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HomeMy WebLinkAbout05-23-23 City Commission Meeting Agenda & Packet MaterialsA.Call to Order - 6:00 PM - Commission Room, City Hall, 121 North Rouse This meeting will be held both in-person and also using an online video conferencing system. You can join this meeting: Via Video Conference: 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, channel 190, or attend in- person United States Toll +1 669 900 9128 Access code: 933 7244 1920 B.Pledge of Allegiance and a Moment of Silence C.Changes to the Agenda D.Public Service Announcements D.1 City Offices Will be Closed for Memorial Day, Monday, May 29, 2023. There will be no City Commission Meeting on May 30 and garbage pick-up will be one day later during the week. E.FYI F.Commission Disclosures G.Consent G.1 Accounts Payable Claims Review and Approval (Waters) THE CITY COMMISSION OF BOZEMAN, MONTANA REGULAR MEETING AGENDA Tuesday, May 23, 2023 How to Participate: If you are interested in commenting in writing on items on the agenda please send an email to agenda@bozeman.net or visit the Public Comment Page prior to 12:00 p.m. on the day of the meeting. Public comments will also be accepted in-person and through video conference during the appropriate agenda items but you may only comment once per item. As always, the meeting will be recorded and streamed through the Commission's video page and available in the City on cable channel 190. For more information please contact the City Clerks' Office at 406.582.2320. 1 G.2 Authorize the City Manager to Sign a Lease Agreement for Ford Detainee Transport Van(Klumb) G.3 Authorize the City Manager to Sign a Professional Services Agreement between the City of Bozeman and Best Rate Towing and Repair to Tow Vehicles for the Bozeman Police Department(Knight) G.4 Authorize the City Manager to Sign an Amendment 2 to the PSA with Jackson Contractor Group for Swim Center Renovation GCCM Services(Ziegler) G.5 Resolution 5494, Notifying Gallatin County of Mail Ballot Election with Return Costs Paid for November 2023 General Election(Maas) 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 per topic. 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. Written comments can be located in the Public Comment Repository. I.Special Presentation I.1 Bozeman is a Bicycle Friendly Community(Ross) J.Action Items J.1 Ordinance 2139 Provisional Adoption of a New Section in the Bozeman Municipal Code and Amending Current Sections in the Bozeman Municipal Code Related to Construction Operations Noise(Porteen) K.FYI / Discussion L.Adjournment City Commission meetings are open to all members of the public. If you have a disability that requires assistance, please contact our ADA Coordinator, Mike Gray, at 582-3232 (TDD 582-2301). Commission meetings are televised live on cable channel 190 and streamed live at www.bozeman.net. 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. 2 Memorandum REPORT TO:City Commission SUBJECT:City Offices Will be Closed for Memorial Day, Monday, May 29, 2023. There will be no City Commission Meeting on May 30 and garbage pick-up will be one day later during the week. MEETING DATE:May 23, 2023 AGENDA ITEM TYPE:Administration RECOMMENDATION:City Offices Will be Closed for Memorial Day, Monday, May 29, 2023. There will be no City Commission Meeting on May 30 and garbage pick-up will be one day later during the week. 3 Memorandum REPORT TO:City Commission FROM:Nadine Waters, Accounts Payable Clerk Nicole Armstrong, Accounts Payable Clerk Levi Stewart, Assistant City Controller Aaron Funk, City Controller Melissa Hodnett, Finance Director SUBJECT:Accounts Payable Claims Review and Approval MEETING DATE:May 23, 2023 AGENDA ITEM TYPE:Finance RECOMMENDATION:The City Commission is recommended to make a motion and approve payment of claims as presented. 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:Montana Code Annotated, Section 7-6-4301 requires claims to be presented to the City Commission within one year of the date the claims accrued. Claims presented to the City Commission under this item have been reviewed and validated by the Finance Department. The Department has ensured that all goods and services have been received along with necessary authorizations and supporting documentation. UNRESOLVED ISSUES:None ALTERNATIVES:The City Commission could decide not to approve these claims or a portion of the claims presented. This alternative is not recommended as it may result in unbudgeted late fees assessed against the City. 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 https://www.bozeman.net/departments/finance/purchasing. Report compiled on: May 18, 2023 4 Memorandum REPORT TO:City Commission FROM:Cory Klumb, Support Services Captain Jim Veltkamp, Police Chief SUBJECT:Authorize the City Manager to Sign a Lease Agreement for Ford Detainee Transport Van MEETING DATE:May 23, 2023 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign a Lease Agreement for Ford Detainee Transport Van STRATEGIC PLAN:3.1 Public Safety: Support high quality public safety programs, emergency preparedness, facilities, and leadership. BACKGROUND:The building of the Bozeman Public Safety Center required the Police Department to be able to securely transport detainees to and from the Gallatin County Detention Center for Municipal Court appearances. In preparation for this, $35,000 was placed in the CIP budget to purchase a used van and have it upfitted with a specialized transport cage. When it came time to purchase, there were no used vans available or they were $50,000-$55,000. As a result, our upfitter suggested we purchase the van through Ford Motor Credit Company on a lease. UNRESOLVED ISSUES:None. ALTERNATIVES:As recommended by the Commission FISCAL EFFECTS:FY23 $35,000 payment Money is already in our CIP budget FY24 $17,743.10 payment FY25 $17,743.10 payment Attachments: Revised doc's ready to be executed 9346900 (1).pdf Insurance & 8038-GC.pdf Fed Ex 9346900 (2).pdf Property Certificate.pdf Liability Certificate.pdf 5 Report compiled on: May 12, 2023 6 FORD MOTOR CREDIT COMPANY LLC MASTER EQUIPMENT LEASE-PURCHASE AGREEMENT Lease No. 9346900 Lessee: City of Bozeman Lessor: Ford Motor Credit Company LLC 615 South 16th Avenue 1 American Road Bozeman, MT 59771 Dearborn, MI 48126 The terms of this Master Equipment Lease Purchase Agreement (the “Master Agreement”) are terms which will be incorporated into, and constitute a part of, one or more lease schedules executed from time to time by Lessor and Lessee (together with all attachments thereto, a “Schedule,” or “Lease” or collectively, the "Schedules" or “Leases”), pursuant to which Lessee agrees to lease from Lessor, the equipment, including all additions, attachments, accessions, and substitutions thereto (the "Equipment"), described in each such Schedule. Each executed and delivered Schedule will constitute a separate, assignable obligation. 1. TERM AND TERMINATION. The lease term (the "Lease Term") for the Equipment listed in each Schedule will commence on the earlier of (i) the date on which the Equipment listed on the Schedule is accepted by Lessee by the execution of a Delivery and Acceptance Certificate as required under Section 3 below, or (ii) the date on which sufficient moneys to purchase such Equipment are deposited for that purpose with an escrow agent (the “Commencement Date”), and, unless earlier terminated as expressly provided for in Sections 6, 19 or 20 of this Master Agreement, will continue until the expiration date (the "Expiration Date") set forth in the applicable Schedule. 2. LEASE PAYMENTS. For the lease of the Equipment listed in each Schedule, Lessee shall pay to Lessor the lease payments and other charges (the "Lease Payments") set forth in the applicable Schedule. As set forth in the applicable Schedule, each Lease Payment includes a principal portion and an interest portion. The Lease Payments will be payable without notice or demand at the office of Lessor (or such other place as Lessor or its assignee may from time to time designate in writing) on the first Lease Payment Date and thereafter as set forth in the applicable Schedule. If any Lease Payment is received later than 10 days after the due date, Lessee will pay a late payment charge equal to 1.8% of the amount of the Lease Payment or the maximum amount permitted by law, whichever is less. Except as specifically provided in Section 6 hereof, the obligation of Lessee to make the Lease Payments hereunder and perform all of its other obligations hereunder will be absolute and unconditional in all events and will not be subject to any abatement, setoff, defense, counterclaim, or recoupment for any reason whatsoever including, without limitation, any failure of the Equipment to be delivered or installed, any defects, malfunctions, breakdowns or infirmities in the Equipment or any accident, condemnation or unforeseen circumstances. Lessee reasonably believes that sufficient funds can be obtained to make all Lease Payments during the applicable Lease Term and hereby covenants that the official of Lessee responsible for budget preparation will do all things lawfully within his or her power to obtain, maintain and properly request and pursue funds from which the Lease Payments may be made, including making provisions for Lease Payments to the extent necessary in each budget submitted for the purpose of obtaining funding, using his or her best efforts to have such portion of the budget approved and exhausting all available administrative reviews and appeals in the event such portion of the budget is not approved. It is Lessee's intent to make Lease Payments for the full Lease Term if funds are legally available therefor and in that regard Lessee represents that the use of the Equipment is essential to its proper, efficient and economic operation. The foregoing provisions shall not be construed to require Lessee's governing body or other governmental body charged with budgeted or appropriating funds for Lessee to budget or appropriate funds to make Lease Payments. Lessor and Lessee understand and intend that the obligation of Lessee to pay Lease Payments hereunder and each Schedule hereto shall constitute a current expense of Lessee and shall not in any way be construed to be a debt of Lessee in contravention of any applicable constitutional or statutory limitation or requirement concerning the creation of indebtedness by Lessee, nor shall anything contained herein constitute a pledge of the general tax revenues, funds or monies of Lessee. 3. CONDITIONS TO LESSOR’S PERFORMANCE UNDER SCHEDULES; DELIVERY AND ACCEPTANCE OF EQUIPMENT. (a) As a prerequisite to the performance by Lessor of any of its obligations pursuant to the execution and delivery of any Schedule, Lessee shall deliver to Lessor the following: (i) if requested by Lessor, a certification satisfactory to Lessor of the Clerk or Secretary or other comparable officer of Lessee as to due authorization and approval, incumbency of officers and such other matters as Lessor may require; (ii) if requested by Lessor, an opinion of counsel to Lessee respecting such Schedule in substantially the form attached hereto as Exhibit A and otherwise satisfactory to Lessor; (iii) all documents, including an application for certificate of title with lien notice, as applicable, and other financing statements, affidavits, notices and similar instruments, in form satisfactory to Lessor, which Lessor deems necessary or appropriate at that time pursuant to Sections 8 and 15; (iv) board minutes in a form acceptable to Lessor; (v) a copy of the executed Internal Revenue Services (“IRS”) form 8038-G or 8038-GC, as appropriate, as filed, or to be filed, with the IRS, (vi) satisfactory proof of property and liability insurance coverage and (vii) such other items, if any, as are set forth in such Schedule or are reasonably required by Lessor. This Master Agreement is not a commitment by Lessor to enter into any Schedule not currently in existence, and nothing in this Master Agreement shall be construed to impose any obligation upon Lessor to enter into any proposed Schedule, it being understood that whether Lessor enters into any proposed Schedule shall be a decision solely within Lessor's discretion, and no Lease will be binding or commence until accepted by Lessor. Without limiting the foregoing, Lessee will provide Lessor with any documentation or information Lessor may request in connection with Lessor's review of any proposed Schedule. Such documentation may include, without limitation, documentation concerning the Equipment and its contemplated use and location and documentation or information concerning the financial status of Lessee and other matters related to Lessee. (b) Lessor will cause the Equipment to be delivered to Lessee at the location specified in the applicable Schedule ("Equipment Location"). Lessee will pay all transportation and other costs, if any, incurred in connection with the delivery and installation of the Equipment. Lessee will accept the Equipment as soon as it has been delivered and is operational. Lessee will evidence its acceptance of the Equipment by executing and delivering to Lessor a Delivery and Acceptance Certificate in the form provided by Lessor within three days of delivery of the Equipment. 7 4. WARRANTIES. (a) Assignment of Warranties. So long as no Event of Default has occurred and is continuing, Lessor assigns to Lessee during the Lease Term of the Equipment all manufacturer's warranties, if any, expressed or implied with respect to the Equipment, and Lessor authorizes Lessee to obtain the customary services furnished in connection with such warranties at Lessee's expense. Lessee will resolve any claims under such warranties directly with the appropriate manufacturer or supplier of the Equipment. Lessee's sole remedy for the breach of any warranty shall be against the party providing the warranty, and not against Lessor. Lessee expressly acknowledges that Lessor makes, and has made, no representations or warranties whatsoever as to the existence or the availability of such warranties of the manufacturer or supplier of the Equipment. (b) DISCLAIMER OF WARRANTIES. LESSEE ACKNOWLEDGES AND AGREES THAT (1) THE EQUIPMENT IS OF A SIZE, DESIGN AND CAPACITY SELECTED BY LESSEE, (2) LESSOR IS NOT A MANUFACTURER, DISTRIBUTOR, VENDOR OR SUPPLIER OF THE EQUIPMENT, (3) LESSOR LEASES AND LESSEE TAKES THE EQUIPMENT AND EACH PART THEREOF "AS- IS" AND (4) LESSOR HAS NOT MADE, AND DOES NOT MAKE, ANY REPRESENTATION, WARRANTY, OR COVENANT, EXPRESS OR IMPLIED, WITH RESPECT TO THE MERCHANTABILITY, CONDITION, QUALITY, DURABILITY, DESIGN, OPERATION, FITNESS FOR USE, OR SUITABILITY OF THE EQUIPMENT IN ANY RESPECT WHATSOEVER OR IN CONNECTION WITH OR FOR THE PURPOSES AND USES OF LESSEE, OR AS TO THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, OR AS TO THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT, OR AS TO ANY OBLIGATION BASED ON STRICT LIABILITY IN TORT OR ANY OTHER REPRESENTATION, WARRANTY, OR COVENANT OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT THERETO, IT BEING AGREED THAT ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY LESSEE AND LESSOR SHALL NOT BE OBLIGATED OR LIABLE FOR ACTUAL, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF OR TO LESSEE OR ANY OTHER PERSON OR ENTITY ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE EQUIPMENT AND THE MAINTENANCE THEREOF. 5. RETURN OF EQUIPMENT. Unless Lessee shall have exercised its purchase option as provided in Section 20 hereof, upon the expiration or earlier termination of the Lease Term of the Equipment pursuant to the terms hereof, Lessee shall, at its sole expense but at Lessor's option, return the Equipment to Lessor in good working condition, packed for shipment in accordance with manufacturer's specifications and freight prepaid and insured to any location designated by Lessor. 6. NON-APPROPRIATION OF FUNDS. Notwithstanding anything contained in this Master Agreement or any Schedule to the contrary, in the event no funds or insufficient funds are appropriated and budgeted and sufficient funds are not otherwise made available in any fiscal period for all Lease Payments under a Lease, Lessee will immediately notify Lessor in writing of such occurrence and provide documentation evidencing such non-appropriation satisfactory to Lessor, and the Lease Term for the Equipment under that Lease shall terminate on the last day of the fiscal period for which sufficient appropriations have been received or made without penalty or expense to Lessee, except as to Lessee's obligations and liabilities under any Lease relating to, or accruing or arising prior to, such termination. In the event of such termination, Lessee agrees to peaceably surrender possession of the Equipment under that Lease to Lessor on the date of such termination in the manner set forth in Section 5 hereof and Lessor will have all legal and equitable rights and remedies to take possession of the Equipment. 7. REPRESENTATIONS AND WARRANTIES. Lessee represents and warrants as of the date hereof, and as of the date of each Schedule, that: (a) Lessee is a State or a fully constituted political subdivision of a State, and has a substantial amount of one or more of the following sovereign powers: (1) power to tax, (2) power of eminent domain, or (3) police power, and will do or cause to be done all things necessary to preserve and keep in full force and effect its existence; (b) Lessee is authorized under the constitution and laws of the State to enter into and agree to the terms of this Master Agreement and, as of the date of each Schedule, that Schedule and the transactions contemplated thereby and to perform all of its obligations thereunder; (c) the execution, delivery and performance by the Lessee of this Master Agreement, and each Schedule incorporating the terms of this Master Agreement has been duly authorized by proper action and approval of its governing body at a meeting duly called, regularly convened and attended throughout by a requisite majority of the members thereof or by other appropriate official approval, and will not result in contravention of any state, county, district, city or town statute, charter, ordinance, resolution, rule, regulation or other governmental provision or requirement, including, without limitation any applicable debt limitations; (d) each Schedule incorporating the terms of this Master Agreement constitutes a legal, valid and binding obligation of the Lessee enforceable in accordance with its terms, except to the extent limited by applicable bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally; (e) all required public bidding procedures, and the purchase of the Equipment covered by each Schedule have been followed by Lessee, and, as of the date of each Schedule, no governmental orders, permissions, consents, approvals or authorizations are required to be obtained and no registrations or declarations are required to be filed in connection with the execution and delivery of that Schedule; (f) Lessee has made sufficient appropriations or other funds available to pay all Lease Payments and other amounts due hereunder for the current fiscal period; (g) the use of the Equipment by Lessee is essential to and will be limited to the performance by Lessee of one or more governmental functions of Lessee consistent with the permissible scope of Lessee's authority; (h) no event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default hereunder or a default under any debt, revenue or purchase obligation which it has issued or to which it is a party exists, nor has it been in default under any such obligation at any time during the past five years; (i) no lease, rental agreement or contract for purchase to which Lessee has been a party at any time during the past five years has been terminated by Lessee as a result of insufficient funds being appropriated in any fiscal period; and (j) there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, pending or threatened against or affecting Lessee, nor to the best knowledge of Lessee is there any basis therefor, wherein an unfavorable decision, ruling or finding would materially adversely affect the transactions contemplated by this Master Agreement or any Schedule incorporating the terms of this Master Agreement, or any other document, agreement or certificate that is used or contemplated for use in the consummation of the transactions contemplated by this Master Agreement or any Schedule. 8. TITLE TO EQUIPMENT; SECURITY INTEREST. Upon acceptance of the Equipment by Lessee, title to the Equipment will vest in Lessee subject to Lessor's rights under the Schedule and the terms of this Master Agreement; provided, however, that title will immediately vest in Lessor without any action by Lessee and Lessee shall immediately surrender possession of 8 the Equipment to Lessor in accordance with Section 5 hereof, if Lessee terminates the Lease Term of the Equipment pursuant to Section 6, or upon the occurrence of an Event of Default, or if Lessee does not exercise the purchase option prior to the Expiration Date. It is the intent of the parties that any transfer of title to Lessor pursuant to this Section shall occur automatically without the necessity of any bill of sale, certificate of title or other instrument of conveyance. Lessee shall, nevertheless, execute and deliver any such instruments as Lessor may request to evidence such transfer. In order to secure all of its obligations under each Lease, Lessee hereby (a) grants to Lessor a first and prior security interest in any and all right, title and interest of Lessee in the Equipment covered by that Lease including but not limited to computer programs and computer documentation, if any, relating to the Equipment and in all additions, attachments, accessions, and substitutions thereto whether now owned or hereafter acquired, and on any proceeds therefrom, (b) agrees that the applicable Lease may be filed as a financing statement evidencing such security interest, (c) agrees to execute and deliver all financing statements, certificates of title and other instruments in form satisfactory to Lessor necessary or appropriate to evidence such security interest, and (d) authorizes Lessor acting on behalf of Lessee to file any financing statements and to take any other action required to perfect and maintain Lessor's security interest in the Equipment. 9. USE; REPAIRS. Lessee will use the Equipment in a careful manner for the use contemplated by the manufacturer of the Equipment. Lessee shall comply with all laws, ordinances, insurance policies and regulations relating to the possession, use, operation or maintenance of the Equipment. Lessee, at its expense, will keep the Equipment in good working order and repair and furnish all parts, mechanisms and devices required therefor. 10. ALTERATIONS. Lessee will not make any modifications, alterations, additions or improvements to the Equipment without Lessor's prior written consent unless such modifications, alterations, additions or improvements may be readily removed without damage to the Equipment. 11. LOCATION; INSPECTION. The Equipment will not be removed from or, if the Equipment consists of rolling stock, its permanent base will not be changed from the Equipment Location without Lessor's prior written consent which will not be unreasonably withheld. Lessor will be entitled to enter upon the Equipment Location or elsewhere during reasonable business hours to inspect the Equipment or observe its use and operation. 12. LIENS AND TAXES. Lessee shall keep the Equipment free and clear of all levies, liens and encumbrances except those created under any Schedule incorporating the terms of this Master Agreement. Lessee shall pay, when due, to the extent required by law, all charges and taxes (local, state and federal) which may now or hereafter be imposed upon the ownership, leasing, rental, sale, purchase, possession or use of the Equipment, excluding however, all taxes on or measured by Lessor's income. If Lessee fails to pay said charges, or taxes when due, Lessor may, but need not, pay said charges or taxes and, in such event, Lessee shall reimburse Lessor therefor on demand, with interest at the maximum rate permitted by law from the date of such payment by Lessor to the date of reimbursement by Lessee. 13. RISK OF LOSS; DAMAGE; DESTRUCTION. Lessee assumes all risk of loss of or damage to the Equipment from any cause whatsoever, and no such loss of or damage to the Equipment nor defect therein nor unfitness or obsolescence thereof shall relieve Lessee of the obligation to make Lease Payments or to perform any other obligation under any Lease. In the event of damage to any item of Equipment, Lessee will immediately place the same in good repair, with the proceeds of any insurance recovery applied to the cost of such repair. If Lessor determines that any item of Equipment is lost, stolen, destroyed or damaged beyond repair, within 30 days of such determination, Lessee, at the option of Lessor, will either (a) replace the same with like equipment in good repair (with its own funds to the extent that sufficient insurance proceeds are not available for that purpose) and convey, to the extent permitted by law, a security interest in such replacement equipment to Lessor (at which time such equipment will become Equipment subject to the Lease), or (b) pay Lessor an amount equal to (1) the Concluding Payment for the immediately preceding Lease Payment Date as set forth in the applicable Schedule, (2) the accrued interest portion of the next Lease Payment through the date such amount is paid, and (3) all other amounts then due under any Schedule with respect to such Equipment. In the event that Lessee is obligated to make such payment pursuant to clause (b) above with respect to less than all of the Equipment under a Schedule, Lessor will provide Lessee with the pro rata amount of the Concluding Payment to be made by Lessee with respect to the Equipment which has suffered the event of loss. The pro rata amount will be calculated on the basis of the Cash Price shown on the Schedule for the particular item of Equipment that has been lost, stolen, destroyed or damaged and the aggregate Cash Price of all items of Equipment under the same Schedule. Upon receipt of the Concluding Payment, Lessee shall be entitled to whatever interest Lessor has in such Equipment, in its then condition and location, without warranties of any kind. 14. PERSONAL PROPERTY. The Equipment is and will remain personal property and will not be deemed to be affixed or attached to real estate or any building thereon. If requested by Lessor, Lessee will, at Lessee's expense, furnish a waiver of any interest in the Equipment from any party having an interest in any such real estate or building. 15. INSURANCE. Lessee, will, at its expense, maintain at all times during the Lease Term, fire and extended coverage, public liability and property damage insurance with respect to the Equipment in such amounts, covering such risks, and with such insurers satisfactory to Lessor, or may self-insure against any or all such risks under a self-insurance program satisfactory to Lessor. In no event will the insurance limits be less than the amount of the then applicable Concluding Payment with respect to such Equipment, as shown on the applicable Schedule. Each insurance policy will name Lessee as an insured and Lessor as an additional insured, and will contain a clause requiring the insurer to give Lessor at least 30 days prior written notice of any alteration in the terms of such policy or the cancellation thereof. The proceeds of any such policies or self-insurance will be payable to Lessee and Lessor as their interests may appear. Upon acceptance of the Equipment, on or before each insurance renewal date, and otherwise at Lessor’s request, Lessee will deliver to Lessor a certificate evidencing such insurance. In the event that Lessee has been permitted to self- insure, Lessee will furnish Lessor with a letter or certificate to such effect. In the event of any loss, damage, injury or accident involving the Equipment, Lessee will promptly provide Lessor with written notice thereof and make available to Lessor all information and documentation relating thereto and shall permit Lessor to participate and cooperate with Lessee in making any claim for insurance in respect thereof. Should Lessee fail to obtain such insurance or to provide evidence thereof to Lessor, Lessor may, but shall not be 9 obligated to, obtain such insurance on Lessee's behalf and charge Lessee for all costs and expenses associated therewith. Without limiting the generality of the foregoing, Lessee specifically acknowledges and agrees that if Lessor obtains such insurance on Lessee's behalf, Lessee will be required to pay a monthly insurance charge. The insurance charge will include reimbursement for premiums advanced to the insurer, finance charges (which will typically be at a rate higher than the rate used to determine the Lease Payment amount payable by Lessee), billing and tracking fees, administrative expenses and other related fees. 16. INDEMNIFICATION. Since Lessor's sole responsibility in connection with this transaction is to provide an amount equal to the principal portion of the Lease Payments to pay costs of the acquisition and lease of the Equipment, the parties intend that Lessor incur no liability, cost or expense with respect to Lessee's possession, use, condition, storage, operation or return of the Equipment, or the loss of federal tax exemption of the interest on any Lease. Accordingly, Lessee agrees, to the extent permitted by law, to indemnify Lessor against, and hold Lessor harmless from, any and all claims, actions, proceedings, expenses, penalties, interest, damages or liabilities, including attorney's fees and court costs, arising in connection with the Equipment, including, but not limited to, its selection, purchase, delivery, installation, ownership, possession, use, operation, rejection, or return and the recovery of claims under insurance policies thereon. The indemnification provided under this Section shall survive the full payment of all obligations under all Schedules or the termination of the Lease Term for a Schedule for any reason. 17. ASSIGNMENT. Without Lessor's prior written consent, Lessee will not either (a) assign, transfer, pledge, hypothecate, grant any security interest in or otherwise dispose of any Schedule, or the Equipment or any interest in this Master Agreement, any Schedule or the Equipment or (b) sublet or lend the Equipment or permit it to be used by anyone other than Lessee or Lessee's employees. Lessor may, without the Lessee’s consent, assign all or any portion or portions of its rights, title and interest in and to this Master Agreement, any Schedule, the Equipment or any documents executed with respect to this Master Agreement or any Schedule, and/or grant or assign a security interest in this Master Agreement, any Schedule and the Equipment, in whole or in part, and Lessee's rights will be subordinated thereto. Lessee consents and specifically authorizes Lessor to forward any documentation and information that Lessor now has or may hereafter acquire in connection with any transaction between Lessor and Lessee, to any potential investor, rating agency and any other party involved in the sale, transfer, assignment, securitization or participation transaction involving this Master Agreement, any Schedule or the Equipment or any interest in this Master Agreement, any Schedule or the Equipment. Lessor’s assignees shall have all of the rights of Lessor under any Lease with respect to the rights and interest assigned. Any such assignment to an assignee may provide that Lessor or the assignee shall act as a collection and paying agent for any assignee, or may provide that a third-party trustee or agent shall act as collection and paying agent for any assignee. Subject to the foregoing, the rights and obligations under any Lease inure to the benefit of and are binding upon the successors and assigns of the parties hereto. Lessee covenants and agrees not to assert against the assignee any claims or defenses by way of abatement, setoff, counterclaim, recoupment or the like which Lessee may have against Lessor. Upon any assignment by Lessor, unless Lessor provides Lessee written notice to the contrary, all Lease Payments shall continue to be directed to Ford Motor Credit Company LLC (“Ford Credit”), who agrees to accept such payments for the benefit of the assignee. Lessee hereby appoints Ford Credit, or its designee, to act as its registration agent, and Ford Credit shall maintain, or cause to be maintained, a book-entry record identifying the name, address and taxpayer identification number of the owner of payments due under each Schedule, and to keep or cause to be kept a complete and accurate record of all assignments, in form necessary to comply with Section 149(a) of the Internal Revenue Code of 1986, as amended (the “Code”). Lessee agrees to acknowledge in writing, any assignment(s) if so requested, and to make payments directly to the new owner (assignee) if and when so directed. 18. EVENT OF DEFAULT; WAIVERS. Any of the following events shall constitute an "Event of Default" under any Lease: (a) Lessee fails to make any Lease Payment (or any other payment) as it becomes due in accordance with the terms of that Lease, and any such failure continues for 10 days after the due date thereof; (b) Lessee fails to perform or observe any other covenant, condition, or agreement to be performed or observed by it under that Lease, other than as referred to in clause (a) above; (c) the discovery by Lessor that any statement, representation, or warranty made by Lessee in that Lease or in any writing ever delivered by Lessee pursuant thereto or in connection herewith was false, misleading, or erroneous in any material respect; (d) any provision of that Lease shall at any time for any reason cease to be valid and binding on Lessee, or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by Lessee or any governmental agency or authority if the loss of such provision would materially adversely affect the rights or security of Lessor, or Lessee shall deny that it has any further liability or obligation under that Lease; (e) Lessee becomes insolvent, or is unable to pay its debts as they become due, or makes an assignment for the benefit of creditors, applies or consents to the appointment of a receiver, trustee, conservator or liquidator of Lessee or of any of its assets, or a petition for relief is filed by Lessee under any bankruptcy, insolvency, reorganization or similar laws, or a petition in, or a proceeding under, any bankruptcy, insolvency, reorganization or similar laws is filed or instituted against Lessee; (f) Lessee fails to make any payment when due or fails to perform or observe any covenant, condition, or agreement to be performed by it under any other agreement or obligation with Lessor or an affiliate of Lessor and any applicable grace period or notice with respect thereto shall have elapsed or been given; or (g) an attachment, levy or execution is threatened or levied upon or against the Equipment under that Lease. The waiver by Lessor of any breach by Lessee of any term, covenant or condition of a Lease shall not operate as a waiver of any subsequent breach thereof or of any other Lease. 19. REMEDIES. Upon the occurrence of an Event of Default under any Lease, and as long as such Event of Default under any Lease is continuing, Lessor may, at its option, exercise any one or more of the following remedies: (a) by written notice to Lessee, declare an amount equal to all amounts then due under that Lease or all Leases, and all remaining Lease Payments due under that Lease or all Leases during the fiscal year of Lessee in which the default occurs to be immediately due and payable, whereupon the same shall become immediately due and payable; (b) Lessor may enter the premises where the Equipment is located and retake possession of the Equipment or require Lessee, at Lessee's expense, to promptly return any or all of the Equipment to the possession of Lessor at a place specified by Lessor, and sell or lease the Equipment or, for the account of Lessee, sublease the Equipment, holding Lessee liable for the difference between (i) the Lease Payments and other amounts payable by Lessee hereunder plus the then applicable Concluding Payment, and (ii) the net proceeds of any such sale, lease or sublease (after deducting all expenses of Lessor in exercising its remedies under the Lease, including without limitation, all expenses of taking possession, storing, reconditioning and selling or leasing the Equipment and all brokerage, auctioneers' and attorneys' fees); provided that the amount of Lessee's liability under this 10 paragraph shall not exceed the Lease Payments and other amounts otherwise due hereunder, plus the remaining Lease Payments and other amounts payable by Lessee hereunder to the end of the then current fiscal year of Lessee; (c) terminate unfunded commitments under any escrow agreement; and (d) exercise any other right, remedy or privilege which may be available to it under applicable laws of the state where the Equipment is then located or any other applicable law or proceed by appropriate court action to enforce the terms of such Lease(s) or to recover damages for the breach of such Lease(s) or to rescind that Lease as to any or all of the Equipment under such Lease(s). In addition, Lessee will remain liable for all covenants and indemnities under the terms of this Master Agreement and any Schedule and, to the extent permitted by law, for all legal fees and other costs and expenses, including court costs, incurred by Lessor with respect to the enforcement of any of the remedies listed above or any other remedy available to Lessor. Lessor may be a purchaser at any sale of the Equipment pursuant to this Section 19. The proceeds of any sale, lease or sublease of the Equipment pursuant to this Section shall be applied as described in clause (b) above, with the balance, if any, being paid to Lessee. 20. PURCHASE OPTION. On the last day of the Lease Term, as well as at any time upon at least 30 days prior written notice from Lessee to Lessor, and provided that no Event of Default has occurred and is continuing, Lessee will have the right to purchase all (but not less than all) of Lessor’s interest in the Equipment under any Schedule, at a purchase price equal to the sum of (a) the Concluding Payment for the immediately preceding Lease Payment Date, as set forth in the applicable Schedule, (b) the accrued interest portion of the next Lease Payment through the date the purchase price is paid, and (c) any other amounts then due under the Lease with respect to such Equipment (including the Lease Payment otherwise due, if the purchase date occurs on a Lease Payment Date). Upon satisfaction by Lessee of such purchase conditions, Lessor will transfer any and all of its right, title and interest in the Equipment to Lessee as is, without warranty, express or implied. 21. TAX COVENANTS; INDEMNITY. (a) Tax Assumptions and Covenants. The parties assume that, and Lessor is entering into this Master Agreement and each Schedule with the expectation that, Lessor can exclude from Federal gross income the interest portion of each Lease Payment set forth in each Schedule under the column captioned "Interest Portion." Lessee covenants that (a) Lessee will execute and file, or cause to be filed, with the Internal Revenue Service, the appropriate Form 8038-G or 8038-GC for each Schedule; (b) Lessee shall be the only entity or person (other than its employees within the scope of their employment) to own, use, manage or operate the Equipment during the Lease Term; (c) Lessee will not take any action which results, directly or indirectly, in any Lease being a “private activity bond” within the meaning of Section 141(a) of the Code; (d) Lessee will not take any action which results, directly or indirectly, in the interest portion of any Lease Payment not being excludable from Federal gross income pursuant to section 103 of the Code and will take any reasonable action necessary to prevent such result; and (e) not take any action which results in any Lease becoming, and will take any reasonable action to prevent any Lease from becoming an arbitrage obligation within the meaning of section 148 of the Code or federally guaranteed within the meaning of section 149 of the Code. In the event that a question arises as to Lessee's qualification as a political subdivision, Lessee agrees to cooperate with Lessor to make application to the Internal Revenue Service for a letter ruling with respect to the issue. (b) Tax Indemnity. In the event that Lessor either (a) receives notice from the Internal Revenue Service, or (b) reasonably determines, based on an opinion of independent tax counsel selected by Lessor and not reasonably objected to by Lessee within 10 days after notice from Lessor of the selection, that the interest portion of any of the Lease Payments set forth in a Schedule is includable in Lessor's gross income for Federal income tax purposes, then Lessee will pay Lessor within 30 days after receiving notice from Lessor of such determination, the amount which, with respect to such Lease Payments previously paid, will restore the after-tax yield (after taking into account all taxes, interest and penalties) on the transactions evidenced by that Schedule to that which would have been had such interest portion not been includable in Lessor's gross income for Federal income tax purposes, and pay as an additional Lease Payment on succeeding Lease Payment due dates such amount as will maintain such after-tax yield. Notwithstanding the earlier termination or expiration of the Lease Term of the Equipment, the obligations provided for in this Section 21 shall survive such earlier termination or expiration. 22. MISCELLANEOUS. (a) Notices. All notices to be given under this Master Agreement or any Schedule shall be made in writing and mailed by certified mail, return receipt requested, to the other party at its address set forth herein or at such address as the party may provide in writing from time to time. Any such notice shall be deemed to have been received five days subsequent to mailing. (b) Section Headings. All section headings contained herein are for the convenience of reference only and are not intended to define or limit the scope of any provision of this Master Agreement or any Lease. (c) Governing Law. This Master Agreement and any Schedule incorporating the terms of this Master Agreement, shall be construed in accordance with, and governed by, the laws of the state in which Lessee is located. (d) Delivery of Related Documents. Lessee will execute or provide, as requested by Lessor, such other documents and information as are reasonably necessary with respect to the transaction contemplated by a Lease. (e) Entire Agreement; Severability. This Master Agreement, any Schedule incorporating the terms of this Master Agreement, and the other documents or instruments executed by Lessee and Lessor in connection herewith, including, without limitation, the Delivery and Acceptance Certificates referred to in Section 3, constitutes the entire agreement between the parties with respect to the lease of the Equipment, and neither this Master Agreement nor any Schedule shall be modified, amended, altered, or changed except with the written consent of Lessee and Lessor. Any provision of this Master Agreement or any Schedule found to be prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remainder of this Master Agreement or the applicable Schedule. Notwithstanding the foregoing, Lessee authorizes Lessor to insert or correct missing information in this Master Agreement and on each Schedule and related documents, including Lessee’s legal name, Equipment identifying information (e.g. VIN), Equipment location, and any other information describing the Equipment. (f) Interest Rate Limitations. It is the intention of the parties hereto to comply with any applicable usury and other interest rate limitation laws; accordingly, notwithstanding any provisions to the contrary in this Master Agreement or any Schedule, in no 11 event shall this Master Agreement or any Schedule require the payment or permit the collection of interest or any amount in the nature of interest or fees in excess of the maximum permitted by applicable law. (g) Financial Statements. Lessee shall annually provide Lessor with current financial statements, budgets, proof of appropriation for the ensuing budget year and other financial information relating to the ability of Lessee to continue this Master Agreement and each Schedule incorporating the terms of this Master Agreement, as may be requested by Lessor. (h) Counterparts; Chattel Paper; Electronic Transaction. This Master Agreement or any Schedule may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument and either of the parties hereto may execute this Master Agreement or any Schedule by signing any counterpart, except that, to the extent that any Schedule constitutes chattel paper, no security interest therein may be perfected through possession except by possession of Counterpart No. 1 of a Schedule, with respect to that Schedule. The parties agree that any Lease and related documents may be stored by electronic means. IN WITNESS WHEREOF, the parties have executed this Master Agreement as of 5/24/2023. Lessee: City of Bozeman Lessor: Ford Motor Credit Company LLC By: By: Jeff Mihelich Title: City Manager Title: Representative, Ford Motor Credit Company 12 SCHEDULE 9346900 - MASTER EQUIPMENT LEASE-PURCHASE AGREEMENT AMENDMENT That certain Master Equipment Lease-Purchase Agreement, by and between Ford Motor Credit Company ("Lessor") and City of Bozeman ("Lessee"), dated as of 5/24/2023 (the "Lease") is hereby amended as follows: Bank Qualified Tax-Exempt Obligation (Check box for Bank Qualified designation) Lessee hereby designates this Schedule as a "qualified tax-exempt obligation" as defined in Section 265(b)(3)(B) of the Code. Lessee reasonably anticipates issuing tax-exempt obligations (excluding private activity bonds other than qualified 501(c)(3) bonds and including all tax-exempt obligations of subordinate entities of the Lessee) during the calendar year in which the commencement date of this Schedule falls, in an amount not exceeding $10,000,000.00. Non-Bank Qualified Tax-Exempt Obligation (Check box for Non-Bank Qualified designation) Lessee reasonably anticipates issuing more than $10,000,000.00 in tax-exempt obligations in the calendar year of the Commencement Date as defined in the Property Schedule. Except as amended hereby, the Lease shall otherwise remain unchanged and in full force and effect. IN WITNESS WHEREOF, the parties have executed this Amendment as of 5/24/2023. Lessee: City of Bozeman Lessor: Ford Motor Credit Company LLC By: By: Jeff Mihelich Title: City Manager Title: Representative, Ford Motor Credit Company 13 SCHEDULE NO. 9346900 - MASTER EQUIPMENT LEASE-PURCHASE AGREEMENT Master Agreement No. 9346900 dated as of 5/24/2023 This Equipment Schedule dated as of 5/24/2023, is being executed by Ford Motor Credit Company LLC ("Lessor"), and City of Bozeman ("Lessee"). The terms and provisions of the Master Agreement between Lessor and Lessee referenced above (other than to the extent that they relate solely to other Schedules or Equipment under other Schedules) are hereby incorporated by reference and made a part hereof. All terms used herein have the meanings ascribed to them in the Master Agreement. Lessor hereby leases to Lessee pursuant to this Schedule, and Lessee hereby accepts and leases from Lessor, subject to and upon the terms and conditions set forth herein (including any attachments hereto), the following items of Equipment: QUANTITY DESCRIPTION (MANUFACTURER, MODEL & VIN) CASH PRICE SUPPLIER NAME 1 2023 Ford Transit 250, 1FTBR2C83PKA19507 $66,056.64 Duval Ford EQUIPMENT LOCATION: Police Department, 615 South 16th Avenue, Bozeman, MT 59771 COMMENCEMENT DATE (the date on which the Equipment is accepted by Lessee by the execution of a Delivery and Acceptance Certificate): 5/24/2023 INITIAL TERM: 36 Months LEASE PAYMENTS: 3 Consecutive Annual in Advance Payments the first payment due is $35,000.00 followed by 2 payments of $17,743.10 each (including interest), due under this Schedule. See Attachment 1 hereto. Representations, Warranties and Covenants. Lessee hereby represents warrants and covenants as follows: a) The representations, warranties and covenants of Lessee set forth in the Master Agreement are true and correct on the Commencement Date for this Schedule as though made on that Date. b) The execution, delivery and performance by Lessee of this Schedule has been duly authorized by proper action and approval of its governing body at a meeting duly called, regularly convened and attended throughout by a requisite majority of the members thereof or by other appropriate official approval. EXECUTED as of the date first herein set forth. Lessee: City of Bozeman Lessor: Ford Motor Credit Company LLC By: By: Jeff Mihelich Title: City Manager Title: Representative, Ford Motor Credit Company Counterpart No. 1 of 1 manually executed and serially numbered counterparts. To the extent this Schedule constitutes chattel paper; no security interest herein may be perfected through the possession of any counterpart other than Counterpart No. 1. 14 ATTACHMENT 1 TO SCHEDULE NO. 9346900 - MASTER EQUIPMENT LEASE-PURCHASE AGREEMENT LEASE PAYMENT SCHEDULE Master Lease No.: 9346900 Interest Rate: 8.09%, Underwriting Fee: $545.00 Commencement Date of Schedule: 5/24/2023 Lease Payment Number Type Lease Payment Date Total Asset Costs Underwriting Fee Lease Payment Interest Portion Principal Portion Concluding Payment Lease 5/24/2023 $66,056.64 $0.00 $0.00 $66,056.64 Fee 5/24/2023 $545.00 $0.00 $0.00 $66,601.64 1 Payment 5/24/2023 $35,000.00 $0.00 $35,000.00 $31,601.64 2 Payment 5/24/2024 $17,743.10 $2,556.57 $15,186.53 $16,415.11 3 Payment 5/24/2025 $17,743.10 $1,327.99 $16,415.11 $1.00 15 Ford Motor Credit Company LLC 1 American Road, MD 7500 Dearborn, MI 48126 DELIVERY AND ACCEPTANCE CERTIFICATE Master Lease Date Master Lease No. Date of Schedule 9346900 Delivery Number 5/24/2023 9346900 5/24/2023 1 In accordance with Section 3 of the Master Equipment Lease-Purchase Agreement (the "Master Agreement") executed by Lessee and Lessor, the undersigned Lessee hereby certifies and represents to, and agrees with Lessor as follows: (1) All of the Equipment (as such term is defined in the Master Agreement) described below has been delivered, installed and accepted on the date hereof. QUANTITY DESCRIPTION (MANUFACTURER, MODEL & VIN) CASH PRICE SUPPLIER NAME 1 2023 Ford Transit 250, 1FTBR2C83PKA19507 $66,056.64 Duval Ford (2) Lessee has conducted such inspection and/or testing of the Equipment listed in the Schedule as it deems necessary and appropriate and hereby acknowledges that it accepts the Equipment for all purposes. (3) Lessee is currently maintaining the insurance coverage required by Section 15 of the Master Agreement. (4) No event or condition that constitutes, or with notice or lapse of time, or both, would constitute, an Event of Default under any Lease (as those terms are defined in the Master Agreement) exists at the date hereof. (5) We acknowledge that Lessor is neither the vendor (supplier) nor manufacturer or distributor of the Equipment and has no control, knowledge or familiarity with the condition, capacity, functioning or other characteristics of the Equipment. Nothing in this acknowledgement affects any rights Lessee may have against a manufacturer or supplier of the Equipment. (6) The serial number for each item of Equipment that is set forth on the Equipment Description contained in the Schedule is correct. LESSEE: City of Bozeman BY: ________________________________________ ________________________________________ (Title) DATE ACCEPTED: _____________________________ 16 INSURANCE FACT SHEET Lessee Name: City of Bozeman Lessee Schedule No.: 9346900 Address: Police Department , 615 South 16th Avenue, Bozeman, MT 59771 Telephone No.: 406-582-2000 Equipment: 2023 Ford Transit 250, 1FTBR2C83PKA19507 The Master Lease Agreement requires the Lessee to maintain, at all times, the following insurance coverage for the financed equipment as described in the Equipment Lease Purchase Agreement and above. • Automobile Liability that includes Bodily Injury and Property Damage with a minimum of $1,000,000.00 per occurrence (this can be a combination of auto, umbrella or excess liability). • Insurance against all risks of physical loss or damage to the equipment (including theft). • Ford Motor Credit Company LLC, their successors and assigns named as Loss Payee and Additional Insured. 1. If you are not self-insured, please complete the following insurance information: Insurance Company: Address: City: State: Zip Code: Telephone: Agent Name:_____________________________ Policy No.: Expiration Date: Automobile Liability including Bodily Injury and Property Damage: $ Auto Physical Damage (select one): Actual Cash Value Stated Cash Value of $ 2. If you are self-insured, please select one of the follow options: Self Retained Risk Joint/State Fund – PLEASE COMPLETE THE FOLLOWING Name of fund/pool: ___________________________________________ ___ Automobile Liability including Bodily Injury and Property Damage: $ Auto Physical Damage (select one): Actual Cash Value Stated Cash Value of $ Expiration Date: ______________ (if Applicable) • Please also include your standard Self-Insured letter with the return of your document package to Ford Motor Credit Company (if a letter is available.) Sign and date to acknowledge the provided insurance information to Ford is complete and accurate: Signature: _____________________________________ Jeff Mihelich, City Manager 17 The following is information you will need to complete the attached IRS form 8038-GC. Instructions can be found at www.irs.gov/pub/irs-pdf/f8038gc.pdf. Please see your tax professional if you have any questions regarding the completion of this form. Issue Price: $31,601.64 Issue Date: 5/24/2023 Vendor’s Name: Ford Motor Company Vendor’s employer Identification Number: 38-0549190 Please complete the form, sign and return a copy to Ford Credit with your other loan documents. Once completed, you must file the original with the IRS - Department of the Treasury, Internal Revenue Service Center, Ogden, UT 84201. 18 Invoice Invoice Date: May 12, 2023 Lessee: City of Bozeman Police Department 615 South 16th Avenue Bozeman, MT 59771 Lease Schedule No. Payment Due Date Description Payment Amount 9346900 5/24/2023 2023 Ford Transit 250, 1FTBR2C83PKA19507 $35,000.00 Total Amount Due: $35,000.00 Please remit payment as follows: Payment Options CHECK ACH or WIRE TRANSFER Make checks payable to Ford Motor Credit Company LLC and remit to FORD MOTOR CREDIT COMPANY ONE AMERICAN ROAD, MD 7500 DEARBORN, MI 48126 ABA Routing No.: 072 000 096 For Credit to: Ford Motor Credit Company, Municipal Finance Clearing Account Account No.: 107 613 438 4 Reference your lease number 9346900 and City of Bozeman in the OBI section Customer Service: (800) 241-4199, extension 15 Email: fcmuni@ford.com 19 20 21 5/10/23, 2:39 PM FedEx Ship Manager - Print Your Label(s) https://www.fedex.com/shipping/shipAction.handle?method=doContinue 1/1 After printing this label:1. Use the 'Print' button on this page to print your label to your laser or inkjet printer.2. Fold the printed page along the horizontal line.3. Place label in shipping pouch and affix it to your shipment so that the barcode portion of the label can be read and scanned. Warning: Use only the printed original label for shipping. Using a photocopy of this label for shipping purposes is fraudulent and could result inadditional billing charges, along with the cancellation of your FedEx account number.Use of this system constitutes your agreement to the service conditions in the current FedEx Service Guide, available on fedex.com.FedEx will notbe responsible for any claim in excess of $100 per package, whether the result of loss, damage, delay, non-delivery,misdelivery,or misinformation,unless you declare a higher value, pay an additional charge, document your actual loss and file a timely claim.Limitations found in the current FedExService Guide apply. Your right to recover from FedEx for any loss, including intrinsic value of the package, loss of sales, income interest, profit,attorney's fees, costs, and other forms of damage whether direct, incidental,consequential, or special is limited to the greater of $100 or theauthorized declared value. Recovery cannot exceed actual documented loss.Maximum for items of extraordinary value is $1,000, e.g. jewelry,precious metals, negotiable instruments and other items listed in our ServiceGuide. Written claims must be filed within strict time limits, see currentFedEx Service Guide. 22 CERTIFICATE OF PROPERTY COVERAGE ISSUE DATE May 17, 2023 POOLED RISK RETENTION GROUP MONTANA MUNICIPAL INTERLOCAL AUTHORITY (MMIA) PO BOX 6669 HELENA, MT 59604-6669 PH: (406) 443-0907 FAX: (406) 449-7440 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE MMIA MEMORANDUM OF PROPERTY COVERAGE AND ITS DECLARATIONS. ANY STATEMENT ON THIS CERTIFICATE DOES NOT CONFER RIGHTS TO THE CERTIFICATE HOLDER IN LIEU OF REQUISITE ENDORSEMENT(s). COVERED PARTY COMPANY: MONTANA MUNICIPAL INTERLOCAL AUTHORITY COVERAGE MEMORANDUM: VARIOUS City of Bozeman P O Box 1230 Bozeman, Montana 59771-1230 PROPERTY INFORMATION LOCATION / DESCRIPTION2023 Ford Transit 250 VIN: 1FTBR2C83PKA19507 COVERAGE INFORMATION TYPE OF COVERAGE POLICY NUMBER POLICY EFFECTIVE DATE (MM/DD/YYYY) POLICY EXPIRATION DATE (MM/DD/YYYY) AMOUNT OF SHARED POOL COVERAGE DEDUCTIBLE X ALL RISK OF DIRECT PHYSICAL LOSS OR DAMAGE PER OCCURRENCE LOSS LIMIT; SUBJECT TO DEDUCTIBLES, SUB-LIMITS AND AGGREGATES PER DECLARATION 012- PROP- 2023-1 07/01/2022 12:01 am 06/30/2023 $1,000,000,000 VEHICLES: $ 5,000.00 CONTRACTOR EQUIPMENT: $ 5,000.00 REAL PROPERTY: $ 5,000.00 X EARTHQUAKE PER OCCURRENCE AND IN THE ANNUAL AGGREGATE – ALL COVERAGES PER DECLARATION 012- PROP- 2023-1 07/01/2022 12:01 am 06/30/2023 $100,000,000 $100,000 PER OCCURRENCE X FLOOD PER OCCURRENCE AND IN THE ANNUAL AGGREGATE – ALL COVERAGES PER DECLARATION 012- PROP- 2023-1 07/01/2022 12:01 am 06/30/2023 $50,000,000 FLOOD ZONES A & V $250,000 OTHER FLOOD ZONES $100,000 Remarks (Including Special Conditions) As regards: 2023 Ford Transit 250 VIN: 1FTBR2C83PKA19507 Contract: Leae No 9346900 CERTIFICATE HOLDER CANCELLATION Ford Motor Credit Company LLC 1 American Road, MD 7500 Dearborn,, MI 48126 SHOULD ANY OF THE ABOVE DESCRIBED MEMORANDA BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE MEMORANDA PROVISIONS. NATURE OF INTEREST LOSS PAYEE: X EVIDENCE ONLY: AUTHORIZED REPRESENTATIVE 23 CERTIFICATE OF LIABILITY COVERAGE ISSUE DATE May 17, 2023 POOLED RISK RETENTION GROUP MONTANA MUNICIPAL INTERLOCAL AUTHORITY (MMIA) PO BOX 6669 HELENA, MT 59604-6669 PH: (406) 443-0907 FAX: (406) 449-7440 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE MMIA MEMORANDUM OF LIABILITY COVERAGE AND ITS DECLARATIONS. ANY STATEMENT ON THIS CERTIFICATE DOES NOT CONFER RIGHTS TO THE CERTIFICATE HOLDER IN LIEU OF REQUISITE ENDORSEMENT(s). COVERED PARTY TYPES OF COVERAGE City of Bozeman P O Box 1230 Bozeman, Montana 59771-1230 COVERAGE LETTER A B General Liability Auto Liability COVERAGE INFORMATION THIS IS TO CERTIFY THAT A COVERAGE MEMORANDUM HAS BEEN ISSUED TO THE COVERED PARTY NAMED ABOVE FOR THE COVERAGE PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE COVERAGE AFFORDED BY THE MEMORANDUM IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH MEMORANDUM. COVLTR TYPE OF COVERAGE POLICY NUMBER POLICY EFFECTIVEDATE (MM/DD/YYYY)POLICY EXPIRATIONDATE (MM/DD/YYYY)LIMITS OF LIABILITY A GENERAL LIABILITY EACH CLAIM 750,000 X Occurrence 012-LIAB-2023-1 07/01/2022 12:01 am 06/30/2023 EACH OCCURRENCE 1,500,000 B AUTO LIABILITY EACH CLAIM 750,000 X Occurrence 012-LIAB-2023-1 07/01/2022 12:01 am 06/30/2023 EACH OCCURRENCE 1,500,000 DAMAGES UNDER COVERAGE A or B THAT ARE NOT SUBJECT TO LIMITATIONS ON GOVERNMENTAL LIABILITY AS SET FORTH IN MCA, SECTION 2-9-108 X 012-LIAB-2023-1 07/01/2022 12:01 am 06/30/2023 THESE DAMAGES ARE SUBJECT TO THE AGGREGATE LIMITS OF LIABILITY SET FORTH BY DECLARATION Remarks (Including Special Conditions) As Regards: 2023 Ford Transit 250 VIN: 1FTBR2C83PKA19507 Contract Number: Leae No 9346900 CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED MEMORANDA BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE MEMORANDA PROVISIONS.Ford Motor Credit Company LLC 1 American Road, MD 7500 Dearborn,, MI 48126 AUTHORIZED REPRESENTATIVE 24 Memorandum REPORT TO:City Commission FROM:Andy Knight, Deputy Police Chief Jim Veltkamp, Police Chief SUBJECT:Authorize the City Manager to Sign a Professional Services Agreement between the City of Bozeman and Best Rate Towing and Repair to Tow Vehicles for the Bozeman Police Department MEETING DATE:May 23, 2023 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to Sign a Professional Services Agreement with Best Rate Towing and Repair for Towing of Vehicles at the Direction of the Bozeman Police Department STRATEGIC PLAN:3.1 Public Safety: Support high quality public safety programs, emergency preparedness, facilities, and leadership. BACKGROUND:The Bozeman Police Department regularly has a need to have police vehicles towed that become inoperable. These vehicles often break down in areas that require timely and reliable service. The Bozeman Police Department also conducts investigations that require vehicles to be towed to secure locations where searches and evidentiary chain of custody are necessary. Whereas the City of Bozeman nor the Bozeman Police Department has its own tow truck, this agreement will establish consistent pricing for budgetary purposes as well as provide consistent response to help maintain the quality of service that is required. UNRESOLVED ISSUES:None ALTERNATIVES:As suggested by the City Commission FISCAL EFFECTS:A Professional Services Agreement will help provide a consistent and agreed upon pricing structure Attachments: Professional Services Agreement with Best Rate Towing and Repair EXHIBIT 'A' SCOPE OF SERVICES.docx EXHIBIT 'B' PRICING SHEET.docx Report compiled on: May 9, 2023 25 26 Professional Services Agreement for Towing Services for Bozeman Police Department Page 1 of 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 23rd day of May, 2023 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, Best Rate Towing and Repair, 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 in EXHIBIT A (attached). 2.Term/Effective Date: This Agreement is effective upon the Effective Date and will expire on June 1, 2025, unless earlier terminated in accordance with this Agreement. 3.Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4.Payment: City agrees to pay Contractor the amount specified in EXHIBIT B (attached). Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in EXHIBIT B. 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 27 Professional Services Agreement for Towing Services for Bozeman Police Department Page 2 of 11 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 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. 28 Professional Services Agreement for Towing Services for Bozeman Police Department Page 3 of 11 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 obligationsshall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the City as indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should the City be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below, the City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the City for a claim(s) or any portion(s) thereof. In the event of an action filed against the City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for [City’s] 29 Professional Services Agreement for Towing Services for Bozeman Police Department Page 4 of 11 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, Contractorshall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the Contractor in this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: Workers’ Compensation – statutory; Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; Automobile Liability - $1,000,000 property damage/bodily injury per accident; and Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City shall be endorsed as an additional or named insured on a primary non-contributory basis on the Commercial General, Employer’s Liability, and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8.Termination for Contractor’s Fault: 30 Professional Services Agreement for Towing Services for Bozeman Police Department Page 5 of 11 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. 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. 31 Professional Services Agreement for Towing Services for Bozeman Police Department Page 6 of 11 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 Andy Knight or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as designated by the City in writing and may receive approvals or authorization from such persons. b.Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be Paul Johnson 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 32 Professional Services Agreement for Towing Services for Bozeman Police Department Page 7 of 11 designated Contractor personnel or agents. c.Notices:All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party’s address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party’s Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12.Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13 Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14.Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Contractor represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has 33 Professional Services Agreement for Towing Services for Bozeman Police Department Page 8 of 11 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 anyemployee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing its employees and agents in safe work practices. 16.Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 17. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 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. 34 Professional Services Agreement for Towing Services for Bozeman Police Department Page 9 of 11 19.Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 20.Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 21.Dispute Resolution: a.Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b.If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 22.Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 23.Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 24.Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 25.Applicable Law: The parties agree that this Agreement is governed in all respects by 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 35 Professional Services Agreement for Towing Services for Bozeman Police Department Page 10 of 11 parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 28.Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 29.Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 30.Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. 31.Extensions:this Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than 24 months. **** 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: 36 Professional Services Agreement for Towing Services for Bozeman Police Department Page 11 of 11 By_______________________________ Greg Sullivan, Bozeman City Attorney 37 EXHIBIT “A” POLICE DIRECTED TOWING SCOPE OF SERVICES 1. WORK TO BE PERFORMED a. The conditions set forth herein shall apply to all work performed by the Contractor on behalf of City. b. The Contractor will perform all work in a good and workmanlike manner, using that degree of skill and care ordinarily exercised in and consistent with standards for such work. c. The scope of services does not include towing for motor homes, RV’s, trailers and campers. 2. SPECIFICATIONS a. The Contractor is to respond to police directed impounds and police vehicle tows as requested by a Bozeman police officer. b. The Contractor must be able to respond in a timely manner, typically within 30 minutes of the request. c. The Contractor must be familiar with and able to comply with towing and retrieval of vehicles that help preserve evidence. d. The Contractor must maintain confidentiality of any vehicle owner or occupant names or identifiers or particulars regarding an impounded vehicle. e. The Contractor must meet the definition of a “Commercial Tow Truck” as defined in M.C.A. 61-9-416. 3. MATERIALS, EQUIPMENT AND LABOR a. The Contractor undertakes and agrees to furnish and pay for all work equipment, tools, materials, labor, transportation and supervision necessary to perform the work herein described. 38 4. INDEPENDENT CONTRACTOR a. It is agreed that in the performance of the work herein specified, the Contractor is an independent contractor, responsible to the City only as to the results to be obtained in the work herein specified, and to the extent that he work shall be done in accordance with the terms, plans, and specifications furnished by the City. 5. PAYMENTS a. Payments shall be made by the City upon the Contractor furnishing satisfactory evidence of the work performed. The City shall provide the Contractor with information relating to the tow for invoicing purposes. (Officer badge number or name requesting the tow; vehicle registered owner name; year, make and model of the vehicle; VIN and license number of vehicle; police report number). b. All invoicing will be sent to the Bozeman Police Department and the department will be responsible for paying for all towing invoices. 6. PRICING SCHEDULE a. The pricing for police directed tows will be in accordance with the agreed upon EXHIBIT “B” PRICING SHEET. 39 EXHIBIT “B” PRICING SHEET Pricing Information: Towing and Recovery Costs for the Bozeman Police Department ITEM DESCRIPTION NET UNIT PRICE 1.Light duty towing/hook-up – ¾ ton gas motor and under $103 2.Light duty mileage rate – per mile/one way $4 3.Light Medium duty towing/hook-up – ¾ tone diesel and larger $130 4.Medium duty mileage rate - per mile/one way $4 5.Medium duty towing/hook-up $198 6.Medium duty mileage rate – per miles/one way $6 7.Single line winching $198 8. Dual line winching $288 9.Recovery rate/per hour None indicated 10. Regular additional charges None indicated The Bozeman Police Department agrees to pay occasional uncommon charges that can be incurred which are not listed above. These include but are not limited to skates, dollies, straps, tie downs, snatch blocks, oversize vehicles, difficult locations and driveshaft removal and replacement. For these situations, the rates will default to the current published Best Rate Towing Rate Structure. 40 Memorandum REPORT TO:City Commission FROM:Max Ziegler, Facilities Project Coordinator Mike Gray, Facilities Superintendent Jon Henderson, Strategic Services Director SUBJECT:Authorize the City Manager to Sign an Amendment 2 to the PSA with Jackson Contractor Group for Swim Center Renovation GCCM Services MEETING DATE:May 23, 2023 AGENDA ITEM TYPE:Agreement - Vendor/Contract RECOMMENDATION:Authorize the City Manager to sign the 2nd amendment to the PSA with Jackson Contractor Group for Swim Center renovation GCCM services. STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and maintenance for existing and new infrastructure. BACKGROUND:The Swim Center Renovation project was approved for funding through a bond measure passed by the voters of the City of Bozeman on November 2, 2021. This work is intended to address a number of long term deficiencies in the facility's systems and extend the useful life of the building by 25 years. Included in this project is the full redesign and replacement of the HVAC system, replacement of the roof and exterior insulation finishing system, refurbishment of the swimming pool shell and finishes, installation of energy efficient lighting, and replacement of aged interior finishes such as the pool deck and natatorium ceiling. This work will replace numerous systems which are reaching the end of their useful lives and will benefit the user experience for swimmers through improved indoor air quality, enhanced user safety, and modern aesthetics. The work on this project was initiated under a public welfare emergency declaration which permitted the City to waive the public bidding process to complete the repairs necessary to secure the structural integrity of the natatorium envelope. In the summer of 2022, immediate structural repairs to the roof truss system were made to mitigate life safety issues, and temporary repairs to the roof were made to protect the structure until the remaining envelope repairs could be made in the summer of 2023 (Phase 1 Permit 1). Jackson Contractor Group, which had an existing contract with the City for on call general contracting services, was selected to make the emergency repairs permitted under the public welfare emergency declaration. 41 For the remaining work outside of the scope of emergency repairs (Phase 2), which includes the repairs to the swimming pool and HVAC system, the City published a Request for Qualifications on December 4th, 2022 seeking firms to provide general contracting and construction management services. Through a competitive evaluation process, Jackson Contractor Group was determined to be the most qualified respondent to the RFQ and was awarded the scope of work for Phase 2. This contract will cover general contracting and construction management services for Phase 1 Permit 2 through the completion of Phase 2. This amendment updates the scope of work and budget narrative for Phase 2. UNRESOLVED ISSUES:None at this time. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS:The Bozeman Swim Center renovation will be funded through bonds approved by the public vote on November 2, 2021 supplemented by General Fund allocations. Construction expenses for this project, including GC/CM fees, is estimated at $4,784,818 with a total project budget of $5,765,714. The construction budget for Phase 2 is $2,794,454. Attachments: PSA - 2ND Amendment - Swim Center GCCM - Jackson Contractor Group.pdf Report compiled on: March 23, 2023 42 2ND Amendment to Professional Services Agreement for Swim Center Renovation GC/CM Services FY 2023 – FY 2025 Page 1 of 2 2ND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS 2ND AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR Swim Center Renovation GC/CM Services dated March 21st, 2023 (the “Original Agreement”) is made and entered into this _____ day of ____________, 2023, 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 Jackson Contractor Group, 146 Laura Louise Ln, Bozeman, MT 59718, hereinafter referred to as “Contractor.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree to amend the Agreement as follows: 1. Scope of Services: Section 3 of the Original Agreement is amended to include the scope of services as attached to this Amendment as Exhibit C. Exhibit C includes the scope of work and costs for Phase 2 of the Swim Center Renovation Project. The services included in Exhibit C are in addition to and supplement the Scope of Services in the Original Agreement. 2. Payment: Section 4 of the Original Agreement is amended to include payment for the Scope of Services described in Exhibit C to this Agreement. For purposes of Exhibit C, the City agrees to pay Contractor the amount specified in the Scope of Services, contingent on Fiscal Year 2024 budget appropriation. In the event that the Bozeman City Commission does not approve the FY24 budget appropriation for Phase 2 of the Renovation or does not approve sufficient funds to cover the Scope of Services listed in Exhibit C, this Agreement will be void; in such a case, the scope of services in the Original Agreement will remain in full force and effect. Any alteration or deviation from the described services that involves additional costs above those included in Exhibit C amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 43 2ND Amendment to Professional Services Agreement for Swim Center Renovation GC/CM Services FY 2023 – FY 2025 Page 2 of 2 3. Agreement still valid. All remaining terms and provisions of the Agreement remain valid. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA JACKSON CONTRACTOR GROUP By________________________________ By_____________________________ Jeff Mihelich, City Manager Print Name: Title: APPROVED AS TO FORM By_______________________________ Greg Sullivan, Bozeman City Attorney 44 EXHIBIT C 45 1 Bozeman Swim Center Phase 2 Executive Summary (May 2023) This document summarizes the Bozeman Swim Center Phase 2 project. The project is located at 1211 West Main Street, Bozeman, MT 59715. The Contract Documents are detailed as follows. The Draft Project Specifications for the Bozeman Swim Center Phase 2 dated June 2023 (Sent April 2023) have been taken into consideration as reference only. These listed contract documents will need to be amended by Cushing Terrell to match the pricing options taken as value engineering options for this pricing effort. Notable Risks and Challenges Shutdowns to the pool’s public access will be necessary to complete certain scopes of work like Pool Resurfacing and ACT; however, structural repairs at the pool are unquantifiable which can cause lead to inaccurate timeframe estimations and frustrations with the public and staff. Many scopes have allowances or unforeseeable quantities which could impact actual cost and schedule. Working in and around the occupied Swim Center will create noise, dust, debris, and general inconveniences. Jackson Contractor Group and our subcontractors will endeavor to avoid disturbing the occupants and staff to the greatest extent possible; however, it should be expected that maintaining occupancy during this remodel will present challenges and issues beyond the Contractor’s control. HVAC equipment has a 40-week lead time from time of submittal approval. It is vital to get this equipment procurement started to meet the summer of 2024 schedule. Material and Labor escalation rates have been projected for 2024 but we are unsure what the market will do and there is potential for variation. 46 2 We have only been able to find 1 pool contractor that can handle this scope. They are booking up for 2024 and we will need to get them under contract to secure their resources. Notable Budget Assumptions/Clarifications/Exclusions This proposal is based on the Value Engineering options that have been proposed and initially accepted, if any of the VE items are changed later, or if anything is added into the plans and specifications not directly mentioned here, Jackson reserved the right to modify future pricing. An allowance is being carried for structural repairs at the pool and repairs to pool inlets and drains. Any savings or overages will be tracked and submitted to the client upon completion of the scope. There is an allowance of $10,000 for removing and reinstalling piping at the NE exterior face to install siding. At this time, we are not anticipating having NWE remove and reinstall the gas meter or electrical equipment, however, we will need to investigate with the siding contractor. All special inspections have been excluded from the budget. At this point in time the project has not been issued a permit for phase 2. Any changes to the Contract Documents resulting from permit comments may result in changes to cost and schedule. All work is to be bound to prevailing wage determination 2023. 1% Bond is included in the budget. 8% overhead and profit applied to all direct costs is being carried as part of this budget. 1% of the budget is accounted for procuring permits. Montana State Gross Receipts Tax (GRT) is assumed to be applicable to this project and is included in the budget. A construction contingency of 5% is being held in this budget. Construction Contingency can be used for any construction related cost to include, but not limited to staffing and general conditions, safety and quality control requirements, scheduling and expedition of work, scope gaps and unforeseen cost overruns, material price increases, and any other construction related items deemed necessary by the Contractor. Contingency usage shall be presented for approval to the client prior to usage; however, authorization of said, use shall not be unreasonably withheld from the Contractor. 47 3 Budget Summary Budget Value Engineer Options Swimming Pool: o Commercial Quartz Finish in lieu of pebble finish. o Change warranty from 5 years to 18 months workmanship and 7 years material. o Eliminate requirement for chemical specialist for startup. The pool contractor will train existing staff. o Gutter modification with FRP grating to use existing gutter structure and replace coping stone with Federal Stone DHG Series. o Lane tile option to have 6” tiles for 50M Lane lanes and 6” spot tile every 18” for cross pool lane markers. ACT VE Option is to install standard white ceiling tiles. The specified tiles would require seismic upgrades and heavy-duty grid. Deck Tile VE option is to patch indicated areas on A101 and install flexible joints. The tile patches may not perfectly match existing tiles. Schedule 48 4 The project is set to start in Summer of 2024 and anticipated to last 6 months. If we order the HVAC equipment June 30, 2023 we anticipate delivery April 2024. Construction could start May 1 or sooner depending on the ability to shut down the facility. This work will require the facility to be shut down for the duration of 6 months. 49 Memorandum REPORT TO:City Commission FROM:Mike Maas, City Clerk Kira Peters, Assistant City Manager Jeff Mihelich, City Manager SUBJECT:Resolution 5494, Notifying Gallatin County of Mail Ballot Election with Return Costs Paid for November 2023 General Election MEETING DATE:May 23, 2023 AGENDA ITEM TYPE:Resolution RECOMMENDATION:Adopt Resolution 5494, Notifying Gallatin County of Mail Ballot Election with Return Costs Paid for November 2023 General Election. STRATEGIC PLAN:1.2 Community Engagement: Broaden and deepen engagement of the community in city government, innovating methods for inviting input from the community and stakeholders. BACKGROUND:The 2023 municipal election includes the election of a Mayor, one Commissioner, a City Judge, and potentially two ballot questions. Candidate filing opened April 20, 2023 and runs through June 19, 2023. The City Commission has historically in recent elections paid return postage for the municipal election. The indication is that the Gallatin County will not have a ballot issue and therefore, full costs for this election will be the responsibility of the City of Bozeman. City Manager's Recommendation: The City Manager recommends holding a mail ballot election with return postage paid. Primary Election: According to Gallatin County Election Office, a primary election will occur if there are three candidates in two or more contests, or five candidates in any contest. If this occurs, the primary election will be held September 12, 2023. General Election: The general election will be held on November 7, 2023. Mail Ballot Elections In a mail ballot election, only active registered voters are mailed a ballot. This is according to Section 13-19-207, Montana Code Annotated. 13-19-207. When materials to be mailed. (1) Except as provided in 13-13- 205(2) and subsection (2) of this section, for any election conducted by mail, ballots must be mailed no sooner than the 20th day and no later than the 50 15th day before election day. (2) (a) All ballots mailed to electors on the active list and the provisionally registered list must be mailed the same day. (b) At any time before noon on the day before election day, a ballot may be mailed or, on request, provided in person at the election administrator's office to: (i) an elector on the inactive list after the elector reactivates the elector's registration as provided in 13-2-222; or (ii) an individual who registers under the late registration option provided for in 13-2-304. (c) An elector on the inactive list shall vote at the election administrator's office on election day if the elector reactivates the elector's registration after noon on the day before election day. (d) An elector who registers pursuant to 13-2-304 on election day or on the day before election day must receive the ballot and vote it at the election administrator's office. At this time there are 39,849 active voters. Based on $.63 per piece of potential return postage cost, per the Gallatin County Election Department potential return postage costs are as follows: Using the higher end of return rates for Bozeman Municipal Elections 44% and an estimated 14% undeliverable rate (2021 = 13.68%). For 39,849 active voters this would amount to 17,534 returned ballots. At $.63 per piece, this cost would amount to approximately $11,046. In 2021, the costs for election were split 50% with Gallatin County. Using those numbers, the Gallatin County Election Department has provided the estimated anticipated costs for the Municipal Election as follows: Ballots = $12,000 Advertising = $4,500 Postage = $22,800 Outbound = $6,800 Return = $11,000 Undeliverable = $5,000 Mailing = $8,000 Materials = $20,000 Personnel $12,500 Based on these anticipated costs, the total cost of the Municipal Election will be approximately $79,800. If a primary election is required, these costs will increase. Polling Place Elections A polling place election is approximately twice as costly as a mail ballot. The number of ballots the County Election Department uses for a polling place election is larger than a mail ballot election. All the annual absentee voters are mailed a ballot but a larger number has to be used for a base to figure 51 the number of ballots to be printed since there is no way to know how many voters will show up at the polls. In addition, the setup charges for a polling place election are higher. Summary If the City Commission opts to move forward with a mail ballot election for 2023, the City Clerk must submit a Resolution to the Gallatin County Election Department no later than August 14, 2023. UNRESOLVED ISSUES:The City must make its determination prior to knowing whether a primary election is required. ALTERNATIVES:As directed by the City Commission. FISCAL EFFECTS:The City Manager's Recommended Budget contains $150,000 for the conduct of the Municipal Election. Attachments: Resolution 5494 Mail Ballot Election 2023.docx Report compiled on: May 10, 2021 52 Version February 2023 RESOLUTION 5494 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, NOTIFYING THE GALLATIN COUNTY ELECTION ADMINISTRATOR OF THE CITY’S DESIRE TO CONDUCT THE 2023 CITY PRIMARY (IF HELD) AND THE 2023 GENERAL ELECTIONS BY MAIL BALLOT IN ACCORDANCE WITH SECTION 13-19-202, MONTANA CODE ANNOTATED, AND NOTIFICATION OF THE CITY’S COMMITMENT TO FUND THE RETURN POSTAGE COSTS WHEREAS,voter turnout in Bozeman’s municipal elections has historically been low; and WHEREAS, Montana law provides a method for conducting mail ballot elections for local elections; and WHEREAS, mail ballot elections statistically increase voter turnout in elections; and WHEREAS, the City of Bozeman conducted the 2021 general election by mail ballot with a return rate of 41.58% with the City paying for return postage paid; and WHEREAS, the costs of conducting a mail ballot election are less than the costs of conducting a polling place election; and WHEREAS, mail ballot elections tend to increase voter participation, remove barriers that keep people from getting to the polls, gives people more time to study candidates and issues, and has built-in safeguards that increase the integrity of the election process; and WHEREAS, the 2023 municipal election includes the election of a Mayor, one Commissioner, and a City Judge; and WHEREAS, the City may hold a primary election on September 5, 2023 as required by 13- 1-107(2) MCA; and 53 Version February 2023 WHEREAS, Section 13-14-115(2), MCA, provides: (2) (a) Except as provided in subsection (2)(b), the election administrator of a political subdivision may determine that a local nonpartisan portion of a primary election need not be held if: (i) the number of candidates for an office exceeds three times the number to be elected to that office in no more than one-half of the offices on the ballot; and (ii) the number of candidates in excess of three times the number to be elected is not more than one for any office on the ballot. (b)The election administrator may determine that a primary election for a nonpartisan county office need not be held if fewer than three candidates have filed for that office. (c)If the election administrator determines that a primary election must be held pursuant to subsection (2)(a) or (2)(b), the election administrator shall conduct the primary election only for the nonpartisan offices that have a sufficient number of candidates that have filed to be elected to that office. (d)If the election administrator determines that a primary election need not be held pursuant to subsection (2)(a), (2)(b), or (2)(c) for a nonpartisan office, the administrator shall give notice to the governing body that a primary election will not be held for that office.; and WHEREAS, Section 13-14-115(3), MCA, states a governing body may require that a primary election be held if it passes a resolution not more than 10 days after the close of filing by candidates for election stating that a primary election must be held for that office; and WHEREAS, the City of Bozeman will hold a general election on November 7, 2023, as required by 13-1-104(3), MCA; and WHEREAS, pursuant to Section 13-19-104, MCA, such elections can be conducted by a mail ballot election, and the Gallatin County Election Administrator has determined that a mail ballot election conducted in accordance with the provisions of Title 13, Chapter 19, Parts 1-3, MCA, is in the best interests of the City and the electors thereof, and pursuant to Section 13-19- 202, MCA, the City of Bozeman may notify the Gallatin County Election Administrator of its intent to conduct a mail ballot election; and WHEREAS, the Election Administrator shall prepare a written plan, including a timetable, for the conduct of the elections and shall submit it to the Secretary of State at least 60 days prior to the date set for the election in accordance with 13-19-205, MCA; and 54 Version February 2023 WHEREAS, an official ballot will be mailed to every qualified elector of the City of Bozeman, with the goal increasing voter participation in the municipal elections for 2023; and WHEREAS, the City Commission has committed to funding the return postage costs on returned ballots; and WHEREAS, the Office of the County Election Administrator will serve as the place of deposit for ballots within the city limits. Electors who wish to mark their ballot in-person may do so at the Office of the County Election Administrator and deposit their ballot with the election officials at that location; and WHEREAS, the Election Administrator will have an ADA accessible voter interface device available for disabled electors to mark their ballot independently, privately, and securely at the Office of the County Election Administrator; and WHEREAS, for any election conducted by mail, ballots must be mailed no sooner than the 20th day and no later than the 15th day before Election Day and all ballots must be mailed the same day in accordance with 13-19-207, MCA; and WHEREAS, the City of Bozeman desires to reduce barriers for qualified electors in the election process to as few barriers as possible. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, notifies the Gallatin County Election Administrator of the City’s desire to conduct the 2023city primary (if held) and the 2023general election by mail ballot in accordance with Section 13-19-202, MCA; and BE IT FURTHER RESOLVED THAT the City Commission of the City of Bozeman hereby notifies the Gallatin County Election Administrator that ballots should be mailed fifteen (15) days before the election; and BE IT FURTHER RESOLVED THAT except as provided in Section 13-19-204, MCA, the decision to conduct an election under the provisions of Section 13-19-202, MCA, is within the sole discretion of the Election Administrator; and BE IT FURTHER RESOLVED THAT the City Clerk is hereby directed to forward a certified copy of this resolution to the Gallatin County Election Administrator in accordance with the 55 Version February 2023 provisions of Section 13-19-202, MCA; and BE IT FURTHER RESOLVED THAT within five (5) days of receiving this request, the Election Administrator shall respond to the Bozeman City Clerk in writing stating that this request is either granted or denied for reasons specified. If granted, the Election Administrator shall prepare a plan as provided in Section 13-19-205, MCA; and BE IT FURTHER RESOLVED THAT the City Commission of the City of Bozeman hereby informs the Gallatin County Election Administrator that the City will be providing for funding of return postage. PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the _____ day of ___________________, 20____. ___________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: ___________________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney 56 Memorandum REPORT TO:City Commission FROM:Nicholas Ross - Director of Transportation and Engineering SUBJECT:Bozeman is a Bicycle Friendly Community MEETING DATE:May 23, 2023 AGENDA ITEM TYPE:Citizen Advisory Board/Commission RECOMMENDATION:Bozeman is a Bicycle Friendly Community 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 League of American Bicyclists recognizes Bicycle Friendly Communities throughout the country after an in depth application and review process. The City of Bozeman applied during the fall 2022 review period and was awarded "Silver" designation by the League. As part of the review process the League offers a statistical comparison to other cities around the country and ranks the applying city in relationship to the larger achievements of other communities. In addition to the review, the League offers precise ways to achieve more success and thus higher status as a Bicycle Friendly Community. The fall 2022 Silver ranking can serve as a baseline to improve bicycling programs and facilities for the Bozeman community. This special presentation will review our applications and present potential areas of improvement into the future. UNRESOLVED ISSUES:None ALTERNATIVES:No alternatives FISCAL EFFECTS:None Attachments: BFC_Fall_2022_ReportCard_Bozeman_MT Report compiled on: May 16, 2023 57 Bozeman, MT Bozeman’s BFA Program Stats # of Local Bicycle Friendly Businesses: 2 # of Local Bicycle Friendly Universities: 1 # of Local League Cycling Instructors: 0 Montana’s Bicycle Friendly State Ranking: #42 Community Profile Population: 54,539 Area: 20.6 square miles Population Density: 2587.2 people/square mile Land Classification: Mixed Suburban/Urban/Rural Poverty Rate: 17.2%* Median Household Income: $59,695* Percent of the Population that Speaks a Language Other Than English at Home: 5%* Percent with Disability: 9.1%* Percent of Households with No Vehicle Available: 1.4%* *Source: https://www.census.gov/quickfacts/bozemancitymontanaKey Outcomes Commuter Ridership: 4.1% (Bicycle Mode Share among commuters, according to the Census Bureau’s American Community Survey 5-Year Estimate) Overall Bicycle Mode Share: 8-10% (Reported by applicant) Annual Average Bicyclist Crashes in last 5 years: 37 (Reported by applicant) Annual Average Bicyclist Fatalities in last 5 years: 0 (Reported by applicant) Fall 2022 BFC Public Survey Response Summary for Bozeman, MT Bozeman’s Bike Links Bike Network Map, if available: https://bozeman.maps.arcgis.com/apps/webappviewer/in- dex.html?id=2ad7cbb1b07a48a195435755661a744c Bike Plan, if available: N/A - no bike plan How satisfied are you with how this community is designed for making bike riding safe? (n = 10) Is it safe or dangerous to ride a bicycle in your neighborhood, or does it depend? (n = 10) What is the number one change you would most like to see the local government make in this community for bicyclists? (n = 10) 1. More bike paths (30.00%) 2. More bike lanes (20.00%) 3. Increase police enforcement of traffic laws for drivers (20.00%) Very Satisfied (0.00%) Somewhat Satisfied (40.00%) Neither Satisfied nor Dissatisfied (0.00%) Somewhat Dissatisfied (30.00%) Very Dissatisfied (30.00%) Award: Silver | Fall 2022 Award History: Silver since 2012. BICYCLE FRIENDLY COMMUNITY REPORT CARD Page 1 of 5 21937 21937 21937 Bozeman Bozeman, MT MT Survey: Bozeman, MT 21937 Bozeman, MT Bozeman, MT 21937 Bozeman, MT Bozeman, MT 21937 Bozeman, MT 30+60+10Safe (10.00%) It Depends (60.00%) Dangerous (30.00%)a+100+7040The 5 Es Category Scores Bozeman Max Score this round Engineering 22%62% Education 7%60% Encouragement 41%61% Evaluation & Planning 18%64% Equity & Accessibility 13%57% Percentages shown above are the points received out of points available in that category. See pages 2-3 for Bozeman’s subcategory points earned within each Category. Note: Bozeman received fewer than 12 responses to the BFC public survey in Fall 2022. The League strongly encourages BFC applicants to distribute the public survey as widely as possible the next time your community applies to the BFC program, to get input from as many cyclists — and potential cyclists — as possible. 58 Bozeman earned 22% of the points available in the Engineering Category. Below is the breakdown of points that Bozeman earned in each subcategory of the Engineering section compared to the total points available in that respective subcategory from the Fall 2022 BFC application. Engineering SubcategoriesBozeman’s Subcategory Points in Engineering Policies and Design Standards for the Built Environment3 / 38 pts End-of-Trip Facilities13 / 41 pts Bicycle Network 36 / 126 pts Network Maintenance12 / 32 pts Bicycle Access to Public Transportation4 / 22 pts Bike Sharing0 / 25 pts Other Bicycle-Related Amenities2 / 6 pts Regional Coordination1 / 16 pts Engineering Bonus Points1 / 9 pts Overall Engineering Score:22% of available points About this Report Card The following scores are based on the online application submitted by Bozeman in the Fall 2022 Bicycle Friendly Community (BFC) submission round. These scores reflect a combination of automatically-gener- ated points earned through the online application, as well as judge-assigned points and bonus points given by BFC reviewers. The League updated its Bicycle Friendly Community application and awards criteria in the Summer of 2022, after nearly a year of research, focus groups, interviews, listening sessions, and other outreach. The updated application includes a new section on Equity and Accessibility, and other changes throughout. As such, this Bicycle Friendly Community Report card is a beta version as we refine our new scoring system and develop a greater understanding of how to convey new information. All Fall 2022 BFC Report Cards (including this one) will be republished with updated scores if there are changes to the points system after the next round of Bicycle Friendly Community applications. To learn more about the BFC application and awards criteria, please visit https://bikeleague.org/community. Page 2 of 5 Bozeman earned 22% of the points available in the Engineering Category. Below is the breakdown of points that Bozeman earned in each subcategory of the Engineering section compared to the total points available in that respective subcategory from the Fall 2022 BFC application. Engineering Subcategories Bozeman’s Subcategory Points in Engineering Policies and Design Standards for the Built Environment 3 / 38 pts End-of-Trip Facilities 13 / 41 pts Bicycle Network 36 / 126 pts Network Maintenance 12 / 32 pts Bicycle Access to Public Transportation 4 / 22 pts Bike Sharing 0 / 25 pts Other Bicycle-Related Amenities 2 / 6 pts Regional Coordination 1 / 16 pts Engineering Bonus Points 1 / 9 ptsENGINEERING Bozeman earned 7% of the points available in the Education Category. Below is the breakdown of points that Bozeman earned in each subcategory of the Education section compared to the total points available in that respective subcategory from the Fall 2022 BFC application. Education Subcategories Bozeman’s Subcategory Points in Education Youth Bicycle Education 2 / 71 pts Adult Bicycle Education 6 / 47 pts Motorist Education 1 / 28 pts Bicycle Safety Education Resources 5 / 22 pts Inclusive Education 0 / 22 pts Education Bonus Points 1 / 8 ptsEDUCATION 59 Page 3 of 5 Bozeman earned 13% of the points available in the Equity & Accessibility Category. Below is the breakdown of points that Bozeman earned in each subcategory of the Equity & Accessibility section compared to the total points available in that respective subcategory from the Fall 2022 BFC application. Equity & Accessibility Subcategories Bozeman’s Subcategory Points in Equity & Accessibility Equity & Accessibility Staffing, Committees, & Partnerships 15 / 38 pts Equity Data Collection & Goals 0 / 20 pts Equity & Accessibility Policies & Plans 1 / 38 pts Equity & Accessibility in Engineering 2 / 35 pts Equity & Accessibility in Education 0 / 35 pts Equity & Accessibility in Encouragement 7 / 35 pts Equity & Accessibility in Evaluation & Planning 9 / 35 pts Equity & Accessibility Bonus Points 0 / 15 ptsEQUITY & ACCESSIBILITYBozeman earned 41% of the points available in the Encouragement Category. Below is the breakdown of points that Bozeman earned in each subcategory of the Encouragement section compared to the total points available in that respective subcategory from the Fall 2022 BFC application. Encouragement Subcategories Bozeman’s Subcategory Points in Encouragement Encouragement Policies, Programs and Partnerships 9 / 22 pts Route-Finding Support 8 / 10 pts Bicycle Culture and Promotion 37 / 99 pts Access To Bicycle Equipment and Repair Services 21 / 49 pts Reducing Work-Related/Fleet VMT 5 / 10 pts Encouragement Bonus Points 1 / 8 ptsENCOURAGEMENT Bozeman earned 18% of the points available in the Evaluation & Planning Category. Below is the breakdown of points that Bozeman earned in each subcategory of the Evaluation & Planning section compared to the total points available in that respective subcategory from the Fall 2022 BFC application. Evaluation & Planning Subcategories Bozeman’s Subcategory Points in Evaluation & Planning Staffing And Committees 6 / 42 pts Public Engagement for Bicycle Planning 12 / 33 pts Planning, Funding, And Implementation 2 / 46 pts Evaluating The Bicycle Network 0 / 21 pts Evaluating Ridership 8 / 21 pts Evaluating & Improving Safety Outcomes 8 / 38 pts Evaluation & Planning Bonus Points 1 / 8 ptsEVALUATION & PLANNING60 FEEDBACK TO IMPROVE: To maintain and improve on Bozeman’s Silver-level Bicycle Friendly Community award, BFC Reviewers recommend… »BFC Reviewers believe that Bozeman’s 2022 BFC application did not fully reflect all the ongoing bicy- cle-friendly activities and efforts underway in Bozeman. The BFC application itself is designed to be a use- ful tool to encourage collaboration across city departments and among local community groups and other public, private, and non-profit partners. The next time Bozeman renews its BFC designation, the League strongly encourages future applicants to engage with a wider range of local partners and stakeholders, both to better capture all the local work that is actually happening, and to facilitate greater ongoing en- gagement and collaboration to help the community improve faster. »The Belonging in Bozeman - Equity & Inclusion Plan seems like a great way for Bozeman to enhance eq- uitable outcomes, however, it was not mentioned in this application. This work should be integrated into transportation planning efforts to ensure that Bozeman’s transportation outcomes are also equitable. »Continue to improve and expand the low-stress bike network for all ages and abilities, and ensure that your community follows a bicycle facility selection criteria that increases separation and protection of bicyclists based on levels of motor vehicle speed and volume. »Work to better maintain existing bike infrastructure and create maintenance plans that can be incorpo- rated into current budgeting processes. Consider ongoing needs around repaving, repainting, vegetation, sweeping, and winter maintenance of bike facilities to better enable safe, year-round biking. »Lower speed limits on residential streets to 20 mph or less. Introduce road diets and traffic calming mea- sures to ensure compliance. Develop a system of bicycle boulevards, utilizing these quiet neighborhood streets, that creates an attractive, convenient, and comfortable cycling environment welcoming to cyclists of all ages and skill levels. Use the Bicycle Boulevards section of the NACTO Urban Bikeway Design Guide for design guidelines. »Establish a bike share system, bicycle lending library, or rental program targeting visitors and residents. Explore e-bikes, adaptive bikes, trikes, etc. to make the program accessible to all. This can still be accom- plished and supplement any potential scooter share options that may also come to Bozeman. »In-school bicycle safety education should be a routine part of education for students of all ages, and schools and the surrounding neighborhoods should be particularly safe and convenient for biking and walking. Work with local bicycle groups and interested parents to create Safe Routes to School program- ming and on-bike learning opportunities at all K-12 schools. Providing bicycles in schools for on-bike ed- ucation is strongly encouraged to ensure that all students can learn to safely ride a bicycle regardless of the availability of a bicycle in their household. »Work with the local school district and other agencies to appoint or hire a new Safe Routes to School Coordinator to focus on improving education for students and improving the bikeway network around schools. »Develop bicycle education opportunities for adults. Consider ways to target demographics who currently do not feel safe riding with classes or events that address their concerns and create an inclusive, welcom- ing environment. Bozeman, MT Award: Silver | Fall 2022 | Award History: Silver since 2012. BICYCLE FRIENDLY COMMUNITY REPORT CARD Page 4 of 5 61 FEEDBACK TO IMPROVE, CONTINUED: MORE RESOURCES FOR IMPROVING YOUR COMMUNITY: »League of American Bicyclists: https://www.bikeleague.org »Resources for Building a Bicycle Friendly Community: https://bikeleague.org/BFC_Resources »About the BFC Application Process: https://bikeleague.org/content/about-bfc-application-process »The Five E's: https://bikeleague.org/5-es »The League’s Benchmarking Project on Biking and Walking Data and Reports: https://data.bikeleague.org »Bicycle Friendly State Rankings and Report Cards: https://bikeleague.org/state »Bicycle Friendly Business Program: https://bikeleague.org/business »Bicycle Friendly University Program: https://bikeleague.org/university »Smart Cycling Education Program: https://bikeleague.org/ridesmart »Advocacy Reports and Resources from the League: http://bikeleague.org/reports »Federal Funding Resources from the League: https://bikeleague.org/content/federal-funding-resources »Pedestrian and Bicycle Funding Opportunities from U.S. DOT Transit, Safety, and Highway Funds: https://www.fhwa.dot.gov/environment/bicycle_pedestrian/funding/funding_opportunities.pdf BICYCLE FRIENDLY COMMUNITY REPORT CARD Bozeman, MT Award: Silver | Fall 2022 | Award History: Silver since 2012. Page 5 of 5 »Increase the number of local League Cycling Instructors (LCIs) in your community, either by hosting an LCI seminar or sponsoring a City staffer or local bike advocate to attend an existing seminar elsewhere. Having several active instructors in the area will enable you to expand cycling education for youth and adults, recruit more knowledgeable cycling ambassadors, deliver Bicycle Friendly Driver education to mo- torists, and have experts available to assist in encouragement programs. »Encourage more local businesses, agencies, and organizations to promote cycling to their employees and customers and to seek recognition through the Bicycle Friendly Business program. City Hall or other mu- nicipal buildings could apply to the BFB program as an employer to lead by example. »Continue to use the Transportation Advisory Board for their expertise and help with community engage- ment and planning. Consider whether a bike-specific subcommittee would be helpful to advance the community’s biking goals, and ensure that the members of the TAB reflect the diversity and ability levels of cyclists in your community. »Develop and adopt an official dedicated bicycle master plan for your community. A bicycle master plan is a critical step to improving conditions for bicycling and institutionalizing processes for continual improve- ment, and should include specific and measurable goals and dedicated funding for implementation. Your bike plan should also build upon the recommendations of the 2017 Transportation Master Plan, the TDM Work Plan, and the new forthcoming Parks, Recreation & Active Transportation Plan to create a safe, com- fortable, and connected bicycle network. 62 Memorandum REPORT TO:City Commission FROM: Jay Porteen, Code Compliance Manager Anna Bentley, Director of Community Development SUBJECT:Ordinance 2139 Provisional Adoption of a New Section in the Bozeman Municipal Code and Amending Current Sections in the Bozeman Municipal Code Related to Construction Operations Noise MEETING DATE:May 23, 2023 AGENDA ITEM TYPE:Ordinance RECOMMENDATION:I move to provisionally adopt Ordinance 2139 adopting a new section in the Bozeman Municipal Code, and amending current sections in the Bozeman Municipal Code related to construction operations noise. STRATEGIC PLAN:4.2 High Quality Urban Approach: Continue to support high-quality planning, ranging from building design to neighborhood layouts, while pursuing urban approaches to issues such as multimodal transportation, infill, density, connected trails and parks, and walkable neighborhoods. BACKGROUND: The City Commission adopted the city’s current noise ordinance in 2001. Since that time, the city has grown and population has increased; thus residential development (homes) are situated closer together and located in more geographic areas of the city than in 2001. With neighbors residing closer together, some environmental factors – such as construction noise – have become more of a concern than when the city’s Noise ordinance was initially adopted. In 2021, as a result of community concerns, city staff reviewed the impacts of construction operations noise on residents. This review included research on how other communities in Montana address construction operations noise, when and why construction operation noise complaints occur, and what amendments to the Bozeman Municipal Code could be an appropriate response to the community concerns about construction operation noise. Staff received feedback from the community about construction operations’ noise. 63 Ord. 2139 implements a city-wide, objective, decibel standard for construction operation noise. Specifically, construction operation noise exceeding 60dB(A) may not occur between the hours of 8pm and 7am. However, Ord. 2139 provides a permit and appeal process that can be used if a construction operation needs to exceed the noise decibel restrictions during the prohibited hours. UNRESOLVED ISSUES:The fee for the exemption included in the proposed text has not yet been approved in a Resolution. If the City Commission adopts text changes proposed in this ordinance, staff will bring forward, in a future Commission meeting, a resolution for the exemption fee. ALTERNATIVES:As suggested by the City Commission. FISCAL EFFECTS: There are no fiscal effects of the proposed text changes. If the Commission adopts the changes, staff will bring forward a resolution for the exemption fee. If that resolution is adopted, fees would be anticipated to cover the majority of costs of administering the exemption. Attachments: Ordinance 2139 Report compiled on: May 11, 2023 64 Ord 2139 Page 1 of 9 ORDINANCE 2139 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA AMENDING THE BOZEMAN MUNICIPAL CODE REGARDING NOISE FROM CONSTRUCTION OPERATIONS INCLUDING AMENDING SEC. 16.06.020 (FINDINGS); SEC. 16.06.040 (DEFINITIONS); SEC. 16.06.060 (LOUD NOISES PROHIBITED IN RESIDENTIAL AREAS); SEC. 16.06.070 (EXCEPTIONS); SEC. 16.06.090 (ENFORCEMENT); AND ADDING A NEW SECTION FOR CONSTRUCTION OPERATIONS. WHEREAS, on September 24, 2001, the Bozeman City Commission formally adopted Ordinance No. 1539; and WHEREAS, in making its findings in support of Ordinance No. 1539, the City Commission determined that “[l]oud and raucous noise degrades the environment of the City of Bozeman to a degree that: 1) [i]t maybe be harmful to the health, welfare, and safety of its inhabitants and visitors; 2) [i]t may interfere with the comfortable enjoyment of life and property reasonably expected in an urban environment; 3) [i]t may cause or aggravate health problems;” and WHEREAS, since the adoption of Ordinance No. 1539, and in light of the recent increase of development occurring throughout the city, the City of Bozeman seeks to balance the needs of construction operations and the needs of residents to peacefully enjoy their property; and WHEREAS, sound emanating from construction operations can affect an adjacent citizen’s right to the quiet enjoyment of their property. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 That Section 16.06.020, Bozeman Municipal Code, will be amended as follows: 65 Ordinance No. 2139: Noise from Construction Operations Page 2 of 9 Sec. 16.06.020. Findings. A. Loud and raucous noise degrades the environment of the city to a degree that: 1. It may be harmful to the health, welfare, and safety of its inhabitants and visitors; 2. It may interfere with the quiet comfortable enjoyment of life and property reasonably expected in an urban environment; 3. It may cause or aggravate health problems. B. Both the effective control and the elimination of loud or raucous noise are essential to the health and welfare of the citizens and visitors of the city as well as to the conduct of the normal pursuits of life, including recreation, work and communication. C. The use of sound amplification equipment creates loud and raucous noise that may, in a particular manner and at a particular time and place, substantially and unreasonably invade the privacy, peace, and freedom of the citizens of and visitors to the city. D. Certain short-term easing of noise restrictions is essential to allow the construction and maintenance of structures, infrastructure, and other elements necessary for the physical and commercial vitality of the city. Section 2 That Section 16.06.040, Bozeman Municipal Code, will be amended as follows: Sec. 16.06.040. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. “Decibel” means a unit used to measure the intensity of a sound or the power level of an electrical signal by comparing it with a given level on a logarithmic scale, commonly symbolized using dB. Decibel levels shall be measured using the A-scale of an OSHA approved standards sound level meter at slow response. 1.2. “Construction operations” means the excavation, construction, repair, or demolition of any building, structure, land parcel, street, alley, waterway, or appurtenance thereto using any device or mechanical apparatus operated by human, fuel, electric or pneumatic power, including but not limited to noise generated from loudspeakers on a construction site. 2.3. "Emergency" means any occurrence or set of circumstances involving actual or imminent physical trauma or property damage which demands immediate attention. 3.4."Emergency work" means any work: a. Performed for the purpose of preventing or alleviating physical trauma or property damage; b. Restoring property to a safe condition following a public calamity; c. By private or public utilities when restoring utility service; or 66 Ordinance No. 2139: Noise from Construction Operations Page 3 of 9 d. Performed to protect persons or property from exposure to danger or potential danger. 4.5. "Health" means an optimal state of physical, mental and emotional well-being and not merely the absence of disease. 5.6. "Person" means any individual, firm, association, partnership, joint venture, corporation or public entity, including but not limited to federal, state or city government. 6.7. "Public right-of-way" means any street, avenue, boulevard, highway, sidewalk, alley, or similar place which is normally accessible to the public which is owned or controlled by a government entity. 8. "Public space" means any real property or structure on real property, owned by the government and normally accessible to the public, including but not limited to parks and other recreational areas. For the purposes of this article, public space will also include any property, whether publicly or privately owned, used by members of the general public as a method of ingress, egress or for parking. Section 3 That Section 16.06.060, Bozeman Municipal Code, will be amended as follows: Sec. 16.06.060. Loud noises prohibited in residential areas. A. Except as authorized in section 16.06.070, it is unlawful to perform any of the following acts within areas of the city zoned R-1, R-2, R-3, R-4, R-O, RMH, R-S or PLI: 1. Non-emergency signaling devices. Sounding any horn or signaling device on any truck, automobile, motorcycle, or other vehicle, including but not limited to the use of backup beepers, except as a warning signal. 2. Exhausts. Discharging into open air the exhaust of any steam engine, stationary internal combustion engine, motorboat, or motor vehicle, except through a muffler or other device which will effectively prevent loud or explosive noises. 3. Construction projects. Operating equipment or performing any construction or repair work on buildings, structures, streets, highways, bridges or other public rights-of-way or operating any pile driver, steam shovel, pneumatic hammer, derrick, steam electric hoist, generator, pump or other construction-type device in such a manner which may disturb the quiet, comfort or repose of any normally sensitive and reasonable person. 4.3. Loading, unloading or opening containers. Loading, unloading, opening or other handling of boxes, crates, containers, garbage containers or other objects in such a manner as to disturb the quiet, comfort or repose of any normally sensitive and reasonable person. 5. 4. Snow blowers, leaf blowers or similar devices. Operating any noise-creating blower, power fan, or any internal combustion engine, the operation of which causes noise due to the explosion of operating gases or fluids, including but not limited to snow blowers or other snow removal devices, leaf blowers, chainsaws, or lawnmowers in a manner which may disturb the quiet, comfort or repose of any normally sensitive and reasonable person. 67 Ordinance No. 2139: Noise from Construction Operations Page 4 of 9 B. The activities described in subsection A of this section are authorized in areas within the city zoned B-1, B-2, B-3, M-1, M-2, HMU, UMU and BP without restrictions set forth in section 16.06.070. Section 4 That Section 16.06.070, Bozeman Municipal Code, will be amended as follows: Sec. 16.06.070. Exceptions. A. Subject to sections 16.06.050 and 16.06.060.A., tThe following activities will be authorized as follows are subject to the prohibitions in 16.06.050, but are exempt from the prohibitions in 16.06.060: 1. Non-emergency signaling devices. Except as authorized in subsection A.32 of this section, the sounding or permitting of any sounding of amplified signals from any bell, chime, siren, whistle or similar device intended primarily for non-emergency purposes, including but not limited to back-up beepers, will be authorized at any time between the hours of 6:00 a.m. and 8:00 p.m. from October 1 through March 30 and between 6:00 a.m. and 10:00 p.m. from April 1 through September 30. 2. Construction projects. Operating equipment or performing any construction or repair work as defined in section 16.06.060 will be authorized between the hours of 6:00 a.m. and 8:00 p.m. from October 1 through March 30 and between 6:00 a.m. and 10:00 p.m. from April 1 through September 30. The director of public service may authorize temporary relief from this section upon application and a showing of extraordinary need for the use of this equipment beyond or outside these hours. Such authorization will clearly set forth the dates and hours of the authorized use as well as any special conditions needed to mitigate potential negative noise impacts. 3.2. Loading, unloading or opening containers. The loading, unloading, opening or other handling of boxes, crates, containers, solid waste containers or other similar objects, including but not limited to the collection of solid waste as defined in section 32.02.010, recyclables or compostable materials by either the city or a private contractor duly licensed by the Montana Public Service Commission for the collection and transportation of solid waste will be authorized provided the parties obtain and comply with any permits required by chapter 38. Should a permit not be required, this activity is authorized between the hours of 5:00 a.m. and 8:00 p.m. from October 1 through March 30 and between 5:00 a.m. and 10:00 p.m. from April 1 through September 30. 4. 3. Snow blowers, leaf blowers or similar devices. The operation of any equipment as defined above will be authorized between the hours of 6:00 a.m. and 8:00 p.m. from October 1 through March 30 and between 6:00 a.m. and 10:00 p.m. from April 1 through September 30. 5. 4. Outdoor events. Any outdoor gatherings, public dances, shows sporting events, and other similar outdoor events will be authorized provided the parties obtain any permits required by chapter 34, article 8. Should the event not require a permit, the gathering will be authorized 68 Ordinance No. 2139: Noise from Construction Operations Page 5 of 9 between the hours of 6:00 a.m. and 8:00 p.m. from October 1 through March 30 and between 6:00 a.m. and 10:00 p.m. from April 1 through September 30. 6. 5. Outdoor activities. Activities conducted on public playgrounds and public or private school grounds, which are conducted in accordance with the manner in which such spaces are generally used, including but not limited to the use of a city-owned park, swimming pool, skate park, ball fields, school athletic or school entertainment events. 7.6. Public work. Noise created in the performance of any work in the public right-of-way or on public space as defined herein which is reasonably necessary for the public benefit, welfare, convenience or safety, including but not limited to the maintenance of streets, parking lots, water and wastewater lines but excluding solid waste activities. B. Nothing in this section will be construed to allow activity which is prohibited under chapter 38. Section 5 That Section 16.06.090, “Enforcement,” will be amended as follows and renumbered as Section 16.06.100: Sec. 16.06.100. Enforcement. A. The chief of police and the director of community development or their designee will have the primary responsibility for the enforcement of this article. Nothing in this article will prevent the chief of police or the director of community development or their designee from obtaining voluntary compliance by way of warning, notice or education. B. A violation of this article will be punishable as follows: 1. First offense will be punishable by a fine of not more than $500.00 or six months in the county jail or both; 2. Second offense occurring within one year from the conviction of the first offense will be punishable by a minimum fine of not less than $100.00 or more than $500.00, a maximum of six months in the county jail or both; 3. Third offense occurring within one year from the conviction of the first offense will be punishable by a minimum fine of not less than $200.00 but in no event more than $500.00, a maximum of six months in the county jail or both; 4. 4th offense occurring within one year from the conviction of the first offense will be punishable by a minimum fine of not less than $350.00 but in no event more than $500.00, a maximum of six months in the county jail or both; 5. 5th offense occurring within one year from the conviction of the first offense will be punishable by a fine of $500.00, a maximum of six months in the county jail or both. C. Nothing in this article will be construed to prevent or interfere with an individual's constitutional right to free speech. If a person's exercise of a constitutional right to free speech 69 Ordinance No. 2139: Noise from Construction Operations Page 6 of 9 would violate this article, that person must be ordered, and have the opportunity, to move, disperse, or otherwise remedy the violation prior to arrest or a citation being issued. D. Noise measured by trained and qualified city employees on a complainant’s property in excess of 60dB(A) will be considered prima facie evidence that such noise is a violation of this 16.06.090. Section 6 That a new section of the Bozeman Municipal Code be adopted as follows: Sec. 16.06.090 – Construction Operations. A. Jurisdiction. This section applies to all construction operations located within the city. B. The prohibitions in 16.06.050 are applicable to construction operations. C. Restrictions. Noise emanating from a construction operation occurring between the hours of 8:00 PM to 7:00 AM must not exceed 60dB(A) as measured at the property line of an immediately adjacent property. D. Permit. The director of community development or their designee may issue a permit to exempt a construction operation from the restrictions on hours and noise levels in 16.06.090(C). The director may establish permit policies and applications requirements. 1. A permit may be granted if the director determines: i. The application contains the required supporting materials; ii. The applicant paid the non-refundable application fee; and iii. The application contains sufficient facts demonstrating why performing construction operations outside of the restrictions set forth in 16.06.090(C) is necessary. 2. When determining whether to approve, conditionally approve, or deny a permit, the director may consider any relevant factors including but not limited to: a. The hours requested to exceed those listed in 16.06.090(C); b. The location of the construction operation and proximity to residential dwellings; c. The nature and extent of construction operations to be performed outside the hours listed in 16.06.090(C); and d. The number of days requested. 3. The director or their designee is authorized and empowered to revoke any permit granted under the terms of this article if it becomes known to them that the permittee is in any manner failing to comply with the terms of this article or when public convenience and safety require such revocation. E. Appeals. An applicant may appeal the director’s decision to the city manager by submitting a non-refundable appeal fee and providing the information required by the director. 70 Ordinance No. 2139: Noise from Construction Operations Page 7 of 9 The appeal must be filed within five business days of the director’s decision. The city manager may uphold, modify, or overturn the decision. A decision of the city manager is a final decision of the city and may be appealed to state district court. Section 6 Repealer. All provisions of the ordinances of the City of Bozeman in conflict with the provisions of this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 7 Savings Provision. This ordinance does not affect the rights and duties that matured, penalties that were incurred or proceedings that were begun before the effective date of this ordinance. All other provisions of the Bozeman Municipal Code not amended by this Ordinance shall remain in full force and effect. Section 8 Severability. That should any sentence, paragraph, subdivision, clause, phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect the validity of this ordinance as a whole, or any part or provision thereof, other than the part so decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman Municipal Code as a whole. Section 9 Codification. This Ordinance shall be codified as indicated in Section 1 – 6 with Section 5 of this Ordinance being amended as shown in Section 5 and renumbered 16.06.100 and Section 6 of this Ordinance being numbered as 16.06.090. Section 10 Effective Date. 71 Ordinance No. 2139: Noise from Construction Operations Page 8 of 9 This Ordinance shall be in full force and effect thirty (30) days after final adoption. PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the _____ day of _______________, 2023. ____________________________________ 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 ____________________, 2023. The effective date of this ordinance is __________, __, 2023. _________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: _______________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN 72 Ordinance No. 2139: Noise from Construction Operations Page 9 of 9 City Attorney 73