation: Group Day Care (2107 Highland Court)Marty, please find attached a copy of the formal complaint letter that I am filing today with the City regarding thesubject violation on behalf of my client.Respectfully,LARAGUERCIO1915 South 19th AvenueBozeman, MT 59718Main: 406.252.3441 | Fax: 406.256.0277Direct: 406.522.4517CROWLEYj FLECK <Sf^iA TTO R N' EYS n'EKTT?;WITH OFFICES IN MONTANA, NORTH DAKOTA, AND WYOMING:BILLINGS BISMARCK BOZEMAN BUTTE CASPER CHEYENNE HELENA KALISPELL MISSOULA SHERIDAN WILLISTON3257 NOTICE: This electronic mail transmission may constitute an Attorney-Client communication that is privileged at law. It isnot intended for transmission to, or receipt by, any unauthorized persons. If you have received this electronic mailtransmission in error, please delete it from your system without copying it, and notify the sender by reply e-mail or bycalling Crowley Fleck PLLP, 406-252-3441, so that our address record can be corrected.This email has been scanned for email related threats and delivered safely by Mimecast. For more information pleasevisit http://www.mimecast.comCity of Bozeman emails are subject to the Right to Know provisions of Montana's Constitution (Art. II, Sect. 9) and maybe considered a "public record" pursuant to Title 2, Chpt. 6, Montana Code Annotated. As such, this email, its senderand receiver, and the contents may be available for public disclosure and will be retained pursuant to the City's recordretention policies. Emails that contain confidential information such as information related to individual privacy may beprotected from disclosure under law.4258 C ROW L EYFLECKATTORNEYSfIiiLARA D. GUERCIO1915 South 19th AvenueBozeman,MT59718PHONE: 406-522-4517FAX: 406-256-0277lgiiercio@crowleyfleck.comSeptember 3 0,2021Sent via EmailCity of BozemanMartin MatsenDirector of Community DevelopmentMMatsen@BOZEMAN.NETRe: Business License Violation: Group Day Care (2107 Highland Court)Dear Mr. Matsen:Thank you for your letter sent on September 21, 2021. Your letter outlines three main reasons asto why the City ofBozeman believes that group day-cares should be exempt from obtaining alocal business license. We are planning to file an appeal per BMC § 12.02,190 to bring this to theCity Commission for further review. But, as outlined in this letter, we are willing to drop theappeal if the City can reference a clearly applicable existing exemption in state law or the BMC.Your letter first references the compliance of the group day-care home at 2107 Highland Court,However, without first obtaining a building permit from the City of Bozeman, the day-careoperator is cuirently installing egress windows in the basement of 2107 Highland Ct., a structuralalteration required for its day-care facility to comply with § 37.95.705 of the AdministrativeRules of Montana. The City issued a Stop Work Order on September 21, 2021, which has beenignored by the contractor and day-care operator. Also, as reference in Mr. Zyvoloski's s earlier e-mail, the day-care operator moved its pre-existing day-care operation to the cmrent location at2107 Highland Ct., so that they could also operate an auto detail shop at their cun-ent homeaddress. This business operated without a license, and its continued non-compliance with theBMC had to be enforced by the City's Code Compliance Officer. In sum, the day-care operatorhas a track record of non-compliance with BMC, via multiple existing violations to date.Second, you reference the zoning of the residential neighborhood where the day-care business(which is currently registered with the MontanaSecretary of State's Office as a general for profitcorporation) is cun-ently located. But, this is a moot issue as to the City's business licensing,since all businesses, including Home Based Businesses, unless specifically exempt, are requiredby the BMC to obtain a business license, regardless of zoning designation, within City limits,BILLINGS BISMARCK BOZEMAN BUTTE CASPER CHEYENNE HELENA KALISPELL MISSOULA SHERIDAN WILLISTONCROWLEYFLECK.COM259 City of BozemanSeptember 3 0,2021Page 2The City's zoning is relevant to the number of children that the group day-care serves and plansto serve at 2107 Highland Ct. As noted in your letter, MCA § 76-2-412 considers "a day-carehomes serving 12 or fewer children" a permitted use in all residential zones. But, the tenant day-care operator publicly stated at a meeting with multiple neighbors and in a letter supplied by thehomeowner earlier this year that they plan to increase the number of children the day-care servesto 15. S.B. No. 142 (passed earlier this year and effective 10/1/21) revised the definition of"group day-care home" in MCA § 52-2-703 to allow it to provide care for up to 15 children.This revision is specific and limited to the Montana Child Care Act (MCA §§ 52-2-701 et seq.),which includes requirements for day-care registration and licensing. Notably, S.B. No. 142 madeno revisions to MCA 76-2-412. Further, the BMC's definition of "group day care hoi-ne" alsolimits it to serving up to 12 non-residents. As such, a group day-care serving more than 12children would not be in compliance with the BMC or permitted by state law in regard to zoning.Third, your letter references BMC § 12.01.010.A.1, which is restated in full below. However, theCity has yet to identify where in the BMC or in state law that group day-cares are exempted fromthe requirement of obtaining local business licenses."Business" is meant to include all kinds of vocations, occupations, professions,enterprises, establishnients, and all other kinds of activities and matters, togetherwith all devices, machines, vehicles and appurtenances used therein, any of whichare conducted for private profit, or benefit, either directly or indirectly, on anypremises in this city, not exempted by state law or this chapter. (Emphasis added).We are planning to appeal your recent formal decision that a City-issued business license is notrequired for the operation of the group day-care facility located at 2107 Highland Ct. to the CityCommission pursuant to BMC § 12.02.190. But, we are willing to drop this appeal if the Citycan specifically reference where an existing exemption to local business licensing exists in theBMC or state law applicable to a for profit, group day-care business (and subject to our furtherreview of the legal merits of any such referenced exemption). We are hopeful that the City willnot elect to needlessly spend taxpayer dollars defending its current position, which to our currentknowledge is not reinforced, supported or defined by applicable state law or the City's code.Please let us know by Friday, October 15, 2021 if the City will provide reference to a specificexisting exemption for the subject day-care from the City's business licensing requirements.Respectfully,^ oQS. ^)./^JZ^LARA D. GUERCIOec: Kelley Rischke (KRischke@BOZEMAN.NET); Daniel Zyvoloski (by email)260 Kelley RischkeFrom:Sent:To:Cc:Subject:Attachments:Martin MatsenTuesday, September 21, 2021 5:13 PMLara GuercioKelley Rischke; Jeff Mihelich; Greg Sullivan; Chuck WinnRE: Business License Violation: Group Day Care (2107 Highland Court)092121 Itrto Guercio re daycare business license.pdfLara, Please see my formal response attached.Best Regards - MartyMARTY MATSEN, AICPDirector | Community Development | City of Bozeman20 East Olive St. | P.O. Box 1230 | Bozeman, MT 59771Office: 406.582.2262 | Mobile: 406.589.5480 | mmatsen@bozeman.net I www.bozeman.netQ Planning Q Building Q Historic Preservation Ci Code ComplianceFrom: Lara Guercio <lguercio@crowleyfleck.com>Sent:Tuesday, August 31,2021 10:09 AMTo: Martin Matsen <MMatsen@BOZEMAN.NET>Cc: Daniel Zyvoloski <dan@kroenkeranches.com>Subject: Business License Violation: Group Day Care (2107 Highland Court)Marty, please find attached a copy of the formal complaint letter that I am filing today with the City regarding thesubject violation on behalf of my client.Respectfully,LARA GUERCIO1915 South 19th AvenueBozeman, MT 59718Main: 406.252.3441 | Fax:406.256.0277Direct: 406.522.4517CROWLEYJFLECK ^B^ATTORNEYS I'iTr^t'HIWITH OFFICES IN MONTANA, NORTH DAKOTA, AND WYOMING:BILLINGS BISMARCK BOZEMAN BUTTE CASPER CHEYENNE HELENA KALISPELL MISSOULA SHERIDAN WILLISTONNOTICE: This electronic mail transmission may constitute an Attorney-Client communication that is privilegedat law. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this1261 electronic mail transmission in error, please delete it from your system without copying it, and notify the senderby reply e-mail or by calling Crowley Fleck PLLP, 406-252-3441, so that our address record can be corrected.This email has been scanned for email related threats and delivered safely by Mimecast. For more informationplease visit http://www.mimecast.com2262 NTBOZEMANCommunity DevelopmentLara D. GuercioCrowley Fleck1915 South 19th AvenueBozeman, MT 59718Re: Group Day Care (2107 Highland Court)Ms. Guercio:I have received your letter of formal complaint on behalf of your client regarding the groupday care at 2107 Highland Court. The City also received an email from Mr. Zyvoloski onAugust 13, 2021. This letter responds to both communications. After consulting with theCity Attorney and in accordance with our previous advice, the City ofBozeman disagreesthat a business license is required to run an otherwise compliant group day care in aresidential neighborhood within the City. Therefore, no violation of the BozemanMunicipal Code (BMC) has occurred.First, please be advised that group day cares are authorized in the State of Montana in anyresidential zone. See Mont. Code Ann. § 76-2-412. Additionally, the BMC addresses andregulates various kinds of daycare facilities in both residential and commercial zoningdistricts. The property at 2107 Highland Court is in a residential area zoned R-l. A groupday care is a principal use in the R-l zoning district, meaning it is fully permissible underCity code. See 38.310.030, BMC. The City understands that not every house orneighborhood will be a good fit for a day care facility, which is in part why the coderequires day care facilities to be either licensed or registered with Montana's Departmentof Public Health and Human Services [DPHHS). Under DPHHS regulations, group day carefacilities must provide proof of liability and fire insurance, minimum amounts of indoorand outdoor space for each child, and specific means of ingress and egress, among manyother things.Next, the City generally requires a business to be licensed, unless the business is exemptpursuant to state law or by other provisions of the code. See 12.01.010.A.1, BMC. The Stateof Montana is the regulatory and licensing authority for many professions, includingdaycare businesses. The City does not require a business license for the practice ofprofessions regulated by state law. Therefore, the City does not require any licensure ofday care businesses beyond what is required by state law. DPHHS Registrationrequirements for family and group daycares share many similarities with licensurerequirements for larger day care centers, including penalties for violations of state law. SeeMont. Code Ann. §52-2-741.P.O.Box 1230® 20 East Olive Street \ ® B^ze^oaxnzM!i) 59771-1230 0406-582-2260 | © 406-582-2263 j www.bozeman.netTDD: 406-582-2301THE MOST LIVABLE PLACE.263 Page 2 of 2MTBOZEMAN'Community DevelopmentFinally, we look forward to the continued involvement of all citizens on updates and editsto the municipal code. Citizens are notified of proposed changes to the municipal code inmultiple ways: through the City's website on City Commission agendas atwww.bozeman.net/government/citv-commission; by publication in the Bozeman DailyChronicle legal ads; and by posting in City Hall. Unfortunately, due to the variety of issuesand volume of interest on any given topic, it is not possible for the City to provide directnotice to you if the City proposes any changes in the future to municipal codes regardingday care facilities or business license requirements.Sincerely,Marty MatsenDirector of Community Developmentc:JeffMiheIich, City Manager@ 20 East Olive StreetTDD. 406-582-2301® S^nl2M? 59771-1230 ' ® 406-582-2260 | ® 406.582-2263www.bozeman.netTHE MOST LIVABLE PLACE.264 C ROW L EYFLECKATTORNEYSLARA D. GUERCIO1915 South 19th AvenueBozeman,MT59718PHONE: 406-522-4517FAX: 406-256-0277lguercio@crowleyfleck. cornAugust 31,2021City ofBozemanMartin MatsenDirector of Community DevelopmentP.O. Box 1230Bozeman, MT 59771Re: Business License Violation; Group Day Care (2107 Highland Court)Dear Mr. M^atsen:I am writing on behalf of my client, Daniel Zyvoloski, who resides with his family at 2108Highland Court, to file a formal complaint against the operators of a commercial group day carefacility located at 2107 Highland Court, which is presently and has been operating for severalmonths now from this location without a business license. As such, the subject group day careoperator and facility is operating out of compliance with Section 12.02.010 of the Code.We have reviewed the Code, including its business licensing requirements and exemptions, aswell as for any applicable state law exemptions. From the text of the Code and applicable statelaw, the subject group day care is clearly not exempt from local business license requirements.We are filing the present complaint under Section 12.02.240 of the Code to request that aninvestigation of this violation and appropriate action be taken under Chapter 12 of the Code.Please advise us of the City's formal decision regarding this matter at your earliest convenience,Additionally, since my client and his neighbors would be specifically affected, we request directnotice regarding any changes proposed by the City to the Code applicable to day cares, includingSections 12.02.040 (Exemptions) and 38.700.050 (Definitions).jYours truly,^^^LARA D, GUERCIO^^2^ec: Jeff Mihelich, City Manager (by USPS); Daniel Zyvoloski (by email)BILLINGS BISMARCK B02EMAN BUTTE CASPER CHEYENNE HELENA KALISPELL MISSOULA SHERIDAN WILLISTONC ROW L EY FL ECK.CO M265 Kelley RischkeFrom:Sent:To:Cc:Subject:Attachments:Daniel Zyvoloski <dan@kroenkeranches.com>Thursday, August 12, 2021 4:00 PMMartin Matsen; Lara GuercioKelley Rischke; Mark Carpenter; Anna Rosenberry; Jeff Mihelich; Chuck Winn;Teri.Whitesitt@mt.gov; Greg SullivanRE: Group day-care at 2107 Highland Ct.Thank you for your public comment.CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize thesender and know the content is safe.Dear All,Thank you for your time and consideration regarding this important issue. I wanted to provide some additionalbackground information, as we have decided to move forward with a formal complaint to the city regarding the non-compliance of the daycare business located at 2107 Highland Ct. To save the city time and resources, a group ofneighbors decided to move forward with one formal proceeding, represented by myself and Ms. Guercio. Also enclosedis my submission to the city commission dated July 2nd regarding this issue. It is my understanding that there wereadditional letters sent to the commission regarding this topic as well.First, 11 surrounding neighbors communicated (via multiple letters and neighborhood meetings) with the homeownerand the daycare operator who leases the property concerning a 12-15 child daycare at this location. None of theneighbor's concerns have been addressed or considered.Second, we are all aware of the daycare shortage in Bozeman and look forward to working with the city to find the rightbalance. As Ms. Whitesitt can confirm, this is not a new daycare. It was in operation at another location in the city priorto moving to its present location; thus, no more or new local daycare opportunities were created here. The daycare wasmoved to Highland Ct. so they could open a commercial auto detail shop at the previous residential location. I informedMr. Carpenter of the violation, and as a result of laws in the Bozeman Municipal Code, the business is no longer inoperation.Third, as a new father, I'm personally motivated by the amount of traffic/parking issues that create a safety issue directlyin front of my house for my family. I believe that home-based daycares can be a solution in Bozeman, but in order forthem to be successful, they need to fit into the residential neighborhoods in which they are proposed to be located,based on feedback and input from their neighbors, who share the impact. Every house or residential neighborhood inBozeman will not be a good fit for a 15-child, home-based daycare.After researching Bozeman's Community Planning documents, I found that neither daycares specifically nor childcare ingeneral were ever mentioned. If the city is going to be a part of the daycare solution, it will need to figure out how tosuccessfully incorporate them into the city's planning and growth policies, rather than ignore related community issues,particularly where located in residential neighborhoods.The Bozeman Municipal Code states that: "Business" is meant to include all kinds of vocations, occupations,professions, enterprises, establishments, and all other kinds of activities and matters, together with all devices,machines, vehicles and appurtenances used therein, any of which are conducted for private profit, or benefit, eitherdirectly or indirectly, on any premises in this city, not exempted by state law or this chapter. The Code goes on thelist specific Exemptions per 12.02.040, but it does not exclude daycare businesses.1266 A home-based daycare with 12-15 kids is definitely a business. It is not exempted by any state or local laws frombusiness licensing requirements, and it requires a commercial liability insurance policy.We are not asking the city to impose any additional regulatory requirements on home-based daycares, as Mr. Matsenindicated below. We are asking the city to enforce the codes that already exist.Respectfully,Daniel Zyvoloski406-570-2716From: Martin Matsen <MMatsen@BOZEMAN.NET>ent: Friday, August 6, 2021 10:22 AMTo: Lara Guercio <lguercio@crowleyfleck.com>; Daniel Zyvoloski <dan@kroenkeranches.com>Cc: Kelley Rischke <KRischke@BOZEMAN.NET>; Mark Carpenter <MCarpenter@BOZEMAN.NET>; Anna Rosenberry<ARosenberrv(SBOZEMAN.NET>; Jeff Mihelich <imihelich(a>BOZEMAN.NET>; Chuck Winn <CWinn@BOZEMAN.NET>;Teri,Whitesitt(®mtgoy; Greg Sullivan <Rsullivan@BOZEMAN.NET>Subject: RE: Group day-care at 2107 Highland Ct.Lara,Again, thank you for raising this matter. The City of Bozeman has never, to my understanding, required operators offamily or group daycares to obtain a business license. While these daycares may not be expressly exempt from businesslicensure under state law or municipal code, there is no stated requirement that they obtain a business license, as younoted. Additionally, licensure and registration requirements under DPHHS share several similarities; notably, thestatutory provision for penalties is the same for violations of registration as of licensure. See Mont. Code Ann. 52-2-741. Given that similarity, and the City's general practice of not requiring business licensure for professions that areregulated by the State, the City has not historically required daycares to obtain a business license. Further, we note thescarcity of daycare providers available to handle the need of the City's families and workers. For these reasons, the Cityof Bozeman is disinclined at this time to impose any further regulatory requirements on daycares.Sincerely,M artyMARTY MATSEN, AICPDirector | Community Development | City of Bozeman20 East Olive St. I P.O. Box 1230 | Bozeman, MT 59771Office: 406.582.2262 I Mobile: 406.589.5480 I mmatsen@bozeman.net I www.bozeman.netQ Planning i2i Building d Historic Preservation Q Coc/e ComplianceFrom: Lara Guercio <lguercio@crowleyfleck.com>Sent: Wednesday, July 21, 2021 11:00 AMTo: Martin Matsen <MMatsen@BOZEMAN.NET>Cc: Daniel Zyvoloski <dan@kroenkeranches.com>Subject: FW: Group day-care at 2107 Highland Ct.2267 CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize thesender and know the content is safe.Good morning Mr. Matson,Please see the email below that I sent earlier this morning to Mr. Carpenter regarding the subject day-care use and itsnon-compliance with the Bozeman Municipal Code's business licensing requirements.I was notified by Mr. Carpenter's auto-reply that he is currently out of the office until early August, and the replyincluded your contact for further assistance. My client and I would much appreciate getting the City's informal inputhere in the near future, so that we can proceed, as necessary, with the filing of our formal complaint.Thank you in advance for your time and consideration of this matter.Lara Guercio406.522.4517NOTICE: This electronic mail transmission may constitute an Attorney-Client communication that is privilegedat law. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received thiselectronic mail transmission in error, please delete it from your system without copying it, and notify the senderby reply e-mail or by calling Crowley Fleck PLLP, 406-252-3441, so that our address record can be corrected.This email has been scanned for email related threats and delivered safely by Mimecast. For more informationplease visit http://www.mimecast.comFrom: Lara Guercio <lguercio@crowleyfleck.com>Sent: Wednesday, July 21, 2021 10:25 AMTo: mcarpenter@bozeman.netCc: Daniel Zyvoloski <dan@kroenkeranches.com>Subject: Group day-care at 2107 Highland Ct.Good Morning Mr. Carpenter,My name is Lara Guercio, and I am an attorney at Crowley Fleck. I am writing on behalf of my client, Dan Zyvoloski, whowith his family live at 2108 Highland Ct., regarding a commercial group day-care (currently registered with DPHHS toprovide care for up to 12 children), which has recently begun operations directly across from their primary residence.My client asked me to review the local and state legal requirements for this group day-care facility, including anyapplicable business licensing requirements. From an in depth legal review of applicable state and local laws (includingstate statutes, DPHHS regulations and the Bozeman Municipal Code), the commercial use of this "group day-care home"facility, while currently registered with DPHHS, is not exempt from local business license requirements - under any statelaws or other exemptions of the Bozeman Municipal Code. Thus, the group day-care provider is currently operating outof compliance with Section 12.02.010 of the Bozeman Municipal Code.For your information and background, as may be helpful here, the Montana Child Care Act (MCA 52-2-701 etseq.),specifically in MCA 52-2-721, requires that a "day-care center" (under current law defined as providing care for 13 ormore children, and under SB No. 142 [approved 5/7/21 and effective 10/1/21] providing care for 16 or more children) isrequired to be licensed by DPHHS. But, a "group day-care home" (under the current law defined as providing care for 7to 12 children on a regular basis, and under SB No. 142, providing care for 9 to 15 children on a regular basis) is notlicensed, and is only required by state law to be registered with DPHHS. By statute, no fees can be charged by DPHHS3268 for its issuance of either a daycare license or registration certificate. So, there is no argument for any daycare providerthat it is getting double-charged for overlapping state and local professional/occupational licensing fees.There are specific and detailed requirements for licensed daycare centers in MT statutes and applicable DPHHSregulations. However, the specific requirements for registered group day-care homes are far less stringent. Mostnotably, the state fire safety certification requirements and public health requirements (under state law, MCA 52-2-734& also 735, as well as related DPHHS regulations) apply to day-care centers, but not to group day-care homes (such asthe one now located at 2107 Highland Ct., and operated by Barbara Limpus, a DPHHS registered daycare provider, whois currently doing business as Bibs to Books Playhouse Inc., a MT for-profit corporation). As such, there appears to be asignificant loophole for group day-care homes complying (on either the state of local level) with basic public health andfire safety requirements, if they are not regulated on the local level via a business license.In my review here, I also found that other MT cities, including Great Falls, specifically require a City Business License, inaddition to obtaining State of MT Daycare License/Registration. Notably, the Great Falls Business License requires thatthe City's Fire Dept. and Building Division inspect each daycare prior to issuing a City business license. (See:https://greatfallsmt.net/planning/licensing-frequently-asked-questions). While there is not a specifically statedrequirement, there is also no exemption from any local business licensing requirements for daycare use under theBozeman Municipal Code or state laws.We are presently considering filing a written complaint with the City of Bozeman regarding the group day-care homefacility currently operating at 2107 Highland Ct, and its lack of compliance with Bozeman's Municipal Code. However,we wanted to reach out and informally discuss the business licensing requirements applicable to this commercial day-care prior to submitting a formal complaint.Thank you in advance for your time and consideration of this matter.Best regards,LARAGUERCIO1915 South 19th AvenueBozeman,MT 59718Main: 406.252.3441 | Fax:406.256.0277Direct: 406.522.4517CROWLEY FLECK ^B^.;'"r""r^^;l i I t.,ri >i jWITH OFFICES IN MONTANA, NORTH DAKOTA, AND WYOMING:BILLINGS BISMARCK BOZEMAN BUTTE CASPER CHEYENNE HELENA KALISPELL MISSOULA SHERIDAN WILLISTONCity ofBozeman emails are subject to the Right to Know provisions of Montana's Constitution (Art. II, Sect. 9)and may be considered a "public record" pursuant to Title 2, Chpt. 6, Montana Code Annotated. As such, thisemail, its sender and receiver, and the contents may be available for public disclosure and will be retainedpursuant to the City's record retention policies. Emails that contain confidential information such as informationrelated to individual privacy may be protected from disclosure under law.4269 Kelley RischkeFrom:Sent:To:Subject:Tki'c> t^<u^.[ i^jit5 oj^^-ed h) 'Z\{v't{o^kl A^<<O-( c^^ci<^ I \~z-l L]agenda@bozeman.netFriday, July 2, 2021 2:17 PMDanzyvo@hotmail.comThank you for your public comment.A new entry to a form/survey has been submitted.Form Name: Public Comment FormDate & Time: 07/02/2021 2:16 PMResponse #: 1132Submitter ID: 39994IP address: 2600:6c67:5000:64c5:f9d2:lf5f:e64e:13aaTime to complete: 5 min., 10 sec.Survey DetailsPage 1Public comment may be submitted via the form below, or by any of the following options.Public comment may also be given at any public meeting.Email:agenda@bozeman.netMail to:Attn: City CommissionPO Box 1230Bozeman, MT 59771First NameLast NameEmail AddressPhone NumberCommentsDear Commissioners,DanielZyvoloskidanzyvo@hotmail.com4065702716I am writing this letter to ask the commission to adopt an ordinance or revision to the Bozeman Municipal code that wouldallow residents of Bozeman to participate in the review of Group Day Care Home locations. This issue is significant given the1270 recent passage of SB 142 that will allow for up to 15 children in a Group Day Care Home compared to the old and currentlimitation in the Bozeman Municipal Code that only allows for up to 12 children. Thus, an update to the Bozeman MunicipalCode will be needed to reflect new state law and would provide an opportunity for citizens to participate in a process thatallows for public participation.Currently, all dwellings or households in any zoning district are allowed to operate a Group Day Care Home with 12 childrenwithout any notice to neighbors or permits issued by the city of Bozeman. The intent and purpose of Bozeman Zoning is to"respect the character and quality of the designated area". Public participation allows Bozeman residents to support andhave a voice in that purpose.Our neighborhood that is Zoned Rl had a Group Day Care Home operation open for business a few months back. 15 childrenbeing dropped off and picked up each day results in up to 600 additional cars per month (15 drop-offs x 15 pickups x 20business days). This is a significant impact to a street and neighborhood that has no sidewalks and receives minimal snowremoval.If a neighbor wants to have a chicken or more than two dogs, it must obtain a permit and notify the neighbors of theproposed plans. This process allows for tax-paying residents of Bozeman to have a voice in how their neighborhood isshaped. If neighbors are concerned, they have a process by which they can voice their concerns or find solutions.Additionally, illegal daycare operations are currently an issue the city of Bozeman is dealing with. The state of Montana whois supposed to be providing oversight, lacks any enforcement capability. The lack of defined enforcement creates a situationwhere children's safety is put at risk. If Group Day Care Home's within Bozeman limits are required to obtain a basic permit,then the city could provide a level of oversite and safety that is currently not available.Thank you for your time and consideration. I advocate that this issue be brought up for discussion at an upcomingcommission meeting.If you would like to submit additional documents (.pdf, .doc, .docx, .xls, .xlsx, .gif, .jpg, .png, .rtf, .txt) along with yourcomment, you may alternately address agenda@bozeman.net directly to ensure receipt of all information.Thank you,City Of BozemanThis is an automated message generated by Granicus. Please do not reply directly to this email.2271 BOZEMANMTCity of BozemanSTIFF BUILDING20 East Olive Street, Bozeman, Montana 59715Account #2\-^qic,-i(406)582-2260 NAICS # ^^^i IDs a use of property listenNEW BUSINESS (""] CHANGE OF BUSINESS LOCATION (12.02.070) f_] TRANSFER OF OWNERSHIP (12.02.08CI""] RENEWAL [") BUSINESS NAME CHANGE [""I MEDICAL MARIJUANA £ycePf Medical Marijuana)BUSINESS NAME ^ . <bS -\0 ^"NS>OQ^^ "Y\ CK^ h0<-^ -^-PHYSICAL BUSINESS ADDRESS C^\ (^n \^-\C^h^OlAC\ Co^ir*~-\ 'dYV^J'YYl H (Y\T S^7/'SMAILING ADDRESS <S,C^V^\P 0^. ^=)C>\! ~£s-CIPi'"STZIPBUS. TELEPHONE 4(^&^9 \ •• S3^1 & EMAIL ADDRESS \00.^hp ^\% 7 ifYV^n F C, ^ ZONING DISTRICT&A.OWNER _ , ^/^l .FULL LEGAL NAME "P^CX ^V^O^rC^ L^h ^ ^ ^"Y < VX f PY^ LJL ^ ^ I . i ^r\ OtiPRIMARY TELEPHONE ^(^lo-S ^ V~':6~:bt~l -=s SECONDARY PHONE.CO- OWNER OR MANAGER ,, ^,. x . \ -—^FULL LEGAL NAME S>V^(^^(r-\-P \ ^ ^ Vff\f v 'S -^Tl' (^-^ V—i Of\0l^ S 'C^C<. Ve\.PRIMARY TELE=PHQNEMOls-c?%V ^ 2>^ c-1 SECONDARY PHONE .A^o.yyr'Gi^e /T^^ e SCJ<\oc3 V•Sed blfSSHtSSS:\[_} HOME-BASED LOCATION - $50.00 ["''] OUT OF CITY LIMITS LOCATION - $50.(|"'] COMMERCIAL LOCATION - $50.00 (Copy of Driver's Ucense Required with Application)What is current use of property:T fhe fotlowing c?'!.Construction ChangesElectrical ChangesMechanical ChangesPlumbing ChangesNew or Relocated SignsNO YES IF YES, YOU WILL NEED0 0 Building Permit^3 1""1 D Electrical Permit;gj |~] |~1 Mechanical Permit["I [~) Plumbing Pennit0 I""] 0 Sign PermitIFCOMMERCiAL ^ \\.^.Z\ e.Md\-<SU^Emergency Contact: __ Phone:Other Emergency Information:'PLEASE COMPLETEFire SuppressionSecurity AlarmMonitored By:NOYESa0# of Full Time Employees# of Part Time EmployeesEmail:3:This application is made subject to the terms of the Bozeman Municipal Code. I understand the license issued hereunder is NOT TRANSFERABLEexcept as provided in Chapter 12.02 BMC, and that the intonation I have supplied is correct to the best of my knowledge.Signature^d^.QLA...a^..L^...U-3^LLZ2Date J^^3^^FOR OFFICE USE ONLYZoningOccupancyConstruction TypeBuildingEngineeringFirePolfeePlanningAPPROVED ISEjeCTEO DATEltt||-S/UcoiuiEwrs:c.^^A^- Make CSiecks Payable to: City of Bozeman -272 273 BOZEMANMTBUSINESS LICENSENO. 21-00069197$ 0.00GRANTED: October 13, 2021BEGINS: October 13, 2021EXPIRES: October 31, 2022THIS LICENSE is granted to:BIBS TO BOOKS PLAYHOUSE2107 HIGHLAND CTBOZEMAN MT 59715406-581-8375The necessary application has been submitted and approved. The requiredbusiness license fee has been paid. Therefore, this license is issued subject to allthe terms and conditions of the Business License Ordinance of the BozemanMunicipal Code Sec. 12.01.010.This license is NOT TRANSFERABLE.By signing this license the owner agrees to conform to all requirements.Signature.BUSINESS LICENSE OWNER^Bp.^^^•••;..••^;^7--••ys/•^°/*0•Vy^7.v^V<?;••..1883..••A^^..••••..0^^'co.DepartmentofCommunity Developmentbusinesslicenses@bozeman.net(406)-582-2260274 BOZEMANCommunity DevelopmentMTOctober 13, 2021BIBS TO BOOKS PLAYHOUSE2107 HIGHLAND CTBOZEMANMT 59715Dear Business Owner or Manager:Please find enclosed your Bozeman City Business License.Please sign this document immediately. By law it must be posted in apublic place.Thank you for complying with Bozeman Municipal Code 12.02.130.If you have any questions please feel free to call [406} 582-2260.Regards,Department of Community Development® 20 East Olive Street ] ®P.O.Box 1230Bozeman, MT 59771-1230(P) 406-582-2260 ; © 406-582-2263 I www.bozeman.netTDD: 406-582-2301THE MOST LIVABLE PLACE.275 Memorandum REPORT TO:City Commission FROM:Addi Jadin, Park Planning and Development Manager Mitch Overton, Director of Parks and Recreation Chuck Winn, Assistant City Manager SUBJECT:Resolution 5353 Allocation Of Cash-In-Lieu Of Parkland Funds For Acquisition Of Land Adjacent To Burke Park And Authorizing The City Manager And City Attorney To Take All Steps Necessary To Purchase The Land Associated With The Burke Park/Peets Hill Expansion And Improvement Project MEETING DATE:December 14, 2021 AGENDA ITEM TYPE:Citizen Advisory Board/Commission RECOMMENDATION:Adopted Resolution 5353 Allocation Of Cash-In-Lieu Of Parkland Funds For Acquisition Of Land Adjacent To Burke Park And Authorizing The City Manager And City Attorney To Take All Steps Necessary To Purchase The Land Associated With The Burke Park/Peets Hill Expansion And Improvement Project 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 Gallatin Valley Land Trust (GVLT) has submitted a proposal to the City to collaborate on the purchase by the City of 12 acres of land at the south end of Burke Park/Peets Hill and the development and installation of improvements to integrate the expanded area within the existing park. GVLT was notified of the property being listed for sale earlier this year and was able to mobilize its staff and board to enter into a purchase/sale agreement. GVLT has established a closing date of January 18, 2022, with the seller, completed property acquisition research and a large public funding campaign to secure approximately 50% of the purchase and improvements costs which total just over $1.6 million. The proposal requests the City provide approximately $800,000 toward the property cost ($1,225,000) within two years to match the public fundraising effort of GVLT. GVLT also proposes to assign the Purchase and Sale Agreement to the City, so that the City will acquire the Property immediately on January 18, 2022, for inclusion into Burke Park/Peet’s Hill, and GVLT has agreed to provide bridge financing over two years to cover the remaining $315,000 of the 276 City’s acquisition costs. The Recreation and Parks Advisory Board (RPAB) at their special meeting on November 4, 2021, unanimously supported staff’s recommendation that the Commission approve the project and allocation of $485,000 from the cash- in-lieu of parkland dedication account to the land acquisition. RPAB also supported staff’s recommendation for the City to enter into an agreement with GVLT to allow a two year time period to provide the remaining $315,000 plus financing costs (estimated at no more than $30,000) for the land acquisition to allow staff time to find additional funding sources such as grants. Since the time of the RPAB meeting, staff has determined that a known source of funding must be provided for security of the remaining $315,000 plus finance costs; therefore, the additional amount will be considered appropriated from the cash-in-lieu of parkland fund until other funding sources are secured for this project. The result of this project is that the balance in the cash-in-lieu parkland fund would be reduced to $61,210.65 until project funding or additional cash-in-lieu of parkland dedication is received. Cash-in-lieu of Parkland Criteria: The Burke Park/Peet’s Hill Expansion and Improvement Project will serve the entire City of Bozeman thus meeting the requirements of Section 38.420.030 (F.) of the Bozeman Municipal Code for use of cash donations from the city- wide fund. Additionally, the project complies with the Parks, Recreation, Open Space and Trails Plan. Expansion and improvement of Burke Park as proposed through the acquisition of two contiguous parcels will allow the expansion of the existing trail network, increase the amount of parkland frontage on a public right-of-way (Church Street), retain a prominent landscape feature with high visibility as public land, improve accessibility for mobile assist devices, and provide a gathering and donor-recognition area within the park. The existing Burke Park Master Plan indicates that this acquisition would be a beneficial opportunity. CILP Balance: The Cash-in-lieu of Parkland (CILP) Donation Fund is paid by development when providing land for a park is undesirable due to the size of the parkland requirement, conflicts with other community development goals, or other site constraints. There are currently over 80 different cash-in-lieu sources of funding in the CILP Fund that have been provided to the City over 277 approximately 20 years amounting to $891,210.65. Of those, approximately $140,000 is from sources with a remaining balance under $10,000. Staff recommends that all of the existing CILP funding sources under $10,000 be applied to this project and the remaining amount for the project be allocated as a corresponding percentage from the remaining CILP fund sources. Phase 1 Land Acquisition: In anticipation of the land acquisition, GVLT has completed relevant property investigations and due diligence to understand the condition of the property including the items in the list below. GVLT has shared those documents with the City. Preliminary investigation and review have not revealed anything concerning related to the physical condition of the property or title. If the Commission approves Resolution 5353 the City Attorney will review and approve the below documents prior to acquisition of the property. Professional Survey of Existing Property Boundary - The subject property is currently described as three tax parcels. The boundaries of the property have been established over time and have been previously delineated by plats and surveys. A licensed surveyor reviewed the property boundaries of the property and flagged the existing boundary markers. Two small encroachments on the property were identified and are described below. Preliminary Title Commitment - A preliminary title commitment was provided by American Land Title Company. A preliminary review of the title did not reveal any major encumbrances or concerning items on the title. Appraisal – a property appraisal was ordered from a licensed real estate appraiser to determine the fair market value of the property. The appraised value of the property was determined to be above the negotiated purchase price of $1,225,000. Phase I Environmental Site Assessment – a Phase I ESA was conducted on the property to evaluate potential environmental hazards. No environmental hazards were identified and no further investigations were recommended. Mineral and Water Rights Ownership – The Sellers currently own the mineral rights to the property which will be conveyed to the City upon transfer of title. There are no water rights associated with the property. Earnest payments of $60,000 have been obligated by GVLT to secure the purchase agreement and will be credited to the purchase price. Conceptual design documents for improvements – conceptual work for trail improvements and amenities on the new property have been completed by a local landscape architecture firm which will improve 278 access to the property for the community. (Staff will work with GVLT to refine and adopt the improvement plan as an amendment to the Burke Park Master plan according to a Memorandum of Understanding that will be negotiated between GVLT and the City as discussed below.) The survey revealed two property encroachments (see Exhibit A). One is a minor driveway encroachment along the proposed new south boundary for Burke Park. The adjacent landowner has agreed to remove the encroachment. The other encroachment is a shed owned by one of the sellers for use at their private residence on an adjacent parcel. The seller has orally agreed to remove the shed within a defined amount of time. City staff recommends that a written use license be granted for the shed to be removed within a specified timeframe. Future Phases: Future phases of the project will include refinement of proposed improvements, Burke Park Master Plan Amendment, a Memorandum of Understanding or Use License with GVLT for completion of improvements at GVLT’s cost in accordance with City standards, grant applications by City staff, grant applications by GVLT, and completion of City financing. Preservation and restoration of existing wildlife and native plant species will be considered during the amendment to the park master plan. Additionally, amendment to Section 8.02.080 Bozeman Municipal Code or a Resolution, as authorized, regarding animal restraint requirements for the newly acquired parcel will be considered at that time. Unless the Commission determines the area is leash-free, dogs would be required to be on leash within the newly acquired parcel. UNRESOLVED ISSUES: Future funding sources and amounts for future project phases will be based on availability of cash-in-lieu of parkland, grants received, and other unidentified funding sources. ALTERNATIVES:Per Commission decision. 279 FISCAL EFFECTS:The result of this project is that the balance in the cash-in-lieu parkland fund would be reduced to $61,210.65 until project funding or additional cash-in- lieu of parkland dedication is received. Attachments: 1 APPLICATION - GVLT CILP 2021.pdf 2 Burke Park Master Plan February 2001 Update 2003.pdf 2 Property Vicinity Map.pdf 3 Public Input & Support.pdf 5 Project Cost Estimate.pdf 6 In Kind Contributions.pdf 7 PROST Goal Alignment.pdf Letters of Support.pdf Buy-Sell Agreement.pdf Appraisal.pdf GVLT_Sourdough Rd. - Title Commitment.pdf 10-21-21 Public Comment - N. Schultz - Peets Hill Wildlife.pdf Resolution_5353_-_2020_Burke_Park- PeetsHill_Project_and_CILP (1) final.docx Report compiled on: December 6, 2021 280 •P. O. Box 7021 • Bozeman, MT 59771 • • 406-587-8404 • www.gvlt.org • November 1, 2021 Bozeman City Commission Recreation & Parks Advisory Board 415 N Bozeman Ave. Bozeman, MT 59715 Dear City Commissioners and RPAB Members, Gallatin Valley Land Trust (GVLT) is pleased to present the attached Cash-in-Lieu of Parkland application that would provide essential funds to complete the “Protect Peets’ Final Piece” parkland acquisition and improvement project. If approved for full funding, this project will permanently protect 12 new acres as a City Park and would expand Burke Park (also known as “Peets Hill”) by 30%. This is a “once-in-a-lifetime” opportunity and quite possibly our last chance as a community to come together to protect the last large parcel on Peets Hill. GVLT is currently under contract to acquire the property; however, the timeline is tight. We have until January 18, 2022 to secure funds and complete the purchase. Earlier this fall, GVLT launched a fundraising campaign for a portion of the acquisition costs and associated due diligence, project management and improvements. Even more impressive than the financial commitments were the stories we heard from the community. We heard from couples who had first dates, engagements and weddings on Peets Hill. We heard from staff who work at the hospital and use the trails along Peets Hill for a much-needed recharge. We heard from youth cycling groups and cross-country running teams. We heard about 4th of July Fireworks, solar eclipses, and sunsets. Families shared memories of sledding, teaching their children to ride a bike and walking the family dog. We heard from seniors who live at the Knolls and Aspen Point; the park is where they move daily and stay connected to community. The total cost of this project is $1.6 million. GVLT is requesting that the City of Bozeman invest $800,000 in this project which will provide a 1:1 match of the $800,000 dollars that GVLT has already secured through private donations. All of the City funds will go directly towards purchasing the property. As the project budget details, we are proposing a multi-phase funding request from the City that includes a Phase I Acquisition request of $485,000 from the Cash-in-Lieu of Parkland fund, with future funding sources from the City yet to be finalized. We have received overwhelming public support for this project in the form of more than 650 individual donors, spread out across Bozeman, and beyond. Our community rallied around the cry to “Protect Peets’ Final Piece.” Now we are asking you to consider allocating money designated specifically for park acquisition to expand Peets Hill, to preserve the trails, the wildlife habitat and the scenic qualities that make this place a top attraction in Bozeman. Thank you for considering our application and we look forward to presenting additional information and answering questions at the upcoming public meeting. Sincerely, Chet Work Executive Director 281 Protect Peets’ Final Piece Burke Park South Addition Application for City of Bozeman Cash-in-Lieu of Parkland Funding November 1, 2021 Submitted By: 212 South Wallace Ave Bozeman, MT 59715 (406) 587-8404 282 Gallatin Valley Land Trust Protect Peets’ Final Piece Project Contents Application Narrative Attachments: 1. Site Layout 2. Park Master Plan & Vicinity Map 3. Public Input & Support 4. Proposed Site Improvements 5. Project Cost Estimate 6. In-Kind Contributions 7. PROST Goal Alignment 8. Cash-in-Lieu Sources 283 Overview of Project and Request Gallatin Valley Land Trust (GVLT) invites the City of Bozeman (City) to partner on the acquisition of 12 acres of undeveloped land on Peets Hill and to protect it forever as a City park. The privately-owned property is located directly south of Burke Park and is contiguous with the existing park boundary. This project would permanently protect the last large parcel on Peets Hill and would increase the size of Burke Park by nearly 30%. The 12-acre property was listed for sale on the open market in July and GVLT narrowly secured a purchase agreement which allows until January 18, 2022 to complete the acquisition. The total cost for the project is approximately $1,600,000 which includes property acquisition, restoration and improvements. GVLT is requesting $800,000 from the City of Bozeman that would go directly towards the purchase price for the property. GVLT has secured an additional $800,000 through private fundraising that will match the City’s investment in this project. Ideally, all $800,000 of City funds would be available before closing of escrow on January 18, 2022. If that is not possible, GVLT will pursue bridge financing to cover the gap in City funding and could structure the transaction as an installment sale as follows: • First installment: $485,000 from Cash-in-Lieu: With respect for other City priorities, this application requests $485,000 through the Cash-in-Lieu of Parkland fund which is only a portion of the total funds required to close on the property. These funds would go directly towards the purchase of the property. • Second installment: $315,000 from other City funds: In order to provide the City with additional time, the remaining $315,000 (plus financing costs) could be scheduled over the next 24 months. During this time, the City could determine how to best acquire and allocate these additional funds. GVLT would secure bridge financing to cover the gap. Current Request from CIL: $485,000 Background In late June of this year, we, the board and staff of GVLT, learned that 12 acres of undeveloped land on the south end of Peets Hill were about to be listed for sale on the open market. This property has been on GVLT’s radar for many years because it is directly adjacent to one of Bozeman’s most beloved parks - Burke Park aka Peets Hill. We recognized that purchasing this property represented a “once-in-a-lifetime” opportunity to expand the park and buffer the existing parkland from encroaching development. Given the current real estate market and rapid development in the area, we also knew that we had to act quickly and decisively to have any chance of competing with other offers. Not surprisingly, within 24 hours of the property being listed, multiple offers had come in, including one from GVLT. After a few tense weeks of uncertainty, GVLT secured a purchase agreement for the property amidst a handful of developers and competing bids. Our agreement includes a 6-month term to close on the property, which gives us until mid-January to complete property investigations, and raise funds. If we are unable to secure the necessary funds by mid-January, the property will be re-listed and will likely sell for residential development. There may already be a back-up offer in place. In the early 1990s, GVLT, the City of Bozeman and the Burke Family partnered to protect the original 40+ acres that created Burke Park. The property was originally owned by the Peets 1 284 family who allowed the community to use the property for many years, which is why it is also known locally as “Peets Hill”. GVLT facilitated the acquisition with the Burke family and the property was eventually purchased by the City of Bozeman as parkland. In the original transaction, the Burke family held onto two development lots on the top of Peets Hill. In 2008, GVLT and the City of Bozeman again partnered with the Burke Family to acquire those parcels to ensure that the upper portion of Peets Hill would remain open to the public and not impaired by residential development. The current 12-acre property under consideration is the last large parcel on Peets Hill. It consists of native grasslands and shrubs that provide habitat for a diversity of birds and small mammals. The property provides spectacular views of the City of Bozeman and beyond. The property has an existing trail across it that provides trail connectivity from the top of Peets Hill to Sourdough Rd/South Church. This popular trail sees an average of 163 users per day and has a high of 247 users per day according to a trail counter located along the trail. Though the existing trail easement is somewhat secure, its location is not. The existing trail easement specifically allows the trail to moved anywhere on the property to accommodate homes, roads, utilities and other infrastructure. A provision is even made for termination of the easement should the City of Bozeman not accept the trail corridor as fulfillment of development requirements should the property be subdivided and developed. Additionally, GVLT sees opportunities to improve the existing trails on the property and enhance the parkland with expanded trails and natural lookouts providing spaces for quiet reflection of nature and taking in the spectacular views. GVLT has already hosted preliminary design and feasibility meetings with landscape architects to brainstorm community interests and needs for parkland improvements. There was consensus that improvements should be minimal to reflect the natural beauty of the land, and also incorporate inclusive design for people with disabilities, language translation, and educational opportunities around Native American history. GVLT sees an opportunity to rehabilitate the existing trail tread to provide a smoother, more stable surface and create more sustainability to reduce erosion and improve drainage. Proposed enhancements and much needed maintenance to the existing trail would be covered entirely by GVLT private fundraising efforts. Budget Please see the attached detailed budget. Many of the budget items related to property investigations (e.g. title review, environmental site assessment, survey, etc.) have already been incurred by GVLT as we have been completing necessary property investigations to keep the transaction moving forward. GVLT has also committed $60,000 in earnest money to secure the purchase agreement. As you can see in the attached budget, GVLT is covering all of these costs and providing them as a match to the requested funds from City of Bozeman. Because our contract on the property is extremely short, we have had to move quickly to take advantage of this opportunity. Phase I: Property Acquisition – The negotiated purchase price for the property is $1,225,000 and the closing date is January 18, 2022. The appraised fair market value of the property is $1,400,000. Once the property hit the market in July, GVLT mobilized quickly and negotiated 2 285 extensively to secure a purchase agreement on the property. Our first offer on the property was actually rejected in favor of a different offer from a developer. Fortunately, we were able to submit a backup offer and when the developer’s offer terminated, our backup offer became active. Since our offer was accepted, GVLT has been working diligently through the necessary property investigations. As detailed in the attached budget, the transaction costs associated with the purchase of the property total a little over $100,000 which is all being covered by GVLT as a match to the project. Phase II: Restoration and Improvements – GVLT has worked with Design 5 to complete an initial feasibility assessment on proposed improvements to the property. The cost of improvements are rough estimates created on a short timeframe. Because of the natural beauty of the property, the general concept is to have a “light touch” and have any new amenities blend into the landscape. However, a more thorough master planning process for the park may need to be completed, which could modify the proposed budget. Many of the private donors to this project noted the opportunity to improve the accessibility, community spaces and natural features of the property as a primary motivation for giving to the project. As noted in the budget, approximately $300,000 of individual donor funds as well as in-kind contributions from GVLT, Design 5 and other groups will be used for site planning and improvements on the property. Property Due Diligence GVLT has completed substantial property investigations and due diligence on the property. All of the following reports have been provided to the City of Bozeman for review. • Property appraisal – GVLT contracted with an independent, certified appraiser to conduct an appraisal of the property. The effective date of the appraisal is September 1, 2021. The appraisal report determined that the fair market value of the property is $1,400,000. The A woman takes in the views as she walks her dog on the connector trail that traverses across the subject property 3 286 highest and best use of the property from an appraisal perspective was identified as a 5- lot subdivision. Utilities, water and sewer are accessible from pipelines that run north from Kagy Boulevard. The appraised value of the property is substantially higher than the purchase price, ensuring that GVLT and the City of Bozeman would not be paying above fair market value for the property. The City of Bozeman is listed as an intended user of the appraisal. • Title Review – GVLT ordered a title commitment from American Land Title Company of Bozeman. GVLT staff and outside counsel have reviewed the title and found the title to be very clean given the location of the property within city limits. The title commitment and title exception documents have been provided to City staff for review. • Phase I Environmental Site Assessment – GVLT contracted with TD&H engineering to conduct a Phase I Environmental Site Assessment of the property. The environmental assessment did not identify any environmental concerns on the property and no further action was recommended. • Property Boundary Survey – GVLT contracted with surveyor Jonathan Roen of Roen, Inc to locate and mark the boundaries of the property. • Minerals Ownership – GVLT contracted with a mineral ownership reviewer who determined that the current landowner own all mineral rights associated with the property. It is expected that the mineral rights would transfer if the property is acquired. Timeline for Completion: As noted above, GVLT is under contract on the property and the closing date for the transaction is January 18, 2022. If we have not secured the necessary funds by that date, the contract would terminate, and the property would return to the open market. Design and feasibility for improvements on the property would begin soon after purchasing the property in close coordination and collaboration with City of Bozeman parks staff. Conclusion Earlier this fall, GVLT launched a fundraising campaign for a portion of the acquisition costs and associated due diligence, project management and improvements. The community was overwhelmingly supportive of this project and 650 individuals made donations of all sizes our campaign totaling $800,000. Even more impressive than the financial commitments were the stories we heard from the community. We heard from couples who had first dates, engagements and weddings on Peets Hill. We heard from people who processed some of the hardest moments of their lives while sitting on a bench there. We heard about 4th of July Fireworks, solar eclipses, and sunsets. Families shared memories of sledding, teaching their children to ride a bike and walking the family dog. An overwhelming number of people made donations in honor of their pets. We heard from seniors who live at the Knolls and Aspen Point; the park is where they move daily and stay connected to community. We heard from youth cycling groups and cross- country running teams. We heard from staff who work at the hospital and use the trails along Peets Hill for a much-needed recharge. And while Peets Hill is an urban park in the heart of Downtown, we heard from many that the park’s natural beauty was its most important feature. 4 287 Burke Park contains some of the most diverse plant populations per acre (217 species) in the Greater Yellowstone Ecosystem! We even heard from visitors to our area that have enjoyed the views on their adventures. GVLT, the 300+ signers to our attached letter of support and our 650 donors for this project, believe that the project to Protect Peets’ Final Piece is worthy of a highly leveraged $800,000 investment of City of Bozeman. Thank you for considering this application and please let us know if there is additional information we can provide. Pups pose for a photo as official members of the ‘Peets Pack’ 90 people made donations to the project in honor of their dogs. 5 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 Legend Property BoundaryParks Existing TrailsStreams 0 0.25 0.50.125 Miles ´ Protect Peets' Final Piece - Vicinity Hospital Gallagator TrailMain St. Water Tower Downtown Kagy Rd.Church St.Peets Hill and Burke ParkBozeman CreekCemetary 318 Cash-in-Lieu of Parkland Funding Application November, 2021 Gallatin Valley Land Trust Attachment 3 Describe the process utilized for obtaining public input and support for the project. GVLT has seen an outpouring of support for this project, demonstrated by the conversations we have had with community members and the overwhelming financial backing the project has received. Over 650 donors have contributed to the project. This campaign counts as GVLT’s largest capital campaign in its 31 year history. Below is a map of the Gallatin Valley displaying the locations associated with donations for the Peets Hill project. People from all over the valley have rallied around this important piece of land in the heart of downtown Bozeman. It truly is a destination park that serves members of the community beyond the adjacent neighborhoods. In addition to financial support, please find attached letters of support from various partners, donors, and businesses that support this project. In addition, 315 community members signed on to a letter of support for this application. Finally, GVLT and landscape architecture firm Design 5 invited a variety of voices from the community to imagine what improvements to the property might look like. Design 5 is currently working on some 319 conceptual drawings based on this feedback that they will present to GVLT and the City of Bozeman for comment and approval. GVLT will work closely with the City of Bozeman Parks department in order to finalize details on how trails and park amenities can be added and/or improved. 320 Phase I: Land Acquisition Detail Total Cost City of Bozeman % CoB Match Source Purchase 485,000$ Cash in Lieu 315,000$ GVLT Bridge Loan to City Purchase of land 12 acres at approx. price of $2.33/square ft.1,225,000$ 800,000$ 425,000$ GVLT Transaction Costs Title and closing title insurance, closing costs 4,000$ -$ 4,000$ GVLT Appraisal property appraisal 4,000$ -$ 4,000$ GVLT Phase 1 ESA environmental site assessment 5,000$ -$ 5,000$ GVLT Boundary survey to locate property boundaries 1,500$ -$ 1,500$ GVLT Minerals ownership review to determine mineral ownership 525$ -$ 525$ GVLT Legal review contract drafting and review 12,000$ -$ 12,000$ GVLT Site planning to develop conceptual plan 20,000$ -$ 20,000$ Design 5 (donated) GVLT project management negotiations, due diligence, fundraising, 900hr @ $60hr avg 54,000$ -$ 54,000$ GVLT PHASE I Total 1,326,025$ 800,000$ 60%526,025$ 40% Phase II: Improvements Detail Total City of Bozeman % CoB Match Match Source Site Preparation and Reclamation Erosion control 6,500 SF @ $0.75 4,875$ -$ 4,875$ GVLT Grading and site layout 7,500 SF @ $0.38 2,850$ -$ 2,850$ GVLT Top soil & amendments 495 CY @ $5.00 2,475$ -$ 2,475$ GVLT Native reclamation seeding 40,500 SF @ $0.25 10,125$ -$ 10,125$ GVLT Mobilization 1 EA @ $5,000 5,000$ -$ 5,000$ GVLT Site Amenities - Trails & Overlooks 4' gravel paths 3,850 LF @ $11.00 42,350$ -$ 42,350$ GVLT Trail directional sign 3 EA @ $500 1,500$ -$ 1,500$ GVLT Trail educational sign 8 EA @ $1,000 8,000$ -$ 8,000$ GVLT Pet waste receptacle 2 EA @ $350 700$ -$ 700$ GVLT Sculpture park - concrete pads 530 SF @ $6.00 3,180$ -$ 3,180$ GVLT Trail benches 3 EA @ $1,500 4,500$ -$ 4,500$ GVLT Boulder seating at overlook 15 EA @ $750 11,250$ -$ 11,250$ GVLT Site Amenities - Gateway & Gathering Space Circular gravel pad (30')706 SF @ $8.00 5,648$ -$ 5,648$ GVLT Boulder seating 17 EA @ $750 12,750$ -$ 12,750$ GVLT Mountain Range View Finder 4 EA @ $12,000 48,000$ -$ 48,000$ GVLT Inset Steel Medicine Wheel 1 EA @ $45,000 45,000$ -$ 45,000$ GVLT Donor Gateway - Engraved boulders 20 EA @ $750 15,000$ -$ 15,000$ GVLT Design & Project Management Landscape design site planning 18,000$ -$ 18,000$ Design 5 (donated) Civil engineer construction design 7,500$ -$ 7,500$ GVLT Native plant consultant for restoration work 2,000$ -$ 2,000$ GVLT GVLT project management 300 hrs @ $60/hr 18,000$ 18,000$ GVLT Contingency 10% construction contingency 30,000$ -$ 30,000$ GVLT PHASE II Total 298,703$ 298,703$ Total Cost City of Bozeman Match % Match TOTAL 1,624,728$ 800,000$ 49%824,728$ 51% CIL Request 485,000$ Phase I: Land Acquisition (Fall/Winter 2021) Peets Hill/Burke Park Expansion Project Budget Phase II: Improvements (Spring/Summer 2022) 321 Cash-in-Lieu of Parkland Funding Application November, 2021 Gallatin Valley Land Trust Attachment 6 Describe how in-kind contributions will be provided. GVLT is providing a cash match fundraised through private philanthropy but will also be working with volunteers and contractors to bring in kind donations to the project. Design 5 Landscape Architects have already contributed over $20,000 toward conceptual designs of park improvements. GVLT also regularly works with volunteers to build and improve trails. This property is being considered as the site for our 2022 National Trails Day event in which we recruit hundreds of volunteers to work on important community trail projects. 322 Cash-in-Lieu of Parkland Funding Application November, 2021 Gallatin Valley Land Trust Attachment 7 Describe how the project relates to the goals and stated needs of PROST. The acquisition and improvement of the proposed addition to Burke Park aligns with key elements of the City of Bozeman’s Park, Recreation, Open Space, and Trails Plan (PROST Plan), including: 3.4.1 Acquisition. “The City also obtains land for park and recreational uses through fee simple acquisition by purchase or donation. Land can be purchased using a variety of funding sources, including cash-in-lieu fees, grant monies, private donations, etc.” 6.6 PROST Plan Survey Results. “As noted in Chapter 1, a community survey was conducted as part of the preparation of the PROST Plan. Of the 315 survey respondents, 221 listed trails as one of the recreational facilities that are most often used by members of their household (70 percent of respondents) and 216 listed walking/hiking as one of the recreational activities that are most important to members of their household (69 percent of respondents). When asked to think of a recommendation to improve the City’s recreation opportunities, more and/or better trails was the most frequently listed response. Finally, when asked which recreation activity and related facility should be the highest priority for the City, more and/or better trails was the most often listed facility.” 10.1.1 Recommendation. “Because the current system is not working well, revise the City’s cash-in-lieu of parkland dedication system so that cash-in-lieu funds can be collected, amassed and used as needed to fund parkland acquisition.” 10.1.2 Recommendation. “Consolidate and aggregate parkland to develop larger and more functional parks whenever possible.” 10.8.1 Implementation Strategies. “Improve existing trails and secure needed trail connections as opportunities arise.” In addition, the Burke Park Master Plan (2003) includes: Community input from the 2003 Burke Park Master Plan indicates that the following issues were “very important” to “all of the participants”: • Viewshed encroachment (minimize nearby development) • De facto trails on private land (secure adjacent land for future) • Undeveloped open land (protect this) • Purchase of CMC and other private land 323 Page 16 of the Master Plan includes “several parcels of adjacent land [that] are critical to the future of Burke Park,” including “the privately owned land at the southwest end of Burke Park (where the Simkins Spur Trail winds)…” 324 915 Highland Boulevard | Bozeman, MT 59715 | 406-414-5000 | bozemanhealth.org October 20, 2021 City of Bozeman 121 N Rouse Ave Bozeman, MT 59715 Whom it May Concern, Bozeman Health is proud to submit this letter in support of Gallatin Valley Land Trust’s (GVLT) application for funding from City of Bozeman’s Cash in Lieu of Parkland program to purchase 12 acres at the south end of Peets Hill. Peets Hill is the heart of our local trail system, Bozeman’s most iconic park, and the property contains an important trail connection from Peets Hill to Kagy Blvd and the rest of the Main Street to the Mountains system. Bozeman Health Deaconess Hospital and Hillcrest Senior Living are close neighbors to Peets Hill/Burke Park and appreciate the tremendous value it provides to our employees, our visitors, and our residents. As a health system dedicated to improving community health and quality of life, we appreciate the friendship and collaboration we have with community partners like GVLT. Securing this additional land is important—not just to nearby residents, but for residents who come to use this property from all over Greater Gallatin Valley. A Bozeman Health employee shared that they and their partner often walk Peets Hill on Sunday mornings, driving from across town to enjoy the views and with the knowledge that they are likely to see other colleagues out enjoying the trail as well. Bozeman Health and GVLT have a strong partnership and work together often, most recently on the Wellness Connector Trail in the Highland Glen Nature Reserve. Their dedication to overall health and well-being and ensuring that trails are accessible to all is to be commended. It is important that Peets Hill/Burke Park remain available for residents for the years to come, to directly and positively impact community health and in support of living an #outdoorhealthylife. We’ve shared before that research shows a positive relationship between neighborhood open space and physical activity. People in communities with abundant open spaces generally enjoy better health. As Southwest Montana’s healthcare provider of choice, we hope you favorably review GVLT’s application as this is an important opportunity to improve our community’s health and quality of life. With you in health, John Hill President and CEO Bozeman Health 325 To the Recreation and Parks Advisory Board and Bozeman City Commission, Thank you for considering the Gallatin Valley Land Trust's application for cash in lieu of parkland funds to support the acquisition of the 12 acres at the south end of Peets Hill. We, the undersigned, support the allocation of funds from the Cash in Lieu program because Peets Hill is a truly special and unique place for City residents and visitors alike. Peets Hill is a popular destination and cultural icon for people all over the city, not just downtown. It is where our community comes together with neighbors, friends, family, hospital staff, MSU students, seniors, youth, and of course, our dogs. These public dollars would be highly leveraged by GVLT's successful private fundraising and we believe that this is a worthy and appropriate use of the City's Cash In Lieu of Parkland funding. Thank you for your consideration and support of the shared outdoor spaces that make this place so special. The 327 individuals below have signed on to this letter of support. They are joined by 650 individuals who have made contributions to Protect Peets’ Final Piece. Aaron Wernham Adam Johnson Adam St.Pierre Alexa Coyle Alison Bayr Alison Totten Allison Throop Aloha Johnson Amanda Eva Jungles Amanda Strolin Amie Majerus Amy Berghold Amy Falcione Amy Kleist Andy Montgomery Ann Halverson Ann Kunsak Anna Allen Anna Patterson Anna Sellers Anna Wearn Anne Banks Anne Lewis Annmarie Sheets Art Sandborgh Audrey Wooding Barb Cestero Barbara Mall Barbara Sirovatka Barbara Turner- Lantz BB Webb Becca Mulhill Becky Saleeby Ben Ford Bern Kohler Beth Madden Betsy Beauvais Bill and Jane Gum Bill Pailthorpe Brad Benne Breanna Polacik Brenda Boyd Cooper Brenda Coppede Brett Conner Brian Haskins Bridget Uzzelle Bronson Neff Bruce Combs Bryna Barfknecht Bunny Gaffney Byron Groh Carlene Pailthorpe Carol Ann Flaherty Carol Weaver Caroline Groth Casey Sheahan Catherine Courtenaye Cathleen Stamm Cathy Baumbauer Cathy Costakis Cathy Gnehm Spencer Cedar Mathers- Winn Celeste Ellig Charles Geller Charles Hussey Chelsea Quiñones Cheryl Eiholzer Cheryl Santos Christina Reynolds Christine Stoppa Cimberli Kearns Claire Chandler Claire Gillam Clara Johnson Pincus Clark Bosley Clay Ellig Colleen Keller Collette Brooks- Hops 326 Cooper Shea Cora DeSantis Cori Soucie Courtney Grigg Cynthia N Evans Dan Riley Darra Perdaems Dave Ball David Knickerbocker David Peters Davina Stebbins Dean Littlepage Debbie Schenk Deborah Peters Debra De Bode Dee-O-Gee Bozeman Devin Archilla Diane Donnelly Dominique Hays Donald Aandal Eddie Steinhauer Edith Harrington Elaine Chandler Eleanor Barker Elizabeth Domenech Elizabeth Flesch Ellen Stephenson Emily Eicholtz Emily Qiu EmilyBojorquez Emma Burick Emma Kucharski Eric Nielsen Erin Downey Erin Eisner Erin Jackson Erinn Zindt Faye Boom Fr. D Gregory Smith Gail Weingart Sedivy Gary Kachadurian Gerald Nielsen Gerrie Mohr Gerry Lang Gina Carolan Glenn Allinger Gregory Houston Hannah Beckner Hannah Gross Harriet Tamminga Heather Stewart Hillary Guilford Hillary Wernlund Walz Honor Randall Ian Roderer Inese Wheeler Isabelle McGrail Jackson Deane Jacob Abel Jacob Robl Jaime Martinez Jaimi Melville Jan Deal Jana Van Dam Jane Mittelsteadt Jane Wilson Janet Fox Janet Rolfs Janet Young Jeff Swan Jeffrey Dineen Jena Olney Jenélle Dowling Jenna Fallaw Jennifer Hicks Jennifer Lammers Jessica Groseth Jessica Hickey Jessica Minalga Jessica Quay Jim Walseth Jodi Atterberg John Applegate John Backes John Payton Jon Maxwell Jon Zemans Joni Evans Joseph Capella Joseph Quiñones Josh Hays Joshua Gallatin Judy Tucker Julia Henderson Julia Mazade Julie MacGillis Julie Nix Kara Adams Kasey Schultz Kasey Welles Kassandra Betterley Kathy Allen Kathy Powell Katie Minalga Katie Plumb Katie Scharmer Katrina Ivancic Katy Souther Keith Laskowski Kelly Pohl Kelsey White Kelsi Tjernagel Ken and Barbara Kaufman Ken McKenna Ken Pierce Kimber Brown Kimberly Schlenker Kristin Taylor Lacey Egelus Laura Pertuit Laura Prindiville Laurel Sabol Lauren McGee Lawrie Lieberman Lee Allinger Leslie Taylor Linda Pierce Linda Semones Lindsay Hibbs Lindsey Henson Lisa Meredith Shick Lisa Riley 327 Lisa Roos Liz Sherman Lynn Altizer Madeline Kirch Madison Currey Madison Stevens Mandy Meyer Margaret Ward Mark Ringer Mary Keefer Matt Lavin Matt Thompson Maurene Hinds McCall Dunn Megan Hartwig Megan Higgs Melinda Winegardner Melissa Bowen Melissa Butynski Michael Fallaw Michael McGee Michaela Hackner Michaela O'Donoghue Michele Eckhardt Michele McKinnie Michelle Thiel Milton Mozen Miranda Wheeler Molly Bowman Monique Renard- Pierce Moriah Ellig Nancy Blake Nancy Davenport Nancy Ostlie Natalie McKay Nichole Joyce Nick Stadie Nolan Sunderland Pam Szelmeczka Pascal Beauvais Pat Ramos Patricia Cornelious Patricia Dowd Patricia Sherman Patricia Simmons Patrick Costello Patrick Gale Patrick Mitchell Patrick Nix Patti Steinmuller Paul Guest Paula Mozen Peder Groseth Pete Fay Peter Thatcher Philip Naro Rachel Black Rachelle McLain Randy Throop Richard Gillette Richard Taylor Rob Jaeger Rob Maher Robert Larsen Robert Meshew Robert Morrell Robin Bosley Robin Hape Rochelle Nielson Roger Fischer Ron Kaye Roni Zimmer Rosemary Keller Ryan ONeill Salal Huber- McGee Sam Haraldson Sandy Dodge Sarah Day Sarah Price Sasha Slorer Scott Hinds Shana Wood Sharon Iltis Sheena Perata Sheri Simkins Sonja Chandler Spencer Bruce Stacie Coppens Stella Moss Stephen T. Cole Steve Griswold Steve Seright Steven Krezminski Stuart Strolin Sue Parrish Sumana Petaja Sumner Anacker Sunniva Russell Susan Hinkins Susan Penner Taylor Casey Teresa Seright Teri Ball Tim Marcinko Tisha Jones Tobie Laskowski Toby Koffman Tomas Gedeon Tory Atkins Trevor Soucie Valerie Copie Vivien Park Whitney Bermes Yadira Alvarez Yvonne Leung Yvonne Rudman 328 October 20, 2021 To: Bozeman City Commissioners Re: City of Bozeman’s Cash in Lieu of Parkland Dear Bozeman City Commissioners: I am writing on behalf of the Downtown Bozeman Partnership Board members in support of GVLT’s application for funding from City of Bozeman’s Cash in Lieu of Parkland program to purchase 12 acres at the south end of Peets Hill. As a Bozeman resident of 22 years, I vividly remember my early years here spending countless hours walking Peet’s hill teaching my dog social skills and admiring the new community I was privileged to be a part of. Now, as an employee of the Downtown Bozeman Partnership for over 15 years, I have watched this easily accessible walking trail grow into the heart and soul of our city-wide trail system as well as a critical community gathering space due to its central location, amazing views, and welcoming nature. There is no doubt that Peet’s Hill has become a vital community asset and that this sentiment is shared by nearly all of our residents, employees, visitors and beyond. Also, with Peet’s Hill being GVLT’s first community-trail program endeavor, they continue to be an integral part of bringing the community together to preserve and protect the greenspace within our community that we all love and cherish. And as future development threatens our coveted urban greenspace, with leadership from GVLT and support from the City of Bozeman through the cash in lieu of parkland funds, the time has come once again to take action to preserve and protect the final piece of this community asset. So, it is with great passion and excitement that the Downtown Bozeman Boards support the $800,000 match of City Cash in lieu of Parkland funds to purchase the final 12 acres of Peet’s Hill as well as future enhancements and improvements to this special piece of property. Thanks in advance for your time and consideration. Sincerely, Ellie Staley Executive Director Downtown Bozeman Partnership 329 October 27, 2021 City of Bozeman 121 N Rouse Bozeman, MT 59715 To whom it may concern: Eagle Mount is in support of GVLT’s application for funding from the City of Bozeman’s Cash in Lieu of Parkland program to purchase 12 acres at the south end of Peets Hill. In particular, one of the improvements that GVLT is proposing is to create all abilities access to overlooks on Peets Hill. These all abilities access spaces will be paired with the paved, accessible parking available near the water tower on Peets Hill. This will create yet another opportunity for people with limited mobility or our neighbors who use adaptive equipment to visit this community resource and enjoy the benefits of outdoor recreation. Eagle Mount is in support of the public/private partnership between the City of Bozeman and GVLT and are in support of GVLT’s application for funding from the City of Bozeman’s Cash in Lieu of Parkland program to purchase 12 acres at the south end of Peets Hill. Appreciatively, Kevin Sylvester Executive Director 330 October 27, 2021 City of Bozeman 121 N Rouse Ave. Bozeman, MT 59715 Attention: Recreation and Parks Advisory Board City Commission Re: Letter of Support for GVLT’s application for funding from the City’s Cash in Lieu of Parkland As a transit provider and advocate of multi modal transit connections and opportunities, the connection that Peet’s Hill to Kagy Boulevard and the rest of the Main Street to the Mountains trail system provides directly in conjunction with bike lanes and Streamline bus stops is invaluable in our community. Our route redesigns for Streamline that went into effect in August 2021 and our long term transit plans were informed by and designed around these systems and connections. Losing this corridor would create a significant disconnect in systems and loss of access points, particularly along Kagy Boulevard where reduced traffic congestion is a critical component to safety and climate impacts. GVLT has a demonstrated history and capacity to successfully acquire properties to meet the health and wellness outcomes for our community. This appears to be an eligible investment from the Cash in Lieu of Parkland funds and creates more parkland for the City of Bozeman. HRDC fully supports an investment in this community initiative and the public/private partnership proposed between the City of Bozeman and GVLT. Sincerely, Heather Grenier President/CEO 331 October 21, 2021 Cash In Lieu of Parklands Program City of Bozeman Bozeman, Montana 59715 Dear City of Bozeman Officials, Mountain Time Arts firmly supports Gallatin Valley Land Trust's application for the Cash In-Lieu of Parklands (CILP) funds for the extension of Peets Hill. Gallatin Valley Land Trust is an important partner of Mountain Time Arts. One of the many ways that Gallatin Valley Land Trust has supported Mountain Time Arts is a contribution to the "Lighting of the Teepees - Illuminating Indigenous Peoples' Day" on Peets Hill. We hope that we will work closely with Gallatin Valley Land Trust and the City of Bozeman on future art installations and events on Peets Hill. Thank you for considering our support in Gallatin Valley Land Trust's application for CILP funds. Kind regards, MaryBeth MaryBeth Morand Executive Co-Director Mountain Time Arts marybeth@mountaintimearts.org mountaintimearts.org 332 Outside Bozeman • Southwest Montana’s Outdoor Journal • outsidebozeman.com 313 W. Mendenhall #8 • PO Box 1101 • Bozeman, MT 59771 • 406-582-8068 • info@outsidebozeman.com October 20, 2021 REGARDING THE PEETS HILL ACQUISITION BY GVLT: On any given day, any season of the year, Peets Hill bustles with Bozemanites. Young and old, male and female, solo and in groups, the good citizens of this town take to their favorite in-town park to exercise, breathe the fresh air, have a picnic, walk the dog, catch up with friends, or enjoy the setting sun. Before work, at lunch, after work, and on the weekend, these folks flood in from every point on the compass. That all-day, multi-directional access is one of the things that makes Peets Hill so special. Whatever your approach angle, whatever your mode of travel—on foot, by bike, atop a skateboard or scooter, in a car—a trail guides you in, directly to its long spine, its beating heart. From there you can strike out in another direction, to run errands, visit a friend, or continue your run or ride. Can you imagine losing the southern portion of Peets Hill? It would be like carving off the corner of Central Park in New York City, replacing that open public space with private condos. It would change everything. It would degrade the access, depreciate the character, and devalue the experience. That cannot happen. We need Peets Hill, and we need it in its entirety. We need it for our daily dose of nature. We need it to restore our sanity amid the increasing hustle and bustle of Bozeman. We need it for our quality of life. We need it for our way of life. We need it for our children, and theirs. As a 30-year resident of Bozeman who enjoys Peets Hill often, I cannot think of a more important addition to city parkland. As a 20-year business owner whose customers enjoy Peets Hill often, I cannot think of a better use of Cash in Lieu of Parkland funds. Please support GVLT’s efforts and help them close the deal on this important acquisition. Please continue Bozeman’s long history of predominately non-vehicular access to a centralized recreation area and connective trail network whose quietude and natural beauty provides solace to hundreds of people every day and to thousands, perhaps tens of thousands, every year. Please help save Peets Hill. Mike England Outside Bozeman Magazine mike@outsidebozeman.com 333 Penelope Pierce 1029 North Two Waters Way Belgrade, Montana 59714 406-570-0152 pierce.penelope@gmail.com October 22, 2021 City of Bozeman The Whom It May Concern As the former Executive Director of the Gallatin Valley Land Trust (GVLT), I am writing to voice my strong support of GVLT’s application for full funding from the City’s Cash in Lieu of Parkland. What a fabulous project! Peets Hill is the very heart of our Main Street to Mountains trail system and a cherished park. It was the first project GVLT did, back in the early 90’s and has become an iconic part of Bozeman, loved and visited by tens of thousands of people (and dogs) each year. I cannot think of a better use of Cash in Lieu of Parklands funds as our valley continues to grow at an unprecedented rate. Places where people can go to be in nature, visit with friends and neighbors and see our beautiful valley are fast disappearing, and to have another beloved open space lost to development would be heartbreaking for so many and for Bozeman. We need places like Peets Hill. It is a community-gathering place at it’s finest. Thank you for all that you do and for you consideration. Sincerely, Penelope Pierce 334 City of Bozeman 121 N. Rouse Ave. Bozeman, MT 59715 October 27, 2021 To Whom It May Concern: I am writing today in support of GVLT’s application for funding from the City’s Cash in Lieu of Parkland for 12 acres of open space at the south end of Peets Hill. As the region’s leading advocates for mountain bike trails, the Southwest Montana Mountain Bike Association (SWMMBA) is committed maintaining and enhancing trail access, and this project does just that. With over 2,500 members, SWMMBA is the largest trails organization in the state, and many of our members use this open land on a regular basis. In-town trail connectivity is vital to improving community health and wellness, creating sustainable active transportation infrastructure, and connecting to our outdoor spaces. The area in question provides critical access to other town trails, which in turn connect with our state and federal public lands on the south end of the Gallatin Valley. Losing these connections would pose safety risks to cyclists, increase car traffic, and further add to congestion at local trailheads. Cycling is increasing in popularity and projects such as these allow our sport to continue to grow, providing another beneficial form of active recreation while also adding to the economic prosperity of the region. For these reasons and more, the SWMMBA board of directors fully supports GVLT’s application for Cash in Lieu of Parkland funding. On behalf of the SWMMBA Board, thank you for the opportunity to comment. Sincerely, Ian Jones Board President 335 336 Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33 337373 Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33 338374 Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33 339375 Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33 340376 Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33 341377 Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33 342378 Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33 343379 Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33 344380 Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33 345381 William Cochran, Board Chair Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33 346382 September 16, 2021 NCA Ref. No. 20210901 Client: Gallatin Valley Land Trust 212 S. Wallace, Suite 101 Bozeman, MT 59715 Attn: Brenden Weiner RE: Appraisal Report: Peets Hill and Burkes Trail Land Appraisal “Peets’ Final Piece” NHN Church/Sourdough Rd. Bozeman, MT 59715 Dear Mr. Weiner: In accordance with your request, a real estate appraisal has been prepared for the vacant land currently in three parcels which comprise the 12-acre Peets Hill/Burke Trail area located east of Church/Sourdough Rd. The purpose of this report is to provide an opinion of market value for this vacant land. The Gallatin Valley Land Trust (GVLT) has entered into a purchase agreement with the sellers after being actively marketed for sale by a professional realtor. The GVLT intends to convert these parcels to parklands for public use. A portion of the site is already encumbered with a trail easement (Burke Trail) which essentially bifurcates these parcels. The subject parcels are located adjacent to the City of Bozeman public park known as Peets Hill. After acquisition, the Gallatin Valley Land Trust intends to transfer the 12 acres to the City of Bozeman expanding the size of Peets’ Hill Park by approximately 30%. Media and Gallatin Valley Land Trust have dubbed these additional parcels “Peets’ Final Piece”. For years the users of Peets’ Hill assumed incorrectly that these 12 acres were in fact part of the City of Bozeman parklands but in fact these were owned by a local family corporation known as Simgraf Corporation. The appraiser has obtained adequate information to complete this report in a manner that is credible and not mis-leading. The accompanying appraisal report identifies the subject property and presents the specific market data and analyses leading to the opinion of market value. The report has been prepared with the intent to comply with the Standards of Professional Practice of the Appraisal Institute and the Uniform Standards of Professional Appraisal Practice of the Appraisal Foundation. This appraisal has also been developed and prepared in compliance with the requirements of The Code of Professional Ethics and Standards of Professional Appraisal Practice of the Appraisal Institute, the Uniform Standards of Professional Practice (USPAP) and has been prepared in compliance with client requirements. The depth of discussion contained in this report is specific to the needs of the client and for the intended use. The appraiser is not responsible for unauthorized use of this report. 347 Based upon research and analysis, subject to the assumptions and limiting conditions contained within this report, the opinion of market value for the proposed easement, as of September 01, 2021, is as follows: Market Value Effective Date Market Value Fee Simple September 01, 2021 $1,400,000 Thank you for the opportunity to work with you on this assignment. Sincerely, North Coast Appraisal Dominique M. Savoie General Certified Appraiser REA-RAG-LIC-690 Valid through 10/31/2022 CLIENT: Gallatin Valley Land Trust 212 S. Wallace, Suite 101 Bozeman, MT 59715 Attn: Brenden Weiner INTENDED USERS: Gallatin Valley Land Trust City of Bozeman APPRAISER: Dominique M Savoie General Certified Appraiser North Coast Appraisal PO Box 1371 Three Forks, MT 59752 SUBJECT: Peets Hill Land Appraisal NHN Church and Sourdough Rd. “Peets’ Final Piece” Bozeman, MT 59715 348 Bozeman (Main Office) (406) 587-5563 (888) 405-5299 Fax: (406) 587-8038 1800 West Koch Street, Suite 1 P.O. Box 396 Bozeman, MT 59715 59771-0396 bozeman@altc.biz www.altc.biz Ennis (Branch Office) (406) 682-5299 (800) 405-5299 Fax: (406) 682-5288 3 Geyser Street P.O. Box 1248 Ennis, MT 59729 ennis@altc.biz COMMITMENT FOR TITLE INSURANCE Date:August 30, 2021 Order No.:1S-05147 Prepared For:Gallatin Valley Land Trust Via E-mail: cc:Starner Commercial Real Estate Attn: Thomas Starner Via E-mail: tom@starnercommercial.com Attn: Andrew Ash Via E-mail: andrew@starnercommercial.com cc:Berkshire Hathaway Home Services Montana Properties - Bozeman Attn: Sarah Day Via E-mail: sarah.day@bhhsmt.com cc:Simgraf Corporation c/o Starner Commercial Real Estate Attn: Thomas Starner cc:American Land Title Company Attn: Cresta Sundling-Pahut 349 This page is only a part of a 2016 ALTA Commitment for Title Insurance issued by Chicago Title Insurance Company. This Commitment is not valid without theNotice; the Commitment to Issue Policy; the Commitment Conditions; Schedule A; Schedule B, Part I—Requirements; and Schedule B, Part II—Exceptions; and acounter-signature by the Company or its issuing agent that may be in electronic form. Copyright American Land Title Association. All rights reserved.The use of this Form (or any derivative thereof) is restricted to ALTA licensees andALTA members in good standing as of the date of use. All other uses are prohibited.Reprinted under license from the American Land Title Association. ALTA Commitment for Title Insurance 8-1-16 SCHEDULE A ALTA COMMITMENT FOR TITLE INSURANCE File No.: 1S-05147 Title Officer: Wendy Schlosser Revision No.: 1 -To revise legal description Closing Officer: Cresta Sundling-Pahut 1.Commitment Date: July 23, 2021 at 12:00 AM 2.Policy or Policies to be issued: A.Standard ALTA Owners Policy (06/17/06) Proposed Policy Amount:$1,225,000.00 Standard Premium:$2,816.75 Proposed Insured:Gallatin Valley Land Trust 3.The estate or interest in the Land described or referred to in this Commitment is Fee Simple. 4.The Title is, at the Commitment Date, vested in: Simgraf Corporation, a Montana Corporation 5.The Land is described as follows: PARCEL I: All of Blocks Twenty-Two (22), Twenty-Three (23) of Electric Heights Addition to Bozeman, Montana and also all streets and alleys adjacent thereto, the same having been vacated by the City of Bozeman, by Ordinance No. 169 which said Ordinance was adopted August 4, 1898 and recorded September 21, 1899 in Volume 7 of Miscellaneous Records at page 80, including that portion of Ida Avenue vacated by the City of Bozeman, by Ordinance No. 1459 recorded in Film 182, page 4573, Records of Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana. PARCEL II: Lot A of Aldworth's Rearrangement of Block 24 of Electric Heights Subdivision, Lot 3, Block 4 of Graf's First Subdivision and Tract 1 of Certificate of Survey No. 2015, located in the Southeast One-Quarter of Section 18, Township 2 South, Range 6 East, P.M.M., City of Bozeman, Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder, Gallatin County, Montana. (Plat J-287) 350 This page is only a part of a 2016 ALTA Commitment for Title Insurance issued by Chicago Title Insurance Company. This Commitment is not valid without theNotice; the Commitment to Issue Policy; the Commitment Conditions; Schedule A; Schedule B, Part I—Requirements; and Schedule B, Part II—Exceptions; and acounter-signature by the Company or its issuing agent that may be in electronic form. Copyright American Land Title Association. All rights reserved.The use of this Form (or any derivative thereof) is restricted to ALTA licensees andALTA members in good standing as of the date of use. All other uses are prohibited.Reprinted under license from the American Land Title Association. ALTA Commitment for Title Insurance 8-1-16 SCHEDULE B, PART I REQUIREMENTS File No.: 1S-05147 All of the following Requirements must be met: 1.The Proposed Insured must notify the Company in writing of the name of any party not referred to in this Commitment who will obtain an interest in the Land or who will make a loan on the Land. The Company may then make additional Requirements or Exceptions. 2.Pay the agreed amount for the estate or interest to be insured. 3.Pay the premiums, fees, and charges for the Policy to the Company. 4.Documents satisfactory to the Company that convey the Title or create the Mortgage to be insured, or both, must be properly authorized, executed, delivered, and recorded in the Public Records. 5.If any document in the completion of this transaction is to be executed by an attorney-in-fact, the Power of Attorney form must be submitted for review prior to closing. 6.MCA 15-7-305 (Realty Transfer Certificate Required) requires a seller and buyer to complete a Realty Transfer Certificate, as a condition of recording a deed and reflecting changes to the county tax assessment records. 7.This Company will require the following documents in order to insure a conveyance, lease, exchange, other disposition or encumbrance by Simgraf Corporation: a. Resolution of the Board of Directors authorizing the subject transaction and identifying who can sign on behalf of said corporation. 8.If funds are to be wired as part of this transaction, our office will require verbal authentication from the authorized parties. *Please Note: Online banking fraud is on the rise. Changes to wiring instructions will not be permitted. END OF SCHEDULE B-I REQUIREMENTS *Additional requirements and/or exceptions may be added as details of the transaction are disclosed to, or become known by the company. 351 This page is only a part of a 2016 ALTA Commitment for Title Insurance issued by Chicago Title Insurance Company. This Commitment is not valid without theNotice; the Commitment to Issue Policy; the Commitment Conditions; Schedule A; Schedule B, Part I—Requirements; and Schedule B, Part II—Exceptions; and acounter-signature by the Company or its issuing agent that may be in electronic form. Copyright American Land Title Association. All rights reserved.The use of this Form (or any derivative thereof) is restricted to ALTA licensees andALTA members in good standing as of the date of use. All other uses are prohibited.Reprinted under license from the American Land Title Association. ALTA Commitment for Title Insurance 8-1-16 SCHEDULE B, PART II EXCEPTIONS File No.: 1S-05147 THIS COMMITMENT DOES NOT REPUBLISH ANY COVENANT, CONDITION, RESTRICTION, OR LIMITATION CONTAINED IN ANY DOCUMENT REFERRED TO IN THIS COMMITMENT TO THE EXTENT THAT THE SPECIFIC COVENANT, CONDITION, RESTRICTION, OR LIMITATION VIOLATES STATE OR FEDERAL LAW BASED ON RACE, COLOR, RELIGION, SEX, SEXUAL ORIENTATION, GENDER IDENTITY, HANDICAP, FAMILIAL STATUS, OR NATIONAL ORIGIN. The Policy will not insure against loss or damage resulting from the terms and provisions of any lease or easement identified in Schedule A, and will include the following Exceptions unless cleared to the satisfaction of the Company: A.Any defect, lien, encumbrance, adverse claim, or other matter that appears for the first time in the Public Records or is created, attaches, or is disclosed between the Commitment Date and the date on which all of the Schedule B, Part I - Requirements are met. B.GENERAL EXCEPTIONS 1. Rights or claims of parties in possession, or claiming possession, not shown by the public records. 2. Encroachments, overlaps, questions of location, boundary, area of other matters which would be disclosed by a survey. 3. Easements, prescriptive rights, rights of way, streets, roads, alleys or highways not disclosed by the public records. 4. Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, all as imposed by law and not shown by the public records. 5. Unpatented mining claims. 6. Reservations or exceptions in the patents or in Acts authorizing the issuance thereof. 7. Water rights, claims or title to water. 8. Taxes or special assessments which are not shown as existing liens by the public records of any taxing authority that levies taxes or assessments on real property or by the public records. 9. Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the public records. Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, and 9 will not appear as printed exceptions on extended coverage policies, except as to such parts thereof which may be typed as a Special Exception in Schedule B-II. C.SPECIAL EXCEPTIONS 1.Any right, title, or interest in minerals in or under said land including, but not limited to, metals, oil, gas, coal, other hydrocarbons, sand gravel or other common variety materials, stone, mineral rights, mining rights, easement rights, water rights, claims or title to water or other matters relating thereto, whether expressed or implied and whether or not shown by the public records. 2.Taxes for the year 2021 and subsequent years. Taxes for the year 2020 are paid. Taxes for the year 2021 are a lien not yet due or payable. (Taxes for the year 2020 - first half - $669.64, second half - $669.64. Parcel No. RGH5527) [Affects Parcel I] [Gallatin County tax information attached] 352 This page is only a part of a 2016 ALTA Commitment for Title Insurance issued by Chicago Title Insurance Company. This Commitment is not valid without theNotice; the Commitment to Issue Policy; the Commitment Conditions; Schedule A; Schedule B, Part I—Requirements; and Schedule B, Part II—Exceptions; and acounter-signature by the Company or its issuing agent that may be in electronic form. Copyright American Land Title Association. All rights reserved.The use of this Form (or any derivative thereof) is restricted to ALTA licensees andALTA members in good standing as of the date of use. All other uses are prohibited.Reprinted under license from the American Land Title Association. ALTA Commitment for Title Insurance 8-1-16 3.Taxes for the year 2021 and subsequent years. Taxes for the year 2020 are paid. Taxes for the year 2021 are a lien not yet due or payable. (Taxes for the year 2020 - first half - $488.04, second half - $488.02. Parcel No. RGH44175) [Affects Parcel II] [Gallatin County tax information attached] 4.Taxes for the year 2021 and subsequent years. Taxes for the year 2020 are paid. Taxes for the year 2021 are a lien not yet due or payable. (Taxes for the year 2020 - first half - $146.37, second half - $146.35. Parcel No. RGH44176) [Affects Parcel II] [Gallatin County tax information attached] 5.Special assessments levied by the City of Bozeman for 2020-2021 under Account No. 143830: [Affects Parcel II] First Half: Parks & Trails District. Arterial & Collector. Street Maintenance. Tree Maintenance. First Half Amount: $438.45. Installment is paid. Second Half: Parks & Trails District. Arterial & Collector. Street Maintenance. Tree Maintenance. Second Half Amount: $438.45. Installment is paid. No liability is assumed for any special assessments, snow removal, sewer assessment or garbage assessment not set forth in the Assessment Books of the City of Bozeman. 6.Conditions and Covenants appearing of record on the recorded plat for Aldworth's Rearrangement J-287, records of Gallatin County, Montana, but omitting covenants or restrictions, if any, based on race, color, religion, sexual orientation, familial status, marital status, disability, handicap, national origin, ancestry, or source of income, as set forth in applicable state or federal laws, except to the extent that said covenant or restriction is permitted by applicable law. 7.Grant of Easement to Westland Enterprises, Inc., recorded May 5, 1993 in Film 131, page 3782, records of Gallatin County, Montana, including the terms and provisions therein. 8.Trail Corridor Access Easement Agreement to the City of Bozeman, dated February 10, 1998 and recorded December 24, 1998 in Film 193, page 352, records of Gallatin County, Montana, including the terms and provisions therein. 9.Trail Corridor Access Easement Agreement to the City of Bozeman, dated February 12, 1998 and recorded December 24, 1998, in Film 193, page 363, records of Gallatin County, Montana, including the terms and provisions therein. 10.Certificate of Subdivision Plat Approval recorded March 7, 2000, as Document No. 2008162, records of Gallatin County, Montana, including the terms and provisions therein. 353 This page is only a part of a 2016 ALTA Commitment for Title Insurance issued by Chicago Title Insurance Company. This Commitment is not valid without theNotice; the Commitment to Issue Policy; the Commitment Conditions; Schedule A; Schedule B, Part I—Requirements; and Schedule B, Part II—Exceptions; and acounter-signature by the Company or its issuing agent that may be in electronic form. Copyright American Land Title Association. All rights reserved.The use of this Form (or any derivative thereof) is restricted to ALTA licensees andALTA members in good standing as of the date of use. All other uses are prohibited.Reprinted under license from the American Land Title Association. ALTA Commitment for Title Insurance 8-1-16 11.Subdivision Plat or Certificate of Survey Local Health Officer Approval recorded March 7, 2000, as Document No. 2008163, records of Gallatin, Montana, including the terms and provisions therein. 12.Ordinance No. 1459 recorded March 25, 1998 in Film 182, page 4573, records of Gallatin County, Montana, including the terms and provisions therein. 13.Right of Way Easement to The Montana Power Company recorded February 21, 1961 in Book 136, page 535, records of Gallatin County, Montana, including the terms and provisions therein. 14.Right of Way to The Mountain States Telephone and Telegraph Co. recorded January 19, 1939 of Miscellaneous Book 12, page 5, records of Gallatin County, Montana, including the terms and provisions therein. 15.Easement to Gallatin County recorded March 2, 1960 in Book 133, page 306, records of Gallatin County, Montana, including the terms and provisions therein. 16.All easements, notations, certificates, conditions and disclosures as contained on the recorded plat for Electric Heights Addition Plat No. D-2 and Aldworth's Rearrangement, Plat No. J-287, records of Gallatin County, Montana. INFORMATIONAL NOTES: NOTE: As of July 1, 2021 recording fees will increase to $8.00 per page for standard documents and $18.00 per page for non-standard documents. NOTE: Notice: Please be aware that due to the conflict between federal and state laws concerning the cultivation, distribution, manufacture or sale of marijuana, we are not able to close or insure any transaction involving Land that is associated with these activities. NOTE: Copies of documents creating exceptions may be obtained upon request. NOTE: Regulations imposed on the title insurance industry by the Montana State Insurance Commission require that a fee be charged for cancellation. END OF SCHEDULE B-II EXCEPTIONS 354 AMERICAN LAND TITLE COMPANY PRIVACY POLICY We collect nonpublic personal information about you from the following sources: Information we receive from you, such as your name, address, telephone number, or social security number; Information about your transactions with us, our affiliates, or others. We receive this information from your lender, attorney, real estate broker, etc.; and Information from public record. We do not disclose any nonpublic personal information about our customers or former customers to anyone, except as permitted by law. We restrict access to nonpublic personal information about you to those employees who need to know that information, to provide the products and services requested by you or your lender. We maintain physical, electronic, and procedural safeguards that comply with appropriate federal and state regulations. If we provide you with more than one financial product or service, you may receive more than one privacy notice from us. We apologize for any inconvenience this may cause you. 355 COMMITMENT FOR TITLE INSURANCE Issued By CHICAGO TITLE INSURANCE COMPANY This page is only a part of a 2016 ALTA Commitment for Title Insurance issued by Chicago Title Insurance Company. This Commitment is not valid without theNotice; the Commitment to Issue Policy; the Commitment Conditions; Schedule A; Schedule B, Part I—Requirements; and Schedule B, Part II—Exceptions; and acounter-signature by the Company or its issuing agent that may be in electronic form. Copyright American Land Title Association. All rights reserved.The use of this Form (or any derivative thereof) is restricted to ALTA licensees andALTA members in good standing as of the date of use. All other uses are prohibited.Reprinted under license from the American Land Title Association. ALTA Commitment for Title Insurance 8-1-16 NOTICE IMPORTANT - READ CAREFULLY: THIS COMMITMENT IS AN OFFER TO ISSUE ONE OR MORE TITLE INSURANCE POLICIES. ALL CLAIMS OR REMEDIES SOUGHT AGAINST THE COMPANY INVOLVING THE CONTENT OF THIS COMMITMENT OR THE POLICY MUST BE BASED SOLELY IN CONTRACT. THIS COMMITMENT IS NOT AN ABSTRACT OF TITLE, REPORT OF THE CONDITION OF TITLE, LEGAL OPINION, OPINION OF TITLE, OR OTHER REPRESENTATION OF THE STATUS OF TITLE. THE PROCEDURES USED BY THE COMPANY TO DETERMINE INSURABILITY OF THE TITLE, INCLUDING ANY SEARCH AND EXAMINATION, ARE PROPRIETARY TO THE COMPANY, WERE PERFORMED SOLELY FOR THE BENEFIT OF THE COMPANY, AND CREATE NO EXTRACONTRACTUAL LIABILITY TO ANY PERSON, INCLUDING A PROPOSED INSURED. THE COMPANY’S OBLIGATION UNDER THIS COMMITMENT IS TO ISSUE A POLICY TO A PROPOSED INSURED IDENTIFIED IN SCHEDULE A IN ACCORDANCE WITH THE TERMS AND PROVISIONS OF THIS COMMITMENT. THE COMPANY HAS NO LIABILITY OR OBLIGATION INVOLVING THE CONTENT OF THIS COMMITMENT TO ANY OTHER PERSON. COMMITMENT TO ISSUE POLICY Subject to the Notice; Schedule B, Part I - Requirements; Schedule B, Part II - Exceptions; and the Commitment Conditions,Chicago Title Insurance Company, a(n) Florida corporation (the "Company"), commits to issue the Policy according to the terms and provisions of this Commitment. This Commitment is effective as of the Commitment Date shown in Schedule A for each Policy described in Schedule A, only when the Company has entered in Schedule A both the specified dollar amount as the Proposed Policy Amount and the name of the Proposed Insured. If all of the Schedule B, Part I - Requirements have not been met within 6 months after the Commitment Date, this Commitment terminates and the Company’s liability and obligation end. CHICAGO TITLE INSURANCE COMPANY Issued through the office of: American Land Title Company 1800 West Koch Street, Suite 1 Bozeman, MT 59715 Authorized Signatory 356 Copyright 2006 - 2016 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. 1S-05147 COMMITMENT CONDITIONS 1. DEFINITIONS (a) "Knowledge" or "Known": Actual or imputed knowledge, but not constructive notice imparted by the Public Records. (b) "Land": The land described in Schedule A and affixed improvements that by law constitute real property. The term "Land" does not include any property beyond the lines of the area described in Schedule A, nor any right, title, interest, estate, or easement in abutting streets, roads, avenues, alleys, lanes, ways, or waterways, but this does not modify or limit the extent that a right of access to and from the Land is to be insured by the Policy. (c) "Mortgage": A mortgage, deed of trust, or other security instrument, including one evidenced by electronic means authorized by law. (d) "Policy": Each contract of title insurance, in a form adopted by the American Land Title Association, issued or to be issued by the Company pursuant to this Commitment. (e) "Proposed Insured": Each person identified in Schedule A as the Proposed Insured of each Policy to be issued pursuant to this Commitment. (f) "Proposed Policy Amount": Each dollar amount specified in Schedule A as the Proposed Policy Amount of each Policy to be issued pursuant to this Commitment. (g) "Public Records": Records established under state statutes at the Commitment Date for the purpose of imparting constructive notice of matters relating to real property to purchasers for value and without Knowledge. (h) "Title": The estate or interest described in Schedule A. 2. If all of the Schedule B, Part I - Requirements have not been met within the time period specified in the Commitment to Issue Policy, this Commitment terminates and the Company’s liability and obligation end. 3. The Company’s liability and obligation is limited by and this Commitment is not valid without: (a) the Notice; (b) the Commitment to Issue Policy; (c) the Commitment Conditions; (d) Schedule A; (e) Schedule B, Part I—Requirements; (f) Schedule B, Part II—Exceptions; and (g) a counter-signature by the Company or its issuing agent that may be in electronic form. 4. COMPANY’S RIGHT TO AMEND The Company may amend this Commitment at any time. If the Company amends this Commitment to add a defect, lien, encumbrance, adverse claim, or other matter recorded in the Public Records prior to the Commitment Date, any liability of the Company is limited by Commitment Condition 5. The Company shall not be liable for any other amendment to this Commitment. 5. LIMITATIONS OF LIABILITY (a) The Company’s liability under Commitment Condition 4 is limited to the Proposed Insured’s actual expense incurred in the interval between the Company’s delivery to the Proposed Insured of the Commitment and the delivery of the amended Commitment, resulting from the Proposed Insured’s good faith reliance to: (i) comply with the Schedule B, Part I - Requirements; (ii) eliminate, with the Company’s written consent, any Schedule B, Part II - Exceptions; or (iii) acquire the Title or create the Mortgage covered by this Commitment. (b) The Company shall not be liable under Commitment Condition 5(a) if the Proposed Insured requested the amendment or had Knowledge of the matter and did not notify the Company about it in writing. 357 Copyright 2006 - 2016 American Land Title Association. All rights reserved. The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. 1S-05147 (c) The Company will only have liability under Commitment Condition 4 if the Proposed Insured would not have incurred the expense had the Commitment included the added matter when the Commitment was first delivered to the Proposed Insured. (d) The Company’s liability shall not exceed the lesser of the Proposed Insured’s actual expense incurred in good faith and described in Commitment Conditions 5(a)(i) through 5(a)(iii) or the Proposed Policy Amount. (e) The Company shall not be liable for the content of the Transaction Identification Data, if any. (f) In no event shall the Company be obligated to issue the Policy referred to in this Commitment unless all of the Schedule B, Part I - Requirements have been met to the satisfaction of the Company. (g) In any event, the Company’s liability is limited by the terms and provisions of the Policy. 6. LIABILITY OF THE COMPANY MUST BE BASED ON THIS COMMITMENT (a) Only a Proposed Insured identified in Schedule A, and no other person, may make a claim under this Commitment. (b) Any claim must be based in contract and must be restricted solely to the terms and provisions of this Commitment. (c) Until the Policy is issued, this Commitment, as last revised, is the exclusive and entire agreement between the parties with respect to the subject matter of this Commitment and supersedes all prior commitment negotiations, representations, and proposals of any kind, whether written or oral, express or implied, relating to the subject matter of this Commitment. (d) The deletion or modification of any Schedule B, Part II - Exception does not constitute an agreement or obligation to provide coverage beyond the terms and provisions of this Commitment or the Policy. (e) Any amendment or endorsement to this Commitment must be in writing [and authenticated by a person authorized by the Company]. (f) When the Policy is issued, all liability and obligation under this Commitment will end and the Company’s only liability will be under the Policy. 7. IF THIS COMMITMENT HAS BEEN ISSUED BY AN ISSUING AGENT The issuing agent is the Company’s agent only for the limited purpose of issuing title insurance commitments and policies. The issuing agent is not the Company’s agent for the purpose of providing closing or settlement services. 8. PRO-FORMA POLICY The Company may provide, at the request of a Proposed Insured, a pro-forma policy illustrating the coverage that the Company may provide. A pro-forma policy neither reflects the status of Title at the time that the pro-forma policy is delivered to a Proposed Insured, nor is it a commitment to insure. 358 Effective January 1, 2020 Copyright © 2020.Chicago Title Insurance Company. All Rights Reserved. 1S-05147 Chicago Title Insurance Company PRIVACY NOTICE Effective January 1, 2020 Chicago Title Insurance Company, Inc. and its majority-owned subsidiary companies (collectively, "FNF," "our," or "we") respect and are committed to protecting your privacy. This Privacy Notice explains how we collect, use, and protect personal information, when and to whom we disclose such information, and the choices you have about the use and disclosure of that information. A limited number of FNF subsidiaries have their own privacy notices. If a subsidiary has its own privacy notice, the privacy notice will be available on the subsidiary's website and this Privacy Notice does not apply. Collection of Personal Information FNF may collect the following categories of Personal Information: contact information (e.g., name, address, phone number, email address);demographic information (e.g., date of birth, gender, marital status); identity information (e.g. Social Security Number, driver's license, passport, or other government ID number);financial account information (e.g. loan or bank account information); andother personal information necessary to provide products or services to you. We may collect Personal Information about you from: information we receive from you or your agent;information about your transactions with FNF, our affiliates, or others; andinformation we receive from consumer reporting agencies and/or governmental entities, either directly from these entities or through others. Collection of Browsing Information FNF automatically collects the following types of Browsing Information when you access an FNF website, online service, or application (each an "FNF Website") from your Internet browser, computer, and/or device:Internet Protocol (IP) address and operating system; browser version, language, and type;domain name system requests; andbrowsing history on the FNF Website, such as date and time of your visit to the FNF Website and visits to the pages within the FNF Website. Like most websites, our servers automatically log each visitor to the FNF Website and may collect the Browsing Information described above. We use Browsing Information for system administration, troubleshooting, fraud investigation, and to improve our websites. Browsing Information generally does not reveal anything personal about you, though if you have created a user account for an FNF Website and are logged into that account, the FNF Website may be able to link certain browsing activity to your user account. Other Online Specifics Cookies. When you visit an FNF Website, a "cookie" may be sent to your computer. A cookie is a small piece of data that is sent to your Internet browser from a web server and stored on your computer's hard drive. Information gathered using cookies helps us improve your user experience. For example, a cookie can help the website load properly or can customize the display page based on your browser type and user preferences. You can choose whether or not to accept cookies by changing your Internet browser settings. Be aware that doing so may impair or limit some functionality of the FNF Website. Web Beacons. We use web beacons to determine when and how many times a page has been viewed. 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Accessing and Correcting Information; Contact Us If you have questions, would like to correct your Personal Information, or want to opt-out of information sharing for affiliate marketing, send your requests to privacy@fnf.com, by phone to (888) 934-3354, or by mail to: Chicago Title Insurance Company 601 Riverside Avenue, Jacksonville, Florida 32204 Attn: Chief Privacy Officer 361 362 363 COMMISSION RESOLUTION NO. 5353 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, APPROVING THE BURKE PARK/PEETS HILL EXPANSION AND IMPROVEMENT PROJECT INCLUDING ALLOCATION OF CASH-IN-LIEU OF PARKLAND FUNDS FOR ACQUISITION OF LAND ADJACENT TO BURKE PARK AND AUTHROZING THE CITY MANAGER AND CITY ATTORNEY TO TAKE ALL STEPS NECESSARY TO PURCHASE THE LAND ASSOCIATED WITH THE PROJECT WHEREAS, Gallatin Valley Land Trust (GVLT) submitted a proposal for the City to expand and develop Burke Park through a 12-acre property acquisition and trail expansion and improvement project; and WHEREAS, the total expected project cost is $1,624,728 including Phase I land acquisition costs of $1,326,025 and phase II improvement costs totaling $298,703; WHEREAS, GVLT requests that the City allocate $800,000 toward the Phase I land acquisition costs; and WHEREAS, GVLT will provide $824,728 of funding toward the remaining Phase I and Phase II costs; and WHEREAS, the city-wide cash-in-lieu of parkland dedication fund balance is currently $891,210.65; and WHEREAS, Section 38.420.030 (F.)of the Bozeman Municipal Code, (“Cash Donation in lieu of Land Dedication”) specifies criteria for which these funds may be utilized; and 364 WHEREAS,the Recreation and Parks Advisory Board at their special meeting on November 4, 2021 unanimously passed a motion recommending that the Commission approve the project and immediate allocation of $485,000 from the cash-in-lieu of parkland dedication account to the land acquisition; and WHEREAS,the Recreation and Parks Advisory Board recommended a two-year period to provide the remaining $315,000 plus financing costs for the land acquisition to allow staff time to find additional funding sources such as grants; and WHEREAS, GVLT has agreed to finance the remaining $315,000, plus financing costs, for a period of up to two years; and WHEREAS, a known source of funding must be provided for security of the remaining $315,000 plus finance costs; and WHEREAS, GVLT has provided the City with a current appraisal of the property and the purchase price of the property ($1,225,000) is below the appraised value ($1,400,000); and WHEREAS, Chapter 1.8 of the Parks, Recreation, Open Space and Trails Plan (“PROST Plan”) establishes procedures for amending individual park master plans; and WHEREAS, the PROST Plan further establishes guidelines for park and trail location, design, and recreational facilities; and WHEREAS, the existing Burke Park Master Plan indicates that acquisition of adjacent land to the south would be desirable; and 365 WHEREAS, the conceptual improvements to Burke Park as outlined in the project proposal, to include trail expansion and improvements, overlook, and gathering spaces, will be further developed with the Parks and Recreation Department; WHEREAS, the City Commission finds purchasing the property through assignment by the Gallatin Valley Land Trust (GVLT) to the City of GVLT’s existing purchase and sale agreement with the current owner is in the best interest of the City. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, Section 1 – Authorize Cash-in-lieu for the Project The Burke Park/Peets Hill Expansion and Improvement Project will serve the entire City of Bozeman thus meeting the requirements of Section 38.420.030 (F.) of the Bozeman Municipal Code for use of cash donations from the city-wide fund. Expansion and improvement of Burke Park as proposed through the acquisition of two contiguous parcels will allow the expansion of the trail network, increase the amount of parkland frontage on a public right-of-way, retain a prominent landscape feature with high visibility as public land, improve accessibility for mobile assist devices, and provide an attractive gathering and donor-recognition area within a relatively undeveloped park. The City will authorize the use of $485,000 of funding from the cash-in-lieu of parkland dedication fund and will accept the remaining $740,000 of funding from GVLT to complete the purchase (this does not include an additional $60,000 that GVLT has already spent on due diligence costs, which puts GVLT’s total commitment at $800,000). The City will also allocate up to $315,000 plus financing costs of additional cash-in-lieu of parkland funding to be 366 paid to GVLT within two years of the effective date of this Resolution. The $315,000, plus loan origination fees and an annualized interest rate based on the prime rate + 0.5%, with no pre- payment penalty, which is not expected to exceed $30,000, shall be considered appropriated by the City until other funding sources are secured for this project. The result of this project is that the balance in the cash-in-lieu parkland fund is $61,210.65 until project funding or additional cash-in-lieu of parkland dedication is received. Section 2 – Authorizing the City Manager and City Attorney to Complete the Land Acquisition The City Manager and City Attorney are authorized to complete the necessary steps to acquire the new parcel and resolve any issues associated with the purchase, including an assignment agreement of GVLT’s Purchase and Sale Agreement to enable the City to acquire the Property as the Buyer on January 18, 2022. The City will accept from GVLT the reassignment of the appraisal and the buy-sell agreement and proceed with the purchase of the properties for $1,225,000 using $740,000 of GVLT funding and $485,000 from the cash-in-lieu of parkland dedication fund. The City Manager is authorized to enter into an agreement with GVLT for bridge financing of the remaining City portion of the project ($315,000 plus financing costs as set forth above) to be paid within two years. The City Manager is authorized to enter into an agreement with the adjacent landowner, a member of the selling entity, to resolve encroachment issues within a reasonable timeframe. 367 The City will resolve any other issues arising from the purchase of the properties in a timely manner, including but not limited to annexation into the City as needed and amendment to the City’s zoning map to designate the property as PLI - Public Lands and Institutions, and park master plan amendment. After closing, staff will negotiate and prepare for City Commission consent agenda a Memorandum of Understanding or Use License with GVLT for completion of site improvements, donor recognition and public infrastructure development at GVLT’s cost, in accordance with City standards and requirements. PASSED AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the ___________day of December, 2021. ___________________________________ CYNDI ANDRUS Mayor ATTEST: ________________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 368 Memorandum REPORT TO:City Commission FROM:Anna Rosenberry, Assistant City Manager SUBJECT:Resolution 5359 Adoption of the Capital Improvement Plan (CIP) for Fiscal Years 2023-2027 MEETING DATE:December 14, 2021 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Move to adopt Resolution 5359, adopting the capital improvements plan for fiscal years 2023 to 2027. 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: Planning for large capital improvements and regular equipment replacements is a matter of prudent financial management. At times of rapid growth, as we are experiencing, the need for expanded public facilities and services is at its peak. A carefully developed Capital Improvement Plan (CIP) for these expansions aids in communicating our intent to our citizens, our employees, and the broader development community. Each year, the City Manager is required to prepare a multi-year CIP and submit it to the Commission by December 15th. During the months of September, October, and November numerous staff meetings have taken place to develop this recommended plan. The plan is designed and reported by funding source (each fund.) Within these funds, the method for paying for the project is determined. In the case of more expensive projects, or where resources are scarce, borrowing may be required and bonds and other financing mechanisms may be used. The CIP is adopted each year, but nothing is actually approved for spending until it is included in an approved budget. In addition, certain funding is not final until approved by voters on an election ballot. The CIP (link here) was posted on the website November 12, 2021 and was presented to the Commission during the following meetings: 369 11/23/21- Overall CIP Introduction & Public Works Funds 12/7/21- General Fund & Other Funds The attached Resolution will formally adopt the plan that was presented, with the following adjustments: Addition of an item, UNSCHEDULED - General Fund - Senior Center Re- Imagining Project, estimate $10 Million. Correction of typographical error on the CIP Financial Summary Sheet, at the beginning of the document on page 8 - Water Impact Fee Total for FY23. Originally listed as $730,000, correct amount is $230,000. (All other documents for Water Impact Fee CIP were correct and not effected. Corrected version attached below.) Minor edits to description of FIF06 - Fire Station #4, in reference to 10- year postponement Minor edits to description of GF031 - Park Improvement Grant, to remove reference to "every other year". No other changes have been incorporated into the motion. If the Commission wishes to make additional changes to the plan, please do so by amending the proposed motion. UNRESOLVED ISSUES:None. ALTERNATIVES:As suggested by the City Commission, if the Commission does not adopt the resolution tonight, it can be scheduled for approval on a later agenda but must be done before March 15th. FISCAL EFFECTS:This step in the process has no fiscal effect. Once adopted, the Capital Improvement Plan becomes the basis of the City Manager's Recommended Budget for FY23. Projects and equipment purchases can only be made after being included in an Approved Budget. Attachments: Resolution 5359 - CIP FY23-27.docx CIP23-27 Financial Summaries FINAL 12 8 2021.pdf Report compiled on: December 6, 2021 370 Version April 2020 RESOLUTION 5359 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, WHEREAS,the City of Bozeman Charter Article 5.06 requires the City Manager to submit a multi-year capital program. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, that the Capital Improvement Plan for Fiscal Years 2023 to 2027, as attached hereto and by this reference made a part here to of, is hereby adopted. PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 14th day of December, 2021. ___________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: ___________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 371 SUMMARY ‐ ALL FUNDSCapital Improvement Plan FY23 FY24 FY25 FY26 FY27TOTAL SCHEDULED PROJECTSUnscheduledArterial and Collector District 50,000 1,650,000 3,100,000 4,692,308 2,800,000 12,292,308 23,750,000 Building Inspection Fund 40,000 40,000 40,000 40,000 100,000 260,000 ‐ Community Development ‐ ‐ ‐ ‐ 60,000 60,000 ‐ Fire Equipment & Capital Replacement 1,671,750 43,000 204,250 45,600 2,399,000 4,363,600 1,106,600 Fire Impact Fee 1,500,000 ‐ 3,800,000 ‐ ‐ 5,300,000 ‐ Forestry 75,000 35,000 ‐ 31,000 ‐ 141,000 ‐ General Fund 9,913,520 937,000 56,296,930 1,323,125 972,000 69,442,575 12,503,200 Library Depreciation 225,000 ‐ ‐ ‐ 200,000 425,000 ‐ Parks & Trails 873,000 954,000 1,681,000 1,585,000 1,543,000 6,636,000 7,043,000 Parking 260,000 410,000 ‐ 300,000 ‐ 970,000 ‐ Solid Waste Collection & Recycling 625,000 1,045,000 330,000 1,180,000 700,000 3,880,000 1,500,000 Storm Water Utility 672,250 749,600 962,500 933,600 865,300 4,183,250 370,000 Street & Curb Reconstructions 100,000 507,000 964,400 1,016,800 1,483,200 4,071,400 15,406,404 Street Impact Fee 3,450,000 3,450,000 8,450,000 6,557,692 7,250,000 29,157,692 23,450,000 Street Maintenance District 3,862,000 2,917,000 3,430,750 3,471,962 2,962,360 16,644,072 635,000 Wastewater Fund 2,428,100 3,954,993 2,168,902 1,782,490 2,123,500 12,457,985 50,570,500 Wastewater Impact Fee 1,285,000 2,500,000 3,200,000 3,000,000 2,000,000 11,985,000 20,000,000 Water Fund 8,276,682 2,604,248 3,744,077 8,415,950 23,688,500 46,729,457 7,170,500 Water Impact Fee 230,000 2,100,000 10,350,000 ‐ 250,000 12,930,000 67,500,000 Internal Service Fund ‐ Vehicle Maint 45,000 120,000 ‐ ‐ ‐ 165,000 ‐ Internal Service Fund ‐ Public Works 50,000 50,000 50,000 50,000 650,000 850,000 ‐ Total 35,632,302$ 24,066,841$ 98,772,809$ 34,425,527$ 50,046,860$ 242,944,339$ 231,005,204$ Scheduled Projects372 Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33 337373 Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33 338374 Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33 339375 Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33 340376 Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33 341377 Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33 342378 Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33 343379 Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33 344380 Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33 345381 William Cochran, Board Chair Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33Authentisign ID: B22E284D-FF70-4196-9CE7-5EBF506FAA33 346382